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Barrella v. Barrella

May 24, 2010

COMMITTEE TO RECALL VINCENT R. BARRELLA, PLAINTIFF-RESPONDENT,
v.
VINCENT R. BARRELLA, MAYOR OF THE BOROUGH OF POINT PLEASANT BEACH, DEFENDANT-APPELLANT, AND MARYANNE ELLSWORTH, MUNICIPAL CLERK FOR THE BOROUGH OF POINT PLEASANT BEACH, DEFENDANT-RESPONDENT.



On appeal from the Superior Court, Law Division, Ocean County, Docket No. L-3088-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically argued April 26, 2010

Before Judges Rodríguez and Chambers.

Defendant Vincent R. Barrella, the Mayor of the Borough of Point Pleasant, appeals from the order of February 18, 2010, stating that the petition to recall Barrella from his position as mayor contained 951 signatures and otherwise complies with N.J.S.A. 19:27A-9 and -10. The order directed the municipal recall official to issue a certificate that the petition is sufficient and directed that unless Barrella resigned from office, a recall election be held.

Barrella contends that due to numerous deficiencies in the procedures used to obtain the signatures and in the signatures themselves as well as other reasons, the petition is not sufficient to require a recall election. We disagree and affirm.

I.

Plaintiff Committee to Recall Vincent R. Barrella (the Committee) filed a notice of intention to recall Vincent R. Barrella as Mayor of Point Pleasant Beach on December 8, 2008, as required by N.J.S.A. 19:27A-6. After several attempts, its form of petition, seeking that a recall of Barrella be placed on the ballot for the November 3, 2009 election, was accepted by the Point Pleasant Beach Recall Election Official on March 10, 2009. As permitted by N.J.S.A. 19:27A-8(c), the petition did not provide reasons for seeking the recall of Barrella.*fn1 The Committee then began to solicit signatures for the petition.

Pursuant to N.J.S.A. 19:27A-5, in order to initiate a recall election, a recall petition must [B]e signed by a number of registered voters of the jurisdiction of the official sought to be recalled equal to at least 25% of the persons registered to vote in that jurisdiction on the date of the general election preceding the date on which the sponsors of the petition file a notice of intention pursuant to section 6 of this act.

That number was calculated to be 884 signatures.

On June 23, 2009, before the statutory deadline under N.J.S.A. 19:27A-10 had run, the petition was filed with the municipal recall election official. The petition contained 1,217 signatures, substantially more than the minimum required. In accordance with N.J.S.A. 19:27A-11, the municipal election official reviewed the petition and determined that the petition contained 890 valid signatures. The parties exercised their rights to challenge the determination of the recall election official under N.J.S.A. 19:27A-12. Barrella challenged the acceptance of certain signatures, and the Committee challenged the rejection of other signatures.

Under those circumstances, the recall election official was required to determine the validity of the objections. Ibid. After further submissions by the parties, the recall election official determined that the petition contained only 807 valid signatures and thus failed to trigger a recall election. As permitted by N.J.S.A. 19:27A-12, the Committee filed an action to contest this decision in the Superior Court.

II.

Extensive proceedings were conducted before the trial court, including seven trial days in which more than thirty witnesses testified. The trial court ruled on the multitude of challenges made to the determinations of the recall election official. In its well reasoned and detailed findings, the trial court made the following rulings.

The trial court determined that the recall election official improperly allowed thirty-four signatories to the petition to remove their signatures after the petition had been filed, relying on Mocco v. Picone, 203 N.J. Super. 443 (App. Div. 1985) and In re Ross Petition, 116 N.J. Super. 178 (App. Div. 1971).

The trial court concluded that the recall election official was arbitrary and capricious when she rejected all of the signatures of people who had signed the petition more than once.

The trial court determined that one signature for each of these people should be counted. Of course, their successive signatures would not be counted. This ruling resulted in an additional seventeen signatures being added to the count of valid signatures.

Relying on In re Municipal Election Held on May 10, 1994, 139 N.J. 553, 558 (1995), the trial court determined that the recall election official properly rejected the signatures of petitioners who failed to check the box next to their name.

The trial court also determined that the recall election official improperly rejected the signatures of individuals who interchanged or hyphenated their married names with their maiden names. The trial court determined that their signatures should be counted because they were qualified registered voters of the municipality. As a result, the trial court added seven signatures to the petition's final count.

The Committee also had challenged the rejection by the recall election official of signatures she found to be inconsistent with the signatures in the voter registration system. To resolve this issue, the trial court reviewed the signatures on the petition and compared them with the signatures in the statewide registration system records and the certifications signed by the signatories attesting to the validity of their signatures on the petition. The trial court located eighty-seven signatures rejected because of discrepancies between the signature or address on the petition and the voter registration system. The trial court relied on Stone v. Wyckoff, 102 N.J. Super. 26, 34 (App. Div.), certif. denied, 52 N.J. 254 (1968), where we explained that the signature on the petition need not be in identical form to that in the voter registration ledger. The trial court also noted that some people signed the petition standing outside with the use of a clipboard propped on the hood of a car or against the side of house which would also affect the appearance of their signatures. The trial court concluded that the recall election official improperly rejected eighty-four of these signatures but properly rejected three of the signatures.

The recall election official had also rejected twelve signatures because the printing accompanying the signatures was identical to that in an adjacent entry. She concluded that the printing was not personally affixed by the signatory and that this violated N.J.S.A. 19:27A-8(d). The trial court noted that the signatures involved were apparently married couples residing at the same address whose signatures followed each other sequentially on the petition and one spouse had written in the address for the other. The trial court found that all twelve signatures should be allowed as valid signatures, noting that there was no suggestion that the addresses were inaccurate and that the purpose of N.J.S.A. 19:27A-8(d), in requiring the printing of the signatories' name and addresses, was to allow the election official to verify the person's residency and voting registration.

The recall election official had refused to recognize four signatures because the notary had not signed the page on which those signatures appeared although the notary's stamp and seal with commission expiration date had been fixed to the page. The trial court concluded that the absence of the notary's signature was insufficient to disqualify those signatures, noting the liberal construction to be applied to the recall election statute. See Comm. to Recall Casagrande v. Casagrande, 304 N.J. Super. 496, 502 (Law Div.), aff'd, 304 N.J. Super. 421 (App. Div. 1997).

The recall election official had rejected the signature of Joseph Bilotti on the basis that two people signed the petition as Joseph Bilotti. Bilotti acknowledged that one of those signatures was not his and said it may be the signature of his son who also lives in Point Pleasant Beach. He identified the other signature as his. The recall election official also rejected Bilotti's signature on the basis that it did not match his signature as it appeared on the petition in his capacity as a circulator of the petition. The trial court "emphatically" rejected the recall election official's determination that Bilotti's signatures did not match, and found Bilotti's testimony to be credible. The trial court found his signature to be valid.

Barrella also raised numerous challenges to the qualifications of the circulators of the petition. Barrella contended that Bilotti was not eligible to serve as a circulator for the petition because he was not qualified to vote in Point Pleasant Beach. The statute requires that a circulator of a petition must be a registered voter in the jurisdiction where the official whose recall is sought was elected. N.J.S.A. 19:27A-9(a). As a result, Bilotti had to be a registered voter in Point Pleasant Beach to qualify to circulate the petition. The record is undisputed that Bilotti is a registered voter in Point Pleasant Beach. However, ...


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