The Appellate Division on Monday agreed to hear an emergent appeal by an Assembly candidate thrown off the ballot for the June primary because he works for a federally funded agency.
Hudson County Assignment Judge Peter Bariso Jr. ruled on April 19 that because a substantial portion of the Hoboken Housing Authority’s revenue is from federal sources, its executive director, Carmelo Garcia, is barred from running for a 33rd District seat.
The judge applied N.J.A.C. 4A:10-1.2(b), which says that no career, senior executive or unclassified employee “whose principal employment is in connection with a program financed in whole or in part by federal funds or loans” can hold elected office.
Bariso rejected Garcia’s defense that  the regulation is pre-empted by the federal Hatch Act, which since last year has only barred candidates whose compensation is derived “completely, directly or indirectly” from federal funds.
The state regulation was not updated when the Hatch Act was relaxed, and Garcia claimed its now-obsolete language obstructs the act’s purpose.
But Bariso found nothing to support “the contention that Congress intended for the newly amended Hatch Act to affect a state’s ability to enact its own regulation of state employees.”
Garcia suggested the failure to amend the regulation was mere oversight. Bariso said that even if that were true, the court should not put itself in the role of those with the legal responsibility to update the regulation as needed.
Garcia also argued that the plaintiffs lack standing, saying neither the regulation nor the Hatch Act provides the basis for a private cause of action. He argued that alleged violations of the regulation must be reported to the Office of the Special Counsel of the U.S. Merit Systems Protection Board.
But Bariso cited language in the regulation allowing “any resident or other party in interest” to bring a suit in Superior Court for enforcement of the regulation. The suit, Abernathy v. Garcia, HUD-L-1762-13, was brought  by five politically active Hoboken Democrats.
Bariso also denied a motion by the Hudson County Democratic Organization, to which Garcia belongs, to intervene for the right to name a replacement for him. The judge said it was up to candidates themselves, not political organizations, to decide with whom they want to affiliate.
On Monday, Appellate Division Judge John Kennedy granted Garcia’s and the HCDO’s motions to file leave to appeal. Kennedy also extended a stay imposed by Bariso on the printing of 33rd District primary ballots.
The district’s two Assembly seats are open because Democrats Ruben Ramos Jr. and Sean Connor are not seeking re-election.
The lawyer for the five plaintiffs, Flavio Komuves of Zazzali, Fagella, Nowak, Kleinbaum & Friedman in Newark, says Bariso’s ruling “completely vindicated the points we were making, which were that Mr. Garcia is completely ineligible and there’s no entitlement to replace him on the ballot.”
Garcia’s lawyer, Angelo Genova of Genova, Burns, Giantomasi & Webster in Newark, and William Northgrave of McManimon, Scotland & Baumann, also in Newark, decline to comment.