September 2, 2010
OLIVIA CALDWELL, ETHEL SEYMORE, AND JEROME PAGE, PETITIONERS-APPELLANTS,
MELANIE GRIFFIN, DORIS GRAVES, JOHNNIE MCCLELLAN, ATLANTIC COUNTY SUPERINTENDENT OF ELECTIONS, ATLANTIC COUNTY CLERK, AND ATLANTIC COUNTY BOARD OF ELECTIONS, RESPONDENTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1541-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2010
Before Judges Axelrad, Fisher and Espinosa.
Petitioner-Appellants, Olivia Caldwell, Ethel Seymore and Jerome Page (collectively, petitioners), were unsuccessful candidates in the Pleasantville Board of Education election held on April 21, 2009. They appeal the dismissal of the challenge they filed to the results of the election pursuant to N.J.S.A. 19:29-1(e) and (f). We reverse and remand for further proceedings.
Petitioners filed a timely petition challenging the election of respondents, Melanie Griffin, Doris Graves and Johnnie McClellan. In their prayer for relief, petitioners asked the court to (a) modify the election results to revoke the certificates of election issued to the three successful candidates, and issue certificates of election to the petitioners; (b) direct respondents to preserve and produce documents and for a plenary hearing regarding absentee votes; and (c) in the alternative, order a new election. It is undisputed that the certified election results showed that the petitioners were the winning candidates based upon votes cast at the polls. However, 90% of the absentee ballots were cast for respondents Melanie Griffin, Doris Graves and Johnnie McClellan, and, when all the votes were tallied, that resulted in a victory for Griffin, Graves and McClellan. Petitioners submitted that this proportional irregularity was contrary to the customary result in which votes cast at the polls generally mirror those in absentee ballots.
In support of their application to overturn the election results, petitioners contended that the results were tainted by abuse and misuse of absentee ballots, particularly messenger ballots, i.e. absentee ballots cast through an "authorized messenger" pursuant to N.J.S.A. 19:57-4. In this election, David Callaway and Floyd Tally collectively served as messengers for more than two hundred voters. Petitioners focused upon their involvement as evidence that the messenger ballots were mishandled. They identified the following factors as warranting the relief sought: (1) Callaway and Tally had been charged with tampering with votes in a primary election; (2) the Atlantic County Superintendent of Elections testified that the number of messenger ballot applications in that primary election and in the instant election was "shocking"; (3) there was a significant imbalance in the results between poll votes and absentee votes; (4) petitioner's attempt to depose Callaway and Tally was unsuccessful; (5) they received congratulatory letters from two assemblymen and the Atlantic County Executive prior to the certification of election results by the Clerk; and (6) election results in 2006 school board elections in Pleasantville and Atlantic City had been challenged, albeit unsuccessfully.
During the course of discovery, John Piatt, a management specialist in the Atlantic County Clerk's office, was deposed. Piatt's testimony supported petitioners' contention that absentee ballots generally reflect an outcome similar to that in votes cast at the polls. He summarized the procedure followed by the Clerk's office in processing applications for messenger ballots and stated that the statutory requirements for reviewing and issuing messenger ballot applications were followed. In the instant election, Callaway and Tally were the only messengers. However, Piatt testified that there was no evidence that any of the absentee ballots, including messenger ballots, were illegal or improper.
John Mooney, the Atlantic County Superintendent of Elections, was also deposed. Mooney stated that he would have conducted an investigation if his office had received a complaint from a person or group of persons that messenger ballot applications were submitted for voters who were not sick or confined. However, his office did not receive any complaint from any Atlantic County resident alleging that Callaway or Tally abused the messenger ballot process in this election.
The record does not reflect any motions by petitioners to compel the deposition of any party or any voter whose ballot was cast with the use of a messenger.
On August 24, 2009, the court heard argument on petitioners' motion to order a new election or, alternatively, that the court revoke the certificates of election to the respondents and issue certificates of election to the petitioners. Although respondents did not file a motion to dismiss the petition, counsel orally asked the court to dismiss the petition with prejudice during the course of oral argument.
In a written opinion dated September 4, 2009, the court set forth its findings of fact and conclusions of law. Observing that liberal and substantial discovery had been granted to petitioners, the court distinguished between the "suspicions, speculation and surmise [that] abound on the part of the petitioners" and the proofs presented. The court stated, "If, in fact, illegal votes were cast in this Election or legal votes were diverted by the messengers, sufficient to change results due to misuse of absentee and/or messenger ballots, the petitioners have failed utterly to carry their burden of proof."
The judge noted that the number of messenger ballots did not constitute a basis for overturning the election because the applicable statute, N.J.S.A. 19-29:1(e), did not limit the number of messenger ballot applications any messenger could submit for an election.*fn1 She found no evidence of the following: that election officials failed to follow statutory messenger ballot procedures; of any voting "irregularities"; of fraud or malconduct; or that either the County Board of Elections or the Superintendent of Elections failed to discharge their statutory responsibilities. The court found it significant that the Superintendent did not receive any complaint regarding any abuse of the messenger ballot process and that no evidence had been submitted to the court from any voter or resident to indicate that the messenger process was tainted. The court then dismissed the petition with prejudice.
In this appeal, petitioners present the following issues for our consideration:
AS A MATTER OF LAW, THE PETITIONERS WERE ENTITLED TO HAVE A FAIR OPPORTUNITY TO DEMONSTRATE THROUGH PRESENTATION OF THEIR OWN CASE AND THROUGH CROSS-EXAMINATION OF THE RESPONDENTS AND THEIR MESSENGER-AGENTS THAT THE WILL OF THE ELECTORATE WAS FRUSTRATED UNDER THE CIRCUMSTANCES ESPECIALLY WHERE THE RESPONDENTS AND THEIR TWO AGENTS-MESSENGERS WHO GATHERED ALL THE TWO HUNDERDED SWING VOTES IGNORED THE DEPOSITION SUBPOENAS WITH COMPLETE IMMUNITY AND DISREGARD OF LITIGANTS' RIGHTS IN THE ELECTION CONTEST.
THE TRIAL COURT ERRED IN ITS APPLICATION OF THE APPLICABLE EVIDENCE STANDARD; CONTRARY TO RESPONDENTS' CONTENTION, THE RELEVANT STANDARD AT ISSUE WAS NOT THAT EACH OF THE TWO HUNDRED MESSENGER VOTES BE PROVEN DEFECTIVE, BUT THAT ENOUGH DOUBT OR TAINT WAS EVIDENT THAT THE WILL OF THE ELECTORATE MAY HAVE BEEN FRUSTRATED SO THAT NO "REASONABLE CERTAINTY" AS TO THE ELECTION RESULTS EXISTS.
THE APPELLANTS' DEPRIVATION OF PROCEDURAL DUE PROCESS AND PRE-TRIAL DISCOVERY RIGHTS WERE FURTHER UNDERSCORED BY THE REVELATION THAT RESPONDENT, SUPERINTENDENT OF ELECTIONS, MAY HAVE MISLED THE COURT WITH DISINGENOUS ARGUMENT THROUGHOUT BELOW THAT THERE WAS NOT A "SCINTILLA" OF WRONGDOING EVIDENCE IN THE GATHERING OF THE PIVOTAL C. 200 MESSENGER BALLOTS THAT SWAYED THE ELECTION - HOWEVER, RESPONDENT'S COUNSEL (A.G.'S OFFICE) PUBLICIZED ON THE EVE OF SUBJECT COURT ORDER AN INDICTMENT ALLEGING THAT THE TWO MESSENGER-AGENTS AS OF MARCH 25, 2009 WERE CONSPIRING TO COMMIT SIMILAR ELECTION LAW FRAUD WITH MESSENGER BALLOTS IN A NEIGHBORING COMMUNITY - THE SUBJECT APRIL 21, 2009 ELECTION WAS IN EFFECT A "DRY RUN" EMPLOYING UNCANNILY SIMILAR M.O.'S AND ELECTION BALLOT RATIOS AS IN THE JUNE 2, 2009 PRIMARY ELECTION.
After reviewing the record and briefs, we are satisfied that the trial court did not err in denying relief to petitioners for the reasons stated in her written opinion. However, we are constrained to reverse this matter and remand for further proceedings for the following reasons.
The petition here was governed by N.J.S.A. 19:29-1(e) and (f). Those provisions set forth the following grounds for setting aside election results:
e. When illegal votes have been received, or legal votes rejected at the polls sufficient to change the result;
f. For any error by any board of canvassers in counting the votes or declaring the result of the election, if such error would change the result;
N.J.S.A. 19:29-2 describes the verified petition that must be filed to commence an election challenge and includes the following requirement:
When the reception of illegal or the rejection of legal voters is alleged as a cause of contest, the names of the persons who so voted, or whose votes were rejected, with the election district where they voted, or offered to vote, shall be set forth in the petition, if known.
N.J.S.A. 19:29-5 describes the procedure to be followed:
The proceedings shall be similar to those in a civil action so far as practicable, but shall be under the control and direction of the court, which shall hear and determine the matter without a jury . . . .
The transcript of the August 24, 2009 appearance before the court reflects that it was the oral argument on petitioners' motion for affirmative relief, and the court describes it as such in its written opinion. During the argument, counsel for one of the respondents referred to the argument as petitioners' "motion for essentially a summary judgment on the issue." Although the Final Judgment refers to the proceeding as a hearing, no evidence was presented. If it was ordered or agreed that this matter would be decided based upon the briefs and submissions to the court prior to argument, that is not reflected in the transcript, the briefs of counsel or in the court's opinion. Although the trial court has broad authority to determine the manner in which the proceeding is conducted, N.J.S.A. 19:29-5, and to compel the attendance of witnesses and the production of documents, N.J.S.A. 19:29-6, the record does not present the procedure followed here as one that is reviewable as an exercise of discretion.
Petitioners assert that there was no motion filed by respondents seeking the dismissal of the petition with prejudice. Respondents have not denied this. The record does not show that respondents filed either a motion to dismiss the petition as insufficient, see In re Contest of the November 8, 2005 Gen. Election for the Office of Mayor of Twp. of Parsippany-Troy Hills, 192 N.J. 546, 568-69 (2007), or a motion for summary judgment.
In the absence of a proceeding conducted pursuant to N.J.S.A. 19:29-5 or motions to dismiss the petition, we are constrained to conclude that the dismissal of the petition with prejudice here was improper.
Reversed and remanded.