825 A.2d 1124 | N.J. | 2003
Lead Opinion
ORDER
This matter having come before the Court on an application for a stay of the judgment of the Appellate Division pending disposition of movant’s appeal,
And the Court having considered the moving papers and supplemental briefs filed by the parties,
And the Court being of the view that the standards informing the grant of a stay when an issue of significant public importance is raised must include not only the traditional factors applicable to disputes between private parties but also, and most paramount, considerations of the public interest,
And the Court being satisfied that the public interest is best served and harm to the voting public best avoided by assuring certainty at this time in the 2003 electoral cycle and consequently, by maintaining the status quo,
And it appearing that since the adoption of art.IV, § 2, ¶ 3 of the New Jersey Constitution nearly forty years ago, Newark and Jersey City have been divided into at least three legislative districts each,
And it further appearing that that division constitutes the status quo in the case based on long-standing contemporaneous and practical construction of the New Jersey Constitution,
And good cause appearing;
Dissenting Opinion
Dissenting.
Movant, The Legislative Apportionment Commission of the State of New Jersey (Commission), applies for a stay of the Appellate Division judgment declaring the 2001 legislative apportionment map in violation of the New Jersey Constitution and ordering the Commission to draw a new legislative map. Because I am not persuaded that movant has established any of the necessary predicates to the equitable relief it seeks, I would deny
When seeking the equitable relief of a stay pending appeal of a judgment, a movant must demonstrate that: (1) irreparable harm will result from enforcement of the judgment pending appeal; (2) the appeal presents a meritorious issue, and movant has a likelihood of success on the merits; and (3) assessment of the relative hardship to the parties reveals that greater harm would occur if a stay is not granted than if it were. Crowe v. De Gioia, 90 N.J. 126, 132-34, 447 A.2d 173 (1982).
Turning first to the assessment of irreparable harm, the Commission argues that even assuming that the Commission’s 2001 legislative apportionment map is unconstitutional, that map nonetheless should be used for the 2003 cycle of elections because there is not enough time to promulgate a new apportionment scheme for the upcoming June primary elections. A stay of the Appellate Division judgment is said to be necessary to avoid chaos. In arguing that a new map cannot be readied for use in the upcoming primaries, the Commission never explains what harm it would suffer were it, even now, to be at work drafting an alternative map to have in readiness in the event this Court agrees with the Appellate Division and declares the 2001 map in violation of our Constitution. Indeed, it is obvious from this record that the Commission’s work is largely performed by computer programs. The Commission does allude to a cost drain to the Commission if it had to work on an alternative map. That, however, cannot support a claim of irreparable harm. Harm is not irreparable if it can be remedied with monetary relief, or stated conversely, “[hjarm is generally considered irreparable in equity if it cannot be redressed adequately by monetary damages.” Id. at 132-33, 447 A.2d 173 (citing Hodge v. Giese, 43 N.J.Eq. 342, 350,11 A.484 (Ch. 1887)).
I find the Commission’s argument for a stay to be unpersuasive for two reasons. First, to the extent the hour is “late” in terms of
Second, turning to the argument that it is in fact too late to prepare and implement a new legislative apportionment plan for the upcoming primary elections, this Court should not ignore the amount of time that the Constitution provides for performance of this function in the first instance. And, the Court should not ignore past time periods for implementation of apportionment plans when considering the Commission’s claims of unacceptable confusion and impossibility of implementation. Our Constitution presumes that even in the event of a “deadlock” of the bipartisan legislative apportionment commission requiring the appointment of an eleventh tie-breaking member, an apportionment plan can be completed within thirty days of appointment of the tie breaker. N.J. Const, art. IV, § 3, ¶ 1; art. IV, § 3, ¶ 2. That is not to say that thirty days are required in all circumstances; for example, in 2001, Professor Bartels was able to select and obtain certification on a plan only fifteen days after his appointment. Page v. Bartels, 144 F.Supp.2d 346, 349 (D.N.J.2001). Indeed, the “lateness” of the plan in respect of its timing in the election process did not prevent its usage in 2001: the Bartels plan was “cleared” for implementation on April 24, 2001, only two months before the scheduled primary. Page v. Bartels, 248 F.3d 175, 198 (3d Cir. 2001). Notwithstanding the Commission’s delay to date in implementing the Appellate Division’s order, our Constitution presumes
The Commission also has not demonstrated a reasonable probability of success on the merits. Its position misapprehends the interplay between the Voting Rights Act, 42 U.S.C.A. § 1973, and our State Constitution. Stated simply, the Voting Rights Act’s' purpose is to remedy situations in which a complainant has met its burden of establishing a violation of voting rights, not to override all state law districting requirements.
The Commission here had an obligation to reapportion the legislative districts in compliance with the constitutional formula, unless that could not be accomplished without violating a federal
It is not enough for the Commission to argue that similar offenses to the State Constitutional provision concerning municipal boundaries appear to have occurred in the past. No similar legal challenge to past plans was ever presented. This Court’s duty, when squarely presented with the issue, is to consider and apply the Constitution’s unambiguous language unless the Commission can prove that such compliance cannot be obtained without violating federal law. As noted, however, the Commission has not even alleged much less established that it is impossible to devise a plan that satisfies both federal law and the State Constitution. Absent that allegation, its plan is presumptively invalid as a matter of law. Our Constitution must yield to federal voting rights requirements, but only when there is no other way to satisfy the pertinent federal requirement. The question is whether satisfaction of the requirements of the Voting Rights Act compels violation of the New Jersey Constitution. See, e.g., Matter of Legislative District
Finally, in comparing the relative hardship of the parties, it only need be repeated that the Commission created much of its alleged “hardship” by refusing, for over a month, to comply with the order to draw a new map. Notwithstanding that unjustified delay, there appears to be sufficient time to put in place a new map that conforms with our Constitution, if the Commission moves with dispatch. Even if the Commission took thirty days to complete a map, the successfully conducted 2001 election indicates the absence of any hardship here, where there is only minimally less time.
On the other side of the balance of hardships, absent a new district map for the upcoming election, Jersey City, Newark, and the rest of this State will be forced to endure a patently unconstitutional apportionment scheme. The Commission argues that continuance of that scheme need only be tolerated for two years. That is not technically correct. The members of the Senate are being elected to a four-year term; the members of the General Assembly are being elected to a two-year term. N.J. Const, art. IV, § 2, ¶ 2 and ¶ 4. But even taking the Commission argument at face value, utilizing an unconstitutional plan for any election cycle is intolerable if it is possible to put a conforming plan in place. The State is not confronted with an upcoming general election. The State is in preparation for a June primary election that precedes, by months, the statewide election that will not occur until November. Clearly, the State has the wherewithal to adjust to the practicalities involved in resolving this constitutional issue now.
I would deny the stay.
For granting and remanding — Justices VERNIERO and ALBIN — 2.
For denying — Justice LaVECCHIA — 1.
A party challenging a plan under the Act bears the burden of showing: (1) that a minority group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) the minority group is politically cohesive; and (3) the white majority votes sufficiently as a bloc to enable it usually to defeat the minority's preferred candidate. [Thornburg v. Gingles, 478 U.S. 30, 50-51, 106 S.Ct. 2752, 2766-67, 92 L.Ed.2d 25, 46-47 (1986).]
Concurrence in Part
Concurring in part and Dissenting in part.
The parties essentially do not dispute that dividing Newark and Jersey City each into three legislative districts violates the plain language of article IV, section 2 of the New Jersey Constitution. The critical issue is whether the higher authority of federal law mandates that departure from State law. In my view, that issue presents a mixed question of law and fact for which summary judgment is not appropriate. From that narrow perspective, I conclude at this juncture that both the Law Division and the Appellate Division erred in disposing of this ease in summary fashion.
Accordingly, I would remand this matter to the Law Division to conduct a hearing and establish a proper evidentiary record on which that court might then base an ultimate disposition. I would retain jurisdiction and review the Law Division’s determination on the merits only after an adequate record has been created. Because my intended disposition is premised on the belief that the matter is not ripe for summary judgment, I would leave the existing district lines in place for the 2003 legislative elections. For all practical purposes, those elections already have begun notwithstanding that nominating petitions are not due until next month under the applicable provision of Title 19.
Justice ALBIN joins in this opinion.
