NEW JERSEY ELECTION LAW ENFORCEMENT COMMISSION, Petitioner-Appellant,
JOSEPH DIVINCENZO and JORGE MARTINEZ, Respondents-Respondents.
November 1, 2016
appeal from the Election Law Enforcement Commission, Docket
Nos. C-8 0700 01, 01-G2010 and C-8 0700 01, 01-P2014.
S. Haines argued the cause for appellant (Ms. Haines,
attorney; Ms. Haines, Demery J. Roberts and Scott T. Miccio,
on the brief).
J. Genova argued the cause for respondents (Genova Burns,
LLC, attorneys; Mr. Genova, of counsel and on the brief;
Lawrence Bluestone, Brett M. Pugach and Kevin R. Miller, on
Judges Messano, Espinosa and Suter.
Jersey Election Law Enforcement Commission (ELEC or the
Commission) appeals from an initial decision by an
Administrative Law Judge (ALJ) that it lacked jurisdiction to
issue a complaint, which was deemed adopted pursuant to
N.J.S.A. 52:14B-10(c) at a time when the Commission lacked a
sufficient number of members to act due to longstanding
vacancies. The resulting question of first impression
implicates the primacy of an administrative agency's
decisional authority established by the Administrative
Procedure Act (APA), N.J.S.A. 52:14B-1 to -31, the exclusive
jurisdiction of this court to review agency action, and the
interpretation of the deemed-adopted provision as applied to
the circumstances here. For the following reasons, we
underlying controversy was the subject of an earlier opinion,
N.J. Election Law Enf't Comm'n v. DiVincenzo
(ELEC I), 445 N.J.Super. 187 (App. Div. 2016), in which
we denied the Commission's emergent application to stay
the time to act on the ALJ's initial decision until after
the vacancies in the Commission were filled. We reviewed the
facts in that opinion at length and, for ease of reference,
recite the salient facts relevant to this appeal.
was created as an independent agency, N.J.S.A. 19:44A-5, and
charged with the duty to enforce violations of the New Jersey
Campaign Contributions and Expenditures Reporting Act (the
Act), N.J.S.A. 19:44A-1 to -47. N.J.S.A. 19:44A-5 governs the
membership of the Commission, specifying it shall consist of
four members appointed by the Governor to staggered terms and
that "[n]o more than two members shall belong to the
same political party. "
2011, the Commission consisted of four members: Chairman
Ronald J. DeFilipis, Vice Chairman Walter Timpone, Amos
Saunders and Lawrence Weiss. DeFilipis and Saunders were
Republicans; Timpone and Weiss were Democrats. All four
members of the Commission voted to conduct a formal
investigation into purported violations of the Act by
respondents Joseph DiVincenzo, a Democratic candidate, and
his campaign treasurer, Jorge Martinez, during the 2010
general election for County Executive of Essex County and
prior to the 2014 primary election.
Commission authorized the issuance of a complaint against
respondents in January 2013. At that time, the vacancy
created by Weiss's death in November 2011 had not been
filled. In addition, because Timpone had recused himself, no
Democrat participated in the authorization. Therefore, the
two remaining members who voted to authorize the complaint
were both Republicans. The complaint was issued approximately
nine months later in September 2013.
challenged the jurisdiction of the Commission to authorize
the complaints, contending that a valid authorization
required a bipartisan agreement to file a complaint and
"the requisite number of Commissioners." The matter
was transferred to the Office of Administrative Law (OAL) as
a contested case.
filed a motion for summary decision in the OAL, seeking
dismissal of the complaint with prejudice pursuant to
N.J.A.C. 1:1-12.5. The ALJ issued an initial decision on
September 16, 2015, in which he adopted respondents'
argument that ELEC required three Commission members from two
parties to have the necessary quorum to act. Finding ELEC
lacked jurisdiction to issue the complaint, he concluded the
complaint was "void ab initio and must be
to N.J.S.A. 52:14B-10(c), ELEC had forty-five days in which
to adopt, reject or modify the ALJ's decision and was
permitted to extend that time for one forty-five day period
before the ALJ's decision was deemed adopted as the
agency's final decision. As we observed in ELEC
I, supra, 445 N.J. Super, at 193,
Under usual circumstances, the ALJ's decision would be
subject to review by ELEC, which has the unquestionable
authority to reject the ALJ's decision that it lacked
jurisdiction to issue the complaint. See N.J.S.A.
52:14B-10(c). At that point, ELEC's final decision would
be subject to review by this court. N.J.S.A. 52:14B-12.
result of Saunders' death in 2015 and Timpone's
recusal, however, Commissioner DeFillipis was the only acting
member of the Commission during the forty-five day period. No
further extensions of the period in which the Commission
could adopt, reject or modify the ALJ's decision were
permitted without the unanimous consent of the
parties. N.J.S.A. 52:14B-10(c). Respondents
declined to provide such consent.
sought emergent relief to toll the extension period. We
granted the motion to file an emergent application and, after
briefing and oral argument, denied the motion for a stay and
vacated the order tolling the forty-five-day period for
acting on the initial decision. ELEC I,
supra, 445 N.J. Super, at 206. The initial decision
by the ALJ was therefore deemed adopted pursuant to N.J.S.A.
ELEC I, supra, 445 N.J. Super, at 194, we
were not asked to decide the merits of the issue central to
the ALJ's decision, i.e., whether ELEC lacked
jurisdiction to issue a complaint because it was authorized
by two of the three members, both of whom were Republican.
That issue is presented to us now.
present several arguments against appellate review of the
notice of appeal from the deemed-adopted decision was filed
by Commission staff. Respondents filed a motion to dismiss
the appeal, arguing in part that staff members lacked
authority to file an appeal on behalf of the Commission. As
we noted in our order denying the motion to dismiss, even
under respondents' interpretation of the quorum
requirement, subsequent appointments to the Commission
resulted in a sufficient number of members to form a quorum
for action. We observed that, pursuant to Rule
2:8-2, the Commission retained the authority to move for the
dismissal of the appeal and stated that, in the absence of
any motion to dismiss the appeal by May 15, 2017, we would
proceed to the merits of the appeal. We conclude from the
absence of any motion to dismiss by the Commission that it
endorses the appeal and adopts the arguments advanced on its
behalf. The argument regarding the standing of staff to
pursue the appeal is therefore moot.
press additional arguments regarding standing. They contend
the Commission is not an "aggrieved party" and
therefore lacks standing to appeal its own final agency
decisionand that ELEC's appeal presents a
non-justiciable political question. Respondents also argue
the Commission should not be able to circumvent the time
limit in N.J.S.A. 52:14B-10(c) by pursuing an appeal of a
deemed-adopted decision, an issue we address later in the
Commission responds that it has the right to appeal the
decision pursuant to Rule 2:2-3(a)(2), that the ALJ
decided a purely legal issue that did not fall within
"the ALJ's statutorily assigned role, " and
that, because "a clearly erroneous initial decision
became a deemed-adopted final decision due to the agency
head's inability to act or obtain additional extensions,
appellate review must be available."
Jersey, "standing to seek judicial review of an
administrative agency's final action or decision is
available to the direct parties to that administrative action
as well as any one who is affected or aggrieved in fact by
that decision." Camden Cty. v. Bd. of Trs. of the
Pub. Emps. Ret. Sys., 170 N.J. 439, 446 (2002). "To
possess standing ... a party must present a sufficient stake
in the outcome of the litigation, a real adverseness with
respect to the subject matter, and a substantial likelihood
that the party will suffer harm in the event of an
unfavorable decision." Id. at 449.
Commission is given broad authority under N.J.S.A. 19:44A-6
to enforce the Act and is a party to the action that is the
subject of this appeal. The deemed-adopted decision
effectively curtailed the Commission's discharge of its
statutory responsibilities. We are satisfied that, under the
circumstances here, ELEC's appeal is not barred on the
ground that it is not an aggrieved party.
argue the appeal presents a nonjusticiable political question
because ELEC seeks to remedy issues "caused by the
Governor's failure to appoint or the Senate's failure
to confirm members of the Commission to fill vacancies."
nonjusticiability of a political question is primarily a
function of the separation of powers." Gilbert v.
Gladden, 87 N.J. 275, 281 (1981) (quoting Baker v.
Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 706, 7 L.Ed.2d
663, 682 (1962)). To dismiss a matter as nonjusticiable, one
of the following "criteria must be inextricable from the
facts and circumstances of the case":
a textually demonstrable constitutional commitment of the
issue to a coordinate political department; or a lack of
judicially discoverable and manageable standards for
resolving it; or the impossibility of deciding without an
initial policy determination of a kind clearly for
nonjudicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of
the respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political
decision already made; or the potentiality of embarrassment
from multifarious pronouncements by various departments on