ERIC C. JENSEN v. JOHN S. HOGAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ERIC C. JENSEN,

Plaintiff-Respondent,

v.

JOHN S. HOGAN, in his

official capacity as

Bergen County Clerk, JERRY

DE CROSTA, BEN ACASTER,

LISA AHEARN, RICHARD

ENGKVIST and REBECCA ROGERS,

Defendants-Respondents,

and

BERGEN COUNTY REPUBLICAN

ORGANIZATION,

Defendant-Appellant.

______________________________________

Argued June 30, 2015 Decided August 4, 2015

Before Judges Yannotti and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8599-14.

Charles Rabolli, Jr. argued the cause for appellant Bergen County Republican Organization (Messineo, Messineo & Messineo, LLC, attorneys; Mr. Rabolli, on the briefs).

Joseph A. Garcia argued the cause for respondent Eric C. Jensen (Chasan Leyner & Lamparello, PC, attorneys; Mr. Garcia, of counsel and on the brief).

Gregg F. Paster argued the cause for respondent John S. Hogan, in his official capacity as Bergen County Clerk (Gregg F. Paster & Associates, attorneys; Mr. Paster and Alfred A. Egenhofer, on the brief).

PER CURIAM

The Bergen County Republican Organization ("BCRO") appeals from an order entered by the Law Division on September 23, 2014, which determined that plaintiff Eric C. Jensen ("Jensen") would be one of two candidates on behalf of the Republican Party for membership on the municipal council of the Borough of Saddle River (the "Borough") in the November 4, 2014 general election. While we agree that the trial court erred in designating Jensen as a candidate in the general election, we conclude that the BCRO has not established a basis for relief from the court's order at the present time. Accordingly, the appeal will be dismissed.

I.

We briefly summarize the relevant facts. In the June 3, 2014 primary, there were four candidates for two Republican nominations for the Borough's municipal council: Louis Mastriano ("Mastriano"), Paul Schulstad ("Schulstad"), Jerry DeCrosta ("DeCrosta"), and Jensen. According to the initial counts, Mastriano received 350 votes; Schulstad, 345 votes; DeCrosta, 343 votes; and Jensen, 336 votes. DeCrosta sought a recount, which confirmed the initial tallies.

Thereafter, Jensen filed an order to show cause and verified petition in the trial court, challenging Mastriano's nominating petition. On September 8, 2014, the court entered an order finding that Mastriano's nominating petition did not comply with the requirements of N.J.S.A. 19:23-11 and that his name should not have appeared on the June 3, 2014 ballot.

The order stated that Mastriano's nomination was null and void, and that there was a "vacancy[,]" which should be filled by those members of the County Committee of the Republican Party (the "County Committee") representing the Borough, pursuant to N.J.S.A. 19:13-20(a)(4). The court directed those County Committee members to choose a nominee to fill the "vacancy" by September 10, 2014.1

On September 8, 2014, the court also entered an order in an election contest that DeCrosta had instituted, challenging the results of the June 3, 2014 primary. The order revised the number of votes received by the candidates for the nominations for the Borough council, finding that Mastriano received 346 votes; Schulstad, 345 votes; DeCrosta, 339 votes; and Jensen, 336 votes.

The order also set forth the court's finding that DeCrosta had not established a basis to change the results of the election, and directed the County Board of Elections to certify Schulstad as a nominee of the Republican Party for the position of member of the Borough council on the November 4, 2014 ballot. The court dismissed DeCrosta's petition with prejudice.

Thereafter, four County Committee members representing the Borough convened a meeting to fill the vacant Republican nomination for the council. The meeting took place on September 10, 2014. The following County Committee members were present: Benjamin Acaster ("Acaster"), Lisa Ahearn ("Ahearn"), Richard Engkvist ("Engkvist"), and Rebecca Rogers ("Rogers").

Robert Yudin ("Yudin"), chairman of the BCRO, also was present. Yudin is not a resident of the Borough, but chaired the meeting. A vote was taken publicly. The result was two votes for DeCrosta and two votes for Jensen. Yudin decided that he had the authority to cast the tie-breaking vote. He voted for DeCrosta and declared him the replacement nominee.

Jensen filed another order to show cause and verified complaint in the Law Division, challenging the selection of DeCrosta as the nominee. The court entered an order dated September 15, 2014, which enjoined the County Clerk from placing DeCrosta's name on the November 4, 2014 ballot. On September 18, 2014, the court entered an order finding that the selection of DeCrosta to replace Mastriano on the ballot was invalid.

The court directed Acaster, Ahearn, Engkvist, and Rogers to reconvene to select a replacement nominee once again, and to do so in compliance with the provisions of N.J.S.A. 19:13-20, including its requirement that the vote be by secret ballot. The meeting took place on September 22, 2014. The four County Committee members reported to the court that they were deadlocked and that there was no reasonable prospect they would select a candidate by a majority vote.

The court conducted a hearing in the matter later that day, and entered an order dated September 23, 2014, which declared Jensen to be the second candidate of the Republican Party for the Borough council. The court directed the County Clerk to certify Jensen as the nominee and ensure that his name appeared on the ballot for the November 4, 2014 general election. This appeal followed.

On appeal, the BCRO argues that N.J.S.A. 19:13-20 does not provide a mechanism for breaking a deadlock among persons authorized to fill a vacancy and, therefore, the deadlock cannot be resolved by the court. The BCRO further argues that N.J.S.A. 19:13-20 must be read narrowly in light of its "curtailment" of the First Amendment rights of political parties to determine their own "affairs[,]" and that the "court erroneously interjected itself" in the matter by breaking the tie that had been resolved by the BCRO. In addition, the BCRO contends that N.J.S.A. 19:13-20 is unconstitutional as applied to the facts and circumstances of this case.

In response, Jensen argues that the trial court had no choice but to intervene as it did in resolving the deadlock and designating a candidate for one of the two Republican nominations. Jensen contends that the court acted properly to address what he calls "three blatant violations" of N.J.S.A. 19:13-20 by Yudin and the BCRO, and he asserts the court acted appropriately to protect the rights of the Borough's voters in determining who shall be the second Republican candidate for the Borough council. Jensen also contends that there is no merit to the BCRO's constitutional claims.

The County Clerk has filed a brief, in which he takes no position on the merits of the appeal or the underlying litigation. However, the County Clerk maintains that that there is a need to resolve disputes of this sort in an expeditious and orderly manner, in order to allow sufficient time to print and distribute ballots. The County Clerk contends that this court should provide "definitive guidance" for the trial courts and election officials in determining how to proceed in situations like that presented in this matter.

II.

We begin our analysis with a brief review of the statutes pertaining to nominations of candidates for general elections for public offices. Candidates, other than electors for president and vice president of the United States selected by political parties at state conventions, are nominated by petition or at the primary for the general election. N.J.S.A. 19:13-1.

Candidates of a political party are nominated for the primary by petition of members of that party. N.J.S.A. 19:23-5. According to N.J.S.A. 19:23-7, each petition must be accompanied by a certificate of the person indorsed therein, stating under oath that he or she is qualified for the office; is a member of the political party named in the petition; consents to be a candidate for nomination at the primary election; and consents to be a candidate if nominated. N.J.S.A. 19:23-8 specifies the number of a political party's qualified voters who must sign a nominating petition for a particular office.

Furthermore, N.J.S.A. 19:23-11 states that petitions shall be verified by the oath or affirmation of one or more of the signers, including a candidate who signs and/or circulates the petition, indicating

that the petition is signed by each of the signers thereof in his proper handwriting; that the signers are to the best knowledge and belief of the affiant legal voters of the State or political subdivision thereof, as the case may be, as stated in the petition, belong to the political party named in the petition, and that the petition is prepared and filed in absolute good faith for the sole purpose of indorsing the person or persons therein named, in order to secure his or their nomination or selection as stated in [the] petition.[2]

Petitions of nomination for primaries must be submitted to designated officials by the sixty-fourth day preceding the day of the primary election. N.J.S.A. 19:23-14. By the close of business on the fifty-fourth day before the primary, the municipal clerk must certify to the county clerk the "full and correct names and addresses of all candidates for nomination for public and party office and the name of the political party of which such persons are candidates[.]" Ibid.

According to N.J.S.A. 19:13-14, "the person having in the aggregate the highest number of votes [cast in the primary] shall be the candidate of his respective party for the office to be filled." Where, as in this case, "more than one person is to be elected to the same or similar office, the persons having the highest number of votes to the extent of the number of offices to be filled shall be the candidates of their respective parties for such offices." Ibid.

Further, N.J.S.A. 19:13-18 states that, when a person declines a nomination, "or if a petition or certificate of nomination, or if any nomination, be insufficient or inoperative, or if a nominee shall die, or for any reason vacate[s] [the] nomination, the vacancy so occasioned may be filled in the manner outlined in [N.J.S.A. 19:13-19 to -23]."

Vacancies among primary election nominees, "howsoever caused," are filled pursuant to N.J.S.A. 19:13-20. This statute provides in pertinent part that

in the case of an office to be filled by the voters of a portion of a single county, the candidate[s] shall be selected by those members of the county committee of the party wherein the vacancy has occurred who represent those portions of the county which are comprised in the district from which the candidate is to be elected.

[N.J.S.A. 19:13-20a(4).]

At the meeting for the selection of the candidate, a majority of those eligible to vote "thereat shall be required to be present for the conduct of any business[.]" Ibid. When the meeting is held to select a candidate other than for state-wide office, the persons present and entitled to vote on the selection must choose a chairperson for the meeting by majority vote. N.J.S.A. 19:13-20.

Rules governing the determination of credentials and the procedures under which the meeting is conducted "shall be adopted [by] a majority vote of the persons entitled to vote upon the selection." Ibid. All contested votes must be "by secret ballot in a location or manner that protects the anonymity of the person's vote." Ibid.

III.

The BCRO maintains that N.J.S.A. 19:13-20 is silent as to how the vacancy is to be filled when there is a "deadlock" among the persons authorized to fill the vacancy. According to the BCRO, the trial court was not authorized to designate the candidate for the position, and the responsibility for filling the vacancy rests with the Republican Party.

Initially, we note that the construction of a statute presents an issue of law, which we review de novo. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). Thus, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan, supra, 140 N.J. at 378).

"Our paramount goal in interpreting a statute is to give effect to the Legislature's intent." Wilson v. City of Jersey City, 209 N.J. 558, 572 (2012) (citing State v. Maguire, 84 N.J. 508, 514 (1980)). "When that intent is revealed by a statute's plain language ascribing to the words used 'their ordinary meaning and significance' we need look no further." Ibid. (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)).

We are convinced that N.J.S.A. 19:13-20 does not authorize the trial court to designate a candidate when there is a deadlock among the persons authorized by the statute to select a party's nominee at the general election. As the BCRO points out, N.J.S.A. 19:13-20 does not address the situation, as occurred here, where the members of the county committee who are authorized to fill the vacancy are deadlocked. Accordingly, the statute does not empower a court to resolve the deadlock and select a candidate to fill the vacancy.

Similarly, the statute does not confer authority to fill the vacancy upon members of a political party's county committee who represent areas outside the municipality for which the election is being held. The statute specifically authorizes the members of the county committee from the part of the county "from which the candidate is to be selected" to fill the vacancy. The statute does not permit the county chairman to resolve the deadlock, nor does it permit any other members of the county committee to select the candidate.

The Legislature apparently did not envision that the persons who are authorized to fill the vacancy would not be able to agree upon a candidate. The Legislature may have expected that any disagreement regarding the person to be chosen as candidate would be resolved by the committee members designated in the statute to select the candidate.

The Legislature may reasonably have thought that the failure to fill the vacancy, with the resulting lack of a candidate for the general election would be a sufficient incentive for resolving any disagreement concerning the choice of the candidate. In any event, as we have explained, the statute specifies the persons who are authorized to fill the vacancy and only those persons may do so.

If those individuals cannot reach an agreement on a candidate, the vacancy will not be filled. We cannot "'rewrite a plainly-written enactment of the Legislature []or presume that the Legislature intended something other than that expressed by way of the plain language.'" DiProspero, supra, 183 N.J. at 492 (alteration in original) (quoting O'Connell v. State, 171 N.J. 484, 488 (2002)). We must "'construe and apply the statute as enacted.'" Ibid. (citing In re Closing of Jamesburg High School, 83 N.J. 540, 548 (1980)).

In this case, the trial court reasoned that it had the authority to designate the candidate in order to ensure that the voters had a choice at the general election. In reaching this conclusion, the court cited New Jersey Democratic Party, Inc. v. Samson, 175 N.J. 178, cert. denied sub. nom. Forrester v. N.J. Democratic Party, Inc., 537 U.S. 1083, 123 S. Ct. 673, 154 L. Ed. 2d 582 (2002). The trial court's reliance upon Samson was misplaced.

In Samson, a political party's candidate for the United States Senate withdrew after the primary, and the party selected another candidate to fill the vacancy thirty-four days before the general election. Id. at 184, 191, 199. The Supreme Court noted that N.J.S.A. 19:13-20 then provided that if the vacancy in a nomination occurs not later than the fifty-first day before the general election, the selection of the candidate to fill the vacancy had to be made no later than the forty-eighth day before the election. Id. at 191.

The Court rejected the contention that a vacancy that occurs within fifty-one days of the general election cannot be filled. Id. at 193. The Court stated that the Legislature did not intend "to limit voters' choice in a case where there is sufficient time to place a new candidate on the ballot and conduct the election in an orderly manner." Id. at 194. The Court held that the vacancy could be filled to ensure that the voters had an opportunity to exercise "their right of choice" in the general election "consonant with an orderly process for the handling of ballots." Id. at 199.

Thus, the Samson case dealt solely with the time in which a political party may select a person to fill a vacancy created by the withdrawal of a candidate for the United States Senate selected at the party's primary election. Nothing in the opinion suggests that a court could select a candidate for the general election, when the persons authorized by the statute to fill a vacancy are unable to do so.

The BCRO argues, however, that under the common law, a political party has the unfettered authority to select its candidates for public office in the general election. The BCRO contends that if a vacancy in a nomination cannot be filled pursuant to N.J.S.A. 19:13-20 because of a deadlock of the sort that occurred here, the party retains the authority under the common law to resolve the deadlock as it sees fit.

We cannot agree. "The system of elections in the United States is not of common law origin." Fiscella v. Nulton, 22 N.J. Super. 367, 372 (App. Div. 1952) (citing Taylor v. Beckham, 178 U.S. 548, 577, 20 S. Ct. 890, 901, 44 L. Ed. 1187, 1200 (1900)); see also In re Petition of Battle, 190 N.J. Super. 232, 236 (App. Div. 1983) ("[T]he public election mechanism is entirely a statutory creation lacking any common-law antecedents. . . .") (internal quotation marks and citation omitted), modified on other grounds, 96 N.J. 63 (1984). Furthermore, as we have explained, N.J.S.A. 19:13-20 provides the sole means by which a vacancy of a candidate nominated at a primary for the general election is to be filled. The vacancy is to be filled according to the terms of the statute, or it cannot be filled.

Thus, in this case, the trial court should not have declared Jensen to be a candidate for Borough council. When informed that the County Committee members could not reach agreement on a candidate, the court should have entered an order setting a deadline by which the disagreement should be resolved, "consonant with an orderly process for the handling of ballots." Samson, supra, 175 N.J. at 199. The order should have also stated that, if the municipal members of the County Committee could not agree upon a candidate by the date specified, the vacancy would not be filled.

In view of our interpretation of the statute, we need not consider the BCRO's constitutional arguments.

IV.

Although we conclude that N.J.S.A. 19:13-20 does not permit a court to designate a person to fill a vacancy among candidates chosen at a primary for a general election when the persons designated in the statute are unable to make that choice, we are nevertheless convinced that the BCRO has not established any basis for relief from the court's order at this time.

A new election will not be ordered unless, considering the totality of the circumstances, "the election irregularities were so significant as to warrant a new election." In re Gray-Sadler, 164 N.J. 468, 481-82 (2000). "Simple deviance from statutory election procedures, absent fraud or m[is]conduct, will not vitiate an election unless those contesting it can show that as a result of irregularities 'the free expression of the popular will in all human likelihood has been thwarted.'" Id. at 482 (quoting Wene v. Meyner, 13 N.J. 185, 196 (1953)).

A court will not set aside an election unless the irregularities "'are such that [it] cannot with reasonable certainty determine who received the majority of the legal vote[.]'" Ibid. (quoting In re Mallon, 232 N.J. Super. 249, 270 (App. Div.), certif. denied, 117 N.J. 166 (1989)). The court will consider the nature of the irregularity, its materiality, the significance and consequence of the deviations from the statutory requirements, and determine whether they "had in reasonable probability so imposing and so vital an influence on the election . . . as to repressed or contravened a full and free expression of the popular will[.]" Ibid. (internal quotation marks and citation omitted).

Considering these factors, we are convinced that invalidation of Jensen's election to the Borough council in the November 2014 general election is not warranted. We note that the BCRO did not seek a stay of the trial court's order designating Jensen as one of the Republican candidates for Borough council in the November 2014 election. Consequently, Schulstad and Jensen were the Republican candidates in the election. There were no candidates of the Democratic Party. In the election, Schulstad received 795 votes, Jensen received 787 votes, and 169 votes were cast for "[p]ersonal [c]hoice[.]"

Thus, Schulstad and Jensen were elected to seats on the Borough council, subsequently sworn into office, and have since served as council members. The BCRO never filed a petition contesting Jensen's election, and it never sought an order precluding him from taking office.

Furthermore, there is no claim that Jensen was not qualified for the position. There also is no claim that Jensen's election was the result of any misconduct or fraud. Although Jensen's selection as candidate of the Republican Party may not have been consistent with the statutory process, there is no indication that his election reflected anything other than "the free expression of the popular will" of the persons who voted in the general election. Ibid. (internal quotation marks and citation omitted).

Moreover, as we stated previously, there were four candidates for Republican nomination for the Borough council in the June 2014 primary. The trial court found that in the primary, Mastriano secured 350 votes; Schulstad, 345 votes; DeCrosta, 339 votes; and Jensen, 336 votes. Thereafter, the trial court found that Mastriano's petition was invalid because it lacked the certifications required by N.J.S.A. 19:23-11. Later, the court determined that DeCrosta's petition was similarly defective.

The court's decision invalidating Mastriano's nomination created a "vacancy" in the nominees for purposes of N.J.S.A. 19:13-20. Fiscella, supra, 22 N.J. Super. at 378 (holding that under N.J.S.A. 19:13-18, any nomination deemed insufficient or inoperative creates a "vacancy" to be filled in manner prescribed by statute). Nevertheless, the trial court's decisions regarding Mastriano's and DeCrosta's nominating petitions indicated that Schulstad and Jensen were only lawful candidates in the primary.

Thus, Jensen would have been a nominee of the Republican Party for one of the Borough's council seats, if he had challenged Mastriano's and DeCrosta's petitions before the primary, rather than after. Had that occurred, there would not have been a "vacancy" in the nomination if the challenge had been filed earlier.

As we have explained, Jensen's placement on the ballot for the November 2014 general election by the court rather than the Borough's County Committee members was a departure from the statutory requirements. That determination, however, did not thwart the will of the voters at the June 2014 primary, or the November 2014 general election.

Appeal dismissed.

1 The trial court denied Mastriano's motion for a stay of its order. Thereafter, we permitted Mastriano to file an emergent motion for a stay. We later denied that motion, noting that Mastriano had not established a substantial likelihood of success on the merits of his challenge to the court's decision that his nominating petition did not comply with N.J.S.A. 19:23-11.

2 N.J.S.A. 19:23-11 has been amended since this case began. L. 2014, c. 83, 2. The new language of the statute, which became effective December 26, 2014, requires petitions to be verified by affidavit of the person who circulates the petition. N.J.S.A. 19:23-11.