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Mosely v. Kates

Decided: April 16, 1974.


Fulop, J.s.c.


[128 NJSuper Page 26] This action was instituted by citizens and residents of the City of Summit against the municipality and the city clerk to have the apportionment of the city declared

unconstitutional and to require the adoption of some other plan which would provide more just representation in municipal affairs to plaintiffs and others who live in the same area as they do.

The City of Summit was incorporated in 1899 under a statute (L. 1899, c. 52) now, as supplemented, an act saved from repeal, N.J.S.A. 40:109-3(1) to 40:109-3(102), applicable to cities having a population of less than 12,000. The statute was inoperative in any such city until adopted by a majority of the voters. The statute was adopted in Summit on April 11, 1899 by 804 votes in favor and 163 against. Only one other city in the State, Englewood, adopted the statute.

According to the 1970 census, the City of Summit has a population of 23,620. Its area is 6.01 square miles. It is still operating under the 1899 charter.

Plaintiffs live in a section of the city which they refer to as "East Summit," a popular designation for an undefined area in the eastern portion of the city. Plaintiffs allege that East Summit is composed of former voting districts 9, 10, 11, 12 and 13. At least one witness disagreed with this definition, expressing the view that old district 9 is not a part of East Summit. In any event, these designations have been superseded by a redistricting plan adopted in February 1973 and first utilized in the 1973 elections.

From 1899 to 1973 the city was divided into two wards separated by the Erie-Lackawanna Railroad tracks. The 1970 census showed that there were 9,376 residents in Ward I and 14,244 residents in Ward II. This action was instituted on October 24, 1972. On January 30, 1973 the Common Council of the City of Summit adopted an ordinance providing for the appointment of a commission pursuant to N.J.S.A. 40:44-1 to 40:44-8, inclusive, to change the lines and boundaries of the two wards to equalize the population therein. The ordinance provided for the retention of two wards.

The mayor appointed two registered Republicans and two registered Democrats to the Commission, as provided in N.J.S.A. 40:44-2. Under N.J.S.A. 40:44-6 the mayor is authorized to call a meeting of the commissioners and to break a tie vote if one should occur.

The mayor and the two Republican commissioners submitted a plan under which each of the two wards would have exactly the same number of voters as shown in the 1970 census, and this became the official apportionment. The minority members dissented and offered other plans which perhaps would have provided greater representation for East Summit.

What plaintiffs designate as East Summit now falls in Districts 1, 2, 3, and 4 and part of Districts 5 and 6 in the Second Ward, and District 2 of the First Ward. According to the statistics furnished by plaintiffs, the population of East Summit is 5,461. Of these 1,460 or 27% are now in Ward I and 4,001 or 73% in Ward II. The total population of each ward is (or was as of the date of the redistricting) 11,810, or one-half of the city population.

As heretofore, there are seven members of city council -- three members are elected from each of the two wards, one each year for three years. One councilman is elected from the whole city at large for a 2 year term. The mayor is elected at large for a four-year term. These officeholders receive no salary. At present all are and have long been Republicans.

In November 1973 there were 13,605 registered voters in the city, of whom approximately 7,049 voted (two districts in Ward I are missing from the figures in evidence). In Ward I there were 6,752 registered voters of whom approximately 3,646 voted. In Ward II there were 6,853 registered voters of whom 3,863 voted.

Governor Byrne, the Democratic candidate, carried every district in the city. The vote for councilman-at-large totaled 3,752 for the Republican candidate and 3,408 for the Democratic candidate. The vote for member of the common council

from the First Ward was 1,943 for the Republican and 1,661 for the Democrat. In the Second Ward, the vote was 1,993 for the Republican and 1,644 for the Democrat. The East Summit districts were generally carried by the Democratic candidates.

The statistics presented from census records show that the population of Census Tract 380, most of East Summit, includes 14.3% of black citizens while the rest of the city has only 3.1% of black persons. In the same tract 42.4% are foreign-born or second generation Americans, while the rest of Summit has only 28.7% of such residents. In Tract 380, 52.8% are high school graduates while in the rest of the city 79.9% are. Incomes and property values are lower in Tract 380 than in the rest of Summit as a whole.

Comparisons are between medians and means in Tract 380 and in the rest of the city. The evidence establishes that there are people and residences in many parts of the city in the same classifications as in East Summit as to ...

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