Robertson v. Bartels Under the Microscope

At the end of the highly litigious legislative reapportionment fight of 2001, Federal District Court Judge Dickinson Debevoise determined under a strict scrutiny analysis that the New Jersey State Constitution's one year residency requirement for Assembly candidates violated the Equal Protection Clause of the U.S. Constitution. As reported by the New Jersey Law Journal last Friday, the New Jersey Supreme Court is now determining whether a State judge's decision annulling the election of Democrat Gabriela Mosquera's to the Fourth Legislative District may stand.

Other federal jurisdictions have ruled differently in recent years regarding residency restrictions depending on a number of factors, but generally upholding shorter restrictions while overruling more lengthy ones that were seemingly unjustified for lesser offices. For example, a Governor could be required to reside in a State for at least 10 years, but a state legislator in a state where they only represent a few thousand people could not be subject to a 10-year residency requirement as there is no rational basis for such a lengthy residency. In New Jersey, the Robertson v. Bartels decision has stood for a decade as the law of the land, in 2011 however, it was brought into question in the case of Olympian Carl Lewis where the Third Circuit, upholding a lower court decision, declined to apply a strict scrutiny analysis to the New Jersey Constitution's lengthier residency requirement for State Senators.

The instant case raises not only the question of whether New Jersey's residency requirement is constitutional, but the role of federal courts passing judgement on the State's constitution. The Mosquera case is made even more unique in that it was brought post-election, just days before Mosquera was to be sworn into office. The State argues that while it was bound by Judge Debevoise's decision in Bartels, which is why the Secretary of State certified Mosquera's placement on the ballot, it can now question the decision in State court. Should Mosquera lose before the New Jersey Supreme Court, it appears that this matter could end up being resolved in federal court.

How Should Surrogates Balance Need To Run for Office With Judicial Canons?

Many states elect judges who have to strike a tricky balance when running for office. Controversies often arise when elected judges accept contributions from parties who may regularly appear before them. In New Jersey, where all are judges are appointed (not that politics ever plays into that process), entanglements regarding balancing political engagement and serving on the bench seldom arise. The only judicial officers who must be elected are County Surrogates who act as judges in matters of probate, wills, estates, adoptions and incapacitated persons. In almost no easily contrived circumstance would politics ever interfere with or play into such matters, nonetheless, surrogates are bound by the Judiciary's rules.

As the New Jersey Law Journal reports, Atlantic County Surrogate Chris Brown has now responded to a formal complaint against him relating to his participation in a fundraiser for a legislative candidate. The Code of Judicial Conduct for Judiciary Employees is pretty clear that Surrogates and other judiciary employees cannot serve in leadership positions or as spokespersons for political organizations that support "partisan political activity." But does serving on paper as a member of a host committee of a political fundraiser for a friend to be on the same ballot column with you cross the line? That is essentially the question that now must be answered in this case in which there appear to be little or no clear precedents.

This all begs the question of whether a surrogate ruling on a will could really harm the perception of the independence of the judiciary while serving in the ceremonial position of the member of a host committee for a political fundraiser for another candidate on the ballot with them? If so, then how are Surrogates supposed to run for office on a political party's organization ticket, appear on the same yard sign, or the same political mailers as their running mates in their county?

I think the ACJC really needs to create some bright lines for Surrogates who face these tricky circumstances that will likely trigger future complaints in the heat of election season.

When Should Campaign Finance Violations Overturn The Result of Close Election and Who Does It, ELEC or the Court?

The New Jersey Election Law Enforcement (ELEC) today decided to intervene in an election contest in which a judge voided the outcome of a primary election due to what appears to have been an excessive and/or improperly reported campaign contribution in the amount of $16,000.

While this does not necessarily seem significant, for a Republican primary in sleepy Morris County, $16,000 is a lot of money. Plaintiffs in this case successfully argued that $16,000 represented such a large sum of the total amount of money spent in the election that it was enough to impact its outcome where the candidates were separated by only a handful of votes.

ELEC, however, appears to asserting its primal jurisdiction over such matters as it has done before. In Re the Contest of the Democratic Primary in 2003, 367 N.J. Super. 261 (App. Div. 2004). In this case the Appellate Division remanded an election contest to ELEC to "develop a record and utilize its expertise in interpreting the Act's provisions as to the claimed violations."

SEC Posts Pay To Play Staff Guidance Online

The staff of the Division of Investment Management at the Securities & Exchange Commission ("SEC") is now providing responses to questions posed in relation to its recently adopted pay to play Rule 206(4)-5 under the Investment Advisers Act of 1940. The last update was provided on April 28, 2011, so I would anticipate additional responses being provided in the near future.

Link Here: http://www.sec.gov/divisions/investment/pay-to-play-faq.htm

Reading Between The Lines: Redistricting In New Jersey

On November 18, 2010, the Eagleton Institute of Politics at Rutgers will be hosting a forum on legislative reapportionment and congressional redistricting where Ben Brickner, author of a new report on congressional and state legislative redistricting, will present a summary of his report entitled "Reading Between The Lines." Participating in the panel will be former longtime Executive Director of the New Jersey Senate Democratic Office, Kathy Crotty, Evelyn Liebman, Director of Organizing and Advocacy for New Jersey Citizen Action, and Brian M. Nelson, Esq., a former Executive Director of the New Jersey Republican State Committee. The purpose of the forum is to shed more light on the reapportionment and redistricting processes in the State of New Jersey and to explore what the new legislative and Congressional maps can, and can't, be expected to accomplish.

More Important Than Election Day

A timely Sunday Star-Leger story by Matt Friedman on the pending legislative reapportionment process in New Jersey. Matt covers Benjamin Brickner's excellent paper on the process in New Jersey and other states, which even if you do not agree with Ben's recommendations, is a worthwhile read. Matt's article also covers little known facts, such as what reapportionment costs the taxpayers, and mentions, as much as a straight news article can, the impact that the United States Supreme Court's Strickland decision may have on New Jersey's mapmaking process this time around.

Tweet Linked To Government Run Website Lands Sheriff In Hot Water

What is seemingly a matter of common sense--not to use government resources to promote political fundraisers--has become more complicated of an issue in the world of Internet-based social media networking.

The New Jersey Law Journal reports that an action brought by Bergen County Republican Sheriff candidate Michael Saudino, citing a violation of campaign finance laws prohibiting the use of public funds for political campaigns, has resulted in the entry of a consent order banning Bergen County Sheriff Leo McGuire from advertising for political fundraisers through a Tweeter feed on the Sheriff's official taxpayer-funded website.

According to the Sheriff's spokesperson, Sean Darcy, the entire incident was just an innocent mishap. Specifically, the New Jersey Law Journal reports that:

the series of events that led to the suit was set in motion when McGuire's campaign posted the information about the fund-raiser on his personal Facebook account. From there, according to Darcy, the sheriff's account on LinkedIn, another social networking site, "grabbed that entry." Subsequently, Darcy says, McGuire's Twitter account "grabbed" the information from his LinkedIn page. This movement of information among sites took place without the knowledge of the sheriff or his campaign staff, says Darcy.

The relevant provisions of the New Jersey Campaign Contributions and Expenditures Reporting Act provide that "[a] public agency shall not pay or make any contribution of money or other thing of value, whether out of public funds or any other funds which the public agency may control, to any candidate . . . and no such candidate or committee shall accept such contribution." N.J.S.A. 19:44A-11.9. Any willful or intentional violation of this provision can result in significant penalties under the Act. N.J.S.A. 19:44A-22.

In sum, keep this in mind next time you Tweet or link a government website to your facebook page.