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Edward “NJWEEDMAN” Forchion

Browns Mills, New Jersey 08015

www.njweedman.com

( This email address is being protected from spambots. You need JavaScript enabled to view it. )


 

 

June 11, 2014

 

Via Fax to (609) 777-1280:

Honorable Kim Guadagno

Lt. Governor / Secretary of State

New Jersey Division of Elections

225 West State Street – 5th Floor

Trenton, New Jersey 08625

 

RE:     In re: Petition of New Jersey Democratic State Committee Challenging the Nomination Petition of Edward Forchion for the Office of United States House of Representatives, District 3, New Jersey

            Docket No. (None Assigned Yet)

            MOTION / REQUEST FOR ADMINISTRATIVE DISMISSAL WITH PREJUDICE

Dear Lt. Governor / Secretary of State Guadagno:

 

            Please accept this letter in lieu of a more formal pleading seeking immediate sua sponte dismissal of the above matter.

Facts:

As you are aware, the Democratic State Committee has attempted to bring a statutory challenge to the validity of my Nominating Petition which Nominating Petition was filed with your office in accordance with New Jersey State Election Law (Title 19) and wherein I am seeking to appear as a candidate on the November 2014 General Election Ballot for the Office of United States House of Representatives, District 3, New Jersey.

The attempted statutory challenge was brought by way of attorney Rajiv D. Parkh, Esq. on behalf of the New Jersey Democratic State Committee. This attempted statutory challenge was initiated by Mr. Parkh faxing a letter (the “faxed challenge letter”) to your Office which was, according to the document itself, not actually faxed by Mr. Parkh and also was not received in your Office until after 4:00 p.m. on Monday June 9, 2014. I have not been provided with a “filed date and time stamped” copy of the “faxed challenge letter”. I have been advised that while the “faxed challenge letter” may have been received via telefax in your office on June 9, 2014 after 4:00 p.m., that a copy was not hand delivered and “filed date and time stamped” before 5:00 p.m. on Monday June 9, 2014. Moreover, I am lead to believe that any “filed date and time stamped” copy of this “faxed challenge letter” would indicate a date of June 10, 2014, if any date at all. I have requested a “filed date and time stamped” copy of the “fax challenge letter” challenge from your office, and have not yet been provided with same as yet.  What is not in dispute is the fact that no copy of the challenge was hand delivered to your Office for filing before 5:00 p.m. on Monday June 9, 2014.  

For the following reasons, I now seek immediate dismissal of the attempted statutory challenge with prejudice as this statutory challenge is as a matter of law untimely under N.J.S.A. 19:13-10.    

 

Point I:

“FAXING” AND “FILING” ARE NOT THE SAME THING UNDER TITLE 19 AND AS SUCH THE ATTEMPTED CHALLENGE IS UNTIMELY AS A MATTER OF LAW AND MUST BE DISMISSED WITH PREJUDICE:

This year the deadline for filing Nominating Petitions for those not part of one of the two New Jersey statutorily recognized parties (Democrat and Republican) who wan to appear as candidates for public office on the November 2014 General Election Ballot was Tuesday June 3, 2014 at 4:00 p.m. as per N.J.S.A. 19:13-9, which provides in relevant part that:

All such petitions and acceptances thereof shall be filed with the officer or officers to whom they are addressed before 4:00 p.m. of the day of the holding of the primary election for the general election in this Title provided. All petitions when filed shall be open under proper regulations for private inspection. (Emphasis added).

* * *

[N.J.S.A. 19:13-9].

It is well known and can not be reasonably disputed that for a candidate to file a Nominating Petition with your Office in accordance with the requirements of N.J.S.A. 19:13-9 requires the candidate or other filer to personally enter the Building at 225 West State Street, producing required identification, obtaining a “building pass” that must be affixed to one’s clothing after the Security Guard enters the candidate’s (or filer’s) name in a log book, with the candidate (or filer) thereafter proceeding to the Division of Election’s Office on the Fifth Floor, ringing a door bell like buzzer so as to obtain admittance to the Division of Elections Office, signing a log book confirming the date and time of when the candidate (or filer) appeared, and then the candidate (or filer) actually then filing the Nominating Petitions which encompasses an ink time and date stamp being affixed to the Nomination Petitions. Only after all of this – and after actual filing of the Nomination Petition, is the further review process conducted where your office reviews the Nominating Petitions for prima facie compliance with law (as per N.J.S.A. 19:13-11), after which a written receipt confirming filing and acceptance is issued. In note in this regard that I am aware of at least one instance from this year, 2014, where a Nomination Petition for a candidate seeking to run for the House of Representatives was indeed date and time stamped and filed before 4:00 p.m. on June 3, 2104 but after prima facie review by your office was not accepted as not complying with law. No challenge to your Office filing but then refusing to accept that petition was brought as the candidate agreed that your refusal to accept that Nomination Petition was correct under the circumstances. These procedures are not complicated and are easily understood by anyone who actually reads the statutes. Nomination Petitions may not be filed by telefax and must be filed in person.[1]

At issue here is an attempted statutory challenge brought by the New Jersey Democratic State Committee brought pursuant to the provisions of N.J.S.A. 19:13-10. The Title 19 Nominating Petition challenge statute provides as follows:

Every petition of nomination in apparent conformity with the provisions of this Title shall be deemed valid, unless objection thereto be duly made in writing and filed with the officer with whom the original petition was filed not later than the fourth day after the last day for the filing of petitions If such objection is made, noticethereof, signed by such officer shall forthwith be mailed to the candidate, who may be affected thereby, addressed to him at his place of residence as given on the petition of nomination.

[N.J.S.A. 19:13-10].

            This cited statute fixes a mandatory statutory deadline requiring that any challenge be filed with the officer with whom the original petition was filed not later than the fourth day after the last day for the filing of petitions . The fourth day after the last day for the filing of petitions (accounting for the weekend) was Monday June 9, 2014, and presumably at 4:00 p.m. In any event, whether the deadline was 4:00 p.m. or 5:00 p.m. on Monday June 9, 2014 is irrelevant because as a matter of law N.J.S.A. 19:13-10 specifically requires timely “filing”, not merely timely “faxing” or timely “notice” for an N.J.S.A. 19:13-10 statutory challenge to be brought. Moreover, N.J.S.A. 19:13-10 was last amended in 1985, well before it was common for offices to have their own fax machines. If the legislature wanted to amend the statute to allow “faxed” challenges rather than “filed” challenges the Legislature surely could have done so, and they did not. Faxed challenges do not comply with law which requires filing, just as faxed Nominating Petitions do not comply with the law that requires filing. “Filing” can not mean exactly and only actual literal filing in N.J.S.A. 19:13-9 while at the same time “filing” meaning filing and or faxing in N.J.S.A. 19:13-10. Such an interpretation would not only be arbitrary and irrational (not to mention nonsensical) but would clearly violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Statutes are to be given their plain meaning. Filing is filing. Filing is NOT faxing. Compliance with N.J.S.A. 19:13-10 quite clearly requires timely filing before the deadline, and the Democratic State Committee and their attorney have not done so. Mere “faxing” before the deadline does not comply with N.J.S.A. 19:13-10, though it does, however, betray the utter arrogance that the two statutory parties[2] have regarding a belief that somehow the Elections Laws are only to be applied to candidates other than them.

In any event, as N.J.S.A. 19:13-10 quite clearly requires filing by the statutory deadline, and as at best the Democratic State Committee can only demonstrate faxing by the statutory deadline, and as filing and faxing are not and can not be synonymous in the circumstances here with the statutes at issue here, the Democratic State Committee’s attempted challenge is procedurally deficient and untimely as a matter of law and must be dismissed with prejudice.                     

  

                                                                                    Respectfully submitted,

 

 

Edward Forchion

cc:       Via Fax to (973) 535-4446:

Rajiv D. Parkh, Esq.

Genova, Burns, Giantomasi & Webster

494 Broad Street

Newark, New Jersey 07102



[1]               Presumably a Nominating Petition could also be filed by regular mail or private commercial courier (FedEx, UPS, DHL, etc.) as long as the Nomination Petition actually physically arrives in your office and is stamped as “Filed” by your office before the fixed statutory deadline

.

[2]           In this regard it is noted that yesterday a hearing was held in the Office of Administrative Law before an Administrative Law Judge for purposes of conducting a preliminarily inquiry into the attempt to bring a statutory challenge and to make a recommendation to the Division of Elections. At that hearing the arguments raised herein by me were asserted, but the Court “reserved” and did not rule and rather proceeded. More importantly, at that hearing Rajiv D. Parkh, Esq., the attorney for the New Jersey Democratic State Committee, appeared without any actual client or independent witness or member of the New Jersey Democratic State Committee through which to present their case. Mr. Parkh was the attorney for the petitioner, not the petitioner. However, in yet another example of arrogance, Mr. Parkh over my objection (and at his own peril), saw fit to proceed with himself as the only witness and to provided testimony against me in asserting the challenges of his client. Mr. Parkh may be an advocate or a witness against me, but not both.   Such conduct by Mr. Parkh is a clear violation of the Rules of Professional Conduct for Attorneys, specifically including R.P.C. 3.7 which prohibits a lawyer from acting as an advocate at trial in which the lawyer is a witness. Apparently the laws do not apply to Mr. Parkh, only to me.