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A federal appeals court Wednesday refused to order a special election to fill the seat of New Jersey Gov. James E. McGreevey, rejecting the claims of two Green Party lawyers who argued that McGreevey’s Aug. 12 announcement that he planned to resign Nov. 15 had effectively created a vacancy that should have triggered the special election process to begin. In a 20-page per curiam opinion handed down less than a week after oral argument, a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals held that no special election is required because the governor’s seat is not yet “vacant.” “Under the New Jersey Constitution, such an election is required if there is a ‘vacancy’ in office. There is no vacancy here because the governor has not yet resigned and because he continues to serve and occupy the office,” the court said in Afran v. McGreevey. “Absent a vacancy, no special election is mandated,” the court said in an opinion joined by Chief Circuit Judge Anthony J. Scirica and Circuit Judges Theodore A. McKee and D. Michael Fisher. In his now-infamous Aug. 12 press conference, McGreevey announced that he is a “gay American” and that he had decided to resign because he’d had “an adult consensual affair with another man” which, he said, would render the office “vulnerable to rumors, false allegations and threats of disclosure.” But instead of stepping down immediately, McGreevey said he had decided to step down on Nov. 15 in order to provide “a responsible transition.” The lawsuit, filed by attorneys Bruce I. Afran and Carl J. Mayer, both of Princeton, alleged that McGreevey was depriving voters of their right to vote by staying in office until it was too late to schedule a special election. Under New Jersey’s constitution, a special election would have been called for Nov. 2 if McGreevey had left office before Sept. 3. But now, Senate President Richard J. Codey, a fellow Democrat, will succeed McGreevey as acting governor until the term expires in January 2006. Afran said Wednesday that the ruling was a blow to the rights of New Jersey’s voters. “Yet again the politicians and bosses won and the people of New Jersey lose,” Afran said. “The judges have totally thrown out the rights of the people in this state to vote.” Afran said an appeal of the decision to the U.S. Supreme Court was being considered. Micah Rasmussen, a McGreevey spokesman, said the governor was pleased with the ruling. “The governor appreciates the court’s thoughtful decision,” he said. In an oral argument last week, Afran told the judges that McGreevey “is deliberately structuring his delivery of the letter of resignation so as to thwart the special election.” But Assistant Attorney General Stefanie Brand urged the judges to uphold the decision handed down in September by U.S. District Judge Garrett Brown Jr. of the District of New Jersey, who found that since there was no “vacancy” in the governor’s office — at least, as the word is defined in Black’s Law Dictionary and the Merriam-Webster Dictionary — the plaintiffs were not entitled to any injunctive relief. In Wednesday’s ruling, the 3rd Circuit focused first on whether the federal courts should “abstain” from hearing the case. In the lower court, Brand had urged Garrett to abstain under the Pullman doctrine because the suit turned on unsettled questions of New Jersey state law. Garrett refused to abstain and instead ruled on the merits, finding there was no vacancy and therefore no right to a special election. Now the 3rd Circuit, too, has refused to abstain under Pullman. “The Pullman doctrine authorizes federal court abstention when a constitutional challenge is intertwined with an ambiguous issue of state law and a likelihood exists, therefore, that clarification of the state law issue will substantially affect the constitutional inquiry,” the court said. But abstention is called for, the court said, “only … where the issue of state law is uncertain. If the state statute in question, although never interpreted by a state tribunal, is not fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question, it is the duty of the federal court to exercise its properly invoked jurisdiction.” Although principles of comity and federalism ordinarily call for interpretation of a state constitutional question by state courts, the 3rd Circuit found that “the state law which controls our decision is not uncertain.” Timing was also at issue, the court said. “Were we to abstain, a final judicial determination would be substantially delayed. In a time-sensitive environment such as that presented by a rapidly approaching election, prejudice to both parties would inevitably result from such delay,” the court said. The plaintiffs also urged the 3rd Circuit to consider certifying a question to the New Jersey Supreme Court on the issue of whether McGreevey’s action effectively created a vacancy under the New Jersey Constitution. The 3rd Circuit refused, citing “the same considerations which inform our decision not to abstain — timing, feasibility, public policy and plaintiffs’ choice of forum.” Turning to the merits of the case, the court said the government lawyers were urging the court to rely on the “plain meaning” of the New Jersey Constitution, while the plaintiffs were arguing for “an expansive interpretation.” Afran argued that the New Jersey Supreme Court has shown that, in cases involving voters rights, it employs a “liberal” rule of construction. As proof, he cited the New Jersey Supreme Court’s 2002 opinion in New Jersey Democratic Party Inc. v. Samson, which allowed the Democratic Party to substitute Frank Lautenberg as a candidate for Senate when Sen. Robert Torricelli withdrew from the race just five weeks before Election Day. New Jersey law allowed for replacement only when the vacancy on the ballot occurred “not later than the 51st day before the general election.” But the Samson court nonetheless permitted the substitution. Now the 3rd Circuit has ruled that Afran was reading Samson too broadly. “The Samson court construed a New Jersey statute, rather than a New Jersey constitutional provision. We decline to apply the ‘liberal’ interpretation urged by plaintiffs to the state constitution where there is no indication that the New Jersey Supreme Court would itself espouse such an approach,” the court said. Instead, the court said, “Where the language of a constitutional provision is clear, the words must be given their plain meaning.” Although New Jersey’s courts have shown a “policy preference in favor of empowering voters,” the 3rd Circuit found that “the language of the [state] constitution incorporates this principle within its text.” Relying on the strict wording of the constitution, the court rejected the plaintiffs’ argument that McGreevey’s Aug. 12 press conference created a “vacancy.” “We find this announcement alone does not constitute a resignation,” the court said. The text of the constitution, the court said, “requires that a governor file a written resignation with the Secretary of State to effectuate his resignation.” The plaintiffs insisted that McGreevey’s public announcement of his plan to resign was just as “final” as a letter to the Secretary of State. The 3rd Circuit disagreed, saying “the legal reality … is something different.” The New Jersey Legislature has decided what constitutes a “definitive and final” resignation, the court said, and McGreevey’s announcement “has not satisfied these statutory requirements.” “By requiring a written filing with the Secretary of State — a clear and concrete manifestation of resignation — the Legislature has assured clarity in the resignation process. Because Gov. McGreevey has not yet officially resigned from the office of the governor, there is no vacancy under the New Jersey Constitution,” the court said. The Associated Press contributed to this story.

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