BOBBI WALSTON v. CHRISTOPHER J. DURKIN

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4103-08T2

BOBBI WALSTON,

Plaintiff-Appellant,

v.

CHRISTOPHER J. DURKIN,

Essex County Clerk,

Defendant-Respondent.

______________________________

 

Submitted April 29, 2009 - Decided

Before Judges Lisa and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-3172-09.

Howes & Howes, attorneys for appellant (W. Timothy Howes, on the brief).

Genova, Burns & Vernoia, attorneys for respondent (Peter J. Cammarano, III, of counsel and on the brief).

PER CURIAM

Plaintiff Bobbi Walston appeals from a trial court order dated April 17, 2009, denying her petition seeking to have her name placed on the ballot as a candidate for Essex County Register of Deeds, in the June 2, 2009 Democratic primary election. We agreed to consider the appeal on an accelerated basis. We now affirm, substantially for the reasons stated by Judge Costello in her oral opinion placed on the record on April 17, 2009. We conclude that Judge Costello's decision is supported by substantial credible evidence, R. 2:11-3(e)(1)(A), and is consistent with applicable law, N.J.S.A. 19:23-8. Plaintiff's appellate contentions are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the following comments.

Walston's nominating petition was initially rejected because defendant Essex County Clerk determined that the petition did not contain the statutorily-required 100 valid signatures. See N.J.S.A. 19:23-8. Acting on an emergent basis, Judge Costello conducted a testimonial hearing concerning this matter on April 17, 2009. After hearing testimony from several witnesses, Judge Costello determined that in fact the petition did not contain 100 valid signatures.

In particular, Judge Costello found that Walston failed to prove that the petition signature of one "Dionne Ward" was the signature of any registered voter. The judge rejected plaintiff's attempt to rely on hearsay evidence concerning the alleged identity of Dionne Ward. In that regard, the judge concluded that plaintiff had not proven that LaTonya Ward, whose unsworn letter plaintiff proposed to introduce in evidence, was "unavailable" to testify in person, within the meaning of N.J.R.E. 804(a)(4) and N.J.R.E. 804(b)(7). Ward's letter stated that she signed the petition, but did not state that she signed it as "Dionne Ward." Further, in her signature on the letter, Ward did not even use the middle initial "D." Moreover, based on a credibility determination that she explained in detail in her oral opinion, Judge Costello concluded that Kim Tillman-Langley did not personally sign the petition. On this appeal, plaintiff no longer urges that Tillman-Langley's signature was valid. Since the judge concluded that the petition was already short by two votes, she did not reach the issue of whether a third contested signature, allegedly that of Juanita Langley, was valid. The Clerk had concluded it was forged based on a comparison with Langley's signature on the voter registration card.

The judge's factual determinations are binding so long as they are supported by substantial credible evidence, and in considering the judge's findings we owe particular deference to her credibility determinations. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). We also defer to the judge's evidentiary rulings unless they constitute an abuse of discretion. See State v. Morton, 155 N.J. 383, 453-54 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). Having reviewed the entire record, we find no basis to disturb the decision of the trial court. Because we affirm the judge's determination that the petition was short by two signatures due to the disqualification of the Ward and Tillman-Langley signatures, we also do not address the issue of Juanita Langley's signature.

Affirmed.

 

The statute specifically requires 100 names on the petition, but allows fewer than 100 names if the signatures total "at least 5% in number of the total vote cast by the voters of that political party at the last preceding primary election held for the election of that party's candidates for the General Assembly." N.J.S.A. 19:23-8. Plaintiff did not seek to rely on this exception, either in the trial court or on this appeal.

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A-4103-08T2

April 30, 2009