Friday, August 29, 2003

By Jason Fink
Journal staff writer

Former Jersey City Mayor Gerald McCann and Jersey City Deputy Mayor Anthony Cruz will be allowed to run for Hudson County freeholder in November, a state Superior Court judge ruled yesterday.

The ruling, handed down by Judge Maurice Gallipoli, essentially repudiated a July 29 filing deadline that had been set retroactively some seven hours after it had passed.

Both McCann and Cruz, whose nominating petitions were rejected by the county clerk earlier this month because they were handed in too late, argued that the filing deadline for independents, which according to state law is set at noon on the day the first political party holds its nominating convention, was unfair because it was never made public.

The Hudson County Democratic Committee for the Fourth District in Jersey City selected Radames Velazquez as the interim freeholder and the candidate for the vacant seat at about 7 p.m. July 29.

Because the state law sets the deadline for independents at noon on the day of the first convention and does not require the public to be notified of when the convention will be held, the deadline remained essentially a secret until some seven hours after it had passed.

"The Legislature should never have tied the deadline into the party meeting," said Gallipoli. "(The Legislature) could have fixed the deadline clear as a bell."

Nobody from the state Attorney General's Office, which is responsible for defending the law, was at the hearing at the Brennan Courthouse in Jersey City, and officials from that office did not return phone calls yesterday afternoon.

Gallipoli, speculating as to what lawmakers were thinking when they drafted the law - "if they were thinking at all," he re- marked, dryly - suggested that the intent was to prevent a candidate who lost a bid to become a party's nominee from filing to run as an independent.

An attorney for the Hudson County Democratic Organization, which had supported the deadline, conceded that the statute is problematic, but told Gallipoli: "The deadline is the deadline and we have an obligation to assert our position."

After the hearing, the HCDO attorney, Bruce Padula, said he was disappointed in the ruling but that party officials remained confident.

"We're ready for the campaign now," he said.

A spokesman for Velazquez, an attorney in Jersey City, said the interim freeholder in fact filed a brief with the court in support of allowing Cruz and McCann to get on the ballot.

"(Velazquez) believes strongly that people have a right to choose," said the spokesman, Anthony Amabile.

McCann, who served as mayor from 1981 to 1985 and then was elected again in 1989 before being convicted midway through his second term on federal fraud charges unrelated to his office, said he felt vindicated by the judge's decision.

"I'm happy that the judge saw the unfairness of the law," said McCann, who is now a recycling manager for the Jersey City Incinerator Authority.

Cruz, whose attorney argued the case alongside McCann's attorney, said he is looking forward to campaigning.

"The people in the Fourth District will now have a choice," he said.

The freeholder seat became vacant last month following the resignation of Nidia Davila-Colon, who was convicted in federal court for her role in a 1999 bribery scheme involving then-Hudson County Executive Robert Janiszewski, who is now working as a cooperating witness in an ongoing federal corruption probe in Hudson County.

The Republican Party, which was not affected by the deadline for independent candidates, has not yet selected a candidate.

Gallipoli ruled that both Cruz and McCann must resubmit the same nominating petitions that the county clerk rejected. McCann tried to deliver his petitions, which must have 100 signatures of registered voters in the district, on Aug. 8; Cruz brought his in on Aug. 11.

The county clerk will have to certify the petitions in order for both men to appear on the Nov. 4 ballot as independents.

While Gallipoli's ruling is not expected to be appealed, Cruz and McCann are now gearing up for what could be a second fight: the placement of their names on the ballot.

A drawing was held Aug. 11 to determine ballot spots, with the Democratic Party landing column A and the Republicans getting column B. The next three columns are reserved for the Green Party, a slate called Time for a Change and one known as Eliminate Primary Elections.

That means the county clerk will hold a lottery between Cruz and McCann to determine whose names will occupy the F and G, or sixth and seventh, lines on the ballot. But McCann, who said only the Republicans and Democrats are fielding freeholder candidates, argued that he and Cruz should compete for the third and fourth spots.

Initially, McCann's attorney, Kenneth Marano, argued that the freeholder candidates' names should be placed on a portion of the ballot clearly separate from all the other offices up for a vote, but Gallipoli ruled that because the freeholder contest is held on Nov. 4 along with all the other races, it is not a special election and should be included on the regular part of the ballot.

The judge said he would allow Hudson County Clerk Joan Arango to design the ballot and draw for the placement any way she saw fit within the law, though McCann said that if he and Cruz were not placed on the third and fourth lines, he would be back in court.

Jason Fink can be reached at jfink@jjournal.com