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Matter of Mallon

Decided: April 19, 1989.

IN MATTER OF THE APPLICATION OF THOMAS MALLON TO CONTEST THE ELECTION OF DONALD FREAM TO THE OFFICE OF COUNCILPERSON OF THE BOROUGH OF POINT PLEASANT


On appeal from Superior Court, Law Division, Ocean County.

Petrella, Shebell and Landau. The opinion of the court was delivered by Petrella, P.J.A.D.

Petrella

[232 NJSuper Page 252] This appeal relates to a contested election for one of two full-term seats on the municipal council in the Borough of Point Pleasant.*fn1 Thomas Mallon, a Democratic candidate, obtained a recount of the votes cast for the council candidates at the

November 8, 1988 general election. After the recount, Mallon instituted a suit in the Law Division challenging the election results and, in particular, the seat won by Donald Fream, a Republican candidate. The trial judge set aside the election as to the disputed municipal council seat. We now reverse.

After a four day trial in the Law Division, the judge concluded that one illegal vote, which he found had been cast for candidate Fream, should be deducted, thus narrowing the margin of victory to one vote. He also found that certain irregularities and illegal votes gave rise to sufficient malconduct to challenge the election results for the council position and ordered a runoff election between Fream and Mallon.

Fream argues on this appeal that the evidence before the court was insufficient to warrant a finding of malconduct by election officials sufficient to challenge the result, and that the evidence at trial was sufficient to find that his margin of victory should be increased to three votes.

Mallon cross-appealed on the ground that certain "marked" absentee ballots should have been disallowed by the trial judge, and that the civilian absentee ballot of one individual was wrongly rejected at the polling place.

We granted the Ocean County Clerk's motion to intervene on this appeal. The County Clerk contends that he was an indispensable party (see R. 4:28) and that the petitioner's attempt to challenge the conduct of his office concerning issuance of certain absentee ballots without naming him as a party to the proceeding constitutes reversible error and deprived the trial court of personal jurisdiction over him. The County Clerk also argues that there was insufficient evidence to warrant any finding of malconduct sufficient to challenge the election results.

Although we agree with much of the trial judge's thoughtful letter opinion of January 26, 1989, and accordingly dismiss the cross-appeal, we conclude that the judge erred in finding malconduct by the County Clerk within the meaning of

N.J.S.A. 19:29-1a. We further find that the County Clerk was a necessary party who should have been noticed in the order to show cause. However, the County Clerk had ample knowledge of this contested election suit and hence there was no prejudice in the omission. Moreover, in light of our decision the issue is moot.

The facts are summarized hereinafter. After the November 8, 1988 general election, Mallon filed a verified petition and order to show cause*fn2 to challenge the election results for the Borough Council position. Mallon sought a revocation of the Certificate of Election issued to Fream and a declaration that he was elected or, alternatively, that the election for the disputed council seat be declared void and a special election ordered between them. Mallon alleged that a number of votes cast in the election were illegal, and should be disallowed. He also argued that certain actions of election officials involving the receipt of or refusal to accept absentee ballot votes constituted malconduct on the part of the Ocean County Board of Elections.

Fream counterclaimed alleging that Mallon's vote tally should be reduced by one since an absentee ballot cast on behalf of Mallon was illegal and void. At the trial in December 1988 and January 1989 some of the individuals whose votes had been challenged testified, as did certain election officials. It was stipulated that the Ocean County Board of Elections had certified the official recount results as follows:

Candidate Votes Counted

Peter Marone (D) 3,991

Donald Fream (R) 3,782

Thomas Mallon (D) 3,780

Herbert Ludwig (R) 3,751

Therefore, the election for the second council seat was decided on a two vote difference between Fream and Mallon.

It was also stipulated that civilian absentee ballots were received in the Point Pleasant election as follows: Fream-191; Ludwig-182; Marone-158; Mallon-137. There had been 54 applications for military ballots; 33 voters sent in their ballot, including three disputed ballots.*fn3 The count of the military ballots revealed the following votes for councilman: Fream-27; Ludwig-18; Marone-13; and Mallon-4.*fn4

I.

Before the Law Division, Mallon challenged the legality of certain votes, including those cast by Gene Berkeley and his wife Donna. He asserted that the Berkeleys were not registered voters of Point Pleasant, and that in any event Gene Berkeley was no longer a Borough resident. The testimony was that as a result of marital problems, some time in March 1988, a restraining order had issued which prohibited Gene from returning to the marital residence. He then moved in with a friend at another location in Point Pleasant. His wife remained at the former marital abode. For some two and one-half to three years Gene had worked for the Borough of Point Pleasant Public Works Department, and at the time of trial he had been working for a year and a half with the Borough Recreation Department. In May 1988, the Berkeleys

reconciled and moved to a friend's home in Bricktown. The Berkeleys testified that this was only a temporary address since they would be required to leave sometime in September 1988. The reconciliation was unsuccessful. In late June 1988 Donna returned to the former marital residence in Point Pleasant. Except for the two month period in Bricktown, Donna had resided for her entire life at the Point Pleasant residence. Her "Permanent Registration and Voting Record" showed that she had reregistered under her married name in March 1985 and voted in the Point Pleasant general and primary elections in 1986 and 1987.

Gene later moved back into Point Pleasant to a Hollywood Boulevard address where he stayed until September 1988 when he rented a room at a different location in the neighboring Borough of Point Pleasant Beach. He was living at the rooming house on the day he voted in the election. He testified that although he had not been living at the former marital residence since March 1988 he considered that his legal address and signed an affidavit at the polling place to that effect on election day. Cf. N.J.S.A. 19:31-11b. Since 1985 Gene had been a registered voter living at the marital residence. He voted in the general and primary elections thereafter. He also testified that he considered all other addresses where he resided since March 1988 as temporary arrangements during a trial separation with his wife.

The judge concluded that the Berkeleys each possessed the necessary qualifications to cast their votes in the Borough's general election and were entitled to vote there as residents of Point Pleasant.*fn5 See Application of Langbaum, 201 N.J. Super. 484, 491

(App.Div.1985). See also State v. Benny, 20 N.J. 238, 252-255 (1955); State v. Atti, 127 N.J.L. 39, 41-42 (Sup.Ct.1941), aff'd 128 N.J.L. 318 (E. & A. 1942). Compare N.J.S.A. 19:4-1. In In re Petition of Hartnett, 163 N.J. Super. 257 (App.Div.1978), we stated:

And where a person has and maintains a permanent home in the voting district he has the right to vote in that district despite his temporary absence therefrom, provided that he does not vote elsewhere and the factual context reveals his intention to return to that home as his permanent abode. [Citations omitted]. [163 N.J. Super. at 263].

The evidence was sufficient to support the judge's finding that it was Gene's clear intent to maintain Point Pleasant as his home and to retain the only voting domicile that he had ever established even during a temporary relocation necessitated by a trial separation. See Rova Farms Resort v. Investors Insurance Co., 65 N.J. 474 (1974).

In addition, the judge found that the Berkeleys' failure to file a change of residence notice as required by N.J.S.A. 19:31-11a, after having moved to Bricktown for two months, did not make their votes illegal. There was sufficient evidence to demonstrate that the temporary move had not effectively withdrawn their voting registration and that there was no need to reregister. Even if they had been required to file a change of residence notice under N.J.S.A. 19:31-11a, the judge appropriately concluded that any failure to do so was a "mere irregularity" which did not void their votes once they had been cast. Wene v. Meyner, 13 N.J. 185, 196 (1953); Friends of Jim Usry v. Matthews, 187 N.J. Super. 176, 179-180 (App.Div.1982). Hence, the judge properly refused to void the votes of the Berkeleys. We need not determine whether they might also have been permitted to vote in accordance with N.J.S.A. 19:31-11b.

II.

The judge also considered challenged absentee ballots for the following six individuals: James Martin ...


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