On appeal from a Final Decision of the New Jersey Department of State, Office of The Secretary of State, Docket No. STE 4223-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Submitted May, 2, 2011
Before Judges Carchman, Graves and Messano.
Appellant Frederick Carlton "Carl" Lewis*fn1 appeals from an April 26, 2011 final decision of the Secretary of State (the Secretary) finding that appellant "was not a resident of New Jersey for the constitutionally required four years prior to the date of the election for the office of [State Senator]." On application to this court, appellant seeks emergent relief staying the decision pending disposition of the appeal; staying the printing of ballots pending disposition of the appeal; and expediting consideration of the merits of the appeal. We grant the motion to expedite the appeal, deny the motions for a stay, and on the merits, affirm the decision of the Secretary.
We briefly set forth the procedural background of this appeal. Appellant filed his nominating petition with the Division of Elections to run in the Democratic Party Primary Election for nomination as the party's candidate for the State Senate. That filing prompted petitioners William Layton and Ted Costa, two members of the Republican Party, to file objections to the petition asserting that appellant did not comply with the residency requirements of the constitution. The matter was referred to the Office of Administrative Law, and following a hearing, the Administrative Law Judge (ALJ) concluded that respondents had not met their burden of demonstrating that appellant "has not attained residency status to seek State Senate Office." As we have noted, the Secretary rejected the ALJ's decision and concluded that appellant's name should not appear on the ballot.
The facts were not in serious dispute. The only issue then became the analysis of the facts and the determination as to whether such facts supported the respective parties' contentions as to the bona fides of appellant's residence. In her decision, the Secretary made specific findings of fact and conclusions of law. In her conclusions, she generally set forth the facts that were adduced at the hearing before the ALJ. She determined:
In short, there is substantial, credible evidence in the record to conclude that Respondent has not resided in New Jersey for the four years required by our Constitution. While domicile is construed "broadly and flexibly," [Petition of] Kriso, 276 N.J. Super. [337,] 341 [(App. Div. 1994)](citations omitted), and certainly the articulated intent of the candidate is relevant, there must be at least some objective evidence that Respondent called New Jersey his home on or before the four year cutoff of November 8, 2007. Although Respondent claims a desire to reside in New Jersey, his actions in this case speak louder than his words. At best, it was not until November 16, 2007, when he purchased his own home that he committed himself to New Jersey and, even that flies in the face of his voting record and business dealings in California which continued through 2009.
In addition, the ALJ incorrectly found that Respondent purchased two properties in New Jersey in November 2005.*fn2 (Initial Decision at 4). There is no doubt Respondent purchased two homes. But the uncontroverted facts show the first home was purchased by Respondent for his mother in 2005. In fact, Respondent presented the closing statement for the property at the hearing. Respondent's uncontroverted testimony was that he did not buy his own home until November 16, 2007; eight days after the constitutional cutoff. Respondent also presented the closing statement for this property. While Respondent paid the property taxes and utility bills for his mother's condominium from the time of purchase, the only utility bills for Respondent's home were dated 2008, well after the constitutional cutoff.
The only other indicia relating Respondent to New Jersey are a driver's license Respondent obtained in 2006, which was recently renewed, and his testimony that, on occasion, he was a volunteer coach when he was in town at Willingboro High School since the spring 2007. He did not join a regular church until 2009. And he only registered to vote in New Jersey on the morning of his filing of his petition to run for office, April 11, 2011.
On the other hand, the ALJ noted, but did not consider, the weighty list of Respondent's ties to California. In 1997, Respondent moved to California and established residency there. He had three houses there. His business was based in California until some unspecified time and his office was there. He was a registered voter in California from 2002 until the day he filed his petition to run for office in New Jersey and voted in California in 2008 and 2009. Respondent also maintained a residence in Pacific Palisades, California until February 2008, still owns rental property there, and filed a state income tax return in California for the 2008 tax year. Respondent was not sure whether he filed a state income tax return for the tax year 2009 in California or New Jersey.
While the ALJ did not consider Respondent's direct and immediate ties to California, of greater concern was a complete disregard of the implications of Respondent's voting record. The ALJ wholly failed to address the mutual exclusivity of Respondent's declaration of California domicile as evidenced by his 2008 and 2009 voting record and his current claim of residence under the four-year residency requirement of the New Jersey Constitution. The California State Constitution requires voters to be residents of the State of California to be eligible to vote. See Cal. Const., Art. II § 2 (requiring voter to be "resident" of California); Cal. Const., Art. II § 3 (empowering legislature to define "residence"); Cal. Elec. Code § 349(a) (defining residence "for voting purposes [as] a person's domicile")[(alteration in original)]. Respondent testified that he understood and signed the California voter declaration each time he voted in California. Each time he voted in California, Respondent acknowledged he was a resident of, and was domiciled in, California. The acknowledgement was made subject to criminal penalties. By definition, Respondent could not have been a resident and domiciliary of New Jersey for the last four year if as recently as 2009 he was a resident and domiciliary of California. The ALJ did not address this conundrum. Respondent's repeated compliance with the clear legal obligations for voting under California law is powerful evidence of his intent to remain active and present in California and thus, a resident and domiciliary there.
The Secretary then concluded that appellant was not a resident of New Jersey for a period of four years as required by Article IV, Section 1, paragraph 2 of the New Jersey Constitution. She declined to accept the recommendation and findings of the ALJ to the contrary. This appeal followed.
On appeal, appellant asserts that petitioners, members of the Republican Party who are not eligible to vote in the Democratic Party primary election, do not have standing to challenge a candidate in a Democratic primary election; the four-year residency requirement is unconstitutional; and petitioners failed to meet their burden.
While appellant has moved for emergent relief including various stays and an expedited appeal, the parties have fully briefed the extant issues. As time is of the essence regarding appellant's status as a candidate, in the interests of justice and an expeditious resolution of the issues, we address the merits ...