NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4131-15T3
NEW JERSEY ELECTION LAW
ENFORCEMENT COMMISSION,
APPROVED FOR PUBLICATION
Petitioner-Appellant,
September 8, 2017
v.
APPELLATE DIVISION
JOSEPH DIVINCENZO and
JORGE MARTINEZ,
Respondents-Respondents.
_______________________________
Argued November 1, 2016 – Decided September 8, 2017
Before Judges Messano, Espinosa and Suter.
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).
The opinion of the court was delivered by
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.
I.
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
2 A-4131-15T3
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.
3 A-4131-15T3
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
4 A-4131-15T3
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.
1
ELEC conceded it could not convene or take action based upon
the participation of one commissioner.
5 A-4131-15T3
II.
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
6 A-4131-15T3
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."
A.
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
2
In support of their argument that ELEC lacks standing to appeal,
respondents rely upon cases from other jurisdictions that are
distinguishable because they concern whether an agency may appeal
a decision affecting the rights of third-parties rather than the
issue here: whether an agency has the right to appeal a decision
that dictates how the agency itself may operate.
7 A-4131-15T3
(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.
B.
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":
8 A-4131-15T3
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. at 282 (quoting Baker, supra, 369 U.S.
at 217, 82 S. Ct. at 710, 7 L. Ed. 2d at 686).]
The question presented here is one of statutory
interpretation and does not implicate any of the criteria for a
nonjusticiable controversy identified by the Court in Gilbert.
Ibid. Contrary to respondents' attempt to characterize it
otherwise, our resolution of that question does not intrude upon
the powers of other branches of government.
III.
We begin our review of the merits of the appeal by examining
the scope of the ALJ's authority to issue an initial decision,
relative to the decisional authority of the administrative agency.
Before the OAL was established in 1979, "most hearings were
conducted by hearing examiners who were usually agency employees,"
compromising the appearance of "fairness and impartiality." In
9 A-4131-15T3
re Kallen, 92 N.J. 14, 22 (1983). The OAL was established to
address this problem:
The major change effected was to replace
agency hearing officers with a new group of
independent hearing officers, i.e.,
"administrative law judges." The ALJs now
perform essentially the same functions that
hearing examiners formerly performed in
contested cases. They conduct the hearings,
make recommended factual findings, and
recommend decisions to the agency heads.
[Id. at 22-23 (citing N.J.S.A. 52:14B-10; S.
State Gov't, Fed, & Interstate Relations &
Veterans Affairs Comm., Statement to S. 766
(May 1, 1978); In Re Unif. Admin. Procedure
Rules, 90 N.J. 85, 91 (1982): Unemployed–
Employed Council of N.J., Inc. v. Horn, 85
N.J. 646, 650 (1981)).]
Like the hearing examiners they replaced, ALJs derive their
authority to hear a contested case from the agency. N.J.A.C. 1:1-
3.2(a) states, in pertinent part:
The Office of Administrative Law shall acquire
jurisdiction over a matter only after it has
been determined to be a contested case by an
agency head and has been filed with the Office
of Administrative Law . . . . The Office of
Administrative Law shall not receive, hear or
consider any pleadings, motion papers, or
documents of any kind relating to any matter
until it has acquired jurisdiction over that
matter . . . .
[(Emphasis added).]
"While the statute creating the OAL focuse[d] on the integrity
of the hearing function," King v. N.J. Racing Comm'n, 103 N.J.
10 A-4131-15T3
412, 420 (1986), "the Legislature intended no alteration of the
regulatory authority or basic decisional powers of administrative
agencies," In Re Unif. Admin., supra, 90 N.J. at 94. The
Legislature preserved "agency jurisdiction and regulatory
responsibility," with the agency retaining "the exclusive right
ultimately to decide these cases." King, supra, 103 N.J. at 420.3
It is the head of the agency who "determine[s] whether a case
is contested," N.J.S.A. 52:14F-7(a), and makes the decision
whether to refer the matter to the OAL or "to conduct the hearing
directly and individually," N.J.S.A. 52:14F-8(b). The agency is
not required to transfer the matter to the OAL or adopt any of the
ALJ's findings or conclusions.4 See Kallen, supra, 92 N.J. at 20
(citing N.J.S.A. 52:14B-10(c)).
ALJs "have no independent decisional authority." In re Unif.
Admin., supra, 90 N.J. at 94. Because the agency's ultimate
3
See also N.J.S.A. 52:14B-10(c) (gives the head of an agency the
power to "adopt, reject or modify the recommended report and
decision" of an ALJ); N.J.S.A. 52:14F-7(a) (APA "shall [not] be
construed to deprive the head of any agency of the authority . . .
to determine whether a case is contested or to adopt, reject or
modify the findings of fact and conclusions of law of any" ALJ);
N.J.S.A. 52:14F-8(b) (providing that no ALJ shall hear a contested
case in which the agency head has determined "to conduct the
hearing directly and individually").
4
Apart from appeals by a law enforcement officer or firefighter,
no individual or entity may file a request for a contested hearing
with the OAL. N.J.A.C. 1:1-3.1(b).
11 A-4131-15T3
decisional authority "is directly and integrally related to its
regulatory function," any attempt by an ALJ "to exercise such
authority would constitute a serious encroachment upon an agency's
ability to exercise its statutory jurisdiction and discharge its
regulatory responsibilities." Ibid. An agency's regulatory
responsibilities extend to its decisions in individual contested
cases:
While a contested case deals only with an
individual dispute, its resolution
necessarily reflects the agency's public
policy, for "[i]n effect, an agency engages
in ad hoc rulemaking every time it decides a
contested case . . . . Thus, the agency's
decisional authority over contested cases is
directly and integrally related to its
regulatory function."
[Kallen, supra, 92 N.J. at 21 (alterations in
original) (quoting In re Unif. Admin., supra,
90 N.J. at 93-94).]
The Supreme Court has acknowledged that ALJs are to be
accorded independence in executing their "certain important
responsibilities . . . to conduct hearings, make factual findings,
and recommend decisions in contested cases for the various State
agencies." In re Unif. Admin., supra, 90 N.J. at 94 (emphasis
added) (citing N.J.S.A. 52:14F-5(n)).
The ALJs' responsibilities — to conduct hearings, make
factual findings and recommend decisions – frame the scope of
their authority. So, in In re Tenure Hearing of Onorevole, 103
12 A-4131-15T3
N.J. 548, 556 (1986), the Court found it appropriate, in light of
the need for the ALJ to control the proceedings, to recognize the
OAL's authority to make an initial decision on the disqualification
of an attorney on ethics grounds. The Court noted, however, that
all such decisions "would be subject to appropriate judicial
review, whether on an interlocutory basis or otherwise." Ibid.
As a result, "an initial ruling by the OAL would [not] in any way
nullify or frustrate the exclusive authority of th[e] Court as to
such matters." Ibid.
When, however, an ALJ's initial decision preempted the
agency's final determination in Kallen, the Court reached a
different conclusion. The Deputy Director of the agency ordered
a remand to the OAL for additional evidence to be received and
considered after the ALJ issued his initial decision. Kallen,
supra, 92 N.J. at 19. The ALJ claimed he had the authority to
refuse to comply with the Director's order of remand. Ibid. The
Court observed, "if the ALJ's attempt to resist the remand were
upheld, . . . the ALJ's unilateral act would have effectively
predetermined, if not preempted, the Director's final decision,
thereby seriously impinging upon the regulatory prerogatives of
the agency." Id. at 23. The Court concluded, "the Director here,
not the ALJ, had the final decisional authority. Hence, the ALJ
13 A-4131-15T3
had no authority to refuse to obey the Director's Order of Remand."
Ibid.
In Jones v. Department of Community Affairs, Division of
Codes and Standards, Bureau of Rooming and Boarding House
Standards, 395 N.J. Super. 632 (App. Div. 2007), we considered
whether an ALJ could rule upon a constitutional issue in an initial
decision. In holding an ALJ may do so, we identified certain
conditions that provide appropriate parameters for such a
decision. Id. at 636-37. We held an ALJ may do so (1) "to the
extent the issues arise legitimately in the context of the
contested case hearing and are necessary for a complete disposition
of any genuine issue in the contested case" and subject to (2)
"the agency head's authority to make the final decision in the
case" and (3) "judicial review." Id. at 636.
Although it is arguable that the question regarding the
applicable quorum rule arose legitimately in the context of the
contested case here, the other safeguards we cited in Jones are
notably absent if foreclosed by the deemed-adopted provision. 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. As we have noted, it is only
through the agency's exercise of jurisdiction that the ALJ derives
any authority to hear a contested case. The ALJ's initial decision
14 A-4131-15T3
dictated the parameters of the agency's jurisdiction and concluded
the agency lacked jurisdiction. 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.
IV.
"Judicial review of administrative agency action is a matter
of constitutional right in New Jersey." In re Proposed Quest
Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 383
(2013) (citing N.J. Const. art. VI, § 5, ¶ 4). Pursuant to that
constitutional provision, the Supreme Court adopted Rules 2:2-3
and 2:2-4, vesting the Appellate Division with exclusive
jurisdiction for the review of administrative agency action and
inaction, Prado v. State, 186 N.J. 413, 422 (2006); Pascucci v.
Vagott, 71 N.J. 40, 52 (1976), "with the intention that every
proceeding to review the action or inaction of a state
administrative agency would be by appeal to the Appellate
Division," Beaver v. Magellan Health Servs., Inc., 433 N.J. Super.
430, 441 (App. Div. 2013) (quoting Cent. R.R. Co. of N.J. v. Neeld,
26 N.J. 172, 185, cert. denied, 357 U.S. 928, 78 S. Ct. 1373, 2
L. Ed. 2d 1371 (1958)), certif. denied, 217 N.J. 293 (2014); Found.
for Fair Contracting, Ltd. v. N.J. State Dep't of Labor, 316 N.J.
15 A-4131-15T3
Super. 437, 451 (App. Div. 1998) ("An appeal from administrative
agency action is exclusively cognizable in the Appellate
Division.").
The exclusivity of our jurisdiction may not be circumvented
by framing a claim as one ordinarily presented in the trial court,
such as actions in lieu of prerogative writs or declaratory
judgments, or through procedural maneuvers such as consolidating
an administrative action with a legal action in the trial court.
Beaver, supra, 433 N.J. Super. at 441-42; Mutschler v. N.J. Dep't
of Envtl. Prot., 337 N.J. Super. 1, 9 (App. Div.), certif. denied,
168 N.J. 292 (2001); Pressler & Verniero, Current N.J. Court Rules,
comment 3.2.1 on R. 2:2-3 (2017); see also Prado, supra, 186 N.J.
at 423-24 (reversing Appellate Division decision that found
exception to Rule 2:2-3(a)(2) exclusive jurisdiction on efficient
judicial administration grounds when a case was already pending
in the Law Division).
The Constitution also vests the Supreme Court and the
Appellate Division with "such original jurisdiction as may be
necessary to the complete determination of any cause on review."
N.J. Const. art. VI, § 5, ¶ 3; see also R. 2:10-5; In re Polk, 90
N.J. 550, 577-578 (1982) (noting, despite the absence of an
"express grant of jurisdiction . . . to revise an administrative
16 A-4131-15T3
sanction on the grounds of excessiveness," the Court could exercise
its original jurisdiction to do so).
Therefore, even when a dispute has been "improvidently
brought before [us]," we may elect to exercise original
jurisdiction "in the public interest." Nat. Med., Inc. v. N.J.
Dep't of Health & Senior Servs., 428 N.J. Super. 259, 267 (App.
Div. 2012) (citation omitted) (finding the Department of Health's
refusal to accept an application from appellants was so effectively
dispositive of the case as to be functionally akin to a final
judgment, permitting its appeal without an ensuing order); Vas v.
Roberts, 418 N.J. Super. 509, 524 (App. Div. 2011) (exercising
jurisdiction although the proper forum for challenging actions of
the Speaker of the General Assembly was the Law Division); see
also In re Election Law Enf't Comm'n Advisory Op. No. 01-2008, 404
N.J. Super. 29, 39 n.6 (App. Div. 2008) (stating we regarded the
advisory opinion on appeal as analogous to a final declaratory
judgment, and "[i]f it were not, we would grant leave to appeal
in light of the public importance of the issue"), aff’d, 201 N.J.
254 (2010).
"[T]he exercise of original jurisdiction is appropriate when
there is 'public interest in an expeditious disposition of the
significant issues raised.'" Price v. Himeji, LLC, 214 N.J. 263,
294 (2013) (quoting Karins v. City of Atlantic City, 152 N.J. 532,
17 A-4131-15T3
540-41 (1998)). In determining whether to exercise original
jurisdiction, we "must weigh considerations of efficiency and the
public interest that militate in favor of bringing a dispute to a
conclusion, [and] also must evaluate whether the record is adequate
to permit the court to conduct its review." Id. at 295. It is
particularly appropriate to exercise original jurisdiction "to
avoid unnecessary further litigation, as where the record is
adequate . . . and . . . the issue to be decided is one of law and
implicates the public interest." Vas, supra, 418 N.J. Super. at
523-24 (citations omitted).
The issue here is purely one of law, with no further need to
develop the record. As we observed in ELEC I, supra, 445 N.J.
Super. at 196-97, this matter also presents an issue of significant
public interest because "the public has a substantial interest in
the enforcement of the Act" and the controversy "pit[s] two clearly
enunciated legislative objectives against each other: the primacy
of an administrative agency to render the final decision in a
contested case . . . and the importance of precluding unnecessary
delay in" agency action.
This appeal presents a third dimension, of constitutional
import, because, if the restriction imposed by N.J.S.A. 52:14B-
10(c) ends all possibility of review by this court, the application
of the deemed-adopted provision would tacitly, but effectively,
18 A-4131-15T3
thwart the exercise of the Appellate Division's exclusive
jurisdiction.
Because "judicial review of administrative agency
determinations has the support of a special constitutional
provision," it is "largely immunize[d] from legislative curbs."
In re Senior Appeals Exam'rs, 60 N.J. 356, 363 (1972). Observing
that, in New Jersey, "judicial review has been most freely
available with the least encumbrance of technical apparatus," the
Court reviewed federal decisions "where Congress admittedly has
much broader power to preclude judicial review of agency
determinations." Ibid. (citation omitted).
We derive the following principles from that review.
"[Legislative] intent to preclude judicial review [is] not to be
lightly inferred, . . . reviewability [is] the rule, and . . .
nonreviewability [is] 'an exception which must be demonstrated.'"
Id. at 364 (quoting Burlow v. Collins, 397 U.S. 159, 166, 90 S.
Ct. 832, 838, 25 L. Ed. 2d 192, 199 (1970)). "[J]udicial review
of a final agency action by an aggrieved person will not be cut
off unless there is persuasive reason to believe that such was the
purpose of [the Legislature]." Ibid. (quoting Abbott Labs. v.
Gardner, 387 U.S. 136, 140, 87 S. Ct. 1507, 1511, 18 L. Ed. 2d
681, 686 (1967)).
Even before its amendment in 2014, the "evil" the deemed-
19 A-4131-15T3
adopted provision "was designed to remedy" was "[a]gency delay and
inaction." King, supra, 103 N.J. at 421. By instituting an
automatic approval provision triggered by agency inaction within
the designated period of time, N.J.S.A. 52:14B-10(c) was designed
"to thwart undue delay in agency action" and "encourage prompt
consideration and disposition of contested cases." Id. at 419.
There is nothing in the language of the statute or its legislative
history to support the notion that the Legislature intended to
preclude judicial review of an ALJ's initial decision that was
made final pursuant to the deemed-adopted provision when the agency
was unable to discharge its decisional authority as a result of
unfilled vacancies.5 We will not infer such intent, which would
subvert our constitutionally-sanctioned mandate, where it has not
been clearly demonstrated. See In re Senior Appeals Exam'rs,
supra, 60 N.J. at 363.
We are unpersuaded by respondents' argument that allowing
5
There is also some support for this conclusion in cases decided
before the 2014 amendment to N.J.S.A. 52:14B-10(c). See, e.g.
King, supra, 103 N.J. at 424; Newman v. Ramapo Coll. of N.J., 349
N.J. Super. 196, 204 (App. Div. 2002); Mastro v. Bd. of Trs., Pub.
Emps.' Ret. Sys., 266 N.J. Super. 445, 452 7.1 (App. Div. 1993)
(noting "[i]f an agency has no power to reconsider an ALJ's
decision which has been automatically approved pursuant to
N.J.S.A. 52:14B-10(c), it is arguable that the agency should be
allowed to appeal to this court to seek reversal of a manifestly
erroneous decision").
20 A-4131-15T3
this appeal to proceed permits ELEC to circumvent the time
restrictions of N.J.S.A. 52:14B-10(c). Although we recognize
that, as amended, the deemed-adopted provision "does not provide
a safe harbor for an agency that is unable to act within the
prescribed period through no fault of its own," ELEC I, supra, 445
N.J. Super. at 198, it is important to note the record is devoid
of any effort by ELEC to evade the time restrictions of the
statute. To the contrary, it sought emergent relief in an attempt
to toll the time period until it had a sufficient number of members
to act and even filed a timely appeal through its staff to preserve
its right to appeal the deemed-adopted provision. In short, "there
is no indication of bad faith, inexcusable negligence, or gross
indifference on the part of the Commission." King, supra, 103
N.J. at 421.6 The transcendent issue is not whether ELEC sought
to circumvent the restrictions of the statute; it is whether our
exclusive jurisdiction to review agency action may be circumvented
by an ALJ's decision that denies the agency its authority to act
and has become final through the deemed-adopted provision. Under
the unusual circumstances of this case, we hold that it may not.
6
It is clear that, prior to the 2014 amendment, the record here
would have militated against the application of the deemed-adopted
provision. See id. at 420-23.
21 A-4131-15T3
V.
We turn to the substantive issue here, whether there was a
legal quorum for the authorization of the complaint. In addition
to arguing an insufficient number of members voted, respondents
argue the vote was defective because the voting members were not
affiliated with two different political parties.7 We reject both
these arguments.
A.
The question regarding the requisite number of voting members
turns on whether the common law quorum rule applies or the Act
establishes a different quorum requirement for the authorization
of a complaint.
In ELEC I, supra, we described the operation of the common
law quorum rule:
Under the common law quorum rule, "a majority
of all the members of a municipal governing
body constitute[s] a quorum; and in the event
of a vacancy a quorum consists of a majority
of the remaining members." Ross v. Miller,
115 N.J.L. 61-63 (1935); see also Matawan
Reg'l Teachers Ass'n v. Matawan-Aberdeen Reg'l
Sch. Dist. Bd. of Educ., 223 N.J. Super. 504,
507 (App. Div. 1988) ("At common law, a
majority of a public body constitutes a
7
Respondents also argue the Commission lacked subject matter
jurisdiction over their case because it had no power to render a
final decision due to the vacancies on the Commission. In light
of our decision that the Commission had a legal quorum, we need
not address this argument.
22 A-4131-15T3
quorum."). In King, supra, 103 N.J. at 418,
our Supreme Court addressed statutory quorum
language mirroring the common law quorum rule,
finding:
[I]t is not relevant whether a
member is physically absent, is
disqualified because of interest,
bias, or prejudice, or other good
cause, or voluntarily recuses
herself or himself. A member who
is disqualified from participating
in a particular matter may not be
counted in determining the presence
of a legal quorum.
[445 N.J. Super. at 199-200 (alterations in
original).]
Thus, under the common law quorum rule, any position left
vacant, either by death or recusal due to conflict of interest,
is not counted to determine what the legal quorum is. "[W]here a
quorum exists, a majority of those present are authorized to take
action." Abbott v. Burke, 206 N.J. 332, 372 (2011); accord Ross,
supra, 115 N.J.L. at 63. 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.
We also observed,
The common law rule applies absent a
"pertinent statute to the contrary." King v.
N.J. Racing Comm'n, 205 N.J. Super. 411, 415,
(App. Div. 1985), rev'd on other grounds, 103
N.J. 412 (1986). See Hainesport Twp. v.
Burlington Cnty. Bd. of Taxation, 25 N.J. Tax
138, 147 (Tax. 2009) (discussing statutes
requiring a "majority of all the members" as
23 A-4131-15T3
"evidenc[ing] a legislative intent to modify
the common law rule"); see also 1991 Formal
Op. Att'y Gen. N.J. No. 3 (May 7, 1991) ("Laws
which define a quorum as a majority or larger
percentage of 'all the members' or of 'the
authorized membership,' or words to that
effect, must . . . be read as requiring a
fixed number of members which remains constant
despite any vacancies.").
[ELEC I, supra, 445 N.J. Super. at 200
(alterations in original).]
"[A] statute in derogation of the common law must be strictly
construed . . . ." Ross, supra, 115 N.J.L. at 64. However, "this
rule will not be permitted to defeat the obvious purpose of the
[L]egislature, or lessen the scope plainly intended to be given
to the measure." Ibid.
The statutory language at issue is contained in N.J.S.A.
19:44A-22, which addresses violations and civil penalties under
the Act and provides, in pertinent part:
b. Upon receiving evidence of any
violation of this section, [ELEC] shall have
power to hold, or to cause to be held under
the provisions of subsection d. of this
section, hearings upon such violation and,
upon finding any person to have committed such
a violation, to assess such penalty, within
the limits prescribed in subsection a. of this
section, as it deems proper under the
circumstances, which penalty shall be paid
forthwith into the State Treasury for the
general purposes of the State.
. . . .
24 A-4131-15T3
d. The commission may designate a
hearing officer to hear complaints of
violations of this act. Such hearing officer
shall take testimony, compile a record and
make factual findings, and shall submit the
same to the commission, which shall have power
to assess penalties within the limits and
under the conditions prescribed in subsections
b. and c. of this section. The commission
shall review the record and findings of the
hearing officer, but it may also seek such
additional testimony as it deems necessary.
The commission's determination shall be by
majority vote of the entire authorized
membership thereof.
[(Emphasis added).]
It is undisputed that the underlined language constitutes a
departure from the common law quorum requirement and requires
three votes of the entire authorized membership of four. ELEC I,
supra, 445 N.J. Super. at 200. Therefore, at least three of the
four commissioners must vote on any "determination" to which that
language applies. The Commission argues this requirement applies
to decisions on violations and determinations of penalties.
Respondents argue the fixed quorum requirement applies to all
enforcement actions, including authorizing the issuance of a
complaint.8
8
Respondents also contend the parties disagree about which
section of the Act the Commission was acting under when it
authorized the complaint. Our review reveals no such disagreement.
The complaint was issued pursuant to N.J.S.A. 19:44A-22.
25 A-4131-15T3
The Act does not define the "determination" that must be made
by a "majority vote of the entire authorized membership" of the
Commission. See N.J.S.A. 19:44A-3. We must therefore determine
whether the Legislature intended the Commission's authorization
of a complaint to be a "determination" under the statute.
Our primary objective is to ascertain the intent of the
Legislature by first looking to the plain words of the statute.9
DiProspero v. Penn, 183 N.J. 477, 492 (2005). We give "the
statutory words their ordinary meaning and significance, and read
them in context with related provisions so as to give sense to the
legislation as a whole." Ibid. (citations omitted); Hardy ex rel.
Dowdell v. Abdul-Matin, 198 N.J. 95, 101 (2009). "A statute should
be read as a whole and not in separate sections." Fiore v. Consol.
Freightways, 140 N.J. 452, 466 (1995). A court's "task is to
harmonize the individual sections and read the statute in the way
that is most consistent with the overall legislative intent."
Ibid. Therefore, "it is instructive to review other sections of"
9
To the extent the provision might be considered ambiguous,
warranting the consideration of extrinsic evidence, including
legislative history, see In re Plan for the Abolition of the
Council on Affordable Hous., 214 N.J. 444, 468 (2013) ("Only if
the statutory language is ambiguous do courts look beyond it to
extrinsic evidence, such as legislative history, for guidance."),
we note that nothing in the legislative history provides compelling
support for the conclusion that the Legislature intended all
actions taken by the Commission to enforce the Act be approved by
a majority vote of the entire authorized membership.
26 A-4131-15T3
a statute "which are designed to achieve the same result" in
interpreting an undefined phrase. Perrelli v. Pastorelle, 206
N.J. 193, 203 (2011).
Aside from the explicit language that departs from the common
law rule by establishing a different quorum requirement for a
"determination" in N.J.S.A. 19:44A-22(d), similar language does
not appear anywhere in the statute as a prerequisite for various
forms of agency action.10 "When 'the Legislature has carefully
employed a term in one place and excluded it in another, it should
not be implied where excluded.'" Higgins v. Pascack Valley Hosp.,
158 N.J. 404, 419 (1999) (quoting GE Solid State, Inc. v. Dir.,
Div. of Taxation, 132 N.J. 298, 308 (1993)). However, if the
Legislature intended "determination" to broadly apply to other
agency action, specifically the issuance of a complaint, the
absence of such language in other provisions is less noteworthy.
To provide context for our review of these other provisions
in the Act, we note that the APA's definitions for "contested
case," "administrative adjudication" and "adjudication"
acknowledge categories of decisional agency action other than a
"determination." N.J.S.A. 52:14B-2. A "contested case" is defined
as
10
The language is mirrored, however, in the parallel provision
applicable to gubernatorial elections, N.J.S.A. 19:44A-41(d).
27 A-4131-15T3
a proceeding . . . in which the legal rights,
duties, obligations, privileges, benefits or
other legal relations of specific parties are
required by constitutional right or by statute
to be determined by an agency by decisions,
determinations, or orders, addressed to them
or disposing of their interests, after
opportunity for an agency hearing.
[Ibid. (emphasis added).]
The APA defines "Administrative adjudication" or
"adjudication" to include "any and every final determination,
decision, or order made or rendered in any contested case." Ibid.
(emphasis added). In each case, the APA anticipates that, in
addition to a "determination" that resolves the case, the agency
is authorized to make decisions and orders.
Merriam-Webster defines "determine" as "to fix conclusively
or authoritatively." Determine, Mirriam-Webster Dictionary,
http://www.Mirriam-Webster.com/dictionary/determine (last visited
Aug. 30, 2017). Among its definitions for "determination" are "a
judicial decision settling and ending a controversy" or "the
resolving of a question by argument or reasoning." Determination,
Mirriam-Webster Dictionary, http://www.Mirriam-
Webster.com/dictionary/determination (last visited Aug. 30, 2017).
Both the APA definitions and the dictionary definitions thus
support an interpretation that "determination" applies to final
resolutions as opposed to interim actions.
28 A-4131-15T3
In other statutory schemes, the Legislature has manifested
its intent by including language that specifies the quorum
necessary for "any" action. For example, N.J.S.A. 5:5-29 states,
"A majority of the [New Jersey Racing] [C]ommission shall
constitute a quorum for the transaction of any business, for the
performance of any duty, or for the exercise of any power of the
commission." (Emphasis added). In other words, the Racing
Commission can transact no business, perform no duty and exercise
no power without the required quorum. There is no similar sweeping
limitation on the Commission's exercise of its authority under the
Act.
N.J.S.A. 19:44A-6 establishes the enforcement
responsibilities and regulatory authority of ELEC. Among the
powers explicitly delegated, the Legislature authorized the
Commission to: "investigate allegations of any violations of this
act, and issue subpenas for the production of documents and the
attendance of witnesses," N.J.S.A. 19:44A-6(b)(9); "[f]orward to
the Attorney General or to the appropriate county prosecutor
information concerning any violations of this act which may become
the subject of criminal prosecution or which may warrant the
institution of other legal proceedings by the Attorney General,"
N.J.S.A. 19:44A-6(b)(10); and "render advisory opinions [through
its legal counsel] as to whether a given set of facts and
29 A-4131-15T3
circumstances would constitute a violation of any of the provisions
of this act, or whether a given set of facts and circumstances
would render any person subject to any of the reporting
requirements of this act," N.J.S.A. 19:44A-6(f); see also N.J.S.A.
19:44A-6.1 (specifically authorizing the Commission to issue
advisory opinions and regulations that relate to candidates for
Lieutenant Governor).
Each of these authorized actions represents the exercise of
authority to investigate or advise based upon an evaluation of
information provided to the Commission. While each reflects some
decision-making by the Commission, none entails a "determination"
by the Commission that a violation of the Act has occurred or that
a particular penalty should be imposed. The Act imposes no
requirement that any number of commissioners must vote in favor
of any of these actions before the Commission may proceed.11
In sum, the expansive authority explicitly delegated to the
Commission to investigate suspected violations of the Act is not
limited by either a general restriction that requires a specific
11
The regulations promulgated by the Commission, N.J.A.C. 19:25-
1.1 to -26.10, shed no light on this question as they do not
address the procedures for authorizing a complaint or voting
requirements for any actions taken by the Commission. The
Commission's regulations addressing complaints provide only for
default final decisions where a respondent fails to respond to a
complaint issued by the Commission within twenty days. N.J.A.C.
19:25-17.1A.
30 A-4131-15T3
quorum for "any" agency action or for specific quorum requirements
applicable to any action, except the "determination" in N.J.S.A.
19:44A-22(d). The requirement that a "determination" be made by
a "a majority vote of the entire authorized membership," ibid.,
is a statutory requirement in derogation of the common law that
warrants strict construction. The application of that principle
here does not "defeat the obvious purpose of the Legislature" or
diminish the scope of authority the Legislature intended to grant
to ELEC. Ross, supra, 115 N.J.L. at 64. It also follows that we
should not imply the explicit abrogation of the common law to
provisions where the Legislature has not inserted such language.
Based upon our review of the plain language of the Act, the
definitions used by the Legislature in the APA and the application
of established principles of statutory construction, we conclude
that "determination" applies to the Commission's final resolution
of a case and decisions regarding the penalty to be imposed, not
to the decision to authorize a complaint. As a result, the common
law quorum requirement applied and the authorization of the
complaint was valid.
B.
Respondents also argue "the Commission's determinations may
not be made by the Commissioners of a single party, but rather
must be further supported with the agreement of at least one
31 A-4131-15T3
commissioner of an opposing political party." In support of their
position, they cite the membership requirement contained in
N.J.S.A. 19:44A-5 that no more than two members of the four-member
Commission be from the same political party. This reliance is
misplaced.
Although the Act plainly requires that no one political party
dominate the Commission, it does not mandate membership by any
political party. For example, N.J.S.A. 19:44A-5 would not be
violated if four independents, with no party affiliations, were
appointed to the Commission or if the membership were comprised
of two members of one party and two 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.
Respondents attempt to buttress their argument by citing
comments made by Senator William E. Schluter at a 1973 public
hearing of the Assembly Judiciary Committee, which was considering
the bill that became the Act. Senator Schluter stated Commission
action would take a bipartisan vote of three people and the draft
legislation was revised to reduce the number of commissioners from
five to four to avoid "a partisan flavor." S.B. No. 1124 "The New
Jersey Campaign Contributions and Expenditures Reporting Act":
32 A-4131-15T3
Public Hearing Before the Assemb. Judiciary Comm., 1972-1973 Leg.
Sess. 56-57, 68-69 (1973) (statement of Sen. William E. Schluter).
While these comments reflect reasoning relevant to the membership
requirement, N.J.S.A. 19:44A-5, they provide no insight into the
meaning to be given to the determination language contained in
N.J.S.A. 19:44A-22(d) because that language was not added to the
statute until an amendment was adopted three months later, in
April 1973. See L. 1973, c. 83, § 22. We therefore find no basis
to adopt respondents' interpretation that the Act requires a
bipartisan vote to authorize a complaint.
Reversed and remanded. We do not retain jurisdiction.
33 A-4131-15T3