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William Layton and Ted Costa v. Frederick Carlton "Carl" Lewis


May 2, 2011


On appeal from a Final Decision of the New Jersey Department of State, Office of The Secretary of State, Docket No. STE 4223-11.

Per curiam.


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 of the appeal. Accordingly, we grant appellant's motion to expedite the appeal.

We first address the merits and in so doing, focus on our standard of review.

"There are well-recognized principles governing the judicial review of administrative agency determinations. Appellate courts have 'a limited role' in the review of such decisions." In re Anthony Stallworth, ____ N.J. ____ (2011) (slip op. at 13) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). We will affirm an agency decision so long as it is supported by the evidence, even if we may question the wisdom of the decision or would have reached a different result. Stallworth, supra, ____ N.J. at ____ (slip op. at 14-15). This is especially relevant where, as here, reasonable persons could assess the same uncontroverted evidence and reach a different result.

Furthermore, a strong presumption of reasonableness attaches to an agency decision. In re Carroll, 339 N.J. Super. 429, 437 (App. Div.), certif. denied, 170 N.J. 85 (2001). With respect to factual findings, agency findings "'are considered binding on appeal, when supported by adequate, substantial and credible evidence[.]'" In re Taylor, 158 N.J. 644, 656 (1999) (quoting Rova Farms Resort Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

We will reverse an agency's judgment, if we find that the agency's decision is "'arbitrary, capricious, or unreasonable, or [ ] not supported by substantial credible evidence in the record as a whole.'" Stallworth, supra, ____ N.J. at ____ (slip op. at 14) (alteration in original) (quoting Henry, supra, 81 N.J. at 579-80)).

In determining whether agency action is arbitrary, capricious, or unreasonable, we must examine:

"(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors." [Stallworth, supra, ____ N.J. at ____ (slip op. at 14) (quoting In re Carter, 191 N.J. 474, 482-83 (2007).]

The choice of accepting, rejecting or interpreting the evidence rests with the Secretary, and where such choice is reasonably made, it is conclusive on appeal. Application of Howard Sav. Bank, 143 N.J. Super. 1, 9 (App. Div. 1976). If we find that the evidence and the inferences to be drawn therefrom support the Secretary's findings, we will affirm. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001) (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)).

When we review an "agency's interpretation of statutes within its scope of authority . . ., we afford the agency great deference." N.J. Soc'y for the Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 385 (2008) (citing In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 489 (2004)).

Since this appeal concerns an election matter, we focus on the standards we must apply when addressing such issues. The general principle informing our analysis mandates that election laws must be liberally construed to effectuate the overriding public policy in favor of public participation in the election process. See, e.g., In re Absentee Ballots Case by Five Residents of Trenton Psychiatric Hosp., 331 N.J. Super. 31, 35-36 (App. Div. 2000). Voters should have the benefit of choice in the selection of candidates. Democratic State Comm. v. Samson, 175 N.J. 178, 198, cert. denied, 537 U.S. 1083, 123 S. Ct. 673, 154 L. Ed. 2d 582 (2002). The right to run for office is not unlimited, however, as the State may establish qualifications for ballot access to assure the integrity of the electoral process. See generally, Sadloch v. Allan, 25 N.J. 118 (1957) (concluding that a candidate did not have a right to run as independent candidate after he was defeated in the Republican primary election for the same office).

Both the Constitution and statute mandate that a candidate for the State Senate must meet constitutional age, residency, and voter registration requirements. The New Jersey Constitution provides that any candidate for the New Jersey State Senate must have been a "resident" of New Jersey for four years prior to his or her election. N.J. Const. art. IV, § I, ¶ 2. Here, appellant was required to have been a resident since November 8, 2007.

Neither the Constitution nor statute defines "resident" for the office of State Senator. We look to analogous provisions as found in our statutes. For local elected officials and voters, the term resident is equated to "domicile." See, e.g., N.J.S.A. 40A:9-1.11 and 1.13 (residence of candidates for local elections requires "a place of abode . . . not adopted for any mere special or temporary purpose" and one's "domicile"); State v. Benny, 20 N.J. 238, 252-54 (1955) (noting that requirement of residence for purposes of N.J.S.A. 19:4-1, governing voting rights, is equal to domicile); Petition of Kriso, 276 N.J.

Super. 337, 341 (App. Div. 1994) (residence for purposes of voting equals "domicile"); In re Petition of Hartnett, 163 N.J. Super. 257, 263 (App. Div. 1978) (voter requirement); State v. Atti, 127 N.J.L. 39, 41-42 (Sup. Ct. 1941), aff'd, 128 N.J.L. 318 (E. & A. 1942) (same); Cadwalader v. Howell, 18 N.J.L. 138, 143-45 (Sup. Ct. 1840) (voter requirements); Schwietzer v. Boser, 15 N.J. Misc. 217, 224 (Passaic Cir. Ct. 1936) (same).

The residency requirement itself is drawn from sound public policy. As the Law Division stated in Borden v. Lafferty, 233 N.J. Super. 634, 639 (Law Div. 1989):

The reasons underlying the residency requirement for candidates for local offices are . . . [t]he public concern . . . that candidates run for office in the place of their most significant interests, political and otherwise, where they have knowledge of local conditions, and where they hope to assume a constructive responsibility on behalf of all local citizens. True 'domicile' and a required term of residence obviously advance this concern.

Familiarity with the social, economic, and political circumstances and extant issues involving the State in general and one's legislative district in particular are important policy considerations supporting the imposition of a residency requirement.

Similarly, in order to vote, one must be registered in his or her domicile. In re Application of Langbaum, 201 N.J. Super. 484, 491 (App. Div.), certif. denied, 101 N.J. 298 (1985). A person can have only one true domicile, whereas he or she may have multiple residences. Caballero v. Martinez, 186 N.J. 548, 558 (2006). As explained the Court:

Domicile has been variously defined as the place where a person has his true, fixed, permanent home, and principal establishment, and to which, whenever he is absent, he has the intention of returning, or the habitation fixed in any place, without any present intention of removing therefrom. [Benny, supra, at 250 (citations and internal quotes omitted).]

In describing and defining domicile, the Court observed that a voter must "maintain such a relationship with the place or premises so selected as will entitle him at his will to occupy that place or premises whenever his necessities or pleasures require without having to ask the permission of someone else." Perri v. Kisselbach, 34 N.J. 84, 88 (1961). To acquire a domicile, a person must intend not only to live at the place, but also to make a home there. In re Seyse, 353 N.J. Super. 580, 586 (App. Div.), certif. denied, 175 N.J. 80 (2002). In sum, the permanent home of a person is considered his domicile and the place of his domicile determines his right to vote. Mercadante v. City of Paterson, 111 N.J. Super. 35 (Ch. Div. 1970) (citations omitted), aff'd, 58 N.J. 112 (1971).

Several factors have been identified as relevant in determining a person's domicile. These include telephone bills; gas and electric bills; place from which taxes are filed; mailing address; membership in local clubs; driver's license and automobile registration addresses; place where person spends the greater amount of time; newspaper subscriptions; and location of schools attended by children. See, e.g., Benny, supra, 20 N.J. at 240-49, 255. If a voter's residence is challenged, determination of domicile necessitates consideration of those factors. Id. at 255.

Courts have construed domicile "broadly and flexibly," extending it to include part-time residency where there are other factors demonstrating a continuing and substantial connection with voting district sufficient for the voters to be considered domiciliaries for the purpose of voting. Kriso, supra, 276 N.J. Super. at 341 (citations omitted). As we have observed, a person has the right to vote in the district where he or she has and maintains a permanent home, "despite his temporary absence therefrom, provided that he does not vote elsewhere and the factual context reveals his intention to return to that home as his permanent abode." Hartnett, supra, 163 N.J. Super. at 263. The standard of proof of domicile in election matters, a preponderance of the evidence, is more lenient than might apply elsewhere and is subject to the minimal constraints necessary to prevent fraud. See, e.g., In re Gen. Election of Nov. 5, 1991 for Office of Twp. Comm. of Maplewood, 255 N.J. Super. 690, 702-03 (Law Div. 1992).

Ultimately, however, it is the voter's intent to make one place his or her "home," as demonstrated by the relevant factors, that controls a determination of residency for purposes of qualification. Seyse, supra, 353 N.J. Super. at 586 (citing Benny, supra, 20 N.J. at 251).

In her decision, the Secretary gave great weight to appellant's California activities including his residences, business operations as well as general presence in that state. Although in her view not dispositive, she focused on appellant's voting in California in 2008 and 2009, within the critical four-year period, noting that voting in California entails an implicit declaration of not only residence but domicile as a condition of voting.

The Secretary minimized appellant's New Jersey presence and although focusing on appellant's purchase of a home in 2007, she made scant mention of and did not consider appellant's purchase of a residence for himself (as opposed to a separate purchase for his mother) in 2005, a purchase that appellant highlighted as a critical factor marking his intent to make New Jersey his domiciliary state. Nevertheless, considering the totality of all of the evidence presented as to domicile and our limited review function, we conclude that the Secretary's decision was supported by adequate evidence in the record that appellant was not domiciled in New Jersey for the past four years.

We address one additional issue. Appellant challenges the standing of petitioners as they are registered members of the Republican Party and are challenging the bona fides of appellant as a candidate in the Democratic Primary Election. Appellant expressed concern that members of a rival party are attempting to undermine and influence the affairs of its rival and are not permitted to do so under New Jersey elections laws. While the argument has surface allure and compelling arguments can be advanced to suggest that such interference violates the spirit if not the letter of Title 19, when balancing such concerns against the overarching principle of advancing qualified candidates to stand for election, the arguments against standing must yield.

While this litigation has been marked by some confusion as to the statutory basis for petitioners' challenge, the appropriate legislative authority for the challenge is found in N.J.S.A. 19:13-10, which provides in relevant part:

Every petition of nomination in apparent conformity with the provisions of this Title shall be deemed to be valid*fn3 , unless objection thereto be duly made in writing and filed with the officer with whom the original petition was filed not later than the fourth day after the last day for filing of petitions. . . .

Although applicable to general elections, N.J.S.A. 19:13-10 is applicable to primary elections as well. N.J.S.A. 19:23-58. See Lesniak v. Budzash, 265 N.J. Super. 165, 168 (App. Div.), aff'd, 133 N.J. 1 (1993).

N.J.S.A. 19:13-10 does not contain any political party membership restriction. Permitting the filing of any objection, without any limitations on the objector, serves the fundamental electoral goal of assuring only qualified candidates are on the ballot and is in furtherance of preserving the integrity of elections. In this case, but for the filing of petitioners' objection and its administrative review, the issue of appellant's qualifications may not have been subject to review until the general election. See

N.J.S.A. 19:29-1 to -14.

In addition to the absence of restrictive language under the statutes, a practice of screening objectors before accepting a challenge to a nomination petition would raise significant collateral issues that would be outweighed by the salutary purpose of permitting challenges from any objector under N.J.S.A. 19:13-10.

Ultimately, the balancing of the various interests involved compels a result where insuring qualified candidates of whatever party are presented to the public outweighs the potential, if not real, mischief that can be visited on a political party's fortune by inter-party challenges that in one sense may disrupt the activities of a party while at the same time result in qualified candidates standing for election.

If there is to be an adjustment of this balance, that will be left to the Legislature and appropriate amendments to Title

19. We conclude that petitioners have standing to challenge appellant's candidacy.

Appellant also challenges the constitutionality of the residency requirement; however, we have been advised that the issue has been addressed in a federal court proceeding, so we decline to consider the issue here. Finally, our decision renders moot any need to consider the other requests for emergent relief.


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