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Clemency v. Beech

July 18, 1997

JOHN CLEMENCY, PLAINTIFF,
v.
JAMES E. BEECH, CLERK OF CAMDEN COUNTY, DEFENDANT



Louis F. Hornstine, J.s.c.

The opinion of the court was delivered by: Hornstine

CIVIL ACTION

Plaintiff seeks declaratory judgment to render N.J.S.A. 19:23-16 as directory rather than mandatory. Additionally, plaintiff seeks inclusion as a Republican candidate for City Council in the upcoming municipal election in the City of Gloucester.

Defendant, James E. Beech, is named in his capacity as the County Clerk for the County of Camden.

FACTS

On June 3, 1997 the Primary Election was held in the State of New Jersey for both the Republican and Democratic Parties. In Gloucester City, Camden County, plaintiff, John Clemency, received 19 write-in votes for City Council as the Republican Party candidate. The total votes received by plaintiff qualified him for the Republican Party nomination in the general election.

The election return sheet was certified as correct and filed on election night with the County Clerk by the Board of Election.

On June 5, 1997 in accordance with N.J.S.A. 19:23-16, plaintiff prepared the Letter of Acceptance and Oath of Allegiance. The documents were filed with the Municipal Clerk in Gloucester City.

On June 9, 1997, the Municipal Clerk mailed plaintiff's Letter of Acceptance and Oath of Allegiance to the Camden County Clerk's Office. The documents were never received. An inquiry was made to the Post Office, where it was revealed that a wrong zip code was placed on the envelope.

Since the necessary documents were not received within seven days after the primary election, the Camden County Clerk will not place plaintiff's name on the general election ballot. Sample and official ballots are scheduled for preparation in August 1997.

LAW

With the uncontraverted facts at hand, the court must determine whether the time parameters included in N.J.S.A. 19:23-16 should be considered as mandatory or directory. N.J.S.A. 19:23-16 states in pertinent part:

Any person nominated at the primary by having his name written or pasted upon the primary ballot shall file a certificate stating that he is qualified for the office for which he has been nominated, that he is a resident of and a legal voter in the jurisdiction of the office for which the nomination is made and that he consents to stand as a candidate at the ensuing general election to which shall be annexed the oath of allegiance prescribed in section 41:1-1 of the Revised Statutes duly taken and subscribed by the person so nominated before an officer authorized to take oaths in this State. Such acceptance shall be filed within ...


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