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Battle Over Governor’s Powers Underscores Importance of Upcoming Supreme Court Fight

Mark J. Magyar | January 29, 2013

Court hearing on Christie’s right to unilaterally abolish Council on Affordable Housing has constitutional and budgetary implications.

The Hughes Justice Center, home to the state Supreme Court.
The Hughes Justice Center, home to the state Supreme Court.

With a partisan Senate fight looming over Gov. Chris Christie’s two latest Supreme Court nominees, the administration yesterday argued that it has the right to unilaterally abolish the Council on Affordable Housing -- and thus has the power to seize more than $140 million originally earmarked for low-cost housing to balance the state budget.

While oral arguments before the Supreme Court yesterday focused on narrow constitutional and legal issues pertaining to gubernatorial powers under the 40-year-old Reorganization Act, the case underscored the importance of the ongoing struggle between Christie and Senate President Stephen Sweeney (D-Gloucester) over the partisan makeup of the state’s highest court.

“If the administration wins this case, the governor would have the ability to abolish any independent agency from the Board of Public Utilities and the Election Law Enforcement Commission to the Public Defender’s Office, the Highlands Commission, and the Pinelands Commission,” said Adam Gordon, staff attorney for the Fair Housing Coalition.

“This would be an extension of the governor’s power that could make any independent agencies subject to the governor’s control, and that’s dangerous,” Gordon said, noting that any governor who controlled one house of the Legislature would not have to worry about a legislative override vote. “It would fundamentally change the way state government has functioned since 1947,” when the new state Constitution was adopted.

Whether this governor and future governors get that power is currently up to a New Jersey Supreme Court consisting of two Democrats, Chief Justice Stuart Rabner and Associate Justice Barry Albin; two Republicans, Associate Justices Anne Patterson and Helen Hoens; and one independent, Associate Justice Jaynee LaVecchia, whose political leanings are at the core of the Christie-Sweeney dispute.

By unwritten tradition since 1947, no more than four of the seven members of the Supreme Court can be from one party in order to ensure relative partisan balance. Christie insists that LaVecchia is an independent, but Sweeney counts her as a Republican because she served in high-level positions under two GOP governors.

Christie vowed to remake New Jersey’s Supreme Court, once one of the most activist, liberal courts in the nation, in his own conservative image. But the Democratic-controlled Senate rejected Christie’s efforts to nominate one Republican and one Republican-leaning independent last spring, charging that the governor was trying to “pack the court.”

Christie came in with two new nominees on December 10 -- Board of Public Utilities President Robert Hanna and Superior Court Judge David Baumann. Once again, one is a Republican and one is an independent, and the Senate has yet to schedule hearings on their nominations. Last week, an irate Christie stepped up the rhetoric in the Supreme Court fight by accusing Sweeney of “cowardice” and labeling the Senate’s inaction “reprehensible.”

As a result of the long Christie-Sweeney standoff, the Supreme Court once again had to designate two fill-in appeals court judges, Mary Catherine Cuff and Ariel Rodriguez, to sit in on the oral arguments in yesterday’s case.

Killing COAH

Ironically, yesterday’s case focused on the abolition of the Council on Affordable Housing, which was created as an independent agency “in but not of” the state Department of Community Affairs, to set regulations governing each municipality’s “fair share” of affordable housing under the guidelines set in the Supreme Court’s Mount Laurel housing rulings.

It was the Mount Laurel case law and the Abbott v. Burke cases that required large-scale state funding of public schools in 31 inner-city districts that infuriated Republicans and led them to call for the ouster of the late Chief Justice Robert Wilentz, a Democrat, when he came up for reappointment in the mid-1980s. Former Republican Gov. Tom Kean, who opposed the Mount Laurel rulings, pushed through Wilentz’s renomination in the interest of an independent judiciary.

It was Christie’s unprecedented refusal in 2010 to reappoint Associate Justice John Wallace, the only African-American on the court, because he disagreed with his liberal court votes that spawned what is now a three-year partisan battle over control of the court.

Yesterday’s questioning by the Supreme Court justices subtly -- and in some cases, not so subtly -- showed the political/philosophical leanings of individual justices.

Albin, a Democrat appointed by Gov. James McGreevey, sharply questioned how Christie’s decision to abolish the Council on Affordable Housing and place its functions under the control of the Commissioner of the Department of Community Affairs, who is directly answerable to the governor, would not violate the intent of the Legislature.

“COAH was set up as an independent agency with six Democrats and six Republicans,” Albin said. “Certainly, the Legislature did not want the agency to be controlled by one party. Also, COAH included all of the stakeholders concerned with low- and moderate-income housing. The power was intended to be diffused.”

Albin asked what would prevent a future governor from placing the Public Defender’s Office under the control of the state Attorney General, who could then presumably exercise his power over which cases could be appealed.

Rabner, the Democratic Chief Justice who served as Attorney General under Gov. Jon Corzine, also focused on the “plain language” intent of the Legislature that COAH should be “in, but not of” the Department of Community Affairs, and that it should be an independent agency not controlled by the governor or his appointee.

Out of Control

Gordon, the Fair Housing Coalition lawyer, noted that the 1947 Constitutional Convention originally gave the governor “supervision and control” over independent agencies, but took out the “control” wording after the president of the state Board of Public Utilities wrote a letter making the case for the value of independent agencies.

It was Patterson, a Republican from Christie’s hometown appointed by the governor, who clearly seemed to be the most sympathetic to Assistant Attorney General Robert Lougy, who argued the case on behalf of the Christie administration.

Patterson emphasized in her questioning that the Legislature had a 60-day window to override the governor’s abolition of COAH, but failed to do so, and noted further that Christie had vetoed a bill that passed the Legislature with Democratic votes that also would have abolished the agency. “Can we glean any legislative intent in the S1 legislation to abolish COAH?” she demanded.

However, it was the independent-minded LaVecchia who was the focus of court-watchers yesterday. It was LaVecchia who cast the deciding vote in 2011 in a 3-2 decision that ordered Christie to restore $500 million in state aid cut from the 31 Abbott urban school districts -- much to the chagrin of Christie, who denounced the decision as the latest example of an overreaching activist court. LaVecchia asked Lougy whether he could cite a single case in the past 40 years in which a governor used the authority under the Reorganization Act to “interfere with the statutory duty” of an independent “in, but not of” agency and to place its powers under the control of a cabinet officer who the governor had the ability to direct.

None of the examples cited by Lougy -- the placement of the Public Employment Relations Commission under the Labor Department, three shifts of the Board of Public Utilities, and a shift of the Public Defender’s Office -- took away from the fundamental independence of the agency involved.

For the Christie administration, yesterday’s ruling on the abolition of COAH and the transfer of its powers to the Department of Community Affairs has not only constitutional but also budgetary significance. Christie’s current-year budget includes the transfer of $142 million of unspent affordable housing funds to be used to balance the general budget -- a transfer ordered by the Department of Community Affairs, but delayed by the courts while cases relating to the abolition of COAH make their way through the courts.

If the Supreme Court overturns Christie’s abolition of COAH, the housing board would presumably reconvene, and its six holdover members would presumably have jurisdiction over how the $142 million should be spent. It would not be surprising if the board members of a housing agency Christie targeted for extinction decided that the money should be spent on building affordable housing, as the New Jersey State League of Municipalities desires, rather than on balancing Christie’s budget.

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