[128 NJSuper Page 580] Plaintiff is the present mayor of the City of Paterson under a unique form of government which has been declared by our courts to be invalid. In an election held May 14, 1974 he was a candidate for mayor under a changed form of government scheduled to commence on July 1, 1974. In that election plaintiff Thomas Rooney received 12,699 votes and defendant Lawrence Kramer received 12,860. The other three candidates for mayor received 2,779 votes altogether. A recount obtained by plaintiff confirmed these results. He now brings this action in lieu of prerogative writs to require a run-off election due to the fact that
neither he nor Kramer received a majority of the total votes cast.
The form of government under which plaintiff has been serving as mayor was declared unconstitutional and invalid on July 6, 1972 in the case of Mason v. Paterson, 120 N.J. Super. 184 (Law Div. 1972), aff'd 62 N.J. 471 (1973). However, it was extended from time to time in order to allow the choice of a new form of government and the election of new municipal officers under the changed form of government. The last extension is scheduled to expire on July 1, 1974, at which time the duly elected officers under the new form of government are scheduled to take the oath of office.
At the general election of November 1972 the electorate approved the selection of a charter study commission under the Faulkner Act (N.J.S.A. 40:69A-1 et seq.) and elected five charter commissioners. At the following general election of November 1973 the electorate, by a vote of 9710 to 3841, approved the plan recommended by the charter study commission, namely Mayor-Council Plan D, a nonpartisan type of government.
For reasons which will be developed hereinafter, the complaint urges in the alternative that if the court does not order a run-off election, it should require a new referendum on the form of government to be established in the City of Paterson, and allow the invalidated form of government with plaintiff as mayor to continue until a new referendum can be accomplished and new municipal officials elected. The only other candidate who has instituted an affirmative action to require a run-off election is Ramon Carrion, who finished in fourth place for one of the three councilman-at-large positions. His case was orally argued with this one.
With regard to the run-off problem, N.J.S.A. 40:69A-161, which was originally enacted in 1950 provides for run-offs generally in nonpartisan municipal elections when a candidate does not receive a majority of the votes cast. The only nonpartisan plans originally excepted from the run-off requirement were certain municipalities operating under
Small Municipal Plans A and B. These exceptions are to be found in N.J.S.A. 40:69A-118 and N.J.S.A. 40:69A-136 which were also enacted in 1950.
Subsequently, however, in 1956 the Legislature enacted N.J.S.A. 40:69A-161.1, which eliminated the necessity for a run-off in any municipality under Mayor-Council Plan A or D by providing that "the candidates receiving the greatest number of votes cast shall be elected to the respective offices."
If N.J.S.A. 40:69A-161.1 is a valid enactment, no run-off election should be required in Paterson which will operate under Plan D. The New Jersey Supreme Court has already dealt with the question of the constitutionality of N.J.S.A. 40:69A-161.1 in Batistich v. Brennan, 45 N.J. 533 (1965). This court is of the opinion that the decision in that case clearly upholds the constitutionality of the statute as far as its prospective effect is concerned, although it does hold that it would be unconstitutional to apply it retroactively to any municipality, the form of government of which was adopted prior to 1956 when N.J.S.A. 40:69A-161.1 was passed. It held that retroactive application would create the vice of special legislation as it would at the time have applied to only two municipalities, but it also held that prospective legislation would be unobjectionable as it would be general in nature.
Although the decision in Batistich is clear enough, the headnote in the report is misleading. In subheading 3 it is stated flatly that "the act is unconstitutional as special legislation," and it then compounds the error by referring to Justice Haneman's persuasive concurring opinion as a dissent. In New Jersey Statutes Annotated the annotation to N.J.S.A. 40:69A-161.1 repeats the misleading language of the headnote.
This points up the danger to a lawyer in relying on a headnote. A careful reading of the opinion in Batistich sustains the constitutionality of the statute when applied prospectively, and ...