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In re Contest of Election of Sheldon S. Evans

Decided: June 10, 1988.

IN RE CONTEST OF ELECTION OF SHELDON S. EVANS; PATRICIA C. WOLFINGTON; AND JOHN N. CARNUCCIO


Haines, A.j.s.c.

Haines

This suit challenges the election of Sheldon S. Evans to the Hainesport Township Committee on the ground that he lacked the required domicile in that municipality. The remaining defendants are charged with improperly assisting Evans in connection with his election. This opinion responds to pretrial motions. The matter has been resolved without trial.

A. Judge or Agent?

In Maple Shade General Election, 203 N.J. Super. 563 (Law Div.1985), I said:

The Legislature exercises paramount control over election matters and the courts are bound by its enactments.

The present quest does not ignore that principle. It seeks only to fix the role of the court when it addresses election problems requiring judicial solutions, i.e., problems which have not been considered by the Legislature. It acknowledges the fact that some problems must be resolved by judges who sit, not as judges, but as agents of the Legislature, because the Legislature has said so. [at 576-77]

The defendants apparently read these statements as reflecting a conclusion that judges in election contests may act judicially

only when facing problems not considered by the Legislature, and that otherwise judges act as legislative agents, bound strictly by the language of the statutes. In the same case, however, I said:

There are very realistic reasons for reaching a conclusion that judges hearing election contests are authorized to act judicially: the exercise of judicial power represents the only way in which necessary decisions can be made as to the meaning of statutes and the structuring of appropriate relief when none is provided. [at 584]

It is my opinion today, that judges hearing election contests preside over them judicially whenever it is necessary to provide a statutory interpretation, to fill a statutory omission or to provide relief, on an equitable basis, when none has been provided by the Legislature. This conclusion does not abuse the conclusions reached in Maple Shade.

B. Timeliness

The defense contends that the contest petition was filed too late because it was filed more than 10 days after the Election Board announced the result of a recount of the votes cast in the instant election.

N.J.S.A. 19:29-3, insofar as this case is concerned, requires the petition to be filed "within 10 days after the result of any recount has been determined or announced." The statute does not define the words ...


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