Submitted March 23, 2017
appeal from Superior Court of New Jersey, Chancery Division,
General Equity Part, Salem County, Docket No. C-0003-17.
& Connery, LLP, attorneys for appellant (William M.
Tambussi and Michael J. Miles, on the brief).
Michael M. Mulligan, Salem County Counsel, attorney for
respondent. The opinion of the court was delivered by LISA,
J.A.D. (retired and temporarily assigned on recall).
Judges Alvarez, Accurso and Lisa.
case requires a determination of the appropriate timing and
manner of transition to implement a reduction in the size of
the Salem County Board of Chosen Freeholders (Board) from
seven to five members, as approved by the voters of Salem
County in a referendum, pursuant to N.J.S.A. 40:20-20, at the
November 2016 General Election.
Salem County Clerk, defendant Gilda T. Gill, determined that
five freeholder positions would appear on the 2017 Primary
and General Election ballots, three to be elected for two
years and two to be elected for four years, and that the
terms of all current freeholders would terminate on the first
Monday following the 2017 General Election. This would be
followed in the future by biennial elections of freeholders,
whose terms would be four years, rather than the current
Steven Caltabiano, Chairman of the Salem County Democratic
Committee, brought this action challenging the Clerk's
determination as contrary to law. In particular, he contended
that specific statutory provisions would be violated by this
procedure. These include a provision prohibiting, in these
circumstances, the premature termination of the terms of
sitting freeholders, and a provision requiring voter approval
to change the terms of office and frequency of election of
freeholders. In addition to seeking a judicial rejection of
the Clerk's plan, plaintiff sought a declaratory judgment
that the transition should be accomplished by placing on the
2017 ballot only one freeholder position. Because the terms
of three freeholders expire at the end of 2017, this would
fully accomplish the reduction from seven to five members
beginning in January 2018 without violating any statutory
trial court rejected plaintiff's proposal and upheld the
Clerk's position, concluding that the Clerk's action
was not outside the legislative scheme and she acted within
her discretion. The court entered an order dismissing the
complaint. We now reverse.
to 1966, Salem County was governed by a large board of
freeholders. Mauk v. Hoffman, 87 N.J.Super. 276, 280
(Ch. Div. 1965). Based upon the "one person - one
vote" principle set forth in Reynolds v. Sims,
377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), large
boards, which were malapportioned, were no longer
constitutionally permissible. Mauk, supra,
87 N.J. Super, at 284-86. Beginning in 1966, the Board became
a small board, consisting of seven members elected at large
for three-year terms, which were staggered so two would be
elected in one year, two in the next year, and three in the
following year. In the ensuing fifty years, the Board has
operated under this regime.
County is a non-charter county, and is not a county of the
first class. Accordingly, it is regulated by Article 2B of
Title 40, Chapter 20, codified as N.J.S.A. 40:20-20 to -35.
N.J.S.A. 40:20-20 authorizes submission to the voters of a
proposition in such counties to increase or decrease the
number of members of the freeholder board to three, five,
seven or nine. Such a proposition, following precisely the
wording required by N.J.S.A. 40:2 0-20, was placed on the
November 2 016 General Election ballot in Salem County,
followed by an interpretative statement, as follows:
SALEM COUNTY QUESTION #1 (N.J.S.A.
Shall the membership of the Board of Chosen Freeholders of
Salem County be "decreased" from the current
seven (7) members to a five (5) member board?
A "Yes" vote will decrease the size of the Salem
County Board of Freeholders from seven members to five
members to take effect on the Monday following the November
7, 2017 General Election (Monday, November 13, 2017). At the
current salary of the members of the board of chosen
freeholders a $50, 820 ...