Westpy v. Burnett

• Decision Date: 06 February 1964
• Docket Number: No. A--346,A--346
• Citation: 197 A.2d 400,82 N.J.Super. 239
• Parties: Robert WESTPY, Plaintiff-Respondent, v. John R. BURNETT, Town Clerk and Town Manager of the Town of Belleville, Defendant. TI G. George ADDONIZIO, Plaintiff-Appellant, v. John R. BURNETT, Municipal Clerk of the Town of Belleville, Defendant- Respondent. Robert M. LATERZA and Vincent Strumolo, Plaintiffs-Appellants, v. John R. BURNETT, Municipal Clerk of the Town of Belleville, Defendant- Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 239

82 N.J.Super. 239

197 A.2d 400

Robert WESTPY, Plaintiff-Respondent, v. John R. BURNETT, Town Clerk and Town Manager of the Town of

Belleville, Defendant. TI G. George ADDONIZIO, Plaintiff-Appellant, v. John R. BURNETT, Municipal Clerk of the Town of Belleville,

Defendant- Respondent.

Robert M. LATERZA and Vincent Strumolo, Plaintiffs-Appellants, v. John R. BURNETT, Municipal Clerk of the Town of Belleville,

Defendant- Respondent.

No. A--346.

Superior Court of New Jersey.

Appellate Division.

Argued Jan. 27, 1964.

Decided Feb. 6, 1964.

Sam Weiss, Newark, for appellants (Addonizio, Sisselman, Nitti & Gordon, Newark, attorneys, Sam Weiss, Newark, of counsel).

Emil M. Wulster, Hackensack, for plaintiff-respondent.

Before Judges GOLDMANN, KILKENNY and COLLESTER.

The opinion of the court was delivered by

KILKENNY, J.A.D.

Mayor Robert M. Laterza and Councilmen G. George Addonizio and Vincent Strumolo of Belleville appeal from a judgment of the Law Division directing John R. Burnett, Town Clerk and Town Manager, to notify the said mayor and two councilmen to resign by reason of recall petitions filed with the clerk and, if they do not resign, to fix a date for holding an election for their recall.

Plaintiff Robert Westpy instituted an action to compel the clerk to call the election. Two other separate actions were filed, one Councilman Addonizio and the other by Mayor Laterza and Councilman Strumolo, in which the court was asked to declare the recall petitions invalid on the ground, Inter alia, that they did not state a valid 'cause' for removal from office, as required by N.J.S.A. 40:69A--168 and 169. The Law Division heard all of the evidence pertinent to the three matters at the one time, ruled that the petitions were valid and sufficient, and entered the judgment now under review.

All parties joined in a request that we expedite appellate review. We have done so, aided by the commendable cooperation of the parties and their respective counsel, as is evidenced by the fact that the Law Division judgment was entered on December 20, 1963 and oral argument was heard on January 27, 1964.

Certain questions argued in the Law Division as to the sufficiency of the signatures on the recall petitions and the qualifications of the signers have not been raised on this appeal. The parties have chosen to limit the issue before us to the single question, 'Do the petitions for recall state valid cause for removal from office?'

N.J.S.A. 43:69A--168 provides:

'Any elective officer shall be subject to removal from office For cause connected with his office, after he has served at least one year, upon the filing of a recall petition and the affirmative vote of a majority of those voting on the question of removal at any general, regular municipal or special election.' (Italics ours)

N.J.S.A. 40:69A--169 provides:

'A recall petition * * * shall set forth A statement of the cause upon which the removal is sought.' (Italics ours)

The respective recall petitions herein state that removal is sought:

'for cause connected with his office, namely, hat he acted in conjunction with two other councilmen to create a majority voting block which negated the value of the minority of the remaining two councilmen. This action served to nullify the effectivenss of the minority as representatives of the people. It also resulted in the usurpation of the functions of the manager and the passage of ordinances of questionable legal validity which are not in the best interests of the people of the community; this conduct being generally in violation of the spirit of the council-manager form of government.' (Italics ours)

The mayor and two councilmen argue that this language does not constitute a legally sufficient statement of the cause upon which removal is sought within the intendment of N.J.S.A. 40:69A--168 and 169. They state frankly that they 'do not urge that the statement of cause for removal in recall petitions should show malfeasance or nonfeasance in the criminal or administrative sense.' But they contend that the statement 'should show more than political criticism of majority-block voting stated in the form of vague and generalized crimination. That's what we have here, nothing more. And it's not enough.' They maintain that the formation of a majority voting bloc is a fact of political life under a democratic form of government; that the majority vote always rules and thus negates the voting power of the minority; but this does not negate the effectiveness of the minority's representation of its constitutents. As they put it: 'The majority may overrule, but does not gag, the minority.'

As to the assertions in the statement of cause that the conduct of the mayor and two councilmen 'resulted in the usurpation of the functions of the manager and the passage of ordinances of questionable legal validity which are not in the best interests of the people of the community,' appellants stress that 'nothing is specified.' From this lack of specificity, they argue that it would be improper to submit the issue of their recall upon a statement of cause for removal couched in such 'vague and general' language. In support of their position, they rely upon the following decisions from other jurisdictions: People ex rel. Elliot v. O'Hara, 246 Mich. 312, 224 N.W. 384 (Sup.Ct.1929); Jacobsen v. Nagel, 255 Minn. 300, 96 N.W.2d 569, 572 (Minn.Sup.Ct.1959); Richard v. Tomlinson, 49 So.2d 798 (Fla.Sup.Ct.1951); Joyner v. Shuman, 116 So.2d 472 (Fla.D.Ct.App.1959); State ex rel. Peterkin v. City Council of City of Parkersburg, 95 W.Va. 502, 121 S.E. 489 (W.Va.Sup.Ct.App.1924).

The difficulty with these out-of-the-state decisions is that some of them involve local statutes and constitutional provisions different from our own, and others embrace a philosophy with reference to recall out of harmony with that heretofore reflected in decisions of our own courts. Thus, in Jacobsen v. Nagel, supra, the Minnesota Constitution, art. 13, § 2, provided that municipal officers 'may not be removed except for Malfeasance or nonfeasance in office.' (Italics ours) 96 N.W.2d, at p. 572. The grounds specified in the certificate for recall in that case indicated, according to the Minnesota Supreme Court, merely 'political criticisms of Nagel's actions as an alderman.' (96 N.W.2d, at p. 573) Since the petition for recall did not set forth the constitutionally required 'malfeasance or nonfeasance,' the recall petitions were declared legally insufficient to warrant the calling of the recall election. Our law does not require a statement of malfeasance or nonfeasance in office.

In the O'Hara case, supra, the Michigan statute, Pub. Acts 1913, No. 325, similarly required that the petition for recall must state as reasons for the recall facts which, if true, would show 'nonfeasance, misfeasance, or malfeasance in office.' 224 N.W., at p. 385. The petition in that case charged not only violation of the Corrupt Practices Act, but also that the elected township treasurer, whose recall was sought, had been given $140 by the township board to employ an assistant, had paid the assistant only $80 of the amount for that purpose, and had converted the balance to his own use. The petition also alleged that 'he had brought suit against the township without reason or just cause, to collect moneys to which he was not legally entitled.' The Supreme Court of Michigan held that the petition was sufficient, the reasons for the recall having been set forth with adequate particularity to enable the electors to identify the 'official misconduct relied upon for recall.' (224 N.W., at p. 385) 'It is enough that they (charges of official misconduct) be set up with sufficient particularity to enable the officer and electors to identify the transaction and know the charges made in connection therewith. For like reason, inclusion of insufficient reasons in the petition would not void it if one or more be properly stated.' Ibid.

In Richard v. Tomlinson, supra, the Florida Supreme Court held that the affidavit in support of the recall petition, signed by 39 electors, was insufficient because the only stated ground for removal of the councilman was that he 'has indulged in activities that are inimical to the best interests of the citizens of Miami Beach.' The Florida statute required an affidavit by any 25 qualified electors, containing the name of the councilman whose removal is sought and, like our own statute, a 'statement of the grounds for removal.' The court interpreted this to mean that 'the misdeed charged to the councilman should have some relationship to his performance of the duties of his office. * * * something stronger than a belief or an idea; and the one set out in the affidavit before us amounts to no more than one of these. The paper in no way apprised the petitioner of the charge he would be expected to meet were the recall election held, nor would any elector participating in such an election know what issue was intended to be drawn.' 49 So.2d, at p. 798. The court found that the ground asserted as the basis of the recall constituted 'nothing more than the statement of a conclusion or opinion without any tangible basis in fact.' (49 So.2d, at p. 799) It noted that, if a councilman became allied with one group, the opposing group would doubtless claim that his activities were 'inimical to the best interests of the citizens.' Accordingly, the Florida court decided that such a generalization is not a sufficient statement of 'cause' for removal or a recall election.

In Joyner v. Shuman, supra, another Florida case, the statement in the recall petition for the recall of the city commissioners recited that they had removed the city manager, the city attorney, and the assistant city attorney, and that, as a result, disrepute and injury were wrought upon the city and its citizens. This statement was held to be an insufficient statement of grounds for recall to justify...