This matter arises by way of a verified petition of the County Clerk of Hudson County. Petitioner seeks the court's approval of the anticipated action of the county clerk to transfer from column C to column B on the primary ballot for the election on June 7, 1977 the names of Frank Rogers, a candidate for the State Senate, and Michael Adubato and John Cali, candidates for the State Assembly (hereinafter collectively the candidates), as requested in writing by these candidates.
A complaint and order to show cause was also filed by John Tomasin, campaign manager for column C, whereby an order is sought prohibiting this transfer of the candidates and for an order substituting Dominick J. Pugliese on the primary ballot for the office of Sheriff of Hudson County in place of Frederick W. Stevens, who has withdrawn his candidacy.
By consent of all the parties these two proceedings were consolidated and heard together.
The county clerk represents that since Paul T. Jordan has withdrawn his candidacy for the office of Governor of New Jersey and since he headed column C, the candidates no longer wish to remain in that column and have requested in writing that their names be transferred to column B which is headed by Ralph C. DeRose as candidate for the office of Governor. Admittedly, Jordan has publicly declared his support for Brendan T. Byrne, a candidate for Governor who is listed under column A. It is further represented that the candidates are not supporting candidate Byrne and are supporting candidate DeRose. In fact, some of these candidates appear on the DeRose line in another county. It is argued that if the transfer were allowed by the court, certain confusion that might very well exist in the minds of the voters would be eliminated and that they would not be misled, as they might be if the candidates remain in column
C. Candidate DeRose has consented in writing to this transfer.
Petitioner argues that as county clerk he is charged with the responsibility of preparing the official ballots. N.J.S.A. 19:14-1. With respect to the requested transfer of the candidates, the county clerk asserts that there is no statutory expression as to whether he has the power to permit this transfer and therefore he has the discretionary authority to grant this request. See Hawks v. Gates , 129 N.J.L. 5, 11 (Sup. Ct. 1942).
Furthermore, the county clerk points out that by reason of such transfer there will be no discrimination or prejudice to the other candidates, and argues that a transfer by him at this time would not be clearly unreasonable. Richardson v. Caputo , 46 N.J. 3, 9 (1965).
On the other hand, the opposition maintains that there is clear and unambiguous statutory authority on this subject by which the county clerk's actions are governed. Furthermore, the opposition argues that the proposed transfer is not only a transfer from one column to another or only a removal or withdrawal therefrom, but is also the filling of a vacancy.
I conclude that there is merit to the arguments of the opposition and that the county clerk under the circumstances of this case does not have the discretionary authority to grant the requested transfer.
Admittedly, the county clerks have a large measure of discretion in arranging the primary election ballot. However, where there is clear statutory direction of a specific procedure to be followed, the county clerk is governed thereby and has no discretionary authority. See In re Hoffman , 134 N.J.L. 155 (Sup. Ct. 1946); Bado v. Gilfert , 13 ...