toto v muoio

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State of New JerseyOFFICE OF ADMINISTRATIVE LAW

INITIAL DECISION

OAL DKT. NO. STE 4365-11

(On Remand from STE 4234-11)

AGENCY DKT. NO. N/A

ELIZABETH M. MUOIO,Petitioner,

v.

DANIEL TOTO,

Respondent.

_____________________________________

John A. Sakson, Esq., for petitioner (Stark & Stark, attorneys)

Daniel Toto, respondent, pro se

Record Closed: April 21, 2011 Decided: April 25, 2011

BEFORE LISA JAMES-BEAVERS, ALJ

STATEMENT OF THE CASE AND PROCEDURAL HISTORY

This case is a remand of a challenge by petitioner, Elizabeth M. Muoio, to the

validity of nominating petitions filed by respondent, Daniel R. Toto, to become a

candidate under the Democratic Party for Assembly for the Fifteenth Legislative District.

New Jersey is an Equal Opportunity Employer


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The Elections Law, N.J.S.A. 19:23-8, requires at least 100 valid signatures in order for a

candidate's name to appear on a primary ballot. On or before April 11, 2011, Toto filed

nominating petitions containing a total of 115 signatures with the Department of State,

Division of Elections in Trenton. By letter faxed on or about April 15, 2011, Muoio filed

written objections to the validity of Totos petition.

On April 19, 2011, I heard the initial challenge. On April 20, 2011, I issued a

decision invalidating twenty-three of the twenty-nine challenged signatures: 1) ten

signatures of unregistered voters; 2) three signatures of registered Republicans; 3) nine

signatures in which the name and address provided did not match any combination in

the voter file; and 4) one signature that was withdrawn by the respondent as not being

part of the certified list. Totos then attorney, Martin Jennings, Esq., filed exceptions

with the State Division of Election.

Subsequently, the Secretary of State remanded the case on two issues: 1)

whether the signature of Joseph Bryce is invalid, thus reducing the petition by one

signature; and 2) whether a signature on file as being an individual located in the

Fifteenth District matches the signature of the nine individuals that were found to be not

registered due to their address not matching the one on file for that name in theStatewide Voter Registration System (SVRS). The Secretary of State transmitted the

file on remand to the Office of Administrative Law (OAL) for hearing as a contested

case. I held a remand hearing on April 21, 2011, and issued this decision on April 25,

2011.

FINDINGS OF FACT

On remand, Dawn Schilling, Clerk Typist with the New Jersey Division of Elections

testified as to the registration information and signatures by accessing the SVRS online.

The issues on remand will be addressed as noted in the Order.

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(1) Joseph Bryce

Petitioner objected to the name of Joseph Bryce because the address he gave

was located in Hamilton, which is not part of the Fifteenth Legislative District.

Respondent Toto, not petitioner as noted in the Secretary of States Remand Order,

advised that Bryces name is not part of the certified petition, although his name was

clearly set forth in the petition.1 Thus, I deemed it withdrawn. However, as I have been

instructed in the Remand Order, I now FIND that the address in the petition, although

noted as Trenton, is actually in Hamilton. Therefore the name of Joseph Bryce is

stricken on that basis. Respondent Toto had no objection to striking the name of

Joseph Bryce.

(2) Signatures that matched a registered voter in the SVRS

The Remand Order required that I compare the signatures of the signers whom I

rejected as not having a name and address that matched any in the SVRS with the

signatures of other registered voters by the same name to see if they matched a

registered voter in the district. Having done so, I FIND that signers Thearon Elmore,Maria Vargas, and Donald Lech are registered voters in the Fifteenth District. Although

Mr. Elmore was not found on the system to be listed at Oak Street in Trenton, he was

found on West State Street in Trenton. There were two women found with the name of

Maria Vargas in the system, both on Centre Street. The signature of the one at 691

Centre Street did not match; the signature of the Vargas at 495 Centre Street was

close, but not clearly a match. After discussing other names, the parties returned to the

signature of the Vargas at 495 Centre Street and I ruled at that time that, based on the

use of the middle initial A although it was written as a large lower case A on one and

1The number of signatures on Totos petition was initially noted as 116. The Division of Elections crossed out 116 and wrote 106

in its place. (P-2 at 1). Although the discrepancy was not clarified by either party at the initial or the remand hearings, the letterfrom Toto to the Division of Elections included in the transmitted file indicates that four signature sheets set forth, FOR GENERALELECTION USE ONLY at the top. (P-2 at 9, 13, 14 and 15). These sheets held twenty-five names. Of those twenty-five, petitionersubmitted affidavits from fifteen signers saying that they understood that the petition was for the 2011 Assembly primary election.Thus, it seems clear that the Division of Elections certified those fifteen, but did not certify the other ten, thus accounting for thecross out of 116 and writing of 106 on the petition. The name and signature of Joseph Bryce was on a sheet that saidGENERAL ELECTION. (Exhibit P-2 at 9). Bryce did not provide an affidavit and Toto stated in the initial hearing that his signaturewas not certified.

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a cursive capital A on the other, the last name was close enough to declare the two a

match. Petitioners objection was noted. Last in this category, Donald Lech was not

found in the system at Carr Avenue in Lawrenceville as he wrote in the petition, but a

Donald Lech was found at Haveson Avenue in Lawrence. There was very little dispute

that the two signatures matched and that Lech was a registered voter in the Fifteenth

District.

(3) Signatures that did not match any voter in the SVRS

Again, the Remand Order required that I compare the signatures of the signers

who were rejected as not having a name and address that matched any in the system

with the signatures of other registered voters by the same name to see if they matched

a registered voter in the district. Having done so, I FIND that signers Jesse Steele, Kim

Brown and Charles Ross have signatures that do not match any registered voter in the

Fifteenth Legislative District. Those three names are therefore stricken on that basis.

Respondent objected to each of these rejections and his arguments will be taken

in turn. Regarding Jesse Steele, as set forth, I found no matching signatures to the

signature of Jesse Steele on the system. Respondent testified that he spoke to theperson who signed as Jesse Steele and his name was actually Jesse Stills.

Respondent said the signer had trouble writing and seeing and someone helped him

and wrote Steele although his name is Stills. Respondent asked Ms. Schilling to look

up Jesse Stills and provided the birth date that Stills had provided him, and there was a

person listed at the address in the petition with the name and birth date of Jesse Stills.

Because my charge under the remand was to look at signatures and I determined that

there was no match and, looking at the signature of Jesse Stills compared with the

signature of Jesse Steele in the petition, there was no match of name or handwriting, I

found that the signature must be rejected. The testimony of respondent regarding his

conversation with the signer was hearsay, which, without sufficient corroborating

evidence, could not be the basis of a finding of fact.

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Regarding Kim Brown, there were six Kim Browns listed in the Fifteenth District,

not counting the one that was in SVRS as having moved out of the county. After

looking at all of the signatures, I did not find any that appeared to match. Respondent

objected to not finding a matching signature with the one at 120 Hoffman Avenue on the

basis that she does exist and sometimes when people write hastily, they do not write

the same as when they are filling out a registration form. However, the Kim Brown at

120 Hoffman Avenue was deleted due to a criminal conviction and was not a registered

voter in any event. There was no signature on file for the Kim Brown on Sanford Street

because the name had been deleted.

Regarding Charles Ross, there were four found in the Fifteenth District. One that

was thought to be Charles Ross was Charles Rosso, so that signature was not

compared because the signature and printed name clearly did not say Rosso. One on

the system had been rejected; another had been deleted leaving two actually registered

in the district. Respondent contends that the one on Honeysuckle Drive in Ewing is the

same one that signed the petition. However, I found the signatures did not match and

his signature was stricken.

(4) Signatures that matched those in the system, but were disqualified for otherreasons.

According to the remand order, if the signature on the petition compares with the

one in the SVRS, and if the address listed on the petition is in the 15 th Legislative

District, such signature should be deemed valid, assuming no other objection is

being raised. [Emphasis added]. In this fourth group of names, the signature

matched one in the SVRS and the address was listed as being in the Fifteenth

Legislative District; however, the SVRS noted that they had been either deleted or

marked inactive. Thus, according to Ms. Schilling, they were not registered. I FIND the

following undisputed facts regarding these three individuals: Yvonne Ross; Arthur

Tyler; and Meliann Rivas. I FIND Yvonne Rosss signature matched that of a registered

voter in the Fifteenth District who last voted in 1997 and, according to the system, was

last eligible to vote on November 11, 2008. She was then noted as inactive for not

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voting in two federal election cycles. I FIND Arthur Tyler to be the one registered at

Mechanics Avenue in Trenton. He registered, but never voted and thus, according to

the SVRS, was deleted. His last date of eligibility to vote was 2006. I FIND the

signature of Meliann Rivas to match the one at Furman Street in Trenton.2 Although

she registered to vote at some time, she had not voted in the last two federal election

cycles and was placed in inactive status. I FIND these three to be registered voters in

the Fifteenth District are qualified voters.

CONCLUSIONS OF LAW

As set forth in my Initial Decision, election laws are to be liberally construed so as

to effectuate their purpose. They should not be construed so as to deprive voters of

their franchise or to render an election void for technical reasons. Kilmurray v. Gilfert,

10 N.J. 435, 440 (1952); In re Ross Petition, 116 N.J. Super. 178, 184 (App. Div. 1971).

In enacting the statutes governing elections, our Legislature intended to promote

participation in the candidate-selection process, and to give voters more choices in

primary elections. Lesniak v. Budzash, 133 N.J. 1, 17 (1993). See also, New Jersey

Democratic Party, Inc. v. Samson, 175 N.J. 178, 190 (2002).

Regarding the signers in the fourth and last category, N.J.S.A. 19:31-5 sets forth

that once a voter is registered, he or she cannot be removed. Specifically, N.J.S.A.

19:31-5 provides:

The registrant, when registered as provided in this Title, shallbe eligible to vote at any election to be held subsequent tosuch registration, if he or she shall be a citizen of the UnitedStates of the age of 18 years and shall have been a residentof the State for at least 30 days and of the county at least 30

days, when the same is held, subject to any change in hisqualifications which may later disqualify him. No registrantshall lose the right to vote, and no registrant's nameshall be removed from the registry list of the county inwhich the person is registered, solely on grounds of the

2The signature of Meliann Rivas was on a sheet FOR GENERAL ELECTION USE ONLY. She did not submit an affidavit;

therefore, it appears that her signature was never certified. However, I am not rejecting her signature on that basis becauserespondent did not have the opportunity to argue that issue.

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person's failure to vote in one or more elections.[Emphasis added].

Thus, it appears that the voters in question were removed in contravention of the

above statute. The regulations do not govern primaries and thus, do not shed light onthis issue. N.J.A.C. 13:17-1.2 defines a registered voter as one who has completed a

voter registration which has been accepted by the appropriate county commissioner of

registration and has not been removed from the registry list for any reason. Although

the regulation allows for removals, if the removal was for failing to vote in one or more

elections, then it would be contrary to the above statute. However, the registrants

name can be removed from the registration system if the registrant

(1) confirms in writing, by return of a confirmation notice asprescribed under subsection d. of this section or by othermeans, that the registrant has changed residence to a placeoutside the State, or (2) has either not notified thecommissioner or failed to respond to a confirmation notice asso prescribed and has not, in any election during the periodbeginning on the date on which the commissioner sends theconfirmation notice to the registrant and ending on the dayafter the second general election for federal office followingthat date on which the notice is sent, (a) voted, or (b)appeared to vote in any county and, if necessary, correct the

official record of the registrants address.

Other than as provided under subsection a. of this section,the name of a registrant shall not be removed from theStatewide voter registration system on the ground that theregistrant has changed residence except as provided by thissubsection.

[N.J.S.A. 19:31-15.]

Although the SVRS is the official record of registered voters in the State, I cannot

declare invalid the signatures of individuals who clearly exist and represented to

respondent that they were registered without evidence before me that the county

commissioner notified these individuals that they would be removed or listed as inactive

and unregistered if they did not vote. Without notice, such individuals cannot be

removed for having failed to respond to a confirmation notice. Ms. Schilling could not

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say whether they were provided such notice because doing so would be the

responsibility of the county. Therefore, while N.J.S.A. 19:23-7 requires that qualified

voters sign a petition for nomination, voters who have registered, but have been

removed from the registration rolls or made inactive on those rolls remain qualified

voters, the signatures of which are valid on nomination petitions. Qualifying these three

voters still does not provide respondent with the required number of signatures.

Having started the initial hearing with 115 signatures on respondents petition,

which was then brought down to ninety-two with my decision of April 20, 2011, I now

qualify another six, bringing the total number of valid signatures to ninety-eight.3 I

therefore CONCLUDE that respondent does not have the 100 required signatures of

registered voters to be a candidate for the 2011 Democratic Primary Assembly election.

ORDER

It is ORDERED that Daniel R. Toto does not qualify on the ballot for the 2011

Primary Election for the Fifteenth Legislative District Democratic Assembly seat.

I hereby FILE my initial decision with the SECRETARY OF STATE forconsideration.

This recommended decision may be adopted, modified or rejected by the

SECRETARY OF STATE, who by law is authorized to make a final decision in this

matter. If the Secretary of State does not adopt, modify or reject this decision within

forty-five days and unless such time limit is otherwise extended, this recommended

decision shall become a final decision in accordance with N.J.S.A. 52:14B-10.

3I found no other signature challenged by petitioner in the initial or remand hearing to have not been certified by the Division of

Elections on the basis of being placed on a sheet for a general election and not cured by affidavit.

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Any party may file exceptions with the DIRECTOR OF THE DIVISION OF

ELECTIONS, DEPARTMENT OF STATE, by facsimile transmission at (609) 777-1280

no later than 4:00 p.m. on the day of the hearing or within two hours of the oral decision.

A hard copy shall be mailed within twenty-four hours of the facsimile transmission to the

DIRECTOR OF THE DIVISION OF ELECTIONS, DEPARTMENT OF STATE, 225

West State Street, 3rd Floor, PO Box 304, Trenton, New Jersey 08625-0304, marked

Attention: Exceptions. A copy of any exceptions must be sent to the judge and to the

other parties.

April 25, 2011

DATE LISA JAMES-BEAVERS, ALJ

Date Received at Agency: April 25, 2011

Date Mailed to Parties: April 25, 2011

cmo

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APPENDIX

WITNESSES

For Petitioner:

Dawn Schilling

For Respondent:

Daniel R. Toto

EXHIBITS

For Petitioner:

P-1 Challenge to Candidacy of Daniel Toto with attachment dated 4/15/11

P-2 Petition of Nomination with signatures stamped April 11, 2011 (Pages are

numbered consecutively by hand to correspond to those in the challengepetition)

For Respondent:

R-4 Signature of Maria Vargas in SVRS

R-5 Signature of Kim R. Brown in SVRS

R-6 Charles W. Ross in SVRS

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toto v muoio

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