On certification to the Superior Court, Appellate Division, whose opinion is reported at 388 N.J. Super. 663 (2006).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
In re the Contest of the November 8, 2005 General Election for the Office of Mayor of the Township of Parsippany-Troy Hills (A-90-2006)
This appeal requires the Court to interpret the meaning of a portion of our election laws governing a challenge to a municipal election by a losing candidate.
An election for the office of mayor was held in the Township of Parsippany-Troy Hills on November 8, 2005. After the results were tabulated, Michael Luther was credited with receiving 7,110 votes and Rosemarie Agostini with 7,069. The forty-one vote difference represented less than three-tenths of one percent of all of the votes that had been cast.
Agostini sought a recount and a recheck of the votes. The recount changed the tally of absentee ballots, giving Agostini a net gain of one vote and leaving Luther with a margin of victory of forty votes. The election result declaring Luther the winner was certified by the Morris County Clerk on November 22, 2005.
Agostini filed a verified petition to challenge the election, asserting that there were persons who were entitled to vote whose ballots had been rejected and that illegal votes had been permitted and counted. She also asserted that there were irregularities among the absentee ballots, alleging that some voters had wrongful assistance or were subject to intimidation, and that other absentee ballots were not handled, marked or processed in accordance with the statute. The petition was accompanied by an attachment that specified a number of individual voters whom she alleged fell into one of the challenged categories.
The Assignment Judge held a telephone conference with counsel for Agostini and Luther. He noted the petition lacked specific information that would support the general allegations of fraud and corruption, and expressed concerns about whether the information in the petition sufficiently identified that there were votes cast for Luther that, if excluded, would give Agostini a victory. The court decided to give Agostini an opportunity to address these perceived shortcomings, and directed an amended petition be filed.
On December 20, 2005, Agostini filed an amended petition. The substance of the allegations set forth was not different from the initial petition. However, the attachment was expanded to include a coded key that cross-referenced the ground for challenging the vote of each voter who had been identified and who Agostini contended either had been counted illegally or had been improperly rejected. It identified ten voters whose votes had been improperly rejected; forty-one votes that had been illegally received and counted; and four votes cast at machines in excess of the number of voting authorities issued. In addition, Agostini raised challenges to seventy-four of the absentee ballots that had been counted.
Luther moved to dismiss the amended petition, asserting that it failed to state a claim because it lacked specificity. He also urged that the amended petition be rejected because it was not verified. Agostini argued that the information included in the petition was sufficient for the purposes of the statute; that the failure to separately verify the amended petition was a mere oversight; and that the statutory protections shielding voters from having to reveal the candidate for whom they voted made further specificity of the kind demanded by Luther impossible.
While the motion to dismiss was pending, the administrator of the Board of Elections reported to the court that fifteen additional absentee ballots had been found that had not been included in the prior tabulation. The court ordered a recount. The results gave Agostini a net gain of one vote, resulting in a thirty-nine vote victory for Luther.
In January 2006, the trial court granted Luther's motion to dismiss, concluding that the traditionally liberal pleading rules do not apply to a petition in an election contest. Citing to the Supreme Court's decisions in Lehlbach v. Haynes,
The opinion of the court was delivered by: Justice Hoens
Re-argued September 11, 2007
Free and fair elections are the foundation on which our democracy rests. The right to vote, and to have one's vote counted, is both cherished and fundamental to our way of life. We rely on our election laws and on the fair conduct of elections to ensure that the people may be heard through the ballot and that their will, as expressed through their votes, may be effectuated. At the same time, we can only be certain that the true will of the people has been expressed if we can be confident in the election process itself. The right of a defeated candidate to contest the outcome of an election, while carefully circumscribed, is an important means to ensure that the true will of the people is indeed heard through the ballot box.
The dispute now before this Court requires us to interpret the meaning of a portion of our election laws governing a challenge to a municipal election by a losing candidate. Although there are ancient precedents that bear on our analysis, they are not in keeping with the changes that our Legislature has made to the election contest statute over the past century and a half. We therefore consider the meaning of our election law in an effort to discern what the statute requires the election contest petition to contain and to determine the appropriate test for legal sufficiency to be applied to an election contest petition in the face of a motion to dismiss.
The November 8, 2005, election in the Township of Parsippany-Troy Hills offered the voters a choice from among several candidates for the post of mayor. After the results were tallied, Michael Luther was credited with a total of 7,110 votes, Rosemarie Agostini had a total of 7,069 votes, Roy Messmer had 320 votes, and Michael Spector had 199 votes. Luther, therefore, had forty-one votes more than Agostini, a difference of less than three-tenths of one percent of all of the votes that had been cast. Luther's total was based on 6,866 machine ballots, 239 absentee ballots, and 5 provisional ballots. Agostini's total was based on 6,818 machine ballots, 239 absentee ballots, and 12 provisional ballots.*fn1
Based on that initial count of the votes, on November 16, 2005, Agostini sought both a recount, N.J.S.A. 19:28-1, and a recheck, N.J.S.A. 19:52-6, of the votes that supported those reported results. When the ballots were recounted, the tally of the absentee ballots had changed, with the result that Luther had received only 233 of those votes and Agostini had received 234, giving her a net gain of one vote and leaving Luther with a margin of victory of forty votes. The election result declaring Luther to be the winner of the mayoral contest was certified by the Morris County Clerk on November 22, 2005.
Faced with this outcome, on December 8, 2005, Agostini filed a verified petition to challenge the election. The body of that petition set forth several bases for her challenge as allowed by statute. See N.J.S.A. 19:29-1. In particular, Agostini asserted that there were persons who were entitled to vote whose ballots had been rejected. See N.J.S.A. 19:29-1(e). She contended that illegal votes had been permitted and counted, ibid., including votes by persons who were not residents of the township or were unqualified to vote. She alleged that in certain polling places, the numbers of persons who entered and voted exceeded the number of voting authorities that had been issued. See N.J.S.A. 19:29-1(f).
Agostini also asserted that there were two kinds of irregularities among the absentee ballots, including allegations on information and belief that some voters had wrongful assistance or were subjected to intimidation and that there were absentee ballots that were "not applied for, handled, messengered, returned, marked or processed in accordance with the statute." See also ibid. Specifically, as it pertained to the absentee ballots, Agostini pointed out that although 501 absentee ballots had been approved for counting by the Board of Elections, a greater number, 507, had actually been counted on election night, and a different number, 506, had been tallied during the recount. Finally, Agostini asserted in general that the "election process and workers failed to follow, implement, and/or disregarded the statutory requirements and protections to ensure a fair election." See also N.J.S.A. 19:29-1(a). Her petition was accompanied by an attachment that specified a number of individual voters whom she alleged fell into one of the challenged categories that were set forth in the verified petition.
Within days of the filing of the petition, the Assignment Judge conducted a telephone conference with counsel for Agostini and Luther. He noted that the petition lacked specific information that would support the general allegations of fraud and corruption, and expressed concerns about whether the information in the petition sufficiently identified that there were votes cast for Luther that, if excluded, would give Agostini a victory. Having voiced those concerns, the court decided to give Agostini an opportunity to address what he perceived to be the petition's shortcomings. He therefore directed that an amended petition be filed. His December 13, 2005, order specified that: "[t]he 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, 2005, Agostini filed her First Amended Verified*fn2 Petition. The substance of the allegations set forth in the amended petition itself was not different from her initial petition. However, the attachment to the petition was expanded to include a coded key that cross-referenced the ground for challenging the vote of each voter who had been identified and whose vote Agostini contended either had been counted illegally or had been improperly rejected. In addition, the attachments set forth further information concerning the improprieties that had been discovered among the absentee ballots.
In the attachment to the amended petition, Agostini identified a total of ten voters whose votes had been improperly rejected, forty-one votes that had been illegally received and counted, and four votes cast at machines in excess of the number of voting authorities issued. In addition, Agostini raised challenges to seventy-four of the absentee ballots that had been counted. Among the absentee ballots, she identified ballots issued to individuals who were not residents of the district, improprieties in the completion of the certifications by the voter, irregularities in delivery of the ballots, missing certification flaps on the inner ballot envelopes, and absentee ballots with signatures of the voter that did not match the signature in the official register of voters.
Luther moved to dismiss the amended petition, asserting*fn3 that it failed to state a claim, because the pleading lacked specificity and "present[ed] nothing more than suspicion or conjecture to support its allegations." More particularly, Luther argued that in an election contest, the petition was required to serve the functions of not only identifying the basis for the challenge, but also of providing the putative winner of the election with enough information to permit him or her to prepare a defense. Pointing out that the amended petition was not verified, Luther urged that it also be rejected on that separate ground.
Moreover, Luther urged the court to conclude that an election contest petition should be subjected to a heightened pleading standard so as to discourage such contests which, he argued, were contrary to effectuating the will of the public as expressed in the election. Finally, Luther contended that the statutory reference to votes "sufficient to change the result" of the election, see N.J.S.A. 19:29-1(e), embodied a requirement that the pleading itself identify for which candidate each challenged vote had been cast in order to demonstrate that the outcome would have been different.
Agostini argued that the information included in the petition was sufficient for the purposes of the statute; that the failure to separately verify the amended petition was a mere oversight; and that the statutory protections afforded to all voters to shield them from having to reveal the candidate for whom their votes were cast made further specificity of the kind demanded by Luther impossible. Moreover, she argued that, like a complaint being challenged for failure to state a claim, see R. 4:6-2(e), the court was required to afford her all possible inferences, to treat her petition as indulgently as it would a complaint, and to allow her to proceed so as to afford to her a day in court. See Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739, 746 (1989). She argued that the election contest statute did not require her to prove that the outcome would be altered, but only mandated that she allege sufficient facts to demonstrate that there were enough challenged votes that the outcome could be different.
While the motion to dismiss was pending, the administrator of the Board of Elections reported to the court that fifteen additional absentee ballots had been found that had not been included in the prior tabulation. In light of this discovery, the court ordered a second recount of the absentee, provisional, and emergency ballots. Although the total number of absentee ballots counted still did not match the number of absentee certificates on file, with the result that there was still one missing absentee ballot, the recount proceeded. After the second recount was conducted, the results were provided to the court. The results were different and again demonstrated a net gain for Agostini. The final results gave Luther a total of 7111 votes as compared to the 7072 votes for Agostini. Luther therefore had, after the second recount, a thirty-nine vote victory over Agostini.
After considering the arguments advanced on behalf of Luther and Agostini, the court granted Luther's motion to dismiss. The court concluded that the traditionally liberal pleading rules that would otherwise permit a lack of specificity were not applicable to a petition in an election contest. The analysis began with the observation that the appropriate test against which to judge an election contest petition is found in the Supreme Court's decision in Lehlbach v. Haynes, 54 N.J.L. 77 (Sup. Ct. 1891). Citing the operative language from that decision, as quoted more recently by our Appellate Division, see Application of James T. Murphy, 101 N.J. Super. 163, 168 (App. Div. 1968), the court concluded that the petitioner in an election contest must, as a part of the petition, demonstrate facts sufficient to support relief. In particular, the court relied on the following language from Lehlbach:
The contestant . . . insists that the statute only requires him to show illegal votes in number sufficient to change the result, if all be deducted from the incumbent's tally. We do not, however, so read the act. It makes the reception of illegal votes a ground of contest only when they are sufficient to change the result-- that is, not merely to show that the plurality declared for the incumbent is erroneous, but to show that another than he was the person legally elected. Unless the petition states circumstances which prima facie render this conclusion probable, it does not present a case within the law.
Roche v. Bruggermann, 53 N.J.L. 122 [(Sup. Ct. 1890)]. There are other modes of proof besides the affidavit of the voter, and the obstacles in the way are not usually insuperable without compulsory process.
But, at any rate, the difficulties spring from the terms of the statute, in accordance with which we must proceed in this statutory investigation. The presumption is with the incumbent, and we cannot assume, without evidence against that presumption, that the illegal ballots were for him rather than his opponents. [Ibid. (quoting Lehlbach, supra, 54 N.J.L. at 81) (emphasis added).]
Noting that the Supreme Court continued to adhere to the Lehlbach formulation thereafter, see In re Clee, 119 N.J.L. 310, 325-27 (Sup. Ct. 1938); Groth v. Schlemm, 65 N.J.L. 431, 436 (Sup. Ct. 1900); the court concluded that our election contest law requires specificity, which Agostini's petition did not provide.
Relying on Clee, the court quoted the applicable standard to be applied: "the pleading must be sufficient at least to enable the incumbent to prepare his defense to the charges set forth [and] . . . 'to enable him to prepare and meet the specific charges by evidence.'" Clee, supra, 119 N.J.L. at 326 (citing Lippincott v. Felton, 61 N.J.L. 291, 295 (Sup. Ct. 1898)). Reasoning that the incumbent is entitled to a presumption that the election contest was conducted fairly and that the burden of proof is on the contestant to demonstrate to the contrary, the court concluded that a pleading that lacks specificity improperly shifts the burden to the incumbent who is then forced to conduct discovery to ascertain the basis for the contest.
Turning to Agostini's assertion that there were illegal votes cast, the court concluded that the petition fell short because she had not carried the burden imposed on her by the statute. Relying on the Appellate Division's decision in In re Mallon, 232 N.J. Super. 249 (App. Div. 1989), the court concluded that the contestant, as part of the petition, was required to search out voters to support the allegations about illegal votes cast or legal votes rejected, see id. at 268-69, evidence that Agostini had failed to provide. Referring to the petition as lacking in "insight with respect to illegal voters," the court found that the petition was inadequate. In this regard, the court, applying the test set forth in Murphy, supra, concluded that the petition was insufficient because Agostini had failed to demonstrate that, in spite of diligent efforts, she had been unable to find the particular illegal voters or that those voters had refused to disclose for whom their votes had been cast.
Furthermore, the court reasoned that although the number of challenged votes identified by Agostini was theoretically sufficient to alter the outcome, the petition was nonetheless deficient. In short, because Agostini could not identify with specificity enough illegal votes that had been cast for the winner or enough legal votes that would have been cast for Agostini but had been excluded, so as to have altered the result of the election, the petition did not meet the statutory standard of particularity. In so concluding, the court expressed concern that Agostini's failure "to develop facts and circumstances as required by the Court's Order allowing the amendment" was indicative of a lack of a sufficient factual basis for any of the petition's allegations.
The motion judge recited his reasons for granting the motion to dismiss on the record on January 4, 2006, the return date for that motion. He prepared and distributed a written decision further explaining the basis for the decision on January 19, 2006. Following the dismissal of the petition, Luther was sworn in as Mayor of the township and he has continued to serve in that role throughout the appellate proceedings.
Seven days after the petition was dismissed and prior to receiving the written statement of the court's reasons, Agostini sought emergent relief from the Appellate Division. The application was denied in an order that expressed the view that there was no emergency because Luther had already been sworn into the office of mayor. Agostini filed her notice of appeal the next day.
In a published opinion, the Appellate Division reversed the order dismissing the petition and remanded the matter for an expedited plenary hearing and further proceedings. In re the Contest of the Nov. 8, 2005 Gen. Election for the Office of Mayor for the Twp. Parsippany-Troy Hills (In re Nov. 8, 2005 Contest), 388 N.J. Super. 663, 665-66 (App. Div. 2006). The appellate panel based its decision on a review of the relevant statutory framework and the same published precedents on which the motion court had relied. In part, the Appellate Division noted that some of the precedents on which the motion court had relied were decisions made on the merits of a contest. See, e.g., Mallon, supra, 232 N.J. Super. at 253; Murphy, supra, 101 N.J. Super. at 168. Those decisions, therefore, were based on complete records following trials of election contests and were not instructive for purposes of evaluating the sufficiency of the initial pleading.
Apart from that observation, however, the appellate panel reasoned that most of the older precedents were no longer relevant. Significantly, the panel held that the election contest statute must be interpreted in light of "modern rules of pleading [that] have long ago eliminated technical requirements that existed when Lehlbach was decided." In re Nov. 8, 2005 Contest, 388 N.J. Super. at 675. Instead, the panel noted that "Rule 4:5-2 only requires that the pleading 'contain a statement of the facts on which the claim is based, showing that the pleader is entitled to relief, and a demand for judgment for the relief to which the pleader claims entitlement.'" Ibid. (quoting R. 4:5-2). The panel therefore concluded that, because the election contest statute must be read in conjunction with generally applicable rules of pleading, Agostini's petition was sufficient to afford her adversary notice of her claim and thus should not have been dismissed.
We granted certification, 189 N.J. 430 (2007), and, although we do not endorse the liberal pleading rationale utilized by the appellate panel, we affirm.
Succinctly stated, the question with which we are confronted is what standard governs the adequacy of an election contest petition that is challenged through a motion to dismiss. The motion judge applied a standard, derived from a variety of published precedents construing the statute, which required the petitioner to assert with particularity the factual basis supporting her claim about illegal votes cast and legal votes rejected, and to demonstrate with specificity that the outcome would probably be different had those votes been correctly received or rejected. The appellate panel, rejecting some of those precedents as applying a standard applicable to the trial on the merits but inappropriate to a motion to dismiss, concluded that the remainder of the precedents were out-dated and failed to reflect our modern liberal rules of pleading. Our consideration of the appropriate standard to be applied to test the sufficiency of an election contest petition must begin with an examination of the statute itself and with the significant alterations in its requirements that bear upon the relevance of the precedents that both the motion court and the appellate panel considered.
We begin our analysis with the oft-repeated admonition that election laws are to be liberally construed to the end that voters are permitted to exercise the franchise and that the will of the people as expressed through an election is heard. See In re Gray-Sadler, 164 N.J. 468, 474-75 (2000); Kilmurray v. Gilfert, 10 N.J. 435, 440 (1952); Kirk v. French, 324 N.J. Super. 548, 552 (Law Div. 1998) (citing Wene v. Meyner, 13 N.J. 185, 196 (1953)). Indeed, although in all election contests the winner argues forcefully that the election results should not be disturbed so as to ensure that the will of the electorate is effectuated, so too, does the challenger always assert that the election results demonstrate that the will of the same electorate has in some fashion been thwarted.
In a related context, the United States Supreme Court has reminded us of the sanctity of the right to vote, holding:
No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. [Wesberry v. Sanders, 376 ...