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Mays v. Penza

Decided: January 12, 1981.


Steedle, J.s.c.


Plaintiffs in the present action seek a determination that the nomination by the defendant Atlantic County Democratic Party officials of defendant Thomas Penza as a Democratic candidate for the unexpired term of an Egg Harbor City council seat based upon defendants' purported failure to comply with provisions of N.J.S.A. 19:27-11 and N.J.S.A. 19:13-20 is void.

The relevant facts in this case are largely uncontroverted. On or about August 22, 1980, incumbent Egg Harbor City councilman Donald Anderson, a Democrat, resigned his seat, the term of which expired on December 31, 1980. Since Mr. Anderson was a member of the Egg Harbor City "governing body" as defined by N.J.S.A. 40A:16-2(a), his resignation created a vacancy pursuant to the express provisions of N.J.S.A. 40A:16-3(f). Given the timing of the resignation with respect to the expiration of the term of office at issue, N.J.S.A. 40A:16-5(b) directs that such a vacancy shall be filled the next general election. Since the vacancy in the office at issue occurred subsequent to the 1980 New Jersey primary election, the Atlantic County Republican and Democratic parties nominated candidates for the vacant council seat pursuant to the authority afforded by N.J.S.A. 19:13-20.

Both of the candidates for the seat at issue were incumbent Republican Egg Harbor City councilmen occupying seats whose terms expired on December 31, 1980; both candidates had chosen not to stand for renomination in the 1980 primary elections for their respective seats. Given his availability, plaintiff Mays was apparently nominated as the Republican candidate for the unexpired term of the Egg Harbor City council seat. Similarly, on October 1, 1980, defendant Penza changed his party affiliation from Republican to Democrat; he was nominated as the Democratic candidate for the same seat, that

nomination being certified to the Atlantic County Clerk by Atlantic County Democratic Party Vice-Chairman Lincoln Green.

The gravamen of plaintiffs' complaint is two-fold. First, plaintiffs contend that the certification of candidacy filed by Vice-Chairman Green is not in compliance with the provisions of N.J.S.A. 19:27-11 and N.J.S.A. 19:13-20(d)(2) which provide that said filing is to be made by the county party chairman. Secondly, plaintiffs aver that the statement of candidate Penza which was filed in compliance with the mandates of N.J.S.A. 19:13-20(d) did not comply with the statutory requirement. It is uncontroverted that defendant Penza's statement did not contain language indicating "that he has not voted in a primary election of any other political party in the last two primary elections, or contributed to the campaign funds of any other political party within one year prior to the last primary election, . . ." as specified by statute.

Initially in this litigation, plaintiffs sought to enjoin the candidacy of defendant Penza and further sought to have his name struck from the official ballot as published for the November 4, 1980 general election. On the return date of the order to show cause in this matter, defendants challenged the constitutionality of the subject statutes in this litigation under both the United States and the New Jersey Constitutions. Wishing to afford the electorate of Egg Harbor City a choice of viable candidates, this court denied the injunctive relief requested. In its order of October 28, 1980, 179 N.J. Super. 175, this Court did, however, direct that in the event defendant Penza was the successful candidate in the general election, his swearing in and assumption of office was stayed pending a full resolution of the merits in this action. Following a recount of ballots with respect to the subject council seat conducted pursuant to a related suit in this matter which has now been consolidated with the present action, it was determined that each of the two candidates received 707 votes for their respective candidacies; that result having been stipulated to by all parties.

Given the tie vote, defendants, on the morning scheduled for trial, moved to dismiss the present action as moot. Defendants maintain that the provisions of N.J.S.A. 40A:16-16 are applicable to the present case; said statute provides:

Whenever the office of Mayor or of member of governing body shall be declared or deemed vacant pursuant to R.S.9:3-25, the municipal clerk shall forthwith fix the date for a special election to fill that office for its term or unexpired term, as the case may be, to be held 45 days from the date upon which the office was so declared or deemed to be vacant.*fn1

In order for the above statute to be operative, a vacancy must exist within the meaning of N.J.S.A. 19:3-25, specifically that "when an equal number of votes shall have been given to two or more persons to fill any office for which they shall by law be qualified , the office shall be deemed to be vacant." Plaintiffs contend that defendant Penza's purported failure to comply with the provisions of N.J.S.A. 19:13-20(e) renders him unqualified for office within the meaning of N.J.S.A. 19:3-25 and that a vacancy does not therefore exist for purposes of this statute. This court wishes to emphasize that the constitutionality of a New Jersey statute is at issue in the present litigation. It is a long standing judicial policy that constitutional questions shall not be addressed unless they are squarely before the court and there exists no other basis upon which to render a decision. Donadio v. Cunningham , 58 N.J. 309, 325-326 (1971); Ahto v. Weaver , 39 N.J. 418, 428 (1963); Sabato v. Sabato , 135 N.J. Super. 158, 166 (Law Div. 1975). For these reasons, this court has carefully considered the merits of defendants' motion to dismiss the present litigation.

The determination by this court in the present matter will affect not only the parties to the ...

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