Errichetti v. Merlino

• Decision Date: 02 December 1982
• Citation: 188 N.J.Super. 309,457 A.2d 476
• Parties: Angelo J. ERRICHETTI, Plaintiff, v. Joseph MERLINO, President of the New Jersey State Senate and the New Jersey State Senate, Defendants.
• Court: New Jersey Superior Court

Page 309

188 N.J.Super. 309

457 A.2d 476

Angelo J. ERRICHETTI, Plaintiff, v. Joseph MERLINO, President of the New Jersey State Senate and the New Jersey State Senate, Defendants.

Superior Court of New Jersey, Law Division,

Mercer County.

Decided Dec. 2, 1982.

Henry F. Furst, Newark, for plaintiff (Brown, Brown & Furst, Newark, attorneys).

Leon J. Sokol, Hackensack, for defendants (Greenstone & Sokol, Hackensack, attorneys).

James J. Ciancia, Asst. Atty. Gen. for the intervening defendant, State of N.J. (Irwin I. Kimmelman, Atty. Gen., attorney).

LENOX, A.J.S.C.

Plaintiff Angelo J. Errichetti contends, by action in lieu of prerogative writs, R. 4:69, that he has been unlawfully deprived of his seat in the New Jersey State Senate, his annual salary and the other emoluments of his elective office. He originally sought judgment restoring his office, salary and privileges, and declaring unconstitutional the actions of those ordering the deprivations and the statutes on the basis of which the actions were taken. Since his term of office has now expired the demand for restoration of his office and privileges is moot.

At issue now is plaintiff's right to payment of his salary for the period January 1, 1981 through January 12, 1982, ordered withheld by defendant Joseph Merlino, then President of the Senate. He seeks a declaration that during this period he was a duly elected member of the New Jersey State Senate. This contention gives rise to the issues of the constitutional validity of N.J.S.A. 19:3-25 and N.J.S.A. 2C:51-2 under which defendants contend plaintiff's Senate seat was vacated and forfeited. Because of the challenge to the constitutionality of the statutes, by order dated May 19, 1982, the Attorney General of New Jersey was granted leave to intervene as an interested party. R. 4:28-4(d). Cross-motions for summary judgment have been filed and argued. There is no genuine issue of material fact and resolution of the legal issues advanced will determine the controversy. R. 4:46-2. Judson v. Peoples Bank and Trust Co. of Westfield, 17 N.J. 67, 73-75, 110 A.2d 24 (1954).

Plaintiff was elected to membership in the New Jersey State Senate at a special election in the Fifth Legislative District on November 2, 1976. He has at all times met the age, citizenship, residence and suffrage requirements for membership. N.J. Const. (1947), Art. IV, § I, par. 2. He was seated and served the term for which he was elected. He was a successful candidate at the general election on November 8, 1977, and was re-elected to a four-year term expiring on January 12, 1982. At the commencement of the legislative session in January 1978, he was again seated as a Senator for the Fifth Legislative District.

During this session, in June 1980, he was indicted with other defendants for federal criminal offenses by a United States grand jury in the first of what has become known as the "Abscam" cases. At a trial of the indictment to a jury in the United States District Court for the Eastern District of New York a verdict of guilty was recorded on August 29, 1980. The criminal violations alleged in the indictment of which he was convicted are crimes encompassed by the forfeiture of office provision of N.J.S.A. 2C:51-2.

Presumably because of his preoccupation with the indictment, trial, sentence and appeal from the judgment of conviction, plaintiff did not attend sessions of the Senate. Prior to the jury verdict he attended a session on July 28, 1980, but thereafter was continuously absent without excuse until the expiration of his term of office. Among the sessions he did not attend were ten consecutive sessions commencing with that held on July 31, 1980 and inclusive of the session conducted on December 11, 1980.

Four months after the return of the jury verdict Senate President Joseph Merlino on January 1, 1981 ordered the annual salary and the office and staff allowances payable by law to plaintiff be withheld. At that time no formal action had been taken by the Senate to expel plaintiff from his seat. Although he demanded his salary in monthly installments, no payments have been made. The order of the President of the Senate was made without prior notice to plaintiff of his intention to do so or of the reason for his action, and no opportunity was afforded plaintiff to be heard in opposition to it.

A judgment of conviction and sentence was entered in the United States District Court for the Eastern District of New York on August 13, 1981. The sentence included a term of imprisonment and a fine, but the execution of the sentence was stayed pending a decision by the United States Circuit Court of Appeals on an appeal filed by plaintiff. The judgment of conviction was affirmed, but a petition for rehearing en banc is pending.

Plaintiff has never resigned his office nor has he been officially advised of his removal therefrom. No action by the Senate to expel plaintiff by concurrence of two-thirds of all its members has been taken pursuant to N.J. Const. (1947), Art. IV, § IV, par. 3. No vacancy in office was declared. Neither did the Senate direct the issuance nor the Governor issue a writ of election to file a vacancy. N.J. Const. (1947), Art. IV, § IV, par. 1.

The present verified complaint, filed on November 16, 1981, is plaintiff's first contention that he was never validly removed from his seat in the New Jersey State Senate. He challenges the constitutional integrity of N.J.S.A. 19:3-25 providing that the office of a member of the Senate or General Assembly shall be deemed vacant if he shall be absent unremittingly for ten days during any session unless excused from attendance, and N.J.S.A. 2C:51-2 providing for the forfeiture of public office when the office holder is convicted of a crime. They are unconstitutional, he argues, because they establish additional qualifications for office beyond those stated in N.J. Const. (1947), Art. IV, § I, par. 2, and because they provide a method for removal from office other than the exclusive means authorized by N.J. Const. (1947), Art. IV, § IV, par. 3. He contends, further, that if the statutes do not offend the foregoing provisions, they are otherwise unconstitutional as denying to a Senator holding office due process of law in declaring his office vacant or forfeited without prior notice of the action to be taken and an opportunity to be heard thereon.

The parties concede that unless plaintiff's elected office was constitutionally vacated pursuant to N.J.S.A. 19:3-25 or forfeited pursuant to N.J.S.A. 2C:51-2 he is entitled to judgment. However, defendants do not assert that the actions of Senate President Merlino on January 1, 1981 constituted a procedural removal of plaintiff from office. Rather, they allege it merely confirmed what had already occurred. Senator Merlino did not specify whether his action was based upon one, the other or both of the statutes. At that time plaintiff had failed to attend ten consecutive meetings of the Senate and the jury verdict of guilty had been rendered. The sentence and judgment of conviction, however, had not been entered. N.J.S.A. 2C:51-2(b) provides that the forfeiture shall occur upon sentencing unless the court has ordered it to occur upon the finding of guilt by the jury. Therefore, if plaintiff did not vacate his office pursuant to N.J.S.A. 19:3-25 but did forfeit his office by reason of his criminal conviction, he would be entitled to judgment for the amount of his salary from January 1 to August 13, 1981, the date of his sentence, notwithstanding the order of Senator Merlino.

No objection has been interposed to the jurisdiction of the judiciary to rule upon this dispute involving the internal affairs of a legislative body. However, in view of the respectful nature of the relationship between the coordinate branches of government, it is appropriate to note the existence of this right. The United States Supreme Court addressed this issue in Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1881), stating:

Especially is it competent and proper for this court to consider whether its [the legislature's] proceedings are in conformity with the Constitution and laws, because, living under a written constitution, no branch or department of the government is supreme; and it is the province and duty of the judicial department to determine in cases regularly brought before them, whether the powers of any branch of the government, and even those of the legislature in the enactment of laws, have been exercised in conformity to the Constitution; and if they have not to treat their acts as null and void. [103 U.S. at 199, 26 L.Ed. at 390]

See, also, Gewertz v. Jackman, 467 F.Supp. 1047 (D.N.J.1979); Reilly v. Ozzard, 33 N.J. 529, 536, 166 A.2d 360 (1960); Wilentz ex rel. Golat v. Stanger, 129 N.J.L. 606, 30 A.2d 885 (E. & A.1943); State v. Wrightson, 56 N.J.L. 126, 28 A. 56 (Sup.Ct.1893).

The legislative power of removal from office is inherently political. The right is universally controlled by constitutional and legislative provisions, and in the absence of constitutional prohibition rests with the Legislature. Without such power the conduct of the affairs of government would be impaired by the inability to summarily remove from office one who during his term became incompetent or unfit to perform his official duties. Plaintiff's contentions must be viewed in this light. The constitutional prescription for membership, he argues, is exclusive, and a legislative provision imposing an additional requirement for obtaining or holding office is impermissible. If correct, this means that an elected Senator may during his term be convicted of any number of crimes no matter how heinous, never attend a legislative session and remain in office unless expelled by the vote of two-thirds of all the members of the Senate.

The constitutional validity of N.J.S.A. 19:3-25 will be considered first, since a determination favoring constitutionality...