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Wednesday, April 13, 2016

Full Text of the Ruling in Dunn residency matter


Below is the complete text of Municipal Clerk 'AJ' Jalloh's ruling in the Jeffery Dunn residency matter.



DECISION

As the filing officer for nominations to office for the City of Plainfield, I issue this summary review of objection and challenges to petitions under N.J.S.A. 19:13-11.

In the City of Plainfield this year, there are two offices open on the City Council for election in the June 2016 Primary Election.

On April 4, 2016, candidate Jeffery Dunn filed his nominating petition for the office of Councilman for the Third Ward. (Exhibit A)

On April 6, 2016, Adrian O. Mapp, Chairman of the Plainfield Democratic City Committee, (hereinafter referred to as the “objector”) filed a written objection to the nominating petition of Jeffery Dunn, a copy of which is attached hereto. (Exhibit B). Thereafter, on April 6, 2016 I provided a copy of the objection to Mr. Dunn pursuant to State law. The basis for the objection was that Mr. Dunn failed to maintain residency in the third ward for one (1) year prior to the election as required by Plainfield Special Charter Section 2.3. In support of his objection, Chairman Mapp attached various documents which shall be discussed at greater length herein.

On April 7, 2016, I provided notice to both parties that a hearing would be held on April 11, 2016 to aid me in ruling on the validity of the objection. (Exhibit C).

In accordance with the notice (Exhibit C) a hearing was conducted on April 11, 2016 at the Plainfield Municipal Building by me, before a court reporter and the witnesses’ testimony under oath. Chairman Mapp was represented by Robert Renaud, Esq. and Jeffery Dunn was represented by Daniel Williamson, Esq. In addition, the hearing was open to the public.


Objector’s Exhibits:

The Objector offered the following documents into evidence:

O-1 Jeffery Dunn’s New Jersey Voter Registration Application, dated November 2014;


O-2 Jeffery Dunn’s Voting Authority Card, dated November 3, 2015;


O-3 Jeffery Dunn’s Signature Page from the Voter Poll Book, dated November 3, 2015;


O-4 Jeffery Dunn’s Voter History Printout showing his voting history from April 2007 to November of 2015.
All of the aforementioned exhibits (Exhibit D) were introduced by the objector without objection from Mr. Dunn.


Objector’s Argument

Objector contends that a review of the documents introduced reveals that Mr. Dunn does not reside in the Third Ward as required by the Plainfield Special Charter Section 2.3(a). Specifically, Mr. Dunn’s New Jersey Voter Registration Application (O-1) and his driver’s license place his address at 320 Park Avenue in Plainfield. This address is in the First Ward. Further, Mr. Dunn’s voting history reflects that he has been voting in the First Ward since June 2015. In addition, Mr. Dunn’s voting authority card (O-2), poll book (O-3), and voter history printout (O-4) all support the conclusion that Mr. Dunn does not live in the Third Ward. In fact, his voter history shows that he has never voted as a Third Ward resident.

Therefore, the objector contends that Mr. Dunn has not resided in the Third Ward for one (1) year prior to the election and should be removed from the ballot.


Jeffery Dunn’s Exhibits

Jeffery Dunn offered the following documents into evidence:

D-1 City Tax Records for 320 Park Avenue, Plainfield NJ;


D-2 Letter from Milena A. Wilson, Esq. regarding a short sale at the property located at 537 Belvidere Avenue, dated September 29, 2014;


D-3 A one-page portion of the Property Settlement Agreement between Liza Dunn and Jeffery Dunn, filed with the Superior Court on July 10, 2015;


D-4 Six (6) pieces of mail addressed to Jeffery Dunn at 1038 Central Avenue, Plainfield NJ. (The dates of this mail were either obscured or unavailable on all but one (1) piece. The one that could be ascertained reflects a date of March 22, 2016;


D-5 A printout reflecting a change of residential address for Jeffery Dunn to 1038 Central Avenue (Third Ward), Plainfield NJ on April 4, 2016;


D-6 Signed Statement from Paul Council, dated April 11, 2016;


D-7 Notarized page from Property Settlement Agreement, dated March 23, 2015.
All of the aforementioned documents (Exhibit E) were admitted into evidence.


Jeffery Dunn’s Argument

Jeffery Dunn testified that after his separation from his wife in August/September of 2014, he moved into his parents’ residence at 1038 Central Avenue in Plainfield, NJ. This address is within the Third Ward. (However, it should be noted that the Property Settlement Agreement (D-3) reflects a separation date of December 6, 2014). This separation ultimately culminated in divorce in March of 2015.

Mr. Dunn contends that since his separation, he has resided at 1038 Central Avenue in Plainfield’s Third Ward. In support of his assertion, he provided mail which was addressed to him at 1038 Central Avenue. He explained that he only used the 320 Park Avenue address on his driver’s license because he wanted to keep his mail “separate for privacy reasons.” He did readily admit that he has been voting as a First Ward resident even though he claims that he does not reside there. He also testified that he could not reside at 320 Park Avenue because that is a commercial address as reference by the City of Plainfield’s tax records. Mr. Dunn further testified that he has now rectified the discrepancy by changing his license to reflect 1038 Central Avenue as his residence.

Mr. Dunn also called his mother, Flora Dunn, to testify. She testified that Mr. Dunn has resided with her since the latter months of 2014.

Finally, Mr. Dunn called Paul Council to testify. Mr. Council is a crossing guard stationed at Cedarbrook School on Central Avenue. The school is across the street from 1038 Central Avenue. He testified that, since the fall of 2012, he has seen Mr. Dunn exiting 1038 Central Avenue in the morning hours and returning in the evening hours. Mr. Council provided a signed statement to this effect and also testified in person at the hearing.


Relevant Law

The City of Plainfield was established by Special Charter enacted by the New Jersey State Legislature. Pursuant to the provisions of N.J.S.A. Const. (1947), Art IV, Sec. 7, par. 10, and its implementing legislation, N.J.S.A. 1:6-10 to -20, in July 1968, more than two-thirds of each house of the Legislature approved this Plainfield Charter as special legislation. Therefore, the Charter took effect on January 1, 1969. See Miller v. Mitchell, 245 N.J. Super. 290 (1991). Furthermore, Municipal Charters trump subsequent countervailing statutes. Id.

Section 2.3(a) of Plainfield’s Special Charter (Exhibit F) states,
Each councilman shall be a legal voter of the city and a resident of the ward or wards from which he is elected, in the case of a ward councilman, or of any ward in the city in the case of an at-large councilman, for at least 1 year prior to his election.
For the purpose of deciding this case, the residence of a candidate and that of a voter has the same meaning and is subject to interpretation. For local elected officials and voters, the term resident is equated to “domicile.” See, e.g., N.J.S.A. 40A:9-1.11 and 1.13 (residence of candidates for local elections requires “a place of abode ... not adopted for any mere special or temporary purpose” and one’s “domicile”); State v. Benny, 20 N.J. 238, 252-54 (1955) (noting that requirement of residence for purposes of N.J.S.A. 19:4-1, governing voting rights, is equal to domicile).

Similarly, in order to vote, one must be registered in his or her domicile. In re Application of Langbaum, 201 N.J. Super. 484, 491 (App. Div.), certif. denied, 101 N.J. 298 (1985). A person can have only one true domicile, whereas he or she may have multiple residences. Caballero v. Martinez, 186 N.J. 548, 558 (2006).

In describing and defining domicile, Courts have observed that a voter must “maintain such a relationship with the place or premises so selected as will entitle him at his will to occupy that place or premises whenever his necessities or pleasures require without having to ask the permission of someone else.” Perri v. Kisselbach, 34 N.J. 84, 88 (1961). To acquire a domicile, a person must intend not only to live at the place, but also to make a home there. In re Seyse, 353 N.J. Super. 580, 586 (App. Div.), certif. denied, 175 N.J. 80 (2002).

Several factors have been identified as relevant in determining a person’s domicile. These include telephone bills; gas and electric bills; place from which taxes are filed; mailing address; membership in local clubs; driver’s license and automobile registration addresses; place where person spends the greater amount of time; newspaper subscriptions; and location of schools attended by children. See, e.g., Benny, supra, 20 N.J. at 240-49, 255. If a voter’s residence is challenged, determination of domicile necessitates consideration of those factors. Id. at 255. The standard of proof of domicile in election matter is the preponderance of the evidence standard.See, e.g., In re Gen. Election of Nov. 5, 1991 for Office of Twp. Comm. of Maplewood, 255 N.J. Super. 690, 702-03 (Law Div. 1992).


Findings of Fact and Decision

It is undisputed that Jeffrey Dunn’s driver’s license and voting record reflect an address at 320 Park Avenue, a First Ward address, as recently as November 2015. His license was only changed to reflect 1028 Central Avenue (a Third Ward address) approximately one week ago.

In light of the evidence presented by the objector, which clearly places Mr. Dunn’s residency outside of the Third Ward, it was incumbent upon Mr. Dunn to present evidence to show that his “domicile” was within the Third Ward. I find the proofs submitted by Mr. Dunn on this issue lacking.

Specifically, Mr. Dunn only provided six (6) mail pieces that do not show residence for a period of one year at 1028 Central Avenue. Only one piece of mail had a date and it was March 22, 2016. If he did not have any more mail to produce, Mr. Dunn could have provided his telephone/cellular phone bill; gas and electric bills; tax returns; newspaper subscriptions; or place where his children attended school as outlined in State v. Benny, 20 N.J. 238, 252-54 (1955). None of these documents were provided to establish his domicile and, therefore, his residency. It is this Clerk’s position that, without any additional documentation to the contrary, the most concrete proof of Mr. Dunn’s residency is that of his license and his voting record.

Mr. Dunn did provide personal testimony, as well as that of his mother and Mr. Council to establish residency in the Third Ward. However, none of testimony established a continued domicile necessary to overcome the documentary evidence provided by the objector. For these
reasons, I find that:

1. The evidence presented by the Objector clearly places Jeffery Dunn’s residency outside of the Third Ward within one (1) year of the election; and

2. Jeffery Dunn did not show sufficient evidence to support his contention that he resided in the Third Ward one year prior to the election as required by Section 2.3(a) of the Plainfield Municipal Charter; and

3. I am ruling in favor of the objector, Chairman Adrian O. Mapp, and invalidating the petitions of Jeffery Dunn, and declare him rejected and the nominations null and void.


NOTICE OF APPEAL AND REVIEW

N.J.S.A. 19:13-12, entitled “Judicial hearing”:

Any judge of the Superior Court, in the case of candidates to be voted for by the electors of the entire State or of more than one county thereof, and in all other cases a judge of the Superior Court assigned to the county in which any petition of nomination shall be filed, on the application or complaint, duly verified, of any candidate, which application or complaint shall be made on or before the twelfth day after the last day for the filing of petitions, setting forth any invasion or threatened invasion of his rights under the petition of nomination filed with the Secretary of State or with any county clerk, shall hear such application or complaint in a summary way and make such order thereon as will protect and enforce the rights of such
candidates, which order or determination shall be filed within three days after the filing of the application or complaint.

ABUBAKAR T. JALLOH, R.M.C.
MUNICIPAL CLERK
CITY OF PLAINFIELD, NJ

DATED: APRIL 12, 2016

CC: DAVID L. MINCHELLO, ESQ. (PLAINFIELD CORPORATION COUNSEL)
DANIEL A. WILLIAMSON, ESQ.
ROBERT F. RENAUD, ESQ.


  -- Dan Damon [follow]


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