Civil action in lieu of prerogative writ.
This matter is before the court on a complaint filed on May 21, 1970 by Anthony J. Giuliano, Calvin D. West, Michael A. Bontempo and Ralph A. Villani, who were candidates for councilman-at-large at the regular municipal election for the City of Newark held on May 12, 1970. Defendants are Harry S. Reichenstein, the city clerk of Newark, and Ramon Aneses, Earl Harris, C. Theodore Pinckney and Donald Tucker, who also were candidates for councilman-at-large in the May 12 election.
The basic issue for decision is whether the bracketing and designations of the candidates not eliminated in the May 12 election must remain exactly the same in the upcoming run-off election or whether there may be a new bracketing and change in designations. On May 20, 1970, one day before
the date fixed by the city clerk for the drawing of ballot positions for the run-off election to be held on June 16, 1970, the four plaintiffs filed a petition with the city clerk requesting that they be bracketed on the run-off ballot with a common designation, claiming the right to do so under N.J.S.A. 40:69A-155 and other pertinent statutes. The city clerk denied their petition and this suit was instituted. Upon application by plaintiffs, the court restrained the city clerk from drawing ballot positions and from the printing of ballots for the run-off election until Monday, May 25, 1970, the date fixed for hearing of the matter before the court. Such hearing has been held.
The facts are not in dispute. Pursuant to the Faulkner Act enacted in 1950 (N.J.S.A. , Title 40, c. 69A, Arts. 1 through 17), Newark has adopted the "Mayor-Council Plan C" form of municipal government as provided for in Article 5 of the statute (N.J.S.A. 40:69A-55 through 60.4). See Horwitz v. Reichenstein , 15 N.J. 6 (1954); Trugman v. Reichenstein , 27 N.J. 280 (1958). Under this plan the city is governed by an elected mayor and an elected council consisting of four councilmen-at-large and five ward councilmen, all of whom serve four-year terms and are elected at "regular municipal elections." See N.J.S.A. 40:69A-58 and 59.
Article 5 of the statute, which contains the provisions specifically relating to "Mayor-Council Plan C" municipalities, incorporates other provisions of the Faulkner Act, common to all optional plans provided for therein, including the provisions of Article 17 thereof relating to elections (see N.J.S.A. 40:69A-150 through 162), and these are the statutory provisions directly involved here. As is apparent from the following summary of their provisions, most of these sections set forth details specifically relating to regular municipal elections held in May, including a specific provision as to bracketing and designations, and there is only one section
dealing with run-off elections, which is quite general in its terms. A question is presented as to the extent to which the provisions governing the regular election also apply to the run-off.
N.J.S.A. 40:69A-150 provides that "regular municipal elections shall be held in each municipality on the second Tuesday in May in the years in which municipal officers are to be elected," and N.J.S.A. 40:69A-151 provides that "the municipal election shall be held at the same place or places and conducted in the same manner, so far as possible , as the general election."*fn1
N.J.S.A. 40:69A-153 provides that at least 46 days prior to a regular municipal election the names of candidates for all offices shall be filed with the municipal clerk and, together with N.J.S.A. 40:69A-154, sets forth in detail the manner in which candidates shall be nominated by petitions of voters. Nominations are made on an individual basis without any connection to bracketing of candidates or designations.
N.J.S.A. 40:69A-155 specifically permits bracketings and designations. It provides:
Any candidate whose name is to be printed on the ballot may petition the municipal clerk to print opposite his name on the ballot, a designation, in not more than six words, as named by him in such petition, for the purpose of indicating either an official act or policy to which he is pledged or committed, but the designation shall not indicate political party affiliations. On the filing of such petition the clerk shall cause the designation to be printed opposite the name of such candidate upon the ballot. If several candidates for the same office shall petition that their names be grouped together and that the one designation named by them shall be printed opposite their names, the clerk shall group their names in a bracket, and opposite the bracket shall print the same designation as aforesaid. Petitions requesting a designation or grouping of candidates shall be filed with the clerk on or before the last day fixed for filing the petition for nomination. If two candidates or groups select the same designation the clerk shall notify the candidate or group whose petition was last filed, and such candidate or group shall select a new designation.
N.J.S.A. 40:69A-156, relating to the order of appearance of names on ballots and to the drawing of lots for ballot positions, provides:
The municipal clerk shall draw lots to determine the order in which the names of the candidates or groups of candidates shall appear upon the ballots. The names of the person or group of candidates first drawn shall occupy first place on the ballot, or voting machine, and the name of the person or group of candidates next drawn shall occupy second place, and so forth. The manner of drawing by lot shall be as follows: Paper cards with the name of each candidate or group of candidates written thereon shall be placed in a covered box with an aperture in the top large enough to allow the cards to be drawn therefrom. The municipal clerk in the presence of any candidate shall draw from the box each card without knowledge on his part as to which card he is drawing. The municipal clerk shall at least two days prior to the drawing notify each candidate by registered mail of the time and place of the drawing. The candidate or his representative shall have the right to examine the cards prior to their being placed in the covered box.
N.J.S.A. 40:69A-157, relating to publication of names of candidates in newspapers, provides:
Within 10 days after the expiration of the time for filing certificates, statement and petitions for candidates, and the drawing for position, the municipal clerk shall cause the names of the candidates as they are to appear upon the ballots to be published in proper form once in each of 2 newspapers having the largest circulation in such municipality, and published in this state, provided, however, if there is a newspaper of general circulation published in the municipality, 1 of the 2 notices should be published in such newspaper although it is not of the 2 in greatest circulation.
N.J.S.A. 40:69A-159 contains specific provisions as to the form and printing of ballots and as to the distribution thereof by the municipal clerk to election officials at polling places.
N.J.S.A. 40:69A-159.1, which was not a part of the original Faulkner Act and was first enacted in 1959, provides for the counting of ballots and canvass of returns and provides, among other things, that on the day following the ...