The issue presented here is who is liable for the fees and expenses of a special master appointed by the court in an election case. The parties have been afforded an opportunity to be heard. After due consideration, the court holds that the unsuccessful challengers are liable.
The facts can be summarized as follows: This election challenge was initiated by Luis A. Quintana, an unsuccessful candidate for councilman in the Newark City election of June 12, 1990, and a number of Newark registered voters.
The parties consented to the appointment of a special master. This court then ordered, and the Chief Justice subsequently approved, the appointment of Special Master Cindy Nan Vogelman to report on factual issues and make recommendations as to legal issues. The order provided that the compensation and
expenses of the special master would be assessed against such party or parties as the court later determined.
The special master conducted numerous hearings and subsequently filed a report concluding that the election result should stand. The challengers accepted the master's report. The court in an oral opinion rendered October 31, 1990 upheld the master's conclusion. The court found serious election irregularities, but concluded that the challengers had failed to establish the criteria necessary to set aside the election result.
Liability for costs in election contests is determined by statute.
The contestant and incumbent shall be liable to the officers and witnesses for the costs made by them, respectively. If the election be confirmed, or the petition dismissed, or the prosecution fail, judgment shall be rendered against the contestant for costs . . . [ N.J.S.A. 19:29-14]
The proposition that unsuccessful election challengers are liable for costs has long been upheld in New Jersey. Iannone v. McHale, 236 N.J. Super. 227, 231, 565 A.2d 422 (Law Div.1989); In re Keough-Dwyer, 106 N.J. Super. 567, 576, 256 A.2d 314 (Law Div.1969); Darling v. Murphy, 71 N.J.L. 524, 59 A. 225 (Sup.Ct.1904).
The issue of whether a master's fee in an election contest is considered a "cost" under N.J.S.A. 19:29-14 has not been addressed by a New Jersey court. However, in interpreting a similar statute, a Pennsylvania court held that the fee of a court-appointed examiner (master) in an election contest is considered a "cost" ...