Before Judges Petrella, Lintner and Parker. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket Number MER-L-1442-01.
The opinion of the court was delivered by: Petrella, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Anne M. McNeil of Jersey City, Thomas E. Williams of Newark, Roseanna Siebert of the Borough of Bergenfield, Paul DiGaetano of Nutley, and Kevin O'Toole of the Township of Cedar Grove (collectively, plaintiffs) appeal from entry of summary judgment dismissing their complaint that contested the legislative districting plan certified on April 11, 2001 (the 2001 plan) by six of the eleven members of the New Jersey Legislative Apportionment Commission (Commission). Plaintiffs DiGaetano and O'Toole were incumbent legislators, both of whom won re-election under the 2001 plan.
The process for creating the 2001 plan began pursuant to Article IV, section 3, paragraph 1 of the New Jersey State Constitution (Constitution), which provides for appointment of an Apportionment Commission consisting of ten members, five from each of the two major political parties, which shall meet and apportion the State legislative districts during the year following the decennial census of the United States. The districts are to be certified by February 1 in the year after the census is taken, or within one month of the Governor's receipt of the census results, whichever is later. If the Commission fails to meet the deadline, or determines before that date that it will fail, the Constitution requires the Chief Justice of our Supreme Court to appoint an eleventh member of the Commission who would break any tie vote. The districts are to be certified within one month of that member's appointment. N.J. Const. art. IV, § 3, ¶ 2.
A deadlock developed among the ten-member Commission composed of equal members of the two major political parties. *fn2 Pursuant to the Constitution's requirement, the Chief Justice appointed Larry Bartels, a university professor, as an eleventh member to the Commission. He was neither registered to vote in any election in this State nor affiliated with any political party.
Following the March 27, 2001 appointment of Bartels as the Commission's eleventh member, the deadlock was broken when the five Democratic members of the Commission agreed to the version of the 2001 plan approved by Bartels. Thus, on April 11, 2001, a six-member majority of the eleven-member Commission voted to certify the 2001 plan, which was forwarded to the Secretary of State the next day. On April 17, 2001, those same members of the Commission submitted to the Secretary of State an amended certified 2001 plan, correcting certain technical errors to the plan as it had been submitted.
On May 9, 2001, plaintiffs filed their original four-count complaint in this matter in the Law Division, Mercer County. They named as defendants the Commission, the then Secretary of State of New Jersey and the then Attorney General of New Jersey. On the same day, they filed an amendment to the complaint, asserting that the redistricting plan as adopted expressed a bias against incumbent legislators. Plaintiffs also sought an order to show cause seeking temporary restraints, which the motion judge denied. Leave to appeal that denial was also denied.
The Commission filed a motion for summary judgment with supporting papers. Plaintiffs cross-moved for summary judgment on counts one and two of their complaint, the counts that asserted, respectively, that Jersey City and Newark inappropriately were divided among too many legislative districts.
By an October 12, 2001 order, the motion judge granted defendant's motion for summary judgment and denied plaintiffs' motion for summary judgment. Plaintiffs' claims were dismissed with prejudice. Plaintiffs filed a timely notice of appeal.
Plaintiffs contend that the judge on the motion hearing erred in upholding the 2001 plan because the Commission failed to honor Article IV, section 2, paragraph 3 of the Constitution. Plaintiffs rely on the specific provision in that paragraph that "no county or municipality shall be divided among a number of Assembly districts larger than one plus the whole number obtained by dividing the number of inhabitants in the county or municipality by one-fortieth of the total number of inhabitants of the State." Applying this provision (the "municipality districting standard") to municipalities, as of the 2000 census, Newark and Jersey City each should have been divided into only two legislative districts. However, under the 2001 plan they were each divided into three districts. Other issues raised in the complaint were abandoned.
A companion appeal in Charles Steelman et al. v. The Legislative Apportionment Comm'n, A-182-01T1, was argued the same date as this appeal and is being separately decided. Among other issues, the plaintiffs in that appeal challenged Atlantic County's subdivision among three legislative districts, relying upon the same constitutional language quoted above as it pertained to counties (a county districting standard). The restriction on dividing municipalities was not implicated or applicable in that matter.
As amended effective December 8, 1966, Article IV, section 2 of the New Jersey Constitution provides as follows:
1. The Senate shall be composed of forty senators apportioned among Senate districts as nearly as may be according to the number of their inhabitants as reported in the last preceding decennial census of the United States and according to the method of equal proportions. Each Senate district shall be composed, wherever practicable, of one single county, and, if not so practicable, of two or more contiguous whole counties.
2. Each senator shall be elected by the legally qualified voters of the Senate district, except that if the Senate district is composed of two or more counties and two senators are apportioned to the district, one senator shall be elected by the legally qualified voters of each Assembly district. ... [omitting provision about when senators' terms begin and end].
3. The General Assembly shall be composed of eighty members. Each Senate district to which only one senator is apportioned shall constitute an Assembly district. Each of the remaining Senate districts shall be divided into Assembly districts equal in number to the number of senators apportioned to the Senate district. The Assembly districts shall be composed of contiguous territory, as nearly compact and equal in the number of their inhabitants as possible, and in no event shall each such district contain less than eighty per cent nor more than one hundred twenty per cent of one-fortieth of the total number of inhabitants of the State as reported in the last preceding decennial census of the United States. Unless necessary to meet the foregoing requirements, no county or municipality shall be divided among Assembly districts unless it shall contain more than one-fortieth of the total number of inhabitants of the state, and no county or municipality shall be divided among a number of Assembly districts larger than one plus the whole number obtained by dividing the number of inhabitants in the county or municipality by one-fortieth of the total number of inhabitants of the State. [N.J. Const. Art. 4, § 2, ¶¶ 1 - 3.]
The final sentence of paragraph 3 above contains the municipality districting standard at issue here.
According to the 2000 census figures, New Jersey's total population was 8,414,350. One fortieth of that figure was 210,359, which is considered the ideal population or goal for each of New Jersey's forty legislative districts. Jersey City's population was 240,055, exceeding the ideal district population by 29,696. ...