Plaintiff, Matthews was elected mayor of Atlantic City on June 15, 1982 and has served in that capacity from July 1, 1982 up until the present time. In August 1983 Matthews became the target of a recall petition filed by defendant, Masland on behalf of the Committee to Make Mayor-Council Government Work (hereinafter referred to as the recall committee). The filing of said petition spawned extensive litigation involving several parties and raising various issues of first impression.
The initial suit was filed on September 7, 1983 by one Kevin R. Baker, a circulator of recall petitions who claimed that defendant, Deane, city clerk of Atlantic City, improperly refused to review petitions which he submitted. An order to show cause was executed by the court in this matter. September 7 was also the day on which Deane issued a certification that her office had determined that 6836 valid signatures had been
submitted seeking the recall of Matthews, 579 signatures in excess of the 6257 needed to compel the setting of a date for a recall election.
On September 8 Deane notified Matthews of the results of the certification review process, pursuant to N.J.S.A. 40:69A-171. Matthews filed a complaint in lieu of prerogative writs against Deane on that same day alleging irregularities in the procedures employed by the recall committee, failure by Deane to discover these irregularities, and improper resort to the recall process. This court executed an order to show cause submitted by Matthews, made it returnable on September 13 and continued the Baker matter until that same date and time.
Defendant Masland filed a complaint and motion to intervene, said motion being granted at the hearing on September 13. The following actions resulted from the September 13 hearing: the Baker and Matthews actions were consolidated, the intervention motion of Matthews with respect to the Baker matter was granted, Matthews' application for a preliminary injunction was granted enjoining Deane from setting a recall election date until September 19 and until further order of the court, and finally, a hearing was scheduled for September 19 to consider Matthews' motion for summary judgment on two issues. The first issue concerned the validity of signatures collected prior to Matthews' having completed one year in office and the second concerned the validity of signatures of individuals who registered to vote between the date of the initial filing of the recall petition and the date for submitting additional petition signatures (the cure period). A pretrial order was entered which, among other things, scheduled the trial to begin October 3, estimated to last a minimum of four weeks.
This court issued a formal opinion on September 21 finding that those signatures collected prior to the completion of Matthews' first year in office and those collected during the cure period were valid signatures to be considered in Deane's examination of the petition. Baker v. Deane, 196 N.J. Super. 416
Judgment was entered in accordance with the opinion and certified as a final judgment pursuant to R. 4:42. The judgment entered was stayed and all previously issued injunctions were continued pending appeal. Masland filed an appeal from the order continuing the injunctions and Matthews appealed the judgment entered on September 21, seeking a continuation of restraints preventing Deane from setting an election date. The Appellate Division refused to consider challenges to the September 21 opinion and remanded the matter to this court for trial on an expedited basis. The Appellate court also restrained Deane from setting an election date pending completion of the trial. The trial commenced in October and continued into December, having been interrupted and delayed several times for various reasons.
On or about November 8 a second petition was circulated seeking support for the recall of Matthews. This second petition was promoted and circulated by the same individuals who circulated the first petition and was filed with Deane on December 2. This same date Matthews filed a complaint and a summary judgment motion with this court seeking a determination that the existence of one certified recall petition precluded the filing of a second recall petition. On December 5 this court ordered Deane to begin the review process on the second set of petitions and scheduled a show-cause hearing for December 8. The December 8 hearing was continued as a result of an unsuccessful attempt by Masland to have the case removed to federal court. Deane issued a certificate of insufficiency with respect to the second petition on December 12 with this court subsequently ruling that the complaint and motion of Matthews were premature. Matthews filed an appeal which was denied for essentially the same reasons given by the trial court. On December 22 the recall committee filed additional signature papers amending the second petition. Deane ultimately certified the petition as insufficient, thereby extinguishing the second recall effort. Matthews' appeal from this court's initial
denial of his request to restrain Deane from reviewing the second petition is still pending.
On January 13, 1984 Masland filed a complaint and order to show cause seeking an order of this court compelling Deane to: 1.) review petitions circulated by one Jaleel Muhammad, 2.) review other alleged errors in the certification process and 3.) issue a new certification after reviewing those petitions and signatures. An answer was filed and a trial held on these issues on January 23, with the Attorney General's office representing the Atlantic County Board of Elections. At that time it was determined that Jaleel Muhammad was a properly registered voter at the time he submitted recall petitions and that valid signatures on his petitions were to be counted. The result was that there were at least 13 signatures in excess of the amount necessary to have the issue placed on a ballot and Deane was ordered to proceed with her ministerial duties. Matthews' motion to intervene in the hearing was denied on the ground that he was not a necessary party to the litigation.
On February 1 the court entertained several motions to extend the time for setting an election date, a renewal of the motion by Matthews to intervene in the January proceeding, and a renewal of the motion by Matthews for summary judgment regarding the issue of the existence of two certified recall petitions. At that time, an election date of March 13, 1984 was set by the court, the motion to intervene was denied on the ground that the January 23 hearing resulted in a final judgment. Decision on the motion for summary judgment was reserved and is the focus of this opinion.
At oral argument, counsel for Matthews indicated that Matthews had no preference as to which petition should be eliminated, he only asserted that two certified recall petitions cannot coexist. With this assertion the court agrees. For the reasons set forth herein, the court finds that it is not possible for them to coexist.
The provisions dealing with recall elections are contained in N.J.S.A. 40:69A-168 to -178. While the statute provides for the filing and receiving of recall petitions, nowhere does it provide that the filing of one petition precludes the filing of an independent petition seeking the same result. Matthews relies on the language of N.J.S.A. 40:69A-170 and -171 to support his contention that a second recall petition can't be filed once one petition has been certified. Section 170 provides that the filing of an insufficient petition does not prevent the filing of a subsequent petition. Matthews contends that there is a negative implication in § 170 to the effect that the filing of a sufficient petition prevents the filing of a second petition. To that same end, Matthews submits that § 171, which outlines the city clerk's duties once a recall petition has been certified to be sufficient, does not instruct the clerk to accept additional petitions as one of those duties. The absence of such a provision is not the result of a clear legislative determination that only one petition can be filed and certified at a given time. It would seem that the present factual situation was never contemplated by the Legislature.
An examination of the recall statute reveals that the Legislature attempted to provide procedures which would deal with any contingency which arose during the recall process. The recall statute provides specifically for: the time for filing a recall petition, N.J.S.A. 40:69A-168; the requirements for a petition to be sufficient, N.J.S.A. 40:69A-169; the collection of signatures and review by the municipal clerk N.J.S.A. 40:69A-170; the procedures to be followed once a petition has been certified as sufficient, N.J.S.A. 40:69A-171; the form of the ballot, N.J.S.A. 40:69A-172 and 174; the recall of more than one official, N.J.S.A. 40:69A-173; the selection of candidates, N.J.S.A. 40:69A-175; the publication of election information, N.J.S.A. 40:69A-176; the determination of the results of the election, N.J.S.A. 40:69A-177; and the effect of resignation of the incumbent, N.J.S.A. 40:69A-178. The Legislature intended that the procedures which it provided would be followed. If a
petition is certified as sufficient, the Legislature intended that an election be held within 60 to 90 days from the date of filing. N.J.S.A. 40:69A-171. The Legislature did not contemplate the effects of a legal battle such as that which currently clouds the validity of the first recall petition, filed in August 1983. Had no legal challenge been instituted with respect to the first petition, a recall election would have been held no later than November 8, 1983. As a ...