Petition of Hartnett

• Decision Date: 27 October 1978
• Citation: Petition of Hartnett, 394 A.2d 871, 163 N.J.Super. 257 (N.J. Super. App. Div. 1978)
• Parties: Petition of Richard HARTNETT, Jr., to contest the election of J. Stanley Barlow to the office of Councilman of the Borough of Leonia pursuant to N.J.S.A. 19:29-1 et seq.
• Court: New Jersey Superior Court — Appellate Division

Page 257

163 N.J.Super. 257

394 A.2d 871

Petition of Richard HARTNETT, Jr., to contest the election

of J. Stanley Barlow to the office of Councilman

of the Borough of Leonia pursuant to

N.J.S.A. 19:29-1 et seq.

Superior Court of New Jersey, Appellate Division.

Argued Oct. 17, 1978.

Decided Oct. 27, 1978.

Michael I. Lubin, Hackensack, for defendant-appellant J. Stanley Barlow (Wittman, Anzalone, Bernstein, Dunn & Lubin, Hackensack, attorneys).

James I. Avignone, Englewood, for plaintiff-respondent and cross-appellant Richard Hartnett, Jr. (Huckin & Huckin & Avignone, Englewood, attorneys).

John J. Degnan, Atty. Gen., filed a brief amicus curiae (Stephen Skillman, Asst. Atty. Gen., of counsel; Janice S. Mironov, Deputy Atty. Gen., on the brief).

Before Judges LORA, MICHELS and LARNER.

The opinion of the court was delivered by

LARNER, J. A. D.

This is an accelerated appeal from a determination in an election contest under N.J.S.A. 19:29-1(e) in which the judge set aside the election of J. Stanley Barlow in November 1977 as councilman at large in the Borough of Leonia. He declined to hold that the contestant Richard Hartnett, Jr. was the duly elected councilman, and thus declared the office vacant. Barlow appeals, contending that the voiding of the election is unwarranted under the facts and the law. Hartnett cross-appeals, asserting that the court erred in not declaring him to be the successful candidate.

As a result of an election in the Borough of Leonia, two Democrats, Robert Pacicco and J. Stanley Barlow, were certified as having been elected "at large" councilmen to two vacancies on the council. Two Republicans, Richard Hartnett, Jr. and Mary K. Slutz, were the unsuccessful candidates for those offices.

The tally of the votes cast for the slate of candidates, as confirmed by a recount, reflected the following:

Pacicco   --  1,695  votes
                Barlow    --  1,541    "
                Hartnett  --  1,539    "
                Slutz     --  1,486    "
                

Thereupon Hartnett filed a petition in the Superior Court pursuant to paragraph (e) of N.J.S.A. 19:29-1, contesting the election of Barlow on the basis that illegal votes were received and legal votes rejected sufficient to change the result as between the two of them. After a plenary hearing before a county district court judge assigned to hear the matter by the Bergen County assignment judge, the election of Barlow was set aside because of illegalities found by the court with regard to seven votes, involving Joseph and Lois Muzio, Brian and Susan Murphy, Maryann LoPresti, Susan Peters Green and Elizabeth Kaiser. This determination was based on findings that one legal vote was rejected, six illegal votes received, and that they were sufficient to change the result of the election to the office to which Barlow was certified.

For the purpose of clarity we shall consider the irregularities based upon the nature of the deficiency found by the trial court.

I. Absentee votes of Joseph and Lois Muzio and Brian and Susan Murphy

Dr. and Mrs. Muzio were duly registered voters who requested, received and returned absentee ballots for the election of November 1977 pursuant to N.J.S.A. 19:57-3. The undisputed evidence established that at the time of the election Dr. Muzio, a college professor, was in Honolulu, Hawaii, for one year on a "sabbatical exchange program" with his university and was accompanied by his wife, who was to participate in the program as a nurse. They intended to return to their home at 69 Glenwood Avenue, Leonia, in time to resume their teaching assignments in New York as of September 1, 1978. During their absence they leased the home to three young women for the period of August 1, 1977 to August 31, 1978, together with the furniture and furnishings contained therein.

The trial judge made the foregoing fact findings and proceeded to conclude therefrom that these voters did not reside in the State of New Jersey on election day and as a consequence were not qualified to vote by absentee ballot. He further found from circumstantial evidence that they "probably" cast their votes for Barlow. Appellant, and the Attorney General as Amicus, assert that the voiding of these ballots constitutes legal error. ¹ We agree.

Apparently the trial judge reasoned from the Supreme Court opinion in Worden v. Mercer Cty. Bd. of Elections, 61 N.J. 325, 294 A.2d 233 (1972), that the Sine qua non for qualification as a voter is actual residence in the State at the time of the election. It was his opinion that a temporary absence from the established residence accompanied by an express intention to return does not suffice to qualify for a valid vote in the district, whether it be in person or by absentee ballot.

Reliance upon Worden as a springboard for disqualifying the absentee voters herein is clearly misplaced. Worden held that students who are resident in a college community during their college careers could not be excluded from voting therein where they have not voted elsewhere. The Supreme Court applied a flexible approach so as to inhibit a limitation or restriction upon the voting rights of a class which has an interest in the college community and seeks to assert in good faith its fundamental right of suffrage in that community and no place else. In fact, the essence of the majority opinion is bottomed upon a finding of improper discrimination against such students and lays down the rule that they must be afforded the right to vote whether or not they plan to return to their previous residence, or plan to seek employment away from their previous residence, or plan to remain permanently in their college community, or in fact are uncertain as to their future plans. 61 N.J. at 348, 294 A.2d 233.

It is manifest, however, that this expansion of the right to vote in the place of temporary residence for students does not support the contention advanced by counsel for Hartnett that a new criterion of residence rather than domicile has been established as a basis for denial of the right to vote. As Chief Justice Weintraub pointed out in his concurring opinion in Worden:

The concept of domicil is not constant. It is designed to assure fairness to the individual or the State or both in a given setting. Its ingredients therefore will vary, depending upon what is just and useful in a given context. (61 N.J. at 349, 294 A.2d at 928.)

Justice Jacobs, in the majority opinion, also noted the limited effect of Worden when he stated:

Although this action is taken without abandonment of the domicil requirement it may have pertinence to the growing recognition that domicil is not a unitary concept and that its application may vary in different contexts. See Reese, "Does Domicil Bear a Single Meaning?," 55 Colum.L.Rev. 589 (1955); Weintraub, "An Inquiry Into the Utility of 'Domicile' as a Concept in Conflicts Analysis," 63 Mich.L.Rev. 961, 983-86 (1965); Restatement (Second) Conflict of Laws § 11, comment o at 47-50 (1971); Cf. Gladwin v. Power, 21 A.D.2d 665, 249 N.Y.S.2d 980, 982 (1st Dept. 1964); In re Jones' Estate, 192 Iowa 78, 182 N.W. 227, 229 (1921). (Id. at 343, 294 A.2d at 242.)

Although the New Jersey Constitution and election statutes speak in terms of residence requirements, it has long been held that the normal test of voter qualification is that of a domicile maintained in the State and voting district. See State v. Benny, 20 N.J. 238, 252-255, 119 A.2d 155 (1955); State v. Atti, 127 N.J.L. 39, 41-42, 21 A.2d 603 (Sup.Ct.1941), aff'd 128 N.J.L. 318, 25 A2d 634 (E. & A.1942). And where a person has and maintains a permanent home in the voting district he has the right to vote in that district 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. See Cadwalader v. Howell, 18 N.J.L. 138 (Sup.Ct.1840); In re McCarthy, 18 N.J.Misc. 5, 10 A.2d 142 (Cir.Ct.1939); Schweitzer v. Buser, 15 N.J.Misc. 217, 190 A. 89 (Cir.Ct.1936); Thompson v. Emmert, 242 Ky. 415, 46 S.W.2d 502 (Ct.App.1932); Groves v. Committee of Rutherford Cty., 180 N.C. 568, 105 S.E. 172 (Sup.Ct.1920); Kreitz v. Behrensmeyer, 125 Ill. 141, 195, 17 N.E. 232, 253 (Sup.Ct.1888).

This conclusion is mandated not only by the conceptual significance of the term "domicile" but also by the fairness to the individual and the State in the factual setting demonstrated by the record herein. If Dr. and Mrs. Muzio evince such a continued interest in their community as to avail themselves of the mechanism of an absentee ballot in order to express their preference for those selected to govern the affairs of that community, and do so with the knowledge that the duly elected officials will be in power when they return to Leonia, it would be violative of their fundamental rights to disenfranchise them. Under the factual circumstances involved with respect to these absentee voters, we find no state interest which would impel a conclusion that they should be deprived of the exercise of their right of suffrage while they otherwise qualify as legal voters.

Brian and Susan Murphy voted by absentee ballot from Charlotte, North Carolina. They were qualified registered voters in the district of the locale of their permanent single-family home at 169 Ames Avenue, Leonia. They leased this home to another with all its furniture and furnishings for the period of August 1, 1977 to July 31, 1978, and the trial judge found as a fact that they intended to return thereto when the lease expired. Despite this factual finding, the judge voided these ballots on the same rationale as his ruling on the Muzio ballots. However he found that there was insufficient evidence to determine for whom the votes were cast.

What we have said with respect to the Muzios is equally applicable to the issue of the validity of the Murphy absentee votes. We therefore find that the court was in error in declaring them to be illegal.

II. Voters who failed to notify...