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James King v. Nidia R. Lopez

December 7, 2010

JAMES KING, PLAINTIFF,
AND NORRICE RAYMAKER, PLAINTIFF/INTERVENORAPPELLANT/CROSS-RESPONDENT,
v.
NIDIA R. LOPEZ, DEFENDANT-RESPONDENT/ CROSS-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3303-09.

The opinion of the court was delivered by: Miniman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: July 13, 2010 -- Decided: Before Judges R.B. Coleman and C.L. Miniman.

The opinion of the court was delivered by MINIMAN, J.A.D.

Plaintiff-Intervenor Norrice Raymaker (Raymaker) appeals from a December 4, 2009, judgment dismissing her N.J.S.A. 19:29-1 petition to annul the certification of election issued to defendant Nidia R. Lopez (Lopez) and to remove Lopez from office. Lopez cross-appeals from an October 16, 2009, order denying her motion for summary judgment on the ground that this action was time-barred under N.J.S.A. 19:29-3. We affirm but do so on other grounds, namely that the action was not filed within thirty days of the election in question.

The following facts are drawn from the judge's opinion and the pleadings in the case. Lopez was elected on May 12, 2009, as the Ward C councilperson in Jersey City by a very significant majority, more than all other candidates combined. One of those candidates, plaintiff James King, who placed second in the election, instituted this action on June 26, 2009, contesting the results of the election on the ground that Lopez was not registered to vote in and was not a resident of Ward C for the year preceding the election. He alleged that Lopez had consistently declared that Orlando, Florida was her permanent residence for the past ten years. He further alleged that she was known as Nidia Boehringer in Florida, where she was registered to vote and had a driver's license.

Additionally, King asserted that Lopez affirmed that her Florida home was her permanent address for each of the past ten years to secure a homestead tax exemption; further, she affirmed that she was a licensed Florida driver and registered voter. He contended that Lopez was ineligible to hold office, a ground for setting aside the election pursuant to N.J.S.A. 19:29-1(b). Finally, he alleged that Raymaker was the third-place candidate out of six candidates. He sought a judgment setting aside the certificate of election and declaring the office vacant. Raymaker subsequently petitioned to intervene after she heard that King was considering dismissal of his action.

On September 18, 2009, Lopez prepared a notice of motion for summary judgment dismissing plaintiffs' petitions. Lopez argued that the action had not been brought within thirty days of the election as required by N.J.S.A. 19:29-3, and no extenuating circumstances had been shown for the late filing. Raymaker responded that the action was brought in a timely manner by King and that Raymaker could intervene in an already timely action without having to separately satisfy the time limitation of the statute.

The judge found that the election was held on May 12, 2009, and King filed his complaint on June 26, 2009. He noted that in entering the initial order to show cause on July 2, 2009, he had found that the late filing fell within an exception to the thirty-day requirement of the statute. This was because King asserted that he only became suspicious after the election when Lopez filed some papers indicating a campaign contribution from a Florida donor. The judge also found that when Raymaker moved to intervene and then filed her intervening petition on August 17, 2009, King had not yet dismissed his complaint. He determined that the filing deadline was tolled by the pendency of King's complaint. As such, the action was timely filed, and he denied summary judgment on October 16, 2009. The matter was reached for trial on October 26, 2009.

After hearing the proofs, the judge determined as a threshold issue that Raymaker had the burden to prove by a preponderance of the evidence that Lopez was ineligible for elected office,*fn1 rejecting case law calling for proof by clear and convincing evidence.*fn2 The judge found that the following facts were undisputed.

1. Prior to 1996, Lopez and Karl Boehringer were married and she was domiciled in New Jersey and she registered to vote here.

2. Between 1996 and 2000, Lopez was domiciled in Florida and she registered to vote there.

3. Starting in 1996, before Lopez and Boehringer were divorced, Lopez stayed with Ben Lopez at his Corbin Avenue house when she was in New Jersey.

4. In 2000, Lopez divorced Karl Boehringer.

5. Ms. Lopez married Ben Lopez on July 4, 2001, and since then has lived with Mr. Lopez at the Corbin Avenue address. She travels to Florida about seven times a year, and spends 7-10 days there on each trip. She has always returned to her Corbin Avenue address.

6. Upon her return to New Jersey in 2001, Ms. Lopez re-registered to vote in with [sic] the Hudson County Board of Elections and has been and ...


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