D'Annunzio, J.c.c. (temporarily assigned).
These consolidated actions, arising out of the June 1978 primary election for the nomination of candidates for the office of Mayor of the Borough of Califon, raise issues of first impression, including one of constitutional dimensions.
The matters are before the court on motions for summary judgment, and the facts have either been supplied by affidavit or have been stipulated by the parties.
Marie Koch and Roy Wimmer were on the Republican ballot. Mrs. Koch won. There was no candidate on the Democratic ballot, but Mrs. Koch received a majority of Democratic write-in votes authorized by N.J.S.A. 19:15-28 and N.J.S.A. 19:23-47. Wimmer also received Democratic write-in votes.
Mrs. Koch's name appeared on the Republican ballot as the result of a nominating petition, pursuant to N.J.S.A. 19:23-5 et seq. As required by those statutes, the petition contained Mrs. Koch's signed acceptance of the Republican nomination in the event she won the primary. The petition and acceptance are one document which was executed on April 24, 1978, a copy of which is appended to the opinion. At no time did Mrs. Koch revoke her Republican acceptance or decline the Republican nomination.
N.J.S.A. 19:23-16 requires that any person nominated by write-in file a certificate of acceptance within seven days of the primary election. On June 9, 1978 Mrs. Koch filed a document, a copy of which was submitted to the court as part of the affidavit of Mildred Larason. At oral argument the court also had the document marked as C-1 in evidence,
and a copy is appended to this opinion. The threshold issue is whether C-1 constitutes an acceptance of the Democratic write-in nomination. Plaintiff Hand, chairperson of the Hunterdon County Democratic Committee, contends that it does not constitute an acceptance, and therefore there is a vacancy in the Democratic nomination for mayor within the meaning of N.J.S.A. 19:13-20, which can be filled by the Califon members of the Democratic County Committee. Plaintiff Wimmer takes the same position. Defendant Larason, the Hunterdon County Clerk, takes the position that C-1 constituted an acceptance; therefore, no vacancy exists. The county clerk has, accordingly, informed the parties that she will not recognize any Democratic nominee chosen by the Democratic County Committee to fill any alleged vacancy.
Plaintiff Hand further sharpens her position by contending that C-1 is, in reality, an election by Koch under N.J.S.A. 19:14-9 to have her name placed in the Republican column on the general election ballot. That section provides that a candidate who receives more than one nomination for the same office may have his name in only one party column, to be selected by him in writing within seven days after the primary election. If the candidate does not select, the county clerk shall do so.
Alternatively, plaintiff Hand argues that C-1 cannot legally be an acceptance of the Democratic nomination, because Koch had accepted the Republican nomination for the same office, and no person in New Jersey can legally accept the nomination of more than one party for the same office.
Plaintiff Wimmer, in addition, states that if there is a vacancy in the Democratic nomination he would like to fill it but is not qualified, because he cannot fulfill certain conditions set forth in N.J.S.A. 19:13-20(e). He contends that these conditions are unconstitutional in light of Nagler v. Stiles , 343 F. Supp. 415 (D.N.J. 1972), and Kusper v. Pontikes , 414 U.S. 51, 94 S. Ct. 303, 38 L. Ed. 2d 260
(1973). Specifically, Wimmer concedes that he cannot satisfy the specific condition that the person filling the vacancy not have voted in another party's primary in the last two elections, because he, Wimmer, has so voted in Republican primaries.
N.J.S.A. 19:13-20 prescribes a method of candidate selection "[i]n the event of a vacancy, howsoever caused, among candidates nominated at primaries * * *." Fiscella v. Nulton , 22 N.J. Super. 367 (App. Div. 1952), held that the winner of a primary by write-in votes has been nominated and that the nominee's failure to file an acceptance constitutes a vacancy within the meaning of N.J.S.A. 19:13-20. Therefore, if Marie Koch did not file a valid acceptance of the Democratic write-in nomination, there exists a vacancy which may be filled by the statutory procedure.
It is the opinion of this court that no valid acceptance was filed by Mrs. Koch. There is no express statutory authorization which would allow any candidate to accept the nomination of more than one party for the same office. Neither is there a clear express statutory prohibition which would preclude dual acceptance. However, the election laws must be read in pari materia; therefore, their intent must be gathered from the whole of the context. Fiscella v. Nulton, supra.
Candidates may be nominated for inclusion on the ballot at the general election either directly by petition as so-called independents or by participation in a party primary and nomination therein by majority vote. N.J.S.A. 19:13-1. With regard to direct nomination by petition, N.J.S.A. 19:13-4 provides "no such petition shall undertake to nominate any candidate who has accepted the nomination for the primary for such position." N.J.S.A. 19:13-8 prohibits a candidate from accepting a direct nomination "if he has signed an acceptance for the primary nomination or any other petition of nomination under this chapter for such office." N.J.S.A. 19:23-15 complements these provisions. It provides that no person who has accepted a nomination
by direct petition shall accept a petition of nomination for a party primary.
These statutes evince a legislative intention that a prospective candidate must choose between participation in a party primary and direct nomination by petition as an independent. The candidate cannot have both. This legislative intent was applied and enforced in Sadloch v. Allan , 25 N.J. 118 (1957), where the court held that a defeated primary candidate could not be placed on the ballot in the general election as a substitute for a candidate who had been nominated by direct petition but who had died before the general election. In its opinion the Supreme Court reviewed the history of the election laws bearing upon the issue and found a "legislative design to protect the integrity of the nominating process at primary elections and to withhold the privilege of inclusion on the ballot printed at public expense of the name of a person who assumes the cloak of an independent candidate after professing membership in a particular party adherence to its general principles, and on that basis seeking the designation as a standard bearer of the party for elective office." 25 N.J. at 124. But cf. Riecker v. Hartmann , 130 N.J. Super. 266 (Law Div. 1974), which held that a person defeated for the Republican nomination in the Republican primary could accept the Democratic nomination based on write-in votes and be on the ballot as a Democrat in the general election. Riecker differs from the case at bar, because Mrs. Koch won and accepted the Republican nomination.
In Kilmurray v. Gilfert , 10 N.J. 435 (1952), the court rejected an attempt by the Republican nominee to prevent the Democrats from filling a vacancy occasioned by the death of its nominee. The vacancy statute, by its terms, was applicable only to vacancies occurring at least 37 days before the general election. The nominee had died within 35 days of the election. Nevertheless, and because of the importance attached by the court to a functioning two-party system, the court upheld the filling of the vacancy, stating:
It is in the public interest and the general intent of the election laws to preserve the two party system and to submit to the electorate a ballot bearing the names of candidates of both major political parties as well as of all other qualifying parties and groups. It would be contrary to that interest and intent effectively, even if not theoretically, to deny the right of one of the major political parties to place a candidate's name before the electorate. * * * [at 441]
While Kilmurray and Sadloch do not control the decision in the case at bar because of their distinguishable factual contexts, they instruct us that the public interest, as it is served by the multiparty political system, is a lodestar to the ...