March 18, 2008
IN RE THE CONTEST OF THE NOVEMBER 7, 2006, RECALL ELECTION OF NANETTE COURTINE.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 sixty-two vote difference and require that this election be set aside in that regard.
And to make that analysis, the court looks at all of the underlying circumstances as to whether the ballots should be invalidated in effectuating the legislative intent in establishing voter requirements and that we do not lightly void ballots and disenfranchise voters because that is a very harsh remedy. And you are really looking at the circumstances.
Turning to the facts in this case, the trial court stated that:
Giving . . . the most favorable facts to the plaintiff, the petitioner here, people were handing blank applications for absentee ballots and literature urging people to vote by absentee ballots. Again, there is nothing in the distribution process that is somehow violative of statutory law in that regard, and telling people you should vote for people by absentee ballot, and by the way vote for Betty Simmons, and look at Mr. Holeman, even the Democratic candidate here is supporting Betty Simmons, and this is what you should do in that regard.
The trial court found no irregularities with respect to the completion and mailing of the absentee ballots themselves.
The trial court then considered the depositions of two individuals who claimed to have received their ballot applications and absentee ballots at the same time. The trial court did not find their testimony credible since the County Clerk will not mail out an absentee ballot unless an application has been received. Further, the court found "no evidence that somehow there were fraudulent signatures [used] here to obtain . . . ballot[s]."
The trial court then concluded, stating that:
"[W]here . . . there is no legislative declaration, the courts consider the nature of the irregularity, its materiality, the significance of its influence and consequential derivations in order to determine whether the digression or deviation from the proscribed statutory requisitions had in reasonable probability so imposing and so vital an influence on the election proceedings as to have repressed or contravened a full and free expression of the popular will, and thus deduce the legislative intent reasonable to be implied." [Sharrock v. Keansburg, 15 N.J. Super. 11, 17 (App. Div. 1951).]
And really that applies here because . . . there was a sixty-two vote differential, a very large differential on only 204 votes.
And there is nothing shown to the court in the evidence that the actual ballots that were completed by the voters were somehow tainted or their secrecy was violated or they were pressured in terms of how they completed the ballot and who they voted for in that regard.
So whatever deviations there were here in aggressive campaigning and telling people we will help you fill out applications for your ballot . . . [these deviations were] more in the nature of ministerial violations than of undue influence in that regard.
There is simply no evidence in this case to indicate that somehow there was overall fraud in the election process that tainted how these sixty-two individuals may have voted or even how these fourteen individuals ended up in terms of voting in this matter.
And so for all of these reasons, the court is dismissing the complaint and affirming the election of Betty Simmons as Mayor.
Our review of the findings of the trial judge is generally limited, and we will sustain those findings if they could reasonably have been reached based on the sufficient credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co of Am., 65 N.J. 474, 484 (1974). However, where solely questions of law are involved, this court will not give the trial court decision any special deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). After applying these standards of review to this case and giving careful consideration to the record, including the arguments of counsel, we affirm, substantially for the reasons expressed by the trial judge in his complete and thoughtful decision. We add only the following observations.
With respect to Courtine's argument that the election results are suspect because a disproportionate number of people voted by absentee ballot in this election than in past elections, we note that the law had recently been amended, effective July 7, 2005, allowing any "qualified and registered voter of the State who wants to vote by absentee ballot" to do so. N.J.S.A. 19:57-2, -3.
We further note that Courtine lost the election by sixty-two votes, yet she challenged only fourteen votes, an insufficient number to overturn the election results under N.J.S.A. 19:29-1(e), which requires that the number of illegal votes must be "sufficient to change the result."
In the cross-appeal, Mayor Betty Simmons seeks statutorily mandated costs under N.J.S.A. 19:29-14, which provides that if the election is confirmed or the petition is dismissed or fails, then the contestant is responsible for "costs." Since the election was confirmed and the petition dismissed, Simmons sought costs. The trial court awarded Simmons $135 in reimbursement for the filing fee incurred to answer the petition. Simmons also sought an additional $1,670 in deposition costs. The court denied this portion of her application, stating in a brief statement at the bottom of the order of February 23, 2007, that the "parties agreed to deposition procedure for trial and accordingly, such costs are not awarded."
Simmons maintains that she is entitled to deposition costs, relying on N.J.S.A. 22A:2-8, which defines costs to include "[t]he legal fees paid for a certified copy of a deposition or other paper or document, or map, recorded or filed in any public office, necessarily used or obtained for use in the trial of an issue of fact or the argument of an issue of law, or upon appeal, or otherwise."
The award of costs falls within the discretion of the court. Buccinna v. Micheletti, 311 N.J. Super. 557, 564 (App. Div. 1998); N.J.S.A. 2A:15-59. Generally, deposition costs are not allowed as taxed costs. Buccinna v. Micheletti, supra, 311 N.J. Super. at 564. In this case, the trial court was well within its discretion to deny deposition costs as taxed costs in light of the general prohibition in allowing this cost and the fact that defendant had agreed to use the depositions in lieu of witness testimony.
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