On appeal from Superior Court of New Jersey, Law Division, Morris County, L-3134-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 29, 2008
Before Judges Coburn, Grall and Chambers.
Appellant Nanette Courtine appeals from the denial of her challenge to the mayoral election of November 7, 2006, in the Borough of Victory Gardens. Respondent, current Mayor Betty Simmons, has filed a cross-appeal challenging the denial of her application for deposition costs. We affirm.
Courtine was serving as mayor of Victory Gardens when she was subject to a recall campaign. As a result, a recall election was placed on the ballot for November 7, 2006. Simmons ran as the Republican candidate for the position; David Holeman ran as the Democratic candidate; and Courtine ran as an Independent. The voters supported the recall by a vote of 133 to 71. Simmons won the election, with 121 votes; Courtine received 59 votes; and Holeman received 17 votes.
On November 17, 2006, Courtine filed a petition contesting the election under N.J.S.A. 19:29-1(a) and (e), on the grounds that the election involved fraud and corruption and that a number of irregularities occurred with respect to applications for absentee ballots. She noted that a disproportionate number of voters used absentee ballots when compared to those used in previous elections. Courtine was permitted to inspect the absentee ballots and depose various voters. Once discovery was concluded, a trial on the election contest was scheduled for February 14, 2007, before the Honorable B. Theodore Bozonelis, A.J.S.C. No testimony was taken, but rather, by consent of counsel, the evidentiary record consisted of deposition testimony and documents.
After weighing the evidence and carefully reviewing the deposition testimony of various voters, the trial court, in an extensive oral opinion, rejected Courtine's challenge to the election and entered judgment confirming the election and dismissing her petition.
In reaching this conclusion, the trial court noted at the outset that the secrecy of the ballot process had not been infringed nor had any of the ballots been fraudulently completed.
[W]hat has been shown to the court here in terms of the fourteen or so depositions that have been submitted to the court is none of those are really showing to the court that there has somehow been a violation of secrecy in terms of the ballot process itself in terms of someone voting and how they voted in that regard and that any assistance that was received, albeit through very aggressive tactics of campaign workers, really was ministerial in nature in terms of a wife helping somebody or someone showing how you fill out an application itself.
There are no allegations that the signatures were fraudulent or . . . any allegations concerning how the ballots were completed in that regard . . . .
The trial court went on to reject Courtine's claim that she could contest the election under N.J.S.A. 19:29-1(e), which allows an election contest "[w]hen illegal votes have been received, or legal votes rejected at the polls sufficient to change the result." The court stated that since Courtine lost the election by sixty-two votes, the fourteen votes she challenged, even if wrongfully cast, would not have changed the result.
The trial court then considered Courtine's more general claim that the "aggressive campaign tactics, [along with] the overall amount of absentee votes and urging people to vote by absentee vote" created a tainted election under N.J.S.A. 19:29-1(a). In considering this argument, the trial court stated that:
[W]hen you plead fraud, it has got to be with specificity in that regard. And what really we need to look at here, citing Kirk v. French, 324 N.J. Super. 548 (Law Div. 1998), which was relied on by the petitioner . . . is [whether] there is a violation of the secrecy of the ballot here that somehow would taint this ...