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In re Contest of the Democratic Primary Election of June 3

January 27, 2004

IN RE THE CONTEST OF THE DEMOCRATIC PRIMARY ELECTION OF JUNE 3, 2003 FOR THE OFFICE OF ASSEMBLY OF THE THIRTY-FIRST LEGISLATIVE DISTRICT
AND
IN RE THE JUNE 3, 2003 DEMOCRATIC PRIMARY ELECTION FOR THE OFFICE OF SENATE AND ASSEMBLY OF THE THIRTY-FIRST LEGISLATIVE DISTRICT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, HUD-L-3947-03 and HUD-L-3948-03.

Before Judges King, Lisa and Reisner.

The opinion of the court was delivered by: King, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: December 17, 2003

This case involves campaign financing in the June 2003 primary election in the Thirty-First Legislative District. The Thirty-First District consists of the City of Bayonne and parts of the City of Jersey City. The Thirty-First District is historically heavily Democrat; victory in the Democrat primary is tantamount to victory in the general election.

The June 2003 primary election determined the District's two Democrat nominees for State Assembly and the Democrat nominee for State Senate. Joseph Doria (Assembly), Elba Perez-Cinciarelli (Assembly) and L. Harvey Smith (Senate) (the appellants) lost the primary election to Louis Manzo (Assembly), Anthony Chiapppone (Assembly), and Glenn Cunningham (Senate) (the respondents).

During and after the election, the appellants claimed the respondents blatantly violated the Campaign Contributions and Expenditures Reporting Act, N.J.S.A. 19:44A-1 to -47 (Act). The appellants maintained that the violations arose from contributions that two"continuing political committees" made to the respondents. These continuing political committees were the Jersey City First Committee (JCF) and Reform Democratic Committee of Jersey City (RDC).

On July 25, the appellants filed a complaint in Hudson County Superior Court contesting the election under N.J.S.A. 19:29-1,*fn1 even though the Act authorizes the Election Law Enforcement Commission (ELEC) to hear complaints of Act violations.*fn2 ELEC is a four-member, bi-partisan commission appointed by the Governor with staggered terms. N.J.S.A. 19:44A-6. It is allocated within the Department of Law and Public Safety but is"independent of any supervision or control by the department." Ibid. The Commission appoints a full-time executive director and other personnel. Ibid. ELEC intervened on this appeal; it was not a party at the trial level.

The complaint also alleged claims of other election irregularities, not covered by the Act, which were properly cognizable in the Superior Court under the election contest provisions of Title 19. These claims were never substantiated and this aspect of the complaint was dismissed.

The Law Division judge adjudicated the case under the authority of the election contest statute, N.J.S.A. 19:29-1 to -14. In August 2003 the judge held testimonial hearings in accordance with N.J.S.A. 19:29-5 to -8, and, after the appellants presented evidence attempting to establish excessive spending in violation of the Act, he granted a motion to dismiss the contest for failure of proof.

The judge ruled that certain provisions of the Act governing the contributions of such continuing political committees did not apply to primary elections, and even if they did, there was no causal nexus proved between the claimed illegal spending and the outcome of the primary. He also ordered the appellants to pay attorneys fees under N.J.S.A. 19:29-14.*fn3

The appellants applied to this court for emergency relief, which we denied. The Supreme Court denied certification on October 15, 2003. In October 2003 we denied the appellants' motion for summary disposition, R. 2:8-3(b), but ordered a hearing on an accelerated basis.

We conclude that the Act applies to primary elections. In this regard we disagree with the Law Division judge and modify his decision. We agree with his ruling dismissing the election contest action because appellants failed to prove a significant relationship between the alleged violations and the outcome of the primary election. We deem this aspect of the dispute fairly and finally decided and res judicata. Appellants had the chance to present their proofs and did not shoulder their substantial burden.

Nevertheless, the judge made no findings with respect to any specific violations of the Act. We transfer the matter of these alleged violations and their penalties, if any, to ELEC for adjudication, R. 1:13-4, under its enforcement powers. See N.J.S.A. 19:44A-22. We also reverse the award of fees and costs for $2280 to respondents under N.J.S.A. 19:29-14 because there has been no final adjudication as to violations and penalties under the Act.

I.

The parties are bitter Democrat adversaries in the highly-charged atmosphere of Hudson County party politics. In September 2001 Robert Janiszewski, a Democrat and the Hudson County Executive, resigned his position under a cloud of allegations of government corruption. Janiszewski's resignation led to a rift in the Hudson County Democrat Committee (HCDC) over who should become the interim County Executive. The HCDC named Bernard Hartnett to the position until the next general election, scheduled for November 2002.

As the June 2002 primary election approached, the Democrat Party could not unite behind a single candidate. One faction supported Thomas DeGise, while the other faction supported Hartnett. DeGise won the primary election and later the 2002 general election for County Executive.

After Hartnett's defeat in the June 2002 primary, Joseph Cardwell and Robert Jackson, whom the judge described as the appellants' principal witnesses in this case, desired to restore control of the Hudson County Democrat Party to the Hartnett faction. To that end, on August 26, 2002 Cardwell registered a new"continuing political committee" named Jersey City First (JCF).*fn4

Meanwhile, in October 2002 Jackson created the Reform Democratic Committee of Jersey City (RDC), also a continuing political committee, although he did not file any registration papers with ELEC until April 2003. Like JCF, Jackson's testimony described RDC as composed of candidates for committee seats who were not aligned with the DeGise camp.

Both camps proceeded to prepare for the June 2003 primary election which would determine the party nominations for the Thirty-First District's State Senator and the two State Assembly seats. Aligned on the Hartnett side, and thus with JCF and RDC, were respondents Cunningham, Manzo, and Chiappone. On the other side were appellants Smith, Doria, and Perez-Cinciarelli.

Cunningham announced his candidacy on March 5, 2003. He began accepting contributions and making expenditures immediately. The judge found that Cunningham did not, as per N.J.S.A. 19:44A-9a, establish his candidate committee at that time but rather on May 2, 2003. Cunningham's committee was called"Cunningham for Senate." On the same day he established Cunningham for Senate, Cunningham also established"The Cunningham Democratic Team," a"joint candidates committee" under N.J.S.A. 19:44A-3r.*fn5

Thus, during the June 2003 primary election campaign, there existed: (a) two continuing political committees [.arrowhorizex] JCF and RDC [.arrowhorizex] aligned with the Hartnett group; (b) Cunningham's own political committee, Cunningham for Senate, aligned with the Hartnett group; and (c) a joint candidates committee, The Cunningham Democratic Team, aligned with the Hartnett group.

On May 27, 2003 appellants sued to enjoin The Cunningham Democratic Team and related organizations from further spending in violation of the Act. As we discuss below, the Act allows a candidate to institute a summary action in the Superior Court to enjoin spending and contribution violations of an opponent prior to an election. See N.J.S.A. 19:44A-22.1. This matter was heard before the Hudson County Chancery Judge, not the Law Division judge who decided the case before us on this appeal.

The Chancery judge was"troubled by.... the blatant, blatant excessive overspending by the [RDC]." He enjoined further RDC spending. He believed RDC had"overspent considerably in violation of the election law." The judge also asked ELEC to"investigate whether or not there are any violations by the Cunningham Inaugural Committee and the Reform Democratic Committee." ELEC has not acted on the matter, apparently awaiting our decision in this case.

In June, Cunningham, Manzo and Chiappone won the primary election. The appellants petitioned for and received a recount, but it did not yield results contrary to the initial count. After the recount, the results were, for Senate: (1) Cunningham (10,715 votes); (2) Smith (8,630); and (3) Vincent Militello, not a party to this case (3,004). For Assembly, the results were: (1) Chiappone (11,154); (2) Manzo (11,134); (3) Doria (10,519); and Perez-Cianciarelli (9,624).

On July 25 appellants filed this verified petition contesting the election under N.J.S.A. 19:29-1h. In the complaint they incorporated allegations that The Cunningham Democratic Team, Cunningham for Senate, JCF, RDC, and others, in raising and spending money on behalf of Cunningham, Manzo, and Chiappone, had:

routinely ignored and violated the filing requirements of [the Act] and have failed to file those reports which would permit ELEC, opposing candidates, or the public to know the names of contributors, the nature and amount of contributions and expenditures, and the other information disclosed by the required forms.

In addition, appellants stated these individuals and entities"directed, coordinated, authorized and allowed campaign spending to occur in violation of the law," and that"such spending was in excess of $50,000." Appellants asserted that the respondents'"knowing, intentional, negligent, or grossly negligent overspending, failure to report, violation of the laws and court orders, had a significant impact on the election and voters which was sufficient to change the results and outcome of the election."

After the filing of the election contest petition, respondents moved to dismiss the petition. They argued, among other things, that ELEC had exclusive jurisdiction of the complaint, that appellants must exhaust administrative remedies, and that the complaint failed to state a claim under R. 4:6-2(e). On August 14, 2003 the Law Division judge denied the motions. He refused to transfer the case to ELEC.

In early September 2003 the respondents again moved to dismiss the charges under the Act, terming their motion an "involuntary dismissal" or, in the alternative,"summary judgment." On September 11, 2003, after hearing testimony, the trial judge dismissed the action. He ruled (1) relevant provisions of the Act do not apply to primary elections; and (2) even if such provisions did apply and there were violations, appellants did not establish a"prima facie case" of any violation of the Act sufficient to void the election.

II.

A review of the Act's sanctions for violations aids in understanding this matter. The Act has various sanctions for violations of contribution limits. N.J.S.A. 19:44A-21a makes it a fourth-degree crime for a person to violate N.J.S.A. 19:44A-11.3, the relevant contribution restriction in this case, if the person acts purposely and with the intent to conceal or misrepresent contributions received to aid or promote the nomination of any candidate for public office, among other things. If that person is guilty of this offense, N.J.S.A. 19:44A-21c states the nomination for election or the election of the person to office is void. N.J.S.A. 19:44A-21 speaks of crimes, suggesting an aggrieved candidate or someone else must press a criminal charge.

There are also sanctions for contribution violations in N.J.S.A. 19:44A-22, which provides for substantial monetary penalties of up to $100,000 against"[a]ny person who willfully and intentionally makes or accepts any contribution in violation of... [the relevant restriction on campaign contributions, N.J.S.A. 19:44A-11b]." Regulatory monetary penalties are contained in N.J.S.A. 19:44A-22(a)(1) ($3,000 for each regulatory violation). N.J.S.A. 19:44A-22f requires any person holding office to forfeit the office if the illegal contribution given or received exceeds $50,000 and the violation had a significant impact on the outcome of the election. After ELEC makes findings of the applicable penalties, N.J.S.A. 19:44A-22g authorizes a court to enforce the penalties in a summary proceeding conducted under the penalty enforcement law, N.J.S.A. 2A:58-10 and -11. Under N.J.S.A. 19:44A-6b, ELEC has"the authority to initiate a civil action in any court" to enforce compliance with the Act by injunction or recovery of monetary penalties.

Finally, N.J.S.A. 19:44A-22.1, mentioned earlier, authorizes a candidate in an ongoing campaign to file a summary action in the Superior Court to enjoin a political committee or continuing political committee from further violations of the Act.

III.

We now turn to the issue of whether the Act applies to primary elections. The appellants alleged that violations of the Act occurred when JCF and RDC, the continuing political committees, made contributions to Cunningham for Senate and The Cunningham Democratic Team during the primary far in excess of legal limits. The provisions of the Act that regulate contributions of continuing political committees to candidate committees and joint candidate committees are found in N.J.S.A. 19:44A-11, specifically subsection N.J.S.A. 19:44A-11.3.

N.J.S.A. 19:44A-11.3 is a very complex provision. N.J.S.A. 19:44A-11.3b addresses contributions that continuing political committees make to candidate committees or joint candidate committees. By contrast, N.J.S.A. 19:44A-11.3a addresses individual contributions, and N.J.S.A. 19:44A-11.3c deals with a candidate's contributions to another candidate or joint candidates committee.

N.J.S.A. 19:44A-11.3b states:

b. (1) No political committee or continuing political committee shall:

(a) pay or make any contribution of money or other thing of value to a candidate who has established only a candidate committee, his campaign treasurer, deputy campaign treasurer or candidate committee, other than a candidate for nomination for election or for election for the office of Governor, which in the aggregate exceeds $5,000 per election, or

(b) pay or make any contribution of money or other thing of value to candidates who have established only a joint candidates committee, their campaign treasurer or deputy campaign treasurer, or the joint candidates committee, which in the aggregate exceeds $5,000 per election per candidate, or

(c) pay or make any contribution of money or other thing of value to a candidate who has established both a candidates committee and a joint candidates committee, the campaign treasurers, deputy campaign treasurers, or candidate committee or joint candidates committee, which in the aggregate exceeds $5,000 per election.

No candidate who has established only a candidate committee, his campaign treasurer, deputy campaign treasurer or candidate committee, other than a candidate for nomination for election or for election for the office of Governor, shall knowingly accept from any political committee or continuing political committee any contribution of ...


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