1984 General Election for the Office of Council of the Tp. of Maple Shade Burlington County, In re

• Decision Date: 24 April 1985
• Citation: 203 N.J.Super. 563,497 A.2d 577
• Parties: In re the 1984 GENERAL ELECTION for the OFFICE of COUNCIL of the TOWNSHIP of MAPLE SHADE, COUNTY of BURLINGTON.
• Court: New Jersey Superior Court

Page 563

203 N.J.Super. 563

497 A.2d 577

In re the 1984 GENERAL ELECTION for the OFFICE of COUNCIL of the TOWNSHIP of MAPLE SHADE, COUNTY of BURLINGTON.

Superior Court of New Jersey, Law Division Burlington County.

Decided April 24, 1985.

John M. Carbone, Ridgewood, for Ira W. Reese, III (Carbone & Faasse, Ridgewood, attorneys)

John Harrington, Mount Holly, for Robert Fellner and William Lindsey (Schlesinger, Schlosser, Foy & Harrington, Mount Holly, attorneys).

Ronald Bookbinder, Burlington, for Frank A. Troso (Bookbinder & Guest, Burlington, attorneys).

John Lee Madden, Mount Holly, for Charles J. Ansert, Jr. and Richard F. Wild, Jr. (John Lee Madden, Mount Holly, attorney).

OPINION

HAINES, A.J.S.C.

This opinion, amplifying a verbal decision resolving an election contest, addresses the question of whether the judge hearing the matter acts judicially, and may therefore employ customary judicial powers, or acts as a legislative agent who may employ only such powers as are conferred by statutes, strictly construed. Phrased differently, can it be said that courts have jurisdiction over election contests? That question must be answered because the contest raises significant issues not addressed by the Election Law, which can be resolved properly only through judicial action. Those issues include: (1) the consequences that follow the rejection of election results in a single election district; (2) the structure and voter qualifications to be established for a new election; and (3) the withdrawal rights of candidates.

State v. Justices of Middlesex Cty., 1 N.J.L. 283 (Sup.Ct.1794), our earliest case on the subject, held that courts had jurisdiction and therefore acted judiciously in election matters. The New Jersey Constitution (1776) Art. IX then provided that "the governor and council (seven whereof shall be a quorum) be the court of appeals in the last resort in all causes of law as heretofore...." This reflected English law, under which the Court of last resort was and is the House of Lords. 10 Lord Hailsham of St. Marylebone, Halsbury's Laws of England, 338 (4th ed. 1975). The case was appealed to that body, which reversed. A note that appears on the record of the case in the handwriting of the Chief Justice states:

On January 7, 1795, on error before governor and council, this judgment was reversed, 8 to 3. I have heard that the ground of this reversal was that the Supreme Court had no jurisdiction. Sed quere. [at 295].

This scant authority apparently provided subsequent courts with the reasons to hold that judges hearing election matters sat as legislative agents and could not act judicially. The theory has persisted in disregard of substantial constitutional and statutory changes which have occurred since 1794 when Justices of Middlesex was decided.

This court reaches an opposite conclusion.

The facts in the present case involve the Sixth Election District in the Township of Maple Shade, a municipality in Burlington County with 19 such districts. In the general election held on November 6, 1984, three persons were to be elected to the Township's five member Council.

The election, (after a recount ordered pursuant to N.J.S.A. 19:28-1 et seq. was completed) produced the following municipal-wide results:

                      Republican
                      ----------
                Charles J. Ansert, Jr.  4144 votes
                Richard F. Wild, Jr.    3811 votes
                Ira W. Reese, III       3787 votes
                       Democrat
                       --------
                Robert Fellner          3646 votes
                Frank A. Troso          3822 votes
                William Lindsey         3780 votes
                

Ira W. Reese, III, having been defeated by Frank A. Troso for the third seat on the council by only fourteen (14) votes, filed a petition contesting the latter's election pursuant to N.J.S.A. 19:29-2. The Democrat candidates, Fellner and Lindsey immediately filed a counter-petition contesting the election of all of the Republican candidates.

N.J.S.A. 19:29-1 provides that, the "election of any person to any public office ... may be contested ... e. [w]hen illegal votes have been received, or legal votes rejected at the polls sufficient to change the result...." At the trial of the contest, numerous "legal" voters from the Sixth District in Maple Shade testified that they had been "rejected at the polls." The court concluded that more than 14 such voters had been so rejected, a number "sufficient to change the result."

"Rejections" were caused by the breakdown at approximately 3:20 p.m. of the single voting machine used in the Sixth District. An election official immediately called the Superintendent of Elections to report the problem. He dispatched a truck with a new machine. The truck broke down on the way and the machine was never delivered. Meanwhile, the district election board commenced using paper ballots, supplied to it for emergency purposes. However, its small supply of these ballots was soon exhausted and more ballots were requested from the Superintendent. He dispatched a substantial number by messenger who became lost, as a result of which the additional ballots did not arrive until about 5:30 p.m. A repairman attempted to fix the machine shortly after the breakdown without success. A second repairman was equally ineffective. The machine was quite old with sagging interior machinery, partly corrected prior to delivery by what one witness described as a "broomstick" used for a prop. The machine was repaired eventually, but not until 6:50 p.m.

During the 3 hours and 30 minutes during which the machine was inoperative more than 14 legal voters left the polling place without voting. Some appeared there more than once but were not able to vote. Others became discouraged and left immediately after seeing the long waiting line and learning of the machine difficulty.

The use of emergency paper ballots presented additional difficulties. The voting machine constituted the only booth in which voting could take place in privacy. It was not useful for the purpose of marking paper ballots and, in any event, could not provide privacy since the curtains on the machine could not be closed. Consequently, the paper ballots were marked on tables placed in the open at the polling place or in an adjoining room. No effort was made to provide privacy although it was testified that no intrusions or interference had taken place while any paper ballot was being used. After the paper ballots were voted, they were placed in an envelope provided by the Superintendent of Elections and returned to the County Board of Elections. These procedures violated the Election Law, adding substantial irregularities to those involving machine problems.

I. Judge or Agent?

A. History

When the Justices of Middlesex was decided, New Jersey's first Constitution, adopted July 2, 1776, was in force. That Constitution did not contain any provision for the separation of powers among the legislative, executive, and judicial departments of government. It did provide in Article I:

That the government of this province shall be vested in the governor, legislative council and general assembly.

And in Article IX:

That the governor and council (seven whereof shall be a quorum) be the court of appeals in the last resort in all causes of law as heretofore....

Articles IX and XII contained the only provisions relating to courts. The latter dealt only with terms of office for judges and others. The law to be followed by the courts was set forth in Article XXII:

That the common law of England, as well as so much of the statute law, as have been heretofore practiced in this colony, shall still remain in force, until they shall be altered by a future law of the legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this charter....

It was in this constitutional setting that Justices of Middlesex was decided. That case involved a challenge to the validity of an election, concerning which the court said:

... it is the duty if this court to review their proceedings, so far as to see that justice is done, and to vacate them if they have swerved from the legal line of their duty, or employed their authority for the purposes of oppression. [at 288]

....

The court exercises a jurisdiction over the elections of officers chosen under an act or parliment, in public corporations, and even in the case of private trusts. The reason is the same--the power is necessary for the preservation of peace in the community--and with what color can it be pretended that this court, whose duty it emphatically is to take care that justice is done to everyone, has no power to protect the interest and redress the wrongs of an entire county?

....

... That the rights of electors, and that elections should be conducted fairly, are points upon which we cannot be too jealous. Whenever these rights are invaded; whenever a law intended to effectuate one purpose is perverted from its design, either by fraud or illegal practices, and made to subserve illegal and private purposes; or wherever allegations of this nature are substantiated by evidence, there is no man and no body of men elevated so high in society, as to be exempt from jurisdiction and supervision of some court.

The basis on which this power is exercised, is a solid one, because necessary to the peace of the community, and without which the main design of government, to wit, protection, cannot be afforded. This interference, however, is itself limited and controlled by the laws of the land, subjected to a revision in the last resort by the governor and council, and it cannot do injury. [Id. at 292].

It was this assertion of jurisdiction that was apparently reversed by the Governor and Council according to Chief Justice Kinsey's handwritten note on the opinion which stated:

Jan. 7, 1975, on error before governor and council, this judgment was reversed, 8 to 3. I have heard that the ground of this reversal was that the Supreme Court had no jurisdiction. Sed quere. [Id. at 295].

Since the 1...