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In re 1984 General Election for Office of Council of Township of Maple Shade

Decided: April 24, 1985.


Haines, A.j.s.c.



This opinion, amplifying a verbal decision resolving an election contest, addresses the question of whether the judge hearing the matter acts judicially, and may therefore employ customary judicial powers, or acts as a legislative agent who may employ only such powers as are conferred by statutes, strictly construed. Phrased differently, can it be said that courts have jurisdiction over election contests? That question must be answered because the contest raises significant issues not addressed by the Election Law, which can be resolved

properly only through judicial action. Those issues include: (1) the consequences that follow the rejection of election results in a single election district; (2) the structure and voter qualifications to be established for a new election; and (3) the withdrawal rights of candidates.

State v. Justices of Middlesex Cty., 1 N.J.L. 283 (Sup.Ct.1794), our earliest case on the subject, held that courts had jurisdiction and therefore acted judiciously in election matters. The New Jersey Constitution (1776) Art. IX then provided that "the governor and council (seven whereof shall be a quorum) be the court of appeals in the last resort in all causes of law as heretofore. . . ." This reflected English law, under which the Court of last resort was and is the House of Lords. 10 Lord Hailsham of St. Marylebone, Halsbury's Laws of England, 338 (4th ed. 1975). The case was appealed to that body, which reversed. A note that appears on the record of the case in the handwriting of the Chief Justice states:

On January 7, 1795, on error before governor and council, this judgment was reversed, 8 to 3. I have heard that the ground of this reversal was that the Supreme Court had no jurisdiction. Sed quere. [at 295].

This scant authority apparently provided subsequent courts with the reasons to hold that judges hearing election matters sat as legislative agents and could not act judicially. The theory has persisted in disregard of substantial constitutional and statutory changes which have occurred since 1794 when Justices of Middlesex was decided.

This court reaches an opposite conclusion.

The facts in the present case involve the Sixth Election District in the Township of Maple Shade, a municipality in Burlington County with 19 such districts. In the general election held on November 6, 1984, three persons were to be elected to the Township's five member Council.

The election, (after a recount ordered pursuant to N.J.S.A. 19:28-1 et seq. was completed) produced the following municipal-wide results:



Charles J. Ansert, Jr. 4144 votes

Richard F. Wild, Jr. 3811 votes

Ira W. Reese, III 3787 votes



Robert Fellner 3646 votes

Frank A. Troso 3822 votes

William Lindsey 3780 votes

Ira W. Reese, III, having been defeated by Frank A. Troso for the third seat on the council by only fourteen (14) votes, filed a petition contesting the latter's election pursuant to N.J.S.A. 19:29-2. The Democrat candidates, Fellner and Lindsey immediately filed a counter-petition contesting the election of all of the Republican candidates.

N.J.S.A. 19:29-1 provides that, the "election of any person to any public office . . . may be contested . . . e. [w]hen illegal votes have been received, or legal votes rejected at the polls sufficient to change the result. . . ." At the trial of the contest, numerous "legal" voters from the Sixth District in Maple Shade testified that they had been "rejected at the polls." The court concluded that more than 14 such voters had been so rejected, a number "sufficient to change the result."

"Rejections" were caused by the breakdown at approximately 3:20 p.m. of the single voting machine used in the Sixth District. An election official immediately called the Superintendent of Elections to report the problem. He dispatched a truck with a new machine. The truck broke down on the way and the machine was never delivered. Meanwhile, the district election board commenced using paper ballots, supplied to it for emergency purposes. However, its small supply of these ballots was soon exhausted and more ballots were requested from the Superintendent. He dispatched a substantial number by messenger who became lost, as a result of which the additional ballots did not arrive until about 5:30 p.m. A repairman attempted to fix the machine shortly after the breakdown without success. A second repairman was equally ineffective. The machine was quite old with sagging interior machinery, partly corrected prior to delivery by what one witness described as a

"broomstick" used for a prop. The machine was repaired eventually, but not until 6:50 p.m.

During the 3 hours and 30 minutes during which the machine was inoperative more than 14 legal voters left the polling place without voting. Some appeared there more than once but were not able to vote. Others became discouraged and left immediately after seeing the long waiting line and learning of the machine difficulty.

The use of emergency paper ballots presented additional difficulties. The voting machine constituted the only booth in which voting could take place in privacy. It was not useful for the purpose of marking paper ballots and, in any event, could not provide privacy since the curtains on the machine could not be closed. Consequently, the paper ballots were marked on tables placed in the open at the polling place or in an adjoining room. No effort was made to provide privacy although it was testified that no intrusions or interference had taken place while any paper ballot was being used. After the paper ballots were voted, they were placed in an envelope provided by the Superintendent of Elections and returned to the County Board of Elections. These procedures violated the Election Law, adding substantial irregularities to those involving machine problems.

I. Judge or Agent?

A. History

When the Justices of Middlesex was decided, New Jersey's first Constitution, adopted July 2, 1776, was in force. That Constitution did not contain any provision for the separation of powers among the legislative, executive, and judicial departments of government. It did provide in Article I:

That the government of this province shall be vested in the governor, legislative council and general assembly.

And in Article IX:

That the governor and council (seven whereof shall be a quorum) be the court of appeals in the last resort in all causes of law as heretofore. . . .

Articles IX and XII contained the only provisions relating to courts. The latter dealt only with terms of office for judges and others. The law to be followed by the courts was set forth in Article XXII:

That the common law of England, as well as so much of the statute law, as have been heretofore practiced in this colony, shall still remain in force, until they shall be altered by a future law of the legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this charter. . . .

It was in this constitutional setting that Justices of Middlesex was decided. That case involved a challenge to the validity of an election, concerning which the court said:

The court exercises a jurisdiction over the elections of officers chosen under an act or parliment, in public corporations, and even in the case of private trusts. The reason is the same -- the power is necessary for the preservation of peace in the community -- and with what color can it be pretended that this court, whose duty it emphatically is to take care that justice is done to everyone, has no power to protect the interest and redress the wrongs of an entire county?

The basis on which this power is exercised, is a solid one, because necessary to the peace of the community, and without which the main design of government, to wit, protection, cannot be afforded. This interference, however, is itself limited and controlled by the laws of the land, subjected to a revision in the last resort by the governor and council, and it cannot do injury. [ Id. at 292].

It was this assertion of jurisdiction that was apparently reversed by the Governor and Council according to Chief Justice Kinsey's handwritten note on the opinion which stated:

Jan. 7, 1975, on error before governor and council, this judgment was reversed, 8 to 3. I have heard that the ground of this reversal was that the Supreme Court had no jurisdiction. Sed quere. [ Id. at 295].

Since the 1776 Constitution provided that "the government of this province shall be vested in the governor, legislative council, and general assembly," and made the Governor and Council the "court of appeals in the last resort", the Supreme Court did not have the final word and the reversal, while barely explained, is understandable.

On September 2, 1844, a new Constitution became effective for New Jersey. Article III, par. 1, provided:

The powers of the government shall be divided into three distinct departments -- the legislative, executive and judicial; and no person or persons belonging to or constituting one of these departments, shall exercise any of the powers properly belonging to either of the others, except as herein expressly provided.

Article VI, ยง I, par. 1 provided:

The judicial power shall be vested in a court of errors and appeals in the last resort in all causes, as heretofore; a court for the trial of impeachments; a court of chancery; a prerogative court; a supreme court; circuit courts, and such inferior courts as now exist, and as may be hereafter ordained and established by law; which inferior courts the legislature may alter or abolish, as the public good shall require.

In view of these significant constitutional changes, there should have been no further doubt concerning the jurisdiction of the courts over election disputes. Decisions made after 1844, however, reasserted the old doctrine. In State v. The Clerk of Passaic, 25 N.J.L. 354 (Sup.Ct.1856), the court considered a challenge to an election for Surrogate in the County of Passaic. The court questioned its jurisdiction, saying: "whether the court has jurisdiction in such cases, has been frequently questioned, and is not free from doubt." Id. at 355, citing Justices of Middlesex.

In re Margarum, 55 N.J.L. 12 (Sup.Ct.1892), involved a request to the Supreme Court for an advisory opinion concerning an election petition presented to one of its justices. The petition had been presented in accordance with Section 52 of an act approved May 28, 1890, which supplemented the election laws. That section provided for the presentation of a verified petition containing statements showing "specified frauds or irregularities," directed the justice to investigate, hear and

determine the matter, and, if the allegations were sustained, to set aside the election. Thus, it was not substantially different from N.J.S.A. 19:29-1, pursuant to which the contest in the instant matter was filed. The Margarum court concluded that it had no jurisdiction because the justice who entertained the petition sat only as a "commissioner", i.e., a legislative agent, not as a judicial personage. It said:

It will be at once perceived, from this summary of this statutory clause, that the judge who is to determine the prescribed contest is not empowered for that purpose to sit in, or under the authority of, any court. The reference to him as "the justice of the Supreme Court holding the Circuit Court in and for said county," is a mere designatio personae. The expression evidently confers upon the official no authority, except such as is expressly prescribed, which is that he shall entertain the complaint in the capacity of a commissioner acting under and absolutely by the force of a statutory authorization. He is to determine the matter and make an order dismissing the petition or setting aside the election, and which order is to be filed with the clerk of the county. This is the entire scope and extent of the power expressly conferred, and it would not seem that, in such an affair, a justice of the Supreme Court has inherent in his office any ability that would materially subserve this statutory endowment. It is true that, as such justice, he is possessed of the statutory authority to take voluntary oaths and affidavits, but he could not compel the attendance of witnesses, nor could he punish their recusancy if they should refuse to be sworn. In the present inquiry it is not pertinent to consider the serious question whether this entire provision relating to this method of determining the legality of these elections, is not so imperfect and incomplete with respect to the power conferred upon the judicial officer who is to decide the controversy, as to render the provision itself wholly nugatory, all our immediate concern being to emphasize the fact that such justice in executing the function in question does not sit in curia. [ Id. at 15].

The suggestion that the statutory provision might be "wholly nugatory" became a conclusion in Roberts v. Shafer, 63 N.J.L. 182 (Sup.Ct.1899), which court also said that "[b]y the statute sub judice, the justice sits as a commissioner and not in curia," citing Margarum. Id. at 184.

In Clee v. Moore, 119 N.J.L. 215 (Sup.Ct.1937), the court considered a contest involving a gubernatorial election. The court noted that the contest petition was filed in accordance with "[a]n act to regulate elections' (Rev.1930)," Article XXVI and "proceedings taken thereunder are purely statutory and

. . . the jurisdiction of the court is derived from the statute itself." Id. at 216.

Burkett v. Francesconi, 127 N.J.L. 541 (Sup.Ct.1942), stated that proceedings under N.J.S.A. 19:29-1 "are strictly statutory and that the statute must be rigidly followed." Id. at 543. In re ...

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