__________________________________ : In re: : : CONTEST OF THE NOVEMBER 6, 2012 : ELECTION RESULTS FOR THE CITY OF : HOBOKEN, PUBLIC QUESTION NO.

2 : : : : : : : : : : : __________________________________ : SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-003218-12T3 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 APPLESEED PUBLIC INTEREST LAW CENTER 744 Broad Street, Suite 1525 Newark, New Jersey 07102 (973) 735-0523 steinhagen_pilc@yahoo.com Flavio L. Komuves, Esq. ZAZZALI, FAGELLA, NOVAK, KLEINBAUM, & FREIDMAN One Riverfront Plaza Suite 320 Newark, New Jersey 07102 (973) 623-1822 fkomuves@zazzali-law.com Attorneys for IntervenorAppellant Cheryl Fallick On the Brief: Rene Steinhagen, Esq. Flavio L. Komuves, Esq.

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 THE ELECTION RESULTS FOR THE CITY OF HOBOKEN, PUBLIC QUESTION, NO. 2 IS WRONG AS A MATTER OF LAW ..............16 MS. FALLICKS MOTION TO INTERVENE SHOULD HAVE BEEN GRANTED..............................................24 CONCLUSION ....................................................40

II.

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 PreSchool 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., 237 N.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 for Office 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 of Mayor in Borough of S. Amboy, Middlesex Cnty., 423 N.J. Super. 190 (App. Div. 2011)......................27

ii

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 iii

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 Voting Challenge, The Constitution Project and election.org (2002) (www.pewtrusts.org/uploadedFiles/Provisional Voting.pdf)...............................................13 Pressler, Current N.J. Court Rules, comment on R. 4:33-2 (2002).............................................24

iv

PRELIMINARY STATEMENT This matter challenges the trial courts reversal of a

local public question election and its denial of intervention to a key advocate Fallick, member opposing a that question. resident Rent Appellant-Intervenor in rent-controlled Board, and

Cheryl

Hoboken of the

voter, Hoboken

property,

Leveling

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 that voter, [her] (1T18:8-13)1; interests and she not the could not

demonstrate protected.

[we]re

adequately lower court

(1T18:17-18).

Subsequently,

reversed the Local Referendum Election on the basis of a summary list of 114 persons, who Petitioners-Respondents (a group of landlords
1

supporting

the

referendum)

alleged

were

displaced

1T refers to Transcript of January 11, 2013, hearing before Judge Christine Farrington, J.S.C.

Hoboken voters who had cast their provisional ballots outside the City of had Hoboken. been These Hoboken denied voters, the the landlords to

argued,

wrongfully

opportunity

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). trial court agreed ballot (albeit without examining and The

official county

provisional

affirmation

statements

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 trial courts erroneous interpretation of the limited to 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
2

2T refers to Transcript of February 11, 2013, Hearing before Judge Christine Farrington, J.S.C. 2

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 and public interest concerning public to question recur.

elections

arises

under

circumstances

likely

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. 3

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). November, Lt. Governor Guadagno Specifically, in early approximately four

issued

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. issue herein is the directive entitled

Specifically, at Expanding

Directive

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 any polling place in the State. . . . c. All eligible votes must be counted. i. The appropriate Board must count the votes of all registered voters for office of President and U.S. Senator and any other statewide question; and The appropriate Board must count the votes cast for any office or question for which the voter is otherwise eligible to vote.

ii.

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 and ACLU all filed a petition on behalf persons of several

plaintiffs

similarly 4

situated

(displaced

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). Lt. Governor, and several including candidate the Attorneys for the and county

campaigns County

political

parties,

Hudson

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. The general (Ia213). was held, and the Hoboken Public

election

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
3

In this way, a majority of the voters of Hoboken

Hoboken Public Question No. 2 asked the voters as follows: Shall the City of Hoboken continue annual rental increase protections for current residents of rent controlled properties but allow property owners to negotiate rents for vacant 5

rejected, in November 2012, a proposed initiative to roll back critical rent control protections for the citizens of Hoboken. PROCEDURAL HISTORY On December on 12, 2012, appeal), 15 individual petitioners landlords who (the had

Respondents

this

representing

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. December 18, 2012, a hearing was held, and (Ia1-20). On

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 and condominium units from the rent leveling ordinance by adopting the proposed amendment to Chapter 155 of the Code of the City of Hoboken?

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 ParsippanyTroy Hills, 192 N.J. 546, 554 the of (2007). sole party she As intervenor, the among Ms.

Fallick

would

have

been

before was,

Court other

representing

the

interests

tenants;

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. 1T10:18-23). necessary As such, she for reasoned both that she had (Ia35; the and

shown

requirements

permissive

intervention

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 7

only scattershot allegations of misconduct, requiring dismissal of the Petition. the (1T12:13-25 County to 13:1-8). of Neither the of the Lt.

Governor,

Hudson

Board nor

Elections, the City

County Hoboken

Superintendent,

County

Clerk

(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 The judge

motions by Order dated January 11, 2013. (Ia42).

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. parties in

(IT18:8-13). the case were

The Court also found that the other 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. 8

One (1) week later, on January 18, 2013, Petitioners filed an Amended Verified Complaint; and on January 25, 2013, they filed a Notice of of Motion for Judgment in on Amended of Petition, and

Certification

Counsel,

Brief

support

motion

proposed form of Order.

(Ia43-183).

On information and belief,

the Office of the Attorney General, on behalf of the Hudson County Board of Elections and the Superintendent of Elections, and counsel for the Hudson County Clerk, submitted papers in opposition to this Motion for Judgment. (2T3:12-23). On February 11, 2013, the trial court adjudicated the case on the merits, and overturned the Local Referendum Election

results.

By opinion dated February 13, 2013 (Ia184-194), and by

a final Order dated March 5, 2013 (Ia195-196), the trial court found that 114 voters were deprived of their ability to vote on the local rent control question when deciding to cast a

provisional ballot outside of Hoboken.

(Ia193).

In so ruling,

the Court not only misinterpreted the Lt. Governors Directive, but also made the faulty and unconfirmed factual assumption that all of these 114 voters, appearing on a list seemingly prepared by counsel for the landlords, were Hoboken-registered voters who were eligible to vote on Hoboken local questions. (Ia37-39).

Even though Ms. Fallick was unable to present evidence or argument before the Court, because her motion for intervention had been denied, she nevertheless 9 persisted in investigating

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 no other and party, to dismiss the the

Petition.

Since

that

time,

including

Government Defendants, who were supposedly vigorously fighting to uphold the election results, opted to file a Notice of Appeal of
4

the

courts

Order

for

new

election.

Indeed,

Case

On or about that same day, she submitted an OPRA request to the Hudson County Board of Elections, the Hudson County Superintendent of Elections and the Hudson County Clerk requesting a copy of the affirmation statements associated with the provisional ballots that were the basis for overturning the certified election results in the Local Referendum Election. (Copy of OPRA Request, Motion Appendix).

10

Information Statements have been filed only on behalf of the Hudson County Clerk, the City of Hoboken and the Petitioners. (Ia205-210). Elections and The the Lt. Governor, the Hudson County Board has of

Hudson

County

Superintendent

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. material theory demonstrated correct, Id. that there She posited that this supplementary even were if at the most trial 36 courts legal

was

disenfranchised

voters (a number that is lower than the Public Questions margin of victory), not the 114 found by the court. (Id.). 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 11 This motion

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. In separate Orders, both dated June 10, 2013, (Ia 218-219). 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 12

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 registered or local ballots, and upon affirmation eligible to that vote. they are

properly officials

otherwise

State the

election

boards

subsequently

review

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.

13

In New Jersey, those voters whose names are absent from a registration authorized option. only to list due to a move New between Jerseys counties provisional are not

benefit

from

voting

See N.J.S.A. 19:53C-3 (provides for provisional voting certain statement circumstances); attached to N.J.S.A. 19:53C-1(b) ballot states

under

(affirmation

provisional

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
5

Eleven years after the

Pursuant to HAVA, local election officials must offer provisional ballots to persons whose names are not on the list of eligible voters or is told she is not eligible to vote. 42 U.S.C. 15482(a). That is, any voter whose eligibility is in doubt on Election Day must be allowed to cast a paper provisional ballot at the polling place, even if that ballot will not be counted under state law. Id. (HAVA requires that an individuals provisional ballot shall be counted as a vote in that election only if it is determined that the person is eligible to vote under state law). Triggering events include a voters name does not appear on the registration list for the polling place where he or she seeks to vote; an election official challenges the voters eligibility; a voter lacks the required identification; and someone votes after the polling place has closed. Such expansive use of the provisional ballot, however, does not ensure that the ballot will be counted. 14

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 15

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. Directive modified this

The Lt. Governors November 3, 2013 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. a temporary and limited In this way, the Directive introduced version of inter-county provisional

voting to New Jersey; nothing more and nothing less. LEGAL ARGUMENT I. THE TRIAL COURTS DECISION TO REVERSE THE ELECTION 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 the provisional ballots effectively disenfranchised the 114 voters voting outside the City and violated the Lieutenant Governors directive which required: The appropriate Board must count the votes cast for

16

any other office or question for which the voter is otherwise 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). blatant defect, the trial courts Notwithstanding this of the Lt.

interpretation

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. Governors directives and denied displaced voters the opportunity to cast a Federal Write-In Absentee Ballot in lieu of a provisional ballot, thus depriving them of the opportunity to vote in local elections for which they were otherwise eligible (unless they had submitted a timely application for vote by mail ballot).

17

Day throughout the State must be understood in order to address the issues raised by Appellant-Intervenor. directive issued by an administrative In interpreting a pursuant to an

agency

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. of 366 (App. Div. 2007) the

(noting

that

interpretation

regulations

follows

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. ___, Accordingly, this Court trial courts legal

___ (App. Div. 2013) (slip op., p. 13). owes no special deference to the

conclusions.

Manalapan Realty v. Twp. Comm. Of Manalapan, 140

N.J. 366, 378 (1995). Because interpreting it a is the responsibility regulation 18 or of the court when

statute,

other

administrative

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. 427 N.J. Super. at 274. In re State Funeral Dir. Assn, supra, 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 19 decided to expand[ ] the

ability

of

displaced

voters

to

1.

...vote

by

provisional This section

ballot at any polling place in the State. (Ia79).

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 polling ballot provisional in their on and emergency ballots to each local the that

place

respective

jurisdiction voting

only

for at

appearing

the

electronic

machine

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. 1.b. of the Directive, [i]f a voter other than registration, casts a ballot in a county the voters county of the Board of Elections in 20 Specifically, pursuant to

receipt of the provisional ballot must deliver it to the Commissioner of Registration of the voters county of registration by overnight mail or hand delivery. (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 If that voter questions, such

their presidential and senatorial votes counted. voted on Woodbridge Township local races or

votes would not be counted. Therefore, the language of Section 1.c.ii, when read in the context of the entire Directive, 21 does not support the trial

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. Koprowskis petitioners Order, and all dated November 7, 2012 See also Judge (Ia211) (denying the

similarly

situated

displaced

voters

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 22 county registration records

supporting Pursuant to

that

conclusion Evid.

was

arbitrary

and the

capricious. contents of

N.J.R.

1006

(Summaries),

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. to the Moreover, require specific given the failure of the to and

Government produce or

Defendants identify

Respondents-Petitioners affirmation statements

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 23 Rent Control Ordinance,

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 Ms. as after institution of suit. only R. The under 4:33-2, trial R. court

considered

Fallicks of

application and not

4:33-1,

intervention

right,

permissive

intervention, as she had requested (Ia223-224),7 and determined that Ms. Fallick that a could denial not of demonstrate intervention that would [she was] so

situated

impede

[her]

ability to protect [her] claim of right. (1T18:4-7). A review of the factual record established by Ms. Fallick indicates criteria
7

that for

the

trial

courts as of

application under

of R.

the 4:33-1

four was

intervention

right

Rather the trial court appears to have conflated the four-prong test set forth in R. 4:33-1, with the factors that are to be considered by the trial court when exercising its discretion under R. 4:33-2. (1T17:16-25) Such factors include whether granting the intervention will result in further undue delay, will eliminate the probablility of subsequent litigation, and the extent to which the grant therof may further complicate litigation which is already complex.. Pressler, Current N.J. Court Rules, comment on R. 4:33-2 (2002).

24

clearly erroneous, as was its holding that the trial court has discretion to deny Ms. Fallick intervention under that Rule, in contrast to the As Rule this governing Court permissive in intervention. American Civil

(1T17:16-17).

explained

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 and appeal id. at absent 70 a clear Rule at showing of abuse of

discretion) intervention

(The

governing the

permissive courts

permits

intervention

trial

discretion).8
8

But 375 the the

see State v. Lanza, 39 N.J. 595, 600 (1963), cert. denied, U.S. 451 (1964), rehg denied, 376 U.S. 935 (1964) (where 1963 N.J. Supreme Court created ambiguity with respect to standard of review of a motion to intervene as of right by 25

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 of a Judge the new Farringtons Decision setting and aside her the Order Co. v.

results directing

Local

Referendum (Ia222).

Election, See also

election.

Warner

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 them presented on their are technically when moot, the court may of is

address

merits

they

involve omitted).

matters This

particular

public

interest.

(citations

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 practice rules, R.R. 4:37-1, 3, 4, with sufficient clarity to warrant a finding that the trial court either erred as a strict matter of law or abused its discretion in denying the motion.) (emphasis added). 26

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 candidates likely in to New recur. Jersey Specifically, are routinely

although

winning

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 opponents matter and certainly thus raises be The rights of public question an issue of by great this public Court.

importance,

should

considered

Tumpson v. Farina, supra, ___ N.J. Super. at ____(slip op., p. 11) (citations omitted). there is In still other an words, adversary despite being in

technically
9

moot,

proceeding

Opponents and proponents of public questions have been given access to the courts to question other aspects of the public question 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 or opponents should not have access to the courts at other phases 27

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 be permitted to intervene in an action if the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicants 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). criteria include whether The four intervention as of right 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. County of Hudson, supra, 352 N.J. Super. See ACLU v. Atlantic

at 69-70;

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. 28

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. 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 be permitted to intervene in an action if his claim or defense and the main action have a question of law and fact in common.. . . In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of 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 County delay of or prejudice supra, to the original parties. at 70 ACLU v. Meehan v. K.D.

Hudson,

352

N.J.

Super.

(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 29

intervention, discretion well.

and

accordingly, her

the

trial

court under

abused rule

its as

when

denying

intervention

that

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. Motion Fallicks and her such certification before (Ia33-36; accompanying the trial her Notice of

testimony interest.

court

clearly Ms.

demonstrate

1T9:18-24).

First,

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 30

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 matter right. as a rent control advocate and related to the subject as of

of

this

litigation

justified

intervention

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 See e.g., V.W.

direct economic interest in the litigation.

Credit v. Coast Auto Group, 346 N.J. Super. 246, 255-256 (App. Div.), certif. made denied, by 172 N.J. 178 of (2002) (considerable considered

investment

proposed

assignee

franchise

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). 31

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). the court did not specify the facts on which conclusion. As noted above, Ms. Fallicks interest was to preserve the current Election Results, and to make sure that PetitionersRespondents did not illegally overturn the election. She Unfortunately, it based this

specifically argued: Democracy shouldnt have an admission fee. If both sides are not represented, we, the certified winners, have no justice. I am stepping up to do everything in my personal power 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 32 affirmation statements and

registration records on which Petitioners relied in preparing their list of 114 Displaced Hoboken Voters Who Voted Outside of Hoboken. supporting Her inability to secure that list of voters and the 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 33

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. became (1T10:19-23). apparent as This the lack of representation Defendants clearly

Government

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

34

for

that

property,

had

contractual

right

to

approve

the

appraiser the City used). Furthermore, it is clear that lack of public resources to properly Defendants represent reason, denied litigate could Ms. this not, matter not meant willing in that to, the Government did For not this

were

and/or

Fallicks court, the

interests without

this

matter.

the Ms.

trial

factual to

support, represent

wrongfully her own

Fallick

opportunity

interests. 97 N.J.

Cf. City of Paterson v. Paterson General Hospital, 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). Hanover Twp., One who is interested in pending litigation should not be permitted to stand on the sidelines, watch the proceedings and express his disagreement only when the results of the battle are in and he is dissatisfied. As the court wrote in

35

Id.

The trial court in this matter simply did not discuss the No one denies that Ms. six (6) days after

timeliness of Ms. Fallicks application. Fallick filed her motion to intervene

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). record that she delayed her There is no indication in the to the Petition, or

response

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. 36 Furthermore, because

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). completely unjustified. Ms. Fallick This conclusion is her motion on

filed

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 37

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, and she could have secured of the affirmation individuals

statements

registration

records

those

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, 38

I do have, as Ive stated, experience in a quasi-judicial environment of the Rent Leveling Board and, although not stated in the papers, I had ten years as a business representative with a labor union, so I frequently participated in artibrations, preparing evidence, preparing witnesses. So, I dont believe that I will slow down the 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.

39

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

40