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Brennan v. Joint Legislative Committee on Ethical Standards

Superior Court of New Jersey, Appellate Division

August 5, 2013

WILLIAM J. BRENNAN, Plaintiff-Respondent, Cross-Appellant,


Argued February 4, 2013

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2499-11.

Robert P. Zoller argued the cause for appellant (Eckert Seamans Cherin & Mellott, LLC, attorneys; Mr. Zoller and Frank J. Petrino, of counsel; Robert J. McGuire, on the briefs).

William J. Brennan, respondent, argued the cause pro se.

Before Judges Graves, Ashrafi and Espinosa.


A member of the New Jersey Joint Legislative Committee on Ethical Standards (Joint Committee), who had recently broken his knee, participated in a meeting by speakerphone and voted on the dismissal of an ethics complaint. This appeal presents the question whether such participation is permitted or whether members of the Joint Committee are required by N.J.S.A. 52:13D-22(b) and the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21, to participate in person. For the reasons that follow, we conclude that the member was permitted to participate by speakerphone and reverse an order that granted summary judgment to plaintiff. In his cross-appeal, plaintiff argues that the Joint Committee failed to follow Joint Rule 19 of the Senate and General Assembly (Joint Rule 19) in addressing his challenge to the qualifications of its chairman. Because this issue is nonjusticiable, we dismiss the cross-appeal.

In March 2010, plaintiff William J. Brennan filed an ethics complaint against Assemblyman Scott T. Rumana with defendant Joint Committee. Plaintiff ran unsuccessfully against Rumana for the Assembly in 2011.

The Joint Committee convened on seven different occasions to consider the charges against Assemblyman Rumana: May 18, July 20, and September 21, 2010, [1] and February 15, April 26, June 28, and September 27, 2011. Throughout this time, the Joint Committee was comprised of eight members: Alan Rosenthal, who served as chairman, Mark C. Alexander, former Senator Peter A. Inverso, Nancy Erika Smith, and four retired judges, John J. Harper, who served as vice-chairman, Daniel P. Mecca, Eugene D. Serpentelli, and Neil H. Shuster.

In July 2011, plaintiff sent an email to the Joint Committee, which he asked the Committee to consider as a motion to disqualify Chairman Rosenthal from participating in the proceedings. The Joint Committee replied with an email that stated in part, "After consultation with counsel, Chairman Rosenthal has decided not to recuse himself in this matter."

On September 27, 2011, the Joint Committee convened, for a final time, to review the remaining charges against Assemblyman Rumana, having previously dismissed several of plaintiff's charges against him. Judge Mecca had recently broken his knee. He was willing to attend the meeting in person. However, after counsel for the Joint Committee advised Judge Mecca to participate by speakerphone, he participated accordingly. The audio recording of the meeting documents his active participation and reveals that no one objected to Judge Mecca's ticipation by speakerphone. See N.J. State Legislature Archived Media, supra.

Before reviewing the charges, the Joint Committee met in closed session to obtain legal advice, as explicitly permitted by N.J.S.A. 10:4-12(b)(7). The Joint Committee reconvened in public session, amended the charges and then considered a motion to adopt the charges as amended. Four members opposed the motion, and it failed. Chairman Rosenthal moved to dismiss the complaint, which motion passed by a vote of five to two. Chairman Rosenthal and Judge Mecca were among those who voted to dismiss the complaint.[2]

Plaintiff then filed a three-count complaint in lieu of prerogative writs against the Joint Committee in the Law Division. Count one alleged that the Joint Committee violated OPMA "by meeting in closed session on September 27, 2011, without advance publication." Count two alleged that the Joint Committee violated Joint Rule 19 by allowing Chairman Rosenthal to participate in the vote despite plaintiff's challenge to his qualifications. Finally, count three alleged that the Joint Committee "violated its enabling statute" by allowing Judge Mecca "to participate telephonically" in violation of N.J.S.A. 52:13D-22.

In lieu of an answer, the Joint Committee filed a motion for summary judgment. Plaintiff filed a cross-motion for summary judgment.

During oral argument on the motions, plaintiff withdrew his claim that the closed session violated OPMA's publication requirement. The trial judge granted summary judgment to defendant on counts one[3] and two, granted summary judgment to plaintiff on count three, and stated her reasons in a written decision.

In its appeal from the order granting summary judgment to plaintiff on count three, the Joint Committee argues that the trial judge erred in her interpretation of N.J.S.A. 52:13D-22(b). It argues that the plain language of OPMA and N.J.S.A. 52:13D-22(b) do not preclude a Joint Committee member from participating and casting a vote by telephone. In response, plaintiff argues that neither N.J.S.A. 52:13D-22 nor OPMA permits telephonic participation at Joint Committee meetings. In his cross-appeal, he argues that the trial judge erred in finding that the Joint Committee did not violate Joint Rule 19 regarding his challenge to the chairman's qualifications.


The arguments raised by the Joint Committee in challenging the trial court's grant of summary judgment to plaintiff concern statutory construction. Because this presents a question of law, our review and interpretation of the statute is de novo. M.S. v. Millburn Police Dept., 197 N.J. 236, 246 n.10 (2008); Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).

In interpreting a statute, "our essential task is to understand and give effect to the intent of the Legislature." Pizzullo v. N.J. Mfrs. Ins. Co., 196 N.J. 251, 263-64 (2008). "[W]e look first to the plain language of the statute, seeking further guidance only to the extent that the Legislature's intent cannot be derived from the words that it has chosen." Id. at 264. If the language of the statute is clear, "the court's sole function is to enforce the statute in accordance with those terms." State v. Bigham, 119 N.J. 646, 651 (1990) (citing Sheeran v. Nationwide Mut. Ins. Co., 80 N.J. 548, 556 (1979)). If, however, the language is ambiguous, the use of interpretational aids may be warranted. Cedar Cove, Inc. v. Stanzione, 122 N.J. 202, 211 (1991); cf. In re Passaic Cnty. Utils. Auth., 164 N.J. 270, 299 (2000) (citing Bergen Commer. Bank v. Sisler, 157 N.J. 188, 202 (1999) ("If the statutory language is clear and unambiguous, and susceptible to only one interpretation, courts should apply the statute as written without resort to extrinsic interpretative aids.")).

The Standard Operating Procedures state that the Joint Committee's meetings "are required to be noticed and conducted in accordance with" OPMA. We note that OPMA defines "meeting" as:

any gathering whether corporeal or by means of communication equipment, which is attended by, or open to, all of the members of a public body, held with the intent, on the part of the members of the body present, to discuss or act as a unit upon the specific public business of that body. Meeting does not mean or include any such gathering (1) attended by less than an effective majority of the members of a public body, or (2) attended by or open to all the members of three or more similar public bodies at a convention or similar gathering.
[N.J.S.A. 10:4-8(b) (emphasis added).]

Thus, the plain language of OPMA anticipates member participation both in person and "by means of communication equipment." This conforms to the reality of how business is conducted in the twenty-first century.

We turn to the statute relied upon to support the argument that the Legislature intended a different standard for meetings of the Joint Committee. N.J.S.A. 52:13D-22(a) establishes the Joint Committee within the Legislative Branch. The remaining subsections: set forth the qualifications for members, N.J.S.A. 52:13D-22(b); establish the procedure for selection of members, N.J.S.A. 52:13D-22(c); provide that Legal Counsel in the Office of Legislative Services shall serve as legal advisor to the Joint Committee, N.J.S.A. 52:13D-22(d); authorize the Joint Committee to employ other persons necessary for its work, N.J.S.A. 52:13D-22(e); grant the Joint Committee the power to compel attendance of witnesses and the production of documents necessary for its investigation, N.J.S.A. 52:13D-22(f); and authorize the Joint Committee to render advisory opinions, N.J.S.A. 52:13D-22(g). None of these subsections contains any requirements or prohibitions as to how the meetings are to be conducted.

The last subsection, N.J.S.A. 52:13D-22(h), provides some procedural requirements to be followed by the Joint Committee. Specifically, it identifies the Joint Committee's jurisdiction to review complaints regarding ethical violations, N.J.S.A. 52:13D-22(h)(1); sets forth restrictions and requirements regarding complaints filed within ninety days of an election or filed within seven days thereafter, N.J.S.A. 52:13D-22(h)(2); authorizes the Joint Committee to require a member of the Legislature to disclose additional detailed financial information, N.J.S.A. 52:13D-22(h)(3); and requires the Joint Committee to "inform a complainant of the time, date, and location of any meeting at which the joint committee will discuss or make a determination on any aspect of the complaint." N.J.S.A. 52:13D-22(h)(4). Again, no part of subsection (h) requires that members attend meetings in person or prohibits attendance "by means of communication equipment, " as permitted for other meetings subject to OPMA.

Plaintiff argued and the trial court found that physical presence was required, relying upon subsection (b), which states, in part:

[T]he joint committee shall be composed of eight members of the public as follows: two appointed by the President of the Senate, two appointed by the Speaker of the General Assembly, two appointed by the Minority Leader of the Senate, and two appointed by the Minority Leader of the General Assembly. No member of the Senate or of the General Assembly shall be eligible to serve as a member of the joint committee. No more than two members of the joint committee may be former members of the Senate or of the General Assembly. The members shall be full-time residents of the State and available throughout the year to attend, in person, the meetings of the joint committee.
[N.J.S.A. 52:13D-22(b) (emphasis added).]

The subsection goes on to preclude the following from membership: any person who has previously served as a member of the Joint Committee at any time, lobbyists and government affairs agents (whose ineligibility continues for one year following the cessation of all such activity), full-time State employees, and officers and directors of any entity which is required to file a statement with the Election Law Enforcement Commission.[4] Ibid. The subsection also sets the term of members at two years; provides that members serve without compensation and also states that "[v]acancies . . . shall be filled in the same manner as the original appointments[.]" Ibid.

The subsection contains no language regarding how meetings of the Joint Committee are to be conducted. Still, plaintiff argued and the trial court found that participation by telephone is precluded, based upon the requirement that members be "fulltime residents of the State and available throughout the year to attend, in person, the meetings of the joint committee." Ibid.

In the absence of a clear expression from the Legislature that it intended to impose a different standard for meetings of the Joint Committee than the definition supplied in OPMA, we agree with defendant that subsection (b) establishes requirements for the eligibility of members and imposes no requirements as to the procedure to be followed by members in conducting business. We conclude that there was no legislative proscription against Judge Mecca's participation in the September 27, 2011 meeting and reverse that part of the order to the contrary.


In his cross-appeal, plaintiff argues that the trial court erred in denying summary judgment to him regarding Chairman Rosenthal's disqualification and the alleged failure of the Joint Committee to abide by Joint Rule 19. He contends that the trial court's decision "abolishe[s] Joint Rule 19 by 'judicial fiat.'" Plaintiff's argument calls for a judicial interpretation of a legislative rule, a non-justiciable political question.

The New Jersey Constitution safeguards the allocation of powers granted to each branch of government, providing:

The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution.
[N.J. Const. art. III, ¶ 1 (emphasis added).]

The separation of powers doctrine derives from this constitutional mandate and serves to protect "the 'essential integrity' of each branch of government." Gilbert v. Gladden, 87 N.J. 275, 281 (1981) (quoting Massett Bldg. Co. v. Bennett, 4 N.J. 53, 57 (1950)). It requires the judiciary to abstain from deciding issues that the text of the Constitution has committed to another branch of government because such issues present nonjusticiable political questions. Gilbert, supra, 87 N.J. at 281-82.

The New Jersey Constitution provides that the Legislature shall "determine the rules of its proceedings." N.J. Const. art. IV, § 4, ¶ 3. Accordingly, "legislative rules are authoritative and beyond challenge, " unless "there is an obvious violation of fundamental rights." In re Lamb, 67 N.J.Super. 39, 59 (App. Div.), aff'd, 34 N.J. 448 (1961); see, e.g., De Vesa v. Dorsey, 134 N.J. 420, 440 (1993); In re Gilmore, 340 N.J.Super. 303, 312 (App. Div. 2001). Whenever a nonjusticiable political question is presented, the Appellate Division "should dismiss the case immediately so as not to spawn[] any legal consequences by any further discussion of a nonjusticiable issue." Dorsey, supra, 134 N.J. at 429 (alteration in original) (internal quotation marks omitted); see also Goldwater v. Carter, 444 U.S. 996, 1005, 100 S.Ct. 533, 538, 62 L.Ed.2d 428, 432 (1979) (Rehnquist, J., concurring); United States v. Munsingwear Inc., 340 U.S. 36, 41, 71 S.Ct. 104 107 95 L.Ed. 36 42 (1950) The interpretation of Joint Rule 19 is nonjusticiable We modify the trial court's order as to count two because the court should have dismissed that count as nonjusticible and dismiss the cross-appeal

In sum we reverse the order granting summary judgment to plaintiff on count three modify the trial court's order as to count two and dismiss plaintiff's cross-appeal

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