IN THE MATTER 2006 PETITION FOR THE RECALL OF THE HONORABLE MAYOR RICHARD DELAROCHE TOWNSHIP OF MOUNT OLIVE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0781-06T20781-06T2

IN THE MATTER OF THE 2006

PETITION FOR THE RECALL OF

THE HONORABLE MAYOR RICHARD

DELAROCHE OF THE TOWNSHIP

OF MOUNT OLIVE.

 
_____________________________

Argued: May 8, 2007 - Decided May 25, 2007

Before Judges Axelrad, R.B. Coleman and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-2445-06.

Robert A. Russell argued the cause for appellant/cross-respondent Richard DeLaRoche (Richard DeLaRoche, pro se, on the brief).

Edward J. Buzak argued the cause for respondent/cross-appellant The 2006 Committee to Recall Richard DeLaRoche from the Office of Mayor of Mount Olive Township, New Jersey (Edward J. Buzak, attorney; Mr. Buzak and Tiena M. Cofoni, on the brief).

Brian J. Levine argued the cause for respondent Township Clerk of the Township of Mount Olive and Recall Election Official, Lisa Lashway (Brenner & Levine, attorneys; Mr. Levine, on the brief).

Daniel W. O'Mullan argued the cause for respondent Morris County Clerk (Ronald Kevitz, Morris County Counsel, attorney; Mr. Kevitz, on the brief).

PER CURIAM

Richard DeLaRoche, former Mayor of Mount Olive Township, appeals from a September 28, 2006, Law Division order affirming the Township Clerk's determination of sufficiency of a petition for DeLaRoche's recall as Mayor of the Township. The judge found that although the petition did not strictly comply with the exact format and language required under N.J.S.A. 19:27A-8 and -9, the technical non-material deficiencies neither detracted from the validity of the signatures nor compromised the integrity of the process. The Committee to Recall DeLaRoche asserts a cross-appeal of the trial court's decision that DeLaRoche was not procedurally barred or estopped from challenging the form or substance of the petition because he remained silent as to the complaint of deficiencies until the signatures were collected and the petition was filed in August 2006. We affirm.

DeLaRoche was elected Mayor of the Township in a general election on November 4, 2003. On February 15, 2006, the Recall Committee filed a Notice of Intention to recall DeLaRoche, which the Township Clerk reviewed. On February 17, 2006, the Recall Committee filed a revised Notice of Intention and petition, which were approved by the Clerk and served on DeLaRoche. On February 27, 2006, DeLaRoche filed an answer to the statement of reasons for recall, which was incorporated into the petition pursuant to N.J.S.A. 19:27A-7c. DeLaRoche did not object to the form or content of the petition itself at that time. On March 1, 2006, the Clerk again approved the form of petition, determining that it complied with all statutory requirements.

The Notice of Intention and petition were published in newspapers of general circulation in the Township in March 2006. The petition was circulated in Mount Olive and, on July 27, 2006, a petition containing well in excess of the minimum of 3,543 required signatures (25% the registered voters in Mount Olive, in compliance with N.J.S.A. 19:27A-11) was filed with the Clerk. On August 8, 2006, after disallowing some of the signatures on the petition, the Clerk determined that the petition contained more than the minimum number of valid signatures and served DeLaRoche with a notice of determination of validity. On August 22, 2006, DeLaRoche filed objections to the form of petition and challenged some of the signatures.

DeLaRoche then filed a complaint challenging the sufficiency of the petition and the validity of some of the signatures. Specifically, DeLaRoche argued the petition was insufficient because: (1) the Recall Committee's statement of reasons and his answer appear on page two of the petition, rather than page one as required by N.J.S.A. 19:27A-8c; (2) the box to be checked on the petition above the signature states that the signatory had an "opportunity to review the information on the first page of the petition" while the statement of reasons and answer actually appear on page two; (3) the circulator's affidavit does not appear on the bottom of each page, but only on the last page; (4) the affidavit to be signed by the circulator does not appear on the bottom of each page, but only on the last page; (5) the circulator's affidavit does not expressly track the statutory language of N.J.S.A. 19:27A-9b(3) in that there is no statement in the body of the affidavit that the circulator witnessed the signatures, assumed the responsibility to circulate, set forth dates between which all signatures to that page were collected and set forth a statement as to the truth and correctness of the information; and (6) 578 of the signatures are not in statutory compliance because the dates signed were affixed by the circulator rather than the signatories.

On September 28, 2006, Judge Bozonelis entered an order dismissing DeLaRoche's complaint and affirming the determination of the sufficiency of the petition, accompanied by an explanatory fifteen-page written decision. The court found that DeLaRoche timely challenged the form of the recall petition pursuant to N.J.S.A. 19:27A-12 and that the prerogative writs rule was inapplicable. The court further analyzed each of DeLaRoche's challenges to the petition in the context of the language and intent of the statutory provisions of the recall amendments. The court was satisfied that the petition was in substantial compliance with the statutory requirements and there was no indication the extent of deviations compromised the integrity of the process or validity of the signatures on the recall petition. Therefore, the court ordered the Morris County Clerk to place the recall election on the ballot for November 7, 2006. DeLaRoche filed this appeal on October 2, 2006. In the November election, 70% of the registered voters of Mount Olive voted in favor of recalling DeLaRoche.

On appeal, DeLaRoche raises the same arguments as below, contending the petition was non-compliant with the election recall law, mandating it be invalidated. We are not persuaded by appellant's arguments and affirm substantially for the reasons articulated by Judge Bozonelis in his comprehensive written opinion. The alleged deficiencies were minor technical errors that did not call into question the validity of the signatures and, as the court noted, there was no evidence of fraud or collusion in the manner in which the signatures were solicited. As the court noted, while the statutory scheme does list several procedural requirements, the Legislature only specifically states that a failure for a committee member to sign the petition will render it void, N.J.S.A. 19:27A-8h, thus apparently leaving to the court the discretion to determine the degree of nonconformity and the remedy for the violations under the totality of the circumstances. We are satisfied the trial court applied the appropriate law to the facts of this case and properly exercised its discretion in choosing not to invalidate the Recall Committee's petition.

In light of our determination affirming DeLaRoche's appeal, we need not address the cross-appeal.

Affirmed.

 

At the commencement of the plenary hearing on September 28, 2006, DeLaRoche abandoned his challenge to the signatures.

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A-0781-06T2

May 25, 2007