State Senate President Stephen Sweeney (D-Gloucester) is once again getting involved in Rutgers University. This time he's squaring off with Gov. Chris Christie over his appointment of Martin Perez to the reconstituted Board of Governors.
Yesterday, Sweeney announced that he had filed suit challenging Christie's appointment.
This dispute has some history to it: Christie has officially nominated Hispanic community leader and Rutgers law alumnus Perez to the board twice before, the first time in 2011. Each time, the Senate has blocked the appointment. Sweeney's take on the nomination is that it's an attempted payback for a redistricting proposal submitted by Perez.
In a December statement Sweeney said that the redrawn map "would have packed minorities into districts, resulting in their underrepresentation in government, and apparently this [the seat on the Rutgers board] is his reward.”
The basis for Sweeney’s suit, which names Christie as sole respondent, relies on the judicial principle of “ultra vires,” which means “beyond power.” Sweeney maintains that Christie exceeded his power by appointing Perez without the consent of the Senate.
Sweeney’s attorneys argue that although last year’s New Jersey Medical and Health Sciences Education Restructuring Act expanded the Board of Governors from 11 to 15 members and allowed the governor to appoint two of those additional members, he can only appoint one member each from Camden and Essex counties without consent from the full senate. Perez lives in Middlesex County.
This is not the first time that Sweeney has gotten embroiled in Rutgers business. After losing an effort last year to sever Rutgers-Camden and merge it with Rowan University in Glassboro, he loudly criticized the administration’s and governing boards’ handling of an athletic department scandal that forced the exit of several top-ranking department officials and coaches.
He also introduced legislation to permanently dissolve the 247-year-old Board of Trustees and is running advertisements bearing the tagline, "R-U kidding me? It's time for the Board of Trustees to go." Rutgers has retained former solicitor general Neal Katyal to fight Sweeney’s legislation in court if it passes.
Senator Robert Smith (D-Middlesex), who was among the Senate Democrats to use the power of senatorial courtesy to attempt to keep Perez off the board, issued a statement of support for Sweeney’s legal actions yesterday.
But in an email, Christie spokesperson Michael Drewniak said, “We’re confident that Martin Perez was seated on the Board of Governors in full compliance with the Restructuring Act and that his appointment will withstand any legal scrutiny.”
And when the Board of Governors quietly swore Martin in on July 15 with no public notice -- several days after Chairman Gerald Harvey suddenly decided not to install him along with the other new members -- Harvey said in a statement, “The Board of Governors is pleased to welcome Mr. Perez and we look forward to utilizing his expertise and experience as we chart an even brighter future for Rutgers University and the people that it serves.”
Part of the problem with the provision of the higher education act that defines the new structure of the board of governors -- although not necessarily part of Sweeney's legal maneuverings -- is that it's contradictory and seems to include a simple arithmetic error. This may be the result of the fact that it was written in haste, and some close to the situation have said that they feared that mistakes would be made because the legislation was pushed through at the 11th hour.
Although most stakeholders think the law creates eight gubernatorial appointees, the official version (published on the state’s website) only provides the governor with seven appointees, with the other seven coming from the university’s other governing board, the Board of Trustees. The measure does not account for the 15th voting member.
Or does it? The letter of the law is unclear on this point:
“The membership of the board of governors shall . . . consist of: 15 voting members, seven of whom shall be appointed by the Governor of the State, with the advice and consent of the Senate, with one of these members being a resident of Camden County, and one of whom shall be appointed by the Governor upon the recommendation of the President of the Senate and the Speaker of the General Assembly and who shall be a resident of Essex County.” The act goes on to say that seven of governors are to be selected by the board of trustees from within their ranks, with one of them required to live in Essex County and another in Middlesex County.
Further – and this is the part on which Sweeney is resting his case – the act states that, “The first additional appointments made by the Governor shall not require the advice and consent of the Senate, but thereafter such advice and consent shall be required.”
Sweeney’s attorneys argue that the language makes it clear that the “additional” appointments not needing senatorial consent refer only to those from Camden and Essex counties, given that these are the only two positions that didn’t exist before the act.
But although neither Drewniak nor representatives from Rutgers would elaborate on a strategy for defending the appointment in court, it’s possible they’ll argue that the clause, “The first additional appointments made by the Governor . . . shall not require the advice and consent of the Senate,” stipulates no such geographic restrictions.
To throw a bit more fuel on the fire, the Appellate Division of the Superior Court has denied Sweeney's request for emergent relief, which would immediately invalidate any votes cast by Perez while the Senate president's pending legal battle to get the appointment nullified moves through the courts.
Judge Susan Reisner denied the application for the reason that it does not “concern a genuine emergency or otherwise does not warrant adjudication on short notice.”
And although Sweeney’s office released a statement announcing that the senator had filed a lawsuit, it was not immediately clear whether Sweeney had officially filed suit or merely submitted the emergent relief application. A spokesperson for the senator could not be reached for comment on this question.