IN THE MATTER CONTEST NOVEMBER 8, 2005, GENERAL ELECTION FOR THE OFFICE OF COUNCIL BOROUGH OF MILLTOWN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4084-05T24084-05T2

IN THE MATTER OF THE CONTEST OF THE NOVEMBER 8, 2005, GENERAL ELECTION FOR THE OFFICE OF COUNCIL OF THE BOROUGH OF MILLTOWN

 

Submitted October 23, 2006 - Decided November 15, 2006

Before Judges Lintner and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County,

L-8765-05.

Spadaccini Main, attorneys for appellant, Randy Farkas (Kevin H. Main, of counsel and on the brief).

Dominic J. Cerminaro & Associates, attorneys for respondent, Joseph Cruz (Dominic J. Cerminaro, of counsel and on the brief; Warren L. Fink on the brief).

PER CURIAM

Petitioner, Randy Farkas, lost the November 8, 2005, election, by one vote, for a seat on the Borough of Milltown Council. His pro se petition challenging the election results was dismissed and his order to show cause why the election should not be overturned was denied by a Law Division judge by order of December 15, 2005. Farkas retained counsel and moved for reconsideration. Following oral argument, his motion was denied. The order memorializing that denial was filed on March 3, 2006. Farkas appeals and we affirm both orders.

On November 8, 2005, a general election in the Borough of Milltown was held to fill two positions on the Borough Council. The vote was certified and Farkas, the Republican candidate, prevailed over respondent Joseph Cruz, the Democratic candidate, by one vote. Farkas had 1363 votes and Cruz had 1362 votes. A recount took place on November 28, 2005, resulting in Cruz winning by one vote, the tally being 1369 votes for Cruz to 1368 votes for Farkas. Cruz was certified by the Middlesex County Clerk as the winner of the election.

On December 8, 2005, Farkas filed his verified pro se petition, challenging the recertification of the election results in Cruz's favor, pursuant to N.J.S.A. 19:29-1 to -14. In Count One of the petition, Farkas claimed the recount was not conducted in the presence of the public, N.J.S.A. 19:53A-8, and as a result of those and other activities of "malconduct . . . illegal votes were received, legal votes were rejected, [and] an error in the counting of the votes resulted."

In Count Two, Farkas alleged, "[J.G.] was listed as a registered voter in the Borough of Milltown and voted in the General Election . . . although [he] was not a resident of the Borough of Milltown at the time and had not been a resident for several months prior to [November 8, 2005]." He claimed that J.G.'s vote was therefore "null and void and of no force and effect."

On December 19, 2005, the judge placed the following on the record, explaining her dismissal of Farkas's petition:

Mr. Farkas'[s] office was contacted by my law clerk to tell him that his papers were, in fact, incomplete in this matter, we only received a verified petition [from] him, and no accompanying papers, and no order. . . . [W]e've never received any additional papers. I have reviewed . . . what he has sent to us, and I find, in fact, that he has failed to . . . plead with specificity . . . .

The petitioner refers to . . . irregularities without any specificity as to what renders any individual voter a valid irregular. He alleges all types of errors and irregularities without specific facts. There's absence of a petition -- amended petition to support or validate the allegations. . . . There's no specificity in reference to this matter . . . he doesn't speak of the nature of the irregularity, he doesn't speak of its materiality, and he doesn't speak of any type of influence on the election as to have repressed or contravene[d] any . . . full and free expression of the popular will.

The absence of clarity on this issue renders the petition legally insufficient, and it deprives the respondent of the opportunity to prepare a defense in this matter. The petitioner has failed to submit a well pled complaint, and, therefore . . . [the] submission is deficient, and is hereby dismissed.

In support of his motion for reconsideration, Farkas certified that, subsequent to his filing of the verified petition on December 8, he received a call from a law clerk requesting that he submit an order to show cause with his petition and an affidavit in support of the petition. Farkas submitted an order to the court but did not submit an affidavit in support of his petition because "[i]t [was his] understanding, from information received from attorneys that [he] discussed this matter with, that the verification attached to [his] initial petition was in fact an affidavit." Farkas further certified that he "was never advised that the matter would be considered on a particular date and did not have the opportunity to appear to argue [his] cause or otherwise present information."

In a second affidavit, dated February 12, 2006, in support of his motion for reconsideration, Farkas certified that he "[had] done some additional investigation and [had] discovered" that J.G. was "evicted from the address [he] used to vote in the general election by Order dated August 24, 2005, [which] requir[ed] [J.G.] to move out of the Milltown address no later than August 31, 2005." Farkas certified that "[J.G.] filed a change of address with the U.S. Post Office in Milltown listing a forwarding address of 6 Highview Rd., East Brunswick, NJ."

Farkas also certified that "[a]nother voter, [D.H.], listed his mother's address in Milltown as his residence and voted by provisional ballot." Farkas "spoke to [D.H.'s] mother . . . who indicated that he did not live in Milltown, but lived in East Brunswick and had not lived in Milltown 'for quite some time.'" Farkas further certified that he "determined that [D.H.] had previously lived in North Brunswick and that he had filed a change of address form with the North Brunswick Post Office indicating that the forwarding address was 352 Bromley Place, East Brunswick, New Jersey, not Milltown."

At oral argument on the motion for reconsideration, Farkas argued that the original petition was sufficient and that he had complied with the statutory requirements regarding challenging an election. Farkas asserted that, because he signed the verified petition, he was not required to submit an affidavit. Counsel for Cruz argued that, even if the petition was sufficient as originally filed, Farkas failed to make his motion for reconsideration within the twenty-day time period provided in R. 4:49-2. The judge concluded for a second time that the pleadings were "legally insufficient" and "deficient."

On appeal, Farkas asserts that his pleadings satisfied the requirements of N.J.S.A. 19:29-1 and -2, and that the judge erred in reaching her determination that they were legally insufficient and deficient. N.J.S.A. 19:29-1, provides in pertinent part:

The nomination or election of any person to any public office . . . may be contested by the voters of this State or of any of its political subdivisions affected thereby upon 1 or more of the following grounds:

a. Malconduct, fraud or corruption on the part of the members of any district board, or of any members of the board of county canvassers, sufficient to challenge the result;

. . . .

e. When illegal votes have been received, or legal votes rejected at the polls sufficient to change the result;

f. For any error by any board of canvassers in counting the votes or declaring the result of the election, if such error would change the result;

g. For any other cause which shows that another was the person legally elected . . . .

N.J.S.A. 19:29-2 spells out the requirements for filing a valid petition in the Superior Court. It provides in relevant part:

In [a local election challenge] the contest shall be heard by any judge of the Superior Court . . . and shall be commenced by the filing of a petition therefor with the Clerk of the Superior Court signed . . . by any defeated candidate for . . . public office.

. . . .

The petition shall be verified by the oath of . . . the candidate . . . which verification may be made on information and belief. The petition shall be accompanied by a bond . . . to the incumbent . . . . When the reception of illegal or the rejection of legal voters is alleged as a cause of contest, the names of the persons who so voted, or whose votes were rejected, with the election district where they voted, or offered to vote, shall be set forth in the petition, if known.

The petition is required to "contain a plain and concise statement of the points in issue." In re The Contest of the Alleged Election of Daisy Douglas, 16 N.J. Misc. 34, 37 (Cir. Ct. 1938). "Facts" rather than "conclusions of the pleader" must be stated. Ibid. "The petitions should set forth with reasonable particularity facts and circumstances sufficient to render probable any statutory ground of contest." Ibid. "The omnibus charge of fraud" absent particular facts is not sufficient to establish a prima facie case, it is merely a conclusion. In re Petition of Clee, 119 N.J.L. 310, 330 (Sup. Ct. 1938). "[T]he fraud required to be pleaded to initiate a contest . . . must bear such relation to the result of the election . . . to throw the result into doubt . . . ." Id. at 323. Relief need not be afforded "merely because a petition is filed asking for a contest and stating, generally, the broad grounds of the statute, without detail sufficient to frame an issue against which the incumbent might prepare his defense." Id. at 329-30. The first count of Farkas's petition merely recites general allegations of malconduct without providing any basis as to how that malconduct affected the outcome of the election.

Where personal knowledge is not required, allegations based upon information and belief are sufficient. Escoett v. Aldecress Country Club, 16 N.J. 438, 452 (1954). N.J.S.A. 19:29-2 expressly permits petitions challenging the legality of an election to be based upon information and belief. Information and belief necessarily relies on hearsay information rather than personal knowledge. See Tiene v. Jersey City, 13 N.J. 478, 488-89 (1953). The determination of the sufficiency of a pleading based upon hearsay necessarily rests upon the sound discretion of the trial judge. Id. at 489.

Farkas's initial second-count allegations concerning J.G. were based upon the mere conclusory statement that the voter was not a resident of Milltown, without any indication upon which the allegation was based. Farkas's affidavit filed in support of his motion for reconsideration provided the specific reasons for his belief that the two voters were not domiciled in Milltown. Those reasons rested on information and belief based upon his review of post office change of address records and the statement given by the mother of one of the alleged illegal voters. However, the information and belief provided did not include the date either voter purportedly moved or the date of the alleged postal change of address forms. Indeed, no copies of the change of address forms were attached. Although the affidavit made a vague reference to the mother saying that her son had not lived in Milltown "for quite some time," Farkas did not provide the month and year that the alleged illegal voter moved or an affidavit from the voter's mother. Simply put, under those circumstances, the judge did not misuse her discretion in finding that the petition and affidavits were insufficient to present a prima facie case, albeit on information and belief.

Affirmed.

 

We refer to the alleged illegal voters by their initials because they are not parties and the record does not indicate that they were served with Farkas's petition, order to show cause, or motion for reconsideration.

According to Farkas, the eviction proceeding was "Middlesex County Docket No. LT-007219-05."

Farkas also stated, "I examined other absentee ballots and believe that there are discrepancies with signatures."

The Middlesex County Board of Elections argued that it did not object to restoration, but did object to any addition to the allegations already set forth by Mr. Farkas.

(continued)

(continued)

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A-4084-05T2

November 15, 2006