Gonzalez v. N.J. Apportionment Comm'n
| Decision Date | 10 September 2012 |
| Citation | 53 A.3d 1230,428 N.J.Super. 333 |
| Court | New Jersey Superior Court |
| Parties | Barbara GONZALEZ, individually and as Founder of the Bayshore Tea Party Group; Robert A. Gordon, individually and as Chairman of the Bayshore Tea Party Group; Connie J. Sherwood, Clark Sherwood, Nancy Peterson and Ted Peterson, individually and as leaders of the Ocean County Citizens for Freedom; Daryl Brooks, Joseph Abbruscato, Antoinette Delguidice, Frank Gonzalez, Lynn Gordon, Brian Hegarty, Helene Henkel, Shelly Kennedy, Charles Drake Measley, William Haney, Debbie Sutton, Peter Michael Carroll, Jim Leskowitz, Kelly Ann Hart, Adrianne S. Knobloch, Vincent Avantagiato, Paul Albanese, Al French, Linda Shute, Michael Pierone, Daniel Biringer, Catherine V. Giancola, Edward J. Simonson, Frank Cottone, Michele Talamo, Carol J. Gallentine, Douglas Salters, Mary Logan, Edward Auwarter, Susan Lord, John Andrew Young and Brenda Roames, Plaintiffs–Respondents, and Richard J. McManus, Esquire, Plaintiff/Intervenor–Appellant, v. STATE of New Jersey APPORTIONMENT COMMISSION; Nilsa Cruz–Perez, Joseph Cryan, Sheila Oliver, Alan Rosenthal, Paul Sarlo, John Wisniewski, in their official Capacity as Members of the State of New Jersey Apportionment Commission; Kim Guadagno, in her official capacity as Secretary of State of the State of New Jersey; Jeffrey S. Chiesa [successor to Paula Dow], in his official capacity as Attorney General of the State of New Jersey; and Robert F. Giles, in his official capacity as Director, Division of Elections of the State of New Jersey, Defendants–Respondents. Barbara Gonzalez, individually and as Founder of the Bayshore Tea Party Group; Robert A. Gordon, individually and as Chairman of the Bayshore Tea Party Group; Connie J. Sherwood, Clark Sherwood, Nancy Peterson and Ted Peterson, individually and as leaders of the Ocean County Citizens for Freedom; Daryl Brooks, Joseph Abbruscato, Antoinette Delguidice, Frank Gonzalez, Lynn Gordon, Brian Hegarty, Helene Henkel, Shelly Kennedy, Charles Drake Measley, William Haney, Debbie Sutton, Peter Michael Carroll, Jim Leskowitz, Kelly Ann Hart, Adrianne S. Knobloch, Vincent Avantagiato, Paul Albanese, Al French, Linda Shute, Michael Pierone, Daniel Biringer, Catherine V. Giancola, Edward J. Simonson, Frank Cottone, Michele Talamo, Carol J. Gallentine, Douglas Salters, Mary Logan, Edward Auwarter, Susan Lord, John Andrew Young and Brenda Roames, Plaintiffs–Appellants, and Richard J. McManus, Esquire, Plaintiff/Intervenor–Respondent, v. State of New Jersey Apportionment Commission; Nilsa Cruz–Perez, Joseph Cryan, Sheila Oliver, Alan Rosenthal, Paul Sarlo, John Wisniewski, in their official Capacity as Members of the State of New Jersey Apportionment Commission; Kim Guadagno, in her official capacity as Secretary of State of the State of New Jersey; Jeffrey S. Chiesa [successor to Paula Dow], in his official capacity as Attorney General of the State of New Jersey; and Robert F. Giles, in his official capacity as Director, Division of Elections of the State of New Jersey, Defendants–Respondents. |
OPINION TEXT STARTS HERE
Richard J. McManus argued the cause for appellant in A–0747–11 (Efros & Wopat, attorneys; John W. Wopat, III, Red Bank, and Mr. McManus, on the brief).
Michael E. Goldberg argued the cause for appellants in A–0869–11.
Angelo J. Genova argued the cause for respondents the State of New Jersey Apportionment Commission, Nilsa Cruz–Perez, Joseph Cryan, Sheila Oliver, Paul Sarlo and John Wisniewski in both appeals (Genova, Burns & Giantomasi, The Law Offices of William J. Castner, and Paul M. Smith (Jenner & Block, L.L.P.) of the Washington, D.C. bar, admitted pro hac vice, attorneys; Mr. Genova, Mr. Castner and Mr. Smith, of counsel and on the briefs; Celia S. Bosco and Justin A. Jacobs, Newark, on the briefs).
George N. Cohen, Deputy Attorney General, argued the cause for respondents Secretary of State Kim Guadagno, Attorney General Jeffrey S. Chiesa, and Robert F. Giles, Director of the New Jersey Division of Elections in both appeals (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Cohen, on the statements in lieu of brief).
Ronald K. Chen, Trenton, argued the cause for respondent Dr. Alan Rosenthal (Constitutional Litigation Clinic, Rutgers School of Law–Newark, attorney in A–0869–11; John J. Farmer, Jr., and Mr. Chen, on the brief).
Before Judges CUFF, LIHOTZ, and WAUGH.
The opinion of the court was delivered by
These back-to-back appeals arise from an order dismissing a complaint filed by numerous individuals and groups challenging the legislative apportionment map approved by the State of New Jersey Apportionment Commission (Commission) on April 3, 2011 (the approved map).2 The approved map established New Jersey State Senate and Assembly districts and the apportionment of State Senators and members of the General Assembly among those districts. Plaintiffs and intervenor Richard J. McManus, Esquire, assert the approved map violates the Federal and New Jersey Constitutions. We affirm.
Pursuant to the process set forth in Article IV, Section 3, of the New Jersey Constitution, the Commission was constituted and on April 3, 2011, adopted and certified to the Secretary of State the approved map.
On May 11, 2011, the following plaintiffs, Barbara Gonzalez, Robert A. Gordon, Connie J. Sherwood, Clark Sherwood, Nancy Peterson, Ted Peterson, Daryl Brooks, Joseph Abbruscato, AntoinetteDelguidice, Frank Gonzalez, Lynn Gordon, Brian Hegarty, Helene Henkel, Shelly Kennedy, Charles Drake Measley, William Haney, Debbie Sutton, Peter Michael Carroll, Jim Leskowitz, Kelly Ann Hart, Adrianne S. Knobloch, Vincent Avantagiato, Paul Albanese, Al French, Linda Shute, Michael Pierone, Daniel Biringer, Catherine V. Giancola, Edward J. Simonson, Frank Cottone, Michele Talamo, Carol J. Gallentine, Douglas Salters, Mary Logan, Edward Auwarter, Susan Lord, John Andrew Young, and Brenda Roames filed a ten-count verified complaint and order to show cause. As set forth in the verified complaint, among the plaintiffs are voters registered as Democrats and Republicans, as well as those affiliated with third parties, and unaffiliated voters. Many plaintiffs identify themselves as members of the “Bayshore Tea Party Group” (Bayshore Group), and others are listed as affiliated with other entities that have “Tea Party” included in their names; several others are listed as founders of “Ocean County Citizens for Freedom.”
The complaint named the following as defendants: the Commission and its five Democratic Party members, namely Nilsa Cruz–Perez, Joseph Cryan, Sheila Oliver, Paul Sarlo, and John Wisniewski, (collectively, the Commission defendants), plus the Commission's tiebreaking member Dr. Alan Rosenthal, all in their official capacities as members of the Commission; Kim Guadagno, in her official capacity as Secretary of State; Paula Dow, in her official capacity as Attorney General, now succeeded by Jeffrey S. Chiesa; and Robert F. Giles, in his official capacity as Director of the Division of Elections (collectively the State election defendants).3
Following telephonic oral argument, Judge Linda R. Feinberg, A.J.S.C., entered an order on May 26, 2011, denying temporary restraints and setting dates for responses and a hearing. On or about July 25, 2011, McManus moved to intervene as a plaintiff. Despite opposition from the Commission defendants, the court granted the motion. Judge Feinberg heard oral argument on August 18, 2011. On August 31, 2011, the judge entered an order denying injunctive relief and dismissing the complaint for reasons set forth in an eighty-page opinion also filed that day.
Plaintiffs and McManus separately filed timely notices of appeal on October 14, 2011. McManus argues the approved map violates Article IV, Section 2, Paragraph 3 of the New Jersey Constitution The individual plaintiffs contend the approved map violates United States Constitution, Amendment XIV, and violates provision of New Jersey Constitution, Article I, Paragraph 2a. The Supreme Court denied a motion for direct certification.
The New Jersey Constitution establishes the Commission, pursuant to Article IV, Section 3, (emphasis added), which provides:
1. After the next and every subsequent decennial census of the United States, the Senate districts and Assembly districts shall be established, and the senators and members of the General Assembly shall be apportioned among them, by an Apportionment Commission consisting of ten members, five to be appointed by the chairman of the State committee of each of the two political parties whose candidates for Governor receive the largest number of votes at the most recent gubernatorial election. Each State chairman, in making such appointments, shall give due consideration to the representation of the various geographical areas of the State. Appointments to the Commission shall be made on or before November 15 of the year in which such census is taken and shall be certified by the Secretary of State on or before December 1 of that year. The Commission, by a majority of the whole number of its members, shall certify the establishment of Senate and Assembly districts and the apportionment of senators and members of the General Assembly to the Secretary of State within one month of the receipt by the Governor of the official decennial census of the United States for New Jersey, or on or before February 1 of the year following the year in which the census is taken, whichever date is later.
2. If the Apportionment Commission fails so to certify such establishment and apportionment to the Secretary of State on or before the date fixed or if prior thereto it determines that it will be unable so to do, it shall so certify to the Chief Justice of the Supreme Court of New Jersey and he shall appoint an eleventh member of the Commission. The Commission so constituted, by a majority of the whole number of its members, ...
To continue reading
Request your trial
-
L.C. v. Middlesex Cnty. Prosecutor's Office
...for determining the adequacy of a pleading: whether a cause of action is "suggested" by the facts.'" Gonzalez v. State Apportionment Comm'n, 428 N.J. Super. 333, 349 (App. Div. 2012) (quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). "A complaint should be d......
-
Diaz v. Reynoso
...a plenary standard of review from a trial court's decision to grant a motion to dismiss." Gonzalez v. State Apportionment Comm'n, 428 N.J. Super. 333, 349, 53 A.3d 1230 (App. Div. 2012) (quoting Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 114, 30 A.3d 1061 (App. D......
-
Williams v. City of Asbury Park
...dismiss applying a plenary standard of review, and "owe no deference to the trial court's conclusions." Gonzalez v. State Apportionment Comm'n, 428 N.J. Super. 333, 349 (App. Div. 2012) (citing Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div. 2011)). The......
-
State v. Thompson
...court's decision on a motion to dismiss, and we owe no deference to the trial court's conclusions. Gonzalez v. State Apportionment Comm'n, 428 N.J. Super. 333, 349 (App. Div. 2012). Further, de novo review is also applied because the motion to dismiss involves statutory construction, State ......