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Zimmerman v. Municipal Clerk of Township of Berkeley

Decided: June 4, 1985.

WILLIAM T. ZIMMERMAN, JR., INDIVIDUALLY AND ON BEHALF OF THE ALL BERKELEY CITIZENS GROUP, PLAINTIFFS-APPELLANTS,
v.
MUNICIPAL CLERK OF THE TOWNSHIP OF BERKELEY, ITS AGENTS, SERVANTS AND EMPLOYEES, DEFENDANTS-RESPONDENTS, AND ZENON PALKOSKI AND EDMUND J. CORRIGAN, INTERVENING DEFENDANTS-RESPONDENTS



On appeal from the Superior Court, Law Division, Ocean County.

Fritz, Gaulkin and Long. The opinion of the court was delivered by Long, J.A.D.

Long

In October of 1984 William Zimmerman, individually and on behalf of the All Berkeley Citizens Group (Citizens Group), filed a series of recall petitions with the Clerk of the Township of Berkeley which read as follows:

We the undersigned, registered voters of the Township of Berkeley, demand removal by recall, pursuant to N.J.S.A. 40:60A-168, et seq., of Mayor Zenon N. Palkowski [ sic ] and Edmund J. Corrigan, council member, because of their mismanagement of the financial administrative and personnel affairs of the Township of Berkeley, Ocean County, New Jersey.

The Clerk refused to file the petitions on two occasions because each petition included the names of more than one incumbent,*fn1 which circumstances she viewed as violative of the provisions of N.J.S.A. 40:69A-173. As a result, the Citizens Group filed a complaint seeking to compel the Clerk to accept the petitions for filing. The Clerk answered and Mayor Palkoski and Councilman Corrigan intervened. Thereafter the Citizens Group moved for summary judgment. The question presented to Judge Blake on the motion was whether the recall provisions of N.J.S.A. 40:69A-168 et seq. require the filing of a separate petition for each elected official sought to be removed. Judge Blake determined that the Clerk had properly rejected the petitions under N.J.S.A. 40:69A-168 et seq.:

My construction of this series of statutes clearly brings me to the conclusion that you cannot have a legal petition for the removal of more than one individual -- period. Each petition must be against each individual against whom the recall is sought.

Because we are satisfied that the relevant statutory language and public policy considerations both point to the requirement of an individual recall petition for each incumbent, we affirm.

Berkeley Township is organized under the Optional Municipal Charter Law, N.J.S.A. 40:69A-1 et seq. (Faulkner Act). The method by which an elected official may be recalled in a

Faulkner Act municipality is set forth in N.J.S.A. 40:69A-168 et seq. In relevant part the law provides as follows:

Any elective officer shall be subject to removal from office for cause connected with his office, after he has served at least one year, upon the filing of a recall petition and the affirmative vote of a majority of those voting on the question of removal at any general, regular municipal or special election. [ N.J.S.A. 40:69A-168.]

A recall petition shall demand the removal of a designated incumbent, shall be signed by qualified voters equal in number to at least twenty-five per centum (25%) of the registered voters of the municipality, and shall be filed with the municipal clerk. It shall set forth a statement of the cause upon which the removal is sought. [ N.J.S.A. 40:69A-169.]

If the petition shall be sufficient the municipal clerk shall within two days notify the mayor, councilman or councilmen whose recall is sought thereby. If such notice cannot be served personally upon the mayor, councilman or councilmen affected, service may be made by registered mail. . . . If within five days after the service of the notice by the municipal clerk the mayor, councilman or councilmen sought to be recalled by such petition do not ...


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