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Empower Our Neighborhood v. Guadagno

Superior Court of New Jersey, Appellate Division

March 8, 2018

EMPOWER OUR NEIGHBORHOODS, an unincorporated association, on behalf of itself and its members and all others similarly situated, Plaintiff-Respondent,
v.
KIMBERLY GUADAGNO, individually and as Secretary of State and Chief State Election Official of the State of New Jersey; and THE STATE OF NEW JERSEY, Defendants-Respondents/ Cross-Appellants, and ELAINE FLYNN, individually and as Middlesex County Clerk, Defendant-Appellant/ Cross-Respondent, and DANIEL TORRISI, individually and as Clerk of the City of New Brunswick; RICHARD JANNARONE, individually and as Board Secretary of the New Brunswick Board of Education; NEW JERSEY DEMOCRATIC STATE PARTY COMMITTEE; and NEW JERSEY REPUBLICAN STATE PARTY COMMITTEE, Defendants. EMPOWER OUR NEIGHBORHOODS, an unincorporated association, on behalf of itself and its members and all others similarly situated, Plaintiff-Respondent,
v.
KIMBERLY, individually and as Secretary of State and Chief State Election Official of the State of New Jersey; and THE STATE OF NEW JERSEY, Defendants-Respondents/ Cross-Appellants, and ELAINE FLYNN, individually and as Middlesex County Clerk; RICHARD JANNARONE, individually and as Board Secretary of the New Brunswick Board of Education; NEW JERSEY DEMOCRATIC STATE PARTY COMMITTEE; NEW JERSEY REPUBLICAN STATE PARTY COMMITTEE, Defendants, and DANIEL TORRISI, individually as Clerk of the City of New Brunswick, Defendant-Appellant/ Cross-Respondent. EMPOWER OUR NEIGHBORHOODS, an unincorporated association, on behalf of itself and its members and all others similarly situated, Plaintiff-Respondent,
v.
KIMBERLY GUADAGNO, individually and as Secretary of State and Chief State Election Official of the State of New Jersey; and THE STATE OF NEW JERSEY, Defendants-Respondents/ Cross-Appellants, and ELAINE FLYNN, individually and as Middlesex County Clerk; NEW JERSEY DEMOCRATIC STATE PARTY COMMITTEE; NEW JERSEY REPUBLICAN STATE PARTY COMMITTEE, Defendants, and DANIEL TORRISI, individually and as Clerk of the City of New Brunswick, Defendant-Respondent, and RICHARD JANNARONE, individually and as Board Secretary of the New Brunswick Board of Education, Defendant-Appellant/ Cross-Respondent.

          Submitted November 9, 2017

         On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-3148-11.

          Thomas F. Kelso, Middlesex County Counsel, attorney for appellant Elaine Flynn in Docket No. A-0330-15 (Benjamin D. Leibowitz, Senior Deputy County Counsel, on the briefs).

          Hill Wallack LLP, attorneys for Daniel Torrisi, appellant/cross-respondent in Docket No. A-0331-15, and respondent in Docket No. A-0333-15 (James G. 0'Donohue and Victoria J. Airgood, of counsel and on the briefs).

          Hendricks & Hendricks, attorneys for appellant/cross-respondent Richard Jannarone in Docket No. A-0333-15 (George F. Hendricks, on the briefs).

          Christopher S. Porrino, Attorney General, attorney for respondents/cross-appellants Kimberly Guadagno and State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; George N. Cohen, Deputy Attorney General, on the briefs).

          Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys for respondent Empower our Neighborhoods (Flavio L. Komuves, of counsel and on the briefs).

          Before Judges Alvarez, Nugent, and Currier.

          ALVAREZ, P.J.A.D.

         For the reasons that follow, we affirm Judge Mary Jacobson's thorough and well-reasoned August 7, 2015 decision awarding counsel fees to plaintiff Empower Our Neighborhoods (EON), an advocacy group, in this election matter. She apportioned the $105, 063.80 award as follows: fifty percent or $52, 531.90 payable by defendant State of New Jersey; twenty percent or $21, 012.76 payable by the City of New Brunswick on behalf of defendant City Clerk Daniel Torrisi; twenty percent or $21, 012.76 payable by Middlesex County on behalf of defendant County Clerk Elaine Flynn; and ten percent or $10, 506.38 payable by the New Brunswick Board of Education on behalf of its secretary, defendant Richard Jannarone.[1] All defendants appeal.

         As Judge Jacobson explained, this litigation "buil[t] on" the October 17, 2007 agreement reached with the State in another consequential election case, Green Party of New Jersey; New Jersey Conservative Party; and New Jersey Libertarian Party, Inc. v. State of New Jersey, Division of Elections and Anne Milgram, Attorney General of New Jersey, Docket No. C-125-06. The consent order in that case states: "the provisions in N.J.S.A. 19:13-5 and 19:13-7 which, when read together, require a person certifying the signatures on a direct nominating petition to be a legally qualified voter residing within the district in which the nominee is seeking office [are] hereby declared to be void and unenforceable."

         The consent order committed the State to make available, through the Division of Elections, revised direct nomination petition forms by December 31, 2007 .[2] The order cited to Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999) as the binding precedent requiring modification of the statutory residency requirement.

         EON, by way of complaint and amended complaint, sought to eliminate the district residency, age, and voter registration requirements in an expanded universe of election activities: for recall petitions, petitions nominating independent candidates in general elections, the selection of candidates from local parties, and Board of Education members. On March 31, 2014, Judge Jacobson decided the matter on motions and cross-motions for summary judgment by all the parties, including the Democratic and Republican State Committees who "participated in the case as defendants pursuant to court order." She partially granted EON's motion by eliminating the in-district residency requirement, finding it unconstitutional.

         The judge denied EON's request that petition circulators need not be voter-eligible-circulators continued to be required to be over eighteen, citizens, and New Jersey residents. The judge also denied EON's request that circulators in partisan primary elections not be required to be registered voters of the relevant party.[3]

         EON's success in this litigation, the judge observed, "changed the landscape of election law in New Jersey, " as "all 5.88 million registered voters in New Jersey now ha[d] expanded petition rights."

[T]he available petition circulator base is [now] about [eleven] times higher in Bergen County, the largest jurisdiction in New Jersey, .... In New Brunswick, . . . the available circulator base has been expanded by 24 8 times with regard to Independent candidates, by 2 08 times with regard to Democratic candidates, and by 1115 times with regard to Republican candidates.

         At the close of the case, EON was awarded counsel fees pursuant to 42 U.S.C. § 1983 and § 1988, and the New Jersey Civil Rights Act (the Act), N.J.S.A. 10:6-2(f). After the defendants filed the appeal, the State sought a brief remand to the trial court, alleging it had discovered a form letter circulated to local governments disclosing the Green Party settlement. The State had not previously been able to produce any proof of efforts to communicate the terms of the Green Party order to the affected entities.

         On remand, Judge Jacobson was unconvinced the letter satisfied the State's Green Party obligations and constitutional requirements. She found that since as late as 2011, four years after the Green Party consent order was signed, the State continued to promulgate model forms inconsistent with Buckley, the State was not entitled to modification of the award. Even in 2012, the State's website had posted a recall petition form that was "inconsistent with Buckley." The judge also found that the State's letter did not adequately explain the unconstitutionality of local district residency requirements. Despite the communication, "the State did not ensure that all the model forms it promulgated and continued to promulgate after the Green Party consent order were completely consistent with the Buckley decision."

         The State now asserts on appeal:

POINT I
STATE DEFENDANTS ARE NOT LIABLE FOR ATTORNEY'S FEES OR COSTS AWARDED TO EON BECAUSE EON DID NOT PREVAIL ON ITS CLAIMS AGAINST STATE DEFENDANTS AND STATE DEFENDANTS WERE NOT RESPONSIBLE FOR THE FEES INCURRED BY EON AS A RESULT OF THE MUNICIPAL DEFENDANTS' RESIST[A]NCE TO THEIR CLAIMS
A. Prevailing Party Is Entitled Only to Reasonable Attorney's Fees.
B. The Lodestar Amount Should Be Reduced to Reflect EON's Lack of Success.
C. State Defendants Should Not Be Responsible for Any Fees and Costs Incurred After the Complaint Was Filed as That Complaint Put the Municipal Defendants on Notice of the 2007 Green Party Consent Order.
D. The State Defendants[] Should Not Be Held Accountable for the Litigation Conduct of the Municipal Defendants.
E. The Municipal Defendants' Conduct Prolonging the Litigation Requires an Increase in The Amount of Fees and Costs Allocated to Them.
POINT II
THE COURT SHOULD SUBSTANTIALLY REDUCE EON'S APPLICATION FOR ATTORNEY'S FEES AND COSTS BECAUSE IT DID NOT PREVAIL ON ANY MAJOR ISSUE AFTER THE ISSUANCE OF THE COURT'S ...

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