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HOCH v. PHELAN

June 26, 1992

ELIZABETH HOCH and NICHOLAS PARSLOW, Plaintiffs,
v.
DONALD F. PHELAN, Defendant.


SAROKIN


The opinion of the court was delivered by: H. LEE SAROKIN

Sarokin, District Judge

 Before the court is plaintiff's motion for class certification in this facial challenge to New Jersey's "Election Contest Subpoena Laws." Plaintiffs propose that the class be defined as "all people who are registered to vote, or eligible to register to vote, in the State of New Jersey." Cplt. P5. Defendant Donald Phelan, the Acting Clerk of the Law Division and of the Chancery Division of the Superior Court of New Jersey, as represented by the New Jersey Attorney General's Office (hereinafter "the State"), opposes plaintiffs' motion and cross-moves to dismiss the Complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).

 In its sur-reply brief, the State concedes that its motion pursuant to 12(b)(6) is untimely in this post-answer context, but asks that the court treat its application as one for judgment on the pleadings pursuant to Rule 12(c) or for summary judgment pursuant to Rule 56. Def. Sur-Reply Brief at 1. Although plaintiffs protest that a motion for summary judgment is improper given defendant's failure to file a statement of undisputed facts pursuant to Local Rule 12(g), plaintiffs concede that the court may properly consider defendant's motion as one for judgment on the pleadings pursuant to Rule 12(c). Plt. Sur-sur-reply Brief at 4, 6 n.1. Accordingly, the court will treat defendant's motion as one for judgment on the pleadings pursuant to Rule 12(c).

 Background

 In this case, there are no disputed material facts. Plaintiffs challenge the facial validity of the so-called "Election Contest Subpoena Laws," which are comprised of Chapter 29 of the New Jersey Statutes governing "Contest of Nominations or Elections," N.J.S.A. 19:29-1 et seq., Rule 1:9 of the Rules Governing the Courts of the State of New Jersey, and Rule 31 of the New Jersey Rules of Evidence. See Cplt., "Prayer for Relief" P3. The parties do not dispute the nature and operation of the election contest subpoena laws, which operate as follows.

 Whenever there is an election contest, the court may issue subpoenas to relevant witnesses, including voters. N.J.S.A. 19:29-6. The subpoenas are issued pursuant to Rule 1:9 of the Rules Governing the Courts of the State of New Jersey, which governs the issuance of all subpoenas for all purposes in the State. See Cplt. Exh. B. (subpoenas issued to plaintiffs). In the event that the election is contested because of alleged illegal voting, the subpoenaed witnesses/voters must testify in open court in order for the court to make a determination whether each individual voted legally. N.J.S.A. 19:29-7 ("The judge may require any person called as a witness who voted at such election to answer [questions] touching his qualification as a voter. . . ."). *fn1" If the court determines that an illegal vote was cast, the court may compel the illegal voter to disclose the nature of her vote in order to expunge that illegally cast vote. Id. ; New Jersey Rule of Evidence 31 ("Every person has a privilege to refuse to disclose the tenor of his vote at a political election unless the judge finds that the vote was cast illegally").

 Plaintiffs contend that this system violates their due process rights and abridges their First Amendment rights of free expression and association. Cplt. PP39-40. Plaintiffs specifically object to the fact that, like any subpoena issued in New Jersey, an election contest subpoena need only state the name of the court, the title of the action, and the time and place at which the witness must appear to give testimony. Cplt. P14; Rule 1:9-1. *fn2" As described by plaintiffs, "the very essence of this case is that the Election Contest Subpoena Laws place all New Jersey voters at risk that they will be haled into court without adequate notice for the twin purposes of disclosing and expunging their votes." Plt. Brief at 7. Plaintiffs challenge the facial validity of the subpoena procedure as applied in the election contest process. They seek declaratory and injunctive relief "to halt this systematic violation of constitutional and civil rights." Plt. Brief at 7.

 Discussion

 Before considering plaintiffs' motion for certification of the class they seek to represent, the court must consider defendant's motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), originally filed as a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted.

 
Because [defendant] filed its motion after it had already filed an answer, the motion must be considered a Rule 12(c) motion. Nevertheless, Rule 12(h)(2) provides that a defense for failure to state a claim upon which relief can be granted may also be made by a motion for judgment on the pleadings.
 
In this situation, we apply the same standards as under Rule 12(b)(6).
 
Therefore, we must accept the allegations in the complaint as true, and draw all reasonable factual inferences in favor of the plaintiff. [The court can grant the motion] only if no relief could be granted under any set of facts that could be proved.

 Turbe v. Gov't of the Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991) (citations omitted). Accordingly, the court will apply the 12(b)(6) standard for a motion to dismiss in reviewing plaintiffs' Complaint. Judgment on the pleadings is particularly appropriate where, as here, there are no disputed material facts at this early stage of the litigation and a party is entitled to judgment as a matter ...


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