Before Judges Kleiner and Braithwaite.
The opinion of the court was delivered by: Braithwaite, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued August 27, 1999
On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County.
On August 5, 1999, plaintiffs New Jersey Conservative Party and three of its individual members who are candidates for elective office in the 1999 general election, *fn1 filed a certified complaint for declaratory and injunctive relief seeking to enjoin defendants, county clerks, from drawing separate political party columns for the Democratic and Republican parties on the official ballot for the 1999 general election. See N.J.S.A. 19:5-1. Defendant John J. Farmer, Jr., the Attorney General, was sued in his official capacity because the functions, powers, and duties of the Secretary of State under the election laws were transferred by the Governor to the Department of Law and Public Safety under the Executive Reorganization Act, N.J.S.A. 52:14C-1 to -11. Plaintiffs sought a declaration that neither the Republican nor Democratic party qualified as a political party for purposes of "a party column on the official ballot" at the 1999 general election. N.J.S.A. 19:5-1.
Plaintiffs' complaint was accompanied by an order to show cause that sought to restrain the county clerks from performing the statutorily required drawing "to determine which columns the political parties" would occupy on the 1999 general election ballot. N.J.S.A. 19:14-12. The Chancery Division Judge denied plaintiffs' requests for restraints on August 9, 1999. The Judge, however, scheduled a subsequent hearing on the merits of plaintiffs' claim for declaratory relief for August 23, 1999. Defendants were granted an opportunity to submit additional written opposition and to move for affirmative relief such as dismissal of plaintiffs' complaint.
The Attorney General moved to transfer venue and, in the alternative, moved for summary judgment dismissing plaintiffs' complaint. The motion for change of venue was adjourned until October 10, 1999 and the motion for summary judgment was denied. The Judge, however, granted partial summary judgment to plaintiffs declaring:
(1) that the votes cast at the Republican 1999 primary for candidates for the General Assembly did not exceed 10% of the total votes cast for candidates for the General Assembly in the 1997 general election;
(2) that the votes cast at the Democratic 1999 primary for candidates for the General Assembly did not exceed 10% of the total votes cast for candidates for the General Assembly in the 1997 general election;
(3) that, as a result of paragraphs (1) and (2) above, and in accordance with N.J.S.A. 19:5-1, neither the Democratic nor Republican Parties are entitled to have a party column but shall be referred to in the ballots for the 1999 general election in accordance with the following provision of N.J.S.A. 19:5-1:
In such cases the names of the candidates nominated at the primary election shall be printed in the column or columns designated "Nomination by Petition" on the official ballot under the respective titles of office for which the nominations have been made, followed by the designation of the political party of which the candidates are members.
Further, the Judge declared that any action taken by the county clerks inconsistent with his order was void and enjoined the clerks from taking any further action with respect to preparing the 1999 general elections ballot that was inconsistent with his order.
The defendants moved for leave to appeal, which we granted. We summarily reversed the partial declaratory judgment and reserved the right to prepare a written opinion.
The parties and the Chancery Judge agreed that the resolution of the issue raised by plaintiffs rested on the interpretation of ...