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Lebak v. Freck

Decided: May 2, 1986.

ESTHER J. LEBAK, PLAINTIFF,
v.
VIRGINIA L. FRECK, TOWNSHIP CLERK OF THE TOWNSHIP OF SPRINGFIELD, AND EDWARD A. KELLY, JR., CLERK OF THE COUNTY OF BURLINGTON, DEFENDANTS



Haines, A.j.s.c.

Haines

Plaintiff Esther J. Lebak's complaint in lieu of prerogative writs challenges the validity of the election petition of William H. Van Hise, a candidate for the township committee of the Township of Springfield in Burlington County. This opinion concludes that the petition is valid.

Van Hise filed a nominating petition with the township clerk on April 1, 1986, well within the time required by N.J.S.A. 19:13-9. Written objections to its acceptance, duly filed, claimed that it had not been properly witnessed. N.J.S.A. 19:13-7 provides:

Before any petition shall be filed as hereinafter provided, at least one of the voters signing the same shall make oath before a duly qualified officer that the petition is made in good faith, that the affiant saw all the signatures made thereto and verily believes that the signers are duly qualified voters.

The clerk held a hearing on the objections. Virginia G. Jones, the person who signed the affidavit annexed to the petition in supposed compliance with the above statutory provision, testified. She admitted that she had not seen the signatures affixed to the petition. As a result, it was rejected.*fn1

Van Hise, who had not signed his own petition and therefore could not make a substitute affidavit, anticipated the result of the hearing and circulated an entirely new petition, keeping the witness at his side so that she saw all the signatures as they

were written. The witness then signed the affidavit annexed to the new petition and it was filed with and accepted by the clerk on April 16, 1986. No written objections to the new petition were filed, This suit, however, followed.

Lebak argues (1) that the use of an entirely new petition does not comply with statutory requirements and (2) that the petition is not valid because no proper oath was administered to Jones when she executed the required affidavit. Defendants disagree with both contentions and also argue that the complaint in the present action was filed too late.

The last argument, raising a jurisdictional question, is addressed first. N.J.S.A. 19:13-10 provides:

Every petition of nomination in apparent conformity with the provisions of this title shall be deemed valid, unless objection thereto be duly made in writing and filed with the officer with whom the original petition was filed not later than the fourth day after the last day for filing of petitions. If such objection is made, notice thereof signed by such officer shall forthwith be mailed to the candidate who may be affected thereby, addressed to him at his place of residence as given in the petition of nomination. [Emphasis supplied]

The four day period of limitations so provided applies to Van Hise's second petition as well as his first, if the words "every petition" are read literally. The reference to the "original" petition supports that interpretation since it suggests the possibility of more than one amended petition. That reading, however, makes no sense when all of the time limitations applying to nominating petitions are considered.

N.J.S.A. 19:13-9 requires the filing of nominating petitions before the 54th day next preceding the date of the primary election. N.J.S.A. 19:13-10, quoted above, requires objections to be filed not later than the 50th day. N.J.S.A. 19:13-11 requires the decision on the objections to be made on or before the 48th day, which is also the deadline for filing amended, new or substituted petitions. N.J.S.A. 19:13-13. Consequently, as here, when objections to a petition filed on the last permissible date, are followed, on that date, by the filing of a new ...


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