On appeal from Superior Court, Law Division, Ocean County.
Antell, J. H. Coleman and Simpson. The opinion of the court was delivered by Antell, P.J.A.D.
Pursuant to N.J.S.A. 40:69A-169, on August 22, 1983 plaintiffs submitted to defendant Stafford Township Clerk a petition for the recall of intervenor Wesley K. Bell as Mayor. On September 2, 1983 this action was started on verified complaint in lieu of prerogative writs and an order to show cause seeking various forms of relief against the township clerk based upon the latter's refusal to certify that the petition contained the requisite number of qualified signatures to mandate a recall election.
On September 7, 1983, the return date of the order to show cause, all parties appeared before the court. Also appearing before the court was Mayor Bell. Although he had not yet prepared papers, his interest in the proceedings was apparent and his "right to intervene with respect to the narrow issues that are raised in this order to show cause" was recognized.
He was also given leave to "file some affirmative pleadings." Because Mayor Bell's attorney found it necessary to take part in religious observances the following day an understanding was arrived at between the Court and all counsel. The Mayor's failure to participate in the order to show cause proceeding then before the court would not preclude him from litigating issues material to the complaint after these had been established by the Mayor filing a counter-claim against plaintiffs and a cross-claim against the township clerk pursuant to an order of intervention. Thus, at the outset of the hearing which began September 8, 1983 the court categorically stated that the opportunity of Mayor Bell's attorney
We conclude from our careful examination of the transcript that the trial court correctly stated the intention of the parties in this respect.
N.J.S.A. 40:69A-169 requires that a recall petition be signed by at least 25% of the registered voters of the municipality. After the hearings of September 7 and 8 and October 5, it was decided by the trial court, among other things, that 1589 signatures were required. The recall petition before the court contained only 1477 valid signatures, however -- 112 short of the requisite number. Jurisdiction of the matter was retained and the plaintiffs were granted until September 12, 1983 to amend their petition by the collecting of additional signatures in accordance with N.J.S.A. 40:69A-170. These determinations were memorialized by an order dated September 20, 1983.
An amended petition was filed on September 12, 1983 and determined by the clerk to contain 151 valid signatures. The increased total number of valid signatures was now 1628, 39 more than the 1589 required.
On September 20, 1983 Mayor Bell filed his counter-claim and cross-claim in intervention, and hearings thereon were conducted
on six separate dates in November 1983. It is essential to note that his hearing was presided over by a different judge than the one who conducted the earlier proceeding on September 7 and 8, and on October 5, 1983.
In substance, Mayor Bell's contentions were that (1) a substantial number of petitioning signatures were improperly attested to in that the attesting witness had not actually observed the signatures being placed on the petition; (2) certain of the signatures were obtained by fraud on the part of the solicitors; (3) certain of the signers were not residents of the municipality. The trial judge disposed of these contentions by concluding that N.J.S.A. 40:69A-170 did not require that the attesting witness actually observe the signature being placed on the petition. In his words, "I find that the statutory requisites do not require ...