On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2140-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 19, 2007
Before Judges Axelrad, Payne and Messano.
Candidate Rosemarie Bullock appeals from a decision of the Law Division granting the election challenge of Bullock's opponent, Christine Dansereau, in a Democratic primary election conducted on June 6, 2006 for a ballot position as Councilperson for the 5th Ward in Roselle Borough. Dansereau won in the general election in November 2006. We affirm.
On June 12, 2006, the county clerk certified Bullock as the winner of the primary contest with 285 votes (230 by machine, 1 provisional and 54 absentee) against Dansereau with 265 votes (258 by machine and 7 absentee). Dansereau contested the election by filing a verified petition and supplemental petition in the Law Division pursuant to N.J.S.A. 19:29-1, alleging that two voters had moved and that other absentee ballots bore evidence of mishandling by bearers, contrary to statute. The court entered an order dismissing the supplemental petition as untimely filed and the petition as failing to state a cause of action, which by emergent order of August 31, 2006 and supplemental opinion, we reversed, remanding the matter for a hearing on Dansereau's proofs.
Following a six-day trial in September 2006 before another judge, during which thirty-eight witnesses testified, the court invalidated thirty-one absentee ballots, determining twenty-eight of them contained clear "bearer" violations. The court found the absentee voters failed to properly follow the instructions regarding how such voter was to relinquish custody of the absentee ballot to the bearer, primarily in that the absentee ballots were improperly transported by a bearer who did not take the ballot from the voter or who failed to complete the bearer portion of the outer envelope in the voters' presence in violation of N.J.S.A. 19:57-37.1 and N.J.S.A. 19:57-16. The court apparently assumed that because Dansereau only received seven absentee ballot votes, that was the maximum number of invalid absentee ballots that could be attributed to her. It thus deducted the remaining twenty-four invalid absentee ballots from Bullock's total, leaving her with only 261 valid votes, while Dansereau retained 265 valid votes. By order of September 29, 2006, the court declared Dansereau the victor of the Democratic primary.
We granted Bullock's motion for emergent relief and by order and opinion of October 12, 2006, we remanded for clarification or modification of the trial court's decision, including a statement of the basis for how it determined which ballots should be deducted from each candidate and an explanation as to why it subtracted only twenty-four invalid absentee votes.
On October 13, 2006, the trial court issued an oral decision, noting it had "earlier determined that there was a concerted effort on behalf of those acting on behalf of Candidate Bullock to get out to vote[;] [u]nfortunately it appears that those assisting her were untrained in the technical requirements of the Absentee Voter Act," and explaining in detail its additional findings regarding each witness. The court modified its prior mathematical calculations and deducted twenty-eight votes from Bullock's total, citing the case law and concluding the trial testimony supported a finding by the preponderance of the evidence that such absentee ballots be "invalidated as a result of actions taken by persons on behalf of the Bullock campaign." The court found the voters acted "perhaps unwittingly, but nonetheless violated the [A]ct placing their votes in danger of invalidation by their haphazard manner of delivery," which was the "responsibility of the voter as well [as] whoever they handed the ballot to." Concluding there were "improprieties" on behalf of the Bullock campaign warranting invalidation of the ballots and the subtraction of twenty-eight votes from appellant, the court stated:
I've heard the testimony; I've made my findings now where I've concluded that 28 of the 31 absentee votes were invalidated as a result of wrongful actions of the Bullock campaign, wrongful, not fraudulent, wrongful actions and carelessness of the voters in giving their ballots to those associated with the Bullock campaign. The citizens all thought they were doing the right thing, but there is a law. The law is there for a reason [which] is to prevent the possibility of fraud, and thus under the facts of this case I can reasonably determine that those ballots were cast for Bullock.
The court further determined that Dansereau, who had the burden of proof, failed to produce evidence: (1) that the other three invalidated absentee ballots were transported by the Bullock campaign or (2) as to the selection of candidates by each of those voters. Accordingly, the court subtracted those three votes from Dansereau's total number, resulting in a new total of 262 votes for Dansereau (265-3) and 257 votes for Bullock (285-28). By order of October 13, 2006, the court directed the Union County Board of Elections (Board) to annul the certificate of election of Bullock and certify Dansereau as the victorious candidate in the Democratic primary.
The trial court denied Bullock's request for a stay of its order. We denied Bullock's application for emergency relief, as did the Supreme Court. In the general election on November 7, 2006, Dansereau was elected as a 5th Ward Councilperson. This appeal ensued.
Bullock asserts the following arguments on appeal: (1) summary judgment was properly granted in her favor on Dansereau's petition and amended petition based on the pleadings' lack of specificity and failure to set forth a cause of action for an election contest under N.J.S.A. 19:29-1, i.e., failing to assert and establish a sufficient number of illegal votes were cast to change the election result; (2) following the initial remand, the court erred in denying her motion to dismiss Dansereau's complaint on sufficiency grounds; (3) during the September trial, the court erred in denying her motion to strike the testimony of five witnesses whose names were not provided in Dansereau's proffer of witnesses; (4) in its September decision, the court incorrectly calculated the total votes cast for each candidate and should have reduced Dansereau's total by seven votes, the number of absentee ballots she received, which would have given appellant a victory; (5) the court erred when it unnecessarily invalidated the thirty-one absentee ballots on technical grounds and thereby disenfranchised voters; and (6) the court improperly assumed that twenty-eight of thirty-one ballots were cast for appellant without testimony as to how each of the voters voted. Appellant requests we affirm the August 22, 2006 order dismissing Dansereau's complaint, certify appellant as the winner of the 5th Ward primary and remove Dansereau from the Borough Council. In the alternative, appellant requests we vacate the current 5th Ward council seat and direct the scheduling of a special election.
Dansereau argues in response that the appeal should be dismissed as moot since the general election has already been held. She further contends appellant's challenges to the sufficiency of the contestant's pleadings, the court's trial rulings regarding witness testimony, and the court's September 2006 calculation and its invalidation of thirty-one ballots have been waived or resolved against appellant in connection with the prior appeals filed in this case. Both Dansereau and the Board additionally argue that the trial court's decision to invalidate thirty-one absentee ballots and its conclusion that ...