April 18, 2012
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 March 13, 2012
Before Judges Espinosa and Kennedy.
Petitioners Olivia Caldwell, Ethel Seymore and Jerome Page appeal from the dismissal of their challenge to the results of a Pleasantville Board of Education election held on April 21, 2009. We affirm.
In a prior appeal involving petitioners' challenge, we reversed and remanded the dismissal of their petition in an unpublished opinion. Caldwell v. Griffin, No. A-0842-09 (App. Div. Sept. 2, 2010). The facts and procedural history are set forth in that opinion and need not be repeated at length here.
Petitioners were candidates in the Board of Education election. The certified election results identified petitioners as the winning candidates based upon the votes cast at the polls. However, when the absentee ballots were counted, the total votes cast resulted in a victory for respondents, Melanie Griffin, Doris Graves and Johnnie McClellan. Petitioners filed a timely petition challenging the election pursuant to N.J.S.A. 19:29-1(e) and (f). They contended that the results were tainted by abuse and misuse of absentee ballots, particularly those cast through messengers authorized pursuant to N.J.S.A. 19:57-4.*fn1
In a written opinion dated September 4, 2009, the trial court set forth its findings of fact and conclusions of law to support its dismissal of the petition with prejudice. The court stated that petitioners had "failed utterly to carry their burden of proof" to show that illegal votes were cast or legal votes were diverted by the messengers in sufficient number to change the result of the election. Id. (slip op. at 5). In reviewing petitioners' first appeal, we noted that we were "satisfied that the trial court did not err in denying relief to petitioners for the reasons stated in [its] written opinion." Id. (slip op. at 8). The sole reason for reversal was the fact that the record failed to show a formal proceeding conducted pursuant to N.J.S.A. 19:29-5 or a motion to dismiss the petition. Id. (slip op. at 10).
Following our remand, respondents filed a summary judgment motion seeking to dismiss the petition. The trial court granted the motion, setting forth the factual and legal basis for its ruling in a thoughtful oral opinion. In their appeal, petitioners argue that the court erred in granting summary judgment because respondents failed to overcome an adverse inference arising from the failure of respondents and their agent messengers to submit to depositions.
We are satisfied that petitioners' arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and affirm substantially for the reasons set forth by the trial court in its oral opinion of November 17, 2010 and in our prior opinion.