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Schundler v. Paulsen

May 09, 2001

BRET SCHUNDLER, PLAINTIFF-APPELLANT,
v.
GLENN R. PAULSEN, GEORGE R. GILMORE, RICHARD H. BAGGER, DEFOREST B. SOARIES, NEW JERSEY SECRETARY OF STATE, MICHAEL J. GARVIN, ATLANTIC COUNTY CLERK, KATHLEEN A. DONOVAN, BERGEN COUNTY CLERK, PHILLIP E. HAINES, BURLINGTON COUNTY CLERK, JAMES BEACH, CAMDEN COUNTY CLERK, ANGELA F. PULVINO, CAPE MAY COUNTY CLERK, GLORIA NUTO, CUMBERLAND COUNTY CLERK, PATRICK MCNALLY, ESSEX COUNTY CLERK, JAMES HOGAN, GLOUCESTER COUNTY CLERK, JANET E. HAYNES, HUDSON COUNTY CLERK, DOROTHY K. TIRPOK, HUNTERDON COUNTY CLERK, CATHERINE DICOSTANZO, MERCER COUNTY CLERK, ELAINE FLYNN, MIDDLESEX COUNTY CLERK, M. CLAIRE FRENCH, MONMOUTH COUNTY CLERK, JOAN BRAMHALL, MORRIS COUNTY CLERK, M. DEAN HAINES, OCEAN COUNTY CLERK, RONNI NOCHIMSON, PASSAIC COUNTY CLERK, GILDA T. GILL, SALEM COUNTY CLERK, R. PETER WIDIN, SOMERSET COUNTY CLERK, ERMA GORMLEY, SUSSEX COUNTY CLERK, JOANNE RAJOPPI, UNION COUNTY CLERK, TERRENCE D. LEE, WARREN COUNTY CLERK, AND SHARON YOUNG, DIRECTOR OF ELECTION LAW ENFORCEMENT COMMISSION, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Mercer County, MER-L-001296-01.

Before Judges Baime, Wallace, Jr., and Carchman.

The opinion of the court was delivered by: Baime, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued on an emergent application May 8, 2001

This case involves a challenge by Bret Schundler, a candidate for the Republican nomination for Governor, to the constitutionality of L. 2001, c. 73 (Chapter 73). Chapter 73 changes the date for the upcoming 2001 primary election from June 5 to June 26, increases public matching grants and expenditure limits for gubernatorial candidates, allows a vacancy committee to substitute a successor gubernatorial candidate for a candidate who dies or resigns as long as such substitution is certified not later than forty-eight days prior to the primary election, and permits legislative candidates who have not previously filed petitions to enter the primary race.

Appellant contended in the Law Division, and continues to argue here, that Chapter 73 is invalid because it constitutes: (1) impermissible retroactive legislation impairing his vested rights, (2) special legislation aimed at assisting respondent- intervenor Robert Franks, who was substituted for Acting Governor Donald DiFrancesco in the gubernatorial primary, and (3) a violation of his fundamental right to a level playing field in the electoral process. These arguments were considered and rejected by Judge Linda Feinberg in a thorough and well reasoned opinion. We affirm for essentially the reasons she expressed.

I.

We recount only the salient facts. Chapter 73 was passed by both houses of the Legislature and signed into law by Acting Governor Donald DiFrancesco on April 23, 2001. As we noted, the new law delayed the primary election date for the year 2001 from June 5 to June 26. The articulated objective of the statute was to adjust the primary election date to ameliorate problems caused by the later than usual delivery of the official dicennial census and the resulting legal challenges arising out of the legislative redistricting plan adopted by the New Jersey Appointment Commission. L. 2001, c. 73, § 1b. The legislative intent was to promote greater voter participation in both the gubernatorial and legislative primary elections.

In addition to postponing the primary election, the new law contains three provisions that are central to this case. First, Section 3b(2) of Chapter 73 retains the requirement under N.J.S.A. 19:23-12 that a gubernatorial candidate who withdraws from the election as a result of death or resignation may be replaced no later than forty-eight days prior to the primary election. N.J.S.A. 19:23-12 permits a vacancy committee to select a successor candidate under these circumstances by filing a certification of substitution. Because Chapter 73 alters the date of the primary election, it requires the vacancy committee to select a substitute candidate by May 9. Further, Section 5 of Chapter 73 permits a candidate substituted pursuant to N.J.S.A. 19:23-12 to qualify for matching public funds by filing a timely application with the Election Law Enforcement Commission. A qualified substitute candidate is entitled to obtain the full matching grant available without subtracting the amount spent by his or her predecessor. Finally, Chapter 73 increases both the maximum amount that any qualified candidate may receive from the fund from $2,300,000 to $3,700,000, and the 2001 spending limit for any qualified candidate from $3,800,000 to $5,900,000. L. 2001, c. 73, §§ 3g and 4.

Acting Governor DiFrancesco withdrew his candidacy for the Republican nomination for governor on April 25, 2001. On the same day, the DiFrancesco vacancy committee selected former United States Representative Robert Franks as a successor candidate. Franks subsequently accepted the nomination, and the certificate of substitution papers were filed with the Division of Elections on April 26, 2001.

On April 26, 2001, appellant filed a complaint and an order to show cause seeking temporary restraints against the vacancy committee, the Secretary of State, and the county clerks of each county in New Jersey. More specifically, appellant sought to enjoin the DiFrancesco vacancy committee from designating Franks as DiFrancesco's replacement. Appellant also requested a declaratory judgment. On April 27, 2001, Judge Feinberg denied appellant's application for a temporary restraining order. On May 4, 2001, the judge conducted a hearing regarding appellant's remaining claims. Following the hearing, the judge denied appellant's application for injunctive relief and entered judgment in favor of respondents. The judge also granted Franks motion for intervention.

Appellant filed a notice of appeal that same day. Because the date for certification of candidates was looming, we accelerated this appeal. We now decide the issues presented.

II.

Certain prefatory comments are in order. We deal here with the arcane subject of New Jersey's election laws. These highly detailed statutes are not easy to digest. The reasons are several. Perhaps the most prominent cause of this complexity is the fact that these laws have evolved over the years to meet specific problems and address narrow issues. The statutes thus provide a fertile field for highly ...


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