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Committee to Recall Theresa Casagrande from Office of Spring Lake Heights School Bd. Member v. Casagrande

March 5, 1997

COMMITTEE TO RECALL THERESA CASAGRANDE FROM THE OFFICE OF SPRING LAKE HEIGHTS SCHOOL BOARD MEMBER, ANNETTE M. SMITH, BETH BERNARDO, AND JOANNE KUCINSKI, PLAINTIFFS,
v.
THERESA CASAGRANDE; CLAIRE BARRETT, CLERK OF THE BOROUGH OF SPRING LAKE HEIGHTS; LINDA DALY, ASSISTANT SECRETARY OF THE BOARD OF EDUCATION OF THE BOROUGH OF SPRING LAKE HEIGHTS; CLAIRE FRENCH, CLERK OF THE COUNTY OF MONMOUTH; BERTHA SUMICK, SPECIAL DEPUTY COUNTY CLERK, DEFENDANTS



Alexander D. Lehrer, J.s.c.

The opinion of the court was delivered by: Lehrer

ALEXANDER D. LEHRER, J.S.C.

STATEMENT OF FACTS

Defendant Theresa Casagrande is the Chairperson of the Spring Lake Heights School Board, having been elected to a three year School Board term in April of 1995.

After a year of controversy surrounding the Board and its activities, plaintiffs Annette Smith, Beth Bernardo and Joanne Kucinski formed a committee to recall Ms. Casagrande (collectively referred to as the Recall Committee). On December 5, 1996, the recall committee initiated the recall process by filing a notice of intention with Defendant Claire Barrett, Spring Lake Heights Borough Clerk pursuant to the "Uniform Recall Election Law" (N.J.S.A. 19:27A-1 et seq.) (Recall Act).

The Recall Committee claims when they filed the Notice of Intention, they believed the position of School Board Secretary had been vacant since the suspension of former School Board Secretary Suzanne Amabile on May 6, 1996 for alleged financial misdeeds; and the Borough Clerk is the proper Recall Election Official in the absence of a Board Secretary as the Borough Clerk is the official to whom all other nominating petitions in the Borough are by law to be submitted.

On December 5, 1996, the Borough Clerk accepted plaintiffs' Notice of Intention, determined that it complied with the requirements of the Recall Act, and returned a certified copy of the approved Notice of Intention to the plaintiffs. The Borough Clerk served a copy of the approved Notice of Intention on Defendant Casagrande within five business days of its approval as required by N.J.S.A. 19:27A-7(b). Thereafter, the Recall Committee submitted a proposed petition to the Borough Clerk for her review in accordance with the provisions of N.J.S.A. 19:27A-8(f); and the Recall Committee members began to circulate the petition throughout the Borough.

The Recall Committee is required to gather a number of signatures equal to at least twenty-five percent (25%) of the persons registered to vote on the date of the general election preceding the filing of the Notice of Intention (N.J.S.A. 19:27A-5). It is undisputed that the number of signatures required equals 944.

On February 10, 1997, plaintiffs filed a completed petition with the Borough Clerk who reviewed the petition to verify that it contained the correct number of valid signatures.

During this review process, by letter dated February 12, 1997, Ms. Casagrande challenged the Borough Clerk's status as the Recall Election Official for the first time. This was more than two months after Ms. Casagrande was aware of the filing of the "Notice of Intention" with the Borough Clerk.

On February 13, 1997, pursuant to N.J.S.A. 19:27A-11, the Borough Clerk informed Ms. Casagrande that the petition contained more than the required signatures; the petition was in compliance with the Recall Act; and pursuant to N.J.S.A. 19:27A-13, unless Ms. Casagrande resigned from office, a recall election would be held on April 15, 1997, the next scheduled School Board election.

On February 19, 1997, the Borough Clerk reversed her prior certification of the recall election and advised the Recall Committee that the petition had been filed too late for an election to be held on April 15, 1997. The Borough Clerk also advised that the recall could not be scheduled for a special election as notice of the cost of such an election had not been affixed to the petition as provided for by N.J.S.A. 19:27A-7(a); and the election could not be scheduled for the next regular school board election in April of 1998 as it would coincide with the end of Ms. Casagrande's term of office. (See N.J.S.A. 19:27A-13(a)(2)). The Borough Clerk declared the process void pursuant to N.J.S.A. 19:27A-11.

The Recall Committee filed the instant action seeking to have the recall petition certified and a recall election scheduled for a special election at a date to be determined in accordance with N.J.S.A. 19:27A-13.

RIGHTS UNDER THE RECALL ACT ARISE FROM THE NEW JERSEY CONSTITUTION AND SHOULD BE LIBERALLY BUT CAREFULLY CONSTRUED TO PROTECT CLEAR AND UNAMBIGUOUS LEGISLATIVE MANDATE

On November 2, 1993, the citizens of the State of New Jersey overwhelmingly voted to amend Article I, Paragraph 2 Of the New Jersey Constitution to establish the right to recall local, state and federal elected officials. The language of the amendment states in part:

"The people reserve unto themselves the power to recall, after at least one year of service, any elected official in this State or representing this State in the United States Congress. The Legislature shall enact laws to provide for such recall elections. Any such laws shall include a provision that a recall election shall be held upon petition of at least 25% of the registered voters in the electoral district of the official sought to be recalled."

On May 17, 1995, the Legislature of the State of New Jersey enacted the "Uniform Recall Election Law", N.J.S.A. 19:27A-1 et seq. implementing this amendment to the Constitution. See: N.J.S.A. 19:27A-2.

Until the adoption of this law, the right to recall elected officials was only available in New Jersey's Thirty Two Walsh Act (Commission form) Municipalities (N.J.S.A. 40:70-1 et seq.); Seven Manager Act Municipalities (N.J.S.A. 40:79-1 et seq.); 125 Faulkner Act Municipalities (N.J.S.A. 40:69A-1 et seq.); and the 6 counties operating under the Optional County Charity Law (N.J.S.A. 40:41-1(a)).

The Uniform Recall Election law repeals all previous recall laws. N.J.S.A. 27A-18.

New Jersey courts carefully construed the predecessor recall laws noting that the legislature could specify "rational restraints" upon the exercise of those rights, and deferred to the intention of the legislature as reflected by those acts. Roman v. Sharper, 53 N.J. 338, 250 A.2d 745 (1969). See also, Petition of Smith, 114 N.J. Super. 421, 276 A.2d 868 (App. Div. 1971). Nevertheless, New Jersey courts have consistently recognized an "overriding public interest in the petition for recall, and have held that such laws are to be "liberally construed subject to governing constitutional and statutory provision." See Baker v. Deane, 196 N.J. Super. 416, 419-421, 483 A.2d 218 (L. Div. 1983).

The liberal interpretation of prior, now repealed, recall legislation is in accord with the liberal construction that courts have given to election laws generally. Liberal construction has been held necessary "to effectuate their purposes and to facilitate and not to hamper the exercise by voters of the rights thereby granted to them." Id. at 421. Election laws should not be "construed so as to deprive voters of their franchise." See Madden v. Hegadorn, 236 N.J. Super. 280, 565 A.2d 725 (Law Div. 1989) aff'd 239 N.J. Super. 268, 571 A.2d 296 (App.Div. 1989); Wene v. Meyner, 13 N.J. 185, 197, 98 A.2d 573 (1953); Kilmurray v. Gilfert, 10 N.J. 435, 440, 91 A.2d 865 (1952). Courts must assume the Legislature intended a reasonable approach, and should construe the statute to provide one if possible. Roman v. Sharper, 53 N.J. 338, 341, 250 A.2d 745 (1969).

New Jersey cases mandate the liberal interpretation of election laws to effectuate the intent of the legislature and facilitate the right of voters to be heard at the polls. However, a court may not substitute its own idea of what a statute should ...


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