In Re Hoboken Public Question 2 of 2012 -- Brief to Appellate Division -- NJ Appleseed PILC

7/28/2019 In Re Hoboken Public Question 2 of 2012 -- Brief to Appellate Division -- NJ Appleseed PILC

1/45

__________________________________: SUPERIOR COURT OF NEW JERSEY

In re: : APPELLATE DIVISION: DOCKET NO. A-003218-12T3

CONTEST OF THE NOVEMBER 6, 2012 :

ELECTION RESULTS FOR THE CITY OF :HOBOKEN, PUBLIC QUESTION NO. 2 : 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 APPLESEEDPUBLIC INTEREST LAW CENTER744 Broad Street, Suite 1525Newark, New Jersey 07102(973) [email protected]

Flavio L. Komuves, Esq.ZAZZALI, FAGELLA, NOVAK,KLEINBAUM, & FREIDMANOne Riverfront PlazaSuite 320Newark, New Jersey 07102

(973) [email protected]

Attorneys for Intervenor-Appellant Cheryl Fallick

On the Brief:Rene Steinhagen, Esq.Flavio L. Komuves, Esq.
mailto:[email protected]:[email protected]:[email protected]:[email protected]


2/45

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 THEELECTION RESULTS FOR THE CITY OF HOBOKEN, PUBLICQUESTION, NO. 2 IS WRONG AS A MATTER OF LAW ..............16

II. MS. FALLICKS MOTION TO INTERVENE SHOULD HAVEBEEN GRANTED..............................................24

CONCLUSION ....................................................40


3/45

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 Pre-School 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., 237N.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 forOffice 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 ofMayor in Borough of S. Amboy, Middlesex Cnty.,423 N.J. Super. 190 (App. Div. 2011)......................27


4/45

iii

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


5/45

iv

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 VotingChallenge, The Constitution Project and

election.org (2002)(www.pewtrusts.org/uploadedFiles/ProvisionalVoting.pdf)...............................................13

Pressler, Current N.J. Court Rules, comment on R.4:33-2 (2002).............................................24
http://www.pewtrusts.org/uploadedFiles/Provisional%20Voting.pdfhttp://www.pewtrusts.org/uploadedFiles/Provisional%20Voting.pdfhttp://www.pewtrusts.org/uploadedFiles/Provisional%20Voting.pdfhttp://www.pewtrusts.org/uploadedFiles/Provisional%20Voting.pdf


6/45

PRELIMINARY STATEMENT

This matter challenges the trial courts reversal of a

local public question election and its denial of intervention to

a key advocate opposing that question. Appellant-Intervenor

Cheryl Fallick, a Hoboken voter, resident in rent-controlled

property, member of the Hoboken Rent Leveling Board, and

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 voter, (1T18:8-13)1; and she could not

demonstrate that [her] interests [we]re not adequately

protected. (1T18:17-18). Subsequently, the lower court

reversed the Local Referendum Election on the basis of a summary

list of 114 persons, who Petitioners-Respondents (a group of

landlords supporting the referendum) alleged were displaced

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


7/45

2

Hoboken voters who had cast their provisional ballots outside

the City of Hoboken. These Hoboken voters, the landlords

argued, had been wrongfully denied the opportunity to

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). The

trial court agreed (albeit without examining official

provisional ballot affirmation statements and county

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 limited to the

trial courts erroneous interpretation of 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

22T refers to Transcript of February 11, 2013, Hearing beforeJudge Christine Farrington, J.S.C.


8/45

3

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 public interest concerning public question

elections and arises under circumstances likely to recur.

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.


9/45

4

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). Specifically, in early

November, Lt. Governor Guadagno issued approximately four

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. Specifically, at

issue herein is the directive entitled Directive Expanding

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 anypolling place in the State. . . .

c. All eligible votes must be counted.

i. The appropriate Board must count the votes of allregistered voters for office of President andU.S. Senator and any other statewide question;and

ii. The appropriate Board must count the votes castfor any office or question for which the voter isotherwise eligible to vote.

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 ACLU filed a petition on behalf of several

plaintiffs and all similarly situated persons (displaced


10/45

5

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). Attorneys for the

Lt. Governor, and several candidate campaigns and county

political parties, including the Hudson County 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. (Ia213).

The general election was held, and the Hoboken Public

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 In this way, a majority of the voters of Hoboken

3 Hoboken Public Question No. 2 asked the voters as follows:

Shall the City of Hoboken continue annual rental increaseprotections for current residents of rent controlled propertiesbut allow property owners to negotiate rents for vacant


11/45

6

rejected, in November 2012, a proposed initiative to roll back

critical rent control protections for the citizens of Hoboken.

PROCEDURAL HISTORY

On December 12, 2012, 15 individual petitioners (the

Respondents on this appeal), representing landlords who had

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. (Ia1-20). On

December 18, 2012, a hearing was held, and 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 andcondominium units from the rent leveling ordinance by adoptingthe proposed amendment to Chapter 155 of the Code of the Cityof Hoboken?


12/45

7

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 Parsippany-

Troy Hills, 192 N.J. 546, 554 (2007). As intervenor, Ms.

Fallick would have been the sole party before the Court

representing the interests of tenants; she was, among other

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. (Ia35;

1T10:18-23). As such, she reasoned that she had shown the

necessary requirements for both permissive intervention and

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


13/45

8

only scattershot allegations of misconduct, requiring dismissal

of the Petition. (1T12:13-25 to 13:1-8). Neither the Lt.

Governor, the Hudson County Board of Elections, the County

Superintendent, County Clerk nor the City of Hoboken

(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

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

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. (IT18:8-13). The Court also found that the other

parties in the case were 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.


14/45


15/45

10

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 and to dismiss the

Petition. Since that time, no other party, including the

Government Defendants, who were supposedly vigorously fighting

to uphold the election results, opted to file a Notice of Appeal

of the courts Order for a new election. Indeed, Case

4

On or about that same day, she submitted an OPRA request to theHudson County Board of Elections, the Hudson CountySuperintendent of Elections and the Hudson County Clerkrequesting a copy of the affirmation statements associated

with the provisional ballots that were the basis foroverturning the certified election results in the Local

Referendum Election. (Copy of OPRA Request, Motion Appendix).


16/45

11

Information Statements have been filed only on behalf of the

Hudson County Clerk, the City of Hoboken and the Petitioners.

(Ia205-210). The Lt. Governor, the Hudson County Board of

Elections and the Hudson County Superintendent has 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. Id. She posited that this supplementary

material demonstrated that even if the trial courts legal

theory was correct, there were at most 36 disenfranchised

voters (a number that is lower than the Public Questions margin

of victory), not the 114 found by the court. (Id.). This motion

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


17/45

12

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. (Ia 218-219).

In separate Orders, both dated June 10, 2013, 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


18/45

13

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 ballots, upon affirmation that they are

properly registered and otherwise eligible to vote. State

officials or local election boards subsequently review the

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.
http://www.pewtrusts.org/uploadedFiles/Provisional%20Voting.pdfhttp://www.pewtrusts.org/uploadedFiles/Provisional%20Voting.pdfhttp://www.pewtrusts.org/uploadedFiles/Provisional%20Voting.pdfhttp://www.pewtrusts.org/uploadedFiles/Provisional%20Voting.pdf


19/45

14

In New Jersey, those voters whose names are absent from a

registration list due to a move between counties are not

authorized to benefit from New Jerseys provisional voting

option. See N.J.S.A. 19:53C-3 (provides for provisional voting

only under certain circumstances); N.J.S.A. 19:53C-1(b)

(affirmation statement attached to provisional ballot states

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 Eleven years after the

5 Pursuant to HAVA, local election officials must offerprovisional ballots to persons whose names are not on the listof eligible voters or is told she is not eligible to vote. 42U.S.C. 15482(a). That is, any voter whose eligibility is indoubt on Election Day must be allowed to cast a paperprovisional ballot at the polling place, even if that ballotwill not be counted under state law. Id. (HAVA requires that anindividuals provisional ballot shall be counted as a vote in

that election only if it is determined that the person iseligible to vote under state law). Triggering events include avoters name does not appear on the registration list for the

polling place where he or she seeks to vote; an electionofficial challenges the voters eligibility; a voter lacks the

required identification; and someone votes after the pollingplace has closed. Such expansive use of the provisional ballot,however, does not ensure that the ballot will be counted.


20/45

15

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


21/45

16

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. The Lt. Governors November 3, 2013

Directive modified this 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. In this way, the Directive introduced

a temporary and limited version of inter-county provisional

voting to New Jersey; nothing more and nothing less.

LEGAL ARGUMENT

I. THE TRIAL COURTS DECISION TO REVERSE THEELECTION 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 theprovisional ballots effectively disenfranchised the114 voters voting outside the City and violated theLieutenant Governors directive which required:The appropriate Board must count the votes cast for


22/45

17

any other office or question for which the voter isotherwise 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). Notwithstanding this

blatant defect, the trial courts interpretation of the Lt.

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. Governorsdirectives and denied displaced voters the opportunity to casta Federal Write-In Absentee Ballot in lieu of a provisionalballot, thus depriving them of the opportunity to vote in localelections for which they were otherwise eligible (unless theyhad submitted a timely application for vote by mail ballot).


23/45

18

Day throughout the State must be understood in order to address

the issues raised by Appellant-Intervenor. In interpreting a

directive issued by an administrative agency pursuant to an

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. 366 (App. Div. 2007)

(noting that interpretation of regulations follows the

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. ___,

___ (App. Div. 2013) (slip op., p. 13). Accordingly, this Court

owes no special deference to the trial courts legal

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

N.J. 366, 378 (1995).

Because it is the responsibility of the court when

interpreting a statute, regulation or other administrative


24/45

19

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. In re State Funeral Dir. Assn, supra,

427 N.J. Super. at 274. 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 decided to expand[ ] the


25/45

20

ability of displaced voters to 1. ...vote by provisional

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

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 provisional and emergency ballots to each local

polling place in their respective jurisdiction only for the

ballot appearing on the electronic voting machine at that

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. Specifically, pursuant to

1.b. of the Directive,

[i]f a voter casts a ballot in a countyother than the voters county ofregistration, the Board of Elections in


26/45

21

receipt of the provisional ballot mustdeliver it to the Commissioner ofRegistration of the voters county of

registration by overnight mail or handdelivery. (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

their presidential and senatorial votes counted. If that voter

voted on Woodbridge Township local races or questions, such

votes would not be counted.

Therefore, the language of Section 1.c.ii, when read in the

context of the entire Directive, does not support the trial


27/45

22

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. See also Judge

Koprowskis Order, dated November 7, 2012 (Ia211) (denying

petitioners and all similarly situated displaced voters the

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 county registration records


28/45

23

supporting that conclusion was arbitrary and capricious.

Pursuant to N.J.R. Evid. 1006 (Summaries), the contents of

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. Moreover, given the failure of the

Government Defendants to require Respondents-Petitioners to

produce or identify the specific affirmation statements and

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 Rent Control Ordinance,


29/45

24

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 after institution of suit. The trial court

considered Ms. Fallicks application only under R. 4:33-1,

intervention as of right, and not R. 4:33-2, permissive

intervention, as she had requested (Ia223-224),7 and determined

that Ms. Fallick could not demonstrate that [she was] so

situated that a denial of intervention would impede [her]

ability to protect [her] claim of right. (1T18:4-7).

A review of the factual record established by Ms. Fallick

indicates that the trial courts application of the four

criteria for intervention as of right under R. 4:33-1 was

7 Rather the trial court appears to have conflated the four-prongtest set forth in R. 4:33-1, with the factors that are to beconsidered by the trial court when exercising its discretion

under R. 4:33-2. (1T17:16-25) Such factors include whethergranting the intervention will result in further undue delay,

will eliminate the probablility of subsequent litigation, andthe extent to which the grant therof may further complicatelitigation which is already complex.. Pressler, Current N.J.Court Rules, comment on R. 4:33-2 (2002).


30/45

25

clearly erroneous, as was its holding that the trial court has

discretion to deny Ms. Fallick intervention under that Rule, in

contrast to the Rule governing permissive intervention.

(1T17:16-17). As this Court explained in American Civil

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 appeal absent a clear showing of abuse of

discretion) and id. at 70 (The Rule governing permissive

intervention permits intervention at the trial courts

discretion).8

8 But see State v. Lanza, 39 N.J. 595, 600 (1963), cert. denied,375 U.S. 451 (1964), rehg denied, 376 U.S. 935 (1964) (wherethe 1963 N.J. Supreme Court created ambiguity with respect tothe standard of review of a motion to intervene as of right by


31/45

26

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 Judge Farringtons Decision setting aside the

results of the Local Referendum Election, and her Order

directing a new election. (Ia222). See also Warner Co. v.

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 presented are technically moot, the court may

address them on their merits when they involve matters of

particular public interest. (citations omitted). This is

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 practicerules, R.R. 4:37-1, 3, 4, with sufficient clarity to warrant afinding that the trial court either erred as a strict matter oflaw or abused its discretion in denying the motion.) (emphasisadded).


32/45

27

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 likely to recur. Specifically,

although winning candidates in New Jersey are routinely

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 The rights of public question

opponents matter certainly raises an issue of great public

importance, and thus should be considered by this Court.

Tumpson v. Farina, supra, ___ N.J. Super. at ____(slip op., p.

11) (citations omitted). In other words, despite being

technically moot, there is still an adversary proceeding in

9 Opponents and proponents of public questions have been givenaccess to the courts to question other aspects of the publicquestion 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 oropponents should not have access to the courts at other phases


33/45

28

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 bepermitted to intervene in an action if theapplicant claims an interest relating to theproperty or transaction which is the subjectof the action and he is so situated that thedisposition of the action may as a practicalmatter impair or impede his ability toprotect that interest, unless theapplicants 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). The four intervention as of right

criteria include whether 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. See ACLU v.

County of Hudson, supra, 352 N.J. Super. at 69-70; Atlantic

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.


34/45

29

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. Meehan v. K.D.

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 bepermitted to intervene in an action if hisclaim or defense and the main action have aquestion of law and fact in common.. . . Inexercising its discretion the court shallconsider whether the intervention willunduly delay or prejudice the adjudicationof 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 delay or prejudice to the original parties. ACLU v.

County of Hudson, supra, 352 N.J. Super. at 70 (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


35/45

30

intervention, and accordingly, the trial court abused its

discretion when denying her intervention under that rule as

well.

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. Fallicks certification accompanying her Notice of

Motion and her testimony before the trial court clearly

demonstrate such interest. (Ia33-36; 1T9:18-24). First, Ms.

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


36/45

31

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 as a rent control advocate related to the subject

matter of this litigation and justified intervention as of

right. 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

direct economic interest in the litigation. See e.g., V.W.

Credit v. Coast Auto Group, 346 N.J. Super. 246, 255-256 (App.

Div.), certif. denied, 172 N.J. 178 (2002) (considerable

investment made by proposed assignee of franchise considered

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).


37/45

32

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). Unfortunately,

the court did not specify the facts on which it based this

conclusion.

As noted above, Ms. Fallicks interest was to preserve the

current Election Results, and to make sure that Petitioners-

Respondents did not illegally overturn the election. She

specifically argued:

Democracy shouldnt have an admission fee.

If both sides are not represented, we, thecertified winners, have no justice. I amstepping up to do everything in my personalpower 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 affirmation statements and


38/45

33

registration records on which Petitioners relied in preparing

their list of 114 Displaced Hoboken Voters Who Voted Outside of

Hoboken. Her inability to secure that list of voters and the

supporting 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


39/45

34

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. (1T10:19-23). This lack of representation clearly

became apparent as the Government Defendants 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


40/45

35

for that property, had contractual right to approve the

appraiser the City used).

Furthermore, it is clear that lack of public resources to

properly litigate this matter meant that the Government

Defendants could not, were not willing to, and/or did not

represent Ms. Fallicks interests in this matter. For this

reason, the trial court, without factual support, wrongfully

denied Ms. Fallick the opportunity to represent her own

interests. Cf. City of Paterson v. Paterson General Hospital,

97 N.J. 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). As the court wrote in

Hanover Twp.,

One who is interested in pending litigationshould not be permitted to stand on thesidelines, watch the proceedings and expresshis disagreement only when the results ofthe battle are in and he is dissatisfied.


41/45

36

Id. The trial court in this matter simply did not discuss the

timeliness of Ms. Fallicks application. No one denies that Ms.

Fallick filed her motion to intervene six (6) days after

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). There is no indication in the

record that she delayed her response to the Petition, or

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. Furthermore, because


42/45

37

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). This conclusion is

completely unjustified. Ms. Fallick filed her motion on

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


43/45

38

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, she could have secured the affirmation

statements and registration records of those individuals

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,


44/45

39

I do have, as Ive stated, experience in a

quasi-judicial environment of the RentLeveling Board and, although not stated inthe papers, I had ten years as a businessrepresentative with a labor union, so I

frequently participated in artibrations,preparing evidence, preparing witnesses.So, I dont believe that I will slow downthe 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.


45/45

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

Documents

In Re Hoboken Public Question 2 of 2012 -- Brief to Appellate Division -- NJ Appleseed PILC