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In re Contest of the November 8

November 21, 2006


On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3472-05.

The opinion of the court was delivered by: Messano, J.S.C.



Submitted: September 13, 2006

Before Judges Cuff, Winkelstein and Messano.

Petitioner, Rosemarie C. Agostini (Agostini), placed second in the November 8, 2005 general election for the office of mayor of the Township of Parsippany-Troy Hills (Parsippany). She challenged the result in a verified petition filed pursuant to N.J.S.A. 19:29-1. The winner of the election, respondent Michael Luther (Luther), successfully moved to dismiss the petition for failing to state a claim pursuant to Rule 4:6-2(e). Agostini now appeals that dismissal. We reverse and remand the matter for an expedited plenary hearing and further proceedings consistent with this opinion.

Although the motion brought by Luther sought both dismissal under Rule 4:6-2(e), and summary judgment under Rule 4:46-1, the motion judge determined only that the petition failed to state a claim. We now consider whether that dismissal was appropriate under the legal standards governing a motion to dismiss pursuant to Rule 4:6-2(e).

In our review, we apply the same standard as the trial court. Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.), certif. denied, 185 N.J. 297 (2005). A motion to dismiss under Rule 4:6-2(e) should be "approach[ed] with great caution" and should only be granted in "the rarest of instances." Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739, 771-72 (1989). We must view the allegations in the complaint with liberality and without concern for the plaintiff's ability to prove the facts alleged in the complaint. Id. at 746. "A motion to dismiss a complaint under Rule 4:6-2(e) for failure to state a claim upon which relief can be granted must be evaluated in light of the legal sufficiency of the facts alleged in the complaint." Donato v. Moldow, 374 N.J. Super. 475, 482 (App. Div. 2005). The plaintiff's obligation on a motion to dismiss is "not to prove the case but only to make allegations, which, if proven, would constitute a valid cause of action." Leon v. Rite Aid Corp., 340 N.J. Super. 462, 472 (App. Div. 2001). Thus, considering and accepting as true the facts alleged in the complaint, we determine whether they set forth a claim upon which relief can be granted. Donato, supra, 374 N.J. Super. at 483.

After counting all votes cast from voting machines, absentee ballots, and provisional ballots, the results of the November 8, 2005 election for mayor of Parsippany yielded the following results:

Luther 7110 Agostini 7069 Messmer 320 Spector 199 A recount and recheck of the voting machines was ordered and the results changed little. On November 22, the County Clerk certified the results as follows:

Luther 7110 Agostini 7070 Messmer (Unknown) Spector (Unknown)*fn1

On December 8, petitioner filed her verified petition pursuant to N.J.S.A. 19:29-1. She alleged: illegal votes were received and legal votes were rejected in violation of N.J.S.A. 19:29-1e; errors occurred in the counting of the votes in violation of N.J.S.A. 19:29-1f; and other causes that led to the wrong result in the election in violation of N.J.S.A. 19:29-1g. She attached to her complaint exhibits that listed by name and address voters who allegedly cast their vote illegally, or were denied the right to vote. She also included exhibits that allegedly demonstrated discrepancies in the number of absentee ballots counted and in the count of voters at various polling places.

On December 13, the trial judge held a telephone conference with counsel for petitioner and respondent, and the Deputy Attorney General representing the Morris County Board of Elections. No verbatim record of the telephonic conference exists. However, as a result of the conference, the judge entered a scheduling order that set dates for discovery, the filing of dispositive motions, and trial. In addition, the order required petitioner to file an amended petition no later than December 19, 2005, and required, "The amendment shall set forth the facts, circumstances and statutory basis regarding the deficiencies as alleged in the Petition, as amended and attached exhibits."

On December 20, petitioner filed her amended pleading. It was not verified; but, the complaint once again had exhibits attached. One included the names, addresses, and election districts of nine of a total of ten voters that petitioner alleged had their legal votes rejected. Another included the names, addresses and election districts of forty-one voters petitioner alleged voted illegally. A third exhibit included a list of election districts where the totals of voters on the voting machine counter varied from the number of written voting slips issued by voting officials at those polling places; these discrepancies totaled four votes. Lastly, she attached an exhibit of the names, addresses and election districts of seventy-four absentee ballots that she alleged were improperly received.

The list of alleged illegal voters, and the list of absentee voters, cross-referenced a coded key in which the specific statutory violation alleged for each voter or ballot was enumerated. With the exception of the coded key, and changes to the totals of voters contained in the attached exhibits, the amended pleading was identical to the original complaint. Among the various forms of relief sought, Agostini asked the court to "Declare . . . the Petitioner duly elected, set aside that part of the election, nullify the results, if permitted, order a new election or declare the office vacant." She further requested, "In the event that Michael M. Luther is sworn into office, remove him from office and enter an order declaring the office vacant."

Respondent moved to dismiss petitioner's amended complaint. At the hearing on January 4, 2006 petitioner withdrew her allegations sounding in fraud or malconduct. See N.J.S.A. 19:29-1a. The administrator of the Board of Elections revealed that her office had found an additional fifteen absentee ballots after the recount. The court ordered the counting of these additional ballots, resulting in the final totals being Luther 7111 Agostini 7072 The administrator also noted that although 507 certificates for absentee ballots were issued, only 506 absentee ballots were counted. The motion judge then considered and granted respondent's motion to dismiss the petition.

In an oral opinion issued that day, and in a subsequent written opinion issued January 19, the motion judge explained his rationale. Relying primarily upon Lehlbach v. Haynes, 54 N.J.L. 77 (Sup. Ct. 1891), and Application of James T. Murphy, 101 N.J. Super. 163 (App. Div.), certif. denied, 52 N.J. 172 (1968), he concluded,

[S]ome specificity is required in a petition more so than traditional civil action complaints and at the very least where illegal votes are the principal issue, some facts showing due diligence that at a minimum such votes were cast for the incumbent and/or legal votes for the petitioner were rejected so that the results of the election may change . . . [T]he petition must show before (the) hearing . . . that there is at least some likelihood of a change in the election result because illegal votes were cast for Mr. Luther and/or legal votes for Mrs. Agostini were not counted.

He dismissed the petition because it failed to demonstrate minimum compliance with "the statutory requirement" that illegal votes were counted or legal votes denied in a number "sufficient to change the result" of the election. N.J.S.A. 19:29-1e.

We begin our review of the motion judge's decision by examining the statutory scheme governing election contests, N.J.S.A. 19:29-1 to -14, fully recognizing that "our state election laws are designed to deter fraud, safeguard the secrecy of the ballot, and prevent disenfranchisement of qualified voters." In Re Gray-Sadler, 164 N.J. 468, 474-75 (2000). To further those goals, election laws are to be construed liberally. Ibid. "They should not be construed so as to deprive voters of their franchise or so as to render an election void for technical reasons." Kilmurray v. Giffert, 10 N.J. 435, 440 (1952). The fundamental purpose of an election contest is "to ascertain the true will of the electorate." ...

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