On appeal from Superior Court, Law Division, Ocean County.
Antell, J. H. Coleman and Simpson.
[199 NJSuper Page 3] On January 8, 1985 plaintiffs filed their notice of petition for certification of our determinations of January 2, 1985 and October 10, 1984. The matter is now before us on remand by the Supreme Court limited to the disposition of certain issues which were pending before us when the notice of petition for certification was filed.
In our opinion of January 2, 1985 we concluded that plaintiffs' recall petition was eight signatures short of the statutorily required number and that the petition was therefore invalid. On the date of our opinion intervenor Bell applied to the trial judge for an order reinstating him as Mayor of Stafford Township. Despite our categorical finding that the petition was invalid, the trial judge took the view that this was still an open question and that plaintiffs had somehow reserved the right to prove certain signatures which had been rejected by defendant township clerk and which, if proved, would result in sufficient signatures for him to find the petition valid. He also determined that his earlier action in the case was not a final judgment, but only a finding that Bell had not made out a prima facie case of the petition's invalidity. Thus, he concluded that because our decision on January 2, 1985 amounted to nothing more than a finding that Bell had proved a prima facie case, plaintiffs were now free to fortify the petition by proving the validity of signatures which they contend were wrongfully rejected by defendant township clerk. To implement his conclusion he scheduled a date for hearing at which plaintiffs may proceed with their proofs.
The questions arising from the present posture of the case are now framed for us by Bell's motions for clarification of our decision of January 2, 1985 and for leave to appeal from the denial of reinstatement and the trial judge's other rulings of January 2, 1985, and plaintiffs' motion for a stay of our decision of January 2, 1985, for a rehearing and for correction and modification of the record.
We do not understand how our intentions in this matter could have been so misconstrued. Our finding that the recall petition was invalid was final and conclusive; that issue was not subject to modification by the trial judge. It is appropriate to state the settled principle that a trial court is "under a peremptory duty to obey in the particular case the mandate of the appellate court precisely as it is written." Flanigan v. McFeeley, 20 N.J. 414, 420
(1956). This is so even where it is manifestly erroneous. Ibid., quoting from Isserman v. Isserman, 2 N.J. 1 (1949).
The subordination of the inferior tribunal is of the very essence of the appellate function; the mandate is the process directed to the execution of the appellate judgment, and is therefore a command to be obeyed. [ In re Plainfield-Union Water Co., 14 N.J. 296, 303 (1954)].
We find nothing in the record to support the trial judge's position that his ruling from which this appeal was taken addressed only the question of prima facie sufficiency. All indications suggest the contrary. The thrust of his letter opinion dated November 11, 1984, which was the subject of our January 2, 1985 decision, is that a final determination is being made upon all of the evidence. The opinion takes as its governing standard the test of whether Bell had proved his case "in every respect by a preponderance of credible evidence," implying a weighing process which occurs after the parties have rested and which takes into account all the evidence, not just the inferences legitimately to be drawn from that submitted by the party bearing the burden of proof. Thereafter, the letter opinion states that the judge will proceed to an "ultimate conclusion" as to each signature challenged by Bell. In analyzing proofs for prima facie sufficiency a trial judge searches only for permissible inferences. Ultimate conclusions are reached only on the basis of all the evidence after submission by both parties. Furthermore, the findings made are that specified signatures are either valid or invalid. The judge's inquiry as to each signature did not end with a mere finding as to the permissibility of advocated inferences.
After the close of Bell's case at the hearing of November 15, 1983, counsel for plaintiffs was specifically asked by the judge whether he would be proceeding with the introduction of proofs. In answer to the judge's question, ". . . do you wish to go forward with proof with respect [to Bell's case] or are you going to rest or what is your argument with respect to that?," counsel answered in a way which does not appear to us to have any meaning. The judge then stated the following:
I gather you are going to take the position that you can rest with respect to any required evidence to contradict what counsel has offered ...