State v. Musto

• Decision Date: 16 June 1982
• Citation: 454 A.2d 449,187 N.J.Super. 264
• Parties: STATE of New Jersey, Plaintiff, v. William V. MUSTO, New Jersey State Senate, City of Union City, Board of Commissioners of the City of Union City, Defendants. William V. MUSTO, Senator From the 33rd District, State of New Jersey, Plaintiff, v. Carmen A. ORECHIO, President of the New Jersey Senate, and the New Jersey State Senate, Defendants.
• Court: New Jersey Superior Court

Page 264

187 N.J.Super. 264

454 A.2d 449

STATE of New Jersey, Plaintiff, v. William V. MUSTO, New Jersey State Senate, City of Union

City, Board of Commissioners of the City of Union

City, Defendants.

William V. MUSTO, Senator From the 33rd District, State of

New Jersey, Plaintiff, v. Carmen A. ORECHIO, President of the New Jersey Senate, and the New Jersey State Senate, Defendants.

Superior Court of New Jersey, Law Division Hudson County.

Decided June 16, 1982.

Eugene J. Sullivan, Asst. Atty. Gen., for plaintiff State of N.J. (Irwin I. Kimmelman, Atty. Gen., attorney).

Leon J. Sokol, Hackensack, for defendant New Jersey State Senate (Greenstone & Sokol, Hackensack, attorneys).

Thomas A. DeClemente, Union City, for William V. Musto (DeClemente & Klitzner, Union City, attorneys).

Joseph W. Farrell, Union City, for Union City Housing Authority.

George J. Kaplan, Union City, for Bd. of Com'rs of Union City.

O'BRIEN, A. J. S. C.

William V. Musto is a member of the New Jersey State Senate, having been re-elected to that office on November 3, 1981. On January 10, 1982 he was sworn in for his present term, which will expire on January 12, 1984. He is also a member of the Board of Commissioners of Union City and its mayor. His present term as commissioner and mayor expires on June 30, 1982. He was re-elected to the Board of Commissioners on May 11, 1982 to a term which commences on July 1, 1982.

On April 27, 1981 an indictment returned by the United States grand jury was filed in the United States District Court for the District of New Jersey containing 46 counts charging defendant with various federal offenses in 34 counts thereof. On March 26, 1982, following a lengthy trial on the indictment, Musto was found guilty on 28 counts and not guilty on six.

On May 10, 1982 a judge of the United States District Court imposed sentence upon Musto on those charges in the indictment for which he had been found guilty. That sentence has been stayed pending appeal. This court expresses no view concerning the merits of that appeal. For purposes of this case he stands convicted regardless of the outlook for his appeal.

On May 11, 1982 the Attorney General of the State of New Jersey, pursuant to N.J.S.A. 2C:51-2(a), instituted suit on behalf of the State seeking a judgment declaring that Musto had forfeited his public offices as senator and as member of the Board of Commissioners of the City of Union City and mayor, by reason of his convictions in the United States District Court.

On May 13, 1982 Musto filed suit as senator from the 33rd District against the New Jersey State Senate and Carmen A. Orechio, president thereof, seeking to restrain the operation of N.J.S.A. 2C:51-2(a) and (b) and to stay the New Jersey Senate from issuing a writ of election pursuant to N.J.Const. (1947), Art. IV, § IV, par. 1 and N.J.S.A. 19:3-28, as amended by L. 1981, c. 429. This court denied the application for preliminary relief. That denial was affirmed by the Appellate Division on May 14, 1982 and by the Supreme Court on May 17, 1982.

By resolution of the New Jersey Senate duly adopted on May 17, 1982, the president of the Senate was authorized and directed to issue a writ of election. On that date defendant Carmen A. Orechio, as president of the Senate, issued such writ of election and proclamation

"... directing that an election be held according to the laws of the State of New Jersey in Legislative District 33 on June 23, 1982 for the purpose of electing a member of the Senate for Legislative District 33 to fill the vacancy caused by the forfeiture of office by William V. Musto as a member of the Senate and that the candidates for this office to be voted upon at the election be selected or nominated in the manner provided by law."

The declaratory judgment suit of the Attorney General has been dismissed as to the State Senate. The Attorney General has intervened in the suit by Musto against the Senate and its president. On May 28, 1982 the Attorney General amended the original complaint seeking, pursuant to N.J.S.A. 2C:51-2(c), to preclude Musto from assuming the office of Commissioner of Union City to which he was elected on May 11, 1982. The court has consolidated the two actions on its own motion.

The relief sought by William V. Musto as plaintiff, as well as his defense to the declaratory judgment sought by the Attorney General, is twofold: (1) the statute is not applicable to him and (2) if applicable, it is unconstitutional. Since he is both a plaintiff and a defendant, he will be referred to hereinafter as "Musto." If he is incorrect, then the statute in question is self-executing. The forfeitures would result as a matter of law so that it would appear that there would be no need for a declaratory judgment from the court on that issue, as sought by the Attorney General. However, the suit by Musto only deals with the office of senator, and the court will take judicial notice that Musto has continued to physically occupy and proclaim his role as commissioner and mayor of the City of Union City. Therefore, it appears necessary for the court to address the issue as articulated by the Attorney General in his complaint for declaratory judgment.

I. Applicability of the Statute

N.J.S.A. 2C:51-2, "Forfeiture of Public Office," provides in part as follows:

a. 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.

b. The forfeiture set forth in subsection a. shall take effect:

(1) Upon finding of guilt by the trier of fact or a plea of guilty, if the court so orders; or

(2) Upon sentencing unless the court for good cause shown, orders a stay of such forfeiture. If the conviction be reversed, he shall be restored, if feasible, to his office, position or employment with all the rights, emoluments and salary thereof from the date of forfeiture.

c. In addition to the punishment prescribed for the offense, and the forfeiture set forth in 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.

The first issue presented is whether the offenses of which Musto was convicted in the United States District Court are "an offense or crime which, if committed in this State, would be such an offense or crime," i.e., an offense involving dishonesty or a crime of the third degree or above, or "an offense involving or touching such office, position or employment."

The following is a list of the crimes of which Musto was convicted 1. Conspiracy (to participate in the affairs of an enterprise through a pattern of racketeering, which included bribery, mail and wire fraud, and extortion under color of official right) in violation of 18 U.S.C.A. § 1962(d).

2. A violation of the Racketeer Influenced and Corrupt Organizations Statute, 18 U.S.C.A. § 1962(c), the so-called RICO statute. This is the substantive offense that was the object of the conspiracy.

3. Fifteen counts of mail fraud, in violation of 18 U.S.C.A. § 1341.

4. Five counts of wire fraud, in violation of 18 U.S.C.A. § 1343.

5. Three counts of extortion and attempted extortion under color of official office, in violation of 18 U.S.C.A. § 1951.

6. One count of a violation of the Travel Act, 18 U.S.C.A. § 1952 (travel in interstate commerce to promote and further a bribery scheme), and

7. Two counts of falsely subscribing to the content of federal income tax returns, in violation of 26 U.S.C.A. § 7206(1).

At issue in this litigation is the effect of a federal conviction on the applicability of the forfeiture statute of New Jersey. This issue has been considered by courts of various jurisdictions throughout the United States on a number of occasions. Mysteriously, Musto contends that the forfeiture provision has no application to him, without presenting any law in support of that position. Despite his unsupported contentions, the available case law indicates that

... The issue certainly is not new. The majority of jurisdictions which have addressed the issue hold that a "conviction" of a felony under federal law disqualifies a person from voting or holding public office in the State although he has not been "convicted" in the State system.

The case quoted, State ex inf. Peach v. Goins, 575 S.W.2d 175, 180 (Mo.Sup.Ct.1978), was an action seeking a declaration that the city sheriff had forfeited his office because he had been found guilty of felony offenses against the United States, although he had not been convicted under the state law. Similarly, in People ex rel. Ryan v. Coles, 64 Ill.App.3d 807, 21 Ill.Dec. 543, 381 N.E.2d 990 1978), the question presented to the court was whether a public official who had been convicted of extortion, in violation of 18 U.S.C.A. § 1951, was eligible to hold the office of township supervisor.

In both of these cases the courts decided that the federal conviction triggered the operation of their state forfeiture statutes. Both courts chose to look beyond a cursory analysis of the elements of the federal crimes as compared with the state counterpart. For example, the court in Coles looked to the "essence" or "gist" of the federal crimes in determining whether they would have also been crimes under the state system....