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Mocco v. Picone

Decided: July 15, 1985.


On appeal from the Superior Court of New Jersey, Law Division, Hudson County.

Dreier and Shebell. The opinion of the court was delivered by Shebell, J.A.D.


This appeal concerns issues arising out of application of the statutes governing the recall of commissioners in the Walsh Act community of North Bergen in Hudson County. See generally N.J.S.A. 40:75-25 et seq.

Petitions seeking recall of all five of the Township's commissioners were filed with the municipal clerk on April 15, 1985. On the same day Joseph Mocco, a signer of the petitions, filed a complaint seeking to remove the clerk, Joseph Picone, from his duties. The law division judge denied the application for removal and on April 26, 1985 the clerk pursuant to N.J.S.A. 40:75-44 presented to the court his report of objections to the recall petitions. The court appointed the County Superintendent of Elections to review the clerk's findings and to file a report with the court.

Although the superintendent found more valid signatures than the clerk had found, the court determined that number was insufficient to certify a recall election and entered a "final and binding" order under N.J.S.A. 40:75-44 as to the petitions filed on April 26. This order established which names were acceptable and which were objectionable. On May 6, 1985, the same day the order was executed, the agent for the recall petitioners immediately refiled the same petitions that the clerk had formally returned and also submitted for filing additional petitions with new signatures pursuant to the "ten day correction" provisions of N.J.S.A. 40:75-28.

Seven days later the clerk filed his report after re-examining all of the signatures. He invalidated thousands of signatures on the original petitions which he had previously approved and which had been the subject of the court's earlier order. In addition, the clerk following the May 6 refiling sought to deduct 1,125 names pursuant to withdrawals of signatures obtained allegedly by a "very strenuous campaign" by the incumbents after they received the names and addresses of those who had signed the petitions.

On June 5, 1985 the trial judge, Burrell Ives Humphreys, A.J.S.C., entered an order memorializing his May 6, 1985 decision fixing the number of signatures needed for recall. He used as the base figure the number of registered voters as of the last general election. Further, he disallowed the clerk's challenges to those signatures which were counted in the Court's earlier review and ruled that withdrawal of these signatures was ineffective after the petitions were filed on April 15, 1985.

We denied leave to appeal at that time, but accelerated the clerk's appeal following the June 13, 1985 trial court finding that there were sufficient valid signatures to call an election for the recall of all incumbents. On July 15, 1985 following oral argument we entered an order affirming the various trial court rulings and noted that our opinion would follow. The election was held as ordered on July 16, 1985. We are in substantial accord with the views and reasoning of Judge Humphreys as expressed in his several oral opinions for the Law Division.


Appellant takes the position that all withdrawals filed prior to the corrective second filing of May 6, 1985 should be effective in removing signatures from consideration in tallying the number of recall petitioners. Respondent successfully argued before the trial court that withdrawals should only be permitted up to the point when petitions are first filed and not thereafter.

While there is no statutory provision in this State for the withdrawing of a signature from a recall petition, it is beyond dispute that case law has established such a right providing it is exercised prior to filing. See Bachman v. Phillipsburg, 68 N.J.L. 552, 555 (Sup.Ct.1902); Ford v. Gilbert, 89 N.J.L. 482, 485-86 (Sup.Ct.1916).

Appellant reasons that the corrective filing pursuant to N.J.S.A. 40:75-28 is a new filing and therefore any signer of the original petition has a right to withdraw prior to the new filing. Appellant notes that in 1977, in an unreported decision involving several of the same parties and the Township of North Bergen, we affirmed a trial court ruling that the refiling could be a new filing, if the petitioners so elected, for the purpose of obtaining a more favorable figure as to the number of signatures needed for recall. The new figure was based upon a general election which intervened between the original date of ...

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