                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-13-2004

Afran v. Gov of NJ
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3791




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 04-3791


                         BRUCE I. AFRAN; CARL MAYER,
                     on behalf of themselves and all other registered
                           voters in the State of New Jersey,
                                                         Appellants

                                            v.

      JAMES McGREEVEY, GOVERNOR OF THE STATE OF NEW JERSEY;
                       STATE OF NEW JERSEY


                    On Appeal from the United States District Court
                            for the District of New Jersey
                         D.C. Civil Action No. 04-cv-03912
                          (Honorable Garrett E. Brown, Jr.)


                                Argued October 7, 2004

         Before: SCIRICA, Chief Judge, McKEE and FISHER, Circuit Judges

                               (Filed: October 13, 2004)


Bruce I. Afran, Esquire (Argued)
10 Braeburn Drive
Princeton, New Jersey 08540

Carl J. Mayer, Esquire (Argued)
58 Battle Road
Princeton, New Jersey 08540
        Attorneys for Class Appellants and Pro Se
Stefanie A. Brand, Esquire (Argued)
Office of Attorney General of New Jersey
Department of Law and Public Safety
25 Market Street
P.O. Box 112
Trenton, New Jersey 08625
       Attorney for Appellees




                               OPINION OF THE COURT


PER CURIAM.

       This matter requires us to determine the effect under the New Jersey Constitution

and statutes of Governor James McGreevey’s August 12, 2004 announcement that he will

resign effective November 15, 2004.

       Plaintiffs ask us to order the State of New Jersey to hold a special gubernatorial

election. Under the New Jersey Constitution, such an election is required if there is a

“vacancy” in office. There is no vacancy here because the Governor has not yet resigned

and because he continues to serve and occupy the office. Absent a vacancy, no special

election is mandated. We will affirm the judgment of the District Court.

                                          I. Facts

       James McGreevey was elected as Governor of the State of New Jersey on

November 6, 2001, and was sworn in January 15, 2002. He was elected to a four-year

term which expires January 17, 2006.




                                             2
       At an August 12, 2004 press conference, McGreevey publicly announced his

intention to resign before the completion of his term. Citing “an adult consensual affair

with another man” which he believed would render the office “vulnerable to rumors, false

allegations, and threats of disclosure,” McGreevey declared “the right course of action is

to resign.” For the ostensible purpose of facilitating “a responsible transition,”

McGreevey stated that the effective date of his resignation “will be November 15, 2004.”

McGreevey continues to discharge the powers and functions of the New Jersey

governorship.

       The Governor’s stated intention to resign “effective” November 15, 2004 is

significant. Had McGreevey “vacated” his office prior to September 3, 2004, the New

Jersey Constitution would require that his successor be elected on November 2, 2004. On

the other hand, if the office is “vacated” after September 3, 2004, the President of the

New Jersey Senate would serve as acting governor until the next elected governor takes

office in January 2006. The current President of the New Jersey Senate is Richard Codey,

who, like McGreevey, is a member of the Democratic Party.

       Plaintiffs Bruce Afran and Carl Mayer, purporting to represent a class of all

registered New Jersey voters, brought this action in federal court on August 16, 2004,

seeking a declaration that Governor McGreevey “vacated” his office under the New

Jersey Constitution; that this “vacancy” requires election of a new governor on November

2, 2004, to serve the remainder of the term; and that McGreevey’s continued occupation



                                              3
of the Governor’s office infringes plaintiffs’ First, Fifth, and Fourteenth Amendment

rights in violation of 42 U.S.C. § 1983. The District Court for the District of New Jersey

denied plaintiffs’ request for declaratory and injunctive relief under 28 U.S.C. § 2201 and

dismissed their § 1983 action for failure to state a claim.1 Because this case involves only

questions of law, our review is plenary. Pollice v. Nat’l Tax Funding, L.P., 225 F.3d 379,

388-89 (3d Cir. 2000). We will affirm.

                                   II. Federal Jurisdiction

         We have jurisdiction under 28 U.S.C. § 1291 over the District Court’s final order

denying Plaintiffs’ motion for declaratory judgment and dismissing the case. The District

Court properly exercised its federal jurisdiction under 28 U.S.C. §§ 1331 and 1343.

         Federal jurisdiction is proper where plaintiffs assert a non-frivolous federal claim.

Martin v. United Way of Erie County, 829 F.2d 445, 447 (3d Cir. 1987) (citing Bell v.

Hood, 327 U.S. 678, 682 (1946)). Only where the claim upon which federal jurisdiction

hinges is “insubstantial on [its] face” is dismissal for want of jurisdiction required. Kulick

v. Pocono Downs Racing Ass’n, Inc., 816 F.2d 895, 898-99 (3d Cir. 1987) (quoting

Hagans v. Lavine, 415 U.S. 528, 542 n.10 (1974)). Moreover, dismissal for lack of

jurisdiction is only appropriate where “the right claimed is ‘so insubstantial, implausible,

foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not




   1
       Afran v. McGreevey, __ F. Supp. 2d __, 2004 WL 2072535 (D.N.J. Sept. 15, 2004).

                                               4
to involve a federal controversy.’” Id. at 899 (quoting Oneida Indian Nation v. County of

Oneida, 414 U.S. 661, 666 (1974)).

       In this case, plaintiffs claim they were deprived of their constitutionally protected

right to vote. Although we conclude that plaintiffs have failed to state a claim upon

which relief may be granted under § 1983, this does not deprive a federal court of

jurisdiction. See Kulick, 816 F.2d at 898; Martin, 829 F.2d at 447.2 Because plaintiffs

allege deprivation of a fundamental right protected by the Constitution, see Reynolds v.

Sims, 377 U.S. 533, 554 (1964), federal jurisdiction is proper.




   2
    The jurisdictional language of 28 U.S.C. § 1343 tracks the language of 28 U.S.C. §
1983, but each calls for a distinct analysis:
       Under either [§ 1331 or § 1343], a court has jurisdiction over the dispute so long as
       the plaintiff alleges that defendant’s actions violate the requisite federal law: under
       § 1331, any federal law; under § 1343, only laws that relate to civil rights. Once
       the plaintiff has met this threshold pleading requirement, however, the truth of the
       facts alleged in the complaint is a question on the merits, as is the legal question
       whether the facts alleged establish a violation. Otherwise, the district court could
       turn an attack on the merits, against which the party has the procedural protections
       of a full trial including the right to a jury, into an attack on jurisdiction, which a
       court may resolve at any time.
Kulick, 816 F.2d 895, 897-98 (citing Duke Power Co. v. Carolina Envtl. Study Group,
Inc., 438 U.S. 59, 70-71 (1978) and Bell, 327 U.S. at 682); see also Fraternal Order of
Police Dep’t of Corrs. Labor Comm. v. Williams, 375 F.3d 1141, 1143-44 (D.C. Cir.
2004) (differentiating standard for dismissing § 1983 claim for lack of jurisdiction from
that applied to motion to dismiss § 1983 claim for failure to state a claim); Taxpayers
United for Assessment Cuts v. Austin, 994 F.2d 291, 295-96 (6th Cir. 1991) (dismissing
action under § 1983 for failure to state a claim despite holding that plaintiffs’ assertion of
a “colorable claim” under § 1983 was sufficient to give rise to federal jurisdiction).

                                              5
                              III. Abstention and Certification

       Defendants urged the District Court to abstain from asserting federal jurisdiction in

light of the allegedly unsettled status of New Jersey law, a position plaintiffs– after

opposing it in the District Court– now advance in the alternative to this court. See R.R.

Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941). The District Court declined to

abstain. Although we rely upon different reasoning, we agree that abstention is

inappropriate in this case.

       The Pullman doctrine authorizes federal court abstention when a constitutional

challenge is intertwined with an ambiguous issue of state law and a likelihood exists,

therefore, that clarification of the state law issue will substantially affect the constitutional

inquiry. Id. In order to abstain under Pullman, there must be three “special

circumstances:”

       (1) Uncertain issues of state law underlying the federal constitutional claims
       brought in federal court;
       (2) State law issues amenable to a state court interpretation that would obviate the
       need for, or substantially narrow, the scope of the adjudication of the constitutional
       claims;
       (3) A federal court’s erroneous construction of state law would be disruptive of
       important state policies.

Chez Sez III Corp. v. Township of Union, 945 F.2d 628, 631 (3d Cir. 1991) (citing

D’Iorio v. County of Del., 592 F.2d 681, 686 (3d Cir. 1978)) cert. denied, 503 U.S. 907

(1992). If the court finds these three circumstances, “it must then make a discretionary




                                               6
determination as to whether abstention is in fact appropriate under the circumstances of

the particular case, based on the weight of these criteria and other relevant factors.” Id.

       Abstention under Pullman therefore is discretionary and is generally exercised

sparingly. City of Houston v. Hill, 482 U.S. 451, 467 (1987) (citing Colo. River Water

Conservation Dist. v. United States, 424 U.S. 800, 813 (1976)); see also Baggett v.

Bullitt, 377 U.S. 360, 375 (1964) (“The abstention doctrine is not an automatic rule

applied whenever a federal court is faced with a doubtful issue of state law; it rather

involves a discretionary exercise of a court’s equity powers.”); Planned Parenthood of

Cent. N.J. v. Farmer, 220 F.3d 127, 149 (3d Cir. 1999) (“Pullman abstention should be

rarely invoked”).

       Moreover, ambiguity in state law will not, standing alone, require abstention. As

the Supreme Court stated:

       [Pullman abstention] contemplates that deference to state court adjudication only
       be made where the issue of state law is uncertain. If the state statute in question,
       although never interpreted by a state tribunal, is not fairly subject to an
       interpretation which will render unnecessary or substantially modify the federal
       constitutional question, it is the duty of the federal court to exercise its properly
       invoked jurisdiction. Thus, “recognition of the role of state courts as the final
       expositors of state law implies no disregard for the primacy of the federal judiciary
       in deciding questions of federal law.”

Harman v. Forssenius, 380 U.S. 528, 535 (1965) (quoting England v. La. State Bd. Med.

Exam’rs, 375 U.S. 411, 415-16 (1964)) (citations omitted).

       Principles of comity and federalism counsel for a state constitutional interpretation

by state courts. But the state law which controls our decision is not uncertain.

                                              7
Furthermore, the discretionary analysis in this case must be informed by considerations of

timing, as well as the policy disfavoring forum-shopping. Were we to abstain, a final

judicial determination would be substantially delayed. In a time-sensitive environment

such as that presented by a rapidly approaching election, prejudice to both parties would

inevitably result from such delay. See Farmer, 220 F.3d at 151 (noting that delay is a

relevant factor in considering whether to abstain).

       Moreover, citing an “immense conflict of interest” in an adjudication by the New

Jersey courts, plaintiffs elected to bring suit in federal court. But having obtained an

adverse ruling on the merits, plaintiffs now– in a reversal of position– argue to this court

that the New Jersey state courts are better suited to resolving this dispute. We disagree

and hold that Pullman abstention is inappropriate in this case.

       Plaintiffs contend in the alternative that we should certify to the New Jersey

Supreme Court the question whether Governor McGreevey’s action effects a vacancy

under the New Jersey Constitution. Under New Jersey Court Rule 2:12A, the New Jersey

Supreme Court may answer such a question if “there is no controlling appellate decision,

constitutional provision or statute in this State.” Pressler, Current N.J. Court Rules,

R.2:12A (Gann 2004).

       The use of certification “rests in the sound discretion of the federal courts.”

Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974) (Rehnquist, J., concurring). Moreover,

this court “may not properly ask a state court if it would care in effect to rewrite a


                                              8
statute,” or a constitutional provision. Farmer, 220 F.3d at 152 n.12 (quoting Hill, 482

U.S. at 471). Relying upon the same considerations which inform our decision not to

abstain– timing, feasibility, public policy, and plaintiffs’ choice of forum– we decline to

employ certification in this case.

                              IV. The Constitutional Claim

       Plaintiffs allege they have been deprived of their right to vote under the First,

Fifth, and Fourteenth Amendments in violation of 42 U.S.C. § 1983. The District Court

dismissed this claim under Fed. R. Civ. P. 12(b)(6) for failure to state a claim.

       To state a claim for violation of § 1983, plaintiffs must allege that defendants,

while acting under color of state law, deprived them of rights, privileges, or immunities

secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527,

535 (1981) overruled on other grounds, Daniel v. Williams, 474 U.S. 327 (1986); see also

Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000). This court’s initial inquiry, therefore,

is whether plaintiffs have “alleged the deprivation of a right that either federal law or the

Constitution protects.” Gruenke, 225 F.3d at 298 (citing Baker v. McCollan, 443 U.S.

137, 144 n.3 (1979)).

       The Constitution protects the right of qualified citizens to vote in both national and

local elections. Reynolds v. Sims, 377 U.S. 533, 554 (1964) (“It has been repeatedly

recognized that all qualified voters have a constitutionally protected right to vote, and to

have their votes counted.”) (citing Ex parte Yarbrough, 110 U.S. 651 (1884) and United



                                              9
States v. Mosley, 238 U.S. 383 (1915)); see also Yick Wo v. Hopkins, 118 U.S. 356, 370

(1886) (noting that voting is a “fundamental political right”). Despite constitutional

protection of the franchise, however, not every imperfection in state and local elections

rises to the level of a constitutional violation. Duncan v. Poythress, 657 F.2d 691, 699

(5th Cir. 1981); see also Forenza v. Rodgers, 633 A.2d 1057, 1059 (N.J. Super. Ct. Law

Div. 1992) (finding the proposition that “not every violation of state election law

constitutes a denial of constitutionally guaranteed rights” to be “well established”). 3

       But there are exceptions to the general rule that federal courts do not superintend

the administration of local electoral contests. Where a discrete group of voters suffers a

denial of equal protection, for example, their constitutional rights are violated. See

Reynolds, 377 U.S. at 559-61. Of relevance to this case, a claim under § 1983 will also

lie where state or local election infractions work a denial of substantive due process rights

in violation of the Fourteenth Amendment. See, e.g., Bonas v. Town of N. Smithfield, 265

F.3d 69, 74 (1st Cir. 2001) (“[I]n those few cases in which organic failures in a state or

local election process threaten to work patent and fundamental unfairness, a colorable

claim lies for a violation of substantive due process”); Duncan, 657 F.2d at 700 (holding




   3
    For this reason, federal courts do not generally meddle in local elections. See Gamza
v. Aguirre, 619 F.2d 449, 454 (5th Cir. 1980) (holding that Section 1983 does “not
authorize federal courts to be state election monitors”). Indeed, election law disputes
generally lie within the province of the state courts. See Powell v. Power, 436 F.2d 84, 86
(2d Cir. 1970) (noting that jurisdiction over local election disputes, “with certain narrow
and well defined exceptions,” remains “in the exclusive cognizance of the state courts”).

                                              10
that “the due process clause of the fourteenth amendment prohibits action by state

officials which seriously undermine the fundamental fairness of the electoral process”);

Griffin v. Burns, 570 F.2d 1065, 1077 (1st Cir. 1978) (“If the election process itself

reaches the point of patent and fundamental unfairness, a violation of the due process

clause may be indicated and relief under § 1983 therefore in order.”); see also Marks v.

Stinson, 19 F.3d 873, 889 (3d Cir. 1994) (enjoining winning state senate candidate from

exercising official authority where absentee ballots were obtained and cast illegally).

       We find instructive the decision of the Court of Appeals for the First Circuit in

Bonas v. Town of North Smithfield, 265 F.3d 69 (1st Cir. 2001). In Bonas, four registered

voters in the town of North Smithfield sought to compel an election in November 2001

for the North Smithfield town council and school committee. Because a referendum to

transition the town from an odd-year election cycle to an even-year cycle had been

adopted in 1998, and regularly scheduled elections had been held in 1999, the town

decided not to hold a municipal election in 2001. Invoking § 1983, plaintiffs– who

desired to exercise their right to vote for town council and school committee in 2001–

filed suit in federal district court claiming denial of their constitutional rights.

       The court recognized the limited reach of federal jurisdiction over claims arising

from state or local election disputes but held that where the election process is patently

and fundamentally unfair, substantive due process violations can occur. Id. at 74.

“[T]otal and complete disenfranchisement of the electorate as a whole,” held the Bonas



                                               11
court, is one such instance of patent and fundamental unfairness giving rise to a

constitutional claim. Id. at 75.

       To determine whether such disenfranchisement had in fact occurred, the court

turned to state law:

       Do state and local rules mandate an election in North Smithfield for the offices of
       town council and school committee in the fall of 2001? Assuming that such an
       election is required...the Town’s refusal to hold it would work a total and complete
       disenfranchisement of the electorate, and therefore would constitute a violation of
       due process (in addition to being a violation of state law).

Id.; see also Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 295-96 (6th

Cir. 1991) (same). We employ a similar analytic framework. Assuming New Jersey law

requires an election in this case, refusal to hold it would rise to the level of a

constitutional violation.

       The determinative inquiry, therefore, is whether New Jersey law requires an

election under these circumstances. As we discuss, we answer that question in the

negative. Therefore, there is no violation of plaintiffs’ substantive due process rights, and

they have failed to state a claim under § 1983.

                                     V. New Jersey Law

       As a threshold matter, the parties vigorously dispute the method of interpretation to

be employed in this case. Defendants urge this court to rely upon the plain meaning of

the New Jersey Constitution, while plaintiffs suggest an expansive interpretation.




                                               12
       Plaintiffs rely heavily upon a “liberal” rule of construction they attribute to the

New Jersey Supreme Court’s opinion in New Jersey Democratic Party, Inc. v. Samson,

175 N.J. 178 (2002). In Samson, Senator Robert Torricelli withdrew his candidacy for

United States Senator approximately five weeks before the November 2002 general

election. The New Jersey Democratic Party requested Torricelli’s name be taken off the

ballot and replaced with the name of a new candidate. The applicable New Jersey statute

set forth the procedures for replacement only when the vacancy on the ballot occurred

“not later than the 51st day before the general election.” N.J. Stat. Ann. 19:13-20.

Regarding vacancies arising within fifty days of the election, however, the Samson court

found the statute silent regarding replacement. Reasoning that reconfiguration of the

ballots was logistically feasible, and emphasizing its belief that the applicable statute did

not specifically preclude such a remedy, the New Jersey Supreme Court permitted

plaintiffs to insert a new candidate on the ballot.

       Significantly, the Samson court construed a New Jersey statute, rather than a New

Jersey constitutional provision. We decline to apply the “liberal” interpretation urged by

plaintiffs to the state Constitution where there is no indication that the New Jersey

Supreme Court would itself espouse such an approach. Plaintiffs conceded at oral

argument that the New Jersey Supreme Court has never expressly endorsed a “liberal”

approach to interpretation of the state Constitution.




                                              13
       Of even greater significance, the New Jersey Constitution–in Article V, section 1,

paragraphs 6 through 9–addresses each scenario generated by a gubernatorial vacancy and

provides means for filling it. Where the language of a constitutional provision is clear,

the words must be given their plain meaning. Cambria v. Soaries, 776 A.2d 754, 758

(N.J. 2001) (quoting State v. Trump Hotels & Casino Resorts, Inc., 734 A.2d 1160 (N.J.

1999)). We are mindful of New Jersey’s policy preference in favor of empowering

voters, but we believe the language of the Constitution incorporates this principle within

its text. Because the Constitution anticipates and provides for succession and election

procedures following a vacancy in the office of the Governor, our textual analysis is

already infused by New Jersey’s preference for electing officials. Our analysis must

begin with the text itself.

       The New Jersey Constitution identifies several ways in which a gubernatorial

“vacancy” may arise, among them resignation. N.J. Const. Art. V, § 1, ¶¶ 6-8. Plaintiffs

argue that by virtue of Governor McGreevey’s August 12th announcement, there is a

vacancy in the office of Governor. Because we find this announcement alone does not

constitute a resignation, we disagree.

       The New Jersey Constitution establishes a comprehensive framework by which

unexpected transfers of power in the office of the Governor will take place. When a

governor resigns, a vacancy arises and the Constitution provides for a provisional

fulfillment of the governor’s duties by the President of the Senate:



                                             14
       In the event of a vacancy in the office of Governor resulting from the death,
       resignation or removal of a Governor in office, or the death of a Governor-elect, or
       from any other cause, the functions, powers, duties and emoluments of the office
       shall devolve upon the President of the Senate, for the time being, and in the event
       of his death, resignation or removal, then upon the Speaker of the General
       Assembly . . . .

N.J. Const. Art. V, § 1, ¶ 6 (“Paragraph 6”).

       In addition to providing for the immediate assumption of power by the Senate

President, the Constitution also provides that a vacancy in the office of the Governor

will– in some circumstances– trigger a special gubernatorial election:

       In the event of a vacancy in the office of Governor, a Governor shall be elected to
       fill the unexpired term at the general election next succeeding the vacancy, unless
       the vacancy shall occur within sixty days immediately preceding a general election,
       in which case he shall be elected at the second succeeding general election; but no
       election to fill an unexpired term shall be held in any year in which a Governor is
       to be elected for a full term. A Governor elected for an unexpired term shall
       assume his office immediately upon his election.

N.J. Const. Art. V, § 1, ¶ 9 (“Paragraph 9”). 4

       Reading these two provisions together, it is apparent that the New Jersey

Constitution contemplates the resignation of the governor and subsequent transfer of

power as a three-step process: first, the creation of a vacancy by the governor’s

resignation; second, the assumption of the powers and duties of the Governor’s office by

the Senate President; and third, an election to determine the next governor. The timing of




   4
    In Title 19 of the New Jersey Code, which sets forth New Jersey election law,
“general election” is defined as “the annual election to be held on the first Tuesday after
the first Monday in November.” N. J. Stat. Ann. § 19:1-1.

                                                15
the first step– that is, when the Governor’s office becomes vacant– determines both the

date of the next gubernatorial election 5 and the duration of the Senate President’s term as

acting governor. Unsurprisingly, it is this date of “vacancy” which lies at the center of

the current dispute. The parties offer competing views.

       According to plaintiffs, a vacancy arose in the office of Governor on August 12,

2004, because McGreevey’s public announcement constituted an effective resignation.

Because this announcement came more than sixty days before the next general election,

they argue Paragraph 9 requires that an election to fill the remainder of McGreevey’s term

be held on November 2, 2004, or– as they stated at oral argument– on a judicially-

determined date in the future. Defendants, conversely, contend that no vacancy exists

because no resignation has occurred.




   5
     Should a vacancy occur within the sixty days preceding a general election, a new
governor will be elected at the “second succeeding” general election. For example, if a
vacancy occurred in October– within the sixty day window immediately preceding a
November general election– a new governor would be elected thirteen months later, at the
next general election. Second, where a vacancy occurs between 61 and 364 days before a
general election, a new governor will be elected at that next general election to fill the
remainder of the resigning governor’s term. For example, were a vacancy to arise in
May, an election would be held the following November and the victor would assume the
governor’s office until the next regularly scheduled gubernatorial election– which could
be up to three years later. And finally, should a vacancy arise during the year of a
regularly scheduled gubernatorial election, a successor would be chosen at that election.
If a vacancy arises in February of the final year of a governor’s term, for example, a new
governor would be elected for a full term the following November.

                                             16
       We agree with defendants on this point. Under the New Jersey Constitution, a

vacancy will arise upon resignation.6 Because Governor McGreevey has not resigned,

there is no vacancy.

       On August 12, 2004, Governor M cGreevey made a declaration that he would

resign from office and that such resignation “will be effective” November 15, 2004.

Under New Jersey law, he has not taken the steps necessary to translate this

announcement into an official act.

       Chapter 14 of New Jersey Code Title 52 sets forth “[m]ethods of resigning from

office” for both elected and appointed officers:

       Whenever a state officer holding an office under the appointment of the joint
       meeting of the legislature shall be desirous of resigning, he shall present such
       resignation in writing under his hand, during the sitting of the legislature addressed
       to the joint meeting. All other state officers desirous of resigning shall send their
       resignations, in writing, to the governor. All such resignations shall be filed in the
       office of the secretary of state. No resignation made in any other way or
       pretended to be made, shall be valid.

N.J. Stat. Ann. 52:14-10 (emphasis added).

       The text of section 14-10 requires that a governor file a written resignation with

the Secretary of State to effectuate his resignation. After specifying the resignation

procedures to be followed by “a state officer holding an office under the appointment of




   6
    The New Jersey Constitution provides that a vacancy in the Governor’s office can
arise by virtue of death, removal, resignation, failure to qualify, absence from the state,
impeachment, or inability to discharge the duties of office by reason of mental or physical
disability. N.J. Const. Art. V, § 1, ¶¶ 6-7.

                                             17
the joint meeting of the legislature,” the statute uses all-inclusive language requiring that

“[a]ll other state officers” file written resignations with the office of the Secretary of

State. N.J. Stat. Ann. 52:14-10.7 Even though the requirement that resignations first be

sent “to the governor” may be redundant when it is the governor resigning, this does not

defeat application of section 14-10 to gubernatorial resignations. The governor falls

within the catch-all category of “all other state officers” and his resignation must,

therefore, comply with the terms of the statute. See id. ( “No resignation made in any

other way or pretended to be made, shall be valid.”).

       The submission of a written letter of resignation to the Secretary of State by a

departing governor, in accordance with section 14-10, is an established practice in New

Jersey. Each of the four New Jersey governors to have resigned in the last 106 years have

submitted a written resignation to the Secretary of State. In 1898, Governor John W.

Griggs submitted a written letter of resignation to Secretary of State George Wurts. In

1913, Governor Woodrow Wilson submitted a hand-written resignation to the Secretary

of State so that he could assume the presidency of the United States. In 1919, Governor

Edge submitted a written letter of resignation to Secretary of State Thomas Martin. More

recently, in 2001 Governor Christine Todd Whitman tendered a written resignation to

Secretary of State DeForest Soaries.


   7
    Elsewhere in the New Jersey Code, the governor is specifically included within the
statutory definition of a “person holding an office in this State.” N.J. Stat. Ann. 52:14-
7(a).

                                              18
       Plaintiffs urge that M cGreevey’s public announcement is more “final” than would

be a letter to the Secretary of State under section 14-10. They posit that “[e]ven if

[McGreevey] theoretically retains the power to stay on and change his decision...the

reality is that he is not changing his mind and he is going.” The legal reality, however, is

something different. Under New Jersey law, a resignation is not valid unless it is in

writing and filed in the office of the Secretary of State. “No resignation made in any

other way or pretended to be made, shall be valid.” N.J. Stat. Ann. 52:14-10. Plaintiffs

have cited no statutory provision to the contrary, relying instead on the argument that

McGreevey’s public announcement is “functionally far more definitive and final than

would be a letter of resignation quietly and privately delivered to a government official.”

But the New Jersey legislature has set forth what constitutes a “definitive and final”

resignation. McGreevey’s announcement has not satisfied these statutory requirements.

       By requiring a written filing with the Secretary of State– a clear and concrete

manifestation of resignation– the legislature has assured clarity in the resignation process.

Because Governor McGreevey has not yet officially resigned from the office of the

Governor, there is no vacancy under the New Jersey Constitution.

                                      VI. Conclusion

       In sum, we hold that there is no vacancy in the office of New Jersey Governor

because James McGreevey, the current governor, has not officially resigned from office.

Because it is the existence of a vacancy which triggers Paragraph 9’s election procedures,



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no special election is called for by New Jersey law. Absent a state law requirement that

such an election be held, plaintiffs have failed to state a claim under § 1983 for violation

of their Fourteenth Amendment rights to substantive due process.

       For the reasons stated, we will affirm.




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