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Friends of Governor Tom Kean v. New Jersey Election Law Enforcement Commission

Filed: February 2, 1989.

FRIENDS OF GOVERNOR TOM KEAN, THE AUTHORIZED COMMITTEE FOR THE RE-ELECTION OF GOVERNOR THOMAS H. KEAN, PLAINTIFF-RESPONDENT,
v.
THE NEW JERSEY ELECTION LAW ENFORCEMENT COMMISSION, AN AGENCY OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT. JOSEPH AZZOLINA AND JOAN SMITH, PLAINTIFFS-RESPONDENTS, V. THE NEW JERSEY ELECTION LAW ENFORCEMENT COMMISSION, AN AGENCY OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 203 N.J. Super. 523 (1985).

Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, and Garibaldi join in this opinion.

Per Curiam

On September 27, 1985, we entered a summary order of disposition in this matter invalidating certain actions of the Election Law Enforcement Commission (ELEC). 102 N.J. 325. ELEC's actions would have allocated to Governor Thomas H. Kean's reelection campaign certain expenses of legislative candidates. The effect of the allocation would have been to limit the campaign spending that Governor Kean could make under our public financing laws. We unanimously agreed that the allocations should not be made. For completeness of the record, we now furnish a more detailed statement of the reasons that led us to that result.

Four members of the Court were of the view that the allocations were invalid as in excess of the statutory authority of ELEC. Two members of the Court, Justices Handler and

O'Hern, believed that although it was premature to adjudicate the invalidity of the allocations, the election had to proceed, and the only fair solution was not to allocate the contested expenses to Governor Kean's reelection campaign pending the outcome of the case. They concur in the result of our opinion. (We shall use the present tense in referring to our prior order of disposition.)

I.

Specifically, we examine a pattern of rulings made by ELEC, the administrative body entrusted with enforcing the New Jersey Campaign Contribution and Expenditures Reporting Act, N.J.S.A 19:44A-1 to -44. Our references herein are to the statutes and regulations in effect at the time of our decision. The general plan of the relevant portion of thin law is to provide public financing for primary and general election campaigns for the office of Governor, conditioned on a candidate's acceptance of campaign expenditure limits. The purposes of that part of the law are clear: to mitigate the corrupting effect of money on the electoral process, and to enable "persons of limited financial means . . . [to] seek election to the State's highest office." N.J.S.A. 19:44A-27. By virtue of its role within the statutory scheme, ELEC faced the task of monitoring gubernatorial elections. Because such elections take place alongside many non-gubernatorial races in the context of a partisan, party-based political system, the agency confronted a specific problem: how to preserve the integrity of the limit on expenditures by a publicly-financed gubernatorial candidate in light of expenditures by non-gubernatorial candidates that appear to benefit the gubernatorial candidate, directly or indirectly.

In a 1981 Advisory Opinion, Advisory Opinion 33-1981 (hereafter AO 33-1981), ELEC decided to allocate to the gubernatorial candidate's expenditure limit a percentage of advertising expenditures made by a non-gubernatorial candidate of the same party that in certain ways mentioned or advocated the

election of the gubernatorial candidate. By virtue of that Advisory Opinion, sums of money spent by non-gubernatorial candidates -- apparently even without a showing of prior knowledge, consent, authorization, or control by the gubernatorial candidates -- would be allocated to the gubernatorial candidates and charged against their expenditure limits as if the gubernatorial candidates spent the money themselves. The effect, given the statutory limit on total permitted gubernatorial expenditures, would be to reduce, by that amount, the sum permitted to be spent on the gubernatorial candidate's own campaign.

The validity of AO 33-1981 was questioned in 1985 by Republican candidates for the Assembly and by Governor Kean's campaign committee. They asked ELEC either to revise or rescind that part of the opinion imposing "financial reporting and allocation consequences" whenever a legislative candidate mentions the Governor in campaign advertising. In Advisory Opinion 10-1985 (hereafter AO 10-1985), ELEC adhered to its 1981 position after considering both written and oral argument on the issue.

Thereafter, respondents, Friends of Governor Tom Kean (the campaign committee for the reelection of Governor Kean, a Republican), and Joseph Azzolina and Joan Smith (Republican candidates for the Legislature), challenged ELEC's interpretation of the law in connection with the 1985 election. Although not a party before this Court, the campaign committee for Peter Shapiro, the Democratic candidate for governor, participated at the agency level and filed a letter brief with the Appellate Division below, in support of ELEC's position. The court below held in favor of respondents and invalidated the agency's allocation rule. 203 N.J. Super. 523 (1985). We granted certification, 102 N.J. 319, on September 17, 1985.

We consider two issues. First, did the Legislature intend that ELEC have the power to allocate expenditures by a non-gubernatorial to a ...


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