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Barrella v. Barrella

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 24, 2010

COMMITTEE TO RECALL VINCENT R. BARRELLA, PLAINTIFF-RESPONDENT,
v.
VINCENT R. BARRELLA, MAYOR OF THE BOROUGH OF POINT PLEASANT BEACH, DEFENDANT-APPELLANT, AND MARYANNE ELLSWORTH, MUNICIPAL CLERK FOR THE BOROUGH OF POINT PLEASANT BEACH, DEFENDANT-RESPONDENT.

On appeal from the Superior Court, Law Division, Ocean County, Docket No. L-3088-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically argued April 26, 2010

Before Judges Rodríguez and Chambers.

Defendant Vincent R. Barrella, the Mayor of the Borough of Point Pleasant, appeals from the order of February 18, 2010, stating that the petition to recall Barrella from his position as mayor contained 951 signatures and otherwise complies with N.J.S.A. 19:27A-9 and -10. The order directed the municipal recall official to issue a certificate that the petition is sufficient and directed that unless Barrella resigned from office, a recall election be held.

Barrella contends that due to numerous deficiencies in the procedures used to obtain the signatures and in the signatures themselves as well as other reasons, the petition is not sufficient to require a recall election. We disagree and affirm.

I.

Plaintiff Committee to Recall Vincent R. Barrella (the Committee) filed a notice of intention to recall Vincent R. Barrella as Mayor of Point Pleasant Beach on December 8, 2008, as required by N.J.S.A. 19:27A-6. After several attempts, its form of petition, seeking that a recall of Barrella be placed on the ballot for the November 3, 2009 election, was accepted by the Point Pleasant Beach Recall Election Official on March 10, 2009. As permitted by N.J.S.A. 19:27A-8(c), the petition did not provide reasons for seeking the recall of Barrella.*fn1 The Committee then began to solicit signatures for the petition.

Pursuant to N.J.S.A. 19:27A-5, in order to initiate a recall election, a recall petition must [B]e signed by a number of registered voters of the jurisdiction of the official sought to be recalled equal to at least 25% of the persons registered to vote in that jurisdiction on the date of the general election preceding the date on which the sponsors of the petition file a notice of intention pursuant to section 6 of this act.

That number was calculated to be 884 signatures.

On June 23, 2009, before the statutory deadline under N.J.S.A. 19:27A-10 had run, the petition was filed with the municipal recall election official. The petition contained 1,217 signatures, substantially more than the minimum required. In accordance with N.J.S.A. 19:27A-11, the municipal election official reviewed the petition and determined that the petition contained 890 valid signatures. The parties exercised their rights to challenge the determination of the recall election official under N.J.S.A. 19:27A-12. Barrella challenged the acceptance of certain signatures, and the Committee challenged the rejection of other signatures.

Under those circumstances, the recall election official was required to determine the validity of the objections. Ibid. After further submissions by the parties, the recall election official determined that the petition contained only 807 valid signatures and thus failed to trigger a recall election. As permitted by N.J.S.A. 19:27A-12, the Committee filed an action to contest this decision in the Superior Court.

II.

Extensive proceedings were conducted before the trial court, including seven trial days in which more than thirty witnesses testified. The trial court ruled on the multitude of challenges made to the determinations of the recall election official. In its well reasoned and detailed findings, the trial court made the following rulings.

The trial court determined that the recall election official improperly allowed thirty-four signatories to the petition to remove their signatures after the petition had been filed, relying on Mocco v. Picone, 203 N.J. Super. 443 (App. Div. 1985) and In re Ross Petition, 116 N.J. Super. 178 (App. Div. 1971).

The trial court concluded that the recall election official was arbitrary and capricious when she rejected all of the signatures of people who had signed the petition more than once.

The trial court determined that one signature for each of these people should be counted. Of course, their successive signatures would not be counted. This ruling resulted in an additional seventeen signatures being added to the count of valid signatures.

Relying on In re Municipal Election Held on May 10, 1994, 139 N.J. 553, 558 (1995), the trial court determined that the recall election official properly rejected the signatures of petitioners who failed to check the box next to their name.

The trial court also determined that the recall election official improperly rejected the signatures of individuals who interchanged or hyphenated their married names with their maiden names. The trial court determined that their signatures should be counted because they were qualified registered voters of the municipality. As a result, the trial court added seven signatures to the petition's final count.

The Committee also had challenged the rejection by the recall election official of signatures she found to be inconsistent with the signatures in the voter registration system. To resolve this issue, the trial court reviewed the signatures on the petition and compared them with the signatures in the statewide registration system records and the certifications signed by the signatories attesting to the validity of their signatures on the petition. The trial court located eighty-seven signatures rejected because of discrepancies between the signature or address on the petition and the voter registration system. The trial court relied on Stone v. Wyckoff, 102 N.J. Super. 26, 34 (App. Div.), certif. denied, 52 N.J. 254 (1968), where we explained that the signature on the petition need not be in identical form to that in the voter registration ledger. The trial court also noted that some people signed the petition standing outside with the use of a clipboard propped on the hood of a car or against the side of house which would also affect the appearance of their signatures. The trial court concluded that the recall election official improperly rejected eighty-four of these signatures but properly rejected three of the signatures.

The recall election official had also rejected twelve signatures because the printing accompanying the signatures was identical to that in an adjacent entry. She concluded that the printing was not personally affixed by the signatory and that this violated N.J.S.A. 19:27A-8(d). The trial court noted that the signatures involved were apparently married couples residing at the same address whose signatures followed each other sequentially on the petition and one spouse had written in the address for the other. The trial court found that all twelve signatures should be allowed as valid signatures, noting that there was no suggestion that the addresses were inaccurate and that the purpose of N.J.S.A. 19:27A-8(d), in requiring the printing of the signatories' name and addresses, was to allow the election official to verify the person's residency and voting registration.

The recall election official had refused to recognize four signatures because the notary had not signed the page on which those signatures appeared although the notary's stamp and seal with commission expiration date had been fixed to the page. The trial court concluded that the absence of the notary's signature was insufficient to disqualify those signatures, noting the liberal construction to be applied to the recall election statute. See Comm. to Recall Casagrande v. Casagrande, 304 N.J. Super. 496, 502 (Law Div.), aff'd, 304 N.J. Super. 421 (App. Div. 1997).

The recall election official had rejected the signature of Joseph Bilotti on the basis that two people signed the petition as Joseph Bilotti. Bilotti acknowledged that one of those signatures was not his and said it may be the signature of his son who also lives in Point Pleasant Beach. He identified the other signature as his. The recall election official also rejected Bilotti's signature on the basis that it did not match his signature as it appeared on the petition in his capacity as a circulator of the petition. The trial court "emphatically" rejected the recall election official's determination that Bilotti's signatures did not match, and found Bilotti's testimony to be credible. The trial court found his signature to be valid.

Barrella also raised numerous challenges to the qualifications of the circulators of the petition. Barrella contended that Bilotti was not eligible to serve as a circulator for the petition because he was not qualified to vote in Point Pleasant Beach. The statute requires that a circulator of a petition must be a registered voter in the jurisdiction where the official whose recall is sought was elected. N.J.S.A. 19:27A-9(a). As a result, Bilotti had to be a registered voter in Point Pleasant Beach to qualify to circulate the petition. The record is undisputed that Bilotti is a registered voter in Point Pleasant Beach. However, Barrella argued that Bilotti was domiciled in Point Pleasant Borough where he owns a home and not in Point Pleasant Beach where he owns a motel with an apartment.*fn2

The trial court found Bilotti to be a credible witness and accepted his testimony that Point Pleasant Beach was his primary residence where he lives most of the time, although he lives in Point Pleasant Borough in the summer months to avoid the crowded and noisy motel of Point Pleasant Beach.

Barrella also had contended that fifteen pages of the petition lacked proper certifications because the purported circulator did not assume sole responsibility for circulating that petition section and did not personally witness each person affix their signature to the petition. As a result, he maintains that the signatures on those sections should have been rejected by the trial court.

In making this argument, he relied upon statutory language requiring that:

Each completed page of any section of a recall petition which is filed with the recall election official shall include at the bottom of that page an affidavit signed by the circulator of that section which sets forth the following:

....

(3) a statement that the circulator assumed responsibility for circulating that section, that the circulator witnessed the signing of that page by each person whose signature appears thereon, that, to the best information and belief of the circulator, the signers are legal residents of the State and of the county in which the section was circulated, and that the section was circulated in absolute good faith for the purpose of causing the recall of the elected official named in the petition. [N.J.S.A. 19:27A-9(b).]

Specifically, Barrella challenged pages certified by Bilotti and Fischer as circulators who on occasion went out together when collecting signatures. At trial, a number of signatories to these pages testified that the person certifying the page was not the person who solicited their signature. Bilotti and Fischer each testified that he had witnessed every signature on the pages he certified. The trial court found Bilotti and Fischer to be credible witnesses and found that each had witnessed every signature on the pages he certified. It concluded that some of the signatories had misremembered what had happened and a few lacked credibility.

Barrella also challenged pages certified by three other circulators. The trial court rejected one signature certified by a circulator, finding that she had not witnessed that signature and the signature had been affixed by the purported signatory's fiancé. The trial court declined to reject all the other signatures on the page she certified due to this one defect relying on Stone v. Wyckoff, supra, 102 N.J. Super. 26. In Stone v. Wyckoff, supra, faced with similar circumstances under the former recall statute, we stated that "[t]he request [to void all signatures on the page] is frivolous. The technical untruthfulness of the affidavit in the respect noted does not necessarily condemn the carrier's testimony as to the genuineness of all other signatures on his petition." Id. at 32.

The trial court found the certification of another circulator to be unreliable and rejected the fourteen signatures on the page he certified. While a question of fact was presented on the validity of the certification of yet another circulator, the trial court did not resolve that issue because the number of signatures on the pages involved would not have affected the outcome of the case and hence the question was treated as moot. The trial court declined to reinstate fifteen signatures with missing dates or dates that were outside the timeframe when the petition was circulated.

Barrella also asserted that the petitioning process violated the statutory provision requiring that "[n]o obstruction shall be placed over any portion of a page of a petition section at the time that page is presented to a voter to be signed." N.J.S.A. 19:27A-8(g). He contended that the petition was presented to the voters on a clipboard which obscured a portion of the petition. Rejecting this contention, the trial court stated:

There was no persuasive evidence that any of the signatories were in any way prevented from reading any portion of the petition.

In fact, each checked the box, in accordance with the statute, indicating that they had read the top - that they had read the petition, and more specifically, the top of the petition. The witnesses who appeared testified that either they could not recall the details of how the petition was presented, which is understandable given the fact that they were testifying some five to six months after the event, or that they could not - or that they could read the petition and knew what they were signing.

In view of the record, it is significant that each petitioner checked the box indicating that they had read the top portion of the petition.

At a hearing on September 4, 2009, Barrella argued that the recall petition should be declared a nullity because the recall election could not be scheduled for November 3, 2009, the date for the election set forth in the petition. The petition contained the following statement:

The act of signing this petition complies with New Jersey Law which requires at least 25% of the number of the registred [sic] voters of the last general election of Point Pleasant Beach to be in favor of a Recall Election of Mayor Vincent R. Barrella to be held during the next general election on November 3, 2009.

Due to certain mandatory timeframes, it was too late to schedule the recall election for November 3, 2009.

The recall statute, however, does not require that the petition state a specific date for the election but merely provides:

In the case of an office which is ordinarily filled at the general election, a recall election shall be held at the next general election occurring at least 55 days following the fifth business day after service of the certification, unless it was indicated in the notice of intention that the recall election shall be held at a special election....

[N.J.S.A. 19:27A-13(a)(2).]

The trial court noted that this statutory language fixing the date of the recall election at the next general election was mandatory. Quoting Comm. to Recall Casagrande v. Casagrande, supra, 304 N.J. Super. at 502, the trial court stated that due to the "overriding public interest in the petition for recall, [courts] have held that such laws are to be liberally construed subject to governing constitutional and statutory provision." The trial court concluded that the reference to the November 3, 2009 election date was "aspirational and nothing more," and the petition was not void because the recall election could not be held on that day.

The trial court entered an order dated February 18, 2010, concluding that the petition contains 951 valid signatures and otherwise complied with N.J.S.A. 19:27A-9 and -10. The order directed the recall election official to fix the recall election date in accordance with N.J.S.A. 19:27A-13(a)(2). The trial court denied Barrella's application for a stay.

III.

Barrella appealed to this court. On Barrella's emergent application, we stayed the trial court's order and the running of the time periods under N.J.S.A. 19:27A-13, and placed this case on our calendar.

In this appeal, Barrella raises the following issues:

Point I

The trial court's decision that the appellant was barred procedurally from introducing evidence of irregularities in the process and circulator misconduct because he did not initiate litigation challenging the decision of the recall election official in his favor constitutes reversible error.

Point II

The trial court's error in failing to find that those sections/pages of the petition lacking proper certification must be disregarded in determining the number of valid signatures warrants reversal.

Point III

The trial court's error in failing to declare the petition void in its entirety because of the extensive failure to comply with the statutory requirements of the uniform recall election law warrants reversal.

Point IV

The violation of section 8(g) of the uniform recall election law by circulators of the petition warrants reversal.

Point V

The uniform recall election law imposes upon the circulators of a petition a duty of absolute good faith which includes a requirement that they stay within the four corners of the petition in soliciting signatures and their failure to do so warrants reversal.

Point VI

The recall election official had a duty and obligation to verify that the signatures on the petition were personally affixed by signers and the trial court's reinstatement of those signatures she disallowed warrants reversal.

Point VII

The trial court properly sustained the disallowance of signatures where no dates were affixed or the dates were outside the range of circulation, however, the court erred in not disallowing additional signatures falling within this category. Point VIII

The trial court erred in holding that the recall election official improperly disallowed those signatures where there is no evidence that a signatory personally affixed the information required by section 8(g) nor personally checked the box.

Point IX

The trial court's miscellaneous errors relating to the disallowance of signatures by the recall election official.

Point X

The trial court's error in failing to hold that Joseph Bilotti was not entitled to act as a petition circulator and that the signatures purportedly collected by him should be disregarded in determining the number of valid signatures on the petition warrants reversal.

Point XI

The plaintiff through its recall petition chose November 3, 2009 as the date of the recall election, as that date[] has passed, the lower court erred in failing to dismiss plaintiff's complaint as moot.

In our review of the trial court decision, we are mindful that election laws, including the recall statute, are "liberally construed" so that "voters are permitted to exercise the franchise and that the will of the people as expressed through an election is heard." Comm. to Recall Robert Menendez v. Wells, ___ N.J. Super. ___ (App. Div. 2010) (slip op. at 20-21) (quoting In re the Contest of the Nov. 8, 2005 Gen. Election, 192 N.J. 546, 559 (2007)). As a result, we interpret election laws in a way "to allow the greatest scope for public participation in the electoral process, to allow candidates to get on the ballot, to allow parties to put their candidates on the ballot, and most importantly to allow the voters a choice on Election Day." Id. at 21 (quoting N.J. Democratic Party, Inc. v. Samson, 175 N.J. 178, 190 (2002)). In keep with this principle of liberal construction and the purpose of allowing voter participation in the election process, "[t]echnical mistakes made in good faith pertaining to ministerial functions should not be permitted to deprive citizens of their franchise or render an election void for technical reasons." Comm. to Recall Casagrande v. Casagrande, supra, 304 N.J. Super. at 506.

Further, on appeal, we defer to the factual determinations of the trial judge provided they are "supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We will overturn the trial court's findings only when "they are so wholly insupportable as to result in a denial of justice." Id. at 483-84 (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd o.b., 33 N.J. 78 (1960)). We exercise our "original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter." Ibid. We defer to the trial judge's factual findings because those findings "are substantially influenced by his or her opportunity to hear and see the witnesses and to get a 'feel' for the case that the reviewing court [cannot] enjoy." Twp. of W. Windsor v. Nierenberg, 150 N.J. 111, 132 (1997). The trial court which has the opportunity to hear the testimony and observe the witnesses is better able to evaluate their veracity.

Id. at 132-33. However, our review is de novo on questions of law and "the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

In light of these standards, we have carefully reviewed the record, the arguments of counsel, the relevant law, and the trial court decisions. We find no basis to overturn the trial court's order.

Barrella challenges many of the trial court's rulings that turned on the credibility of witnesses. For example, Barrella challenges the pages that Fischer and Bilotti certified as a circulators, contending that they did not satisfy the statutory requirement that the circulator must have "assumed responsibility for circulating that section [of the petition]" and must have "witnessed the signing of that page by each person whose signature appears thereon." N.J.S.A. 19:27A-9(b)(3). Despite the contrary testimony of some signatories, the trial court found credible the testimony of Fischer and Bilotti that in fact they had been present and witnessed the signatures on each page they certified. The findings by the trial court that Bilotti and Fischer did in fact secure and witness the signatures is, thus, supported by adequate and credible evidence in the record and is binding upon us. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., supra, 65 N.J. at 484.

For similar reasons, we reject Barrella's argument that Bilotti was ineligible to serve as a circulator on the theory that he was not domiciled in Point Pleasant Beach. The trial court believed Bilotti's testimony that he lived the majority of his time in Point Pleasant Beach and considered that municipality his domicile. Resolution of this issue turned in large part on the credibility of the witnesses, and we defer to the trial court's findings on this point. See ibid.

We note that defendant raises legal issues in this appeal, such as whether the complaint is moot because the recall election could not be placed on the ballot in time for the election date named in the petition and whether the signatures on the petition had to match those in the voter registration records. After careful consideration, we conclude that the trial court's resolution of these issues is consistent with the liberal construction of election laws noted above and the failure to let technicalities thwart voter intent. Comm. to Recall Robert Menendez v. Wells, supra, slip op. at 20-21; Comm. to Recall Casagrande v. Casagrande, supra, 304 N.J. Super. at 502, 506.

We also find no support in the statute for Barrella's argument that because the Committee did not set forth reasons in the petition for the recall, circulators breached their obligation of good faith when they spoke to potential signatories about the reasons they supported the recall petition. The statute allows a recall committee to set forth the reasons in the petition for the recall petition. N.J.S.A. 19:27A-8(c). When it does so, the official subject to the recall may provide a response that must also be included in the petition. Ibid. However, the petition need not contain a statement of reasons and when it does not, a response by the official subject to the recall may not be included. Ibid.

Barrella maintains that because the official subject to the recall is unable to provide a response to the verbal reasons given by circulators, the statute has been violated. He further contends that by giving reasons not set forth in the petition the circulators violated N.J.S.A. 19:27A-9(b)(3), which requires that a circulator circulate the petition "in absolute good faith for the purpose of causing the recall of the elected official named in the petition." When construing an election law statute, we "must assume the Legislature intended a reasonable approach, and should construe the statute to provide one if possible." Comm. to Recall Casagrande v. Casagrande, supra, 304 N.J. Super. at 502. The statute does not prohibit circulators and others from verbally giving reasons for the recall petition when no statement is included. We do not believe that the Legislature contemplated that circulators would approach a registered voter for a signature on a recall petition without explaining why the circulator was seeking the recall of the official. In re Att'y Gen.'s "Directive on Exit Polling: Media & Non-Partisan Pub. Interest Groups," 200 N.J. 283, 305 n.9 (2009) ("We will not read our election-law statutes to reach absurd results.").

We affirm for substantially the reasons provided by Judge Foster in his decision placed on the record on September 4, 2009. The issues raised in this appeal do not merit further discussion by this court. R. 2:11-3(e)(1)(E).

Affirmed.

The stay set forth in our order of March 3, 2010 is hereby vacated as of the date of this opinion.


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