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New Jersey Election Law Enforcement Commission v. Divincenzo

Superior Court of New Jersey, Appellate Division

September 8, 2017

JOSEPH DIVINCENZO and JORGE MARTINEZ, Respondents-Respondents.

          Argued November 1, 2016

         On appeal from the Election Law Enforcement Commission, Docket Nos. C-8 0700 01, 01-G2010 and C-8 0700 01, 01-P2014.

          Amanda S. Haines argued the cause for appellant (Ms. Haines, attorney; Ms. Haines, Demery J. Roberts and Scott T. Miccio, on the brief).

          Angelo 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 the brief).

          Before Judges Messano, Espinosa and Suter.

          ESPINOSA, J.A.D.

         The New 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 reverse.


         The 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.

         ELEC 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. "

         In July 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.

         The 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.

         Respondents 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.

         Respondents 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 dismissed."

         Pursuant 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.

         As a 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.[1] N.J.S.A. 52:14B-10(c). Respondents declined to provide such consent.

         ELEC 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. 52:14B-10(C).

         In 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.


         Respondents present several arguments against appellate review of the ALJ's decision.

         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.

         Respondents press additional arguments regarding standing. They contend the Commission is not an "aggrieved party" and therefore lacks standing to appeal its own final agency decision[2]and 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 decision.

         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."


         In New 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.

         The 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.


         Respondents 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."

         "The 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 one question.
Id. Baker supr ...

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