September 25, 2008
BY JIM LOCKWOOD
Star-Ledger Staff
A judge yesterday refused to immediately order a recall election of Frankford Mayor Robert McDowell for the Nov. 4 general election because there must first be a full airing of the matter in court.
But Superior Court Judge Theodore Bozonelis, sitting in Morristown, also decided to continue hearing the case by residents arguing that their recall petition was improperly rejected by the township clerk due to a technicality.
That means the petition still might end up going before voters as a special recall election possibly by the end of the year or early next year, if Bozonelis rules in favor of the petitioners.
"I'm not going to order the clerk to put it on the Nov. 4 ballot," Bozonelis said in issuing his ruling, because there would not be enough time for hearings and to give McDowell a chance to raise objections to the petition.
The petition was declared null and void on Aug. 27 by municipal clerk Louanne Cular due to a technical error on the paperwork. Under law, each recall petition section containing signatures is supposed to be numbered sequentially. However, only one of the 51 separate sections was numbered, and as a result, law mandates that the petition be voided, township attorney Kevin Benbrook argued.
Petitioners needed 947 signatures for a recall election but garnered 1,200, and each person signing the petition had to check a box saying they saw the cover page. Their attorney, Edward Buzak, argued that the petition did not have to be squashed over a technicality.
But Bozonelis said, "It's not going to be up to the clerk to make these kinds of determinations. It's going to be up to the court, based on hearings." The issue will be whether the technicality was so minor that a special election should be ordered, or whether the petitioners would have to start all over again from scratch collecting signatures if they choose to, the judge said.
A similar situation occurred in Mount Olive in 2006, in which Bozonelis upheld a petition against former Mount Olive Mayor Richard De La Roche, who ended up getting recalled. In Mount Olive, De La Roche objected to the petition because all the pages were missing certifications from petition collectors. That was a greater defect than Frankford's case of pages not being numbered sequentially, said Buzak, adding that the state Appellate Division also upheld Bozonelis's decision in Mount Olive.
"Hopefully, we'll have the opportunity to go forward with a special election," Buzak said after the hearing.
McDowell did not attend the hearing. His attorney, Richard Fornaro, said after court that he was glad the recall wasn't approved yesterday.
Benbrook said, "My clerk has been vindicated. If it goes any further from here, it's the judge's bailiwick and that's what we said from Day One."
