A Summary Reversal in an Election Case

Board of Education of East Newark v. Harris, ___ N.J. Super. ___ (App. Div. 2021). Rule 2:8-3(b) allows the Appellate Division to decide appeals summarily without notice to the parties. Though that relief is often sought, it is not often granted. In some election cases, however, the Appellate Division has issued summary decisions. This ruling by Judge Accurso is the latest example of that.

The case arose out of efforts by the plaintiff Board of Education to reclassify its school district from Type I, in which Board members are appointed annually by the Mayor to rotating terms, to Type II, where Board members would be elected by the voters. The Board prepared a ballot question, interpretative statement, and resolution and submitted them to defendant Harris, the Clerk of the Borough of East Newark, seeking to have a question placed on the ballot for the November 3, 2020 general election.

The Clerk rejected the Board’s request as untimely, since that request was not made sufficiently in advance of the November 2020 election (it missed by three or four days) to comply with an Executive Order regarding the timing of the submission of public questions for a vote at that time. As Judge Accurso recounted, what happened next was that “on March 9, 2021, Board counsel again submitted the question, statement and resolution to the Borough Clerk and to defendant Maldonado, the Hudson County Clerk, for inclusion on an April 20, 2021 special election ballot in East Newark even though the Borough was not conducting an election on that day.” Harris responded that, as a Type I district, East Newark did not conduct an April special election, and that, in any event, “such late notice” would not accommodate the logistics necessary to conduct a special election in April. Harris suggested that the resolution should be included on the November 2021 ballot instead.

On Friday, March 19, the Board sued, seeking an order to show cause to compel the ballot question to be voted on in an election on April 20 or, alternatively, during the primary election scheduled for June 8, 2021. The Law Division scheduled a telephone conference for Tuesday, March 23. Harris submitted a letter explaining why he opposed the order to show cause, but he was not given the chance to answer the complaint or brief the issues. Nor was he told that the court intended to proceed in a summary manner. At the end of the phone conference, the Law Division granted final relief to the Board and ordered the ballot question to be presented to the voters at an election on April 20, with ballots to be printed within 48 hours of the Law Division’s decision.

Harris immediately went to the Appellate Division, seeking an emergent stay pending appeal. After the accelerated briefing ordered by the Appellate Division, in which the parties addressed the ultimate merits rather than the request for a stay, the Appellate Division issued an order, accompanied by a statement of reasons, reversing the Law Division’s ruling. Judge Accurso’s published opinion was a subsequent reformatting of the statement of reasons, along with “such additions as necessary to allow the reader a better grasp of the procedural history, revising to add additional citations and improve the flow of the text, which time did not permit when issuing [the Appellate Division’s] order.”

Judge Accurso stated that the issue was one of pure statutory interpretation, which called for de novo review. “N.J.S.A. 18A:9-5, which governs submission of a reclassification question in Type I districts, provides in pertinent part that the municipal clerk shall ’cause said question to be submitted at the next municipal or general election which will be held in the municipality following the expiration of 35 days from the date of the adoption of the resolution.” Under N.J.S.A. 19:1-1, “a ‘general election’ means the annual election to be held on the first Tuesday after the first Monday in November and, where applicable, includes annual school elections and annual fire district elections held on that date.’ Whereas a ‘municipal election’ means an election to be held in and for a single municipality only, at regular intervals.” As Harris told the judge in his letter regarding the order to show cause, “East Newark does not hold municipal elections because East Newark is a partisan community. Municipal elections are unique to non-partisan municipalities, and they occur in May.”

There was thus no statutory basis to compel an election on April 20. There was simply no “”general election” or “municipal election” then.

The Law Division also found equities to support its decision. But Judge Accurso rejected the equity rationale. Equity follows the law, she noted, and though equity “does not bar the crafting of a remedy not recognized by legislation or found in the common law, . . . it does prevent the issuance of a remedy that is inconsistent with recognized statutory or common law principles.” Harris properly relied on the Executive Order in declining to place the question on the November 2020 ballot.

Judge Accurso observed that, having missed the deadline for that ballot by only a few days, the Board might have challenged Harris’s action in that regard and might well have prevailed. But the Board did not do that, so its argument that “voters in East Newark were deprived of the ability to ‘have their voices heard’ on reclassification of their school district in last November’s general election … was based on the Board’s failures, no one else’s.” Accordingly, the Appellate Division dismissed the Board’s complaint and reversed the Law Division’s order directing a special election.