JEROME ABERNATHY v. CARMELO GARCIA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-03861-12T1

A-3873-12T1

JEROME ABERNATHY, JAMES

CASTIGLIONE, AVI OHRING,

SHEILAH SCULLY and VASUDEV

TRIVEDI,

Plaintiffs-Respondents,

v.

CARMELO GARCIA,

Defendant-Appellant,

and

BARBARA NETCHERT, Clerk of

Hudson County,

Defendant.

______________________________

HUDSON COUNTY DEMOCRATIC

ORGANIZATION,

Appellant.

______________________________

Submitted April 25, 2013 Decided

Before Judges Simonelli and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1762-13.

Genova, Burns, Giantomasi & Webster, L.L.C., attorneys for appellant Carmelo Garcia in A-3861-12 (Angelo J. Genova and Rajiv D. Parikh, of counsel; Mr. Parikh and Maria R. Fruci, on the brief).

McManimon Scotland & Baumann, L.L.C., attorneys for appellant Hudson County Democratic Organization in A-3873-12 (William W. Northgrave, on the brief).

Zazzali,Fagella, Nowak,Kleinbaum & Friedman, attorneys for respondents (Flavio L. Komuves, of counsel and on the brief).

PER CURIAM

Carmelo Garcia seeks an emergent appeal of the April 19, 2013 Law Division order finding him ineligible pursuant to N.J.A.C. 4A:10-1.2(b) to run as a candidate in the Democratic Party primary for Member of the New Jersey General Assembly for the Thirty-Third Legislative District. (A-03861-12). The Hudson County Democratic Organization (HCDO) seeks an emergent appeal from the provision of the order denying its request to intervene.1 (A-3873-12). Respondents Jerome Abernathy, James Castiglione, Avi Ohring, Sheilah Scully and Vasudev Trivedi are registered Democrats who reside in the Thirty-Third Legislative District. Respondents challenged Garcia's certification on his nominating petitions stating that he is qualified to run for the

office of Member of the New Jersey General Assembly. The trial court erred in preventing Garcia from running for office by enforcing a provision of the New Jersey Administrative Code that is based on an outdated section of the Hatch Act, 5 U.S.C.A. 1501-1508. We grant Garcia's and HCDO's motions for an emergent appeal, consolidate these appeals for purposes of this opinion and summarily reverse.

The State Division of Elections accepted Garcia's petitions, and certified Garcia's nomination for the June 4, 2013 Democratic Party primary election.2 Garcia has served as the Executive Director of the Hoboken Housing Authority (HHA) since 2009. His salary is paid in part by federal funds.

Until recently, the Hatch Act prevented an individual from running for partisan office if his salary was paid in part by federal funds. 5 U.S.C.A. 1502(a)(3) (prior to the January 2013 amendment). Prior to running for office, Garcia received legal opinions from both the New Jersey Office of Legislative Services and the United States Office of Special Counsel3 advising that the Hatch Act Modernization Act of 2012

(Modernization Act),4 now permits him to run for partisan office as long as his salary is not entirely paid with federal funds. 5 U.S.C.A. 1502(a)(3).

The Administrative Code provision in question, N.J.A.C. 4A:10-1.2(b), was enacted in 1987 upon creation of the New Jersey Department of Personnel (now the Civil Service Commission) to memorialize provisions of the Hatch Act. It reads:

(b) No employee in the career, senior executive or unclassified services whose principal employment is in connection with a program financed in whole or in part by Federal funds or loans, shall engage in any of the following prohibited activities under the Hatch Act ( 5 U.S.C. 1501, et seq.):

1. Be a candidate for public office

in a partisan election. . . .

[N.J.A.C. 4A:10-1.2(b)(1).]

When it was first promulgated, the New Jersey Department of Personnel described N.J.A.C. 4A:10-1.2(b) as "in essence, a compressed and clear language version of federal legislation known as the Hatch Act." 19 N.J.R. 1366(a) (Aug. 3, 1987). As in the past, when this section of the Administrative Code was most recently readopted, it was accompanied by a statement noting that it "is subject to requirements set forth by Federal

law . . . consistent with, but . . . not exceed[ing], Federal requirements contained therein." 40 N.J.R. 4523(a) (Aug. 4, 2008); see 40 N.J.R. 1412(a) (Mar. 17, 2008); 35 N.J.R. 1409(b) (Mar. 17, 2003); 34 N.J.R. 3575(b) (Oct. 21, 2002); 29 N.J.R. 4458(b) (Oct. 20, 1997); 29 N.J.R. 3105(b) (July 21, 1997).

The Modernization Act was intended to reduce the restrictions on local employees' ability to run for office. See S. Rep. No. 112-211 at 5 (2012) (concluding that the "broad federal restriction on these state and local employees' ability to run for office, and on the electorate's opportunity to decide whether to elect them, is not justified").

New Jersey could, by way of a "little Hatch Act," place further restrictions than the Hatch Act on the right of federally-funded employees to run for state office. See Ut. Dep't of Human Servs. v. Hughes, 156 P.3d 820, 825-26 (Utah), cert. denied, 552 U.S. 826, 128 S. Ct. 202, 169 L. Ed. 2d 38 (2007). A state regulation based on recently outdated federal law, however, does not demonstrate New Jersey's intention to impose restrictions beyond those imposed federally on federally-funded employees.

The election statutes in New Jersey should be construed liberally to "allow the greatest scope for public participation in the electoral process" and support "New Jersey's well settled

policy in favor of contested elections . . . and to give voters more choices in a primary election." Schundler v. Paulsen, 340 N.J. Super. 319, 328-29 (App. Div.) (citation and internal quotation omitted), aff'd o.b., 168 N.J. 446 (2001). Accordingly, N.J.A.C. 4A:10-1.2(b) must be read through the lens of the current federal Hatch Act. See Lewis v. Catastrophic Illness in Children Relief Fund, 336 N.J. Super. 361, 369-70 (App. Div.) ("To be valid, a regulation must be within the fair contemplation of the delegation of the enabling statute." (citation omitted)), certif. denied, 168 N.J. 290 (2001).

Garcia is therefore qualified to run in the Democratic primary. This decision renders moot Garcia's application to invoke the committee on vacancies, formed pursuant to N.J.S.A. 19:23-12, in order to fill his position on the ballot, as well as HCDO's application to intervene.

Reversed.

1 HCDO claims it has an interest in ensuring that Garcia, a candidate it endorsed, appears as part of its "bracket" of candidates.

2 The Division of Elections, represented by the Attorney General's Office, takes no position in this litigation.

3 The federal agency responsible for investigating and prosecuting violations of the Hatch Act.

4 Pub. L. No. 112-230 2, 126 Stat. 1616, 1616, eff. Jan. 27, 2013 (amending 5 U.S.C.A. 1502(a)(3)).

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