175 N.J. Super. 115 | N.J. Super. Ct. App. Div. | 1980
Beatrice Eisenberg, plaintiff in this action for declaratory judgment, is the Clerk of the Borough of Woodbine. She brings this action to determine whether she must conduct a recall election as demanded by codefendant Committee to Recall Levin (hereinafter Committee). Thomas Levin is the mayor of Woodbine, the subject of the petition for a recall election and a codefendant in this action.
The first argument presented by the Committee is that N.J.Const. (1947), Art. I, par. 2, guarantees the right of recall to all citizens of the State of New Jersey. This provision reads as follows:
All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right at all times to alter or reform the same, whenever the public good may require it.
While it may be argued that the removal of an elective official is a minimal form of alteration or reformation of government, and is thus guaranteed by Art. I, par. 2, our Supreme Court has expressly held that there is no constitutional right to recall office holders. Roman v. Sharper, 53 N.J. 338 (1969); Leers v. Diehl 11 N.J.Misc. 525, 167 A. 216 (Sup.Ct.1933). See, also, In re Petition of Smith, 114 N.J.Super. 421, 435 (App.Div.1971). These decisions are binding upon this court and the Committee’s argument in this regard must fail.
The Committee next argues that the Borough Act is unconstitutional in that by failing to provide for the recall of elected borough officials the statute denies the borough citizens equal protection of the law, in violation of the Fourteenth Amendment of the United States Constitution. As indicated above, this argument is based on the fact that the right to recall has not been provided for borough citizens while it has been provided for in municipalities operating under other forms of municipal government. N.J.S.A. 40:70-1 et seq. (1911, the Walsh Act);
For the reasons which will be discussed below, it is the holding of this court that the lack of a recall provision in the Borough Act does not result in a denial of equal protection of the law. Further, this court finds that the recall provisions of the Faulkner Act, N.J.S.A. 40:69A-168 et seq., may be utilized only by citizens of municipalities that have adopted one of the optional municipal charters provided by that act. These holdings will be discussed in reverse order.
At first glance, the broad wording of the principal recall provision of the Faulkner Act, N.J.S.A. 40:69A-168, may lead one to believe that the Legislature intended that the right to recall should exist in every municipality within the State:
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.
However, this provision (following provisions for 16 optional plans of government) is contained in Article 17 of the Faulkner
The Legislature is presumed to be thoroughly familiar with the contents of its prior enactments, Quaremba v. Allan, 67 N.J. 1 (1975), and is thus presumed to have been aware that the Borough Act, as well as some other municipal government statutes, contained no provision for recall of elective officials.
The only reported decision which bears on the question of whether a legislative grant made in the Faulkner Act may be applied to a municipality which has not adopted one of the optional charters provided therein supports the result reached here. Paolella v. Hackensack, 76 N.J.Super. 86 (Law Div.1962). There the court considered whether the powers of initiative and referendum provided by the Faulkner Act were also available to the citizens of the City of Hackensack, which operated under the Municipal Manager Form of Government. The court held,
We therefore find and conclude the special powers of initiative and referendum for submission and adoption of a municipal ordinance by the voters at a general election, as provided only by the Faulkner Act, is a power limited to municipalities under the Faulkner Act, and the power was neither granted to nor adopted by the defendant municipality [at 89; emphasis supplied].
As noted previously, the right to recall elective officials is not a constitutional right, and the Legislature may impose rational restraints upon its exercise. In re Petition of Smith, supra. Further, equal protection of the law does not require that state laws cover the entire field of proper legislation in a single enactment. Middleton v. Texas Power & Light Co., 249 U.S. 152, 39 S.Ct. 227, 63 L.Ed. 527 (1919); Cleland v. Nat’l College of Business, 435 U.S. 213, 98 S.Ct. 1024, 55 L.Ed.2d 225 (1978); Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Thus, the Legislature may at any time grant the right of recall to boroughs, but its failure to do so does not effect the constitutionality of the Borough Act or those statutes in which the right was granted.
The Committee also places reliance upon Kramer v. Union Free School Dist., 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969), another voting rights case. In that case the plaintiff, who was otherwise qualified, was denied the right to vote in a local school board election because he neither owned nor leased, nor was the spouse of one who owned or leased, taxable property within the district, nor was he the parent or guardian of a child enrolled in one of the district’s schools. The court noted that where a statute “grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the court must determine whether the exclusions are necessary to promote a compelling state interest.” Id. at 627, 89 S.Ct. at 1890. The court held that the statute in question did not further a compelling state interest in that it was not sufficiently tailored to those “primarily interested” in school affairs to justify denial of the franchise to the plaintiff.
While these Supreme Court decisions and their progeny continue to safeguard the cornerstone of our democracy, I find that they have no bearing on the issue at hand. There is no question that within the relevant population group, the citizens of the Borough of Woodbine, the vote of each citizen has equal weight in determining the outcome of any municipal election. Nor is there any question of the placement of impermissible conditions on the right to vote within the relevant voting district. Those
In summary, this court finds that in light of decisions of the New Jersey Supreme Court holding that the right to recall is not guaranteed by the New Jersey Constitution the question of granting or refraining from granting the right of recall under the various forms of municipal government is purely a legislative one. The failure to provide a recall provision in the Borough Act does not constitute a denial of equal protection of the law since the Legislature has made the power of recall available to citizens of all municipalities, subject to conditions which it may properly impose. In re Petition of Smith, supra. The citizens of Woodbine have not taken the steps necessary to make this remedy available to them and it may not be employed unless they do.