LD4 Update: Speaker Oliver Inserts Herself with Letter to Chief Justice Rabner

If you have not been following the issues going on in LD4, it is actually quite simple.

Gabby Mosquera, a staff member for Democrat Mayor David Mayer in Gloucester Township, was handpicked by the South Jersey Democrat Machine to run for the newly opened seat in the 4th district after Assemblyman DiCicco was redistricted into the third. The only problem was that Mosquera did not actually live in the 4th, and therefore did not meet the one year residency requirement to be a certified candidate. When she was selected, it seemed pretty clear that the Democrats were aware of the problem, since their main argument is that the residency law is not constitutional.

Fast forward to November 2011, and Gabby wins the election over Republican Shelley Lovett. Lovett then filed a law suit to stop Mosquera from being seated due to this obvious breach of election law. In round one, the GOP came out on top. On appeal, the Democrats prevailed. And then in round three, literally minutes before Mosquera was due to be sworn in, the New Jersey Supreme Court enjoined her from taking the oath of office, and has now ruled that the seat will remain vacant until the case has been decided.

Well now it seems that Assembly Speaker Sheila Oliver wants to speed the process along. In a letter to Chief Justice Rabner, the Speaker lays out her case for why the court should essentially back off (pdf) (which you can read in full at the preceding link). Her argument is based in rather weak case law from the 1800s, and the questionable notion that somehow not seating Mosquera would be a hinderance and inconvenience to the operations of the Assembly and state government in general. I fail to find either point compelling enough to sway the Supreme Court.

First, Oliver says that in the “interest of comity” the Supreme Court should defer to the legislature on this issue. Comity is essentially courtesy. Oliver claims that under the New Jersey Constitution, Article IV, Section IV, Paragraph 2, the Assembly is the “judge of elections, returns and qualifications of its members.” Her emphasis is very obviously on the word qualifications.

I have two responses to this point.

  1. The Assembly has had its say on qualifications, and that qualification is that its members must live in the district for an entire year before being eligible for the ballot. This provision of the state constitution would actually be a good argument for why the residency requirement is constitutional in the first place.
  2. The clause allows the Assembly to define qualifications of its “members.” This is important because Mosquera is technically not a member of the Assembly. She was never sworn in, and future points made in the Speaker’s letter make it clear that she is aware of this fact. The Assembly indeed has the right to determine whether members of its body are qualified to serve, but there is no precedent for that extending to  judging the eligibility of someone to be on the ballot after an election has already taken place.

As an aside, I find this argument hilarious because the New Jersey Supreme Court is one of the least likely courts in the entire country to defer to anyone on anything. Which is something liberals like the Speaker usually love. For an example, see the twenty-somthing Abbott line of cases on school funding.

Next, Oliver argues that because the Secretary of State certified Mosquera to be on the ballot, there is reasonable reliance on that decision to allow her to run and thus assume the seat. This too is silly and somewhat disingenuous. Oliver surely must know that the Executive Branch is not going to unilaterally investigate the residency of candidates, but instead reasonably relies on the good faith of the party organizations. If the issue of residency was raised at the time, surely there would have been an investigation. However, no such challenge was made at the time, and with reason. Thinking back to to petition time last spring, the GOP was a total mess. The CCGOP was going through a leadership change thanks to nasty attacks on former Chairman Rick DeMichele from mostly anonymous character assassins, and redistricting had delayed the candidate selection process in Gloucester County. There was a scramble just to get Republicans on the ballot at all, and no time to do opposition research on residency.

The great thing about a qualification for office, much like jurisdiction in court, is that it does not have to be raised at the beginning or it is lost. If at any time one can show that a candidate had no right to be on the ballot, that person is no longer fit to serve.

Finally, Oliver says that having Mosquera absent from the Assembly will inconvenience the Assembly, its business, and Mosquera herself. My response to this? Tough. Blame the South Jersey Democrats for not playing by the rules.

None of these concerns have any legal significance as to whether Mosquera is fit to assumer her office. Having her absent from committee meetings will have no real effect on the process. She is a freshman Assemblywoman, the low man on the totem pole. Members miss meetings, it happens, I have seen it myself. Her committees will go on without her and be just fine.

Mosquera is apparently going to miss a training class for new members and therefore may not learn how to be a legislator. The simple solution to this is to just let her take the class anyway. It is not as though the seminar is going to give her any secret information that an exclusive class of individuals is privy to. The legislative process is a public one. If there is no real added cost to allowing her to sit in, then let her be there and learn. There is at least a fifty-fifty chance that the court will have her seated after this is all over anyway, and if they don’t, it would only be a waste her own personal time, not the Assembly’s.

Oliver is also concerned for Mosquera’s seniority within the Assembly. This is the least compelling argument of them all, which is probably why it was saved for last. The court has no interest in Mosquera’s status unless it has to do with where she lived and whether she could legally run. If she is seated this year, obviously she will still be a member of the 2012 class of legislators, and her seniority over the long term is virtually unaffected. If she is not seated at all because she violated the law, then she never had a right to any slowly elevating status among her peers in the first place.

With all due respect to the Speaker, this seems to be a another instance in which she should remain silent. Just as the courts showed us earlier this year throughout the Carl Lewis fiasco in LD8, they do have jurisdiction when it comes to judging the eligibility of candidates, and at this point, Mosquera is still nothing more than a candidate. The letter, although sent on Assembly letterhead from the Speaker rather than from the Democrat State Committee, is clearly politically motivated. Had the winner been a Republican, I am sure that the Assembly would be far less willing to assert its purported “authority” through its leadership.

Oral arguments before the court are set for next week, and I would expect a decision soon after as it seems that the courts are giving this case great priority.

 

Brian McGovern
About Brian McGovern 748 Articles
Brian McGovern wears many hats these days including Voorhees Township GOP Municipal Chairman, South Jersey attorney, and co-owner of the Republican campaign consulting firm Exit 3 Strategies, Inc.

4 Comments

  1. They should know better. Even Don had enough sense to lease an appt. in th 5t two years before Joe Roberts announced his resignation. Sounds like somebody wasn't doing there job over at CCD headquarters.

  2. At least the CC Republicans are trying. This group is like a cancerous tumor that even chemotherapy can't touch. I never cease to be amazed by how low people will stoop to gain control. What really amazes me is the number of people who continue to vote these people into office, again & again, even when they are called out for their corrupt behavior.

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