Election Law Enforcement Commission Can Pursue Complaint Against Essex County Executive

New Jersey Election Law Enforcement Commission v. DiVincenzo, ___ N.J. Super. ___ (App. Div. 2017).  In 2011, the New Jersey Election Law Commission (“ELEC”), an independent four-member body that enforces the Campaign Contributions and Expenditures Reporting Act, N.J.S.A. 19:44A-1 to -77 (‘the Act”), voted unanimously to investigate alleged violations of that statute by in the 2011 election for Essex County Executive by Joseph DiVincenzo and his campaign treasurer, Jorge Martinez.  By 2013, however, one ELEC member died and another, Walter (now Justice) Timpone, recused himself.  Both of those men were Democrats.  The two remaining ELEC members, both Republicans, voted to issue a complaint against DiVincenzo and Martinez (together, “respondents”).

Respondents challenged ELEC’s authority to issue the complaint, asserting that a quorum of three members from two political parties was required in order to authorize a complaint.  The matter went to the Office of Administrative Law, and an Administrative Law Judge agreed with respondents.  ELEC had 45 days to adopt, reject, or modify the ALJ’s decision, but by that time one of the remaining two ELEC members had died, leaving only one member eligible to act.  ELEC could not extend its time to act without respondents’ consent, and they unsurprisingly did not consent.  The ALJ’s decision was thus deemed to have been adopted by ELEC pursuant to a “deemed approval” section of the Administrative Procedure Act, N.J.S.A. 52:14B-1  to -31 (“APA”).

ELEC appealed to the Appellate Division and, today, that court reversed the ALJ’s ruling.  Judge Espinosa wrote the panel’s opinion.

Judge Espinosa first brushed aside respondents’ arguments that ELEC lacked standing to appeal and that the issue was a non-justiciable political question.  That still left a number of merits issues, to which the panel turned next.

First up was whether ELEC could appeal a “deemed approved” ALJ ruling.  Judge Espinosa described the administrative procedures under which ALJ’;s act, and noted that ALJ’s do not have final decisionmaking  power.  “The ALJ’s ‘initial decision’ on a question of law is conditionally permitted because it is subject to the agency’s decisional authority and judicial review….  Clearly, such a decision must be subject to the agency’s review if it is not to encroach upon the agency’s ultimate decisional authority.  Moreover, if the Commission is not permitted to appeal, there would be no judicial review of the ALJ’s initial decision on a question of law.”  (Emphasis by Judge Espinosa).

Judge Espinosa went on to note that judicial review of administrative agency action “is a matter of constitutional right in New Jersey,” and that the Appellate Division, the only recourse for appeal from administrative agency action, has “such original jurisdiction as may be necessary to the complete determination of any cause on review.”  The “deemed adopted” provision of the APA did not deprive the Appellate Division of the ability to hear ELEC’s appeal in these circumstances.

The next question was whether the two Republican members who voted to authorize the complaint against respondents constituted a quorum.  Judge Espinosa observed that under the common law, a majority of all the members of a body constitutes a quorum, with vacant seats not counted as members of that body.  “As applied here, a majority of the legal quorum voted to authorize the complaint because two members voted and the other two positions were ‘vacant’ due to death and recusal.”

But respondents contended that the Act altered the common law rule, citing a provision that states (in the context of ELEC’s review of the record made by a hearing officer on a complaint) that “[t]he commission’s determination shall be by majority vote of the entire authorized membership thereof.”  Judge Espinosa recognized that this language required three votes, not the two votes called for under the common law quorum rule.  But she held, after a detailed statutory interpretation analysis, that the issuance of a complaint was not a “determination” to which the three-vote quorum requirement applies.  Since the statutory section creating the three-vote quorum was in derogation of the common law rule, it was to be strictly construed, and Judge Espinosa found no basis to apply it to the issuance of a complaint.

Finally, respondents argued that a provision of the Act that no more than two members of the four-member ELEC be from the same political party meant that an ELEC action, such as the issuance of a complaint, could not be taken unless members of both political parties join in that action.  Judge Espinosa did not agree.  The Act prevents one party from dominating ELEC, but it does not “mandate membership by any political party.”  All four members could, for example, be independents.  “Moreover, the absence of any reference to political affiliations in the provisions that authorize specific actions by the Commission undermines respondents’ argument that there should be a spillover effect from this statutory provision to all others in the Act.”  There was thus “no basis” for the argument that the Act requires a bipartisan vote to authorize a complaint.

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