On appeal from Superior Court, Law Division, Cape May County, whose opinion is reported at 236 N.J. Super. 227 (Law Div. 1989).
Pressler, Baime and A.m. Stein, JJ. The opinion of the court was delivered by Pressler, P.J.A.D.
[245 NJSuper Page 20] This is an election contest case which was terminated by a settlement agreement and stipulation of dismissal. Following the conclusion of the matter, the trial judge, for reasons explained
in his opinion reported at 236 N.J. Super. 227, 565 A.2d 422 (Law Div.1989), entered an order pursuant to N.J.S.A. 2A:15-59.1, the so-called frivolous litigation statute, awarding the two represented individual defendants counsel fees to be paid by plaintiffs. Plaintiffs appeal. We reverse.
This litigation was generated by what appears to have been a bitterly contested non-partisan election conducted on May 9, 1989, for three commissioner seats on the governing body of Sea Isle City in Cape May County. There were seven candidates, six of whom were involved in this law suit. The three winners were plaintiff James Iannone and defendants Michael McHale and Steve Libro. Among the losers were plaintiffs Michael Stafford and John Federico and defendant Marguerite Emberger. Plaintiff Teresa Downey joined in the action as a duly qualified and registered voter. Defendants McHale, Libro and Emberger were identified together under the slogan Leadership Working Together Team. We assume the three plaintiff candidates were also identified together.
Confining our review to the record before us, we note first that on May 4, 1989, five days before the election was held, the Law Division, on ex parte application of defendant Cape May County Board of Elections, entered an order directing it to remove the voter registration pages of 177 Sea Isle voters who are alleged, in the main, to have favored plaintiffs' candidacies. It also appears that neither the application of the County Board nor its page-removal procedures complied with either the provisions of N.J.S.A. 19:31-15, which requires notice to voters prior to their disqualification by the board for non-residence, or with the provisions of N.J.S.A. 19:33-1, which requires such notice prior to judicial striking and which also provides that no name shall be "stricken subsequent to the sixth Tuesday preceding any election." The evident intent of these provisions is to afford persons the opportunity to defend their right to vote.
According to the affidavit of plaintiffs' attorney filed in support of their motion for reconsideration of the counsel-fee
order,*fn1 he was first consulted by plaintiffs three days after the election and proceeded forthwith to investigate their claim, assembling pertinent materials and conducting legal research. At an office conference in Newark held on May 19, the attorney expressed the preliminary view that "irregularities could be demonstrated and that there might be evidence of a prima facie case, justifying a new election." Nevertheless, the attorney "advised the client that further consideration, review, research and interviews were appropriate before a final decision would be made." About a week later, the attorney travelled from Newark to Cape May Court House, spending a day with one of the plaintiffs reviewing the pertinent election records at the County Board office. That review revealed the ex parte order and the fact that it was obtained without notice, hearing or publication and without notice to the Attorney General. The attorney was also "unable to obtain any information from the Board concerning the reasons for the order." Further attorney-client discussions ensued. According to the affidavit, plaintiffs were "aware of ex parte private meetings between the Election Board and defendants Emberger and McHale; meetings and communications between the Cape May Prosecutor and defendants Emberger and McHale; and wholesale challenges to supporters of plaintiffs which did not appear to have been based upon any criteria except partiality." The decision to contest the election pursuant to N.J.S.A. 19:29-1 to -14 was made on June 1, a week before the expiration of the 30-day limitations period prescribed by N.J.S.A. 19:29-3.
The three-count complaint, which named the County Board and the district boards of Sea Isle as well as the three candidates, was filed on June 1, 1989. The first count sought to set the election aside because of "acts of misconduct, malconduct, fraud and/or corruption" committed by the defendant boards "and persons and agents acting on behalf of and in concert with
them," N.J.S.A. 19:29-1a, and also because of the "prohibiting, interfering with and/or restraining the rights of duly registered voters from exercising their franchise," N.J.S.A. 19:29-1e. The second count sought to set the election aside because of the County Board's failure to comply with N.J.S.A. 19:31-15 and 19:33-1 in removing the pages of registered voters. The third count alleged that the actions of defendants had violated the right of the electorate to "exercise their franchise without interference, and their right to the election of candidates fairly elected by the majority of duly qualified voters." Each count also sought compensatory and punitive damages.
Following the filing of the complaint, plaintiffs obtained a discovery order and deposed at least some of the individual defendants. They also had marked a number of exhibits at the deposition, including a memorandum from Leadership Working Together Team to the County Board challenging over 250 voters and bearing the notation, signed by Emberger, that "[i]t is our opinion that the following people are not residents of Sea Isle City and should not participate in the election of its government." The exhibits include another duplicative list of over 170 voters challenged by Emberger as well as a tabulation by the County Board showing absentee ballots it rejected for non-residency.
Prior to the July 5, 1989, trial date, plaintiffs' attorney engaged in conversations with the Attorney General and with the attorneys for the individual defendants. He asserts that "in the first telephone conference call between the parties, Deputy Attorney General Dembe and Mr. Carbone [Emberger's attorney] asked that plaintiffs drop those claims [for compensatory and punitive damages] and affiant represented that he would." He goes on to assert that he reiterated that stipulation in open court late in June 1989 "prior to any settlement or even discussion of settlement and prior to the voluntary dismissal of the petition or discussion thereof." Nevertheless it appears that plaintiffs did not then agree to dismiss as to
Emberger in accordance with the relief she sought by motion returnable June 29.
Finally, during the weekend prior to July 5, plaintiffs' attorney and the Attorney General entered into a "Stipulation of Settlement and Voluntary Withdrawal of the Petition Contesting the May 9, 1989, Sea Isle City Municipal Election." We understand that by that time, the petition had already been withdrawn as against the Sea Isle district boards. In any event, the stipulation expressly recognized that the County Board's action in removing the pages of the 177 voters had not been in compliance with Title 19. The County Board undertook to correct its procedures, to advise the district boards as to the proper manner to conduct challenges, to make its records freely available to all persons, and to resolve with voters all outstanding questions of eligibility. Plaintiffs, for their part, recognized that the County Board, even if acting contrary to statute, had nevertheless acted in good faith and agreed to withdraw the complaint with prejudice and without costs. The stipulation was not executed by or on behalf of the individual defendants.
The stipulation and dismissal were presented in open court on July 5. The judge then immediately entertained defendants' application for counsel fees under N.J.S.A. 2A:15-59.1 and granted it subject to submission of affidavits of services. Ultimately the judge entered an order awarding Emberger fees in the amount of $3,900.00 plus costs of $42.70, and McHale fees in the amount of $4,500 plus costs of $2,237.29. Since Libro had appeared pro ...