MICHAEL J. CINO v. LIEUTENANT GOVERNOR KIM GUADAGNO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4412-10T3

MICHAEL J. CINO,

Appellant,

v.

LIEUTENANT GOVERNOR KIM GUADAGNO, in her

capacity as Secretary of State; PAULA T.

DOW, Attorney General of the State of New

Jersey; ELIZABETH RANDALL, Clerk of Bergen

County; KRISTIN CORRADO, Clerk of Passaic

County; and PATTY DiCOSTANZO, Superintendent

of Elections/Commissioner of Registration,

Respondents.

___________________________________________________

December 26, 2012

Submitted November 7, 2012 - Decided

Before Judges Fisher and Waugh.

On appeal from the Secretary of State of New Jersey.

Michael J. Cino, appellant, pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondents Guadagno, Dow and DiCostanzo (Donna Kelly, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

No other respondents have filed a brief.

PER CURIAM

We find no merit in these elections matters, which relate to the Republican primary for State Senate in the Thirty-Ninth Legislative District that occurred on June 7, 2011, and affirm.

The record on appeal reveals the following circumstances. On April 11, 2011, Michael J. Cino filed a petition with the Department of State, Division of Elections, seeking inclusion as a candidate for State Senate in the Thirty-Ninth Legislative District in the 2011 Republican primary to occur in June 2011. Four days later, Murray Bass filed papers with the Division challenging Cino's petition. On April 18, 2011, Cino filed papers with the Division, objecting to State Senator Gerald Cardinale's petition for the same office in the primary; the Division immediately advised Cino that this objection was not timely submitted.

The dispute regarding Cino's inclusion as a candidate was transmitted to the Office of Administrative Law as a contested proceeding. Administrative Law Judge Michael Antoniewicz conducted a hearing on April 19, 2011, at the conclusion of which he found Cino's petition did not contain the required number of valid signatures. In a thorough written decision, ALJ Antoniewicz found that of the 155 signatories to Cino's petition, seventy-one were invalid because thirty-five were unregistered voters, thirteen were registered Democrats, and twenty-three resided outside the Thirty-Ninth District. Because N.J.S.A. 19:23-8 requires 100 valid signatures for a petitioner's inclusion on the primary ballot, the ALJ concluded that Cino had insufficient signatures and was disqualified. Cino immediately filed exceptions with the Secretary of State, chiefly contending that the signatures of unregistered individuals should have been counted because the deadline for filing his petition preceded the deadline for voter registration. The Secretary of State rejected Cino's exceptions.

On May 3, 2011, Cino filed a complaint in the Law Division, challenging the Secretary of State's determination regarding his own candidacy and additionally asserting objections to Senator Cardinale's eligibility to be on the primary ballot. On the same day, a Law Division judge entered Cino's proposed order to show cause. On May 10, 2011, however, the Law Division judge transferred the matter to this court, pursuant to Rule 2:2-3. Two days later, this court denied Cino's emergent application regarding both the Secretary of State s final decision regarding Cino's candidacy and Cino's claim that Senator Cardinale was ineligible. The Supreme Court denied Cino's emergent application on May 17, 2011.

Cino did not file his brief on the merits of this appeal until March 7, 2012, long after the primary in question, as well as the following general election, had occurred. The Secretary of State was granted leave to rely upon her brief in opposition to Cino's emergent application as her brief on the merits of the appeal; no other party has responded.1

In his pro se brief, Cino presents many arguments from which we discern two main contentions: (1) the Secretary of State erred in not counting the unregistered individuals that signed his petition because the deadline to register to vote arose later than the deadline for his petition; and (2) Senator Cardinale's inclusion on the primary ballot was erroneous because the Senator's birth certificate reveals that his name is "Salvatore Gerald Cardinale" and, thus, Cino alleges, the name on the petition -- Gerald Cardinale -- is "fake."

Once the primary took place, the issues raised in this appeal became moot. Even if we could find merit in any of Cino's arguments, there is no longer an adequate remedy available to him. Notwithstanding the mootness of these election matters, we have closely examined the issues raised and find all Cino's arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only these brief comments.

With regard to Cino's inclusion on the primary ballot, the ALJ's findings, which were adopted by the Secretary of State, are entitled to our deference. See Clowes v. Terminix Int'l, 109 N.J. 575, 587 (1988). The Secretary's legal conclusions are not entitled to a reviewing court's deference, but they were correct. Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). The signatures of registered Democrats, registered voters outside the Thirty-Ninth Legislative District, and unregistered voters were not eligible to be counted in determining the sufficiency of Cino's petition -- leaving Cino with less than the required 100 signatures. And, despite Cino's forceful contentions regarding the disregarding of the signatures of unregistered voters, the Supreme Court's holding in Lesniak v. Budzash, 133 N.J. 1, 12 (1993) compels our rejection of Cino's argument.

We would also observe that Cino was not entitled to relief regarding the issues he posed about Senator Cardinale's candidacy in the 2011 primary because Cino's objection was filed out of time, because Cino did not exhaust his administrative remedies,2 and because Cino failed to name Senator Cardinale, whose inclusion in this suit was indispensable, as a party.

1Senator Cardinale was not named a party to the suit commenced by Cino in the Law Division.

2As noted earlier, the Division found Cino's objection to Senator Cardinale's petition to be untimely. Cino did not seek review by the Secretary of State but instead filed his complaint in the Law Division.