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In re Complaint filed by Atlantic County (12-10).

PROCEDURAL HISTORY

Complaint filed.  On December 3, 2010, via fax, a Complaint was filed by the Superintendent of Elections of Atlantic County, which alleged that the Seal-Use Protocol Training and Anticipated Sequoia AVC Advantage Firmware Upgrade is an unfunded mandate.  A summary of the Atlantic County Complaint may be viewed under Pleading Summaries.

To view the full version of the Atlantic County Complaint, please click here.

Council explains what is required to file a complaint.  By email dated December 7, 2010, the Council on Local Mandates, informed the Atlantic County Superintendent of Elections that in order for the Council on Local Mandates to consider your complaint, the complaint must be accompanied by a resolution of the Atlantic County Board of Chosen Freeholders or a letter from the Atlantic County Executive.  The Council referred Atlantic County to N.J.S.A. 52:13H-12 which reads as follows, in regards to filing a complaint with the Council.  "A complaint filed with the council shall be in the form of a resolution passed by the governing body of a county or municipality or by a local board of education. A county executive or a mayor who has been directly elected by the voters of the municipality may also file a written complaint with the council, after the mayor or county executive has provided the governing body with written notice of intention to file a complaint with the council." 

The Council then informed Atlantic County that it would hold their complaint in abeyance, pending reciept of an authorizing resolution by the board or authorizing letter from the County Executive which also indicates that written notice has been provided to the Board of Chosen Freeholders.

Council recieves Letter of Support from Atlantic County Executive, In Support of the Complaint filed by Atlantic County Superintendent of Elections.  On December 22, 2010, via mail, a letter was recieved from Dennis Levinson, County Executive, Atlantic County, in support of the complaint filed by the Superintendent of Elections on December 3, 2010 with copies to the Atlantic County Board of Chosen Freeholders.  A summary of the Atlantic County Complaint may be viewed under Pleading Summaries.

Council publication.  Because of the identity of the issue raised, the Council ordered that the complaint should be served on the Attorney General and the officials listed in Council Rule 9a.  The Council also determined that the Attorney General would be directed to file an Answer to the Complaint, and that any other official served with the Complaint that chose to do so might file an Answer, as Respondent.

By letter of December 23, 2010, the Complaint was circulated to the above-mentioned officials, and the letter also provides a schedule of due dates for filings of pleadings, including:

  • Answer(s) and any Motions directed to the Complaint (January 22, 2011).
  • Claimant response(s) to such Motions (February 11, 2011).
  • Requests to Appear as Amicus Curiae (February 18, 2011).
  • Objections to Requests to Appear as Amicus Curiae (February 25, 2011).

Council requests delay in Seal-Use Protocol Training and Anticipated Sequoia AVC Advantage Firmware upgrade training.  On December 28, 2010, via email, the Council contacted the Division of Elections and all interested parties to request a delay in the required Seal-use Protocol Training and Anticipated Sequoia AVC Advantage Firmware upgrade training slated for January 11-13 and January 18-20, 2011 for 90 days.  The requested 90 day delay by the Council, would move the training start date to April 11, 2011.  If this is not done voluntarily, the Council on Local Mandates will be required to consider the imposition of a preliminary injunction in view of the late complete complaint, in relation to the implementation date of the Director's order to Boards of Elections.

Please refer to N.J.S.A. 52:13H-16, in regards to the above request from the Council on Local Mandates (see the following).

52:13H-16. Preliminary Rulings

16. The council shall have the authority to issue a preliminary ruling enjoining enforcement of a statute or a rule or regulation pending the council's consideration of whether the statute or the rule or regulation constitutes an unfunded mandate whenever a complaint filed with the council by a county, municipality or school district demonstrates, to the satisfaction of the council, that significant financial hardship to the county, municipality or school district would result from compliance and there is a substantial likelihood that the statute or the rule or regulation is, in fact, an impermissible, unfunded State mandate.

L.1996,c.24,s.16.

Respondents' memorandum informing all Counties of Seal-Use Protocol Training.  On January 5, 2011, via email, a memorandum from Robert Giles, Director, Division of Elections, was forwarded to the Council's office by John W. Mooney, Superintendant of Elections, Atlantic County, in regards to the Seal-Use Protocol training sessions scheduled to begin on January 11, 2011.  This email was sent and made direct reference to the Council's request on December 28, 2010 to the Division of Elections to postpone training until April 2011. 

Council issues Order Enjoining Enforcement.  On January 7, 2011, via email, the Council issued a Order Enjoining Enforcement on the Department of State, Division of Elections, in regards to the Seal-Use Protocol Training and Anticipated Sequoia AVC Advantage Firmware Upgrade training scheduled to take place on January 11-13 and January 18-20, 2011 at the Ocean County Voting Technology Center, Lakewood, NJ.  The Council determined in this order that the Department of State shall file and serve its Answer on or before January 17, 2011.  A hearing on whether to make enjoinment of the Seal-Use Training Protocol order permanent will be held on Monday, January 24, 2011 at 1 p.m. in the State House Annex.  (see 1-7-11 Order Enjoining Enforcement)

Council issues date changes for respondent Answer and hearing in reference to Order Enjoining Enforcement.  On January 14, 2011, via email, the Council informed all interested parties that some changes had been made to calendar of events, due to some of the filing deadlines not being on normal business days.  The changes to the calendar of events in the Atlantic County Matter (12-10) are listed below:

  • The Respondent answer in regards to the Order Enjoining Enforcement was to be filed on or before January 17, 2011, that date has now been moved to Tuesday, January 18, 2011.
  • The hearing in regards to the Order Enjoining Enforcement was to be held on January 24, 2011, at the State House Annex, that date has now been moved to Tuesday, February 22, 2011.
  • Answer(s) and any Motions directed to the Complaint were to be filed on or before January 22, 2011, that date has now been moved to January 24, 2011.

Respondents' Response to Council's Order Enjoining Enforcement.  On January 18, 2011, via email, from Cecilia Ashbock, on behalf of Todd Wigder, Deputy Attorney General, the Response from the Department of State, in regards to the Council's Order Enjoining Enforcement on January 10, 2011.  A summary of the letter brief can be viewed under Pleading Summaries and the full version of the document can be viewed by clicking here.

Respondents' Motion to Dismiss issued.  On January 24, 2011, via email and hand delivery, from Florine Linzie, on behalf of Todd Wigder, Deputy Attorney General, for the Respondent Department of State, a Notice of Motion to Dismiss the Complaint, a Letter in Support of the Motion, and a Certification of Service.  A summary of the Motion to Dismiss can be viewed under Pleading Summaries, and the full version of the document can be viewed by clicking here.

Council issues Notice of Hearing.  On February 4, 2011, via email, the Council informed all interested parties in their Notice of Hearing in the Atlantic County Matter, of the date, time and location of the scheduled hearing (see below).

Date/Time of Hearing:  February 22, 2011, at 1:00 p.m.

Place of Hearing:  Committee Room 8, 3rd floor, State House Annex, Trenton, NJ.

Purpose of Hearing:  To hear legal argument of Claimant County of Atlantic, and Respondent State of New Jersey Department of State, regarding Motion to Dismiss and Opposition to Preliminary Injunction.

Claimants Letter Brief in Support of its Application for Preliminary Injunction.  On February 9, 2011, via email, from Bernadette Stevens on behalf of Maneesha S. Joshi, Esq., Assistant County Council, Atlantic County, for the Claimant Atlantic County's Letter brief in Support of its Application for Preliminary Injunction.  A summary of the letter brief in support of its application for preliminary injunction can be viewed under Pleading Summaries, and a full version can be viewed by clicking here.

Respondents' Letter Brief in Opposition to Claimants' Request for Summary Judgment and In Support of the Motion to Dismiss.  On February 15, 2011, via email, from Florine Linzie on behalf of Todd Wigder, Deputy Attorney General, for Respondent Department of State Letter on Behalf of Department of State in Opposition to Atlantic County's Request for Summary Judgment and in Support of the Department's Motion to Dismiss the Complaint.  A summary of the pleading summary can viewed under Pleading Summaries, and the full version can be viewed by clicking here.

Council issues Notice of Hearing Postponement.  On February 17, 2011, via fax and mail, the Council informed all interested parties of the Postponement of the Scheduled Hearing on February 22, 2011, in the Atlantic County Matter (12-10).  See below:

On February 1, 2011, the terms of four Council members expired and the appointments or reappointments of the expired members have not been made.  There are five appointments to be made to the Council and those appointments are from the Governor's Office and the Speaker of General Assembly office. 

The members whose terms expired on February 1, 2011, are as follows:

Victor R. McDonald, III: term expired 2-1-11; appointed by Governor Corzine (Republican)

Ryan Peene: term expired 2-1-11; appointed by Governor Corzine (Republican)

Rita E. Papaleo: term expired 2-1-11; appointed by Governor Corzine (Democrat)

Vacant: term expired 2-1-11; appointee of Governor (Democrat)

Vacant: term expires 2-1-12; appointee of the Speaker of the General Assembly

Since the vacancies have not been filled, the Council on Local Mandates is unable to function at this present time per the Council's Statute.  The Council must have five members available to handle any business for the Council on Local Mandates, please see below the Council's Statute 52:13H-9 Organization of Council.

52:13H-9. Organization of council

9. The council shall organize as soon as possible after the appointment of its members. The first chair of the council shall be appointed by the Governor from among the members thereof. At the first meeting of the council held after February 1st in each subsequent year, the members shall choose one of their number to serve as chair of the council. While any one of the council's nine members may be chosen by the Governor as the council's first chair, subsequent chairs shall be chosen by the members in a manner which ensures that the chair rotates annually among the legislative, gubernatorial and judicial appointees. At least five members of the council shall be present in order for the council to conduct its business. A ruling of the council shall require at least five votes.

L.1996,c.24,s.9.

Council reissues Notice of Hearing.  On April 8, 2011, via email, the Council informed all interested parties in their Notice of Hearing in the Atlantic County Matter, of the date, time and location of the scheduled hearing (see below).

Date/Time of Hearing:  May 5, 2011, at 10:00 a.m.

Place of Hearing:  Mock Trial Courtroom, NJ State Bar Association, NJ Law Center, New Brunswick, NJ.

Purpose of Hearing:  To hear legal argument of Claimant County of Atlantic, and Respondent State of New Jersey Department of State, regarding Motion to Dismiss and Opposition to Preliminary Injunction.

Council issues their Decision and grants Summary Judgment in favor of Atlantic County.  On May 5, 2011, after hearing legal argument in this matter, the Council decided to grant Summary Judgment in favor of Claimant, Atlantic County.  All parties were notified by email on June 7, 2011, that this matter was discussed and decided by the Council and the reasons will be set forth in the forthcoming written opinion. 

Council issues their written opinion.  On November 16, 2011, via email, the Council issued their written opinion in the matter of Atlantic County to all interested parties.

To view the full version of the written opinion, please click here.

PLEADING SUMMARIES.

This portion of the site reproduces summaries, written by parties and amici, of their pleadings, as they are filed with the Council, beginning with the filed Complaints.  The summaries do not represent the views of the Council; they are provided to facilitate understanding of the positions reflected in the pleadings.

Complete copies of all filed pleadings may be obtained by contacting the Council office as described under Address & Telephone.

Claimant County of Atlantic's Summary of Complaint:

"The State of New Jersey, Department of State, Division of Elections by order of Robert F. Giles, Director, has mandated to all counties in New Jersey that all voting machine technicians, whether full time or part time, attend a training class on seal-use protocols.  (see attached memorandum)

Atlantic County utilizes 13 part-time technicians on Election days.  These employees are not regular County employees and must be compensated for their time and travel to attend these state-mandates training sessions.

Atlantic County has made a suggestion of $125.00 per part-time technician for the day's training.

13 technicians x $125.00=$1625.00

Atlantic County has asked the NJ Division of Elections Director Robert F. Giles for reimbursement to these part-time techs since the State is mandating the training.  Mr. Giles has advised us that the State will not be reimbursing the Counties any monies that they must expend.  (see attached email)"

The above summary is a quotation from the Complaint by John W. Mooney, Superintendent of Elections, on behalf of the County of Atlantic, on December 22, 2010.

Respondent New Jersey Department of State's Answer in regards to the Order Enjoining Enforcement.

"The Department of State opposes any ruling that enjoins mandatory seal-use protocol training while the Council considers the merits of the Superintendent's complaint because the complaint does not demonstrate, as it must under N.J.S.A. 52:13H-16, that a significant financial hardship to the County will result from compliance with the training.  The Superintendent has suggested that the cost to the County to attend the training is only $1625.  Nor does the Superintendent's complaint demonstrate that there is a substantial likelihodd that the required training is an impermissable, unfunded State mandate.  The training at issue here has been ordered by a court and, therefore, no "statute, rule or regulation," as required by the Constitution and N.J.S.A. 52:13H-12, has imposed an impermissable, unfunded State mandate."

The above is the pleading summary in regards to the Order Enjoining Enforcement filed by Todd A. Wigder, DAG, on behalf of Respondent the New Jersey Department of State, on January 18, 2011.

Respondent New Jersey Department of State's Motion to Dismiss Complaint.

"This is a motion by respondent Department of State that asks the Council on Local Mandates to dismiss the complaint filed by the Atlantic County Superintendent of Elections.  The Council should dismiss the complaint because it fails to state a claim that is cognizable by the Council.  The Superintendent alleges that a memorandum scheduling seal-use protocol training for County elections employees is an unfunded State mandate.  However, the training is required by a court order and the memorandum merely schedules the training.  Therefore, no statute, rule or regulation is implicated by the complaint or imposes any unfunded State mandate, as required by the Constitution and the Local Mandates Act.  Indeed, the memorandum does not require any additional direct expenditures by the County.  Rather, the County's arrangement with its part-time employees is the cause for any additional expenditures.  Thus, the Council should dismiss the complaint."

The above is the pleading summary in regards to the Answer filed by Todd A. Wigder, DAG, on behalf of Respondent the New Jersey Department of State, on January 24, 2011.

 Claimant County of Atlantic's Letter Brief In Support of its Application for Preliminary Injunction.

PROCEDURAL HISTORY AND STATEMENT OF FACTS

"The material facts in this case are not in dispute.  On or about December 3, 2010, John W. Mooney, Superintendent of Elections for Atlantic County (Superintendent), with the consent of the Atlantic County Executive, filed a Complaint with the Council on Local Mandates (the Council), stating that the memorandum of November 16, 2010 authored by Robeli Giles, Director of the Division of Elections, is a "Statute, Rule or Regulation" that does not authorize resources, other than property tax, to offset direct expenditures, and, therefore is an impermissible unfunded State mandate.  This matter has been supported by the County Executive of Atlantic County, Dennis Levinson, via his correspondence dated January 22, 2010.  (See letter of County Executive, Exhibit A).  The Board of Chosen Freeholders for the County of Atlantic was also sent a copy of the letter for its support in this matter.

The Complaint sets forth the fact that the County currently has thirteen (13) part-time voting machine technicians who, unlike regular employees at the County, must be compensated for time and travel to attend required training.  The Department of State and its Division of Elections (hereafter the State) alleges that the memo from Giles dated November 16, 2010 is simply a memo that informed all County Superintendents and Board of Elections that the State was now required by Superior Court Order in Gusciora v. Corzine, MER-L-2691-04, to implement a Seal-Use protocol for security enhancements used in all voting machines in the twenty-one counties and that the "protocol must include training."  Specifically, the memo states:

This proposal must include training which will be conducted as follows: first, any individual whose job duties encompass access to the internal components of a voting machine is mandated to attend training.  This requirement applies to any individual employed by a county, whether on a full-time or part-time basis, and it also applies to any individual employed by a vendor who is contracted for voting machine duties.  To be clear, even if an individual is hired only for the day of an election to perform voting machine duties, that person is subject to training.  There would be no exceptions to this requirement."  (See Exhibit A to the State's Letter Brief in Opposition to the County's application).  (Emphasis Added).

 The State is suggesting that the Court Order in Gusciora required the training that was the subject of Giles memorandum.  However, the County respectfully disagrees with this assertion.

 In the Court opinion in the Gusciora matter, which is attached as Exhibit B to the State's application, the Order in part states, on page 3, as follows:

FURTHER ORDERED that the State shall develop a Seal-Use protocol for the tamper-evidence seals on the State's voting machines, and that such protocols shall include a training curriculum and standardized procedures for the recording of sealed serial numbers and maintenance of appropriate serial number records.

Further, on page 4 of the opinion, the court states:

FURTHER RECOMMENDED that the State develop and implement Statewide training and training materials for County Clerks, Board of Election, Superintendents of Election, Technicians, Warehouse Personnel and District Board workers.  Part of that training must include protocols for the chain of custody and maintenance of election records and documentation, including, but not limited to, authorization slips, poll books, result cartridges, seals and serial numbers, emergency ballots, provisional ballots, mail in ballots, military and overseas ballots, ballot bags, voting machine tapes and printouts.  (Emphasis added).

Although it is unclear exactly what a Court recommendation is as opposed to an Order of the court, nonetheless Mr. Giles sent the November 16, 2010 memo to the County of Atlantic, thereby mandating that training be completed, but did not provide any source of funds as required by the New Jersey Constitution and the statutes and regulations promulgated thereto.

 ARGUMENT

The Council must grant summary judgment to the County, as the requirement of Seal-Use protocol training results in a significant financial hardship to the County, and the training ordered by the State is an impermissible unfunded State mandate.

The standard for summary judgment was addressed in In re Board of Education and Borough of Highland Park.  Requests for summary disposition are to be reviewed "with great caution" c(Id. At 13), because decisions of the Council are final.  This type of relief may be granted "only if the Council concludes that no further factual information would be relevant to its decision."  In In re Ocean Twp. (Monmouth County) and Frankford Twp. at 5.  As there is no material factual dispute, this matter is ripe for the Council's determination for summary judgment.  In the alternative, should the Council determine that this matter is not ripe for summary judgment, the County respectfully requests that the State be enjoined from issuing this mandate.

 The Counsel has authority to enjoin enforcement of a Statute, Rule or Regulation pursuant to N.J.S.A. 52:13H-16, which states:

The Council shall have the authority to issue a preliminary ruling enjoining enforcement of a statute or a rule or regulation pending the Council's consideration of whether the statute or the rule or regulation constitutes an unfunded mandate whenever a complaint filed with the Council by a county, municipality or school district demonstrates, to the satisfaction of the Council, that significant financial hardship to the county, municipality or school district would result from compliance and there is a substantial likelihood that the statute or the rule or regulation, is, in fact, an impermissible unfunded State mandate.

The State argues that the complaint does not demonstrate either a significant financial hardship or that there is a substantial likelihood that a statute, rule or regulation imposes an impermissible unfunded State Mandate.  The State indicates that of "critical importance," the Complaint alleges that only thirteen (13) part-time employees are affected and that the training is estimated to cost approximately $1,600.00.  Although the State may not consider this to be a significant financial hardship to the County, the County does have a significant financial hardship in having to pay for an unfunded State mandate.  In these difficult economic times, the County Executive and the Board of Chosen Freeholders seeks to save any and all monies.  To argue that $1,600.00 is not a substantial financial hardship to the County is unwarranted and unsubstantiated, and in fact a bit surprising considering the nature of the economy throughout this country.  Therefore, the County does meet the burden to demonstrate a significant financial hardship, and satisfies the requirement of N.J.S.A. 52:13H-16.

In addition, the County asserts that the Giles memorandum is an unfunded State mandate, which is prohibited by the New Jersey Constitution.  The New Jersey Constitution, Article 8, Section 2, Paragraph 5 states in relevant part:

Any provision of such law, or of rule or regulation issued pursuant to a law, if it is determined in accordance with this paragraph to be an unfunded mandate upon Board of Education, Counties and Municipalities because it does not authorize resources, other than property tax, to offset the additional direct expenditures required for the implementation of the law or rule or regulation, shall, upon such determination cease to be mandatory in its effect and expire.

Although the State argues that the Giles memorandum is neither a statute, rule or regulation, the County respectfully disagrees.

The Local Mandates Act (LMA) does not define the phrase "rule or regulation," but the State has failed to demonstrate that the restrictive application implied by its' argument has been adopted.  On several occasions since the adoption of the LMA, the Legislature has indicated in its statements of policy that clearly contemplate a broad defInition of the phrase "rule or regulation."  For instance, L. 2000 C. 126, Section 1, codified at N.J.S.A. 52:13H-21 provides:

Over the past four decades, prior to adoption of the Constitutional Amendment prohibiting unfunded State mandates on local government, the State routinely and systematically. imposed greater and greater numbers of mandates, orders, directives, and burdens and the underlining on local government  (Emphasis added).

Chapter 126 then granted Legislative relief as to a specific group of local mandates that were not otherwise subject to the LMA because they had been imposed prior to 1996, when the amendment was approved.  See N.J.S.A. 52:13H-2.  The Legislature's demonstrable concern, consistent with the remedial purpose of the LMA, goes with the fact of the mandated burden, not with the outward form, as the State would have it.  (Emphasis added).  A similarly pragmatic approach is taken by the Administrative Procedure Act, N.J.S.A. 52: 14B-2(e), which defines the word "rule" as an "agency statement of general applicability and continuing effect that implements or interprets law or policy."  The Supreme Court reinforced this conclusion.

The Supreme Court explicitly recognized that "As an alternative to acting formally through rule making or adjudication, administrative agencies may act informally." In Re The Quest for Solid Waste Utility Customer Lists, 106 N.J. 508, 518 (1987).  (Emphasis added).  The Court continued "informal action constitutes the bulk of the activity of most administrative agencies.  It is indispensable, wide spread and perhaps abused."  Id.

In In re the Matter of Complaint filed by the Counties of Monis, Wanen, Monmouth and Middlesex, decided December 22, 2006, opinion issued October 31, 2006, the Counties of Morris, Warren, Monmouth and Middlesex (claimants) filed complaints with the Council contending that a change in State policies governing the pickup and disposal of deer carcasses violated the Constitutional prohibition against new unfunded mandates, N.J. Constitution, Article 8, Section 2, Paragraph 5, as codified in the LMA.  In a press release issued on June 7, 2006 (hereinafter June 7th Notice), the New Jersey Department of Transportation (NJDOT) informed counties and municipalities that its practice of removing dead deer from all State, County and local roadways, in place for at least the past 20 years, would end on September 30, 2006, after which "Counties and Municipalities should be prepared to begin performing this function in their jurisdictions."  The Commissioner of the NJDOT answered the complaint at the Council's request.  The Commissioner of the New Jersey Department of Environmental Protection (NJDEP) also answered the complaints.  Respondent NJDEP filed a Motion to Dismiss the complaint, contending that there was neither a Constitutional nor statutory requirement that it perform deer removal services and denying that its past funding practices raised to the level of a statutory mandate.  The Council unanimously denied the State's Motion to Dismiss the complaint, and granted Summary Judgment on behalf of the claimant.  The Council noted that the practical effect of the June 7th notice was to create an unfunded mandate.  The Council could not accept the State's unrealistic assertion that it had not "ordered anyone to do anything."  To the contrary, as the amicus curiae brief filed by the New Jersey Association of Counties (NJAC) pointed out, the June 7th notice stated that the deer removal policy is "being changed for FY 2007."  The NJAC also noted a follow up (undated) letter from NJDOT's Deputy Commissioner Stephen Dilts to all counties and municipalities stating that "they should be prepared to begin performing this function in their jurisdiction by September 30th."  At the hearing held by the Council, representatives of each county came and confirmed that each county did indeed understand the June 7th notice was a mandate to prepare and perform the function of deer carcass removal.  The State argued that the new "policy" communicated in the June 7th notice amounted to nothing more than a proportional allocation of responsibilities among levels of government that follows responsibilities for the roads themselves.  The State indicated that removing deer carcasses was simply another form of "maintenance," and thus the State would continue to remove deer from State and Inter-state highways (its highways), while assigning local maintenance to the counties and municipalities respectively.  The Council found that "the obvious flaw" in this reasoning is that it ignores the "State mandate/State pay" principle of the New Jersey Constitution and Local Mandate Act.

The Attorney General essentially asked the Council to rewrite Article 8, Section 2, Paragraph 5 of the New Jersey Constitution and the LMA to permit costs to be shifted to local governments if the State thinks those burdens are more properly born by local tax payers.  This directly contravenes the requirements of the Amendment and the LMA. (Emphasis added).

Therefore, the Council concluded that the June 7th notice constituted an unfunded mandate "because it does not authorize resources to offset the additional direct expenditures required for the implementation of the law or the rule or the regulation. Accordingly, it shall cease to be mandatory in its effect and shall expire, per N.J.S.A. 52: 13H-2."  The State's Motion to Dismiss was denied, and Summary Judgment was granted on behalf of the claimants.

As in the case at bar, the November 16, 2010 memo from Robert Giles is in fact a "rule" within the meaning of the New Jersey Constitution, and as set forth in the decisions outlined above.  Therefore, it is an impermissible unfunded State Mandate, and therefore the State must be precluded from issuing such a directive or order.

The Court Order of March 8, 2010 in the matter of Gusciora v. Corzine makes the recommendation that training be provided.  It is not an order of the Court.  Therefore, the State has issued an unfunded State mandate which is impermissible as a matter of law.  Even if the State argues that it is pursuant to a Court Order, the New Jersey Constitution states that "the additional direct expenditures required for the implementation of the law or rule or regulation, shall, upon such determination cease to be mandatory in its effect and expire." (Emphasis added).  If indeed it is a Court Order that states that training is required, and the State is implementing the Court Order, it is then implementing the law, i.e. the Court Order, and it becomes an unfunded State mandate.

The State relies upon the decision and Order in In the Matter of the Complaint filed by Township of Branchburg, which can be found on the Council's website.  However, the State's reliance upon this case is misplaced.

In that matter, the Township of Branchburg (Somerset County) filed a Complaint with the Council on Local Mandates, seeking a determination that the Court's holding in the case of Smith v. Hudson County Register, 411 N.J. Super 538 (App. Div. 2009) imposed an unfunded mandate, namely, insufficiencies for the copying of public documents requested pursuant to the Open Public Records Act (OPRA) found at N.J.S.A. 47:1A-1-13.  When the Township filed its Complaint and the form provided by the Office of the Council, the Township did not enter a citation for a "statute, rule or regulation" as required by the Constitution. Instead, the Complaint referred to the decision of the Appellate Division in the Smith matter rather than actually providing a statute, rule or regulation.  "Although the Council dismissed the Complaint", the Council did note "Although we believe that we have concurrent jurisdiction with the Superior Court to hear and decide issues such as those presented in Smith, Supra, we determined the Complaint must be dismissed because it fails to place a statute squarely before us as the Constitution requires." (Emphasis added).  As such, the Council actually determined that it did have concurrent jurisdiction with the Appellate Division, but that there was no statute, rule or regulation placed before them to decide.  This is a different factual scenario than that which is presented to this Council.

Again, the memorandum issued by Mr. Giles is the "rule" that is being presented before the Council which must be decided.  Again, if the Council determines that the State is enforcing a "Order", whether it be a recommendation or not, then the State has placed an impermissible unfunded mandate upon the County of Atlantic to attend training without compensating them, other than using property taxes.

In sum, the Complaint satisfies the two statutory standards as set forth in N.J.S.A. 52:13H-16.  The total cost of over $1,600.00 to the County for part-time employees to attend the training is certainly a "significant financial hardship" to the County. For the State to argue otherwise is without merit. And it is the substantial likelihood that the "rule" is a source of a training requirement, rather than the court decision in Gusciora. Whether or not the training has been ordered is in question, as that is not how the Order reads. In addition, even if this Council decides that this is an implementation of the Court Order, then it is implementing the law, as a Court Order is a law which must be enforced.  However, the rule that the State has mandated training for all County election employees is an impermissible unfunded State mandate, which requires reimbursement of expenses to the County.  Therefore, the Council must enter a rule enjoining the State mandated training while the Commission considers their Complaint."

The above is the letter brief in Support of its Application for Preliminary Injunction filed by Maneesha S. Joshi, Esq., Atlantic County Assistant County Council, on behalf of the County of Atlantic on February 9, 2011.

Respondent New Jersey Department of State's Letter in Opposition to Atlantic County's Request for Summary Judgment and in Support of the Department's Motion to Dismiss the Complaint.

"The State opposes the County's request for summary judgment; instead, the Council should grant the State's motion to dismiss the County's complaint.  None of the arguments advanced by the County in ints February 9, 2011 letter changes the inescapable conclusion that the seal-use protocl training that is the subject of the County's complaint is required by court order and, therefore, no statute, rule or regulation has imposed an impermissible, unfunded State mandate.  Accordingly, the Council should grant the State's motion to dismiss the complaint and deny the County's request for summary judgment."

The above is a summary of the pleading summary in regards to the letter in Opposition to the Request for Summary Judgment and in Support of the Motion to Dismiss filed by Todd A. Wigder, DAG, on behalf of Respondent the New Jersey Department of State, on February 15, 2011.