Fields v. Hoffman

• Decision Date: 05 January 1987
• Citation: 520 A.2d 751,105 N.J. 262
• Parties: Edward W. FIELDS, Plaintiff-Appellant, v. Joseph J. HOFFMAN, Clerk of Gloucester County, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 262

105 N.J. 262

520 A.2d 751

Edward W. FIELDS, Plaintiff-Appellant, v. Joseph J. HOFFMAN, Clerk of Gloucester County, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Oct. 21, 1986.

Decided Jan. 5, 1987.

Joseph F. Lisa, Woodbury, for plaintiff-appellant.

Russell E. Paul, First Asst. County Counsel, Woodbury, for defendant-respondent (Andrew Weber, Gloucester County Counsel, attorney).

The opinion of the Court was delivered by

CLIFFORD, Justice.

By Order dated October 22, 1986, we permitted the name of plaintiff, Edward W. Fields, to be placed on the 1986 general election ballot as a Democratic party candidate for Borough Council in the Borough of Clayton. We issued the Order without opinion because of the need for expeditious resolution of this election dispute, inasmuch as the election was scheduled for November 4, 1986. Plaintiff's name did in fact appear on the general election ballot, and we have since been informed that plaintiff was elected to office.

This opinion sets forth the basis for our decision to permit plaintiff's name to be placed before the electorate.

I

This action was commenced by the filing of a Verified Complaint in lieu of Prerogative Writ and an Order to Show Cause, seeking a judgment directing defendant, the County Clerk of Gloucester County, to include the name of plaintiff, Edward W. Fields, on the 1986 Borough of Clayton general election ballot as a Democrat candidate for Borough Council. The Complaint made reference to pertinent sections of the statutes dealing with nomination of candidates, N.J.S.A. 19:13-1 to -23, ballots, N.J.S.A. 19:14-1 to -35, and primary elections, N.J.S.A. 19:23-1 to -58, and recited the following facts, none of which (except, of course, for the import and effect of the cited statutes) is in dispute:

1. Two seats for membership on Borough Council of the Borough of Clayton, Gloucester County, are up for election in the 1986 General Election.

2. In the 1986 primary election, the official ballot for the Democratic party in the Borough of Clayton provided for voting for two candidates to run for those seats in the general election.

3. One candidate, whose name appeared on the primary ballot by virtue of a petition previously filed, received 132 votes. No other name appeared on the ballot, but approximately thirty write-in votes were cast for various candidates for the other available position. No candidate received more than six votes. Two candidates, not including plaintiff, received six votes each; plaintiff received none.

4. Pursuant to N.J.S.A. 19:13-14, the person receiving the highest number of votes in the primary election shall be the candidate of his party for the office to be filled, and in case more than one person is to be elected to the same office, "the persons having the highest number of votes to the extent of the number of offices to be filled" shall be the candidates of their party for such offices in the general election.

5. N.J.S.A. 19:14-2.1 provides that the name of a person for whom votes are cast by write-in vote in a primary election shall not be included on the general election ballot unless he received the number of votes at least equal to the minimum number of signatures required on a petition to place on the primary ballot the name of a candidate for that office. That required minimum number is yielded by a calculation set forth in N.J.S.A 19:23-8: "at least 5% in number of the total vote cast by the voters of that political party at the last preceding primary election held for the election of that party's candidates for the General Assembly."

6. In the last election in which the General Assembly was up for election, i.e., 1985, 176 votes were cast in Clayton in the Democratic primary election. The formula prescribed by statute, i.e., five percent of 176, yields 8.8 as the required minimum number of signatures on a petition to place a name on the primary ballot, and hence the minimum number of primary election write-in votes required to permit one to have one's name placed on the general election ballot.

7. The candidate who received 132 votes in the primary election was selected as the Democratic candidate in the general election for one of the Borough Council positions; but because of the tie for second place and because none of the other candidates received at least 8.8 write-in votes, which would have entitled him automatically to be included on the general election ballot, a vacancy resulted in respect of the other position.

8. The vacancy thus created was filled by selection of plaintiff under the provisions of N.J.S.A. 19:13-20, which reads in part as follows:

In the event of a vacancy, howsoever caused, among candidates nominated at primaries, which vacancy shall occur not later than the 51st day before the general election, or in the event of inability to select a candidate because of a tie vote at such primary, a candidate shall be selected in the following manner:

(a) * * *

(4) In the case of an office to be filled by the voters of a portion of a single county, the candidate shall be selected by those members of the county committee of the party wherein the vacancy has occurred who represent those portions of the county which are comprised in the district from which the candidate is to be elected.

On September 15, 1986, plaintiff delivered to defendant the requisite documents to fill the vacancy with the name of plaintiff. Those documents included a Report of the Meeting of the Executive Committee of the Democratic County Committee at which plaintiff was selected "by unanimous voice vote;" a Certificate Filling Vacancy; and a Certificate of Acceptance to Fill Vacancy, executed by plaintiff. The submission of the documents accompanied plaintiff's request that defendant place his name on the general election ballot.

9. By letter dated September 16, 1986, defendant rejected plaintiff's request and refused to include his name on the general election ballot. Defendant's explanation for his refusal was that "there is no vacancy to fill" because "[n]o write-in candidate received at least nine votes at the Primary Election * * *."

Plaintiff charges that defendant's refusal was "wrongful and contrary to law."

The trial court denied plaintiff's demand for a judgment that would require defendant to place his name on the general election ballot, and dismissed the complaint. Plaintiff's appeal to the Appellate Division was accompanied by an emergency application for summary disposition in an election matter under Rule 2:8-3(b) and Rule 1:2-5(1). The court granted the motion for summary disposition and affirmed the judgment essentially for the reasons stated by the trial court in its oral opinion. We then treated plaintiff's motion for leave to appeal as a petition for certification from a final judgment, granted the petition, heard oral argument on an expedited basis, and the following day issued our Order reversing the judgment below.

II

The courts below took the position that the statutory provision for filling vacancies among primary nominees by party committee was not triggered in this case.

The statutory scheme first addresses the situation in which a person nominated for election to public office declines the nomination: in that event the nomination is void. See N.J.S.A. 19:13-16. The statutes then come to grips with the problem of vacancies, first with a general provision and then by focusing on specific circumstances that have brought about the vacancy.

The general provision, N.J.S.A. 19:13-18, has been with us for more than half a century. It reads:

When a person so declines his nomination, or if a petition or certificate of nomination, or if any nomination, be insufficient or inoperative, or if a nominee shall die, or for any reason vacate his nomination, the vacancy so occasioned may be filled in the manner outlined in the succeeding sections.

As observed in Fiscella v. Nulton, 22 N.J.Super. 367, 92 A.2d 103 (App.Div.1952), "the Legislature, in employing the words 'nominee,' 'nomination' and 'vacancy,' did not define them specifically nor is there any indication that they were to be given any unusual or different meaning, as used in one provision or another." Id. at 375, 92 A.2d 103. Hence, those words should be given the meaning accorded them in "common usage." Ibid.

One of the "succeeding sections" to which N.J.S.A. 19:13-18 refers for the manner of filling vacancies is N.J.S.A. 19:13-20. As we have seen, supra at 752-753, that statute permits the committees of the affected political parties to select a candidate to fill "a vacancy, howsoever caused, among candidates nominated at primaries * * *." Which committee of the party makes the selection depends on the office in which the vacancy has occurred--that is, if the office is one to be filled by the voters of the entire state, then the candidate for that office is selected by the state committee of the political party in which the vacancy has occurred, N.J.S.A. 19:13-20(a)(1), whereas if, as in this case, the office is one to be filled by the voters of a single municipality, the selection is made by those members of the county committee who represent the district in which the municipality is located. N.J.S.A. 19:13-20(a)(4).

There is no challenge here to the process by which the "selection by committee" was made--that is, no one contends that the wrong committee acted or that the committee membership was somehow deficient. Rather, the argument centers on the fact that the process of "selection by committee" comes into play only in the event of a vacancy among primary nominees. Defendant argues that there cannot be a "vacancy, howsoever caused, among candidates nominated at primaries," N.J.S.A. 19:13-20, until a candidate has in fact been nominated at a primary; that because no candidate for the second place on the general election ballot received more than six write-in votes at the primary, thereby creating a...