NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1511-20
THELMA WITHERSPOON
and THE ATLANTIC COUNTY
DEMOCRATIC COMMITTEE,
Plaintiffs-Appellants,
v.
ATLANTIC COUNTY BOARD
OF COMMISSIONERS,
Defendant-Respondent.
______________________________
Argued September 16, 2021 – Decided September 24, 2021
Before Judges Alvarez, Haas and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-0119-21.
Colin G. Bell argued the cause for appellants (Hankin
Sandman Palladino Weintrob & Bell, attorneys; Colin
G. Bell, on the briefs).
Richard C. Andrien argued the cause for respondent.
PER CURIAM
Plaintiffs Thelma Witherspoon and the Atlantic County Democratic
Committee appeal from the Law Division's February 5, 2021 order denying their
application for a declaratory judgment that Witherspoon could serve as
Commissioner for Atlantic County's Third District pending the results of a
special election. We affirm substantially for the reasons set forth by Judge
Joseph Marczyk in his thirty-one-page written decision rendered on February 5,
2021.
The parties are familiar with the idiosyncratic facts of this case and with
Judge Marczyk's resolution of the legal issues in his comprehensive opinion.
Therefore, we need only summarize the most salient history here.
Witherspoon and Andrew Parker were candidates for the Atlantic County
Commissioner, District Three position in the November 3, 2020 general
election. See In re Election for Atl. Cty. Freeholder 1 Dist. 3 2020 Gen. Election,
___ N.J. Super. ___ (App. Div. 2021) (slip op. at 1). After the election, "the
1
"The . . . Board of Chosen Freeholders has become the Board of County
Commissioners and the position of 'Freeholder' has been substituted by 'County
Commissioner[].' See L. 2020, c. 67 (eff. Jan. 1, 2021) (amending N.J.S.A. 1:1-
2; N.J.S.A. 40:20-1)." Id. at 1 n.1.
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2
Atlantic County Board of Elections canvassed and counted the votes" and
determined that Witherspoon received 286 more votes than Parker. Id. at 4-5.
However, it was soon discovered that "[d]ue to an error by the Office of
the Atlantic County Clerk, 554 voters in [one of the townships comprising the
Third District] received incorrect vote-by-mail ballots for the" election. Id. at
3. Three hundred and twenty-eight of these "erroneous ballots . . . failed to
contain the race for Atlantic County Commissioner . . . , District Three, a race
in which the voters were entitled to vote." Id. at 4, 10 (second alteration in
original). As a result, these voters were disenfranchised. Id. at 17.
Parker subsequently filed an election contest pursuant to N.J.S.A. 19:29-
1(e), which states that an election may be contested "[w]hen illegal votes have
been received, or legal votes rejected at the polls sufficient to change the
resul[t.]" Id. at 7. Parker alleged that the 328 voters who received an incorrect
ballot "had their legal votes rejected" and the election results should be set aside
because the 328 rejected votes exceeded the number of votes separating the two
candidates. Id. at 7, 10-11.
On January 4, 2021, Judge Marczyk agreed with Parker's argument and
entered an order revoking Witherspoon's certificate of election and declaring a
vacancy in the Third District Commissioner position. The judge also ordered
A-1511-20
3
that a special election be conducted on April 20, 2021. However, the judge later
stayed the special election pending the outcome of Witherspoon's appeal from
the January 4 order. Id. at 11.
On June 29, 2021, we affirmed the January 4 order. Id. at 1-2. In so
ruling, we determined that "Judge Marczyk did not err" in nullifying the election
based on his finding that neither candidate was duly elected because 328 voters
were disenfranchised and, as a result, "the court [could not] with reasonable
certainty determine who received the majority of the legal vote . . . ." Id. at 13,
24.2
After Judge Marczyk nullified the election on January 4, 2021, the
members of the Atlantic County Democratic Committee (Committee) met on
January 11, 2021, and voted to appoint Witherspoon to fill the vacant
Commissioner seat pending the outcome of the special election pursuant to
N.J.S.A. 40:41A-145.2. That statute provides:
In the case of a vacancy occurring with respect to a
member of the board of [commissioners] who was
elected as the candidate of a political party which at the
2
After our decision was rendered on Witherspoon's appeal, Judge Marczyk
granted her request to reschedule the special election for November 2, 2021,
which is also the date for the next scheduled general election. Because that
election will fill the Commissioner position for the Third District for the
remainder of the unexpired term, the dispute between the parties will become
moot as of that date.
A-1511-20
4
last preceding general election held received the largest
number of votes or the next largest number of votes in
the county for members of the board of
[commissioners], for the interim period pending the
election and qualification of a permanent successor to
fill the vacancy, or for the interim period constituting
the remainder of the term in the case of a vacancy
occurring which cannot be filled pursuant to section 5
of this act at a general election, the vacancy shall be
filled within 35 days by a member of the political party
of which the person who vacated the office was the
candidate at the time of his election thereto. The interim
successor shall be selected by the appropriate political
party’s county committee in the same manner
prescribed in subsections a. and b. of [N.J.S.A.] 19:13-
20 for selecting candidates to fill vacancies among
candidates nominated at primary elections for the
general elections, and a statement of the selection of
that successor shall be certified to and filed with the
county clerk in the same manner prescribed by
subsection d. of that section for certifying statements
concerning the selection of such candidates.
[N.J.S.A. 40:41A-145.2 (emphasis added).]
The Committee asserted that Witherspoon "received the largest number of
votes" in the nullified election and sent her appointment documents to defendant
Atlantic County Board of Commissioners, which rejected her attempt to assume
the Commissioner position. Witherspoon and the Committee then filed a
verified complaint in lieu of prerogative writ seeking a declaratory judgment
that the Committee was entitled to appoint Witherspoon as an interim
Commissioner under N.J.S.A. 40:41A-145.2.
A-1511-20
5
In support of their position, plaintiffs largely relied upon the Supreme
Court's decision in In re Contest of Nov. 8, 2011 Gen. Election of Off. of N.J.
Gen. Assembly (2011 Contest), 210 N.J. 29 (2012). In that case, there were two
open General Assembly positions for the Fourth Legislative District. Id. at 35-
36. After the votes were counted, Paul Moriarity received 21,086 votes,
followed by Gabriela Mosquera with 19,907. Id. at 40. The plaintiff, Shelley
Lovett, finished third with 14,351. Ibid.
However, Lovett filed an election contest, arguing that the incumbent was
not eligible to the office at the time of the election. Ibid.; N.J.S.A. 19:29-1(b).
Lovett's challenge was based on the fact that Mosquera had not lived in the
Fourth District for one year prior to her election as required by Article IV,
Section 1, Paragraph 2 of the New Jersey Constitution. 2011 Contest, 210 N.J.
at 40. The trial court found this challenge meritorious and "annul[ed]
Mosquera's certificate of election, set[] aside the . . . election in the Fourth
District as to Mosquera only, and enjoin[ed] Mosquera from taking office." Id.
at 41.
The trial court also determined that because Mosquera received the
second-most votes for the position, she should be considered the "incumbent"
for one of the two available seats. Id. at 42. Since Mosquera was disqualified,
A-1511-20
6
the court found a vacancy and allowed Mosquera's political party the
opportunity to fill the seat on an interim basis under N.J.S.A. 19:27-11.2, which
governs the procedure for appointing an interim successor to a vacated position
in the Legislature. 3 Ibid.
In 2011 Contest, the Supreme Court affirmed the trial court's decision. Id.
at 38. In rendering its decision, the Court specifically stated that its ruling was
based upon "the circumstances presented here," where there was no doubt as to
the number of votes each candidate received. Id. at 73. As the Court explained,
the trial court's remedy of allowing the county
committee of Mosquera's political party to select the
interim successor for the office will honor the
expression of popular will. The voters selected
Mosquera as the second highest vote-getter for the two
General Assembly seats that were to be filled through
the November 8, 2011 election.
[Id. at 74-75.]
In his February 5, 2021 decision, Judge Marczyk found 2011 Contest
readily distinguishable from the case at hand. Here, unlike in 2011 Contest,
there was no clear winner of the election because rejected votes exceeded the
difference between the two candidates' total votes. The judge stated:
3
The procedure set forth in N.J.S.A. 19:27-11.2 for filling vacant legislative
positions is similar to the procedures set forth for Commissioners in N.J.S.A.
40:41A-145.2.
A-1511-20
7
This court agrees there is a vacancy for the purposes of
the case at bar based upon the Supreme Court's decision
in the [2011 Contest] case. However, the Supreme
Court was careful to limit its interpretation of the term
"incumbent" to the circumstances presented in that
case. [2011 Contest, 210 N.J. at 73]. It did not
determine that all elections declared void pursuant to
N.J.S.A. 19:29-1 would result in the challenged
candidate's political party filling the seat on an interim
basis. In the court's view, the case before the Supreme
Court was very different from the circumstances in the
case at bar. For example, the trial court in the [2011
Contest] case noted that allowing Mosquera's political
party to fill the seat would "effectuate the will" of the
voters as she had won the election. Id. at 43. The
Supreme Court also applied this same rationale in citing
favorably to the arguments of the Attorney General who
indicated that allowing Mosquera's political party to
select the interim successor for the office would "honor
the expression of popular will." Id. at 74-[7]5. Here,
however, we do not know which candidate had the
support of the popular will of the voters. That is
because the court determined there were sufficient legal
votes rejected such that it could not decide who won the
election. Accordingly, it would not be proper to find
. . . Witherspoon to be the "incumbent."
[(emphasis added).]
Judge Marczyk therefore denied plaintiffs' request for declaratory relief. 4
As the judge explained:
4
On appeal, plaintiffs contend that the judge incorrectly "appl[ied] the standard
for an interlocutory injunction to [his] final adjudication on the merits " of their
claim. However, although the judge briefly mentioned the clear and convincing
A-1511-20
8
It is difficult to understand how an individual whose
election is overturned because of illegal votes counted
and/or legal votes that were rejected sufficient to
change the outcome of the election could be considered
to be the incumbent for the purpose of filling a vacancy
in accordance with N.J.S.A. 40:41A-145.2. In fact, this
court ultimately revoked the certificate of election and
declared a vacancy because it could not determine who
prevailed because of irregularities occasioned by the
Atlantic County [C]lerk sending out numerous
improper ballots.
The judge continued:
Specifically, the court determined there were sufficient
legal votes rejected to change the results of the election
pursuant to N.J.S.A. 19:29-1(e) and given the number
of voters disenfranchised by virtue of the defective
ballots, the court concluded the integrity of the election
was compromised. Therefore, under N.J.S.A. 40:41A-
145.2, this court cannot determine that . . . Witherspoon
was the incumbent as she was not "elected" with the
"largest number of votes." Accordingly, this case can
be distinguished from Mosq[u]era's situation in [2011
Contest] where she indisputably received the largest
number of votes. Under these circumstances, the court
does not believe it would be proper for the vacancy to
be filled as requested by the [p]laintiffs.
This appeal followed.
standard for preliminary injunctive relief in an earlier section of his decision,
the judge never applied that standard to plaintiffs' request for final declaratory
relief. See Crowe v. De Gioia, 90 N.J. 126, 139 (1982) Therefore, plaintiffs'
argument lacks merit. See R. 2:11-3(e)(1)(E).
A-1511-20
9
On appeal, plaintiffs raise the same arguments they unsuccessfully
presented to Judge Marczyk. Our review of a trial court's "interpretation of the
law and the legal consequences that flow from established facts" is de novo.
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Applying this standard, we discern no basis for disturbing Judge
Marczyk's determination and we affirm for the reasons set forth in his thoughtful
opinion. As the judge found, there was no "winner" of the November 3, 2020
election for the Commissioner position in the Third District. Therefore, we
cannot identify "the appropriate political party[]" to appoint an interim
Commissioner under N.J.S.A. 40:41A-145.2. Accordingly, the judge properly
ordered a special election to fill the vacant position for the remainder of the
term.5
Affirmed.
5
As noted above, the special election will be held on November 2, 2021.
A-1511-20
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