Jersey City United Against the New Ward Map v. Jersey City Ward Commission
This text of Jersey City United Against the New Ward Map v. Jersey City Ward Commission (Jersey City United Against the New Ward Map v. Jersey City Ward Commission) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court and may not summarize all portions of the opinion.
Jersey City United Against the New Ward Map v. Jersey City Ward Commission (A-10/11-24) (089292)
Argued January 6, 2025 -- Decided June 18, 2025
PATTERSON, J., writing for the Court.
In this appeal, the Court considers challenges to the ward map adopted by defendant Jersey City Ward Commission following the 2020 federal census.
Jersey City is divided into wards for the purpose of the election or appointment of any municipal officers. Following the release of the 2020 census data, the Ward Commission determined that there was a 59% population deviation between the most populous ward, Ward E, and the least populous ward, Ward D. That deviation far exceeded the maximum population deviation authorized by the Municipal Ward Law (MWL), N.J.S.A. 40:44-9 to -18. The Commission disseminated and later approved a new map in which the population deviation between those wards was 1.8% and the boundaries of all six wards were revised.
Plaintiffs -- individuals and community organizations opposed to the Commission’s map -- filed these actions to challenge the map. Plaintiffs argued that the new map failed to meet the MWL’s compactness requirement, see N.J.S.A. 40:44-14, because its wards earned low scores on two mathematical measures of compactness, the Polsby-Popper Measure and the Reock Score. Second, the Community Organizations alleged that the Commission’s map violated principles of equal protection guaranteed by the New Jersey Constitution, contending that the wards were not sufficiently compact and that the Commission unlawfully divided historic districts and established neighborhoods, thus diminishing the capacity of communities of interest to achieve effective representation for issues such as affordable housing and high-rise development. The Community Organizations also asserted a claim under the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2, predicated upon the alleged violations of the MWL and the State Constitution.
The trial court concluded that the Commission’s ward map created wards that were sufficiently compact under the MWL and granted the Commission’s motion to dismiss plaintiffs’ statutory and constitutional claims. The Appellate Division reversed the dismissal of plaintiffs’ MWL claims and remanded the matter to the 1 trial court for factfinding as to whether there was a rational basis for the Commission’s determination that the wards defined by its map were sufficiently compact to satisfy the MWL’s requirements. 478 N.J. Super. 132, 144-56 (App. Div. 2024). It affirmed the trial court’s determinations of plaintiffs’ equal protection and NJCRA claims. Id. at 151, 154-55. The Court granted certification, limited to the MWL, equal protection, and NJCRA claims. 258 N.J. 482 (2024).
HELD: The Commission’s map represents a proper exercise of the substantial discretion the MWL grants to ward commissions to set the boundaries of municipal wards. The Court does not concur with the Appellate Division’s ruling that additional factfinding is necessary to determine whether the Commission’s map meets N.J.S.A. 40:44-14’s compactness requirement. The Court reverses the Appellate Division’s judgment on that claim and reinstates the trial court’s judgment as to the Commission’s compliance with the MWL without further proceedings. The Court’s conclusion that the Commission complied with the MWL compels rejection of the equal protection claim. And, in light of its holding that the map did not violate either the MWL or the New Jersey Constitution, the Court affirms the Appellate Division’s determination that the trial court properly dismissed the Community Organizations’ NJCRA claim.
1. The Court reviews the requirements of the MWL, which charges a commission to “fix and determine the ward boundaries so that each ward is formed of compact and contiguous territory.” NJ.S.A. 40:44-14. The statute also mandates that “[t]he population of the most populous ward so created shall not differ from the population of the least populous ward so created by more than [ten percent] of the mean population of the wards,” using the census as “the population determinant.” Ibid. The Legislature did not define a “compact” territory for purposes of the MWL, nor did it direct that ward commissions use a mathematical measure of compactness such as the Polsby-Popper Measure or the Reock Score in the determination of ward boundaries, even though they were available when the MWL was enacted. In short, the Legislature directed a ward commission to design wards that are compact, but did not prescribe a methodology for that determination or otherwise constrain a ward commission’s discretion. (pp. 17-20)
2. Although the Court has not previously addressed the MWL’s compactness requirement, it has addressed the New Jersey Constitution’s legislative district compactness requirement. In Jackman v. Bodine, plaintiffs challenging a legislative redistricting map relied heavily on a claim of excessive population discrepancies. 49 N.J. 406, 418 (1967). The defendants asserted that although the districts envisioned in alternative maps proposed by the plaintiffs “would come somewhat closer to the optimum population size,” redistricting officials had “selected arrangements which are more ‘compact,’” and in some situations may have considered “other matters” such as “so-called community interests, partisan history, 2 and residence of incumbents.” Ibid. Observing that those other matters “are wholly irrelevant” and could not be invoked to support population deviations “of any kind,” the Court held that the constitutional mandate limiting population deviations can be a more important consideration than compactness where the districts are being created on the basis of existing political subdivisions, unless a configuration would yield such bizarre designs as a “shoe lace” or “horse shoe.” Id. at 418-19. Both Jackman, ibid., and Davenport v. Apportionment Commission, 65 N.J. 125, 133-34 (1974), approve a commission’s assessment of a legislative district’s compactness by visual inspection of a map. (pp. 20-23)
3. Turning to plaintiffs’ claims that the Commission’s map fails to satisfy the MWL’s compactness requirement, the Court first finds that the Commission was not required to utilize the Polsby-Popper Measure or Reock Score to assess compactness. The MWL does not mandate the use of those measures, and so a ward commission may elect to use them but is not required to do so. Similarly, although the preservation of communities of interest may be relevant to the work of ward commissions, it is not a requirement for determining compactness under the MWL. Finally, the Court does not concur with plaintiffs’ contention that Wards A, D, and F are “bizarrely shaped” and thus violate the MWL. The contours of Wards A and D are principally determined not by the Commission, but by Jersey City’s uneven borders with adjoining municipalities and natural features such as the Hudson and Hackensack Rivers. Ward F was significantly altered when the Commission reduced Ward E’s population by nearly thirty percent to meet the MWL’s population deviation requirement. Ward F has uneven borders, but it is not comparable to “bizarrely shaped” districts such as the “horseshoe” and “shoelace” configurations addressed in Jackman and Davenport. A deferential standard of review governs appeals of redistricting plans in which there is no claim of invidious discrimination, and the Court concludes, under that standard, that the Commission’s plan meets N.J.S.A. 40:44-14’s mandate of compactness. (pp. 23-29)
4.
Free access — add to your briefcase to read the full text and ask questions with AI
SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court and may not summarize all portions of the opinion.
Jersey City United Against the New Ward Map v. Jersey City Ward Commission (A-10/11-24) (089292)
Argued January 6, 2025 -- Decided June 18, 2025
PATTERSON, J., writing for the Court.
In this appeal, the Court considers challenges to the ward map adopted by defendant Jersey City Ward Commission following the 2020 federal census.
Jersey City is divided into wards for the purpose of the election or appointment of any municipal officers. Following the release of the 2020 census data, the Ward Commission determined that there was a 59% population deviation between the most populous ward, Ward E, and the least populous ward, Ward D. That deviation far exceeded the maximum population deviation authorized by the Municipal Ward Law (MWL), N.J.S.A. 40:44-9 to -18. The Commission disseminated and later approved a new map in which the population deviation between those wards was 1.8% and the boundaries of all six wards were revised.
Plaintiffs -- individuals and community organizations opposed to the Commission’s map -- filed these actions to challenge the map. Plaintiffs argued that the new map failed to meet the MWL’s compactness requirement, see N.J.S.A. 40:44-14, because its wards earned low scores on two mathematical measures of compactness, the Polsby-Popper Measure and the Reock Score. Second, the Community Organizations alleged that the Commission’s map violated principles of equal protection guaranteed by the New Jersey Constitution, contending that the wards were not sufficiently compact and that the Commission unlawfully divided historic districts and established neighborhoods, thus diminishing the capacity of communities of interest to achieve effective representation for issues such as affordable housing and high-rise development. The Community Organizations also asserted a claim under the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2, predicated upon the alleged violations of the MWL and the State Constitution.
The trial court concluded that the Commission’s ward map created wards that were sufficiently compact under the MWL and granted the Commission’s motion to dismiss plaintiffs’ statutory and constitutional claims. The Appellate Division reversed the dismissal of plaintiffs’ MWL claims and remanded the matter to the 1 trial court for factfinding as to whether there was a rational basis for the Commission’s determination that the wards defined by its map were sufficiently compact to satisfy the MWL’s requirements. 478 N.J. Super. 132, 144-56 (App. Div. 2024). It affirmed the trial court’s determinations of plaintiffs’ equal protection and NJCRA claims. Id. at 151, 154-55. The Court granted certification, limited to the MWL, equal protection, and NJCRA claims. 258 N.J. 482 (2024).
HELD: The Commission’s map represents a proper exercise of the substantial discretion the MWL grants to ward commissions to set the boundaries of municipal wards. The Court does not concur with the Appellate Division’s ruling that additional factfinding is necessary to determine whether the Commission’s map meets N.J.S.A. 40:44-14’s compactness requirement. The Court reverses the Appellate Division’s judgment on that claim and reinstates the trial court’s judgment as to the Commission’s compliance with the MWL without further proceedings. The Court’s conclusion that the Commission complied with the MWL compels rejection of the equal protection claim. And, in light of its holding that the map did not violate either the MWL or the New Jersey Constitution, the Court affirms the Appellate Division’s determination that the trial court properly dismissed the Community Organizations’ NJCRA claim.
1. The Court reviews the requirements of the MWL, which charges a commission to “fix and determine the ward boundaries so that each ward is formed of compact and contiguous territory.” NJ.S.A. 40:44-14. The statute also mandates that “[t]he population of the most populous ward so created shall not differ from the population of the least populous ward so created by more than [ten percent] of the mean population of the wards,” using the census as “the population determinant.” Ibid. The Legislature did not define a “compact” territory for purposes of the MWL, nor did it direct that ward commissions use a mathematical measure of compactness such as the Polsby-Popper Measure or the Reock Score in the determination of ward boundaries, even though they were available when the MWL was enacted. In short, the Legislature directed a ward commission to design wards that are compact, but did not prescribe a methodology for that determination or otherwise constrain a ward commission’s discretion. (pp. 17-20)
2. Although the Court has not previously addressed the MWL’s compactness requirement, it has addressed the New Jersey Constitution’s legislative district compactness requirement. In Jackman v. Bodine, plaintiffs challenging a legislative redistricting map relied heavily on a claim of excessive population discrepancies. 49 N.J. 406, 418 (1967). The defendants asserted that although the districts envisioned in alternative maps proposed by the plaintiffs “would come somewhat closer to the optimum population size,” redistricting officials had “selected arrangements which are more ‘compact,’” and in some situations may have considered “other matters” such as “so-called community interests, partisan history, 2 and residence of incumbents.” Ibid. Observing that those other matters “are wholly irrelevant” and could not be invoked to support population deviations “of any kind,” the Court held that the constitutional mandate limiting population deviations can be a more important consideration than compactness where the districts are being created on the basis of existing political subdivisions, unless a configuration would yield such bizarre designs as a “shoe lace” or “horse shoe.” Id. at 418-19. Both Jackman, ibid., and Davenport v. Apportionment Commission, 65 N.J. 125, 133-34 (1974), approve a commission’s assessment of a legislative district’s compactness by visual inspection of a map. (pp. 20-23)
3. Turning to plaintiffs’ claims that the Commission’s map fails to satisfy the MWL’s compactness requirement, the Court first finds that the Commission was not required to utilize the Polsby-Popper Measure or Reock Score to assess compactness. The MWL does not mandate the use of those measures, and so a ward commission may elect to use them but is not required to do so. Similarly, although the preservation of communities of interest may be relevant to the work of ward commissions, it is not a requirement for determining compactness under the MWL. Finally, the Court does not concur with plaintiffs’ contention that Wards A, D, and F are “bizarrely shaped” and thus violate the MWL. The contours of Wards A and D are principally determined not by the Commission, but by Jersey City’s uneven borders with adjoining municipalities and natural features such as the Hudson and Hackensack Rivers. Ward F was significantly altered when the Commission reduced Ward E’s population by nearly thirty percent to meet the MWL’s population deviation requirement. Ward F has uneven borders, but it is not comparable to “bizarrely shaped” districts such as the “horseshoe” and “shoelace” configurations addressed in Jackman and Davenport. A deferential standard of review governs appeals of redistricting plans in which there is no claim of invidious discrimination, and the Court concludes, under that standard, that the Commission’s plan meets N.J.S.A. 40:44-14’s mandate of compactness. (pp. 23-29)
4. The Court reverses the Appellate Division’s decision to remand for factfinding as to whether the ward commissioners had a rational basis for their determination of compactness because it finds the record to be adequate for appellate review. The Court disagrees with the dissent’s suggestion that the Court is constrained to remand this matter because the Commission did not file a cross-petition. Finally, the Court shares the dissent’s view that a detailed explanation of a ward commission’s compactness determination would better inform the public and facilitate judicial review. The Legislature, however, has not mandated such an explanation in a process undertaken on a stringent timetable, and the Court declines to impose such a requirement in this appeal. (pp. 29-33)
5. The Court reviews the New Jersey Constitution’s equal protection principles. Here, the Community Organizations assert no claim of invidious discrimination on 3 racial or other grounds. They do not allege that the Commission unconstitutionally treated one class of people differently from the manner in which it treated another class of people. Instead, they contend that the Commission improperly divided certain established neighborhoods and communities of interest into wards that were not compact. Accordingly, the Court’s conclusion that the Commission complied with the MWL’s compactness standard compels rejection of the Community Organizations’ equal protection claim, and the Court affirms the judgment of the Appellate Division as to that claim. (pp. 34-36)
6. Finally, because an NJCRA claim depends on a deprivation “of any substantive . . . rights, privileges or immunities secured by the Constitution or laws of this State,” see N.J.S.A. 10:6-2(c), and because the Court finds that no constitutional or statutory violation occurred here, the Court affirms the Appellate Division’s determination that the trial court properly dismissed the Community Organizations’ NJCRA claim. (pp. 36-38)
AFFIRMED IN PART and REVERSED IN PART.
JUSTICE WAINER APTER, concurring in part and dissenting in part, expresses the view that by dismissing the MWL claim outright, the Court is enlarging the Appellate Division’s judgment in favor of the Commission without the Commission ever filing a cross petition or even requesting that relief. Justice Wainer Apter would affirm the Appellate Division’s judgment as to the MWL claim on that basis alone and would also hold that a remand is justified on the merits of plaintiffs’ MWL claim. Justice Wainer Apter would not apply the Appellate Division’s rational basis test, finding that it lacks a basis in the MWL or case law; instead, the purpose of the remand would be to determine whether the new wards are compact within the meaning of the MWL. Justice Wainer Apter explains that where, as here, plaintiffs allege that the 2022 map is much less compact than the 2012 map pursuant to both mathematical measures and the eyeball test, and where, as here, the Commission has not explained why, the Commission should be required to redraw the map to meet the MWL’s compactness requirement unless it can explain, on remand, why redrawing the wards to address the fifty-nine percent population deviation between Wards E and D required such a drastic decline in compactness for all six wards. Justice Wainer Apter agrees that the equal protection and NJCRA claims were properly dismissed and explains why that is so regardless of the outcome on the MWL claim.
CHIEF JUSTICE RABNER and JUSTICES PIERRE-LOUIS and FASCIALE join in JUSTICE PATTERSON’s opinion. JUSTICE WAINER APTER filed a separate opinion concurring in part and dissenting in part, in which JUSTICES NORIEGA and HOFFMAN join.
4 SUPREME COURT OF NEW JERSEY A-10/11 September Term 2024 089292
Jersey City United Against the New Ward Map, Downtown Coalition of Neighborhood Associations, Greenville Neighborhood Alliance, Friends of Berry Lane Park, Riverview Neighborhood Association, Pershing Field Neighborhood Association, Sgt. Anthony Neighborhood Assoc., Gardner Avenue Block Association, Lincoln Park Neighborhood Watch, Morris Canal Redevelopment CDC, Harmon Street Block Association, Crescent Avenue Block Association, Democratic Political Alliance, and Frank E. Gilmore, in his individual and official capacity as Ward F Councilman,
Plaintiffs-Appellants,
v.
Jersey City Ward Commission and John Minella, in his official capacity as Chair of the Commission,
Defendants-Respondents.
James Calderon,
Plaintiff-Appellant,
1 v.
City of Jersey City Ward Commission, John Minella, Chairman, Sean J. Gallagher, Secretary, and Commissioners Daniel E. Beckelman, Paul Castelli, Janet Larwa, and Daniel Miqueli,
On certification to the Superior Court, Appellate Division, whose opinion is reported at 478 N.J. Super. 132 (App. Div. 2024).
Argued Decided January 6, 2025 June 18, 2025
Renée Steinhagen and Yael Bromberg argued the cause for appellants Jersey City United Against the New Ward Map, et al. (NJ Appleseed Public Interest Law Center, Bromberg Law, and Matsikoudis & Fanciullo, attorneys; Renée Steinhagen, Yael Bromberg, and William C. Matsikoudis, on the briefs).
James Calderon, appellant, argued the cause on appellant’s behalf.
Jason F. Orlando argued the cause for respondents Jersey City Ward Commission, et al. (Murphy Orlando, attorneys; Jason F. Orlando, John W. Bartlett, Tyler Newman, and Mallory B. Olwig, on the briefs).
Peter Slocum argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Lowenstein Sandler, attorneys; Alexander Shalom, of counsel, and Peter Slocum and Mikayla Berliner, on the brief).
2 Bruce D. Greenberg argued the cause for amici curiae City of Jersey City and Councilman at Large Daniel Rivera (Lite DePalma Greenberg & Afanador, attorneys; Bruce D. Greenberg, on the brief).
Andrew Gimigliano submitted a brief on behalf of amicus curiae Electoral Innovation Lab (Mandelbaum Barrett, attorneys; Andrew Gimigliano and Brian Block, on the brief).
Edward D. Rogers submitted a brief on behalf of amicus curiae League of Women Voters of New Jersey (Ballard Spahr, attorneys; Edward D. Rogers and Elizabeth V. Wingfield, of counsel and on the brief).
Scott D. Salmon submitted a brief on behalf of amicus curiae New Jersey Association of Election Officials (Jardim Meisner Salmon Sprague & Susser, attorneys; Scott D. Salmon and Julia Burzynski, of counsel and on the brief).
Richard J. Allen, Jr. submitted a brief on behalf of amici curiae New Jersey League of Municipalities, New Jersey Association of Counties, and New Jersey Institute of Local Government Attorneys (Kipp & Allen, attorneys; Richard J. Allen, Jr., on the brief).
JUSTICE PATTERSON delivered the opinion of the Court.
In the Municipal Ward Law (MWL), the Legislature prescribed the
method by which municipalities that have adopted a ward system for municipal
elections establish the boundaries of their wards. N.J.S.A. 40:44-9 to -18.
Following each federal decennial census, ward commissioners “fix and
determine the ward boundaries so that each ward is formed of compact and
3 contiguous territory” and the population of the most populous ward does not
diverge from the population of the least populous ward by more than ten
percent of the mean population of the wards. N.J.S.A. 40:44-14.
In this appeal, we consider statutory and constitutional challenges to the
ward map adopted by defendant Jersey City Ward Commission following the
2020 federal census. Plaintiffs, who are individuals and community
organizations opposed to the Commission’s map, sued the Commission and
some of its members. They asserted, among other allegations, a statutory
claim premised on the MWL’s mandate that wards be “compact”; an equal
protection claim under the New Jersey Constitution; and a claim pursuant to
the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2.
The trial court concluded that the Commission’s ward map created wards
that were sufficiently compact under N.J.S.A. 40:44-14 and granted the
Commission’s motion to dismiss plaintiffs’ statutory and constitutional claims
pursuant to Rule 4:6-2. Plaintiffs appealed, and the Appellate Division
affirmed in part and reversed in part the trial court’s judgment. Jersey City
United Against the New Ward Map v. Jersey City Ward Comm’n, 478 N.J.
Super. 132, 144-56 (App. Div. 2024). It reversed the trial court’s dismissal of
plaintiffs’ MWL claims and remanded the matter to the trial court for
factfinding as to whether there was a rational basis for the Commission’s
4 determination that the wards defined by its map were sufficiently compact to
satisfy the MWL’s requirements. Id. at 147-50. We granted plaintiffs’
petition for certification, limited to plaintiffs’ claims based on the MWL, equal
protection principles, and the NJCRA.
We view the Commission’s map to represent a proper exercise of the
substantial discretion the MWL grants to ward commissions to set the
boundaries of municipal wards. We do not concur with the Appellate
Division’s ruling that additional factfinding is necessary to determine whether
the Commission’s map meets N.J.S.A. 40:44-14’s compactness requirement.
Accordingly, we reverse the Appellate Division’s determination with respect
to the MWL. We affirm the Appellate Division’s determination that the trial
court properly dismissed plaintiffs’ equal protection and NJCRA claims.
I.
A.
Jersey City is divided into wards “for the purpose of the election or
appointment of any municipal officers.” N.J.S.A. 40:44-10. In accordance
with N.J.S.A. 40:44-11, the members of the Hudson County Board of Elections
and the Jersey City municipal clerk were appointed as ward commissioners.
On September 16, 2021, Governor Philip D. Murphy announced the
results of the 2020 census for New Jersey. At its initial meeting, the Ward
5 Commission determined that there was a fifty-nine percent population
deviation between the most populous ward, Ward E, and the least populous
ward, Ward D. That deviation far exceeded the maximum population
deviation authorized by N.J.S.A. 40:44-14.
The Commission stated that it “sought to craft a map that would (1)
impose the least amount of demographic change to each ward while (2)
lowering the deviation between the most populous ward and the least populous
to the lowest possible percentage.” According to the Commission, it “utilized
a proprietary mapping software which depicted the existing ward map
featuring the census tracts provided by the [f]ederal government superimposed
upon it.”
The Commission disseminated a proposed new map and a comparison of
the demographic breakdown of the 2012 ward map based on the 2012 census
data and the 2022 proposed ward map based on the 2020 census data. It noted
that in contrast to the fifty-nine percent population deviation between the most
and least populous wards that would exist if the 2012 ward boundaries were
retained following a decade of significant change, the population deviation
between the most and least populous wards in its proposed map was only 1.8
percent. In the Commission’s proposed new map, the boundaries of all six
wards were revised.
6 B.
1.
This appeal arose from two actions in lieu of prerogative writs
challenging the Commission’s map. The first was filed by pro se plaintiff
James Calderon (Calderon), and the second was filed by thirteen community
organizations and Ward F Councilman Frank E. Gilmore (collectively,
Community Organizations).
Three of the claims asserted in the plaintiffs’ complaints are before us in
this appeal. 1
First, plaintiffs in both actions asserted in their complaints that the
Commission violated the MWL because the new wards were not sufficiently
compact. The Community Organizations alleged that the new map should be
rejected because its wards earned low scores on two mathematical measures of
1 In addition to the claims at issue in this appeal, the Community Organizations alleged that the Commission violated their right of free speech and their right of free association under Article I, Paragraphs 6 and 18 of the New Jersey Constitution; that the Commission violated the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21, by making decisions in private meetings; that the Commission retaliated against Councilman Gilmore for his campaign advocacy by removing his supporters from Ward F; and that the Commission violated the NJCRA based on those constitutional and statutory allegations.
8 compactness, the Polsby-Popper Measure and the Reock Score. 2 They
proposed an alternative map, contending that it offered more compact wards as
assessed by those measures.
Second, the Community Organizations alleged in their complaint that the
Commission’s map violated principles of equal protection guaranteed by
Article I, Paragraph 1 of the New Jersey Constitution. The Community
Organizations did not assert that the Commission engaged in invidious
discrimination when it devised the new map. Instead, they premised their
equal protection claim on the contention that the wards were not sufficiently
compact and that the Commission unlawfully divided historic districts and
established neighborhoods, thus diminishing the capacity of communities of
interest to achieve effective representation for issues such as affordable
housing and high-rise development.
Third, the Community Organizations alleged in their complaint that the
Commission violated the NJCRA by violating the MWL and equal protection
2 In their complaint, the Community Organizations explained that the Polsby- Popper Measure “looks at the ratio of the area of a district and compares it to the area of a circle whose circumference equals the perimeter of the district,” with scores ranging between zero and one, and scores closer to one indicating a more compact district. They asserted that the Reock Score “looks at the ratio of the area of the district and compares it to the area of the smallest (minimum bonding) circle that encloses the entire district’s shape,” with scores ranging between zero and one, and scores closer to one indicating a more compact district. 9 principles and therefore deprived them of their right to live in compact wards
that preserved communities of interest.
Plaintiffs sought, among other relief, a declaration voiding the
Commission’s map and an order that the Commission redraw the map.
Pursuant to Rule 4:6-2(e), the Commission moved in both actions to
dismiss the complaints for failure to state a claim. Plaintiffs opposed the
motions.
The trial court dismissed both complaints with prejudice. Citing this
Court’s opinion in Davenport v. Apportionment Commission, 65 N.J. 125,
133-35 (1974), the court noted that judicial review of a plan such as the ward
map is limited, that compactness is an elusive concept, and that a map should
not be struck down simply because a judge concludes that a better map could
be devised. The trial court acknowledged that a plan that created bizarrely
shaped districts for partisan advantage would not be tolerated, but it found no
such flaw in the Commission’s map. The court accordingly rejected plaintiffs’
MWL claims. It also dismissed the Community Organizations’ equal
protection claim, rejecting the notion that such a claim can be premised on the
rights of citizens who share a common interest in a particular issue. Finally,
the trial court dismissed the Community Organizations’ NJCRA claim on the
10 ground that they failed to allege a claim that the Commission violated their
substantive rights. 3
2.
Plaintiffs appealed the trial court’s judgments. The Appellate Division
affirmed in part, reversed in part and remanded for limited factfinding. Jersey
City United, 478 N.J. Super. at 155-56.
The Appellate Division observed that redistricting plans such as the
ward map in dispute “are not subject to the normal arbitrary, capricious, and
unreasonable standard generally used to evaluate agency actions.” Id. at 149.
It explained that “[i]nstead, courts are limited to determining whether the
redistricting plan is ‘unlawful or reflects invidious discrimination.’” Ibid.
(quoting In re Establishment of Cong. Dists. by N.J. Redistricting Comm’n,
249 N.J. 561, 574 (2022)).
In the absence of any claim of invidious discrimination or partisan
gerrymandering in this appeal, the Appellate Division held that the boundaries
and map can be challenged only on the basis of N.J.S.A. 40:44-14’s
requirements of compactness, contiguousness, and population deviation, not on
3 In addition to addressing the MWL, equal protection, and NJCRA issues that are relevant to this appeal, the trial court resolved standing and timeliness disputes and dismissed plaintiffs’ OPMA, free speech and associational rights claims, as well as the NJCRA claim premised on those claims, pursuant to Rule 4:6-2(e). 11 grounds of “general, but undefined, concepts of ‘communities of interest’ or
‘historic neighborhoods.’” Ibid.
As to the sole statutory factor at issue in plaintiffs’ appeal, compactness,
the appellate court reasoned that “[a] ward need not be as tight as possible, and
the realities of geography will require some amount of elongation and jagged
boundaries.” Ibid. It held that “[a] ward need only have a rational basis for its
shape, considered within the context of the shape of the overall municipality,
the other wards, and the population deviation between the most populous and
least populous wards.” Id. at 149-50. The Appellate Division cautioned that
courts “should not consider whether there is a better or more compact
configuration.” Id. at 150.
The Appellate Division remanded for a determination whether “the
Commissioners had a rational basis for their configuration,” so that the trial
court could “then determine whether the wards are compact, given the
flexibility afforded by the [MWL].” Ibid. The appellate court granted the trial
court “discretion to allow focused cross-examination of one or more
Commissioners . . . limited to the rational basis for the compactness of the
wards.” Ibid. It barred any challenge based on assertions that the
Commission’s “wards do not comply with other models of compactness” or
that the Commission’s map “breaks up communities of interest or
12 neighborhoods,” and specifically rejected the Community Organizations’
“attempt to use the Polsby-Popper Measure or the Reock Measure.” Ibid.
The appellate court affirmed the trial court’s dismissal of the
Community Organizations’ equal protection claim, noting the lack of any
claim of invidious discrimination on account of race or any other basis, and the
absence of any allegation identifying “how any class of people was treated
differently by the Commission as compared to another class of people.” Id. at
151. It also affirmed the trial court’s dismissal of the Community
Organizations’ NJCRA claim because there was no viable claim of deprivation
of a substantive right. Id. at 154-55 (citing N.J.S.A. 10:6-2(c)). The appellate
court affirmed the dismissal of plaintiffs’ remaining claims. Id. at 155.
C.
We granted plaintiffs’ petitions for certification, “limited to the issues
concerning the interpretation of the ‘compactness’ requirement of the [MWL];
the challenge under the Equal Protection Clause of the New Jersey
Constitution; and the dismissal of the claim brought under the [NJCRA].” 258
N.J. 482 (2024). We granted the applications of the following organizations to
appear as amici curiae: the American Civil Liberties Union of New Jersey
(ACLU); the City of Jersey City and Councilman at Large Daniel Rivera,
jointly represented (City); the Electoral Innovation Lab (EIL); the League of
13 Women Voters of New Jersey (LWV); the New Jersey Association of Election
Officials (NJAEO); and the New Jersey League of Municipalities, New Jersey
Association of Counties, and New Jersey Institute of Local Government
Attorneys, jointly represented (NJLM).
II.
The Community Organizations state that the Commission’s map created
bizarrely shaped wards that are not compact as N.J.S.A. 40:44-14 requires, and
that the map fails to preserve communities of interest, splits up historic
neighborhoods, and ignores natural boundaries. They argue that the Appellate
Division’s limited remand is improper because it effectively eliminates the
MWL’s compactness requirement. The Community Organizations assert that
the Commission violated the New Jersey Constitution’s equal protection
guarantee because it unnecessarily fractured established neighborhoods and
communities of interest, thus diminishing residents’ voting rights. They
contend that they have a viable NJCRA claim based on substantive rights
conferred by the MWL. Calderon asserts a statutory claim under the MWL,
arguing that the Commission’s map includes bizarrely shaped wards that are
not compact and should not be tolerated.
The Commission argues that its map is entitled to a presumption of
legality, that compactness is a vague concept less important than population
14 equality in designing a ward map, and that a map should not be invalidated
because it splits a community of interest into different wards. According to
the Commission, the Appellate Division properly affirmed the dismissal of the
Community Organizations’ equal protection claims in the absence of a
violation of the MWL, a claim of racial discrimination, or evidence of voter
dilution by virtue of the new map, and the Community Organizations’ NJCRA
claim fails because they demonstrated no deprivation of a substantive right.
The ACLU urges the Court to incorporate the preservation of
communities of interest into the MWL’s definition of “compact,” and to reject
the Appellate Division’s “rational basis” test. The LWV argues that the Court
should vacate the Appellate Division’s limited remand and instead order full
discovery and expert testimony regarding “the statistical measurements and
evidence regarding communities of interest.” The EIL takes no position on the
outcome of this appeal but argues that we should require the Polsby-Popper
Measure and the Reock Score as measures of compactness under the MWL.
The City argues that any requirement that the ward map preserve
communities of interest not only contravenes N.J.S.A. 40:44-14, but could
weaken the voting power of members of those communities. The NJAEO
urges the Court to reject plaintiffs’ contention that ward commissioners, who
do not have access to detailed information about residents’ demographic
15 qualities or views on particular issues, should be required to preserve
communities of interest when they redraw a ward map. The NJLM asserts that
the Court should apply the plain meaning of the word “compact” in the MWL
without reference to the concept of communities of interest and leave policy
determinations on that concept to the Legislature.
III.
As we observed in the legislative redistricting setting of Davenport,
“[r]eapportionment is essentially a political and legislative process.” 65 N.J.
at 135. We held that a redistricting plan “must be accorded a presumption of
legality with judicial intervention warranted only if some positive showing of
invidious discrimination or other constitutional deficiency is made.” Ibid.
Invoking the United States Supreme Court’s observation that “[p]olitics and
political considerations are inseparable from districting and apportionment,”
we observed that “[t]he judiciary is not justified in striking down a plan,
otherwise valid, because a ‘better’ one, in its opinion, could be drawn.” Id. at
134-35 (citing Gaffney v. Cummings, 412 U.S. 735, 753 (1973)); accord
Gonzalez v. N.J. Apportionment Comm’n, 428 N.J. Super. 333, 368 (App. Div.
2012). As we recently noted, “[t]hat stringent standard still applies.”
Establishment of Cong. Dists., 249 N.J. at 569. It is not our task to decide
whether there is another map that would be fairer or better than the map at
16 issue, but to determine whether “the map selected is ‘unlawful.’” Ibid. (citing
N.J. Const. art II, § 2, ¶ 9.)
Here, we determine only whether the map adopted by the Commission
complies with the MWL’s requirement of a “compact” map, whether it
contravenes the New Jersey Constitution’s equal protection guarantee, and
whether it gives rise to a claim under the NJCRA. Absent a violation of the
MWL, the equal protection guarantee, or the NJCRA, we must uphold the
Commission’s map. Ibid.
We begin with plaintiffs’ claim that the Commission’s map violates the
MWL because it created wards that were not “compact,” contrary to N.J.S.A.
40:44-14.
The Legislature enacted the MWL to provide “a uniform method for the
fixing and determination of municipal ward boundaries by ward
commissioners.” S. 3157 (1981). 4 Effective on January 12, 1982, the MWL
4 The MWL’s legislative history indicates that the Legislature considered the recommendations of the County and Municipal Government Study Commission, known as the “Musto Commission,” which were set forth in a publication entitled Forms of Municipal Government in New Jersey. See Sponsor’s Statement to S. 3157 (L. 1981, c. 496). The Legislature decided to implement only one of those recommendations -- that “the general law for re-
17 governs “any municipality having adopted a charter or form of government, or
ordinance, providing that the municipality shall be divided into wards, or other
similar representation districts, for the purpose of the election or appointment
of any municipal officers.” N.J.S.A. 40:44-10.
The Legislature provided that a ward commission shall consist of “[t]he
members of the county board of elections of the county in which the
municipality is located, together with the municipal clerk.” N.J.S.A. 40:44-11.
Within three months of the Governor’s promulgation of the results of a
federal decennial census, the ward commission must hold a meeting to “make
such adjustments in ward boundaries, as shall be necessary to conform them to
the requirements” of the MWL. N.J.S.A. 40:44-13(c). Those requirements are
set forth in N.J.S.A. 40:44-14, which charges a commission to “fix and
determine the ward boundaries so that each ward is formed of compact and
contiguous territory.” The statute also mandates that “[t]he population of the
most populous ward so created shall not differ from the population of the least
populous ward so created by more than [ten percent] of the mean population of
drawing wards and the Optional Municipal Charter Law provisions for re- redrawing wards, be updated and consolidated into a single, uniform ward statute prior to the 1980 census.” Cnty. & Mun. Gov’t Study Comm’n, Forms of Municipal Government in New Jersey 57 (17th Report, Jan. 1979) (citing N.J.S.A. 40:44-1 to -8 and N.J.S.A. 40:69A-197 to -204, both of which were repealed by L. 1981, c. 496). 18 the wards,” using the census as “the population determinant.” N.J.S.A. 40:44-
14. Within thirty days of its first meeting, the commission must file a report
“setting forth and properly describing the ward boundaries fixed and
determined,” and must annex to that report “a map of the municipality with the
ward boundaries clearly marked thereon.” N.J.S.A. 40:44-15.
The Legislature did not define a “compact” territory for purposes of the
MWL. See N.J.S.A. 40:44-14. Accordingly, we give that term its “generally
accepted meaning, according to the approved usage of the language.” N.J.S.A.
1:1-1. As dictionary definitions suggest, the term “compact” modifying the
word “territory” in N.J.S.A. 40:44-14 denotes the geographic contours of a
given ward. See Webster’s Third International Dictionary 461 (unabridged)
(2002) (defining “compact” to denote “[m]arked by concentration in a limited
area”); Merriam-Webster’s Collegiate Dictionary 252 (11th ed. 2020)
(defining “compact” to denote “a dense structure or parts of units closely
packed or joined” and “occupying a small volume by reason of efficient use of
space”).
Absent from the MWL is any legislative direction that ward
commissions use a mathematical measure of compactness such as the Polsby-
Popper Measure or the Reock Score in the determination of ward boundaries.
See N.J.S.A. 40:44-14. That is particularly significant because mathematical
19 measures of compactness were available when the MWL was enacted; indeed,
Dr. Ernest C. Reock, inventor of the Reock Score, was one of the two
representatives of the Bureau of Government Research and Services who
prepared the Musto Commission Report. Nor did the Legislature identify
factors that a commission should consider in assessing a ward’s compactness.
See ibid. In short, the Legislature directed a ward commission to design wards
that are compact, but did not prescribe a methodology for that determination or
otherwise constrain a ward commission’s discretion. See ibid.
Although we have not previously addressed the MWL’s compactness
requirement, we have twice addressed the New Jersey Constitution’s
legislative district compactness requirement. 5 In Jackman v. Bodine, plaintiffs
challenging a legislative redistricting map relied heavily on a claim of
excessive population discrepancies among the proposed districts as a ground to
5 The New Jersey Constitution imposes a compactness requirement for the determination of General Assembly districts; such districts
shall be composed of contiguous territory, as nearly compact and equal in the number of their inhabitants as possible, and in no event shall each such district contain less than eighty per cent nor more than one hundred twenty per cent of one-fortieth of the total number of inhabitants of the State as reported on the last preceding decennial census of the United States.
[N.J. Const. art. IV, § 2, ¶ 3.] 20 strike down the plan. 49 N.J. 406, 418 (1967). The defendants asserted that
although the districts envisioned in alternative maps proposed by the plaintiffs
“would come somewhat closer to the optimum population size,” redistricting
officials had “selected arrangements which are more ‘compact,’” and in some
situations may have considered “other matters” such as “so-called community
interests, partisan history, and residence of incumbents.” Ibid.
Observing that those other matters “are wholly irrelevant” and could not
be invoked to support population deviations “of any kind,” the Court held that
the constitutional mandate limiting population deviations is in some settings a
more important consideration than compactness:
Compactness usually appears in discussions of districting, and of course the constitutional amendments cited above refer to it. We incline to believe that the concept is substantially significant only when wholly new district lines are being created without reference to existing political subdivisions. Where the districts are being created on the basis of existing political subdivisions, it seems to us that compactness, although not irrelevant, becomes a much reduced factor. We do not think it possible to state the precise impact of compactness, but we believe it helpful for future guidance to suggest that population equality must be distinctly paramount. Compactness no doubt would be a material factor if the choice were between a configuration of existing political entities which would yield such bizarre designs as a “shoe lace” or “horse shoe.” Absent such extremes, compactness may not be relied upon to justify an appreciable deviation.
[Id. at 419.] 21 Although the Court did not define a “compact” district in Jackman, it
suggested that redistricting officials’ visual review of the physical shape or
density of a district is an appropriate method of determining whether the
constitutional mandate is met. See ibid. 6
In Davenport, plaintiffs challenging a legislative apportionment plan
contended that some of the districts created by the plan were “of the
‘shoestring’ or ‘horseshoe’ type” that fail the constitutional requirement of
compactness, and “that these odd-shaped districts were created solely for the
purpose of protecting incumbent legislators.” 65 N.J. at 133. We observed
that “[c]ompactness is an elusive concept” that “may be of limited utility in
creating legislative districts in the light of the odd configurations of our State
and its municipalities.” Ibid. Citing Jackman, we reiterated “that population
equality is distinctly paramount” to compactness, and that “where districts are
created on the basis of existing political subdivisions, compactness becomes a
6 Several federal courts have referred to a visual review of a map to determine the compactness of districts as the “eyeball” test. See, e.g., Alpha Phi Alpha Fraternity, Inc. v. Raffensperger, 700 F. Supp. 3d 1136, 1257 (N.D. Ga. 2023) (“The eyeball test is commonly utilized to determine if a district is compact or not.”); Singleton v. Merrill, 582 F. Supp. 3d 924, 1010 (N.D. Ala. 2022) (noting that an expert witness “testified that the ‘most common’ compactness metric is ‘just eyeballing it as you draw the plan’”); Lopez v. Abbott, 339 F. Supp. 3d 589, 608 (S.D. Tex. 2018) (recognizing “the ‘eyeball test’ by which the Court may make a visual inspection of the map to determine whether the district is compact” and finding that the challenged maps passed that test). 22 much reduced factor.” Id. at 133-34. We stated that “[w]hile the carving out
of bizarrely shaped districts for partisan advantage will not be tolerated, the
creation of balanced political districts serves a valid apportionment purpose.”
Id. at 134.
Our decisions in Jackman and Davenport thus approve a commission’s
assessment of a legislative district’s compactness by visual inspection of a
map. Davenport, 65 N.J. at 133-34; Jackman, 49 N.J. at 418-19. We stated
that a district that is “bizarrely shaped,” resembling, for example, a horseshoe
or a shoelace, may not meet the constitutional mandate of compactness.
Davenport, 65 N.J. at 133-34. We also recognized that in legislative
redistricting, achieving approximate population equality among wards is a
critical consideration. Ibid.; Jackman, 49 N.J. at 418-19.
Against that backdrop, we address plaintiffs’ claims that the
Commission’s map fails to satisfy the MWL’s requirement that each ward be
“formed of compact . . . territory.” N.J.S.A. 40:44-14.
Plaintiffs premise their compactness argument on three primary
contentions: (1) that the Commission did not properly assess the compactness
of its proposed wards because it did not apply a mathematical measure such as
the Polsby-Popper Measure or the Reock Score to those wards; (2) that the
23 Commission improperly excluded from its consideration of compactness the
impact of its map on communities of interest; and (3) that Wards A, D, and F,
like the “horseshoe”- and “shoelace”-shaped wards discussed in Jackman and
Davenport, are bizarrely shaped and therefore not “compact” under N.J.S.A.
We concur with the Appellate Division that the Commission was not
required to utilize the Polsby-Popper Measure or the Reock Score to
quantitatively assess the compactness of proposed wards. See Jersey City
United, 478 N.J. Super. at 150. The Legislature did not define a “compact”
ward as one earning a particular score on the Polsby-Popper Measure or the
Reock Score, or otherwise tether the compactness requirement to a
mathematical benchmark. See N.J.S.A. 40:44-14. 7 We do not add to a statute
7 There is no consensus in the courts of our sister states regarding the role of mathematical measures in assessing compactness. Some state high court decisions have approved the use of such measures as one potential method of determining compactness. See, e.g., In re Senate Joint Resol. of Legis. Apportionment 100, 334 So. 3d 1282, 1287 (Fla. 2022) (stating that compactness can be evaluated both visually and by employing standard mathematical measurements); Pearson v. Koster, 367 S.W.3d 36, 49 & n.10 (Mo. 2012) (explaining that an article admitted into evidence stated that “there is no threshold level that can be shown by statistics” but noting “[t]hat does not mean that [statistical] measures are completely irrelevant but rather that they alone do not demonstrate that a map is or is not compact”); Carter v. Chapman, 270 A.3d 444, 464 n.23 (Pa. 2022) (relying on mathematical measures in evaluating compactness of proposed congressional districts). Other decisions have emphasized the limitations of such measures in assessing compactness. See, e.g., Vesilind v. Va.
24 requirements that the Legislature clearly has chosen not to include. See Keim
v. Above All Termite & Pest Control, 256 N.J. 47, 62 (2023) (“We cannot
‘write in an additional qualification which the Legislature pointedly omitted in
drafting its own enactment . . . .’” (omission in original) (quoting Craster v.
Bd. of Comm’rs of Newark, 9 N.J. 225, 230 (1952))); State v. Fleischman, 189
N.J. 539, 545 (2007) (“[W]e do not ‘rewrite a plainly-written enactment of the
Legislature [or] presume that the Legislature intended something other than
that expressed by way of the plain language.’” (second alteration in original)
(quoting O’Connell v. State, 171 N.J. 484, 488 (2005))); Lippman v. Ethicon,
Inc., 222 N.J. 362, 388 (2015) (noting that “courts should not rewrite plainly
worded statutes” or “engraft requirements” that the Legislature did not
include).
Therefore, we consider the determination whether to use mathematical
measures to assess compactness to be within the broad discretion that the
Legislature granted to ward commissions in the MWL. If a ward commission
decides that such measures may assist it in a determination of ward
State Bd. of Elections, 813 S.E.2d 739, 750-51 (Va. 2018) (noting the lack of any “accepted bright-line test or score in the social sciences for when a district can no longer be considered ‘compact’”); In re Legis. Districting of State, 475 A.2d 428, 443 (Md. 1982) (stating that “a mathematical formulation for determining whether a particular district is unconstitutionally noncompact was not within the contemplation of the constitutional framers”). 25 boundaries, it may elect to use them, but it is not required to do so. In this
case, it was within the Commission’s discretion to decline to utilize the
Polsby-Popper Measure and the Reock Score.
The Commission also acted within its discretion when it did not consider
the map’s impact on communities of interest as part of its inquiry about
compactness. To be sure, the preservation of communities of interest is a
traditional factor in redistricting. See Rucho v. Common Cause, 588 U.S. 684,
706 (2019) (identifying “keeping communities of interest together” among
“‘traditional’ districting criteria”); Gonzalez, 428 N.J. Super. at 342-43, 369
(noting a redistricting commission’s focus on “valid redistricting factors” that
included “social, cultural, ethnic, and economic communities of interest”).
During the 2022 deliberations of the New Jersey Legislative Apportionment
Commission, the Honorable Philip Carchman (Ret.), the Commission’s
tiebreaking member, listed communities of interest as a factor distinct from the
constitutional mandate of compactness in legislative redistricting. See
Commission Meeting 2-8 (Jan. 8, 2022), https://www.
apportionmentcommission.org/schedule.asp (last visited May 12, 2025). 8
8 Judge Carchman defined “communities of interest” to include “neighborhoods, communities, or groups of people who share common values, goals, and concerns -- such as cultural, ethnic, linguistic, economic, or religious interests, or shared infrastructure concerns, shared environmental
26 Judge Carchman viewed communities of interest, along with other standards
“not constitutionally mandated” in legislative redistricting, to “allow for some
discretion in their application.” Ibid.
Although the preservation of communities of interest may be relevant to
the work of ward commissions, it is not a requirement for determining
compactness under the MWL. See N.J.S.A. 44:40-14. There is no authority in
the MWL, its legislative history, or our case law for plaintiffs’ argument that
when it required wards to be “compact,” the Legislature mandated that the
members of a community of interest must vote in the same ward. 9 Ward
commissions have the discretion to consider the impact of a ward’s boundaries
on communities of interest, but if they do so, the preservation of those
communities should be weighed as a separate factor, not as a component of
concerns, or shared industry,” but not connections based on “political considerations, such as partisan affiliations or loyalty to a particular incumbent.” Ibid. 9 In support of their allegation that the Legislature mandated consideration of communities of interest in the determination of ward boundaries in large municipalities, the Community Organizations invoke the Musto Commission’s observation that “wards generally are not authorized by the Legislature for very small communities, the assumptions being that the rationale in favor of wards becomes weaker in a small municipality, and that wards would fragment the community unnecessarily.” Forms of Municipal Government in New Jersey, at 57. That comment by the Musto Commission, not cited by the Legislature as a basis for the MWL, does not address N.J.S.A. 40:44-14’s compactness requirement, but relates only to the question whether a given municipality should be divided into wards. It is irrelevant to our inquiry. 27 compactness. Accordingly, the Commission did not violate N.J.S.A. 40:44-14
by not analyzing the impact of its map on communities of interest.
Nor do we concur with plaintiffs’ contention that Wards A, D, and F are
“bizarrely shaped” and thus violate the MWL. The contours of Wards A and D
are principally determined not by the Commission, but by Jersey City’s uneven
borders with adjoining municipalities and natural features such as the Hudson
and Hackensack Rivers. The boundaries that separate Ward A from Wards B
and F are not linear, but neither are they “bizarre.” The same is true of the
boundaries that separate Ward D from Wards C and E. Ward F was
significantly altered when the Commission reduced Ward E’s population by
nearly thirty percent to meet the MWL’s population deviation requirement. It
now extends east from Jersey City’s center to encompass a portion of the
City’s Hudson River waterfront. Ward F has uneven borders, but it is not
comparable to “bizarrely shaped” districts such as the “horseshoe” and
“shoelace” configurations addressed in Jackman and Davenport.
It is, no doubt, possible to envision a ward map in which any of Jersey
City’s wards would be more compact than they appear in the Commission’s
redistricting plan. Our inquiry, however, is not whether a court could design a
better map than the map that the Commission devised. Establishment of Cong.
Dists., 249 N.J. at 569; Davenport, 65 N.J. at 135. It is instead whether the
28 wards created by the Commission consist of “compact . . . territory” as the
MWL requires, taking into account the mandate that the Commission eliminate
the serious population deviation that had developed over the past decade and
other relevant considerations. See N.J.S.A. 40:44-14; Davenport, 65 N.J. at
134-35; Jackman, 49 N.J. at 418-19.
Applying the deferential standard of review that governs appeals of
redistricting plans in which there is no claim of invidious discrimination,
we conclude that the Commission’s plan meets N.J.S.A. 40:44-14’s mandate of
compactness. We respectfully disagree with the Appellate Division’s ruling
that the matter should be remanded to the trial court for factfinding as to
whether the ward commissioners had a rational basis for their determination of
compactness. See Jersey City United, 478 N.J. Super. at 150. We view the
record to be adequate for appellate review without inquiry into the
commissioners’ individual views on the question of compactness.
The dissent agrees with our holding that the MWL’s compactness
requirement is not “a mandate to keep together ‘communities of interest,’” post
at ___ (slip op. at 4), and that the MWL does not require the Commission to
achieve compactness as measured by a particular numerical cutoff, or to
prioritize compactness over other MWL requirements, but does require the
29 Commission to consider and incorporate compactness in its determination, post
at ___ (slip op. at 10-11, 18-19).
The dissent identifies two primary points of disagreement with our
decision. First, the dissent contends that we must remand this matter to the
trial court, rather than reinstate the dismissal of the MWL claim, because the
Commission did not challenge the Appellate Division’s remand in a cross-
petition. Post at ___ (slip op. at 13-15). Second, the dissent states that the
Commission’s determination is inadequate because it did not indicate “whether
or how” it considered compactness, and that the Commission should be
required on remand to explain in detail the basis for its determination on that
issue. Post at ___ (slip op. at 18). We briefly address each argument.
With respect to the MWL, the Appellate Division reversed the trial
court’s decision granting the Commission’s motion to dismiss pursuant to Rule
4:6-2(e). The Appellate Division imposed a new standard not set forth in the
MWL: whether the Commission “had a rational basis for the ward boundaries
and map it adopted.” See Jersey City United, 478 N.J. Super. at 155. Because
the Appellate Division found the record insufficient to decide whether the
Commission had such a rational basis for its compactness determination, it
ordered a limited remand for the trial court to apply that test. Although we do
not concur with the Appellate Division that a rational basis test should govern
30 the Commission’s determination of compactness under N.J.S.A. 40:44-14, we
find nothing procedurally improper about the Appellate Division’s imposition
of a remedy not requested by any party. See ibid.
In plaintiffs’ petitions for certification, they asked this Court to review
and reverse the Appellate Division’s judgment on the MWL claim; indeed, in
their reply brief in support of their petition for certification, plaintiffs not only
challenged the Appellate Division’s judgment on the MWL issue, but
specifically asserted that “the Appellate Division’s limited remand must be
reversed.”
This Court’s grant of certification placed the Appellate Division’s
judgment on the MWL’s compactness requirement squarely in issue. See
Township of West Orange v. 769 Associates, 198 N.J. 529, 546 (2009) (noting
that “if an issue is squarely presented, relief need not be withheld simply
because it would inure to the benefit of a non-appealing party”); Hayes v.
Delamotte, 231 N.J. 383, 386-87 (2018) (“[I]t is well-settled that appeals are
taken from orders and judgments and not from opinions, oral decisions,
informal written decisions, or reasons given for the ultimate conclusion.”
(quoting Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001))).
Here, the Court determines whether the Appellate Division properly
reversed the trial court’s determination and ordered a limited remand for
31 rational basis review. As explained supra at ___ (slip op. at 24-29), we find
the wards devised by the Commission to be compact, we decline to adopt the
Appellate Division’s rational basis test, and we reverse the Appellate
Division’s judgment with respect to the MWL claim.
The fact that the Commission did not file a cross-petition does not
constrain us to impose a remedy at odds with our decision on the merits; to the
contrary, the Court’s remedy must be consistent with its application of
N.J.S.A. 40:44-14 to the Commission’s map. Accordingly, the appropriate
remedy is not to remand the matter for a determination under the Appellate
Division’s rational basis test, but to reinstate the trial court’s dismissal of the
MWL claim.
Indeed, the dissent itself rejects the Appellate Division’s remand for a
rational basis review, which it views to lack any basis in the MWL or prior
case law. Post at ___ (slip op. at 18). The dissent would instead order a
remand “to determine whether the new wards are compact within the meaning
of the MWL.” Post at ___ (slip op. at 18). Although we do not view any
remand to be warranted on the merits, it is clear that the Commission’s failure
to file a cross-petition would not preclude imposition of the remedy that the
dissent advocates: a remand, but one that diverges from the remand that the
Appellate Division directed.
32 Accordingly, we respectfully disagree with the dissent’s suggestion that
the Court is constrained to remand this matter, rather than reinstate the trial
court’s judgment dismissing the MWL claim, because the Commission did not
file a cross-petition. See post at ___ (slip op. at 12-15).
With respect to the adequacy of the Commission’s compactness finding,
it is clear that the Commission met the MWL’s procedural requirements. It
timely filed a report “setting forth and properly describing the ward boundaries
fixed and determined,” and made findings on all of N.J.S.A. 40:44-14’s
factors, including a finding that that the ward boundaries were compact. The
MWL requires nothing more. See N.J.S.A. 44:40-1 to -18. Nonetheless, the
Commission’s report also identified the statutory factor that drove the analysis:
the urgent need to eliminate the fifty-nine percent population deviation
between Ward E and Ward D, and reduce that deviation to the extent possible
-- indeed, to a remarkably low 1.5 percent. That factor provides context for
the significant changes to the wards between the 2012 and 2022 maps.
We share the dissent’s view that a detailed explanation of a ward
commission’s compactness determination would better inform the public and
facilitate judicial review. The Legislature, however, has not mandated such an
explanation in a process undertaken on a stringent timetable. See N.J.S.A.
44:4-13, -15, -16. We decline to impose such a requirement in this appeal.
33 Accordingly, we reinstate the trial court’s judgment as to the
Commission’s compliance with N.J.S.A. 40:44-14 without further proceedings.
B.
We next consider the Community Organizations’ equal protection claim,
based on the New Jersey Constitution.
Equal protection principles are “implicit in Art. I, par. 1 of the 1947
New Jersey Constitution.” McKenney v. Byrne, 82 N.J. 304, 316 (1980). That
provision states that “[a]ll persons are by nature free and independent, and
have certain natural and unalienable rights, among which are those of enjoying
and defending life and liberty, of acquiring, possessing, and protecting
property, and of pursuing and obtaining safety and happiness.” N.J. Const. art.
I, ¶ 1. Like the Fourteenth Amendment of the Federal Constitution, the State
Constitution’s equal protection guarantee protects “against the unequal
treatment of those who should be treated alike.” Greenberg v. Kimmelman, 99
N.J. 552, 568 (1985); accord Lewis v. Harris, 188 N.J. 415, 442 (2006);
Caviglia v. Royal Tours of Am., 178 N.J. 460, 472 (2004).
As this Court noted in Brady v. New Jersey Redistricting Commission,
in which the plaintiffs claimed that they had been deprived of a voice in the
redistricting process, the equal protection guarantee “protects against
discriminatory governmental classifications of persons not related to some
34 appropriate state interest.” 131 N.J. 594, 610-11 (1992). There, because the
plaintiffs “failed to point to any classification at all that excluded them from
participation,” their equal protection challenge failed. Ibid. And in Gonzalez,
the Appellate Division similarly rejected a federal equal protection claim to
state legislative redistricting premised on alleged dilution of the voting rights
of South Jersey voters. 428 N.J. Super. at 366. The appellate court found the
trial court’s consideration of the issue persuasive, including the holding that
“no constitutional infirmity arose from ‘the mere fact that a particular
apportionment scheme makes it more difficult for a particular group . . . to
elect the representatives of its choice.’” Id. at 368 (omission in original)
(quoting Davis v. Bandemer, 478 U.S. 109, 131 (1986)). It concurred with the
trial court’s observation that the South Jersey districts included urban,
suburban and rural areas, as well as “Democrats, Republicans, third-party
voters, . . . unaffiliated voters,” and “a variety of socioeconomic classes and
races.” Id. at 366. Like the trial court, the Appellate Division determined that
the plaintiffs had not “alleged sufficient facts to demonstrate there is any type
of invidious discrimination to disadvantage” South Jersey communities “that
would offend Equal Protection principles.” Ibid.
Here, the Community Organizations assert no claim of invidious
discrimination on racial or other grounds. As the Appellate Division observed,
35 the Community Organizations failed to allege that the Commission
unconstitutionally treated one class of people differently from the manner in
which it treated another class of people. See Jersey City United, 478 N.J. at
151-52. Instead, they contend that the Commission improperly divided certain
established neighborhoods and communities of interest into wards that were
not compact. Accordingly, our conclusion that the Commission complied with
the MWL’s compactness standard compels rejection of the Community
Organizations’ equal protection claim.
We therefore affirm the Appellate Division’s judgment with respect to
the Community Organizations’ equal protection claim.
Finally, we address the Community Organizations’ NJCRA claim.
Pursuant to the NJCRA, “[a]ny person who has been deprived of any
substantive . . . rights, privileges or immunities secured by the Constitution or
laws of this State . . . by a person acting under color of law” may bring an
action for damages. N.J.S.A. 10:6-2(c); see also Winberry Realty P’ship v.
Borough of Rutherford, 247 N.J. 165, 183-84 (2021) (reviewing the elements
of an NJCRA claim). When an NJCRA claim is premised on a violation of a
statute such as the MWL, we first determine whether the statute was violated
and then decide whether the right at issue is a substantive right under the
36 NJCRA. See N.J.S.A. 10:6-2(c); Tumpson v. Farina, 218 N.J. 450, 472-73
(2014).
To determine whether the Legislature intended to confer a substantive
right on an individual when it enacted a given statute, we apply the standard
prescribed by the United States Supreme Court in Blessing v. Freestone, 520
U.S. 329, 340-41 (1997). Tumpson, 218 N.J. at 476 (adopting the standard).
We have noted that under the Blessing standard, “[a] plaintiff must show that
(1) Congress intended the statute to ‘benefit the plaintiff’; (2) ‘the right
assertedly protected by the statute is not so “vague and amorphous” that its
enforcement would strain judicial competence’; and (3) ‘the statute must
unambiguously impose a binding obligation on the States.’” Id. at 475
(quoting Blessing, 520 U.S. at 340-41). We also concluded that “[i]n accord
with the Blessing test, even if we find that a statute confers a right, we still
must determine whether the Legislature did not intend remedies of our Civil
Rights Act to supplant those of other statutes.” Id. at 476.
Here, the Community Organizations allege that the Commission
deprived them of their “substantive rights of equal treatment guaranteeing
them fair representation in the ward boundaries” and “their substantive rights
to reside in a ward that consists of compact territory that preserves their
communities of interest” pursuant to the MWL and the New Jersey
37 Constitution’s equal protection guarantee. They also allege that the
Commission deprived them of their “substantive rights of equal protection to
reside in a ward whose boundaries are drawn free from arbitrary, irrational,
inconsistently applied, and/or impermissible considerations.”
In light of our holding that the Commission’s map did not violate either
N.J.S.A. 40:44-14 or the New Jersey Constitution’s equal protection guarantee,
we affirm the Appellate Division’s determination that the trial court properly
dismissed the Community Organizations’ NJCRA claim. See Jersey City
United, 478 N.J. Super. at 154-55. We do not reach the question whether a
violation of the MWL could give rise to an NJCRA claim under the Blessing
test.
IV.
We affirm in part and reverse in part the judgment of the Appellate
Division and reinstate the trial court’s judgment dismissing with prejudice
plaintiffs’ complaints in accordance with Rule 4:6-2(e).
CHIEF JUSTICE RABNER and JUSTICES PIERRE-LOUIS and FASCIALE join in JUSTICE PATTERSON’s opinion. JUSTICE WAINER APTER filed a separate opinion concurring in part and dissenting in part, in which JUSTICES NORIEGA and HOFFMAN join.
38 Jersey City United Against the New Ward Map, Downtown Coalition of Neighborhood Associations, Greenville Neighborhood Alliance, Friends of Berry Lane Park, Riverview Neighborhood Association, Pershing Field Neighborhood Association, Sgt. Anthony Neighborhood Assoc., Gardner Avenue Block Association, Lincoln Park Neighborhood Watch, Morris Canal Redevelopment CDC, Harmon Street Block Association, Crescent Avenue Block Association, Democratic Political Alliance, and Frank E. Gilmore, in his individual and official capacity as Ward F Councilman,
Jersey City Ward Commission and John Minella, in his official capacity as Chair of the Commission,
City of Jersey City Ward Commission, John Minella, Chairman, Sean J. Gallagher, Secretary, and Commissioners Daniel E. Beckelman, Paul Castelli, Janet Larwa, and Daniel Miqueli,
JUSTICE WAINER APTER, concurring in part and dissenting in part.
The municipal wards adopted by the Jersey City Ward Commission in
2022 are significantly less compact than the wards that had been in place since
2012. Considering only the wards’ geographic shapes, plaintiffs demonstrated
a substantial decline in compactness using both mathematical measures and a
simple visual inspection. All agree that the Municipal Ward Law (MWL)
requires ward commissioners to “fix and determine the ward boundaries so that
each ward is formed of compact and contiguous territory.” N.J.S.A. 40:44-14.
Plaintiffs allege that the Commission violated this statutory requirement. The
trial court dismissed plaintiffs’ MWL claim, but the Appellate Division
reversed that dismissal and remanded for limited factfinding on whether the
wards are compact within the meaning of the MWL. I agree with the
Appellate Division that plaintiffs alleged sufficient facts to survive a motion to
dismiss their MWL claim. I would, however, modify the Appellate Division’s
remand order. I therefore respectfully concur in part and dissent in part.
2 I.
As the majority correctly notes, our redistricting precedents limit judicial
review to whether a map conforms with constitutional and statutory
requirements: we must uphold a map absent an affirmative showing that it is
“unlawful or reflects invidious discrimination.” In re Establishment of Cong.
Dists. by N.J. Redistricting Comm’n, 249 N.J. 561, 574 (2022); ante at ___
(slip op. at 11, 17). In assessing whether a constitutional or statutory violation
has been shown, we do not ask whether a “fairer” or “better” map could have
been drawn. Establishment of Cong. Dists., 249 N.J. at 569.
Yet the MWL plainly instructs that municipal ward commissioners “shall
fix and determine the ward boundaries so that each ward is formed of compact
and contiguous territory.” N.J.S.A. 40:44-14. In addition, the difference in
population between the most populous and least populous ward must be no
more than ten percent of the mean population of the wards. Ibid.
Therefore, although the scope of judicial review is limited, in reviewing
a claim for a violation of the MWL, a court must assess whether the wards are
compact, contiguous, and compliant with population constraints. Because, in
my view, the majority diminishes the compactness requirement, I respectfully
dissent from the majority’s resolution of plaintiffs’ MWL claim.
3 A.
As an initial matter, I agree with the majority that there is no basis in the
text or structure of the MWL to read into the prescription that “each ward is
formed of compact and contiguous territory,” N.J.S.A. 40:44-14, a mandate to
keep together “communities of interest.” Ante at ___ (slip op. at 27-28).
Ward commissions must act quickly to redraw ward boundaries: they
must meet within three months of the Governor’s receipt of each federal
decennial census and file a new map within thirty days of that meeting.
N.J.S.A. 40:44-13(c), -15(a). And the statute provides limited tools to
accomplish that task, allowing commissions to hire “a surveyor or engineer
and such other assistants as shall be necessary to aid them in the discharge of
their duties.” Id. at -12. Within this framework, a commission has no
practical ability to discern, consider, and actualize “general, but undefined,
concepts of ‘communities of interest.’” Jersey City United Against the New
Ward Map v. Jersey City Ward Comm’n, 478 N.J. Super. 132, 149 (App. Div.
2024).
I also concur with the majority and the New Jersey League of
Municipalities that it is up to the Legislature, not this Court, to make policy
determinations regarding the benefits of keeping together “communities of
interest.” Ante at ___ (slip op. at 16, 28). The Legislature provided no such
4 mandate in the MWL. See N.J.S.A. 40:44-9 to -18. I therefore agree with the
majority that the Commission was not required to “consider the map’s impact
on communities of interest as part of its inquiry about compactness.” Ante at
___ (slip op. at 26).
The majority is likewise correct that compactness refers to “the
geographic contours of a given ward,” ante at ___ (slip op. at 19), or the
geographic density of the “territory” within each ward, N.J.S.A. 40:44-14.
The Appellate Division in Davenport v. Apportionment Commission
defined “compactness to mean that between two districts of equal area the one
with the smaller perimeter is the more compact.” 124 N.J. Super. 30, 43 (App.
Div. 1973). Here, the Appellate Division used -- and the majority approves --
a dictionary definition of compact as “having a dense structure or parts or units
closely packed or joined” and “occupying a small volume by reason of
efficient use of space.” 478 N.J. Super. at 148 (quoting Merriam-Webster’s
Collegiate Dictionary 252 (11th ed. 2020)); ante at ___ (slip op. at 19). The
majority adds an additional definition: “[m]arked by concentration in a limited
area.” Ante at ___ (slip op. at 19) (quoting Webster’s Third International
Dictionary 461 (unabridged) (2002)). These definitions give appropriate
weight and content to the compactness requirement. See also Acker v. Love,
5 496 P.2d 75, 76 (Colo. 1972) (defining compactness as “concern[ing] a
geographic area whose boundaries are as nearly equidistant as possible from
the geographic center of the area being considered”).
Yet respectfully, after setting forth these definitions, the majority
devalues them. The majority quotes Jackman v. Bodine, 49 N.J. 406, 419
(1967), and Davenport v. Apportionment Commission, 65 N.J. 125, 133-34
(1974), for the proposition that compactness is “an elusive concept” and a
“much reduced factor” that “may be of limited utility in creating legislative
districts” and, in the majority’s view, municipal wards as well. Ante at __
(slip op. at 22-23). In my view, a correct reading of those opinions, and the
constitutional provisions they interpret, reveals that although compactness
“may be of limited utility in creating legislative districts in the light of the odd
configurations of [New Jersey] and its municipalities,” Davenport, 65 N.J. at
133, no similar constraint applies to ward boundaries under the MWL. It is
therefore incumbent upon us to apply the Legislature’s compactness
requirement in this case.
Our Constitution provides that “no county or municipality shall be
divided among Assembly districts unless it shall contain more than one-
fortieth of the total number of inhabitants of the State.” N.J. Const. art. IV,
6 § 2, ¶ 3. Whereas the constitutional requirement to keep counties together was
struck down in Scrimminger v. Sherwin, 60 N.J. 483, 495-97 (1972), and
Davenport, 65 N.J. at 132-33, in furtherance of the Federal Constitution’s one-
person-one-vote principle, the constitutional requirement to keep
municipalities together, unless the population of the municipality exceeds
“one-fortieth of the total number of inhabitants of the State,” remains. N.J.
Const. art. IV, § 2, ¶ 3; see N.J. Legis. Comm’n, Meeting Transcript for Jan. 8,
2022 4 (statement by the Hon. Philip S. Carchman), accessible via https://
www.apportionmentcommission.org/schedule.asp (“With the exception of
Newark and Jersey City, whose populations exceed that of a single legislative
district, municipalities cannot be split among districts.”).
It is because municipalities are the “building blocks” of state legislative
districts, Scrimminger, 60 N.J. at 498, and municipalities are themselves often
“odd[ly] configur[ed],” Davenport, 65 N.J. at 133, that we have acknowledged
that compactness may be an “elusive concept” when it comes to legislative
redistricting, ibid. See Jackman, 49 N.J. at 419 (“Where the districts are being
created on the basis of existing political subdivisions, it seems to us that
compactness, although not irrelevant, becomes a much reduced factor.”
(emphasis added)); Davenport, 65 N.J. at 133 (“Compactness . . . may be of
7 limited utility in creating legislative districts in the light of the odd
configurations of our State and its municipalities.” (emphases added)).
The same cannot be said for municipal wards. Unlike the Constitution,
the MWL does not require that wards be drawn around any existing political
subdivisions; indeed, there are no political subdivisions smaller than a
municipal ward from which the wards could be built. See N.J.S.A. 40:44-14.
The “odd configurations of our State and its municipalities” are therefore
irrelevant to whether municipal wards can be drawn compactly under the
MWL, aside from any portion of a ward boundary that tracks the outer
boundary of the municipality itself. Davenport, 65 N.J. at 133. In other
words, the fact that compactness is less feasible in the context of legislative
districts, which must be built around municipalities, does not give ward
commissions license to disregard the unambiguous compactness requirement
in the MWL.
Significantly, as the majority notes, the MWL was enacted in 1981, ante
at ___ (slip op. at 17), several years after this Court’s 1967 decision in
Jackman and 1974 decision in Davenport. The Legislature is presumed to be
“familiar with existing case law.” State v. McCray, 243 N.J. 196, 217 (2020)
(quoting Great Atl. & Pac. Tea Co. v. Borough of Point Pleasant, 137 N.J. 136,
148 (1994)). If, based on the statements in Jackman and Davenport, the
8 Legislature viewed compactness as “an elusive concept” that would be “of
limited utility” in drawing municipal ward boundaries, it would not have
written it into the MWL without reservation or qualification.
As earlier noted, the MWL contains only three substantive restrictions
on how ward boundaries can be drawn: “The ward commissioners shall fix
and determine the ward boundaries so that each ward is formed of [1] compact
and [2] contiguous territory,” and “[3] [t]he population of the most populous
ward so created shall not differ from the population of the least populous ward
so created by more than 10% of the mean population of the wards.” N.J.S.A.
40:44-14. The Legislature chose to include all three; we must respect that
choice. Middletown Twp. PBA Local 124 v. Township of Middleton, 193 N.J.
1, 12 (2007) (“A court has no power to substitute its own idea of what a statute
should provide in the face of clear and unambiguous statutory requirements.”
(quotation omitted)). To give effect to the text of the MWL, ward
commissions therefore must draw wards to be compact and contiguous and to
fall within the population-deviation limits.
D.
The Appellate Division “expressly reject[ed] . . . plaintiffs’ attempt to
use the Polsby-Popper Measure or the Reock Measure” to show that the 2022
wards were not compact. Jersey City United, 478 N.J. Super. at 150. The
9 majority likewise states that “it was within the Commission’s discretion to
decline to utilize the Polsby-Popper Measure and the Reock Score.” Ante at
I would hold that in alleging a claim for a violation of the MWL based
on non-compactness, plaintiffs may rely on mathematical measures such as the
Reock and Polsby-Popper scores. Both are common methods of calculating
compactness. Both grade district shapes on a scale of 0 to 1, with 0 being non-
compact and 1 being perfectly compact. Both can usefully compare wards and
give an idea of a ward’s relative compactness. And both relate to the
Appellate Division’s description of a compactness measure in Davenport as
“drawing a circle around each of the proposed districts” to evaluate which
“occupy relatively greater areas within the circle.” 124 N.J. Super. at 43.
Indeed, courts in many jurisdictions rely upon the Reock and Polsby-Popper
scores in analyzing compactness and non-compactness. See, e.g., In re Senate
Joint Resol. of Legis. Apportionment 100, 334 So. 3d 1282, 1287 (Fla. 2022);
Pearson v. Koster, 367 S.W.3d 36, 55-56 (Mo. 2012); Alpha Phi Alpha
Fraternity, Inc. v. Raffensperger, 700 F. Supp. 3d 1136, 1197-99 (N.D. Ga.
2023), appeal docketed, No. 23-13914 (11th Cir. Nov. 28, 2023).
Although I would not adopt a particular numerical cutoff beneath which
a ward is not compact, I would hold that mathematical measures can help a
10 plaintiff state a claim that a ward is not compact, or is materially less compact
than it previously was, in violation of the MWL. Mathematical measures are
not dispositive, but dismal compactness scores can help a plaintiff survive a
motion to dismiss.
E.
Finally, I would hold that to state a claim for a violation of the
compactness requirement of the MWL, a plaintiff may not allege that a ward
map drawn many years ago, and unchanged since, is not compact. This is so
because wards can permissibly be drawn to preserve continuity from prior
maps. See Davenport, 65 N.J. at 134-35 (“Providing protection of incumbents
serves a valid purpose and is a relevant factor to be taken into account in
creating a legislative districting plan.”). If a ward appears visually non-
compact, but its shape was preserved from one census cycle to the next,
plaintiffs should not be able to force the old map to be redrawn.
However, if a ward commission draws a new ward map that is
substantially less compact than the previous map, that change could suggest
that the commission did not adequately consider compactness or
inappropriately subordinated it to extra-statutory considerations. If the
commission could not explain how a substantial decline in compactness was
11 necessary to meet other MWL requirements, it would be obligated to redraw
the ward boundaries to meet the MWL’s compactness requirement.
In this case, I would hold that plaintiffs alleged sufficient facts to
survive the motion to dismiss their MWL claim pursuant to Rule 4:6-2(e). I
therefore agree with the Appellate Division that the MWL claim should not
have been dismissed. I would, however, modify the Appellate Division’s
remand order to expand the scope of the remand.
Before explaining why plaintiffs alleged sufficient facts to survive a
motion to dismiss, I would uphold the Appellate Division’s reversal of the trial
court’s dismissal of plaintiffs’ MWL claim because the Commission did not
file a cross-petition for certification and did not challenge the Appellate
Division’s MWL holding at all.
As the majority notes, the trial court dismissed all of plaintiffs’ claims.
Ante at ___ (slip op. at 10). The Appellate Division affirmed the dismissal of
all claims except the MWL claim, reversed that dismissal, and remanded the
MWL claim for limited factfinding. Jersey City United, 478 N.J. Super. at
149-55.
12 Plaintiffs filed a petition for certification, asking this Court to grant
review and reverse the dismissal of their non-MWL claims. As for the MWL
claim, plaintiffs requested that we broaden the scope of the Appellate
Division’s remand order, arguing that it “render[ed] the claim and the [MWL]
statute meaningless.”
The Commission did not file a cross-petition for certification objecting
to the Appellate Division’s remand order. In fact, the Commission did not
quarrel with the Appellate Division’s revival of plaintiffs’ MWL claim at all.
Instead, the Commission argued that the MWL remand had already been
scheduled and should be allowed to proceed. According to the Commission,
“whether [plaintiffs] -- or, for that matter, the Commission -- may ultimately
have grounds for appeal and certification remains to be seen.”
“[A]ppeals are taken from judgments, not opinions, and, without having
filed a cross-appeal, a respondent can argue any point on the appeal to sustain
the [lower] court’s judgment.” State v. Watson, 254 N.J. 558, 609 (2023)
(quoting Chimes v. Oritani Motor Hotel, Inc., 195 N.J. Super. 435, 443 (App.
Div. 1984)). But if a respondent “is seeking to expand the substantive relief
granted by the [lower] court, as opposed to merely arguing an additional legal
ground to sustain the [lower] court’s judgment, the [respondent] must file a
13 cross-appeal.” State v. Eldakroury, 439 N.J. Super. 304, 307 n.2 (App. Div.
2015) (citing Jennings v. Stephens, 574 U.S. 271, 276 (2015)).
In addition, if a respondent does not argue that the judgment below
should be altered, any such argument is waived. See Watson, 254 N.J. at 609
(“[A] respondent who is merely seeking to maintain his judgment may brief
and argue on the appeal any points that will sustain his judgment and if he
does not brief and argue such points he will be taken to have waived them.”
(quoting State v. Lefante, 14 N.J. 584, 589-90 (1954))).
Here, by dismissing the MWL claim outright, this Court is enlarging the
Appellate Division’s judgment in favor of the Respondent Commission
without the Commission filing a cross petition or ever even requesting that
relief. I would affirm the Appellate Division’s judgment as to the MWL claim
on that basis alone.
I would also hold that a remand is justified on the merits of plaintiffs’
In reviewing a motion to dismiss for failure to state a claim upon which
relief can be granted, courts must “assume the facts as asserted by plaintiff[s]
are true and give [them] the benefit of all inferences that may be drawn in
[their] favor.” Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988).
14 “At [such a] preliminary stage of the litigation the Court is not concerned with
the ability of plaintiffs to prove the allegation contained in the complaint.”
Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989).
Applying that generous standard, I would hold that plaintiffs stated a
claim for violation of the MWL. In their complaint, the Community
Organizations provided compactness scores indicating that the new wards are
significantly less compact than were the wards that existed under the 2012
map. 1 They alleged that using the Polsby-Popper measure, the 2022 map
received an average score of 0.4006, with Ward F scoring 0.2089 and Ward D
scoring 0.2576. By comparison, the Community Organizations stated that the
previous ward map received an average Polsby-Popper score of 0.5368, with
Ward F scoring 0.4848 and Ward D scoring 0.5328. Thus all wards, in the
aggregate, are less compact, and Wards F and D are less than one-half as
compact as they had been.
The Community Organizations also alleged that using the Reock score,
the 2022 map averaged 0.3447, with Ward F scoring 0.1604 and Ward D
1 As earlier noted, the majority states that “it was within the Commission’s discretion to decline to utilize the Polsby-Popper Measure and the Reock Score.” Ante at ___ (slip op. at 26). But the Community Organizations did not allege that the Commission was required to use these scores; instead, they submitted the scores to demonstrate that the wards the Commission drew are not compact, especially as compared to their previous iterations. 15 According to the majority, “[t]he contours of Wards A and D are
principally determined not by the Commission, but by Jersey City’s uneven
borders with adjoining municipalities and natural features such as the Hudson
and Hackensack Rivers.” Ante at ___ (slip op. at 28). But the significant
decrease in the compactness of Wards A and D between 2012 and 2022 cannot
be attributed to the borders of Jersey City with the Hudson River to the east,
the Hackensack River to the west, or adjoining municipalities to the north or
south. Ibid. Instead, the boundaries of Wards A and D that are significantly
less compact in the 2022 map than they were in 2012 are where they meet
other Jersey City wards: where Ward A meets B and F, and where Ward D
meets C and E. Rather than simply tracking the outer borders of the city, the
2022 map creates new jagged borders within the city itself.
In addition, as plaintiffs identify, Ward F transformed from a relatively
square shape to a jagged sideways L-shape. Wards A and D became many-
sided shapes that defy easy description, with numerous appendages that make
them less compact than they were previously. And the boundaries between
wards went from generally smooth straight or curved lines to uneven routes
filled with twists and turns. This is especially true of the boundaries between
Wards F and A, F and E, D and C, and D and E.
17 Plaintiffs correctly submit -- and the relevant mathematical analysis
supports -- that the wards’ compactness substantially declined since the prior
map. And the Commission did not explain why that is so. Indeed, the
Commission did not explain how it considered compactness at all. As the
majority notes, the Commission’s report states that it “sought to craft a map
that would (1) impose the least amount of demographic change to each ward
while (2) lowering the deviation between the most populous ward and the least
populous to the lowest possible percentage.” Ante at ___ (slip op. at 6).
Absent from the report is any statement of whether or how the Commission
considered compactness, beyond listing compactness as a requirement in the
MWL. Therefore, plaintiffs pleaded sufficient facts to allege that the
Commission did not comply with the MWL’s express compactness
requirement, and their MWL claim should not have been dismissed.
For these reasons, I would leave in place the Appellate Division’s
remand for further factfinding, but enlarge it slightly, as plaintiffs request. As
an initial matter, I would not apply the Appellate Division’s rational basis test.
The MWL provides no basis for a rational basis test, see N.J.S.A. 40:44-9 to -
18, and the Appellate Division did not ground the test in our prior case law.
18 Instead, the purpose of the remand would be to determine whether the
new wards are compact within the meaning of the MWL. Appropriate
evidence could include mathematical and geographic measures of compactness
as well as examination of the Commissioners. At the very least, plaintiffs
should be permitted to question the Commissioners as to whether and how they
considered compactness in drawing the new map.
If on remand the Commission explained that the reduction in
compactness was necessary to achieve the MWL’s population requirements,
and a ward’s odd shape was due to the location of a high-rise apartment
building that needed to be shifted between wards to ensure that requirement
was met, the map would satisfy the MWL. This is because the MWL does not
mandate a particular level of compactness. N.J.S.A. 40:44-12 to -15. As
earlier noted, it provides for an expedited process with limited resources. Ibid.
Ward commissioners are tasked with balancing multiple, possibly conflicting,
factors. Ibid. They are not required to prioritize compactness over the other
MWL requirements. See id. at -14. But if the Commission did not consider
compactness, or deprioritized compactness for a nefarious or extra-statutory
purpose, then the Commission would be required to re-draw the map to comply
with the MWL.
19 Contrary to the majority’s suggestion, remanding for a fact-finding
hearing on whether the wards are compact within the meaning of the MWL
would not add any procedural requirements to the statute. See ante at ___ (slip
op. at 33). It would simply apply the MWL’s compactness requirement as
written. Where, as here, plaintiffs allege that the 2022 map is much less
compact than the 2012 map pursuant to both mathematical measures and the
eyeball test, and where, as here, the Commission has not explained why, the
Commission should be required to redraw the map to meet the MWL’s
compactness requirement unless it can explain, on remand, why redrawing the
wards to address the fifty-nine percent population deviation between Wards E
and D required such a drastic decline in compactness for all six wards.
I agree with the majority that plaintiffs’ remaining claims were properly
dismissed. Ante at ___ (slip op. at 35-39). I write briefly to explain why that
is so regardless of the outcome on the MWL claim.
First, our State Constitution’s equal protection guarantee protects
“against the unequal treatment of those who should be treated alike.”
Greenberg v. Kimmelman, 99 N.J. 552, 568 (1985); accord Lewis v. Harris,
188 N.J. 415, 442 (2006); Caviglia v. Royal Tours of Am., 178 N.J. 460, 472
(2004). As the majority notes, ante at ___ (slip op. at 34-36), our courts have
20 rejected equal protection challenges absent some “discriminatory
governmental classification.” Brady v. N.J. Redistricting Comm’n, 131 N.J.
594, 610-11 (1992); accord Gonzalez v. N.J. Apportionment Comm’n, 428
N.J. Super. 333, 366, 369 (App. Div. 2012).
Here, plaintiffs did not allege invidious discrimination based on race or
any other protected characteristic. Instead, they claim that some residents
were denied the right to reside in compact wards that preserve communities of
interest and therefore allow them to exert equal electoral power. As discussed
above, communities of interest are not part of the MWL’s compactness
requirement. And even if the Commission violated the MWL’s compactness
requirement, plaintiffs failed to allege any specific facts to show that the
Commission intentionally discriminated against them or made any
classification of similarly situated Jersey City residents in drawing the new
ward map. I therefore would affirm the Appellate Division’s holding that
plaintiffs failed to allege that the Commission unconstitutionally treated one
class of people differently from another. See ante at ___ (slip op. at 35-36);
Jersey City United, 478 N.J. at 151-52.
Second, plaintiffs’ New Jersey Civil Rights Act (NJCRA) claim was
properly dismissed because, even if the MWL was violated, it does not create
individual rights that can be vindicated through a lawsuit for money damages.
21 As the majority explains, ante at ___ (slip op. at 36-37), to bring a cause of
action under the NJCRA for money damages, N.J.S.A. 10:6-2(c), the statute
allegedly violated must confer substantive individual rights on plaintiffs,
Tumpson v. Farina, 218 N.J. 450, 472 (2014). “A plaintiff must show that [the
Legislature] intended the statute to ‘benefit the plaintiff.’” Tumpson, 218 N.J.
at 475-76 (quoting Blessing v. Freestone, 520 U.S. 329, 340 (1997), and
adopting Blessing’s federal law test for NJCRA claims). “For a statute to
create such private rights,” its text must generally “be ‘phrased in terms of the
persons benefited.’” Gonzaga Univ. v. Doe, 536 U.S. 273, 284 (2002)
(quoting Cannon v. Univ. of Chi., 441 U.S. 677, 692 n.13 (1979)).
When we have found statutes to confer substantive rights on individuals
that can be enforced through a claim for money damages under the NJCRA,
the statutes have contemplated those individuals within their plain text. See
Harz v. Borough of Spring Lake, 234 N.J. 317, 321 (2018) (statute
“specifically provide[d] that ‘[a]ppeals to the board of adjustment may be
taken by any interested party affected by any decision of an administrative
officer’” (second alteration in original) (quoting N.J.S.A. 40:55D-72(a)));
Tumpson, 218 N.J. at 478 (statute prescribed that “[t]he voters shall . . . have
the power of referendum” (alteration in original) (quoting N.J.S.A. 40:69A-
185)). Unlike the statutes in Harz and Tumpson, the MWL does not mention
22 individuals, such as voters or ward residents, at all. See N.J.S.A. 40:44-9 to
-18. It simply specifies what ward commissions must do. Ibid. A violation of
the MWL therefore cannot give rise to an individual claim for money damages
under the NJCRA.
Because plaintiffs sufficiently alleged a violation of the MWL’s
compactness requirement to survive a motion to dismiss, I would affirm the
Appellate Division’s remand as modified. I therefore respectfully concur in
part and dissent in part.
Related
Cite This Page — Counsel Stack
Jersey City United Against the New Ward Map v. Jersey City Ward Commission, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jersey-city-united-against-the-new-ward-map-v-jersey-city-ward-commission-nj-2025.