S. Hunterdon Reg'l Sch. Dist. Pub. Question v. Hunterdon Cnty. Bd. of Elections
| Decision Date | 23 February 2023 |
| Docket Number | A-3178-21 |
| Parties | IN THE MATTER OF THE SOUTH HUNTERDON REGIONAL SCHOOL DISTRICT PUBLIC QUESTION, STEPHEN BERGENFELD, individually and in his official capacity as a West Amwell Township Committeeman, JAMES CALLY, individually and in his official capacity as a West Amwell Township Committeeman, GARY HOYER, individually and in his official capacity as a West Amwell Township Committeeman, JOHN DALE, individually and in his official capacity as a West Amwell Township Committeeman, MICHAEL SPILLE, KRISTINA SPILLE, JENNIFER BATCHELLOR, EVAN BATCHELLOR, JENNIFER ANDREOLI, JESSICA FENNIMORE, JENNIFER BERGENFELD, ROBERT J. BALAAM, JR., CATHERINE URBANSKI, CHESTER URBANSKI, EDWARD ADAMS, MARILEE ADAMS, CRAIG READING, and SHARON BLACK, Plaintiff-Appellants/Cross-Respondents, v. HUNTERDON COUNTY BOARD OF ELECTIONS, HUNTERDON COUNTY CLERK, and SOUTH HUNTERDON REGIONAL SCHOOL DISTRICT, Defendants-Respondents/Cross-Appellants. |
| Court | New Jersey Superior Court — Appellate Division |
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Submitted January 31, 2023
On appeal from the Superior Court of New Jersey, Law Division Hunterdon County, Docket No. L-0004-22.
King Moench &Collins, LLP, attorneys for appellants/cross-respondents (Matthew Moench, of counsel and on the brief; Michael Collins and Tiffany Tagarelli, on the briefs).
Jardim, Meisner &Susser, PC, attorneys for respondent/cross-appellant South Hunterdon Regional School District (Scott D. Salmon, of counsel and on the briefs).
American Civil Liberties Union Foundation, attorneys for amicus curiae American Civil Liberties Union of New Jersey (Liza Weisberg, on the brief).
Before Judges Sumners, Geiger and Berdote Byrne.
In this appeal from an election contest, plaintiffs challenge the results of a public referendum approving the issuance of $33.4 million in bonds. Specifically, plaintiffs appeal the trial court findings, allowing five contested ballots which the Board of Elections counted. Plaintiffs also challenge a trial court order declining jurisdiction over alleged campaign finance violations and partially dismissing the amended complaint with prejudice. On cross-appeal, defendant South Hunterdon Regional School District (the District) joined by amicus the American Civil Liberties Union (ACLU), challenges the trial court findings disallowing two contested ballots which the Board of Elections [1]discounted.
Because we discern no error on the part of the trial court with respect to the ballots, we affirm the trial court rulings regarding all contested ballots. Additionally, we affirm dismissal with prejudice of counts I-D, II, and III of the amended complaint.
Our scope of review of final determinations made by a trial court sitting in non-jury cases is limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011).
"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 Dec. 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 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, 65 N.J. at 48384).
We discern the following facts from the record developed during the trial, motion practice, and the record before us on appeal. In April 2021, the District voted to place a public question onto the ballot in the November 2021 General Election. The question posed a "Yes" or "No" question to residents regarding a $33.4 million bond referendum. Plaintiffs alleged after the District voted to place the referendum on the ballot, individuals representing the District misappropriated public funds in a concerted campaign to influence public opinion in support of the referendum.
Plaintiffs alleged the District retained Key Communicators Group, a public relations entity who was not a party to the trial proceedings or this appeal, to influence undecided voters through a series of targeted advertisements, including a postcard campaign, door to door canvassing, social media posts, and lawn sign deployments. Plaintiffs alleged the District did not provide neutral information about the referendum, but rather mobilized voters by providing limited information only in support of the referendum.
On December 27, 2021, plaintiffs filed a filed a three-count verified complaint in support of petition for election contest pursuant to N.J.S.A. 19:291. Count I asserted an election contest. Count II sought a declaratory judgment. Count III alleged violations of the New Jersey Civil Rights Act, N.J.S.A. 10:62. The election contest was based on the following allegations: illegal votes accepted as to fifteen specific voters; legal votes rejected as to one specific voter; illegal votes accepted as to one specific ballot; and illegal use of taxpayer monies by the District.
On January 27, 2022, following oral argument on the District's motion to dismiss, the trial court partially granted the District's motion to dismiss without prejudice. On February 15, 2022, plaintiffs filed an amended complaint containing the same allegations, and adding a new claim alleging violations of the New Jersey Campaign Contributions and Expenditures Reporting Act (the Reporting Act), N.J.S.A. 19:44-1. On March 4, 2022, following oral argument on the District's second motion to dismiss, the trial court dismissed count I-D, along with counts II and III with prejudice. The trial court declined to exercise jurisdiction over plaintiffs' Reporting Act claims.
On May 10, 2022, trial commenced on the remaining election challenge counts, I-A, illegal votes accepted, I-B, one legal vote rejected,[2] and I-C, illegal vote accepted as to one vote-by-mail ballot.
The trial court heard arguments about a ballot which both parties refer to only as the "VBM"[3] ballot. The VBM ballot contained a shaded oval in favor of the referendum, a "Yes" vote, and was also marked with an "X" over the shaded "Yes" oval. Plaintiffs contested the validity of the VBM ballot, arguing the "X" indicated an intent to cancel the ballot. The District disagreed, arguing the plain text of N.J.S.A. 19:15-27 allows a voter to mark a ballot and indicate their vote with an "X," plus sign, or check mark.
Relying on N.J.S.A. 19:15-27, which expressly permits such markings, and case law, In re Mallon, 232 N.J.Super. 249, 262 (App. Div. 1989) and In re Sadlon, 88 N.J.Super. 37, 40 (App. Div. 1965), disfavoring speculation as to the voter's intent and favoring liberal construction so as not to disenfranchise voters for technical reasons, the trial court determined the VBM ballot was properly counted.
The court also heard testimony from four individuals, Olivia Peluso, Jacob Mercer-Pontier, Aiden Joseph Donnelly, and Lisa Levine, whose ballots plaintiffs sought to invalidate based on domicile. The court made extensive factual findings about these individuals, upholding the BOE decision to count all four votes.
The court also found Mercer-Pontier is a New Jersey resident. Despite living in London for seven years, it found he files New Jersey tax returns, frequently comes back to New Jersey, has a New Jersey driver's license, and opened a bank account within the last year reflecting a New Jersey home address.
The court found Donnelly is domiciled in New Jersey, despite living in Boston temporarily while attending Berklee College of Music in 2020. The court found, similarly to Peluso, Donnelly is only temporarily out-of-state for collegiate purposes, but has never voted outside of New Jersey or as a Massachusetts resident.
Finally, the court found Rackin is a New Jersey resident. It found Rackin was a 2019 graduate of the University of Connecticut, and lived in Stockton, New Jersey during the summer and holidays during his schooling. After college, Rackin lived in Montreal for work, and came back to New Jersey in 2021 after getting laid off. Afterwards, Rackin signed a one-year lease in Manhattan when he obtained a new job in New York, and when his lease expired at the end of 2021, he moved to Peru and has not returned to New Jersey. Rackin's mother testified because he can work remotely at his new job, Rackin had been traveling, but prior to accepting his current job, he had been living at her home in Stockton.
The court found each of the ballot contests for these four individuals failed because the individuals had sufficient contacts with New Jersey for domiciliary purposes.
The court also heard testimony from Jane and Paul Wolkenstein, whose ballots had been disqualified by the BOE for failure to timely update their address. The Wolkensteins testified they moved from Mountain Lakes in Morris County to Lambertville in Hunterdon County in August 2021. They further testified they attempted to change their address through the postal office when they moved to Lambertville but were not able to successfully change their address.
The court relied on Rutgers Univ. Student Assembly v Middlesex Cnty. Bd. of Elections, 446 N.J.Super. 221 (App. Div. 2016) to disallow the Wolkenstein ballots. It compared N.J.S.A. 19:31-11, the advance registration requirement, with N.J.S.A. 19:31-6(b). Reading from ...
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