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McCann v. Clerk of the City of Jersey City

April 03, 2001

GERALD MCCANN, PLAINTIFF-RESPONDENT,
v.
CLERK OF THE CITY OF JERSEY CITY, DEFENDANT-RESPONDENT, AND LOUIS MANZO, INTERVENOR-DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, L-1322-01.

Before Judges Petrella, Newman and Braithwaite.

The opinion of the court was delivered by: Petrella, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued telephonically March 29, 2001

This appeal involves the eligibility of plaintiff Gerald McCann to be a candidate for Mayor of the City of Jersey City, a Faulkner Act municipality, in the impending May 8, 2001 election in Jersey City. See N.J.S.A. 40:69A-1 et seq. It is before us on an accelerated basis on the application of intervenor- defendant Louis Manzo, one of five rival candidates for the office of mayor. After the appeal was filed on March 29, 2001, plaintiff McCann moved for summary disposition and acceleration of the appeal. The focus of the appeal is the applicability of the Forfeiture Statute, N.J.S.A. 2C:51-2, and the somewhat parallel Faulkner Act forfeiture provision in N.J.S.A. 40:69A- 166.

We conclude that each statutory provision independently bars McCann's candidacy, and we reverse and remand for entry of an order removing his name from the ballot.

It is undisputed that McCann, while in office as Mayor of Jersey City in 1991,*fn1 was convicted in the United States District Court for the District of New Jersey of fifteen counts of mail fraud, wire fraud, false statements to a bank, false statements to the Internal Revenue Service, income tax evasion, and failure to file a tax return. See McCann v. Superintendent of Elections of Hudson County, 303 N.J. Super. 371 (Ch. Div.), aff'd, 303 N.J. Super. 352 (App. Div.), certif. denied, 149 N.J. 139 (1997). Although the sparse record submitted to us permits no definite statement as to the type and time of each of the acts, much, if not all of the conduct giving rise to his convictions occurred prior to the term in which McCann was mayor. McCann's conviction on several counts resulted in his being sentenced to concurrent thirty-three month terms of imprisonment. The convictions were affirmed. See U.S. v. McCann, 6 F.3d 781 (3d Cir. 1995) (table); 993 F.2d 226 (3d Cir. 1993) (table).

The New Jersey Attorney General sought and obtained an order under N.J.S.A. 2C:51-2(a) declaring that McCann had forfeited his office based on his 1991 convictions of crimes involving dishonesty or crimes of a third degree or higher while he was in office.

McCann was discharged from federal prison in 1995 and began serving the supervised release part of his sentence. In February 1997, while on supervised release, McCann sought to be a candidate for the office of Mayor of Jersey City. In McCann v. Superintendent of Elections, supra (303 N.J. Super. 371), he was declared disqualified from voting while still under sentence and, hence, his candidacy was invalidated.

After serving his sentence completely, and with voting rights restored, McCann sought to file a petition with the City Clerk of Jersey City in February 2001 as a candidate for mayor in the May 8, 2001 election. Under the Faulkner Act the election is nonpartisan. Based on advice from Jersey City's Corporation Counsel, the City Clerk refused to process the petitions nominating McCann as a candidate on the ground that his 1991 convictions involved fraud, and fraud on a government entity, in particular the Internal Revenue Service, and touched upon his office. The City Clerk took the position that under both the Forfeiture Statute and the forfeiture provisions in the Faulkner Act, N.J.S.A. 40:69A-166, McCann was forever disqualified from holding office.

McCann filed suit against the City Clerk challenging his disqualification and seeking a declaratory judgment that he is eligible to run for the office of Mayor of Jersey City. Based on a rather sparse record and presumably on undisputed facts, the Law Division Judge, relying in part on State v. Musto, 187 N.J. Super. 264 (Law Div. 1982), aff'd. o.b., 188 N.J. Super. 106 (App. Div. 1983), concluded that the sanction of being "forever disqualified from holding any office" in the forfeiture provisions of the Penal Code, N.J.S.A. 2C:51-2, did not apply to McCann at this time because the acts that formed the underlying predicate for the offenses for which he was convicted were committed during a period when he was not serving as mayor. The judge concluded that although forfeiture of office may have been required for the balance of his term of office, permanent disqualification from holding office was not. It is undisputed that his convictions of those offenses while in office warranted his removal from office, and that he was removed. In addition, the judge held that the alternative forfeiture provision stating that a "person convicted of a crime or offense involving moral turpitude shall be ineligible to assume any public office" in N.J.S.A. 40:69A-166, although facially applicable, was unconstitutional*fn2 as a violation of equal protection, and thus, did not provide any impediment to McCann's petition.

I.

We first consider whether the general Forfeiture Statute (N.J.S.A. 2C:51-2) operates to forever disqualify McCann from public office.

N.J.S.A. 2C:51-2a provides:

A person holding any public office, position, or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof, who is convicted of an offense shall forfeit such office or position if:

(1) He is convicted under the laws of this State of an offense involving dishonesty or of a crime of the third degree or above or under the laws of another state or of the United States of an offense or a crime which, if committed in this State, would be such an offense or crime;

(2) He is convicted of an offense involving or touching such office, position or employment; or

(3) The Constitution or a statute other than the code so provides.

Subdivision 2d of this statute provides:

In addition to the punishment prescribed for the offense, and the forfeiture set forth in subsection a. of N.J.S.A. 2C:51-2a, any person convicted of an offense involving or touching on his public office, position or employment shall be forever disqualified from holding any office or position of honor, trust or profit under this State or any of its administrative or political subdivisions.

It is not disputed that conviction of an offense "involving or touching" any public office, position, or employment results in forfeiture. N.J.S.A. 2C:51-2a(2). The statute goes on to provide that "any person convicted of an offense involving or touching on his public office, position or employment shall be forever disqualified from holding any office" under the State or any of its subdivisions. N.J.S.A. 2C:51-2d. The key inquiry is whether the forfeiture of office and disqualification from public employment provisions apply to "forever bar" McCann from public office even where the offenses underlying the conviction while in public office were committed before he was in public office.

Our overriding goal is to determine the Legislature's intent. See Mayfield v. Community Medical Associates, 335 N.J. Super. 198, 204 (App. Div. 2000). We begin this task by examining the wording of the statute to ascertain its plain meaning. Briarglen II Condo v. Tp. of Freehold, 330 N.J. Super. 345, 353 (App. Div.), certif. denied, 165 N.J. 489 (2000). As our Supreme Court stated in Cornblatt v. Barrow, 153 N.J. 218, 231 (1998), "[o]rdinarily, the language of the statute is the surest indicator of the Legislature's intent." However, while the language of the Forfeiture Statute is simple and direct, its meaning is not.

Recently the Court discussed the intended purpose behind the Forfeiture Statute in Cedeno v. Montclair State University, 163 N.J. 473, 477 (2000), stating:

The legislative intent of the Forfeiture Statute is "'to preclude those who have once violated the public trust from [having] a second opportunity.'" Pastore v. County of Essex, 237 N.J. Super. 371, 377 (App. Div. 1989) (quoting State v. Musto, 187 N.J. Super. 265, 314 (Law Div. 1982), aff'd, 188 N.J. Super. 106 (App. Div. 1983)), certif. denied, 122 N.J. 129 (1990). As we stated in Moore v. Youth Correctional Institute, 119 N.J. 256, 271 (1990), "[t]he Forfeiture Statute ... reflects a belief that the circumstances surrounding a criminal conviction bear directly on an employee's competency and capacity to ... perform any ... job for the State."

In State v. Lee, 258 N.J. Super. 313, 317 (App. Div. 1992), we stated that the purpose behind the Forfeiture Statute was to "codif[y] a long-standing policy against retention of offenders in government service." The Forfeiture Statute "was designed to protect the public, not the offender," and the statute is construed to advance this objective. Pastore v. County of Essex, 237 N.J. Super. ...


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