Atlantic County Bd. of Elections, In re

• Decision Date: 02 December 1971
• Citation: 284 A.2d 368,117 N.J.Super. 244
• Parties: In the Matter of the Organization of the ATLANTIC COUNTY BOARD OF ELECTIONS. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 244

117 N.J.Super. 244

284 A.2d 368

In the Matter of the Organization of the ATLANTIC COUNTYBOARD OF ELECTIONS.

Superior Court of New Jersey Appellate Division.

Argued Nov. 3, 1971.

Decided Dec. 2, 1971.

Morgan E. Thomas, Atlantic City, for appellantDolores I. Mooney.

John F. Callinan, Wildwood, for respondentWilliam T. Dunbar(Perskie & Perskie, Wildwood, attorneys).

Alfred L. Nardelli, Deputy Atty. Gen., for respondentWilliam T. Cahill, Governor of New Jersey (George F. Kugler, Jr., Atty. Gen., attorney; Stephen Skillman, Asst. Atty. Gen., of counsel; Mr. Nardelli, on the brief).

Before Judges KILKENNY, LABRECQUE and LANE.

The opinion of the court was delivered by

LABRECQUE, J.A.D.

By the present appeal the parties seek a determination as to who is entitled to the position of Democratic member of the Atlantic County Board of Elections(the Board) for the two-year term beginning March 1, 1971.

The present action was originally instituted by John L. Toy, Jr.(Toy), the remaining Democratic member of the Board, against the two Republican members of the Board, William M. Snyder and Ryerson Mausert.Later, the complaint was amended to add Dolores I. Mooney(Mrs. Mooney), as a partyplaintiff, and Governor Cahill as a partydefendant.The amended complaint in lieu of prerogative writs charged that Mrs. Mooney was the lawfully nominated Democratic member of the Board; that she should have been so commissioned by the Governor, and that the organizational meeting of the Board held on March 9, 1971 without her participation was improper and illegal.Subsequently William T. Dunbar(Dunbar), the other claimant to the position, was permitted to intervene.

Thereafter there was a motion by plaintiffs and a cross-motion by Dunbar for summary judgment, based upon affidavits by the parties.Later, in response to the court's direction that oral testimony be produced, both plaintiffs testified.Dunbar did not testify but elected to rely on his prior affidavits.In its amended final judgment the court held that Dunbar was the valid nominee and that the Board's organizational meeting of March 9, 1971 was valid and proper.Mooney thereupon filed the present appeal.

Each county election board consists of four persons.N.J.S.A. 19:6--17 provides, in pertinent part:

Two members of such county board shall be members of the political party which at the last preceding general election, held for the election of all of the members of the General Assembly, cast the largest number of votes in this State for members of the General Assembly, and the remaining 2 members of such board shall be members of the political party which at such election cast the next largest number or votes in the State for members of the General Assembly.

The method of nomination and appointment of members of a county board is set out in N.J.S.A. 19:6--18 as follows:

During the 30 day period immediately preceding February 15 in each year, the chairman and vice-chairlady of each county committee, and the State committeeman and State committeewomen (Sic) of each of such 2 political parties, respectively shall meet and jointly, in writing, nominate one person residing in the county of such county committee chairman, duly qualified, for member of the county board in and for such county.If nomination be so made, the said county committee chairman shall certify the nomination so made to the State chairman and to the Governor, and the Governor shall commission such appointees, who shall be members of opposite parties, on or before March 1.If nomination be not so made on account of a tie vote in the said meeting of the county committee chairman, county committee vice-chairlady, State committeeman and State committeewoman, in respect to such nomination, the said county committee chairman shall certify the fact of such a tie vote to the State chairman, who shall have the deciding vote and who shall certify, in writing, to the Governor, the nomination made by his deciding vote.Appointees to county boards of election pursuant to this section shall continue in office for 2 years from March 1 next after their appointment.

Members of the state committee are elected at the primary for the general election of the year in which a Governor is elected.N.J.S.A. 19:5--4.On January 1, 1971 the duly elected members of the Democratic State Committee for Atlantic County were David Dichter(Dichter) and Mary E. Haynie(Mrs. Haynie).The chairman and vice-chairlady of the Atlantic County Democratic Committee are elected annually at the organization meeting of the committee following the primary election.In January 1971 Dunbar was the Democratic county chairman and the vice-chairlady was Bertha Brown(Mrs. Brown).

The facts in the context of which the present controversy must be resolved are brief.On January 27, 1971 Dunbar addressed a letter to Mrs. Haynie advising her of a meeting to be held on Tuesday evening at 8 P.M. (without specifying the date)'to nominate a person for the County Election Board.'Upon receipt of the notice on the following day, Mrs. Haynie phoned Dunbar and, after ascertaining that the Tuesday referred to in the notice was February 2, 1971, protested that the notice was too short to permit the attendance of Dichter, the state committeeman, who was then out of the country working on an International Aid project.Dunbar allegedly refused to change the meeting date.

A similar notice of the meeting had been mailed to Dichter at his usual residence in Atlantic City, although there is evidence that Dunbar knew at the time that he was out of the country.No contention is made that the notice could have been received by Dichter in time to attend the called meeting, and Dunbar made use of no other form of notice.

Through the efforts of Mrs. Haynie and other friends, Dichter was finally located in Switzerland and advised, on the night of January 30, of the date and purpose of the meeting.Since it was too late for him to make arrangements to attend, he, on January 31, 1971, forwarded a cablegram addressed to Mrs. Haynie directing her to cast his vote for Mrs. Mooney for appointment to the County Election Board.He confirmed this by a follow-up letter dated February 3 in which he stated, 'I would like to take this opportunity to cast a proxy vote in favor of Mrs. Lori Mooney for the Election Board appointment.I regret the delay in getting my proxy vote to you.I was under the impression that this could be done by telegram, which I believe you have already received.'

On February 2, 1971 Dunbar, Mrs. Brown and Mrs. Haynie met.Dunbar nominated himself for membership on the County Board of Elections and Mrs. Haynie nominated Mrs. Mooney.Thereupon Dunbar voted for himself as did Mrs. Brown.Mrs. Haynie voted for Mrs. Mooney and also offered the cablegram vote of Dichter for her.Dunbar rejected Dichter's vote and prepared a certificate reciting that he, Mrs. Brown and Mrs. Haynie had attended the meeting, and that 'all of said persons present jointly, in writing' had nominated him for the office.However, the certificate carried a notation that Mrs. Haynie 'did not vote' and that Dichter, the Democratic state committeeman, was 'living in Switzerland.'

In actuality, Dichter, whose permanent and voting address was in Atlantic City, was employed by the International Secretariat for Volunteer Services (U.N.) and was temporarily residing in Switzerland.According to his affidavit filed in the cause, had he received timely notice of the February 2 meeting, he would have made arrangements to return to Atlantic City.

On February 16, 1971Salvatore A. Bontempo, chairman of the Democratic State Committee, certified by letter to Governor Cahill that he had concluded that Mrs. Haynie and Dichter had voted for Mrs. Mooney; that this had resulted in a tie, and that he was exercising his prerogative to break the tie in favor of Mrs. Mooney.Although the last date for certifying nominations to the Governor was February 15, 1971, the fact that February 15, 1971 was a legal holiday (Washington's Birthday) made his letter timely.

Three days thereafter, on February 19, 1971, Dunbar transmitted to the Governor a 'duplicate original' of his prior certification that he had been nominated (apparently the original had been sent only to the chairman of the Democratic State Committee).The Governor, after consultation with his counsel, elected not to issue a commission to either contestant.

On March 9, 1971 the two Republican members of the County Board of Elections convened a meeting of the Board to 'organize by electing one of their number to be chairman and one to be secretary * * *.'N.J.S.A. 19:6--22.Plaintiff Toy, the only commissioned Democratic member, appeared at the meeting and moved for a postponement so that the Board could organize with its full complement of two Republican and two Democratic members, as required by statute.The motion was rejected by the vote of Snyder and Mausert.Toy thereupon left the meeting room and Snyder and Mausert proceeded to organize the Board alone.They elected Toy, In absentia, as chairman, and Mausert as secretary.The latter position is generally the preferred one, being higher paid, and involving more concern with the day-to-day activities of the Board.N.J.S.A. 19:45--7.

The trial judge held, and we agree, that Dichter was not casting a proxy vote, but was casting a form of absentee ballot by means of the cablegram addressed to Mrs. Haynie.However, he held that the statute required all of the parties to 'meet' and make the nomination, and that this precluded acceptance of Dichter's vote.He noted that had the requirement that the four named persons meet been directory rather than mandatory 'the essence would be the vote rather than the means by which the vote arrived.'He concluded that the nominating meeting was...