NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1411-22
IN RE APPLICATION OF BARBARA EAMES AND APPROVED FOR PUBLICATION WILLIAM EAMES PURSUANT May 8, 2025 TO N.J.S.A. 1:7-1 AND APPELLATE DIVISION N.J.S.A. 1:7-4 SEEKING TO VOID L. 2021, c. 375. _____________________________
Argued February 3, 2025 – Decided May 8, 2025
Before Judges Sabatino, Gummer, and Berdote Byrne.
On appeal from the New Jersey Legislature, L. 2021, c. 375.
Christina Vassiliou Harvey argued the cause for appellants Barbara Eames and William Eames (Lomurro Munson, LLC, attorneys; Christina Vassiliou Harvey, of counsel and on the briefs; Jeffrey J. Niesz, on the brief).
Donna Arons, Assistant Attorney General, argued the cause for respondent State of New Jersey, Department of Law and Public Safety (Matthew J. Platkin, Attorney General, attorney; Donna Arons, of counsel and on the brief; Amna Toor, Deputy Attorney General, on the brief).
The opinion of the court was delivered by
GUMMER, J.A.D. On January 13, 2022, Governor Phil Murphy signed into law the
Freedom of Reproductive Choice Act, L. 2021, c. 375. Asserting the Act was
unlawfully enacted, petitioners Barbara Eames and William Eames filed an
application pursuant to N.J.S.A. 1:7-1 and -4, asking this court to invalidate it.
We deny Count I of the application, in which petitioners challenge "the
mechanics of the enactment of the law," In re McCabe, 81 N.J. 462, 467
(1980), and remand the remaining portions of the application to the Law
Division.
The New Jersey Senate convened on January 6, 2022. Among other
business conducted that day, the Senate introduced S. 49, which was described
in its accompanying statement as a bill that would "establish[] certain
requirements related to the right to reproductive choice in New Jersey."
Senate Health, Hum. Servs. and Senior Citizens Comm. Statement to S. 49
(Jan. 6, 2022) (L. 2021, c. 375).
The Senate gave the bill its first reading and referred it to the Health,
Human Services and Senior Citizens Committee. That Committee met the
same day in the State House Annex, which had been reopened to the public
subject to certain COVID-19-related procedures such as mask wearing,
temperature screening, and proof of vaccination or a recent negative COVID -
19 test. After the Committee chairperson read a list of individuals and
A- 1411-22 2 organizations that had voiced their opposition to the bill with "[n]o need to
testify," the Committee considered the bill and heard testimony about it from
two members of the public. After discussing the bill and hearing that
testimony, the Committee reported the bill favorably to the Senate, without
amendment, where it received a second reading.
The General Assembly also convened on January 6, 2022. The
Assembly introduced A. 6260, which was identical to S. 49, and gave the bill
its first reading. The Speaker of the Assembly notified the Clerk of the
General Assembly that the Assembly Appropriations Committee was
authorized to consider A. 6260, among other bills, on its January 6, 2022
agenda. The Committee held a hearing that day. Members of the public could
not attend the Committee's meeting in person but were permitted to give oral
testimony by telephone and video and to submit written testimony
electronically. Six people gave oral testimony.
Among those who testified before the Committee was petitioner Barbara
Eames. According to Barbara, both she and William had registered to speak,
but she would speak on his behalf because he was on another call. 1 In her
testimony, Barbara complained the bill was being brought "to a committee in a
1 Because of their shared last name, we use the parties' first names for clarity and ease of reading. We mean no disrespect in doing so.
A- 1411-22 3 floor vote without adequate notice to the citizens" and that "S. 49 is being
considered today without notice that you have defined during the waning days
of this legislative session." Others who testified also complained about what
they perceived to be a rushed process. One person stated she had not "had a
chance to look at" the bill, while others appeared to have had a copy of it.
Another person acknowledged the bill appeared similar to an earlier bill.
After the hearing, the Committee reported A. 6260 favorably to the
Assembly, where it received a second reading.
At the end of the day, the Senate and General Assembly adjourned with
the intent to reconvene for voting sessions on January 10, 2022.
On January 10, 2022, the Senate and General Assembly met with
quorums declared in both legislative houses. The Senate gave S. 49 its third
reading and passed the bill by a vote of 23-15. After the Senate vote, the Clerk
of the General Assembly advised the General Assembly that the Senate had
passed S. 49, among other bills, and had requested the Assembly's concurrence
with the bills.
The Assembly gave S. 49 a first and second reading. By way of motion,
the Assembly substituted S. 49 for its identical bill, A. 6260, and gave S. 49 a
third reading. After a discussion about the bill, the Assembly voted and passed
it by a vote of 45-24, with nine Assembly members abstaining. That procedure
A- 1411-22 4 is consistent with Rule 15:20 of the Rules of the General Assembly, which
provides with respect to identical bills:
15:20. Substitution; Identical Bill Rule. a. Whenever a Senate bill or resolution is passed by the Senate, delivered to the General Assembly, and an identical General Assembly bill or resolution has received second reading, is in the possession of the General Assembly, and at least one full calendar day has intervened since either or both of the identical bills or resolutions received second reading, the Senate bill or resolution may be substituted for the General Assembly bill or resolution and immediately moved to third reading. Prime sponsors of the General Assembly bill or resolution shall be added as prime sponsors of the substituted bill or resolution. b. Two bills or resolutions shall be deemed identical despite having technical differences with respect to legal reference, text, punctuation, spelling, grammar or form, so long as these differences may be corrected by Legislative Counsel pursuant to Rule 15:29.
[Rules of Gen. Assemb. of the State of N.J., R. 15:20 (2024-2025).]
The Legislature sent the bill to the Governor for his consideration. On
January 13, 2022, the Governor signed the bill into law as L. 2021, c. 375,
codified at N.J.S.A. 10:7-1 to -2, N.J.S.A. 26:2S-39, N.J.S.A. 52:14-17.29hh,
and N.J.S.A. 52:14-17.46.6q.
On January 12, 2023, petitioners filed with this court a notice of appeal,
indicating they were appealing from a January 13, 2022 state agency decision
of the Department of Law and Public Safety, and an "application pursuant to
A- 1411-22 5 N.J.S.A. 1:7-1 and -4 seeking original jurisdiction to invalidate P.L. 2021, c.
375." In their application, petitioners assert:
The bills underlying the enactment were introduced in both houses of the Legislature and assigned to committees without prior scheduling on either of the committee's calendars. The final voting in each house was likewise never scheduled on the published weekly legislative calendar; in fact, in every respect, the presentation for legislative action on the bills was characterized by surprise, and in the intense pressure to wrap up consideration of hundreds of other bills before the close of session, many legislators complained, both from the floors of the two chambers and in the capital's hallways, that they had been allotted no time to study the reproductive rights bill or even to simply read it coherently.
Petitioners ask this court, due to that asserted "haste," to "scrutinize whether
the constitutional authority was properly exercised by the Legislature as within
the scope of this court's authority under Article III of the New Jersey
Constitution and the doctrine of separation of powers" and to invalidate the
Act.
In Count I of their application, petitioners assert the Act "was passed in
violation of the intent of N.J. Constitution at Article IV Section IV Paragraph
6," in that "[t]he procedure utilized by the Legislature . . . violate[d] the notice
required by our Constitution, the rules of the General Assembly, and In re
Forsythe, 185 N.J. Super. 582 (App. Div. . . .)[, aff'd, 91 N.J. 141 (1982)]." In
Count II, petitioners contend the Act violates the separation-of-powers
A- 1411-22 6 doctrine because the Act deems invalid any future "law . . . that is determined
to have the effect of limiting the constitutional right to freedom of
reproductive choice . . . ." Petitioners argue that provision of the Act infringes
on the courts' authority under Article III of our Constitution to interpret laws
and limits the actions and powers of future legislatures in violation of Article
IV of the Constitution. In Count III, petitioners assert "[t]he Legislature
overstepped its bound to create a constitutional right to an abortion by statute
without abiding by the constitutional process for doing so." In Count IV,
petitioners argue the Act's "process to grant an exemption . . . to 'religious
employers'" is unconstitutional.
In their merits brief, petitioners contend we should invalidate the Act
because, in enacting it, the Legislature failed to abide by certain statutory
requirements; violated Paragraph 6 of Section 4 of Article IV of our
Constitution, which provides "[a]ll bills and joint resolutions shall be read
three times in each house before final passage" and "[n]o bill or joint
resolution shall be read a third time in either house until after the intervention
of one full calendar day following the day of the second reading"; and
"violated the Constitution in its failure to advise the public of its actions,"
citing Article I, Paragraph 18. We limit our consideration of petitioners'
arguments to those issues they addressed in their briefs because "[a]n issue that
A- 1411-22 7 is not briefed is deemed waived upon appeal," N.J. Dep't of Env't Prot. v.
Alloway Twp., 438 N.J. Super. 501, 505-06 n.2 (App. Div. 2015), and because
N.J.S.A. 1:7-1 permits us to consider only "the mechanics of the enactment of
the law and not the unconstitutional validity of the law itself," McCabe, 81
N.J. at 467.
"[S]tatutes are presumed to be constitutional." In re M.U.'s Application
for a Handgun Purchase Permit, 475 N.J. Super. 148, 190 (App. Div. 2023).
"A presumption of validity attaches to every statute" and "'any act of the
Legislature will not be ruled void unless its repugnancy to the Constitution is
clear beyond a reasonable doubt.'" State v. Lenihan, 219 N.J. 251, 266 (2014)
(quoting State v. Muhammad, 145 N.J. 23, 41 (1996)); see also Town of
Secaucus v. Hudson Cnty. Bd. of Tax'n, 133 N.J. 482, 492-93 (1993) ("Only a
statute 'clearly repugnant to the constitution' will be declared void." (quoting
Newark Superior Officers Ass'n v. City of Newark, 98 N.J. 212, 222 (1985))).
When reviewing the constitutionality of a statute, courts "apply 'every
possible presumption' in favor of the validity of a challenged statute,
recognizing that it 'represents the considered action of a body composed of
popularly elected representatives.'" State v. Higginbotham, 257 N.J. 260, 280
(2024) (quoting State v. Trump Hotels & Casino Resorts, Inc., 160 N.J. 505,
526 (1999)). "[T]he burden is on the party challenging the constitutionality of
A- 1411-22 8 the statute to demonstrate clearly that it violates a constitutional provision."
Newark Superior Officers, 98 N.J. at 222. "That burden is onerous." Mack-
Cali Realty Corp. v. State, 466 N.J. Super. 402, 424 (App. Div. 2021), aff'd
o.b., 250 N.J. 550 (2022).
Those guiding principles apply equally in applications brought pursuant
to N.J.S.A. 1:7-4. See In re Lamb, 67 N.J. Super. 39, 61 (App. Div.) (finding
"[g]eneral principles of construction are not confined to the substantive
provisions of a statute," court applies presumption of constitutionality in
N.J.S.A. 1:7-4 application), aff'd o.b., 34 N.J. 448 (1961); In re Freygang, 46
N.J. Super. 14, 28 (App. Div.) (same), aff'd o.b., 25 N.J. 357 (1957). "If there
is any permissible construction in favor of constitutionality, the action of the
Legislature should be upheld." Lamb, 67 N.J. Super. at 60.
N.J.S.A. 1:7-1 provides:
If, at any time within one year after any law . . . has been filed with the Secretary of State . . . , the Governor has reason to believe that any such law . . . was not duly passed by both houses of Legislature, or approved by the Governor or otherwise made effective as law in the manner required by the Constitution, he may direct the Attorney-General to apply to the Appellate Division of the Superior Court, to have the law . . . adjudged void. Thereupon the Attorney- General shall prepare, sign and prosecute the application.
A- 1411-22 9 The right to pursue such litigation is not limited to the Governor.
N.J.S.A. 1:7-4 extends that right to private citizens as follows:
Any two or more citizens of the State may, within the time prescribed by section 1:7-1 of this Title, present to the Appellate Division of the Superior Court an application, such as is authorized by said section 1:7-1 to be presented by the Attorney-General, and the court shall proceed thereon in the manner provided by sections 1:7-2 and 1:7-3 of this Title. The applicants may prosecute the application, and the Attorney- General may, if required so to do by the Governor, defend on behalf of the State.
That statutory scheme thus confers on this court "original jurisdiction
. . . to inquire summarily as to whether any law . . . was not duly passed by
both houses of the Legislature . . . in the manner required by the Constitution."
McCabe, 81 N.J. at 467. In exercising that jurisdiction, "[o]ur sole quest is to
determine whether the statute in arriving in its status as a law reached there by
a route condoned by the Constitution." Forsythe, 185 N.J. Super. at 587.
"[A]pplicants who challenge the validity of a statute as not having been
passed in the manner provided by the Constitution, must establish the truth of
what they assert by clear and convincing evidence." In re McGlynn, 58 N.J.
Super. 1, 27 (App. Div. 1959); see also In re An Act Concerning Alcoholic
Beverages, 130 N.J.L. 123, 125 (Sup. Ct. 1943). "[C]ourts will not set aside
the actions of the Legislature unless the unconstitutionality of what has been
A- 1411-22 10 done is manifest." McGlynn, 58 N.J. Super. at 28; see also Lamb, 67 N.J.
Super. at 61.
Petitioners argue we should declare the Act void because the Legislature
violated Paragraph 6 of Section 4 of Article IV of our Constitution when the
General Assembly did not provide "one full calendar day" between its second
and third reading of S. 49. But that argument is directly contrary to Supreme
Court precedent.
In In re Forsythe, 91 N.J. 141, 144 (1982), as here, the Senate and
Assembly considered substantively identical bills on the same day, January 12,
1982, giving them both a first and second reading. A few days later, on
January 18, 1982, the Senate gave its bill a third reading and delivered it to the
Assembly. Id. at 144-45. On receipt of the Senate bill, the Assembly moved
to substitute it for the identical Assembly bill, pursuant to Rule 15:20 of the
Rules of the General Assembly. Id. at 145. On the same day as the
substitution, the Assembly gave the Senate bill a first, second, and third
reading and passed the bill, after which it was delivered to the Governor to
sign into law. Ibid.
Considering that procedure, which in all relevant respects reflects the
procedure used in adopting the Act we now consider, the Court in Forsythe
A- 1411-22 11 found no violation of Article IV, Section 4, Paragraph 6. 91 N.J. at 144, 149 -
50. The Court explained:
The constitutional mandate in Art. IV, § 4, par. 6, that there be one full calendar day between the second and third readings of a bill, is fully satisfied where the substantive contents of the bill remain unchanged in any manner and are before each house for the requisite period of time. Given that the purpose of the provision was to ensure that legislators be provided the opportunity to become familiar with the contents of a law as it was ultimately enacted, one may readily find compliance with the constitutional provision in this case. To the extent the constitutional requirements of Art. IV, § 4, ¶ 6 call for literal compliance, that mandate was met. See [Vreeland v. Byrne, 72 N.J. 292, 305 (1977)]. This conclusion follows from the fact that the legislators of each house had before them the identical substantive contents of the bill that became L. 1982, c. 1 for more than the prescribed duration and intervals of time. As noted, A-605 and A-711 were absolutely equivalent to one another in terms of substantive content. There was, in constitutional effect, one bill that was properly acted upon by each legislative house. The procedure followed to substitute A-711 for A-605 was simply a device to place before the Governor for his final action a single, passed bill. In this case that bill validly emerged from each house of the Legislature according to the prescribed constitutional path and was duly enacted into law.
[Id. at 149-50 (emphasis added).]
A- 1411-22 12 Unpersuaded by petitioners' attempt to distinguish this case from
Forsythe,2 91 N.J. 141, we perceive no reason to deviate from that Supreme
Court precedent. Accordingly, we reach the same conclusion: having
followed the procedure it utilized in enacting the statute at issue in Forsythe,
91 N.J. at 144-45, the Legislature did not violate Paragraph 6 of Section 4 of
Article IV of our Constitution when it passed the Act.
Citing Article I, Paragraph 18 of our Constitution, petitioners contend
the Legislature "violated the Constitution in its failure to advise the public of
its actions." Article I, Paragraph 18 provides: "The people have the right
freely to assemble together, to consult for the common good, to make known
their opinions to their representatives, and to petition for redress of
grievances." Petitioners have failed to demonstrate legally that that
constitutional grant of rights to citizens imposed additional procedural
2 For example, petitioners cite as one of the "distinct issues" with the passage of this Act the Governor's issuance of a state of emergency due to inclement weather on January 6, 2022, which was the day the Senate and Assembly conducted the first and second readings of their respective bills. Petitioners assert "many state employees were not present at the State House." It is true that the Governor issued a state of emergency on January 6, 2022. Exec. Order No. 279 (Jan. 6, 2022), 54 N.J.R. 202(a) (Feb. 7, 2022). However, the state of emergency did not go into effect that day until 10:00 p.m. Ibid. Petitioners also assert "COVID protocols in effect prevent[ed] the public from attending the Assembly Appropriations hearing." However, members of the public were permitted to give oral testimony by telephone and video and to submit written testimony electronically, and several of them, including petitioner Barbara Eames, took advantage of that opportunity.
A- 1411-22 13 requirements on the Legislature for the enactment of laws. See In re Reilly,
364 N.J. Super. 519, 523-24 (App. Div. 2003) (holding court would not read
into the Constitution "by implication" any limitations on the Legislature's
authority to enact a law). Nor have petitioners shown factually the Legislature
somehow deprived them of their rights under Paragraph 18 of Article I to
assemble, consult for the common good, make their opinions known to their
representatives, or to petition for redress of grievances. To the contrary, the
record demonstrates members of the public, including petitioners, had the
opportunity to present testimony at the public hearings held by the Senate and
Assembly and to otherwise make their opinions known to their representatives.
Petitioners also contend we should declare the Act void based on their
assertion the Legislature failed to follow certain statutes in passing the Act. In
making that argument, petitioners fail to establish this court has the legal
authority to invalidate a legislative act based not on a constitutional but a
statutory infirmity. Again, Supreme Court precedent is directly to the
contrary.
The Supreme Court has repeatedly held a court cannot declare void a
legislative act unless the act is clearly unconstitutional. See, e.g., State v.
Buckner, 223 N.J. 1, 14 (2015) (finding "a legislative act will not be declared
void unless its repugnancy to the constitution is clear beyond reasonable
A- 1411-22 14 doubt" (quoting Gangemi v. Berry, 25 N.J. 1, 11 (1957))); Lenihan, 219 N.J. at
266 ("[A]ny act of the Legislature will not be ruled void unless its repugnancy
to the Constitution is clear beyond a reasonable doubt." (quoting Muhammad,
145 N.J. at 41)); Secaucus, 133 N.J. at 492-93 ("Only a statute 'clearly
repugnant to the constitution' will be declared void." (quoting Newark Superior
Officers, 98 N.J. at 222)).
This court has followed that precedent. See, e.g., In re Malinowski, 481
N.J. Super. 128, 147-48 (App. Div. 2025) ("It is well-settled 'that a legislative
enactment will not be declared void unless its repugnancy to the Constitution
is so manifest as to leave no room for reasonable doubt.'" (quoting State v.
Murzda, 116 N.J.L. 219, 223 (E. & A. 1936))); Mack-Cali Realty, 466 N.J.
Super. at 424 (same); Teamsters Local 97 v. State, 434 N.J. Super. 393, 415
(App. Div. 2014) (same); Lamb, 67 N.J. Super. at 61 (same); McGlynn, 58
N.J. Super. at 28 ("[C]ourts will not set aside the actions of the Legislature
unless the unconstitutionality of what has been done is manifest."); Freygang,
46 N.J. Super. at 27-28 (same).
Petitioners cite one case in support of their assertion this court has the
authority to void the Act based on solely purported statutory violations: In re
Miller's Petition, 122 N.J.L. 176, 179 (Sup. Ct. 1939). But their reliance on
that case, which predates the 1947 Constitution and the case law following it,
A- 1411-22 15 is misplaced. The constitutional nature of Miller's Petition is clear from the
language that court used and from the analysis of that case by subsequent
courts. The court in Miller's Petition described the matter before it as a
petition to declare a statute "null and void for want of certain constitutional
requirements necessary and peculiar to an act of this character." Id. at 177
(emphasis added). In a case decided months later by the same court, the court
in In re Borg, 123 N.J.L. 104, 107 (Sup. Ct. 1939), analyzed Miller's Petition,
referenced the constitutional provision at issue in that case, and found "in that
case, the constitutional condition precedent of notice of intention was not
complied with, and the attempted procedure of enactment without notice was
simply nugatory because of having no foundation on which to rest." In
McCabe, the Court acknowledged the applicants in Miller's Petition had sought
to declare a statute void because the statute allegedly lacked "certain
constitutional requirements." 81 N.J. at 468-69 (quoting Miller's Petition, 122
N.J.L. at 177).
And the applicable statutory language fails to support petitioners'
assertion we can declare a law void solely based on an alleged statutory
violation. Petitioners filed their application with this court pursuant to
N.J.S.A. 1:7-4. That statute allows citizens to submit to this court an
application "such as is authorized by [N.J.S.A.] 1:7-1." N.J.S.A. 1:7-1 enables
A- 1411-22 16 the Governor to apply to this court for the invalidation of a law "[i]f . . . the
Governor has reason to believe that any such law . . . was not duly passed by
both houses of Legislature, or approved by the Governor or otherwise made
effective as law in the manner required by the Constitution . . . ." Thus,
N.J.S.A. 1:7-1, from which citizens derive their authority under N.J.S.A. 1:7-4,
permits only constitutional challenges by its own unambiguous language.
To support their assertion this court can declare a statute void based
solely on a statutory infirmity, petitioners rely on N.J.S.A. 1:7-3. That statute
authorizes this court, "if satisfied that the constitutional and statutory
provisions relating to the enactment and approval of laws and joint resolutions
have not been complied with, [to] adjudge the law or joint resolution or any
part thereof to be void." But, under N.J.S.A. 1:7-4, we reach N.J.S.A. 1:7-3
only on applications "such as [are] authorized by [N.J.S.A.] 1:7-1." And
N.J.S.A. 1:7-1 clearly authorizes only constitutional challenges.
We cannot read language into a statute that isn't there. See State v.
Twiggs, 233 N.J. 513, 533 (2018) (holding courts "must be careful not to
'rewrite a statute or add language that the Legislature omitted'" (quoting State
v. Munafo, 222 N.J. 480, 488 (2015))); Jersey Cent. Power & Light Co. v.
Melcar Util. Co., 212 N.J. 576, 587 (2013) (holding that when interpreting a
statute, "a court may not 'presume that the Legislature intended something
A- 1411-22 17 other than that expressed by way of the plain language'" of the statute (quoting
O'Connell v. State, 171 N.J. 484, 488 (2002))).
We also cannot change the language of a statute. With its use of the
word "and" before the phrase "statutory provisions" in N.J.S.A. 1:7 -3, the
Legislature clearly indicated its intention that an alleged statutory violation
could not serve as a stand-alone basis for a court to declare void a statute. See
Beaugard v. Johnson, 281 N.J. Super. 162, 169 (App. Div. 1995) ("The word
'and' connotes 'natural conjunctive import' while the word 'or' signifies 'natural
disjunctive import.'" (quoting Pine Belt Chevrolet v. Jersey Cent. Power &
Light, 132 N.J. 564, 578 (1993))).
In sum, having failed to demonstrate the Legislature violated the
Constitution in the procedures it followed in passing the Act or that this court
has the authority to declare the Act void based solely on alleged statutory
infirmities, petitioners have failed to meet their burden with respect to their
challenge to the procedures the Legislature followed in enacting the Act.
Petitioners ask us to remand their application rather than dismiss it,
contending "there is another substantive challenge that must be reviewed by
the trial court in the event the law is not voided." The Attorney General argues
we should dismiss petitioners' application and not remand it because
petitioners lack standing to challenge the constitutionality of the Act's
A- 1411-22 18 provisions. We conclude the better course here is to deny that portion of the
application that was properly brought before us and remand the rest of the
application to the Law Division.
After denying the petitioners' N.J.S.A. 1:7-4 application, the court in
Borg, 123 N.J.L. at 106, dismissed the application, finding "that as a matter of
procedure the present application is misconceived." With counts that clearly
and obviously go beyond our authority under N.J.S.A. 1:7-4 in that they did
not challenge "the mechanics of the enactment of the law," McCabe, 81 N.J. at
467 – and weren't even argued before us in petitioners' merits brief – we could
reach the same conclusion here and dismiss petitioners' application in its
entirety.
However, in McCabe, 81 N.J. at 469, the Court remanded an application
after concluding it raised only substantive constitutionality issues, explaining:
However, our holding that appellants' challenge to the constitutionality of [the statute at issue] may not be brought under N.J.S.A. 1:7-1 et seq. does not require that the application be dismissed. Rule 1:13-4(a) provides in part that "if any court is without jurisdiction of the subject matter of an action or issue therein * * * it shall, on motion or on its own initiative, order the action, with the record and all papers on file, transferred to the proper court." Appellants' challenge raises a viable issue cognizable in the Law Division and the matter should be transferred to that court which not only has the jurisdiction but also the facilities to hear the case.
A- 1411-22 19 Arguing against remand, the Attorney General challenges petitioners'
standing. In McCabe, the petitioners questioned whether they had standing to
prosecute a substantive constitutional challenge to a statute even though the
Attorney General in that case, unlike here, had acknowledged the petitioners
"probably [had] standing." Id. at 470. The Court held, "[s]hould this
[standing] issue be raised, it will be for the Law Division to decide on a proper
record." Ibid.
We follow that Supreme Court precedent and deny Count I of
petitioners' application, in which petitioners challenged "the mechanics of the
enactment of the law," id. at 467, and remand the remaining aspects of the case
for further proceedings in the Law Division. The parties are to amend their
pleadings to conform with Law Division procedures.
Denied in part; remanded in part. We do not retain jurisdiction. 3
3 At the end of their reply brief, petitioners ask this court to "permit discovery so that further evidence may be presented." We deny that request because it is substantively meritless and procedurally improper. See Pannucci v. Edgewood Park Senior Hous. – Phase 1, LLC, 465 N.J. Super. 403, 409-10 (App. Div. 2020) (court declines to consider issue the plaintiff did not present in her initial appellate brief and "improperly saved . . . for her reply"). We also deny as improper and meritless the pending motions, which were filed after the appellate oral argument. See M-003561-24, M-003772-24, and M-003821-24.
A- 1411-22 20