On appeal from the Superior Court, Appellate Division.
For Reversal -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Wilentz, C.J.
[123 NJ Page 439] The Passaic County Republican Committee and the Bergen County Republican Committee selected plaintiff Frank Catania as their party's candidate to run in a special election for the New Jersey Assembly. As explained below, the primary that preceded the special election failed to produce a Republican candidate. The Republican County Committees took the position that such failure resulted in a vacancy that they were
empowered to fill. Therefore, after the primary they filled the vacancy by selecting plaintiff Catania as the Republican candidate for the Assembly in that special election.
The Secretary of State concluded that either a vacancy had not been created or, if one had been, it had not been filled in accordance with relevant statutes. If her position had been upheld, the special election for Assembly for that district would have presented the voters with no choice: the Democratic candidate's name would have been the only name on the ballot. We conclude that because providing the public with a choice between candidates is one of the most important objectives of our election laws, the Legislature could not have intended such a result.
In view of the then-impending special election, we announced our decision shortly after oral argument. This opinion explains that decision. In accordance with our decision, Mr. Catania's name appeared on the ballot as the Republican candidate. He won the election.
The vacancy that Mr. Catania filled came about in the following way. Senator Frank Graves, Jr. died during his term. Because Senator Graves was a Democrat, the Democratic County Committees were empowered to fill the vacancy. N.J.S.A. 19:27-11.2. Senator Graves' seat was filled by then-Assembly-man John Girgenti, and Girgenti's Assembly seat was filled by Cyril Yannarelli, pending a special election to produce a duly-elected Assemblyman. N.J.S.A. 19:27-11.1.
The primary for the special election for that Assembly seat was scheduled for June 5, 1990, the date of the regular primary for other offices throughout the state. The Democratic party had two names on the primary ballot, appearing there by virtue of petitions previously filed pursuant to N.J.S.A. 19:23-14. The Republican primary ballot, however, had no names because no petitions had been filed. Pursuant to N.J.S.A. 19:23-47, primary
voters can write in the name of a qualified person on a space provided on the ballot sheet, and their votes will be counted. If a write-in candidate gets more votes under those circumstances than any other write-in candidate for the nomination, that person becomes the party's Assembly nominee, unless he or she receives fewer than "the number of signatures required on a petition to place upon the primary election ballot the name of a candidate for that office, pursuant to [ N.J.S.A. ] 19:23-8." N.J.S.A. 19:14-2.1. And that is what happened here. There were two Republican write-in candidates, one of whom received seventy-five votes and the other a single vote. Neither candidate received enough write-in votes, since 100 signatures would have been needed for a primary petition pursuant to N.J.S.A. 19:23-8. Thus, no one was selected in the Republican primary as that party's candidate for the Assembly.
We had previously held in Fields v. Hoffman, 105 N.J. 262, 520 A.2d 751 (1987), that under those circumstances a vacancy existed as defined in N.J.S.A. 19:13-18, to be filled pursuant to N.J.S.A. 19:13-20, providing, generally, that the party's county committee shall select the candidate. After the primary, but before any steps had been taken by anyone to fill that vacancy, the Legislature passed L. 1990, c. 56, amending N.J.S.A. 19:27-11.1 and effectively overruling our holding in Fields. Under circumstances in which a write-in effort is attempted in the primary but the number of votes is not sufficient to elect any candidate, the amendment forecloses the party from thereafter selecting a candidate. It has the effect, in other words, of allowing the election to go forward without any candidate for that position from that party.
The applicability of the foregoing amendment is one of the issues before us, the Secretary of State taking the position that it applies to this case and that there is therefore no vacancy to be filled, plaintiff Catania taking the position that it was not intended to be retroactive. If there was a vacancy to be filled, N.J.S.A. 19:13-20(b)(1) provides that ...