Opinion supports earlier decision that no evidence of fraud existed in recall
BY MICHAEL SCHOLL
DAILY RECORD
Thursday, March 20, 2008
VICTORY GARDENS -- A state appeals court has upheld a lower court ruling that affirmed the results of the 2006 recall election that replaced then-mayor Nanette Courtine with current mayor Betty Simmons.
A three judge panel of the Appellate Division of state Superior Court accepted the February 2007 decision rendered by Superior Court Judge B. Theodore Bozonelis, who ruled there was no evidence of fraud in the recall election despite the aggressive efforts of the Simmons campaign to encourage people to vote for the recall by absentee ballot.
In an eight-page unsigned opinion released Tuesday, the Appellate Division panel wrote that it found nothing in the case record that would justify overriding Bozonelis' conclusion that the recall election was fair.
In the election, which was held Nov. 7, 2006, Victory Gardens residents voted 133 to 71 to recall Courtine.
In a separate question on who should replace Courtine if she was recalled, Simmons, a Republican, received 121 votes; Courtine, an independent, received 59 votes; and David Holeman, a Democrat, received 17 votes.
During the trial before Bozonelis, Courtine presented depositions from 14 voters who challenged the validity of their votes on the grounds that they were subjected to undue pressure to vote in favor of the recall. Bozonelis rejected the claims made in the depositions and also failed to find that the large number of absentee ballots cast in the election was evidence of fraud.
Simmons received 57 votes by absentee ballot in the recall election, while Courtine got 6 absentee votes and Holeman 5.
In its ruling, the appellate panel noted that Courtine only challenged the validity of 14 votes, a number well short of the 62-vote margin by which she lost the recall election, and therefore well short of the number needed to overturn the results of the election.
The panel also rejected Courtine's argument that there was fraud evidenced by the disproportionate number of absentee ballots cast in the recall election as compared to past elections. In doing so the judges referred to a 2005 change in the law that liberalized absentee voting requirements by allowing any qualified and registered voter who wants to vote by absentee ballot to do so.
Courtine's attorney, Jeffrey M. Advokat, expressed disappointment with the appellate panel's ruling.
"We thought that there were enough question marks about how things were done in the election," Advokat said. Wednesday.
"Obviously the courts didn't see it our way," he added.
Advokat said he planned to meet with Courtine to see whether they should appeal the case to the state Supreme Court.
Courtine declined comment other than to say she was "reviewing her options." She referred all other questions to Advokat.
Simmons could not be reached for comment Wednesday.
"We were obviously pleased with the decision of the court," said Anthony Bucco, an attorney who represents Simmons.
The appellate panel also affirmed Bozonelis' decision not to order Courtine to reimburse Simmons for the $1,670 in deposition costs that Simmons had incurred in the case. The panel accepted the lower court's decision that the parties agreed to the deposition procedure and that the terms of that procedure should not be overturned by the courts.
Simmons' current term as the mayor of the tiny borough of 1,546 people expires at the end of this year.
