Gangemi v. Rosengard

• Decision Date: 26 February 1965
• Docket Number: No. A--89,A--89
• Citation: 44 N.J. 166,207 A.2d 665
• Parties: Thomas GANGEMI and Michael R. Perrella, Plaintiffs-Appellants, v. Bernard ROSENGARD, Individually and as City Clerk of the City of Jersey City, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 166

44 N.J. 166

207 A.2d 665

Thomas GANGEMI and Michael R. Perrella, Plaintiffs-Appellants, v. Bernard ROSENGARD, Individually and as City Clerk of the City of Jersey City, Defendant-Respondent.

No. A--89.

Supreme Court of New Jersey.

Argued Feb. 1, 1965.

Decided Feb. 26, 1965.

Telford Taylor, New York City, for appellants (Jack Geddy Goldberg, Jersey City, attorney).

T. James Tumulty, Asst. Corp. Counsel, for respondent (Francis X. Hayes, Jersey City, on the brief, Meyer Pesin, Corp. Counsel of City of Jersey City, attorney).

The opinion of the court was delivered by

WEINTRAUB, C.J.

This case involves the validity of Chapter 84, L.1960 (N.J.S.A. 40:69A--167.1), which supplements the Optional Municipal Charter Law, popularly called the Faulkner Act, and provides:

'In any city of the first class, elected officers, including members of a charter commission, shall, for at least 2 years before election, be registered voters and residents of the municipality; and ward officers shall also be residents of the respective wards for which elected for a period of 8 months before election.'

Plaintiff Gangemi seeks to run in May 1965 for the office of Mayor in Jersey City, a city of the first class which heretofore adopted one of the plans under the Faulkner Act, N.J.S.A. 40:69A--1 et seq. He has resided in Jersey City for some 50 years and hence is not troubled by so much of Chapter 84 as requires elected officers to be 'residents' of the municipality for at least two years. His problem stems from the further demand that elected officers shall be 'registered voters' for at least two years. Gangemi became a naturalized citizen on September 2, 1964 and registered for voting on the following day. Although registered, he cannot meet the requirement that registration shall have endured for the two-year period. ¹ This case turns on the constitutionality of that requirement.

Plaintiffs contend Chapter 84 violates Art. IV, § VII, 9 of our State Constitution which prohibits local or special laws regulating the internal affairs of municipalities and requires the passage of general laws in such matters. The law is claimed to be local and special and not general because it applies (1) only to a city, and then (2) only to a city of the first class, and even then (3) only if such a city has adopted a plan of government under the Faulkner Act. Plaintiffs deny any rational connection between the object of Chapter 84 and any one or the totality of the three attributes of municipal life just enumerated. In like terms, the statute is assailed as violative of the equal protection clause of the Fourteenth Amendment and of the equality provision inherent in Art. I, 1 of the State Constitution.

On motion, the trial court sustained the statute and gave judgment for defendant. The appeal was certified on motion before argument in the Appellate Division. R.R. 1:10--1A.

We asked the parties to argue the additional question whether a statute requiring a period of voter registration is beyond the legislative power. We had in mind whether that provision improperly restrains the right to vote assured by our State Constitution. Our request elicited still another issue we did not have in mind, i.e., whether Chapter 84 discriminates against naturalized citizens in violation of the Fourteenth Amendment and the provision of our State Constitution which bars discrimination as to civil rights on account of ancestry or national origin. Art. I, 5. Plaintiffs refer to Schneider v. Rusk, 377 U.S. 163, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964), and the point made is that in its actual operation Chapter 84 would delay eligibility for office on the part of one naturalized after attaining voting age, thus disadvantaging him vis-a -vis a citizen by birth. We need not reach this issue since other grounds suffice to sustain plaintiffs' attack.

I

The right to vote did not share in the glorious history of other democratic values. At the time of the American Revolution it was not among the inalienable blessings of man. So, our Constitution of 1776 limited the right to vote for representatives in the council and assembly to inhabitants 'worth fifty pounds' (Art. IV), and required that a member of the legislative council be a 'freeholder * * * and worth at least one thousand pounds, proclamation money, of real and personal estate' within his county, and that a member of the assembly be worth half that much (Art. III).

Universal suffrage was a long was off. Our Constitution of 1844 assured a vote only to every 'white male' (Art. II, 1). By an amendment in 1875 'white' was eliminated, in response of course to the Civil War and the Fifteenth Amendment to the Federal Constitution. Women had to wait for the Nineteenth Amendment. Finally our State Constitution of 1947 (Art. II, 3, since amended in respects not here critical) provided:

'Every citizen of the United States, of the age of twenty-one years, who shall have been a resident of this State one year, and of the county in which he claims his vote five months, next before the election, shall be entitled to vote for all officers that now are or hereafter may be elective by the people, and upon all questions which may be submitted to a vote of the people.'

And in the reapportionment decisions of the United States Supreme Court, the equal protection clause of the Fourteenth Amendment was found to undergird the right to vote, at least to the extent of assuring an equal voice to all who hold the right. See Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362 12 L.Ed.2d 506 (1964); Jackman v. Bodine, 43 N.J. 453, 205 A.2d 713 (1964).

Thus, despite an impoverished beginning, the right to vote has taken its place among our great values. Indeed the fact that the voting franchise was hoarded so many years testifies to its exalted position in the real scheme of things. It is the citizen's sword and shield. 'Other rights, even the most basic, are illusory if the right to vote is undermined.' Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 585, 11 L.Ed.2d 481, 492 (1964). It is the keystone of a truly democratic society.

And the right to vote would be empty indeed if it did not include the right of choice for whom to vote. See Ransom v. Black, 54 N.J.L. 446, 460, 24 A. 489, 1021, 16 L.R.A. 769 (Sup.Ct.1892), affirmed 65 N.J.L. 688, 51 A. 1109 (E. & A. 1900); Imbrie v. Marsh, 5 N.J.Super. 239, 245--246, 68 A.2d 761 (App.Div.1949), affirmed 3 N.J. 578, 71 A.2d 352, 18 A.L.R.2d 241 (1950); In re City Clerk of Paterson, 88 A. 694, 695--696 (N.J.Sup.Ct.1913--not officially reported); Gansz v. Johnson, 9 N.J.Super. 565, 567, 75 A.2d 831 (Law Div.1950). This does not mean there must be perfect equality between the two; Stothers v. Martini, 6 N.J. 560, 79 A.2d 857 (1951), held there is not. But it does mean that in judging the validity of a restraint upon eligibility for elective office, we must be mindful that the restraint is upon the right to vote as well. As Mr. Chief Justice Warren said in Reynolds v. Sims, supra, 377 U.S., at p. 555, 84 S.Ct. at p. 1378, 12 L.Ed.2d at p. 523:

'* * * The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of respresentative government.'

Defendant argues that Stothers v. Martini, supra, 6 N.J. 560, 79 A.2d 857, holds the Legislature is unlimited in its prescription of qualifications for an elective office created by statute. He misreads the statement that 'It is thus only logical to conclude that since the Legislature has the unrestricted power to provide for elective municipal offices that it also has the power to prescribe reasonable qualifications therefor' (at p. 564, 79 A.2d at p. 858). What the Court found to be 'unrestricted' was the power to decide whether to create elective municipal offices. The power to prescribe qualifications for such offices was expressly limited by reasonableness; the exclusion from office must not be 'arbitrary' (at p. 565, 79 A.2d 857).

Far from being unrestricted, the power to prescribe qualifications for elective office is sharply limited by the constitutional quaranty of a right to vote. A prescribed qualification for office must relate to the needs of officeholding as such or the special needs of the particular office involved, with the voters free to judge the personal or individual fitness of the candidates who have those basic qualifications. The line separating the basic needs of office from the individual fitness of a candidate, perhaps more easily felt than described, is vital, and the fundamental value involved is best served if the judiciary insists that the reason for the inroad upon the right to vote be real, and clear, and compelling.

II

In judging whether the statute exceeds the legislative power to restrict the right to vote, we must first find the need the statute was designed to meet, for only in the light of the statutory objective can the power to legislate be assayed. The same inquiry is also pivotal as to the issue of improper classification, for again the public need must be identified before one can intelligently say whether the class is rational. Two Guys from Harrison, Inc. v. Furman, 32 N.J. 199, 218, 160 A.2d 265 (1960).

Defendant argues that Stothers v. Martini, supra, 6 N.J. 560, 79 A.2d 857, settles this case. Involved was N.J.S.A. 40:72--1, a provision of the Walsh Act (commission form of government) which then provided:

'Each member (of the commission) shall have been a citizen and resident of the municipality for at least two years immediately preceding his election, Or shall have voted in such municipality at the two general elections immediately preceding his election.' (Italics added.)

The italicized portion was added by amendment. ² L.1948, c. 21, § 2. Defendant contends that if prior voting over a period of time may be required for office, so too may a period of registration. This would be true, but Stothers...