In Re Hoboken Public Question 2 of 2012 -- Brief to Appellate Division -- NJ Appleseed PILC
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Transcript of In Re Hoboken Public Question 2 of 2012 -- Brief to Appellate Division -- NJ Appleseed PILC
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__________________________________: SUPERIOR COURT OF NEW JERSEY
In re: : APPELLATE DIVISION: DOCKET NO. A-003218-12T3
CONTEST OF THE NOVEMBER 6, 2012 :
ELECTION RESULTS FOR THE CITY OF :HOBOKEN, PUBLIC QUESTION NO. 2 : On appeal from the: Superior Court of New: Jersey, Law Division,: Hudson County:: Docket No. below:: HUD-L-5773-12:: Sat Below:: Hon. Christine Farrington,: J.S.C.
__________________________________ :
BRIEF OF INTERVENOR-APPELLANT CHERYL FALLICK
Rene Steinhagen, Esq.NEW JERSEY APPLESEEDPUBLIC INTEREST LAW CENTER744 Broad Street, Suite 1525Newark, New Jersey 07102(973) [email protected]
Flavio L. Komuves, Esq.ZAZZALI, FAGELLA, NOVAK,KLEINBAUM, & FREIDMANOne Riverfront PlazaSuite 320Newark, New Jersey 07102
(973) [email protected]
Attorneys for Intervenor-Appellant Cheryl Fallick
On the Brief:Rene Steinhagen, Esq.Flavio L. Komuves, Esq.
mailto:[email protected]:[email protected]:[email protected]:[email protected] -
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TABLE OF CONTENTS
TABLE OF AUTHORITIES...........................................ii
PRELIMINARY STATEMENT...........................................1
STATEMENT OF FACTS..............................................3
PROCEDURAL HISTORY..............................................6
PROVISIONAL BALLOT STATUTORY SCHEME ...........................12
LEGAL ARGUMENT ................................................16
I. THE TRIAL COURTS DECISION TO REVERSE THEELECTION RESULTS FOR THE CITY OF HOBOKEN, PUBLICQUESTION, NO. 2 IS WRONG AS A MATTER OF LAW ..............16
II. MS. FALLICKS MOTION TO INTERVENE SHOULD HAVEBEEN GRANTED..............................................24
CONCLUSION ....................................................40
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TABLE OF AUTHORITIES
CASES
American Civil Liberties Union of New Jersey, Inc. v.
County of Hudson, 352 N.J. Super. 44(App. Div. 2002)....................................25,28,36
Asbury Park v. Asbury Park Towers, 388 N.J. Super. 1(App. Div. 2006)..........................................34
Atlantic Employers Ins. Co. v. Tots & Toddlers Pre-School Day Care Ctr., 239 N.J. Super. 276 (App.Div.), certif. denied, 122 N.J. 147 (1990).............28,30
Bosland v. Warwick Dodge, Inc., 197 N.J. 543 (2009)............19
Burnett v. County of Bergen, 198 N.J. 408 (2009)...............19
Campo Jersey v. Dir., Div. of Taxn,390 N.J. Super. 366 (App. Div. 2007)......................18
Chesterbrooke Ltd. Partnership v. Planning Bd., 237N.J. Super. 118 (App. Div), certif. denied,118 N.J. 234 (1989)....................................12,28
City of Paterson v. Paterson General Hospital, 97 N.J.Super. 514 (Ch. Div. 1967)................................35
Cold Indian Springs Corp. v. Ocean Twp., 154 N.J.Super. 75 (Law Div. 1977), affd, 161 N.J. Super.586 (App. Div. 1978), affd, 81 N.J. 502 (1980)........31,34
Hanover Twp. v. Town of Morristown, 116 N.J. Super.136, 143 (Ch. Div.), affd, 121 N.J. Super. 536(App. Div. 1972).......................................35,36
In re Contest of November 8, 2005 Gen. Election forOffice of Mayor of Twp. Of Parsippany-Troy Hills,
192 N.J. 546 (2007)........................................7
In re Farrell, 108 N.J. 335 (1987).............................27
In re November 2, 2010 Gen. Election For Office ofMayor in Borough of S. Amboy, Middlesex Cnty.,423 N.J. Super. 190 (App. Div. 2011)......................27
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In re State Funeral Dir. Assn, 427 N.J. Super. 268(App. Div. 2012).......................................18,19
Manalapan Realty v. Twp. Comm. Of Manalapan,140 N.J. 366 (1995).......................................18
Mason v. Hoboken, 196 N.J. 51 (2008)...........................19
McKenzie v. Corzine, 396 N.J. Super. 405(App. Div. 2007)..........................................27
Meehan v. K.D. Parners, L.P., 317 N.J. Super. 563(App. Div. 1998).......................................25,29
N.J. Div. of Youth and Family Serv. v. J.B.,120 N.J. 112 (1990)....................................26,27
Pizzullo v. New Jersey Mfs. Ins. Co., 196 N.J. 251,264 (2008)................................................19
Slaughter v. Gov. Records Council, 413 N.J. Super. 544(App. Div. 2010)..........................................18
State v. Lanza, 39 N.J. 595, 600 (1963), cert. denied,375 U.S. 451 (1964), rehg denied, 376 U.S. 935(1964)....................................................25
Tumpson v. Farina, ___ N.J. Super.___ (App. Div., May
29, 2013)...........................................18,26,27
U.S. Bank, N.A. v. Hough, 210 N.J. 187 (2012)..................18
V.W. Credit v. Coast Auto Group, 346 N.J. Super. 246(App. Div.), certif. denied, 172 N.J. 178 (2002)..........31
Warner Co. v. Sutton, 270 N.J. Super. 464(App. Div. 1994).......................................26,31
STATUTES, REGULATIONS AND RULES
Help America Vote Act of 2002 (HAVA),42 U.S.C. 15482(a)......................................14
N.J.S.A. 19:29-1................................................6
N.J.S.A. 19:53C-1(b)...........................................14
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N.J.S.A. 19:53C-3..............................................14
N.J.S.A. 19:53C-3(e)...........................................15
N.J.S.A. 19:53C-17.............................................15
N.J.S.A. 47:1A-5...............................................38
R. 2:5-5 .....................................................11
R. 4:33-1 ............................................24,28,29,30
R. 4:33-2 ...............................................24,29,38
R. 4:33-3 .....................................................25
N.J.R. Evid. 1006 (Summaries)............................23,32,38
Executive Order 104, dated October 27, 2012.....................4
Lt. Governor Directive Expanding Ability of Displaced
Voters to Vote, dated November 3, 2012...............passim
OTHER AUTHORITIES
Ertel et al. v. Essex County Board of Elections,Unpublished Order, dated November 7, 2012
(Koprowski, J.S.C.) .................................3,17,22
Election Reform Briefing: The Provisional VotingChallenge, The Constitution Project and
election.org (2002)(www.pewtrusts.org/uploadedFiles/ProvisionalVoting.pdf)...............................................13
Pressler, Current N.J. Court Rules, comment on R.4:33-2 (2002).............................................24
http://www.pewtrusts.org/uploadedFiles/Provisional%20Voting.pdfhttp://www.pewtrusts.org/uploadedFiles/Provisional%20Voting.pdfhttp://www.pewtrusts.org/uploadedFiles/Provisional%20Voting.pdfhttp://www.pewtrusts.org/uploadedFiles/Provisional%20Voting.pdf -
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PRELIMINARY STATEMENT
This matter challenges the trial courts reversal of a
local public question election and its denial of intervention to
a key advocate opposing that question. Appellant-Intervenor
Cheryl Fallick, a Hoboken voter, resident in rent-controlled
property, member of the Hoboken Rent Leveling Board, and
campaign manager of the opponents of a local initiative seeking
to roll back critical rent control protections, sought leave to
intervene to protect the results of the Hoboken Public Question
No. 2 election in the court below (the Local Referendum
Election). The proposed amendment of the Hoboken Rent Control
Ordinance lost by a margin of 52 votes, and is the subject of
the election contest that gives rise to this appeal.
Ms. Fallicks motion to intervene was denied in part
because the court determined that she was a single voter, who
[could] not distinguish herself and her claim of right . . .
[from] any other voter, (1T18:8-13)1; and she could not
demonstrate that [her] interests [we]re not adequately
protected. (1T18:17-18). Subsequently, the lower court
reversed the Local Referendum Election on the basis of a summary
list of 114 persons, who Petitioners-Respondents (a group of
landlords supporting the referendum) alleged were displaced
11T refers to Transcript of January 11, 2013, hearing beforeJudge Christine Farrington, J.S.C.
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Hoboken voters who had cast their provisional ballots outside
the City of Hoboken. These Hoboken voters, the landlords
argued, had been wrongfully denied the opportunity to
participate in the Local Referendum Election, pursuant to the
Directive Expanding Ability of Displaced Voters to Vote that
had been issued by Lt. Governor Guadagno on November 3, 2012
(2T:27:23-25 to 28:3-6).2 (hereinafter, the Directive). The
trial court agreed (albeit without examining official
provisional ballot affirmation statements and county
registration records).
This holding is wrong as a matter of law and fact; however,
because this court has denied Ms. Fallicks Motion to Supplement
the Record (Ia220), her arguments herein are limited to the
trial courts erroneous interpretation of the Directive. A
close reading of the Directive indicates that the Lt. Governor
intended to implement voting by provisional ballot for any
person who was displaced by Superstorm Sandy. Manifestly, it
was not intended to entitle a displaced voter who casts a ballot
any place in the State to vote on a local public question for
which the voter is otherwise eligible to vote. (Ia79). To do
so, would have required every municipality in the State to have
for distribution (to each polling site) a version of each of the
22T refers to Transcript of February 11, 2013, Hearing beforeJudge Christine Farrington, J.S.C.
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hundreds of different forms of provisional ballot that were in
use throughout the State or to provide displaced voters with
Federal Write-In Absentee Ballots. If the Directive, as the
trial court implied, required every polling place to have every
form of ballot issued anywhere in the State, such an outcome
violates Chancery Judge Walter Koprowskis Order, dated November
7, 2012 (Ia211-212), and would pose insurmountable logistical
difficulties. The trial courts implication that such steps
were required was fundamentally wrong.
Furthermore, although the Appellate Division has since
permitted Ms. Fallick to intervene to appeal this matter, her
initial motion to intervene, which was filed a mere six (6) days
after Petitioners-Respondents (representing landlords who had
backed the initiative) commenced their election contest, raises
issues of broad public interest concerning public question
elections and arises under circumstances likely to recur.
Therefore, despite being technically moot, there is still an
adversary proceeding in which the Court should provide future
guidance as to when intervention by advocates for or against a
public question is appropriate.
For the reasons stated above, and as will be further
explained below, the Local Referendum Election should not have
been disturbed and Ms. Fallicks motion to intervene should not
have been denied.
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STATEMENT OF FACTS
There is little doubt that the natural phenomenon known as
Superstorm Sandy impacted all elections occurring in New Jersey
on November 6, 2012 (Election Day). Specifically, in early
November, Lt. Governor Guadagno issued approximately four
directives pursuant to her authority under Executive Order 104,
dated October 27, 2012, designed to ease restrictions on voters,
to encourage early voting, and to set guidelines as to
provisional, electronic and mail-in ballots. Specifically, at
issue herein is the directive entitled Directive Expanding
Ability of Displaced Voters to Vote, dated November 3, 2012.
(Ia79). This Directive states in part:
1.A displaced voter may vote by provisional ballot at anypolling place in the State. . . .
c. All eligible votes must be counted.
i. The appropriate Board must count the votes of allregistered voters for office of President andU.S. Senator and any other statewide question;and
ii. The appropriate Board must count the votes castfor any office or question for which the voter isotherwise eligible to vote.
On Election Day, all but one previously scheduled polling
place was open in the City of Hoboken. (2T26:16-20).
Notwithstanding this local fact on the ground, that morning,
the New Jersey ACLU filed a petition on behalf of several
plaintiffs and all similarly situated persons (displaced
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voters), who had applied for a ballot but had not received
them, in the Superior Court in Essex County. The petition
sought the right for such displaced voters to submit Federal
Write-In Absentee Ballots (instead of requiring them to cast a
provisional ballot at a polling place where they were not
registered), so they would be able to participate in all local
elections if they so desired. (Ia211-213). Attorneys for the
Lt. Governor, and several candidate campaigns and county
political parties, including the Hudson County Democratic
Organization, were represented. The judge denied that request;
however, issued an Order stating that county clerks statewide
must continue to accept and process applications for Vote By
Mail Ballots, as long as the displaced voter provides proof
that he or she had made an earlier timely request to receive a
ballot by e-mail or fax. (Ia213).
The general election was held, and the Hoboken Public
Question No. 2 election was subsequently certified as follows:
8,196 Yes votes; 8,248 No votes, with a margin of victory of
52 votes against the proposed changes to the Hoboken Rent
Control Ordinance. (Ia20) (hereinafter Local Referendum
Election).3 In this way, a majority of the voters of Hoboken
3 Hoboken Public Question No. 2 asked the voters as follows:
Shall the City of Hoboken continue annual rental increaseprotections for current residents of rent controlled propertiesbut allow property owners to negotiate rents for vacant
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rejected, in November 2012, a proposed initiative to roll back
critical rent control protections for the citizens of Hoboken.
PROCEDURAL HISTORY
On December 12, 2012, 15 individual petitioners (the
Respondents on this appeal), representing landlords who had
backed the initiative, filed an Order to Show Cause and Verified
Petition contesting that election and seeking relief against
Lt. Governor Guadagno, the Hudson County Clerk and the Hoboken
Municipal Clerk, pursuant to N.J.S.A. 19:29-1. (Ia1-20). On
December 18, 2012, a hearing was held, and Judge Farrington
entered an Order that set a trial date of January 22, 2013.
(Ia21-22). In that Order, Petitioners were directed to serve
the Hudson County Board of Elections and the Superintendent of
Elections within 5 days, and all respondents were required to
make certain election documents and materials available for
inspection by the Petitioners.
Also on December 18, which was six (6) days after the
Petition was filed, Appellant Cheryl Fallick, a Hoboken voter,
tenant of a rent-controlled apartment, and advocate against the
adoption of Hoboken Public Question No. 2, filed and served
apartments and exempt buildings with one-to-four units andcondominium units from the rent leveling ordinance by adoptingthe proposed amendment to Chapter 155 of the Code of the Cityof Hoboken?
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motions before the trial court seeking to intervene in the
action, along with a proposed Answer. (Ia23-35). The second
motion sought an order dismissing the Petition in its entirety
for lack of specificity pursuant to In re Contest of November 8,
2005 Gen. Election for Office of Mayor of Twp. Of Parsippany-
Troy Hills, 192 N.J. 546, 554 (2007). As intervenor, Ms.
Fallick would have been the sole party before the Court
representing the interests of tenants; she was, among other
things, the tenant representative on the Hoboken Rent Leveling
Board, the campaign manager for the organization advocating a
No vote on the referendum, and had been a litigant and witness
in various rent control cases. (Ia34-35; 1T9:18-24). Ms.
Fallick also argued that it was not clear whether and to what
extent the other [government] defendants w[ould] promptly and
vigorously oppose the election contest initiated by the
Petition, and litigate this matter with a view to upholding the
election results as published by the County Clerk. (Ia35;
1T10:18-23). As such, she reasoned that she had shown the
necessary requirements for both permissive intervention and
intervention as of right. (Ia35; Ia223-224).
As to the motion to dismiss, Ms. Fallick also argued that
under the law governing election contests, the Petition lacked
the required specificity in that it failed to identify specific
voters who were allegedly disenfranchised, but instead contained
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only scattershot allegations of misconduct, requiring dismissal
of the Petition. (1T12:13-25 to 13:1-8). Neither the Lt.
Governor, the Hudson County Board of Elections, the County
Superintendent, County Clerk nor the City of Hoboken
(Government Defendants) filed an Answer in this matter or a
motion to dismiss.
Despite the trial courts recognition of the need for
expedited proceedings (Ia21-22), Ms. Fallicks motions were not
heard until over three (3) weeks later, on January 11, 2013.
None of the Government Defendants the State, the County
officials, or the City filed any opposition to the motions.
(IT15:8-11). Only the landlord Petitioners, the sole parties
with a vested outcome in the election contest, filed papers
objecting to having a tenant representative appear as a party
intervenor. (1T3). The Court denied both of Ms. Fallicks
motions by Order dated January 11, 2013. (Ia42). The judge
found that as a mere single voter, although the only advocate
before the Court who was expressly interested in upholding the
election results, she did not meet the standards of
intervention. (IT18:8-13). The Court also found that the other
parties in the case were adequately represent[ing] Ms.
Fallicks interests, (1T18:16-24), -- a conclusion, or rather an
assumption, that subsequent developments showed to be deeply and
fundamentally wrong.
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whether the 114 listed names were in fact displaced Hoboken
voters. She first secured a copy of the Courts final Order and
the list of voters on which the trial court based its decision.
(Ia173-176). Neither the certification of counsel to which this
list was attached nor the list itself identifies who compiled
the list and the documents on which it was based. (Ia125).
Once Ms. Fallick secured a copy of the list of 114 voters (5 of
which were duplicates), she commenced investigating whether in
fact the remaining persons on that list were eligible Hoboken
voters who had cast a provisional ballot outside of Hoboken.
On March 12, 2013, Ms. Fallick filed a Notice of Appeal and
Case Information Statement appealing all decisions of the trial
court. (Ia203-204).4 This was seven (7) days after the final
Order in this case, and sixty (60) days after the interlocutory
orders denying her motion to intervene and to dismiss the
Petition. Since that time, no other party, including the
Government Defendants, who were supposedly vigorously fighting
to uphold the election results, opted to file a Notice of Appeal
of the courts Order for a new election. Indeed, Case
4
On or about that same day, she submitted an OPRA request to theHudson County Board of Elections, the Hudson CountySuperintendent of Elections and the Hudson County Clerkrequesting a copy of the affirmation statements associated
with the provisional ballots that were the basis foroverturning the certified election results in the Local
Referendum Election. (Copy of OPRA Request, Motion Appendix).
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Information Statements have been filed only on behalf of the
Hudson County Clerk, the City of Hoboken and the Petitioners.
(Ia205-210). The Lt. Governor, the Hudson County Board of
Elections and the Hudson County Superintendent has each
implicitly declined to participate. Put another way, absent Ms.
Fallicks efforts, there is no party defending the voting rights
of the 8,248 voters who constituted the majority that voted down
Public Question No. 2 at the November 2012 election.
Subsequent to filing her appeal, Ms. Fallick made a motion,
on May 9, 2013, pursuant to R. 2:5-5, to supplement the record
(Ia37-39). In this motion, supported by the City of Hoboken,
she sought to include the 80 affirmation statements she received
in response to her OPRA request, and the Certifications, with
exhibits, that she and other opponents of the Hoboken Rent
Control Ordinance initiative obtained regarding residency and
other voter information of the persons listed on the Hoboken
Displaced Voters List. Id. She posited that this supplementary
material demonstrated that even if the trial courts legal
theory was correct, there were at most 36 disenfranchised
voters (a number that is lower than the Public Questions margin
of victory), not the 114 found by the court. (Id.). This motion
was denied by Order dated June 10, 2013. (Ia220).
On May 13, 2013, Respondents filed a motion to dismiss Ms.
Fallicks appeal from the Courts denial of her intervention
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motion, as untimely (Ia214-215); and on May 23, 2013, Ms.
Fallick responded by filing a Cross-Motion In the Alternative to
Allow Appeal (Ia216-217), and a Motion to Permit Intervention
Pursuant to Chesterbrooke Ltd. v. Planning Board. (Ia 218-219).
In separate Orders, both dated June 10, 2013, Respondents
Motion to Dismiss the Appeal as Untimely was denied (Ia221-222),
and Ms. Fallicks Cross-Motion to Allow Appeal and Motion to
Intervene were both granted. (Ia222-223). Accordingly, Ms.
Fallicks appeal of the trial courts rulings on intervention
and the merits of this contested election is now properly before
the Court for consideration.
PROVISIONAL BALLOT STATUTORY SCHEME
This matter involves the interpretation of the Lt.
Governors November 3, 2012, Directive intended to facilitate
voter participation by permitting a displaced voter . . . to
vote by provisional ballot at any polling place in the State.
(Ia79). To better understand the import of this Directive, it
is necessary to first understand what is meant by provisional
voting and specifically, the role of provisional ballots in New
Jersey elections prior to Superstorm Sandy and the November 2012
General Election.
Ordinarily, provisional voting seeks to protect those
voters who arrive at the polling place serving their place of
residence on Election Day only to find their names missing from
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the registration list, often through no fault of their own.
Provisional voting schemes allow voters whose names do not
appear on the official registration lists at particular places
to cast provisional ballots, upon affirmation that they are
properly registered and otherwise eligible to vote. State
officials or local election boards subsequently review the
provisional ballots and count them if they find that the voter
was in fact qualified to vote. See Election Reform Briefing:
The Provisional Voting Challenge, The Constitution Project and
election.org (2002) (www.pewtrusts.org/uploadedFiles/Provisional
Voting.pdf).
Provisional voting takes many different forms among the 50
states. Full provisional voting allows all voters who are
properly registered in any election district within a state, and
otherwise eligible to vote, to cast a provisional ballot any
place in the state and have that ballot counted for the races
for which they are eligible. Such a comprehensive system
ensures that individuals who turn out to vote on Election Day
are given every conceivable opportunity to have their votes
counted, even if they do not immediately appear on a particular
districts election rolls. Id. at pp. 6-9. Other states, such
as New Jersey, employ a more limited form of provisional voting
by restricting its availability to certain classes of voters.
http://www.pewtrusts.org/uploadedFiles/Provisional%20Voting.pdfhttp://www.pewtrusts.org/uploadedFiles/Provisional%20Voting.pdfhttp://www.pewtrusts.org/uploadedFiles/Provisional%20Voting.pdfhttp://www.pewtrusts.org/uploadedFiles/Provisional%20Voting.pdf -
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In New Jersey, those voters whose names are absent from a
registration list due to a move between counties are not
authorized to benefit from New Jerseys provisional voting
option. See N.J.S.A. 19:53C-3 (provides for provisional voting
only under certain circumstances); N.J.S.A. 19:53C-1(b)
(affirmation statement attached to provisional ballot states
that s/he is registered to vote in a county but has moved within
that county since registering to vote, or is registered to vote
in the election district in which that polling place is located
but the voters registration information is missing or otherwise
deficient).
Indeed, until the enactment of the Help America Vote Act of
2002 (HAVA), 42 U.S.C. 15482(a), provisional voting
opportunities were not even required to be offered to voters who
had recently moved between counties.5 Eleven years after the
5 Pursuant to HAVA, local election officials must offerprovisional ballots to persons whose names are not on the listof eligible voters or is told she is not eligible to vote. 42U.S.C. 15482(a). That is, any voter whose eligibility is indoubt on Election Day must be allowed to cast a paperprovisional ballot at the polling place, even if that ballotwill not be counted under state law. Id. (HAVA requires that anindividuals provisional ballot shall be counted as a vote in
that election only if it is determined that the person iseligible to vote under state law). Triggering events include avoters name does not appear on the registration list for the
polling place where he or she seeks to vote; an electionofficial challenges the voters eligibility; a voter lacks the
required identification; and someone votes after the pollingplace has closed. Such expansive use of the provisional ballot,however, does not ensure that the ballot will be counted.
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passage of HAVA, New Jersey law remains in tension with HAVA by
requiring poll workers to re-direct such voters to the county in
which they are properly registered, N.J.S.A. 19:53C-3(e),
instead of giving them a provisional ballot. Now, if a poll
worker does not redirect them to their county of residence, and
instead provides a provisional ballot to the voter in accordance
with HAVA, that voters entire ballot will nonetheless be deemed
invalid. This is the case because under New Jersey law, unless
the provisional ballot voter is determined to be registered in
the county in which s/he votes, his/her entire ballot is
rejected. Cf. N.J.S.A. 19:53C-17 (noting that if a voter, who
moves within a municipality or county, casts a provisional
ballot other than the ballot for the district in which the
voter is qualified to vote, the votes for those offices and
questions for which the voter would be otherwise qualified to
vote shall be counted. All other votes shall be void.).
It is this legal framework that the Lt. Governor sought to
modify on a temporary basis due to Superstorm Sandy: if a person
declares him/herself displaced, s/he is entitled to receive a
provisional ballot anywhere in the State and have his votes
count for those races for which s/he is eligible to vote.
In summary, prior to and since the November 2012 general
election, provisional ballots are used and deemed valid in New
Jersey only when a voter moves within the municipality or county
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without updating his or her registration or when registration
information is missing. Under this statutory scheme, any person
who casts a provisional ballot outside the county in which s/he
is registered, or who is not registered anywhere, forfeits
his/her right to vote. The Lt. Governors November 3, 2013
Directive modified this edict for registered, self-declared
displaced persons only. With respect to such voters, all
provisional ballots were to be counted by the Board of Elections
in the voters county of registration, and the votes of all
registered voters that were cast for the offices of President,
United States Senator, any statewide question, and any other
office or question for which the voter is otherwise eligible to
vote had to be counted. In this way, the Directive introduced
a temporary and limited version of inter-county provisional
voting to New Jersey; nothing more and nothing less.
LEGAL ARGUMENT
I. THE TRIAL COURTS DECISION TO REVERSE THEELECTION RESULTS FOR THE CITY OF HOBOKEN,
PUBLIC QUESTION, NO. 2 IS WRONG AS A MATTER
OF LAW.
In its decision, dated February 13, 2013, the trial court
found that
the failure to include Public Question No. 2 on theprovisional ballots effectively disenfranchised the114 voters voting outside the City and violated theLieutenant Governors directive which required:The appropriate Board must count the votes cast for
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any other office or question for which the voter isotherwise eligible to vote. (Ia193)
Although the court did not specify who failed to include
Public Question No. 2 on the provisional ballots that were given
to the 114 names denoted on the Displaced Hoboken Voters List,
her decision implicates all county election officials throughout
the State (despite the fact that only Hudson County officials
were served with Respondents Petition). Notwithstanding this
blatant defect, the trial courts interpretation of the Lt.
Governors Directive is not supported by the plain language of
the Directive, misunderstands the logistics and law governing
provisional voting in New Jersey, and directly contradicts Judge
Koprowskis Order, dated November 7, 2012, in Ertel et al. v.
Essex County Board of Elections, which had state-wide effect.
(Ia211-212).6 Accordingly, none of the persons appearing on the
Hoboken Displaced Voters Who Cast Provisional Ballots Outside of
Hoboken list were illegally disenfranchised, and the Election
Results for Hoboken Question 2 should not have been reversed.
The scope of the Lt. Governors Directive, and the
obligations it imposed on county election officials on Election
6 In that Order, Judge Koprowski upheld the Lt. Governorsdirectives and denied displaced voters the opportunity to casta Federal Write-In Absentee Ballot in lieu of a provisionalballot, thus depriving them of the opportunity to vote in localelections for which they were otherwise eligible (unless theyhad submitted a timely application for vote by mail ballot).
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Day throughout the State must be understood in order to address
the issues raised by Appellant-Intervenor. In interpreting a
directive issued by an administrative agency pursuant to an
Executive Order, courts take the same approach they employ when
construing regulations and statutes. The primary goal is to
give the directive or regulations the meaning intended by the
drafter as revealed by the language of the provision. In re
State Funeral Dir. Assn, 427 N.J. Super. 268, 273 (App. Div.
2012) (citing U.S. Bank, N.A. v. Hough, 210 N.J. 187, 210-211
(2012)). See also Slaughter v. Gov. Records Council, 413 N.J.
Super. 544 (App. Div. 2010) (looking to language of the preamble
of an executive order issued by the governor to determine
whether it was intended to be temporary) and Campo Jersey v.
Dir., Div. of Taxn, 390 N.J. Super. 366 (App. Div. 2007)
(noting that interpretation of regulations follows the
principles of statutory interpretation). This matter therefore
constitutes a question of statutory interpretation, which is
purely a legal issue. Tumpson v. Farina, ___ N.J. Super. ___,
___ (App. Div. 2013) (slip op., p. 13). Accordingly, this Court
owes no special deference to the trial courts legal
conclusions. Manalapan Realty v. Twp. Comm. Of Manalapan, 140
N.J. 366, 378 (1995).
Because it is the responsibility of the court when
interpreting a statute, regulation or other administrative
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directive to determine and implement the intent of the drafters,
it should look first to the plain language of the statute,
seeking further guidance only to the extent that the
Legislatures intent cannot be derived from the words it has
chosen. Bosland v. Warwick Dodge, Inc., 197 N.J. 543, 553
(2009) (quoting Pizzullo v. New Jersey Mfs. Ins. Co., 196 N.J.
251, 264 (2008)). That is, when the language is clear and
unambiguous, as is the case herein, the court need not look
beyond the regulation or directive itself; only where a literal
reading would lead to an absurd result should a court inform
its interpretation with extrinsic evidence of the meaning the
drafter has assigned. In re State Funeral Dir. Assn, supra,
427 N.J. Super. at 274. See also Mason v. Hoboken, 196 N.J. 51,
68 (2008) (noting that when the meaning of the words used is
clear, the courts analysis is complete). It is also an
established principle of statutory construction that the Lt.
Governors Directive must be read in its entirety, with each
part construed together with every other part to create a
harmonious whole. Burnett v. County of Bergen, 198 N.J. 408,
421 (2009).
A quick glance at the Directive herein at issue reveals
that the intent of the Lt. Governor in issuing this directive is
apparent on its face: that is, [i]n order to facilitate voter
participation, the Lt. Governor decided to expand[ ] the
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ability of displaced voters to 1. ...vote by provisional
ballot at any polling place in the State. (Ia79). This section
of the Directive, as noted supra at pp. 15-16, modified current
state law regarding provisional voting (by permitting inter-
county provisional ballots solely for displaced voters), but did
not change the current obligation of County Clerks to print and
distribute provisional and emergency ballots to each local
polling place in their respective jurisdiction only for the
ballot appearing on the electronic voting machine at that
precinct. That is, under both current law and the Directive,
each polling place was required to have an electronic machine
offering choices for all races and questions applicable to that
district but only that district and emergency and
provisional ballots, also offering choices for those same races
and questions. Each polling place was not, as the trial court
suggested, required to have a myriad of other ballot forms for
all other wards, municipalities, counties, etc. anywhere in the
state. Nothing in the Directive modified that.
The obligation of County Board of Elections to count such
provisional ballots cast by persons who declared themselves to
be displaced, however, did change. Specifically, pursuant to
1.b. of the Directive,
[i]f a voter casts a ballot in a countyother than the voters county ofregistration, the Board of Elections in
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receipt of the provisional ballot mustdeliver it to the Commissioner ofRegistration of the voters county of
registration by overnight mail or handdelivery. (Ia79)
Furthermore, in accord with 1.a., all [provisional] ballots
must be counted by the Board of Elections in the [displaced]
voters county of registration, and that Board must count the
votes cast for the offices of President and United States
Senator and on any statewide question; and . . . for any other
office or question for which the voter is otherwise eligible to
vote. Section 1.c. of the Directive. (Id.)
In this way, the ballots of displaced voters who voted
outside of their county of registration were deemed valid for
the first time, and votes cast for offices and questions for
which the voter was eligible (that appeared on the provisional
ballot on which they voted) were similarly counted. In
contrast, votes cast by such displaced voters for an office for
which the voter was not eligible, were not to be counted. To
illustrate this concretely, a voter from Monmouth Beach who was
displaced by the storm and voting in Woodbridge, would have
their presidential and senatorial votes counted. If that voter
voted on Woodbridge Township local races or questions, such
votes would not be counted.
Therefore, the language of Section 1.c.ii, when read in the
context of the entire Directive, does not support the trial
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courts finding that local election officials throughout the
State were obligated to provide displaced Hoboken voters, who
voted outside of the City of Hoboken, with provisional ballots
that included Hoboken Public Question No. 2. See also Judge
Koprowskis Order, dated November 7, 2012 (Ia211) (denying
petitioners and all similarly situated displaced voters the
right to receive a Federal Write-In Absentee Ballot, with the
opportunity to cast a vote on local races and public questions,
instead of a provisional ballot as ordered by the Lt. Governors
Directive). The trial courts ruling defies the plain language
of the directive by stating that there was an obligation on
every non-Hoboken polling place to have and distribute Hoboken
local ballots (and by implication, local ballots for everywhere
else in the state). That is incorrect. As such, since the 114
people who elected to vote outside Hoboken were not entitled to
vote a Hoboken local ballot, the Hudson County Board of
Elections did not erroneously reject 114 legal votes that were
not cast, as the trial court concluded; and accordingly, the
courts decision is wrong as a matter of law.
In addition, Appellant-Intervenor alleges that the trial
courts factual finding that 114 eligible Hoboken voters cast
provisional ballots outside of the City of Hoboken, without
ordering the production, in court, of the provisional ballot
affirmation statements and county registration records
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supporting that conclusion was arbitrary and capricious.
Pursuant to N.J.R. Evid. 1006 (Summaries), the contents of
voluminous documents, which cannot conveniently be examined in
court may be presented by a qualified witness in the form of a
chart, summary or calculation. The originals, or copies of
such documents, must be made available for examination by other
parties to the case, and the judge may order that they be
produced in court. Id.
Under the circumstances presented in this case, there is a
serious question whether a list of displaced voters provided via
the certification of counsel, without any explanation as to who
prepared the list and on which documents that person relied,
meets the presented by a qualified witness standard set forth
in N.J.R. Evid. 1006. Moreover, given the failure of the
Government Defendants to require Respondents-Petitioners to
produce or identify the specific affirmation statements and
other registration documents on which they relied when preparing
their summary chart/list, the trial court should not have based
its factual findings solely on the uncontested representations
of the one party who had an interest in overturning the
election. By doing so, the trial court simply failed to protect
the interests of the public, the majority of Hoboken voters who
voted No on the initiated referendum, and the opponents of the
proposed amendment to the Hoboken Rent Control Ordinance,
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including Ms. Fallick to whom the court had denied intervention
status.
II. MS. FALLICKS MOTION TO INTERVENE SHOULD
HAVE BEEN GRANTED.
On January 11, 2013, within one month of Petitioners-
Respondents commencement of their election contest and before
any substantive rulings had occurred in the case, the trial
court heard Ms. Fallicks motion to intervene, which had been
filed six days after institution of suit. The trial court
considered Ms. Fallicks application only under R. 4:33-1,
intervention as of right, and not R. 4:33-2, permissive
intervention, as she had requested (Ia223-224),7 and determined
that Ms. Fallick could not demonstrate that [she was] so
situated that a denial of intervention would impede [her]
ability to protect [her] claim of right. (1T18:4-7).
A review of the factual record established by Ms. Fallick
indicates that the trial courts application of the four
criteria for intervention as of right under R. 4:33-1 was
7 Rather the trial court appears to have conflated the four-prongtest set forth in R. 4:33-1, with the factors that are to beconsidered by the trial court when exercising its discretion
under R. 4:33-2. (1T17:16-25) Such factors include whethergranting the intervention will result in further undue delay,
will eliminate the probablility of subsequent litigation, andthe extent to which the grant therof may further complicatelitigation which is already complex.. Pressler, Current N.J.Court Rules, comment on R. 4:33-2 (2002).
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clearly erroneous, as was its holding that the trial court has
discretion to deny Ms. Fallick intervention under that Rule, in
contrast to the Rule governing permissive intervention.
(1T17:16-17). As this Court explained in American Civil
Liberties Union of New Jersey, Inc. v. County of Hudson, 352
N.J. Super. 44, 67 (App. Div. 2002), because the Rule governing
intervention as of right is not discretionary, a court must
approve an application for intervention as of right if the four
criteria are satisfied. (emphasis added) (citing Meehan v. K.D.
Partners, L.P., 317 N.J. Super. 563, 568 (App. Div. 1998). The
trial courts denial of Ms. Fallicks motion to intervene as of
right must thus be reviewed through the lens of a clearly
erroneous standard rather than an abuse of discretion one.
Contrast Id. at 67 (court must approve an application) with
id. at 65 (noting that [t]he grant or denial of a motion to
intervene based upon a movants compliance with R. 4:33-3 lies
within the sound discretion of the trial court and should not
be disturbed on appeal absent a clear showing of abuse of
discretion) and id. at 70 (The Rule governing permissive
intervention permits intervention at the trial courts
discretion).8
8 But see State v. Lanza, 39 N.J. 595, 600 (1963), cert. denied,375 U.S. 451 (1964), rehg denied, 376 U.S. 935 (1964) (wherethe 1963 N.J. Supreme Court created ambiguity with respect tothe standard of review of a motion to intervene as of right by
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Notwithstanding the trial courts blatant disregard of the
interests of Ms. Fallick, and the active opponents of the
landlord Petitioners proposed amendments to the Hoboken Rent
Control Ordinance, its decision regarding intervention has been
rendered moot. Since January 11, 2013, this Court has granted
Ms. Fallick the right to intervene as of right for the purpose
of appealing Judge Farringtons Decision setting aside the
results of the Local Referendum Election, and her Order
directing a new election. (Ia222). See also Warner Co. v.
Sutton, 270 N.J. Super. 464 (App. Div. 1994) (reversing denial
of environmental groups motion to intervene for purposes of
appealing amended consent order).
However, as this Court recently stated in Tumpson v.
Farina, supra, ___ N.J. Super. at ___ (slip op., p. 11), [e]ven
when issues presented are technically moot, the court may
address them on their merits when they involve matters of
particular public interest. (citations omitted). This is
especially true when the legal issue is one that is likely to
recur, yet likely to evade judicial review, as in the case
herein. Id. (citing N.J. Div. of Youth and Family Serv. v.
stating that the record presented does not establish Vito's
claimed right to intervene, under the applicable practicerules, R.R. 4:37-1, 3, 4, with sufficient clarity to warrant afinding that the trial court either erred as a strict matter oflaw or abused its discretion in denying the motion.) (emphasisadded).
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J.B., 120 N.J. 112, 118-119 (1990); In re Farrell, 108 N.J. 335,
347 (1987)).
There is little doubt that this appeal raises issues of
broad public interest concerning public question elections and
arises under circumstances likely to recur. Specifically,
although winning candidates in New Jersey are routinely
permitted to intervene in election contests brought by losing
candidates, there is no case law specifically permitting winning
proponents or opponents of public questions to intervene when
advocates on the losing side commence an election contest. Cf.
In re November 2, 2010 Gen. Election For Office of Mayor in
Borough of S. Amboy, Middlesex Cnty., 423 N.J. Super. 190 (App.
Div. 2011) (attorneys for losing candidate, winning candidate,
county election officials and amicus curiae each participated at
the trial court and on appeal).9 The rights of public question
opponents matter certainly raises an issue of great public
importance, and thus should be considered by this Court.
Tumpson v. Farina, supra, ___ N.J. Super. at ____(slip op., p.
11) (citations omitted). In other words, despite being
technically moot, there is still an adversary proceeding in
9 Opponents and proponents of public questions have been givenaccess to the courts to question other aspects of the publicquestion procedure, specifically, the language of the question.See McKenzie v. Corzine, 396 N.J. Super. 405 (App. Div. 2007).There is no principled reason why public question proponents oropponents should not have access to the courts at other phases
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which the Court should provide future guidance as to when
intervention by advocates for or against a public question is
appropriate.
Rule 4:33-1 states in pertinent part:
Upon timely application anyone shall bepermitted to intervene in an action if theapplicant claims an interest relating to theproperty or transaction which is the subjectof the action and he is so situated that thedisposition of the action may as a practicalmatter impair or impede his ability toprotect that interest, unless theapplicants interest is adequately
represented by the existing parties.(emphasis added)
This Rule has been judicially translated into a four-prong test,
which was clearly delineated in Chesterbrooke Ltd. Partnership
v. Planning Bd., 237 N.J. Super. 118, 224 (App. Div), certif.
denied, 118 N.J. 234 (1989). The four intervention as of right
criteria include whether the movant has made a timely
application to intervene, which some courts have determined also
includes whether the granting of the motion will unduly delay
or prejudice the rights of the original parties. See ACLU v.
County of Hudson, supra, 352 N.J. Super. at 69-70; Atlantic
Employers Ins. Co. v. Tots & Toddlers Pre-School Day Care Ctr.,
239 N.J. Super. 276, 280 (App. Div.), certif. denied. 122 N.J.
147 (1990) (citation omitted). This latter undue delay or
prejudice factor, however, only appears in the language found
of the public question, such as a contest of its results.
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in the rule governing permissive intervention, R. 4:33-2, and
should not justify denying a motion to intervene as of right.
In any case, R. 4:33-1 is to be construed liberally, and as
noted above, is not discretionary. That is, a court must
approve an application for intervention as of right if the four
criteria embedded in the rule are satisfied. Meehan v. K.D.
Partners, L.P., supra, 317 N.J. Super. at 568.
Where intervention of right is not permitted, an applicant
may also obtain permission to intervene under R. 4:33-2:
Upon timely application anyone may bepermitted to intervene in an action if hisclaim or defense and the main action have aquestion of law and fact in common.. . . Inexercising its discretion the court shallconsider whether the intervention willunduly delay or prejudice the adjudicationof the rights of the original parties.(emphasis added)
This Rule should also be construed liberally by trial courts,
with special attention to whether the intervention will cause
undue delay or prejudice to the original parties. ACLU v.
County of Hudson, supra, 352 N.J. Super. at 70 (citation
omitted).
In the instant matter, Appellant Fallick asserts that the
trial courts denial of her motion to intervene was erroneous
under either rule. She satisfied the four criteria of R. 4:33-1
and should have been granted the right to intervene. Similarly,
she satisfied the factors required for the grant of permissive
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intervention, and accordingly, the trial court abused its
discretion when denying her intervention under that rule as
well.
Interest Relating to Property or Transaction
In her oral decision, Judge Farrington held that as a
single voter, Ms. Fallick could not distinguish herself and
her claim of right [from] any other voter that is interested in
the fair and just election results. (1T18:8-13). R. 4:33-1,
however, simply requires that the movement claim an interest
relating to the property or transaction which is the subject of
the action. See Atlantic Employers Ins. Co. v. Tots & Toddlers
Pre-School Day Ctr., supra, 239 N.J. Super. at 280 (where court
held that plaintiffs in a tort action had a sufficient interest
in the terms of their defendants insurance policy to warrant
intervention in a second action brought by the insurance company
against those defendants).
Ms. Fallicks certification accompanying her Notice of
Motion and her testimony before the trial court clearly
demonstrate such interest. (Ia33-36; 1T9:18-24). First, Ms.
Fallick indicates that she was active in the organized Fair
Housing Association campaign opposing Hoboken Public Question
No. 2. That is, Ms. Fallick was not just another voter, but in
effect the winning candidate in a public question election.
Her interest in the subject matter of this litigation was not
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simply ensuring fair election results, as the court noted, but
to make sure that the proposed rent regulation amendments at
issue in this election did not get enacted. In this way, her
interest as a rent control advocate related to the subject
matter of this litigation and justified intervention as of
right. See Warner Co. v. Sutton, 270 N.J. Super. 658 (App. Div.
1994) (where interest of environmental groups in protecting open
spaces and the environment, and preserving wildlife supported
intervention as of right in zoning dispute).
Secondly, Ms. Fallick is not just a rent-control advocate,
but she personally resides in a rent control apartment that
would be subject to relaxation of current regulations if the
Election Results are reversed. (Ia33). As such, she has a
direct economic interest in the litigation. See e.g., V.W.
Credit v. Coast Auto Group, 346 N.J. Super. 246, 255-256 (App.
Div.), certif. denied, 172 N.J. 178 (2002) (considerable
investment made by proposed assignee of franchise considered
adequate interest to warrant intervention); Cold Indian Springs
Corp. v. Ocean Twp., 154 N.J. Super. 75, 88 (Law Div. 1977),
affd, 161 N.J. Super. 586 (App. Div. 1978), affd, 81 N.J. 502
(1980) (individual tenants who had sufficient financial
interest in their landlords constitutional challenge to the
tenant property tax rebate permitted to intervene on behalf of
all tenants in apartment buildings owned by plaintiffs).
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Finally, Ms. Fallick has served on the Hoboken Rent
Leveling Board for many years and through her participation as a
tenant representative on that Board has an additional interest
in the current litigation. (Ia33; 1T9:18-19).
Together, each of these facts demonstrates that Ms. Fallick
has a sufficient interest in this election contest to justify
intervention.
Disposition of Action May Impair Ability to Protect Interest
The trial court additionally concluded that [t]o preclude
[Ms. Fallick] from intervention does not impede the right of a
fair and just election result. (1T18:14-15). Unfortunately,
the court did not specify the facts on which it based this
conclusion.
As noted above, Ms. Fallicks interest was to preserve the
current Election Results, and to make sure that Petitioners-
Respondents did not illegally overturn the election. She
specifically argued:
Democracy shouldnt have an admission fee.
If both sides are not represented, we, thecertified winners, have no justice. I amstepping up to do everything in my personalpower to make sure that that doesnt happen.
(1T11:4-8).
Furthermore, denial of her intervention prevented Ms.
Fallick from receiving, pursuant to N.J.R. Evid. 1006, copies of
all the provisional ballot affirmation statements and
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registration records on which Petitioners relied in preparing
their list of 114 Displaced Hoboken Voters Who Voted Outside of
Hoboken. Her inability to secure that list of voters and the
supporting documents significantly impaired Ms. Fallicks
ability to challenge the accuracy of the list and protect her
interest. The Appellate Divisions subsequent decision to grant
her intervention status for purpose of appeal does not change
this consideration.
Interest Not Adequately Represented
With respect to the third prong of the Chesterbrooke test,
the trial court found that Ms. Fallick did not demonstrate that
her interests were not adequately represented. Specifically,
Judge Farrington stated: In addition to attorneys present at
counsel table, attorneys have . . . appeared that represent
that[sic] both the County Clerk and City of Hoboken for the
affirmation of the election results. (1T18:16-24). From the
record it is not clear if the Attorney General, who represented
the Hudson County Board of Elections and the Superintendent of
Elections was also present at the counsel table, because only
counsel for Petitioners-Respondents made an appearance for
purposes of the Transcript.
Nonetheless, at the time of the hearing, no Government
Defendant had filed an Answer or Motion to Dismiss and as Ms.
Fallick stated, it was unclear whether and to what extent the
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other defendants will promptly and vigorously oppose the
election contest . . . with a view to upholding the election
results as published by the County Clerk. (Ia34).
Moreover, as a policy matter, all the Government Defendants
are neutral parties in the election process, and accordingly,
[t]he over eight thousand citizens that voted against the
ballot question, and won, d[id] not have a representative at the
table. (1T10:19-23). This lack of representation clearly
became apparent as the Government Defendants permitted
Petitioners to undertake one-sided discovery, and made no effort
to determine whether Petitioners trial exhibits were accurate.
There is little doubt that in election matters, the interests of
winners and losers are distinct from the government, which is
supposed to be a neutral administrator of elections. Compare
Cold Indian Springs Corp. v. Ocean Twp., 154 N.J. Super. 75, 88
(Law Div. 1977), affd, 161 N.J. Super. 586 (App. Div. 1978),
affd, 81 N.J. 502 (1980) (where tenants were permitted to
intervene in matter initiated by their landlord, even though
they both were ostensibly seeking the same result) with Asbury
Park v. Asbury Park Towers, 388 N.J. Super. 1, 12 (App. Div.
2006) (City adequately represented the interests of developer,
where City had fiduciary obligations to pay fair market value in
condemnation proceeding and developer, who would ultimately pay
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for that property, had contractual right to approve the
appraiser the City used).
Furthermore, it is clear that lack of public resources to
properly litigate this matter meant that the Government
Defendants could not, were not willing to, and/or did not
represent Ms. Fallicks interests in this matter. For this
reason, the trial court, without factual support, wrongfully
denied Ms. Fallick the opportunity to represent her own
interests. Cf. City of Paterson v. Paterson General Hospital,
97 N.J. Super. 514, 528 (Ch. Div. 1967) (where sporadic
supervision of charitable corporations by the New Jersey Office
of the Attorney General justifies as a matter of policy
permitting persons with special interests in such corporations
to bring charitable enforcement actions on their own).
Application is Timely
A key consideration in a motion to intervene is whether the
movant acted with diligence and promptness. Hanover Twp. v.
Town of Morristown, 116 N.J. Super. 136, 143 (Ch. Div.), affd,
121 N.J. Super. 536 (App. Div. 1972). As the court wrote in
Hanover Twp.,
One who is interested in pending litigationshould not be permitted to stand on thesidelines, watch the proceedings and expresshis disagreement only when the results ofthe battle are in and he is dissatisfied.
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Id. The trial court in this matter simply did not discuss the
timeliness of Ms. Fallicks application. No one denies that Ms.
Fallick filed her motion to intervene six (6) days after
Petitioners-Respondents commenced their lawsuit, and before the
court made any substantive rulings. See ACLU v. County of
Hudson, supra, 352 N.J. Super. at 44 (where United States filed
its motion to intervene one month of the institution of the
suit, and before any substantive rulings had occurred in the
case, motion considered timely). There is no indication in the
record that she delayed her response to the Petition, or
exhibited a lack of good faith. Indeed, acknowledging the fact
that election cases are heard at a different pace than typical
actions, Ms. Fallick did not designate a date on which her
motion should be heard, leaving that to the discretion of the
trial judge. (Ia23). Accordingly, one can say, without doubt,
that she acted diligently and with promptness thus satisfying
this prong as well.
Common Defense
There is also little doubt that Ms. Fallick shared a common
defense with the Government Defendants, who seemingly were
interested in defending the certified Election Results published
by the County Clerk. However, given the fact that none of the
Government Defendants filed an Answer, one cannot support this
conclusion with any documentary evidence. Furthermore, because
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the trial judge did not discuss whether Ms. Fallick was entitled
to permissive intervention, the trial court did not provide any
findings of fact or explanation with respect to this factor to
which this Court can defer.
No Undue Delay or Prejudice to Original Parties
On the other hand, the Court did find that given that this
case was an election matter, that is intended to be resolved
quickly, intervention would unnecessarily further delay the
action, primarily because discovery, in terms of the ballot
issues is virtually complete. (1T19:1-5). This conclusion is
completely unjustified. Ms. Fallick filed her motion on
December 18, 2012, the same day that the trial judge entered a
scheduling Order in this matter. (Ia21-22). Aware of the
truncated discovery period contained in that Order, the trial
judge should have heard Ms. Fallicks motion soon thereafter
instead of hearing the motion to intervene almost three weeks
after it was filed. This was a judicially managed election
case, and it is simply unfair to impose on Ms. Fallick, a pro-se
litigant, a scheduling decision that did not result in her
motion being heard on an emergent basis. This is especially the
case, when Ms. Fallick did not stipulate the date her motion
should be heard on the face of the Notice.
Moreover, this case did not involve traditional discovery
between the parties including interrogatories, depositions or
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extensive document requests. Instead, discovery in this case
primarily involved the one-way production of public documents
from the Government Defendants to the Petitioners, and there is
no reason to believe that sharing those documents with Ms.
Fallick would have caused any delay. In fact, if Ms. Fallick
had known the identity of the 114 voters who Petitioners claimed
were disenfranchised, she could have secured the affirmation
statements and registration records of those individuals
pursuant to OPRA, and received them within seven (7) business
days. N.J.S.A. 47:1A-5(i). In this way, permitting Ms. Fallick
to intervene and to secure copies of those public documents
either pursuant to N.J.R. Evid. 1006, traditional discovery
requests or OPRA would not have caused any delay or prejudice
the rights of Petitioners.
No Further Complication
A final consideration when determining a motion to
intervene under R. 4:33-2 is the extent to which the grant
thereof may further complicate litigation which is already
complex. Because the trial court did not discuss this factor,
there are no factual findings to which this Court can defer.
Nonetheless, a review of the pleadings in this matter do not
indicate that this litigation is particularly complex, and that
permitting Ms. Fallick to intervene would further complicate
matters. Indeed, as Ms. Fallick argued,
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I do have, as Ive stated, experience in a
quasi-judicial environment of the RentLeveling Board and, although not stated inthe papers, I had ten years as a businessrepresentative with a labor union, so I
frequently participated in artibrations,preparing evidence, preparing witnesses.So, I dont believe that I will slow downthe process so tremendously.
(1T11:9-16). For sure, Ms. Fallicks experience as a member of
the Hoboken Rent Leveling Board makes it highly unlikely that
her participation in this matter, albeit pro se, would have
created any confusion or made things more complicated.
In short, Ms. Fallick thus satisfied all four criteria for
intervention as of right; consideration of additional factors
also weighed in favor of granting her permissive intervention.
As a result, it is apparent that the trial court erred when
denying Ms. Fallick intervention under either rule, thereby
justifying her request to overturn the trial courts ruling on
her motion.
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CONCLUSION
For the foregoing reasons, the trial courts decision
overturning the Election Results for Hoboken Public Question No.
2 should be reversed, and the trial courts denial of
intervention to Appellant Intervener Cheryl Fallick should also
be reversed.
Respectfully submitted,
Rene Steinhagen, Esq.
--and--
Flavio Komuves, Esq.Co-Counsel for Cheryl Fallick