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Bontempo v. Carey

Decided: November 7, 1960.


On motions for summary judgment.

Waugh, A.j.s.c.


The court has before it motions for summary judgment in each of three consolidated actions, all of which involve the same factual and legal problems; all seek declaratory judgments and general in lieu of prerogative writ remedies.

These matters are an outgrowth of the chaotic events that transpired during a meeting of the Essex County Democratic Committee which had been convened on April 26, 1960 for the purpose of electing a county committee chairman as required by N.J.S.A. 19:5-3. The admitted facts, as they are here pertinent to a general background of the origins of these disputes, give evidence that numerous delegations to the meeting attempted to use a form of unit rule and proxy voting which sparked several strenuous objections from dissident delegation members, and led to a general disorder that ultimately required police intervention. Basically, it is the employment of these two voting devices that gives rise to this litigation, the court being called upon to decide their validity and to determine if the defendant Dennis F. Carey was validly elected chairman of the Essex County Democratic Committee. In the first of these cases there are three plaintiffs: Michael A. Bontempo, Peter Koch, and Theodore Lytwyn. Plaintiff Bontempo, although not an elected member of the county committee, was a candidate for the office of county chairman at the disputed April 26 election, while both plaintiffs Koch and Lytwyn are duly elected members of that body, the former from East Orange and the latter from Irvington.

In the second action, which for the sake of brevity I shall refer to as the "Hinds Action," there are eight plaintiffs, all

of whom are duly elected members of the county committee, elected from the Town of Montclair.

The third of these matters has a single plaintiff, John W. Hayden, Jr., also a duly elected member of the county committee. Plaintiff Hayden was elected from the Town of West Orange.

The plaintiffs have named as defendants in these three cases Dennis F. Carey, chairman-elect of the county committee, elected to the post at the April 26 meeting, and James J. McMahon, chairman of the Montclair Municipal Committee and temporary chairman of the election meeting presently under consideration. In addition to Carey and McMahon, the Essex County Democratic Committee has been named as a party defendant in the Bontempo case, while Maclyn S. Goldman, chairman of the West Orange Committee, has been named as a defendant in the Hayden Action.

Generally speaking, the relief sought by the plaintiffs in the first two cases may be tersely stated to be a declaration of the invalidity of the use of unit rule and proxy voting, both at county and municipal levels, and they further seek to set aside the election of defendant Carey as Essex County Committee Chairman. Plaintiff Hayden, while joining with the other plaintiffs on the unit rule and proxy issues, does not seek to disturb the Carey election, nor does his prayer for relief aver that defendant Goldman was elected to the position of municipal chairman through the use of proxies.

With this general background discussion in mind, we now pass to the issues as joined by the pretrial order. Simply stated, they are as follows:

(A) Does a justiciable issue exist so as to permit the court to proceed under the Uniform Declaratory Judgments Act, N.J.S. 2 A:16-50, et seq. ?

(B) Is the use of unit rule and proxy voting (as described herein) at county and municipal meetings sanctioned by N.J.S.A. 19:5-3, or, alternatively, can the validity of this use be sustained by authorization of county and municipal constitutions and by-laws, or by custom and usage?

(C) In the event that unit rule and proxy voting is found to be invalid, should the court order a re-election for the office of county

chairman? If so, under what terms and conditions shall such an election be held, and what is the status of the incumbent pending the results of the re-election?

In addition to these fundamental problems, the defendants have raised the issue of plaintiffs' bad faith in instituting these suits, and further, they have set forth the defense of estoppel alleging that acquiescence in and actual use of the two methods of voting now questioned precludes plaintiffs from attempting to strike down that of which they have heretofore availed themselves.


In determining this matter, a short history and comment on the nature of county and municipal committee membership will be helpful. Prior to 1903, these committees were unregulated by statute. In that year and by virtue of L. 1903, c. 248, s. 6, p. 608, the Legislature declared that any

"county * * * committee * * * may adopt a resolution declaring its desire to have the members of such * * * committee thereafter elected at the primary elections herein provided for; and upon filing a copy of such resolution * * * with the clerks of the several municipalities within such county, it shall be lawful thereafter to elect the members of such county or city committee at said primary elections in the manner provided in this act for the selection of party candidates to be voted for by the voters of a single ward or township."

In 1909 candidates for the county committee were required for the first time to be elected in regularly conducted primary elections. L. 1909, c. 106, p. 159; 2 Comp. St. of N.J. 1709-1910, Elections s. 289, p. 2166. Their election is now provided for by N.J.S.A. 19:5-3 and by virtue of N.J.S.A. 19:1-1, a county committeeman is now considered to be the holder of a "party office."

In Wene v. Meyner , 13 N.J. 185, at pp. 192-193 (1953), Justice Heher, speaking for our Supreme Court, said:

"The political function of a political party and its members involves rights and interests which are subject to legislative regulation for their own protection. * * * the Legislature may safeguard the right of individual voter-participation in the choice of party candidates, in the common interest of the party membership, its concepts and ideals, and thus for the general good and welfare; * * *

Although without constitutional sanction, political parties from the early days of the Republic represented differences of philosophy and thought in relation to governmental policy; and they are now regarded as a necessary adjunct to representative government. * * * The primary is a substitute for the party convention, in an area identified with the essential public interest." (Emphasis added)

The county committeeman has been called a trustee, and his relation to his party and to the other members of that party has been clearly set down. In this regard I consider favorably the very descriptive language of the New York Supreme Court in Application of Roosevelt , 9 Misc. 2 d 205, 160 N.Y.S. 2 d 747, 749-750 (Sup. Ct. 1957), affirmed 3 A.D. 2 d 988, 163 N.Y.S. 2 d 403 (App. Div. 1957).

"Political parties must function through an organization, and that organization is usually reflected through the channels of the county organization. The county organization is a political institution consisting of all the registered voters of a party in the county represented by a county committee whom they elect under the provisions of the Election Law and whose power as the 'regular party organization' is thus conferred upon them by virtue of such election. The county committee and its chairman are, in a sense, trustees of party interests for the registered voters of the party in that county."

Thus we arrive at the crux of the matter May this same committeeman, a trustee of voter rights and interest in party affairs, cast his ballot either by proxy or through the use of a unit rule method?

Before this question may be answered, it is necessary to consider the defendants' theory that the subject matter of this action is not a proper one for declaratory judgment. In this I cannot agree. The contention is advanced on the premise that another adequate remedy is available, namely the ballot box. In other words, the court is asked to decide

that when the plaintiffs are able to win over enough county committee members to agree with them, they then can make such changes in the rules as they deem appropriate or, if they so desire, maintain control by employing the same devises we now examine, to wit: proxy voting and unit rule. This seems to the court to be begging the question rather than proving the existence of some other adequate remedy.

In Utility Blade and Razor Co. v. Donovan , 33 N.J. Super. 566 (App. Div. 1955) the Appellate Division, speaking through Judge Clapp, commented:

" N.J.S. 2 A:16-52 authorizes declaratory relief 'whether or not further relief' -- that is, damages, specific performance, or any remedy not merely declaratory in character -- 'could be claimed.' Accordingly, by the decided weight of authority, a declaratory action is now held to be ...

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