McCann v. Clerk of City of Jersey City

771 A.2d 1123, 167 N.J. 311, 2001 N.J. LEXIS 657
CourtSupreme Court of New Jersey
DecidedJune 1, 2001
StatusPublished
Cited by75 cases

This text of 771 A.2d 1123 (McCann v. Clerk of City of Jersey City) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCann v. Clerk of City of Jersey City, 771 A.2d 1123, 167 N.J. 311, 2001 N.J. LEXIS 657 (N.J. 2001).

Opinions

The opinion of the Court was delivered by

STEIN, J.

Petitioner Gerald McCann applied to be a candidate for the office of Mayor of the City of Jersey City, a Faulkner Act municipality, in the May 8, 2001 non-partisan election. The Clerk of Jersey City refused to process McCann’s petition on the ground that his candidacy was barred by the disqualification provisions of the Criminal Code, N.J.S.A. 2C:51-2d, and the Faulkner Act, N.J.S.A. 40:69A-166. McCann brought suit, and the Law Division ordered the Clerk to include McCann on the ballot. The Appellate Division reversed, and we affirmed the Appellate Division in an order dated April 5, 2001. This opinion is issued pursuant to that order.

I

McCann is a former Mayor of Jersey City, having served in that office from 1982-1986 and 1990-1992. In December 1991, during his second administration, McCann was convicted in the United States District Court for the District of New Jersey on fifteen counts of an indictment including charges of mail fraud, wire fraud, false statements to a bank, false statements to the Internal Revenue Service (IRS), income tax evasion and failure to file a tax return. For purposes of this review, we assume that none of the events giving rise to those convictions occurred while McCann was in public office.1 As a result of his convictions, McCann was required [317]*317to forfeit Ms office pursuant to N.J.S.A 2C:51-2a(1), wMch provides for the forfeiture of any public office in this State on conviction of an offense involving dishonesty or a crime of the third-degree or above, or the conviction of an equivalent offense under federal law.

The federal court sentenced McCann in June 1992 to a term of thirty-three months imprisonment followed by a three-year period of supervised release. In February 1997, while on supervised release, McCann announced his intention to run for Mayor of Jersey City in the 1997 election. However, because he was disqualified from voting while serving Ms federal sentence, the Chancery Division and Appellate Division held that he was barred from runmng. McCann v. Superintendent of Elections, 303 N.J.Super. 371, 696 A.2d 1134 (Ch.Div.), aff'd, 303 N.J.Super. 352, 696 A.2d 1124 (App.Div.), certif. denied, 149 N.J. 139, 693 A.2d 109 (1997).

After completing his sentence, and with his voting rights restored, McCann again sought to run for Mayor of Jersey City, filing a petition in February 2001 with the City Clerk for the May 8, 2001 election. Based on advice from Jersey City’s Corporation Counsel, the Clerk refused to process McCann’s petition because his 1991 convictions disqualified him from the office of Mayor under the disqualification provisions of the Criminal Code, N.J.S.A. 2C:51-2d, and the Faulkner Act, N.J.S.A. 40:69A-166. The Criminal Code disqualifies from public office “any person convicted of an offense involving or touching on his public office, position or employment.” N.J.S.A. 2C:51-2d. The Faulkner Act prohibits “[a]ny person convicted of a crime or offense involving moral turpitude [from assuming] any mumcipal office, position or [318]*318employment in a municipality governed pursuant to this act.” N.J.S.A. 40:69A-166.

McCann filed a complaint in the Law Division seeking a declaratory judgment that he was eligible to run for office. The Law Division rejected both of the City Clerk’s arguments for disqualifying McCann and ordered the Clerk to process McCann’s petition. The court held that the- forfeiture statute in the Criminal Code did not apply to McCann’s offenses because those offenses occurred while McCann was in the private sector. With respect to the Faulkner Act, the court acknowledged that the disqualification provision contained in the Faulkner Act would bar McCann’s candidacy if it was enforceable but, relying on Matthews v. Atlantic City, 84 N.J. 153, 417 A.2d 1011 (1980), held that the provision deprived McCann of his constitutional right to equal protection because it subjects candidates for mayor in Faulkner Act municipalities to stricter eligibility requirements than those that apply in non-Faulkner Act municipalities, without any rational basis for the distinction.

The Appellate Division reversed. 338 N.J. Super. 509, 770 A.2d 723 (App.Div.2001). With respect to the forfeiture statute, the Appellate Division acknowledged that no prior cases addressed the specific question presented by MeCann-whether the statute applied to crimes that occurred while the candidate was not in office. However, the court cited language from related eases “indicating] that such conduct may indeed warrant a person being forever barred from public employment,” id. at 517, 770 A.2d 723, and concluded that “the Forfeiture Statute was intended to preclude anyone who violated the public trust from obtaining a second opportunity to do so.” Id. at 518, 770 A.2d 723. The court also rejected the Law Division’s conclusion that the Faulkner Act disqualification provision was unconstitutional. Relying in large part on the legislative history of the Act, the court observed that the Act “intended to confer the greatest possible power of self-government, consistent with the New Jersey Constitution, upon municipalities adopting a plan pursuant to the Act.” Id. at 527, 770 [319]*319A.2d 723 (citing City of Newark v. Dep’t of Civil Serv., 68 N.J.Super. 416, 424, 172 A.2d 681 (App.Div.1961)). “Given the broad, unprecedented sweep of powers the Legislature ultimately put in the hands of mayors and other elected officials in these newly configured municipalities,” the court noted, “it is not unexpected that it also sought to regulate those who would exercise those powers.” Id. at 531, 770 A.2d 723. The court concluded that the disqualification provision was reasonable, and therefore constitutional, “given the broad scope of power vested in the mayor and other elected officials of those municipalities.” Id. at 533, 770 A.2d 723

We granted McCann’s petition for certification and motion for acceleration, and heard oral argument by telephone on April 5, 2001. Later that day, we issued an order affirming the judgment of the Appellate Division and vacating the stay of the printing of affected election ballots. This opinion is issued to supplement our April 5,2001 order.

II

We address first whether McCann’s candidacy is barred by the forfeiture statute in the Criminal Code, N.J.S.A. 2C:51-2. That statute provides in relevant part:

(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

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State of New Jersey v. Frank Nucera
New Jersey Superior Court App Division, 2024
Brugaletta v. Garcia
190 A.3d 419 (Supreme Court of New Jersey, 2018)
PATRICIA J. MCCLAIN VS. BOARD OF REVIEW(BOARD OF REVIEW, DEPARTMENT OF LABOR)
168 A.3d 1214 (New Jersey Superior Court App Division, 2017)
State of New Jersey v. Isaac A. Young
152 A.3d 955 (New Jersey Superior Court App Division, 2017)
State of New Jersey v. Matthew J. Walters
139 A.3d 1214 (New Jersey Superior Court App Division, 2016)
Richard W. Berg v. Hon. Christopher J. Christie(074612)
137 A.3d 1143 (Supreme Court of New Jersey, 2016)
J.P. v. Gregory J. Smith
134 A.3d 977 (New Jersey Superior Court App Division, 2016)
State of New Jersey v. L.S.
132 A.3d 938 (New Jersey Superior Court App Division, 2016)
State of New Jersey v. L.D.
130 A.3d 590 (New Jersey Superior Court App Division, 2016)
In the Matter of the Estate of Michael D. Fisher, II
128 A.3d 203 (New Jersey Superior Court App Division, 2015)
John M. Gately and Patty Sue Gately v. Hamilton
125 A.3d 747 (New Jersey Superior Court App Division, 2015)
State v. Marc A. Olivero (073364)
115 A.3d 1270 (Supreme Court of New Jersey, 2015)
In re Christie's Appointment
95 A.3d 780 (New Jersey Superior Court App Division, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
771 A.2d 1123, 167 N.J. 311, 2001 N.J. LEXIS 657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccann-v-clerk-of-city-of-jersey-city-nj-2001.