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Margaret Nordstrom v. William "Hank" Lyon

February 7, 2012

MARGARET NORDSTROM, PETITIONER-RESPONDENT,
v.
WILLIAM "HANK" LYON, RESPONDENT-APPELLANT. NEW JERSEY ELECTION LAW ENFORCEMENT COMMISSION, INTERVENOR-RESPONDENT.



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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued January 19, 2012

Before Judges Fuentes, Harris, and Koblitz.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-001796-11.

Richard W. Wedinger argued the cause for appellant (Barry, McTiernan & Wedinger, attorneys; Sean M. Connelly, Laurel A. Wedinger, Mr. Wedinger, and Matthew P. Mann, on the brief).

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

This is a Title Nineteen election contest. In the immediate aftermath following the Republican Party primary election held on June 7, 2011, it appeared that newcomer William "Hank" Lyon (self-dubbed "Lyon for Conservative Freeholder") had barely defeated four-term incumbent Margaret Nordstrom by ten votes in their battle to secure the Republican nomination for Morris County Freeholder. Three months later, after the Law Division concluded a trial pursuant to the election contest statute, N.J.S.A. 19:29-1 to -14, concerning Nordstrom's claims of voter and candidate misconduct, Lyon came away stripped of the nomination. We reverse the Law Division's annulment of Lyon's nomination because of multiple legal errors that materially contributed to the court's ultimate declaration that Lyon's "nomination is null and void."

Because Lyon should have been the Republican nominee to run in the general election held on November 8, 2011, and, instead, his defeated primary opponent -- Nordstrom (after being selected to stand in Lyon's place by the Morris County Republican Committee) -- won that election, we (1) remove Nordstrom as an elected member of the Morris County board of freeholders, (2) declare a vacancy in such office, and (3) order that the statutory process envisioned by N.J.S.A. 40:20-35.11a(a), -35.11b, and -35.11c proceed forthwith.

The Law Division invalidated the June 7 election result largely because Lyon failed to comply with reporting obligations of the New Jersey Campaign Contributions and Expenditures Reporting Act (the Reporting Act), N.J.S.A. 19:44A-1 to -47, specifically N.J.S.A. 19:44A-16(i), and its implementing regulations. Fortifying the view that the nomination was null and void under N.J.S.A. 19:3-7, and not saved by the mitigating effect of N.J.S.A. 19:3-9, the trial court also held that Lyon's campaign received (and failed to timely report) a contribution from Robert Lyon, the candidate's father, that exceeded the maximum limit of $2,600 per election. See N.J.S.A. 19:44A-11.3(a). Finally, the Law Division determined that it would not invalidate the entire primary election on the basis of voting irregularities although it found sufficient evidence of at least twelve (and perhaps an additional twenty) illegal votes with the potential to affect the election's outcome. It therefore determined, that if needed, it would "set aside the election results in the impacted district of Parsippany" and such other districts, if any, from which the other twenty illegal ballots were cast. We are satisfied that these conclusions are unsupported as matters of law and warrant reversal.

I.

A.

We derive the following facts from the record created during the nine-day bench trial conducted between August and September 2011. We adopt substantially the same factual conclusions reached by the trial court because we are mindful of, and readily observe, the principle that our scope of review of a judgment in a non-jury case is extremely limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). The general rule is that "'we do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]'" In re Trust Created By Agreement Dated December 20, 1961, ex rel. Johnson, 194 N.J. 276, 284 (2008) (quoting Rova Farms Resort, Inc. v. Invest. Ins. Co., 65 N.J. 474, 484 (1974)). "While we will defer to the trial court's factual findings so long as they are supported by sufficient, credible evidence in the record, our review of the trial court's legal conclusions is de novo." 30 River Court E. Urban Renewal Co. v. Capograsso, 383 N.J. Super. 470, 476 (App. Div. 2006) (citing Rova Farms, supra, 65 N.J. at 483-84; Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

B.

Between May and June 2011, Nordstrom and Lyon campaigned to become the standard bearer for the Republican Party in the general election for the office of Morris County Freeholder. After the polls closed on June 7, the vote count declared Lyon the winner of the nomination with 12,271 votes. Nordstrom received 12,261 votes.

Three days following the election, Nordstrom filed an application with the Law Division for a recount pursuant to N.J.S.A. 19:28-1. On June 13, the court granted the application, ordering that the "Morris County Board of Elections recount all Mail-In Ballots in the June 7, 2011 Republican Primary Election . . . within four business days in order to quickly resolve which candidate will be placed on the General Election ballot."

The recount revealed that Lyon's margin of victory was narrower than ten votes. The election result then stood at 12,270 votes for Lyon and 12,264 votes for Nordstrom, a difference of six votes between the prevailing and defeated candidates.

On June 22, Nordstrom filed a verified petition in the Law Division challenging the results of the election. In her pleading, Nordstrom asserted that under N.J.S.A. 19:29-1(e) "a sufficient number of voters were disenfranchised . . ., combined with a number of voters whose votes were improperly counted[,] as to change the result" so that Nordstrom should be declared the victor by "6 (six) votes or more."

On July 29, Nordstrom filed an amended petition, alleging violations of N.J.S.A. 19:29-1(e) and (f), contending that a correct tally would tilt the election "in favor of . . . Nordstrom by more than [forty-one] votes." Additionally, the amended petition asserted that Lyon committed violations of N.J.S.A. 19:29-1(h) and "the campaign finance law, N.J.S.A. 19:44A-21(c)." Specifically, Nordstrom urged that Lyon had (1) willingly exceeded the campaign contribution limits by accepting a $16,000 contribution from his father*fn1 and (2) failed "to disclose donations as required by the 48 hour rule."*fn2

On August 12, Lyon moved to dismiss Nordstrom's claims arising under the Reporting Act due to (1) a lack of subject matter jurisdiction and (2) the petition's failure to state a claim upon which relief can be granted. See R. 4:6-2(e). The trial court denied Lyon's motion on August 18, explaining in an eight-page written opinion its reasons for retaining jurisdiction over Nordstrom's "campaign finance related claims pursuant to N.J.S.A. 19:29-1(h), N.J.S.A. 19:3-7, N.J.S.A. 44A-11.3, and N.J.S.A. 19:44A-16."

C.

In retaining jurisdiction over Nordstrom's Reporting Act claims, the trial court relied upon our decision in In re Contest of the Democratic Primary Election of June 3, 2003 for Office of Assembly of the Thirty-First Legislative District, 367 N.J. Super. 261 (App. Div. 2004) and analyzed its authority to retain the dispute under the four-factor test found in Muise v. GPU, Inc., 332 N.J. Super. 140 (App. Div. 2000). Concluding that at least three of the four factors skewed in favor of judicial, rather than administrative, oversight, and finding that "this matter clearly involves an issue of urgency which can be better addressed in this forum," the matter remained in the Law Division.

D.

Trial commenced on August 18. The court heard testimony and reviewed documentary evidence over a period of nine days. At the conclusion of this hearing, the court issued a comprehensive thirty-seven page written opinion to support its judgment (1) declaring that Lyon's "nomination as the Republican Party candidate for the office of Morris County Freeholder is hereby null and void, pursuant to N.J.S.A. 19:3-7" and (2) ordering non-party Morris County Republican Committee to "select the candidate to fill such vacancy within three (3) days hereof."

The next day, the trial court issued an amended judgment giving the Morris County Republican Committee until the "end of day September 19, 2011" to fill the vacancy. On September 16, Lyon filed a notice of appeal together with an emergent application to stay the trial court's judgment. The motion was denied, but an order to accelerate the appeal was entered on October 5. On September 23, we granted permission to the New Jersey Election Law Enforcement Commission (ELEC) to intervene in the appeal.

E.

Although not part of the trial record, we take judicial notice of the following undisputed facts. See N.J.R.E. 201(b)(2), (b)(3). In compliance with the trial court's mandate, the Morris County Republican Committee timely selected Nordstrom to fill the vacancy created by the nullification of the June 7 primary election. The committee's vote tally was 213 votes for Nordstrom and 208 votes for Lyon.*fn3 At the November 8 general election, Nordstrom defeated Democratic Party opponent, Truscha Quatrone, by receiving 45,376 votes against Quatrone's 26,982 votes and 614 write-in votes for undisclosed candidates.*fn4

F.

In order to better understand the issues on appeal, we provide the following additional factual background, all of which was developed at trial. In November 2010, Lyon decided to run for freeholder in Morris County. He formally filed his candidacy declaration in April 2011, naming his father as the treasurer of the campaign, and himself as deputy treasurer. Lyon's plan was to self-fund his campaign. Initially, Lyon's father loaned the campaign $1000. In May 2011 Lyon's mother contributed $1000. In preparation to serve as both candidate and deputy treasurer, Lyon read the ELEC Compliance Manual for Candidates (ELEC Manual).*fn5

After recently graduating from college, Lyon began working for one of the many Lyon family businesses. He claimed to be a member of M of Rockaway, LLC (the LLC), a status he obtained when, in November 2010, just days after deciding to run for freeholder, his father made a gift of ten percent of the LLC to Lyon. There was no written memorialization of the transfer at that time; instead, a written assignment was prepared in August 2011, three weeks before trial. Lyon's father testified that owning an interest in a tax-paying LLC would assist ...


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