Score one for reasonable judges: the Appellate Division of the Superior Court has stayed a lower court decision and allowed Gabriela Mosquera, elected by the voters of the 4th District as their representative, to be sworn in tomorrow.
For those of you who hadn’t been following, as Stephen Yellin had reported here on Friday, Camden County judge George Leone, Chris Christie’s first judicial appointee after taking office and a longtime Christie colleague, had ruled Mosquera ineligible to be sworn in, overturning the conventional wisdom that the lawsuit filed by her opponent Shelley Lovett, who had lost to Mosquera by several thousand votes, was a sure loser.
The lawsuit centered on Mosquera having moved to the district less than a year before the election – which the New Jersey Constitution prohibits. However, a decade ago an order by Federal District Court Judge Dickinson Debevoise had found this requirement inconsistent with the federal Constitution, thus allowing Mosquera and others such as Reid Gusciora to run in districts that they had not lived in a year ago. The situation with Mosquera was indistinguishable from the case a decade ago – right after redistricting, offices got shuffled around and a new candidate wanted to run in a new district. Indeed, it’s hard to see the point of having a residency requirement in a district that, just a year before, hadn’t existed. (Note that this is different from the Carl Lewis case which focused on a different constitutional requirement about state, not district, residency).
More on the challenge below the fold…
Mosquera and many other candidates relied on that order; as did the Secretary of State, Lieutenant Governor Kim Guadagno, in certifying Mosquera as a candidate for office. Meanwhile, her opponent, Lovett, never challenged at any earlier stage the residency issue. Instead, she waited until she lost the election – and then filed a case in early December.
On Friday, Judge Leone shocked the political world by upending the federal court’s order and holding it inapplicable, ordering the seat vacated, the seat to be filled by the local Democratic Party, and a new election in November 2012. Instead of dismissing the challenge as too late and respecting the earlier decision of the Secretary of State and the will of the voters, Leone held the challenge to be valid, a result few, if any, foresaw. Even Christie’s Attorney General’s office, at least initially, sided with Mosquera, though interestingly when Leone indicated he might rule against her they changed their position.
This morning, the Appellate Division ordered the appeal to be heard at 12:30 in Trenton, and issued an emergent order allowing Mosquera to be sworn in, holding, quite reasonably, that she had reasonably relied on the past federal court order. It appears that there will be later arguments about what should happen in the future with future candidates, but in the meantime Mosquera will be sworn in.
There is one more possible appeal – to the Supreme Court – and something could still happen in the next day, but it would be an uphill climb, especially because the decision reached by the Appellate Division today was the more conservative, common sense view of the law. Congratulations to Assemblywoman-elect Mosquera!