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Pickett v. Harris

Decided: March 30, 1987.

ROBERT T. PICKETT, PLAINTIFF,
v.
EARL HARRIS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SURROGATE OF ESSEX COUNTY, DEFENDANT



McGrath, J.s.c.

Mcgrath

OPINION

Procedural History

This is an action brought in Essex County on an Order to Show Cause and Verified Complaint by Robert T. Pickett against Earl Harris, individually and in his official capacity as Surrogate of Essex County. It should be noted at this point that Mr. Pickett is an attorney, appearing pro se.

On January 21, 1987, the Honorable John A. Marzulli, Assignment Judge, Superior Court, Essex County, signed the Order to Show Cause, ordering the defendant to appear on February 2, 1987 at 9:00 a.m. before this Court, specially assigned to hear the matter in Essex County. After discussions with counsel, for the convenience of the Court, the situs of the hearing was moved to Union County.

Subsequently, both parties agreed to adjourn the return date of the Order to Show Cause until February 17, 1987 in order that a petition could be filed by the defendant, pursuant to R. 1:17-1, through the Administrative Director of the Courts, seeking the written approval of the Supreme Court to continue to serve as Councilman-at-Large for the City of Newark and Surrogate of Essex County. The petition was delivered to the Supreme Court on February 6, 1987. On February 17, 1987, the return date of the Order to Show Cause, the action, over the objection of the plaintiff, was stayed pending the outcome of the matter then before the Supreme Court. On February 18, 1987, the Supreme Court ordered that "pending the disposition of the Superior Court proceedings, the petition is denied, without prejudice to the petitioner seeking leave to renew the within application upon the conclusion of the Superior Court proceedings." In re Earl Harris, Surrogate of Essex County (1987). Thereafter, on February 23, 1987, the Superior Court vacated the stay and scheduled the return date of the Order to Show Cause for March 9, 1987.

In the Order to Show Cause, the relief requested is: (1) declaring the defendant's holding of two elective offices to be in violation of R. 1:17-1; (2) enjoining the defendant from holding two elective public offices in violation of R. 1:17-1; (3) requiring the defendant to choose which elective public office he wishes to continue to hold consistent with R. 1:17-1; (4) requiring the defendant to reimburse the County of Essex or the City of Newark for any and all salary paid to him while holding two elective public offices in violation of R. 1:17-1; (5) awarding counsel fees and costs of the application and; (6) seeking such further relief as the Court deems equitable and just.

In the Verified Complaint, Pickett, a resident and taxpayer of Newark and Essex County alleges that Harris, a resident and taxpayer of Newark and Essex County, was elected to the Office of Surrogate of Essex County on or about November 4, 1986 and was sworn in on January 1, 1987. Pickett alleges that at the same time Harris is also a Councilman-at-Large for the City of Newark, Essex County, pursuant to N.J.S.A. 40:69A-107, and has held that position since July 1, 1986. It is this dual officeholding that plaintiff alleges violates R. 1:17-1. He further contends that the taxpayers and citizens of the City of Newark and the County of Essex are irreparably harmed as such. The relief requested in the complaint is substantially the same as that requested in the Order to Show Cause. The defendant, in response to the Order to Show Cause, made a motion to dismiss the complaint for lack of subject matter jurisdiction, plaintiff's lack of standing and failure to state a cause of action upon which relief could be granted.

On the return date of the Order to Show Cause limited facts were stipulated by the parties, the defendant was ordered to file an answer to the complaint, and both parties were ordered to submit any additional memoranda by March 13, 1987.

Facts

The defendant, Earl Harris, was elected to the office of Councilman-at-Large for the City of ...


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