Oct.18.

2016 7:54AM

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TENNANT MAGEE LAW

Attorney-At-Law
400 Unlon Avenue
Brielle, New Jersey 08730
Email: tdroagee@rennantmagcclaw.com

Tennant D. Magee: 1 Sr.

Member NJ & Md Bars

Tol: (732) 223.:2413

Fax: (732) 612.1004

PRIVILEGED & CONFIDENTIAL

VIA EMAIL ONLY

October 11, 2016

Kyle Ominski, Administrator

Lynda Wells, RMC
Township of Long Beach
6805 Long Beach Boulevard
Brant Beach, New Jersey 08008
Re:

Township of Long Beach -Residency Election Issue - Potential Duties

Firm File No. lOOLOOOl

Dear Kyle and Lynda:

Pursuant to Kyle's request, and, as a result of the evidence provided to me that indicates a
candidate for the Board of Commissioners ("Board") may not be eligible to serve as a Commissioner
if elected, the following is my legal opinion as to the responsibilities and duties of the Township of
Long Beach ("LBT") going forward, if any, arising out of the potential residency issue. As set forth
at greater length herein, my summary opinion is that LBT may have a duty and obligation going
forward based upon the facts and circumstances, but such likely only arises in the event that Danielle
Hagler, the candidate in question for the Board, prevails in the election and further evidence is not
provided that establishes LBT as her primary residence.
By way of background, at this point, the petition of nomination filed by Ms. Hagler, a
candidate for the Board, was certified by the Municipal Clerk as required by law on the bases that
Ms. Hagler is registered to vote in LBT and she obtained the required number of signatures. At that
time, the Municipal Clerk was not in possession of any evidence that could have negated the
certification of Ms. Hagler's Petition. Moreover, the Municipal Clerk is bound by law to take the
Petition on its face value (in the absence of actual evidence to the contrary), and, therefore, cotrectly
certified same. See N.J.S.A. 40:45-9. Accordingly, Ms. Hagler is now on the ballot for the election
.scheduled for November gth.

Thereafter, LBT was provided with a copy of a certain mortgage dated February 23, 2016
(''Mortgage"), between Danielle Hagler, a candidate for the Board and Equity Loans ("Mortgagee").

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LBT - Residency Election Issue
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The recorded Mortgage is a lien on 161 Parker Street in Manahawkin ("Manahawkin Prope1ty").
Pertinent here, the Mortgage requires Ms. Hagler to occupy and use the Manahawk.in Properry as her
primary residence for a least one (1) year following the date of occupancy, unless otherwise agreed
to in writing by the Mortgagee. In addition, I have been provided with the related Deed, which sets
forth that Ms. Hagler resides at the Manahawkin Property.

In addition to that evidence, 1 have been advised that a voter registration challenge has been
filed with the Ocean County Board of Elections (''Board of Elections") which may be decided today,
October 1Ph.
Based upon the foregoing, the issues facing LBT and its duties are as follows.

First, the challenge is to Ms. Hagler' s voter registration, meaning that if the Board of Elections
affirms the challenge, Ms. Hagler cannot vote, but she will remain on the ballot. If the Board of
Elections rejects that challenge, then, of course, she will be able to vote. LBT has no involvement in
that challenge and I am unaware of what additional evidence, if any, has been submitted by the
challenger or Ms. Hagler.
Second, regardless of the decision of the Board of Elections, a potentially significant issue
may remain as it relates to LBT. The Mortgage and the Deed unequivocally set forth that Ms. Hagler' s
primary residence is located in Manahawkin and statutory law requires that a candidate for local office
must have been borh registered to vote in the local unit to which the office pertains and to have been
a resident of that unit for at least one year immediately prior to the date of the election. Moreover,
here, not only has Ms. Hagler potentially not satisfied the residency requirement in order to run for
election, .but there is evidence she may not satisfy the residency requirement to serve on the Board, if
elected. Indeed, the law provides that residency is both a prerequisite to seeking to obtain a local
elective office and a requirement for continuing to hold sarne:
No person shall be a candidate for, nor hold, any local elective office unless he is a
resideni of the local unit to which the office pertains. If any person nominated for, or
holding, any local elective office shall cease to be a resident of the local unit to which
the office pertains, the nomination or office, as the case may be, shall be vacant, and
shall be filled in the manner prescribed by law.
NJ.S.A. 40A:9-Ll2 (emphasis added).
The statutory definition for resident is as follows:
''Resident" means a person havirig, within the territorial limits of the local unit, a place
of abode, which has not been adopted for any mere special or temporary purpose, but
is his ordinary and permanent domicile_
N.J.S.A. 40A:9-1.11. Related thereto, the courts have defined and analyzed "domicile" as follows:
a person may have multiple residences but only one domicile. The permanent home
of a person is considered his domicile and the place of his domicile determines his

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LET - .Residency Election [!Slle
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right to vote. Factors relevant in determining domicile include billing address,

residence from which tax returns are filed, mailing address, membership in local clubs,
driver's license, place where a person spends the greatest amount of time, newspaper
subscriptions, and the like. If a voter's residence is challenged, determination of
domicile necessitates consideration of these factors. Courts haye construed the issue
of domicile broadly and flexibly.

In re November 2, 2010 General Election For Office ofMayor inBotoughofSouthAmboy, Middlesex

County, 423 N.J. Super. 190, 207 956 (App. Div. 2011) (citations omitted).
The law, therefore, requires both voter registration and bona fide residency. Here, contrasting

Ms. Hagler's Deed and Mortgage declarations with the law on residency makes it appear highly
unlikely that Ms. Hagler' s bona fide residency is located in LBT. The ultimate question, however, is
whether LBT has a legal duty or right to act or whether the duties and rights lie with the candidates
and citizens. Based upon my legal research> it is my opinion that LBT's legal duty arguably arises if
Ms. Hagler is elected and unquestionably arises if Ms. Hagler is elected, and, despite the evidence,
seeks to be sworn in as a Commissioner.
The statutory legal procedure to challenge residency (other than a challenge to voter
registration, which was filed) is limited to the filing of a petition in the Superior Court challenging
either the petition for nomination or the election results. N.J.S.A. 19:29-1, et seq. As to the former,
that is required to be filed within four (4) days of the filing of the petition for nomination. As to the
latter, that is required to be filed within thirty (30) days of the election. Significant here, the statute
sets forth that only citizens or a candidate has the right to file such petitions.
The other legal procedure is for LBT, a citizen, or a candidate to file a complaint in the
Superior Court seeking declaratory judgment and equitable relief, and challenging the petition for
nomination, the election results, or the right of a person to hold the office. Again, the time to challenge
the petition for nomination has expired. As to the election results, such would likely be required to
be filed within the thirty (30) day time period. I state likely because although there is limited case
law addressing the issue, it is my opinion that LBT or a citizen could file such a complaint at any time
if the basis for the challenge was that an existing elected official no longer satisfies the residency
requirement. Regardless of when an elected official changes a primary residence/domicile, the
moment he or she does, she is no longer eligible to serve in that position. And, if he or she declines
to resign, the government entity and citizens both have rights in law and equity to seek to remove that
official.
Further, this context presents an additional, difficult issue that may need to be addressed. That
is, if Ms. Hagler is in the top three (3) receiving votes, but either is declared not eligible or admits she
is not. In that event, is the candidate with the ne:x1 highest total declared the winner or is there another
required temedy. The courts have been fairly clear that in that context, a court is permitted to declare
a victor, but most courts do not and address the situation as having created a ''vacancy" requring the
governmental entity to proceed either by special election, if permitted, or by appointment in the event
an appointment is required or permitted. See, e.g., In re Contest of November 8, 2011 General
Election of Office ofNew Jersey General Assembly, Fourth Legislative District, 427 N.J. Super. 410
(App. Div. 2012).

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LBT -

Residency

Election Issue

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Thank you for your attention to this matter. Should you have any questions, kindly contact
me.
Regards,

Isl Tennant D. Magee, Sr.

TENNANT D. MAGEE, SR.

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