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Kukasch v. Cote

Decided: June 5, 1992.

HERBERT KUKASCH (AS CHAIRMAN OF THE HOLMDEL TOWNSHIP REPUBLICAN MUNICIPAL COMMITTEE) AND THE HOLMDEL TOWNSHIP REPUBLICAN MUNICIPAL COMMITTEE, PLAINTIFFS-RESPONDENTS,
v.
ERNEST COTE (MAYOR OF HOLMDEL), GARY AUMILLER AND CAROLE BALMER (HOLMDEL TOWNSHIP COMMITTEE CHAIRPERSONS), THE HOLMDEL TOWNSHIP COMMITTEE AND WILLIAM JAROCKI, DEFENDANTS-APPELLANTS



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

O'Brien, Havey and Conley. The opinion of the court was delivered by Havey, J.A.D.

Havey

The opinion of the court was delivered by

HAVEY, J.A.D.

The Municipal Vacancy Law, N.J.S.A. 40A:16-11 to -23, provides that if the incumbent whose office has become vacant was elected to office as the nominee of a political party, the municipal committee of the political party of which the incumbent was the nominee shall, "no later than 15 days after the occurrence of the vacancy, present to the governing body the names of three nominees for the selection of a successor to fill the vacancy." N.J.S.A. 40A:16-11. The issue raised by this appeal is whether, when one of the three nominees submitted by the municipal committee declines to serve after the 15-day period has expired, the governing body is required to select one of the nominees remaining on the municipal committee's list. The trial court concluded that the act required the defendant Township Committee of Holmdel Township (governing body) to select one of the two remaining nominees, and vacated the appointment by the governing body of defendant William Jarocki, whose name was not on the list. We agree with the trial court and affirm.

On December 13, 1991, township committee member Cornelius Elmer McCaffrey resigned. McCaffrey had been elected to the governing body as a nominee of the Republican Party. On December 27, 1991, plaintiff municipal committee submitted to the governing body the names of Robert Giannone, Malcolm Gropper and Joseph Wahl as nominees to fill McCaffrey's vacancy. The governing body selected one of the nominees, Joseph Wahl. On January 13, 1992, Wahl informed the governing body that he would not accept appointment, and on that date the governing body appointed William Jarocki (a Republican but not named on the list) to fill the seat vacated by McCaffrey.

The municipal committee responded to the appointment of Jarocki by letter dated January 15, 1992, advising that since the governing body had failed to appoint one of the three nominees on its list within the time prescribed by N.J.S.A. 40A:16-11, the municipal committee had selected Robert Giannone to fill the vacancy. The governing body ignored the letter and plaintiffs thereupon filed the present action in the Law Division seeking to invalidate Jarocki's appointment and a declaration that Giannone was the "validly appointed replacement" to fill the vacancy on the governing body. The trial court vacated the appointment of Jarocki and directed the governing body to select a successor from the two remaining names on the list submitted by the municipal committee. The court held that "in a case such as the one at bar where the nominee appointed to fill the vacancy declines to accept the position, the Township Committee must make another selection from the names remaining on the list submitted by the municipal committee." The court reasoned that this procedure:

harmonizes to the best extent possible the policy of filling vacancies as quickly as possible and the intent of the Legislature to allow the municipal committee to delineate the pool of applicants to fill a vacancy where the incumbent was a nominee of a political party. In addition, this procedure leaves the final selection to the township committee which is also in conformance with the statute.

We agree.

N.J.S.A. 40A:16-11 provides in pertinent part:

Appointment to fill vacancy where incumbent was nominee of a political party; time to fill vacancy.

If the incumbent whose office has become vacant was elected to office as the nominee of a political party, the municipal committee of the political party of which the incumbent was the nominee shall, no later than 15 days after the occurrence of the vacancy, present to the governing body the names of three nominees for the selection of a successor to fill the vacancy. The governing body shall, within 30 days after the occurrence of the vacancy, appoint one of the nominees as the successor to fill the vacancy. If the governing body fails to appoint one of the nominees within the time prescribed herein, the municipal committee that named the three nominees shall, within the next 15 days, appoint one of the nominees as the ...


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