NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4131-15T3

NEW JERSEY ELECTION LAW

ENFORCEMENT COMMISSION,

Petitioner-Appellant,

v.

JOSEPH DIVINCENZO and

JORGE MARTINEZ,

Respondents-Respondents.

_______________________________

Argued November 1, 2016 – Decided

Before Judges Messano, Espinosa and Suter.

On appeal from the Election Law Enforcement 

Commission, Docket Nos. C-8 0700 01, 01-G2010 

and C-8 0700 01, 01-P2014.

Amanda S. Haines argued the cause for 

appellant (Ms. Haines, attorney; Ms. Haines,

Demery J. Roberts and Scott T. Miccio, on the 

brief).

Angelo J. Genova argued the cause for 

respondents (Genova Burns, LLC, attorneys; Mr. 

Genova, of counsel and on the brief; Lawrence 

Bluestone, Brett M. Pugach and Kevin R. 

Miller, on the brief).

The opinion of the court was delivered by

ESPINOSA, J.A.D.

The New Jersey Election Law Enforcement Commission (ELEC or 

APPROVED FOR PUBLICATION

September 8, 2017

APPELLATE DIVISION

September 8, 2017
2 A-4131-15T3

the Commission) appeals from an initial decision by an 

Administrative Law Judge (ALJ) that it lacked jurisdiction to 

issue a complaint, which was deemed adopted pursuant to N.J.S.A.

52:14B-10(c) at a time when the Commission lacked a sufficient 

number of members to act due to longstanding vacancies. The 

resulting question of first impression implicates the primacy of 

an administrative agency's decisional authority established by the 

Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -31, the 

exclusive jurisdiction of this court to review agency action, and 

the interpretation of the deemed-adopted provision as applied to 

the circumstances here. For the following reasons, we reverse.

I.

The underlying controversy was the subject of an earlier 

opinion, N.J. Election Law Enf't Comm'n v. DiVincenzo (ELEC I), 

445 N.J. Super. 187 (App. Div. 2016), in which we denied the 

Commission's emergent application to stay the time to act on the 

ALJ's initial decision until after the vacancies in the Commission 

were filled. We reviewed the facts in that opinion at length and, 

for ease of reference, recite the salient facts relevant to this 

appeal.

ELEC was created as an independent agency, N.J.S.A. 19:44A5, and charged with the duty to enforce violations of the New 

Jersey Campaign Contributions and Expenditures Reporting Act (the 
3 A-4131-15T3

Act), N.J.S.A. 19:44A-1 to -47. N.J.S.A. 19:44A-5 governs the 

membership of the Commission, specifying it shall consist of four 

members appointed by the Governor to staggered terms and that 

"[n]o more than two members shall belong to the same political 

party." 

In July 2011, the Commission consisted of four members: 

Chairman Ronald J. DeFilipis, Vice Chairman Walter Timpone, Amos 

Saunders and Lawrence Weiss. DeFilipis and Saunders were 

Republicans; Timpone and Weiss were Democrats. All four members 

of the Commission voted to conduct a formal investigation into 

purported violations of the Act by respondents Joseph DiVincenzo, 

a Democratic candidate, and his campaign treasurer, Jorge 

Martinez, during the 2010 general election for County Executive 

of Essex County and prior to the 2014 primary election. 

The Commission authorized the issuance of a complaint against 

respondents in January 2013. At that time, the vacancy created 

by Weiss's death in November 2011 had not been filled. In 

addition, because Timpone had recused himself, no Democrat 

participated in the authorization. Therefore, the two remaining 

members who voted to authorize the complaint were both Republicans.

The complaint was issued approximately nine months later in 

September 2013. 
4 A-4131-15T3

Respondents challenged the jurisdiction of the Commission to 

authorize the complaints, contending that a valid authorization 

required a bipartisan agreement to file a complaint and "the 

requisite number of Commissioners." The matter was transferred 

to the Office of Administrative Law (OAL) as a contested case.

Respondents filed a motion for summary decision in the OAL,

seeking dismissal of the complaint with prejudice pursuant to 

N.J.A.C. 1:1-12.5. The ALJ issued an initial decision on September 

16, 2015, in which he adopted respondents' argument that ELEC

required three Commission members from two parties to have the 

necessary quorum to act. Finding ELEC lacked jurisdiction to 

issue the complaint, he concluded the complaint was "void ab initio 

and must be dismissed."

Pursuant to N.J.S.A. 52:14B-10(c), ELEC had forty-five days 

in which to adopt, reject or modify the ALJ's decision and was 

permitted to extend that time for one forty-five day period before 

the ALJ's decision was deemed adopted as the agency's final 

decision. As we observed in ELEC I, supra, 445 N.J. Super. at 

193,

Under usual circumstances, the ALJ's decision 

would be subject to review by ELEC, which has 

the unquestionable authority to reject the 

ALJ's decision that it lacked jurisdiction to 

issue the complaint. See N.J.S.A. 52:14B10(c). At that point, ELEC's final decision 
5 A-4131-15T3

would be subject to review by this court. 

N.J.S.A. 52:14B-12.

As a result of Saunders' death in 2015 and Timpone's recusal, 

however, Commissioner DeFillipis was the only acting member of the 

Commission during the forty-five day period. No further extensions 

of the period in which the Commission could adopt, reject or modify 

the ALJ's decision were permitted without the unanimous consent

of the parties.

1 N.J.S.A. 52:14B-10(c). Respondents declined to 

provide such consent. 

ELEC sought emergent relief to toll the extension period. We 

granted the motion to file an emergent application and, after 

briefing and oral argument, denied the motion for a stay and 

vacated the order tolling the forty-five-day period for acting on 

the initial decision. ELEC I, supra, 445 N.J. Super. at 206. The 

initial decision by the ALJ was therefore deemed adopted pursuant 

to N.J.S.A. 52:14B-10(c).

In ELEC I, supra, 445 N.J. Super. at 194, we were not asked 

to decide the merits of the issue central to the ALJ's decision, 

i.e., whether ELEC lacked jurisdiction to issue a complaint because 

it was authorized by two of the three members, both of whom were 

Republican. That issue is presented to us now.

 

1 ELEC conceded it could not convene or take action based upon 

the participation of one commissioner.
6 A-4131-15T3

II.

Respondents present several arguments against appellate

review of the ALJ's decision. 

The notice of appeal from the deemed-adopted decision was 

filed by Commission staff. Respondents filed a motion to dismiss 

the appeal, arguing in part that staff members lacked authority 

to file an appeal on behalf of the Commission. As we noted in our 

order denying the motion to dismiss, even under respondents' 

interpretation of the quorum requirement, subsequent appointments 

to the Commission resulted in a sufficient number of members to 

form a quorum for action. We observed that, pursuant to Rule 2:8-

2, the Commission retained the authority to move for the dismissal 

of the appeal and stated that, in the absence of any motion to 

dismiss the appeal by May 15, 2017, we would proceed to the merits 

of the appeal. We conclude from the absence of any motion to 

dismiss by the Commission that it endorses the appeal and adopts 

the arguments advanced on its behalf. The argument regarding the 

standing of staff to pursue the appeal is therefore moot. 

Respondents press additional arguments regarding standing. 

They contend the Commission is not an "aggrieved party" and 
7 A-4131-15T3

therefore lacks standing to appeal its own final agency decision2

and that ELEC's appeal presents a non-justiciable political

question. Respondents also argue the Commission should not be 

able to circumvent the time limit in N.J.S.A. 52:14B-10(c) by 

pursuing an appeal of a deemed-adopted decision, an issue we 

address later in the decision. 

The Commission responds that it has the right to appeal the 

decision pursuant to Rule 2:2-3(a)(2), that the ALJ decided a 

purely legal issue that did not fall within "the ALJ's statutorily 

assigned role," and that, because "a clearly erroneous initial 

decision became a deemed-adopted final decision due to the agency 

head's inability to act or obtain additional extensions, appellate 

review must be available."

A.

In New Jersey, "standing to seek judicial review of an 

administrative agency's final action or decision is available to 

the direct parties to that administrative action as well as any 

one who is affected or aggrieved in fact by that decision." Camden 

Cty. v. Bd. of Trs. of the Pub. Emps. Ret. Sys., 170 N.J. 439, 446 

 

2 In support of their argument that ELEC lacks standing to appeal, 

respondents rely upon cases from other jurisdictions that are 

distinguishable because they concern whether an agency may appeal 

a decision affecting the rights of third-parties rather than the 

issue here: whether an agency has the right to appeal a decision 

that dictates how the agency itself may operate.
8 A-4131-15T3

(2002). "To possess standing . . . a party must present a 

sufficient stake in the outcome of the litigation, a real 

adverseness with respect to the subject matter, and a substantial 

likelihood that the party will suffer harm in the event of an 

unfavorable decision." Id. at 449.

The Commission is given broad authority under N.J.S.A.

19:44A-6 to enforce the Act and is a party to the action that is 

the subject of this appeal. The deemed-adopted decision 

effectively curtailed the Commission's discharge of its statutory 

responsibilities. We are satisfied that, under the circumstances 

here, ELEC's appeal is not barred on the ground that it is not an 

aggrieved party.

B.

Respondents argue the appeal presents a nonjusticiable 

political question because ELEC seeks to remedy issues "caused by 

the Governor's failure to appoint or the Senate's failure to 

confirm members of the Commission to fill vacancies." 

"The nonjusticiability of a political question is primarily 

a function of the separation of powers." Gilbert v. Gladden, 87 

N.J. 275, 281 (1981) (quoting Baker v. Carr, 369 U.S. 186, 210, 

82 S. Ct. 691, 706, 7 L. Ed. 2d 663, 682 (1962)). To dismiss a 

matter as nonjusticiable, one of the following "criteria must be 

inextricable from the facts and circumstances of the case": 
9 A-4131-15T3

a textually demonstrable constitutional 

commitment of the issue to a coordinate 

political department; or a lack of judicially 

discoverable and manageable standards for 

resolving it; or the impossibility of deciding 

without an initial policy determination of a 

kind clearly for nonjudicial discretion; or 

the impossibility of a court's undertaking 

independent resolution without expressing 

lack of the respect due coordinate branches 

of government; or an unusual need for 

unquestioning adherence to a political 

decision already made; or the potentiality of 

embarrassment from multifarious 

pronouncements by various departments on one 

question.

[Id. at 282 (quoting Baker, supra, 369 U.S. 

at 217, 82 S. Ct. at 710, 7 L. Ed. 2d at 686).]

The question presented here is one of statutory

interpretation and does not implicate any of the criteria for a 

nonjusticiable controversy identified by the Court in Gilbert. 

Ibid. Contrary to respondents' attempt to characterize it 

otherwise, our resolution of that question does not intrude upon 

the powers of other branches of government.

III.

We begin our review of the merits of the appeal by examining 

the scope of the ALJ's authority to issue an initial decision, 

relative to the decisional authority of the administrative agency.

Before the OAL was established in 1979, "most hearings were 

conducted by hearing examiners who were usually agency employees," 

compromising the appearance of "fairness and impartiality." In 
10 A-4131-15T3

re Kallen, 92 N.J. 14, 22 (1983). The OAL was established to 

address this problem:

The major change effected was to replace 

agency hearing officers with a new group of 

independent hearing officers, i.e., 

"administrative law judges." The ALJs now 

perform essentially the same functions that 

hearing examiners formerly performed in 

contested cases. They conduct the hearings, 

make recommended factual findings, and 

recommend decisions to the agency heads. 

[Id. at 22-23 (citing N.J.S.A. 52:14B-10; S. 

State Gov't, Fed, & Interstate Relations & 

Veterans Affairs Comm., Statement to S. 766

(May 1, 1978); In Re Unif. Admin. Procedure 

Rules, 90 N.J. 85, 91 (1982): Unemployed–

Employed Council of N.J., Inc. v. Horn, 85 

N.J. 646, 650 (1981)).] 

Like the hearing examiners they replaced, ALJs derive their

authority to hear a contested case from the agency. N.J.A.C. 1:1-

3.2(a) states, in pertinent part:

The Office of Administrative Law shall acquire 

jurisdiction over a matter only after it has 

been determined to be a contested case by an 

agency head and has been filed with the Office 

of Administrative Law . . . . The Office of 

Administrative Law shall not receive, hear or 

consider any pleadings, motion papers, or 

documents of any kind relating to any matter 

until it has acquired jurisdiction over that 

matter . . . .

[(Emphasis added).]

"While the statute creating the OAL focuse[d] on the integrity 

of the hearing function," King v. N.J. Racing Comm'n, 103 N.J.
11 A-4131-15T3

412, 420 (1986), "the Legislature intended no alteration of the 

regulatory authority or basic decisional powers of administrative 

agencies," In Re Unif. Admin., supra, 90 N.J. at 94. The 

Legislature preserved "agency jurisdiction and regulatory 

responsibility," with the agency retaining "the exclusive right 

ultimately to decide these cases." King, supra, 103 N.J. at 420.3 

It is the head of the agency who "determine[s] whether a case 

is contested," N.J.S.A. 52:14F-7(a), and makes the decision 

whether to refer the matter to the OAL or "to conduct the hearing 

directly and individually," N.J.S.A. 52:14F-8(b). The agency is 

not required to transfer the matter to the OAL or adopt any of the 

ALJ's findings or conclusions.4 See Kallen, supra, 92 N.J. at 20

(citing N.J.S.A. 52:14B-10(c)). 

ALJs "have no independent decisional authority." In re Unif. 

Admin., supra, 90 N.J. at 94. Because the agency's ultimate 

 

3 See also N.J.S.A. 52:14B-10(c) (gives the head of an agency the 

power to "adopt, reject or modify the recommended report and 

decision" of an ALJ); N.J.S.A. 52:14F-7(a) (APA "shall [not] be 

construed to deprive the head of any agency of the authority . . . 

to determine whether a case is contested or to adopt, reject or 

modify the findings of fact and conclusions of law of any" ALJ); 

N.J.S.A. 52:14F-8(b) (providing that no ALJ shall hear a contested 

case in which the agency head has determined "to conduct the 

hearing directly and individually").

4 Apart from appeals by a law enforcement officer or firefighter, 

no individual or entity may file a request for a contested hearing 

with the OAL. N.J.A.C. 1:1-3.1(b).
12 A-4131-15T3

decisional authority "is directly and integrally related to its 

regulatory function," any attempt by an ALJ "to exercise such 

authority would constitute a serious encroachment upon an agency's 

ability to exercise its statutory jurisdiction and discharge its 

regulatory responsibilities." Ibid. An agency's regulatory 

responsibilities extend to its decisions in individual contested 

cases:

While a contested case deals only with an 

individual dispute, its resolution 

necessarily reflects the agency's public 

policy, for "[i]n effect, an agency engages 

in ad hoc rulemaking every time it decides a 

contested case . . . . Thus, the agency's 

decisional authority over contested cases is 

directly and integrally related to its 

regulatory function." 

[Kallen, supra, 92 N.J. at 21 (alterations in 

original) (quoting In re Unif. Admin., supra,

90 N.J. at 93-94).]

The Supreme Court has acknowledged that ALJs are to be 

accorded independence in executing their "certain important 

responsibilities . . . to conduct hearings, make factual findings, 

and recommend decisions in contested cases for the various State 

agencies." In re Unif. Admin., supra, 90 N.J. at 94 (emphasis 

added) (citing N.J.S.A. 52:14F-5(n)). 

The ALJs' responsibilities — to conduct hearings, make 

factual findings and recommend decisions – frame the scope of 

their authority. So, in In re Tenure Hearing of Onorevole, 103 
13 A-4131-15T3

N.J. 548, 556 (1986), the Court found it appropriate, in light of 

the need for the ALJ to control the proceedings, to recognize the 

OAL's authority to make an initial decision on the disqualification 

of an attorney on ethics grounds. The Court noted, however, that 

all such decisions "would be subject to appropriate judicial 

review, whether on an interlocutory basis or otherwise." Ibid. 

As a result, "an initial ruling by the OAL would [not] in any way 

nullify or frustrate the exclusive authority of th[e] Court as to 

such matters." Ibid.

When, however, an ALJ's initial decision preempted the 

agency's final determination in Kallen, the Court reached a 

different conclusion. The Deputy Director of the agency ordered 

a remand to the OAL for additional evidence to be received and 

considered after the ALJ issued his initial decision. Kallen, 

supra, 92 N.J. at 19. The ALJ claimed he had the authority to 

refuse to comply with the Director's order of remand. Ibid. The 

Court observed, "if the ALJ's attempt to resist the remand were 

upheld, . . . the ALJ's unilateral act would have effectively 

predetermined, if not preempted, the Director's final decision, 

thereby seriously impinging upon the regulatory prerogatives of 

the agency." Id. at 23. The Court concluded, "the Director here, 

not the ALJ, had the final decisional authority. Hence, the ALJ 
14 A-4131-15T3

had no authority to refuse to obey the Director's Order of Remand." 

Ibid.

In Jones v. Department of Community Affairs, Division of 

Codes and Standards, Bureau of Rooming and Boarding House 

Standards, 395 N.J. Super. 632 (App. Div. 2007), we considered 

whether an ALJ could rule upon a constitutional issue in an initial 

decision. In holding an ALJ may do so, we identified certain 

conditions that provide appropriate parameters for such a 

decision. Id. at 636-37. We held an ALJ may do so (1) "to the 

extent the issues arise legitimately in the context of the 

contested case hearing and are necessary for a complete disposition 

of any genuine issue in the contested case" and subject to (2) 

"the agency head's authority to make the final decision in the 

case" and (3) "judicial review." Id. at 636.

Although it is arguable that the question regarding the 

applicable quorum rule arose legitimately in the context of the 

contested case here, the other safeguards we cited in Jones are 

notably absent if foreclosed by the deemed-adopted provision. The 

ALJ's "initial decision" on a question of law is conditionally 

permitted because it is subject to the agency's decisional 

authority and judicial review. As we have noted, it is only 

through the agency's exercise of jurisdiction that the ALJ derives 

any authority to hear a contested case. The ALJ's initial decision 
15 A-4131-15T3

dictated the parameters of the agency's jurisdiction and concluded 

the agency lacked jurisdiction. Clearly, such a decision must be 

subject to the agency's review if it is not to encroach upon the 

agency's ultimate decisional authority. Moreover, if the 

Commission is not permitted to appeal, there would be no judicial 

review of the ALJ's initial decision on a question of law. 

IV.

"Judicial review of administrative agency action is a matter 

of constitutional right in New Jersey." In re Proposed Quest 

Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 383 

(2013) (citing N.J. Const. art. VI, § 5, ¶ 4). Pursuant to that 

constitutional provision, the Supreme Court adopted Rules 2:2-3 

and 2:2-4, vesting the Appellate Division with exclusive 

jurisdiction for the review of administrative agency action and 

inaction, Prado v. State, 186 N.J. 413, 422 (2006); Pascucci v. 

Vagott, 71 N.J. 40, 52 (1976), "with the intention that every 

proceeding to review the action or inaction of a state 

administrative agency would be by appeal to the Appellate 

Division," Beaver v. Magellan Health Servs., Inc., 433 N.J. Super.

430, 441 (App. Div. 2013) (quoting Cent. R.R. Co. of N.J. v. Neeld, 

26 N.J. 172, 185, cert. denied, 357 U.S. 928, 78 S. Ct. 1373, 2 

L. Ed. 2d 1371 (1958)), certif. denied, 217 N.J. 293 (2014); Found. 

for Fair Contracting, Ltd. v. N.J. State Dep't of Labor, 316 N.J. 
16 A-4131-15T3

Super. 437, 451 (App. Div. 1998) ("An appeal from administrative 

agency action is exclusively cognizable in the Appellate 

Division.").

The exclusivity of our jurisdiction may not be circumvented 

by framing a claim as one ordinarily presented in the trial court, 

such as actions in lieu of prerogative writs or declaratory 

judgments, or through procedural maneuvers such as consolidating 

an administrative action with a legal action in the trial court. 

Beaver, supra, 433 N.J. Super. at 441-42; Mutschler v. N.J. Dep't 

of Envtl. Prot., 337 N.J. Super. 1, 9 (App. Div.), certif. denied,

168 N.J. 292 (2001); Pressler & Verniero, Current N.J. Court Rules, 

comment 3.2.1 on R. 2:2-3 (2017); see also Prado, supra, 186 N.J.

at 423-24 (reversing Appellate Division decision that found 

exception to Rule 2:2-3(a)(2) exclusive jurisdiction on efficient 

judicial administration grounds when a case was already pending 

in the Law Division).

The Constitution also vests the Supreme Court and the 

Appellate Division with "such original jurisdiction as may be 

necessary to the complete determination of any cause on review." 

N.J. Const. art. VI, § 5, ¶ 3; see also R. 2:10-5; In re Polk, 90 

N.J. 550, 577-578 (1982) (noting, despite the absence of an 

"express grant of jurisdiction . . . to revise an administrative 
17 A-4131-15T3

sanction on the grounds of excessiveness," the Court could exercise 

its original jurisdiction to do so). 

Therefore, even when a dispute has been "improvidently 

brought before [us]," we may elect to exercise original 

jurisdiction "in the public interest." Nat. Med., Inc. v. N.J.

Dep't of Health & Senior Servs., 428 N.J. Super. 259, 267 (App. 

Div. 2012) (citation omitted) (finding the Department of Health's

refusal to accept an application from appellants was so effectively 

dispositive of the case as to be functionally akin to a final 

judgment, permitting its appeal without an ensuing order); Vas v. 

Roberts, 418 N.J. Super. 509, 524 (App. Div. 2011) (exercising 

jurisdiction although the proper forum for challenging actions of 

the Speaker of the General Assembly was the Law Division); see 

also In re Election Law Enf't Comm'n Advisory Op. No. 01-2008, 404 

N.J. Super. 29, 39 n.6 (App. Div. 2008) (stating we regarded the 

advisory opinion on appeal as analogous to a final declaratory 

judgment, and "[i]f it were not, we would grant leave to appeal 

in light of the public importance of the issue"), aff’d, 201 N.J.

254 (2010).

"[T]he exercise of original jurisdiction is appropriate when 

there is 'public interest in an expeditious disposition of the 

significant issues raised.'" Price v. Himeji, LLC, 214 N.J. 263, 

294 (2013) (quoting Karins v. City of Atlantic City, 152 N.J. 532, 
18 A-4131-15T3

540-41 (1998)). In determining whether to exercise original 

jurisdiction, we "must weigh considerations of efficiency and the 

public interest that militate in favor of bringing a dispute to a 

conclusion, [and] also must evaluate whether the record is adequate 

to permit the court to conduct its review." Id. at 295. It is

particularly appropriate to exercise original jurisdiction "to 

avoid unnecessary further litigation, as where the record is 

adequate . . . and . . . the issue to be decided is one of law and 

implicates the public interest." Vas, supra, 418 N.J. Super. at 

523-24 (citations omitted). 

The issue here is purely one of law, with no further need to 

develop the record. As we observed in ELEC I, supra, 445 N.J. 

Super. at 196-97, this matter also presents an issue of significant 

public interest because "the public has a substantial interest in 

the enforcement of the Act" and the controversy "pit[s] two clearly 

enunciated legislative objectives against each other: the primacy 

of an administrative agency to render the final decision in a 

contested case . . . and the importance of precluding unnecessary 

delay in" agency action.

This appeal presents a third dimension, of constitutional 

import, because, if the restriction imposed by N.J.S.A. 52:14B10(c) ends all possibility of review by this court, the application 

of the deemed-adopted provision would tacitly, but effectively,
19 A-4131-15T3

thwart the exercise of the Appellate Division's exclusive 

jurisdiction. 

Because "judicial review of administrative agency 

determinations has the support of a special constitutional 

provision," it is "largely immunize[d] from legislative curbs." 

In re Senior Appeals Exam'rs, 60 N.J. 356, 363 (1972). Observing 

that, in New Jersey, "judicial review has been most freely 

available with the least encumbrance of technical apparatus," the 

Court reviewed federal decisions "where Congress admittedly has 

much broader power to preclude judicial review of agency 

determinations." Ibid. (citation omitted).

We derive the following principles from that review.

"[Legislative] intent to preclude judicial review [is] not to be 

lightly inferred, . . . reviewability [is] the rule, and . . .

nonreviewability [is] 'an exception which must be demonstrated.'" 

Id. at 364 (quoting Burlow v. Collins, 397 U.S. 159, 166, 90 S. 

Ct. 832, 838, 25 L. Ed. 2d 192, 199 (1970)). "[J]udicial review 

of a final agency action by an aggrieved person will not be cut 

off unless there is persuasive reason to believe that such was the 

purpose of [the Legislature]." Ibid. (quoting Abbott Labs. v. 

Gardner, 387 U.S. 136, 140, 87 S. Ct. 1507, 1511, 18 L. Ed. 2d 

681, 686 (1967)). 

Even before its amendment in 2014, the "evil" the deemed-
20 A-4131-15T3

adopted provision "was designed to remedy" was "[a]gency delay and 

inaction." King, supra, 103 N.J. at 421. By instituting an 

automatic approval provision triggered by agency inaction within 

the designated period of time, N.J.S.A. 52:14B-10(c) was designed

"to thwart undue delay in agency action" and "encourage prompt 

consideration and disposition of contested cases." Id. at 419. 

There is nothing in the language of the statute or its legislative 

history to support the notion that the Legislature intended to 

preclude judicial review of an ALJ's initial decision that was 

made final pursuant to the deemed-adopted provision when the agency 

was unable to discharge its decisional authority as a result of 

unfilled vacancies.5 We will not infer such intent, which would 

subvert our constitutionally-sanctioned mandate, where it has not 

been clearly demonstrated. See In re Senior Appeals Exam'rs, 

supra, 60 N.J. at 363.

We are unpersuaded by respondents' argument that allowing 

 

5 There is also some support for this conclusion in cases decided 

before the 2014 amendment to N.J.S.A. 52:14B-10(c). See, e.g.

King, supra, 103 N.J. at 424; Newman v. Ramapo Coll. of N.J., 349 

N.J. Super. 196, 204 (App. Div. 2002); Mastro v. Bd. of Trs., Pub.

Emps.' Ret. Sys., 266 N.J. Super. 445, 452 7.1 (App. Div. 1993) 

(noting "[i]f an agency has no power to reconsider an ALJ's 

decision which has been automatically approved pursuant to 

N.J.S.A. 52:14B-10(c), it is arguable that the agency should be 

allowed to appeal to this court to seek reversal of a manifestly 

erroneous decision").
21 A-4131-15T3

this appeal to proceed permits ELEC to circumvent the time 

restrictions of N.J.S.A. 52:14B-10(c). Although we recognize 

that, as amended, the deemed-adopted provision "does not provide 

a safe harbor for an agency that is unable to act within the 

prescribed period through no fault of its own," ELEC I, supra, 445 

N.J. Super. at 198, it is important to note the record is devoid 

of any effort by ELEC to evade the time restrictions of the 

statute. To the contrary, it sought emergent relief in an attempt 

to toll the time period until it had a sufficient number of members 

to act and even filed a timely appeal through its staff to preserve 

its right to appeal the deemed-adopted provision. In short, "there 

is no indication of bad faith, inexcusable negligence, or gross 

indifference on the part of the Commission." King, supra, 103 

N.J. at 421.6 The transcendent issue is not whether ELEC sought 

to circumvent the restrictions of the statute; it is whether our 

exclusive jurisdiction to review agency action may be circumvented 

by an ALJ's decision that denies the agency its authority to act 

and has become final through the deemed-adopted provision. Under 

the unusual circumstances of this case, we hold that it may not.

 

6 It is clear that, prior to the 2014 amendment, the record here 

would have militated against the application of the deemed-adopted 

provision. See id. at 420-23. 
22 A-4131-15T3

V.

We turn to the substantive issue here, whether there was a 

legal quorum for the authorization of the complaint. In addition 

to arguing an insufficient number of members voted, respondents 

argue the vote was defective because the voting members were not 

affiliated with two different political parties.7 We reject both 

these arguments.

A.

The question regarding the requisite number of voting members 

turns on whether the common law quorum rule applies or the Act 

establishes a different quorum requirement for the authorization 

of a complaint. 

In ELEC I, supra, we described the operation of the common 

law quorum rule:

Under the common law quorum rule, "a majority 

of all the members of a municipal governing 

body constitute[s] a quorum; and in the event 

of a vacancy a quorum consists of a majority 

of the remaining members." Ross v. Miller, 

115 N.J.L. 61-63 (1935); see also Matawan 

Reg'l Teachers Ass'n v. Matawan-Aberdeen Reg'l 

Sch. Dist. Bd. of Educ., 223 N.J. Super. 504, 

507 (App. Div. 1988) ("At common law, a

majority of a public body constitutes a 

 

7 Respondents also argue the Commission lacked subject matter 

jurisdiction over their case because it had no power to render a 

final decision due to the vacancies on the Commission. In light 

of our decision that the Commission had a legal quorum, we need 

not address this argument.
23 A-4131-15T3

quorum."). In King, supra, 103 N.J. at 418, 

our Supreme Court addressed statutory quorum 

language mirroring the common law quorum rule, 

finding:

[I]t is not relevant whether a 

member is physically absent, is 

disqualified because of interest, 

bias, or prejudice, or other good 

cause, or voluntarily recuses 

herself or himself. A member who 

is disqualified from participating 

in a particular matter may not be 

counted in determining the presence 

of a legal quorum.

[445 N.J. Super. at 199-200 (alterations in 

original).]

Thus, under the common law quorum rule, any position left 

vacant, either by death or recusal due to conflict of interest, 

is not counted to determine what the legal quorum is. "[W]here a 

quorum exists, a majority of those present are authorized to take 

action." Abbott v. Burke, 206 N.J. 332, 372 (2011); accord Ross, 

supra, 115 N.J.L. at 63. As applied here, a majority of the legal 

quorum voted to authorize the complaint because two members voted 

and the other two positions were "vacant" due to death and recusal.

We also observed,

The common law rule applies absent a 

"pertinent statute to the contrary." King v. 

N.J. Racing Comm'n, 205 N.J. Super. 411, 415, 

(App. Div. 1985), rev'd on other grounds, 103 

N.J. 412 (1986). See Hainesport Twp. v. 

Burlington Cnty. Bd. of Taxation, 25 N.J. Tax

138, 147 (Tax. 2009) (discussing statutes 

requiring a "majority of all the members" as 
24 A-4131-15T3

"evidenc[ing] a legislative intent to modify 

the common law rule"); see also 1991 Formal 

Op. Att'y Gen. N.J. No. 3 (May 7, 1991) ("Laws 

which define a quorum as a majority or larger 

percentage of 'all the members' or of 'the 

authorized membership,' or words to that 

effect, must . . . be read as requiring a 

fixed number of members which remains constant 

despite any vacancies.").

[ELEC I, supra, 445 N.J. Super. at 200

(alterations in original).]

"[A] statute in derogation of the common law must be strictly 

construed . . . ." Ross, supra, 115 N.J.L. at 64. However, "this 

rule will not be permitted to defeat the obvious purpose of the 

[L]egislature, or lessen the scope plainly intended to be given 

to the measure." Ibid. 

The statutory language at issue is contained in N.J.S.A.

19:44A-22, which addresses violations and civil penalties under 

the Act and provides, in pertinent part:

b. Upon receiving evidence of any 

violation of this section, [ELEC] shall have 

power to hold, or to cause to be held under 

the provisions of subsection d. of this 

section, hearings upon such violation and, 

upon finding any person to have committed such 

a violation, to assess such penalty, within 

the limits prescribed in subsection a. of this 

section, as it deems proper under the 

circumstances, which penalty shall be paid 

forthwith into the State Treasury for the 

general purposes of the State.

. . . .
25 A-4131-15T3

d. The commission may designate a 

hearing officer to hear complaints of 

violations of this act. Such hearing officer 

shall take testimony, compile a record and 

make factual findings, and shall submit the 

same to the commission, which shall have power 

to assess penalties within the limits and 

under the conditions prescribed in subsections 

b. and c. of this section. The commission 

shall review the record and findings of the 

hearing officer, but it may also seek such 

additional testimony as it deems necessary.

The commission's determination shall be by 

majority vote of the entire authorized 

membership thereof.

[(Emphasis added).]

It is undisputed that the underlined language constitutes a 

departure from the common law quorum requirement and requires 

three votes of the entire authorized membership of four. ELEC I, 

supra, 445 N.J. Super. at 200. Therefore, at least three of the 

four commissioners must vote on any "determination" to which that 

language applies. The Commission argues this requirement applies 

to decisions on violations and determinations of penalties. 

Respondents argue the fixed quorum requirement applies to all 

enforcement actions, including authorizing the issuance of a 

complaint.8

 

8 Respondents also contend the parties disagree about which 

section of the Act the Commission was acting under when it 

authorized the complaint. Our review reveals no such disagreement. 

The complaint was issued pursuant to N.J.S.A. 19:44A-22.
26 A-4131-15T3

The Act does not define the "determination" that must be made 

by a "majority vote of the entire authorized membership" of the 

Commission. See N.J.S.A. 19:44A-3. We must therefore determine 

whether the Legislature intended the Commission's authorization 

of a complaint to be a "determination" under the statute. 

Our primary objective is to ascertain the intent of the 

Legislature by first looking to the plain words of the statute.9 

DiProspero v. Penn, 183 N.J. 477, 492 (2005). We give "the 

statutory words their ordinary meaning and significance, and read 

them in context with related provisions so as to give sense to the 

legislation as a whole." Ibid. (citations omitted); Hardy ex rel. 

Dowdell v. Abdul-Matin, 198 N.J. 95, 101 (2009). "A statute should 

be read as a whole and not in separate sections." Fiore v. Consol.

Freightways, 140 N.J. 452, 466 (1995). A court's "task is to 

harmonize the individual sections and read the statute in the way 

that is most consistent with the overall legislative intent." 

Ibid. Therefore, "it is instructive to review other sections of" 

 

9 To the extent the provision might be considered ambiguous, 

warranting the consideration of extrinsic evidence, including 

legislative history, see In re Plan for the Abolition of the 

Council on Affordable Hous., 214 N.J. 444, 468 (2013) ("Only if 

the statutory language is ambiguous do courts look beyond it to 

extrinsic evidence, such as legislative history, for guidance."), 

we note that nothing in the legislative history provides compelling 

support for the conclusion that the Legislature intended all 

actions taken by the Commission to enforce the Act be approved by 

a majority vote of the entire authorized membership.
27 A-4131-15T3

a statute "which are designed to achieve the same result" in 

interpreting an undefined phrase. Perrelli v. Pastorelle, 206 

N.J. 193, 203 (2011). 

Aside from the explicit language that departs from the common 

law rule by establishing a different quorum requirement for a 

"determination" in N.J.S.A. 19:44A-22(d), similar language does 

not appear anywhere in the statute as a prerequisite for various 

forms of agency action.10 "When 'the Legislature has carefully 

employed a term in one place and excluded it in another, it should 

not be implied where excluded.'" Higgins v. Pascack Valley Hosp., 

158 N.J. 404, 419 (1999) (quoting GE Solid State, Inc. v. Dir.,

Div. of Taxation, 132 N.J. 298, 308 (1993)). However, if the 

Legislature intended "determination" to broadly apply to other 

agency action, specifically the issuance of a complaint, the 

absence of such language in other provisions is less noteworthy.

To provide context for our review of these other provisions 

in the Act, we note that the APA's definitions for "contested 

case," "administrative adjudication" and "adjudication" 

acknowledge categories of decisional agency action other than a 

"determination." N.J.S.A. 52:14B-2. A "contested case" is defined 

as

 

10 The language is mirrored, however, in the parallel provision 

applicable to gubernatorial elections, N.J.S.A. 19:44A-41(d).
28 A-4131-15T3

a proceeding . . . in which the legal rights, 

duties, obligations, privileges, benefits or 

other legal relations of specific parties are 

required by constitutional right or by statute 

to be determined by an agency by decisions, 

determinations, or orders, addressed to them 

or disposing of their interests, after 

opportunity for an agency hearing.

[Ibid. (emphasis added).]

The APA defines "Administrative adjudication" or 

"adjudication" to include "any and every final determination, 

decision, or order made or rendered in any contested case." Ibid.

(emphasis added). In each case, the APA anticipates that, in 

addition to a "determination" that resolves the case, the agency 

is authorized to make decisions and orders. 

Merriam-Webster defines "determine" as "to fix conclusively 

or authoritatively." Determine, Mirriam-Webster Dictionary, 

http://www.Mirriam-Webster.com/dictionary/determine (last visited 

Aug. 30, 2017). Among its definitions for "determination" are "a 

judicial decision settling and ending a controversy" or "the 

resolving of a question by argument or reasoning." Determination, 

Mirriam-Webster Dictionary, http://www.MirriamWebster.com/dictionary/determination (last visited Aug. 30, 2017).

Both the APA definitions and the dictionary definitions thus 

support an interpretation that "determination" applies to final 

resolutions as opposed to interim actions.
29 A-4131-15T3

In other statutory schemes, the Legislature has manifested 

its intent by including language that specifies the quorum 

necessary for "any" action. For example, N.J.S.A. 5:5-29 states, 

"A majority of the [New Jersey Racing] [C]ommission shall 

constitute a quorum for the transaction of any business, for the 

performance of any duty, or for the exercise of any power of the 

commission." (Emphasis added). In other words, the Racing 

Commission can transact no business, perform no duty and exercise 

no power without the required quorum. There is no similar sweeping 

limitation on the Commission's exercise of its authority under the 

Act. 

N.J.S.A. 19:44A-6 establishes the enforcement 

responsibilities and regulatory authority of ELEC. Among the 

powers explicitly delegated, the Legislature authorized the 

Commission to: "investigate allegations of any violations of this 

act, and issue subpenas for the production of documents and the 

attendance of witnesses," N.J.S.A. 19:44A-6(b)(9); "[f]orward to 

the Attorney General or to the appropriate county prosecutor 

information concerning any violations of this act which may become 

the subject of criminal prosecution or which may warrant the 

institution of other legal proceedings by the Attorney General," 

N.J.S.A. 19:44A-6(b)(10); and "render advisory opinions [through 

its legal counsel] as to whether a given set of facts and 
30 A-4131-15T3

circumstances would constitute a violation of any of the provisions 

of this act, or whether a given set of facts and circumstances 

would render any person subject to any of the reporting 

requirements of this act," N.J.S.A. 19:44A-6(f); see also N.J.S.A.

19:44A-6.1 (specifically authorizing the Commission to issue 

advisory opinions and regulations that relate to candidates for 

Lieutenant Governor).

Each of these authorized actions represents the exercise of 

authority to investigate or advise based upon an evaluation of 

information provided to the Commission. While each reflects some 

decision-making by the Commission, none entails a "determination" 

by the Commission that a violation of the Act has occurred or that 

a particular penalty should be imposed. The Act imposes no 

requirement that any number of commissioners must vote in favor 

of any of these actions before the Commission may proceed.11

In sum, the expansive authority explicitly delegated to the 

Commission to investigate suspected violations of the Act is not 

limited by either a general restriction that requires a specific 

 

11 The regulations promulgated by the Commission, N.J.A.C. 19:25-

1.1 to -26.10, shed no light on this question as they do not 

address the procedures for authorizing a complaint or voting 

requirements for any actions taken by the Commission. The 

Commission's regulations addressing complaints provide only for 

default final decisions where a respondent fails to respond to a 

complaint issued by the Commission within twenty days. N.J.A.C.

19:25-17.1A.
31 A-4131-15T3

quorum for "any" agency action or for specific quorum requirements

applicable to any action, except the "determination" in N.J.S.A.

19:44A-22(d). The requirement that a "determination" be made by 

a "a majority vote of the entire authorized membership," ibid.,

is a statutory requirement in derogation of the common law that 

warrants strict construction. The application of that principle 

here does not "defeat the obvious purpose of the Legislature" or 

diminish the scope of authority the Legislature intended to grant 

to ELEC. Ross, supra, 115 N.J.L. at 64. It also follows that we 

should not imply the explicit abrogation of the common law to 

provisions where the Legislature has not inserted such language. 

Based upon our review of the plain language of the Act, the 

definitions used by the Legislature in the APA and the application 

of established principles of statutory construction, we conclude 

that "determination" applies to the Commission's final resolution 

of a case and decisions regarding the penalty to be imposed, not 

to the decision to authorize a complaint. As a result, the common 

law quorum requirement applied and the authorization of the 

complaint was valid.

B.

Respondents also argue "the Commission's determinations may 

not be made by the Commissioners of a single party, but rather 

must be further supported with the agreement of at least one 
32 A-4131-15T3

commissioner of an opposing political party." In support of their 

position, they cite the membership requirement contained in 

N.J.S.A. 19:44A-5 that no more than two members of the four-member 

Commission be from the same political party. This reliance is 

misplaced. 

Although the Act plainly requires that no one political party 

dominate the Commission, it does not mandate membership by any 

political party. For example, N.J.S.A. 19:44A-5 would not be 

violated if four independents, with no party affiliations, were 

appointed to the Commission or if the membership were comprised 

of two members of one party and two independents. Moreover, the 

absence of any reference to political affiliations in the 

provisions that authorize specific actions by the Commission 

undermines respondents' argument that there should be a spillover 

effect from this statutory provision to all others in the Act. 

Respondents attempt to buttress their argument by citing 

comments made by Senator William E. Schluter at a 1973 public 

hearing of the Assembly Judiciary Committee, which was considering 

the bill that became the Act. Senator Schluter stated Commission 

action would take a bipartisan vote of three people and the draft 

legislation was revised to reduce the number of commissioners from 

five to four to avoid "a partisan flavor." S.B. No. 1124 "The New 

Jersey Campaign Contributions and Expenditures Reporting Act": 
33 A-4131-15T3

Public Hearing Before the Assemb. Judiciary Comm., 1972-1973 Leg. 

Sess. 56-57, 68-69 (1973) (statement of Sen. William E. Schluter). 

While these comments reflect reasoning relevant to the membership 

requirement, N.J.S.A. 19:44A-5, they provide no insight into the 

meaning to be given to the determination language contained in 

N.J.S.A. 19:44A-22(d) because that language was not added to the 

statute until an amendment was adopted three months later, in 

April 1973. See L. 1973, c. 83, § 22. We therefore find no basis 

to adopt respondents' interpretation that the Act requires a 

bipartisan vote to authorize a complaint.

Reversed and remanded. We do not retain jurisdiction.