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In re Application of Gilmore

May 08, 2001

IN RE APPLICATION OF
GLEN GILMORE AND
MICHAEL DUPONT TO CONTEST
THE VALIDITY OF THE ENACTMENT OF
SENATE BILL 2328 (P.L. 2001, C.73)



Before Judges Baime, Wallace, Jr. and Carchman.

The opinion of the court was delivered by: Baime, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued on an emergent application May 8, 2001

Applicants Glen Gilmore and Michael Dupont brought these proceedings to invalidate L. 2001, c. 73 (Chapter 73) because of procedural irregularities that are alleged to have occurred in the Senate on the date the bill was introduced. Chapter 73 changed the primary election date for 2001 from June 5 to June 26, increased public financing grants and expenditure limits for gubernatorial candidates, and altered various deadlines for statutorily mandated pre-primary and post-primary activities. Applicants' petition to invalidate the enactment was filed pursuant to N.J.S.A. 1:7-4. That statute confers original jurisdiction upon the Appellate Division to consider challenges to the validity of laws and joint resolutions adopted by the Legislature. Ibid.; see also N.J.S.A. 1:7-1. The jurisdiction granted is limited to deciding attacks upon the "machinery of enactment." In re Application of McCabe, 81 N.J. 462, 465 (1980). We are not empowered to consider the substantive constitutional validity of the laws themselves. Ibid.

The question raised by applicants is whether a quorum of Senators was present prior to the introduction and first two readings of Chapter 27. At issue is whether a full complement of twenty-one Senators must be physically present in the Senate chamber before a quorum can be registered. An ancillary issue is whether a quorum of Senators must be physically present when a bill is introduced and receives its first two readings.

These questions can best be understood within the context of the work-a-day activities of the Senate. The informal custom is for each Senator to press the "yea" button on his or her desk indicating the Senator's attendance in the Senate. As a matter of common practice, Senators are not required to remain on the Senate floor once their attendance is marked and noted. Applicants contend, however, that all twenty-one Senators must be physically present in the Senate chamber before a quorum can be registered or business conducted. They argue that a quorum was not obtained prior to the introduction and first two readings of Chapter 27, and that the legislation is thus invalid.

We hold that the mechanics of identifying a quorum is a matter committed to the Legislature. In the absence of specific constitutional or statutory standards, we have no roving commission to determine the manner in which the Legislature is to fulfill its constitutional mission. We abstain from deciding what we perceive to be a non-justiciable political question.

I.

We need not recount the facts at length. On April 18, 2001, Senate President Donald DiFrancesco notified members of the Senate that there would be a quorum call on April 20, 2001. At 10:00 a.m. on the scheduled date, the Senate Secretary's desk was opened, and Senators began to filter into the Senate chamber. Pursuant to the informal custom we have described, each Senator marked his presence or her presence in the Senate chamber by pressing the "yea" button on his or her desk. It is apparent from the documentary submissions filed by applicants that not all of the Senators remained in the Senate chamber after noting their presence. According to affidavits accompanying applicants' petition, at various times during the day, members of the Senate Minority Office appeared in the Senate chamber and found no more than ten Senators present.

According to the Senate Journal, a quorum was registered at 2:52 p.m., signifying that at least twenty-one Senators had indicated their presence by pressing the "yea" button on their desks. No Senator challenged the existence of a quorum. Chapter 27 was introduced and received its first two readings later in the afternoon. In their affidavits, members of the Senate Minority Office represent that they appeared in the Senate chamber at various intervals during the afternoon and found no Senators present. The proceedings were adjourned at 5:00 p.m.

The Senate next met on Monday, April 23, 2001. No Senator requested that the minutes of the April 20 meeting be read or amended to reflect a challenge to the quorum. The reading of the minutes for the April 20 meeting was waived. Ultimately, the minutes were adopted without amendment. Chapter 27 was given its third reading at the April 23 meeting. Following vigorous debate, the Senate passed the bill by a vote of twenty-one to eleven. The Assembly passed the bill by a vote of forty-three to thirty. The bill was signed into law by the Acting Governor later that afternoon.

Applicants' petition was filed in the late evening hours of Friday, May 4, 2001. Because the statutory deadline for certification of candidates by the Secretary of State was looming, we accelerated the proceedings. We now grant the Attorney General's motion to dismiss.

II.

The issue presented must be considered against the backdrop of the New Jersey Constitution. Three provisions are implicated. They provide: (1) "a majority of all [the Senate's] members shall constitute a quorum to do business," N.J. Const., art. IV, § 4, ¶ 2 (1948), (2) "[a]ll bills and joint resolutions shall be read three times in each house before final passage," and "[n]o bill or joint resolution shall pass, unless there shall be a majority of all the members . . . personally present and agreeing thereto," N.J. Const., art. ...


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