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Caltabiano v. Gill

Superior Court of New Jersey, Appellate Division

March 24, 2017

STEVEN CALTABIANO, Plaintiff-Appellant,
GILDA T. GILL, Defendant-Respondent.

          Submitted March 23, 2017

         On appeal from Superior Court of New Jersey, Chancery Division, General Equity Part, Salem County, Docket No. C-0003-17.

          Brown & 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).

          Before Judges Alvarez, Accurso and Lisa.

         This 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.

         The 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 three years.

         Plaintiff, 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 provisions.

         The 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.[1] We now reverse.

         Prior 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.

         Salem 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:

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 ...

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