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Opinion: Christie v. New Jersey Judiciary -- Not a Pretty Picture

Despite being bullied and berated, the state’s judiciary has stood up to the governor and handed him some sizable setbacks

potter
Credit: Amanda Brown
R. William Potter

As Gov. Chris Christie continues his undeclared campaign to be named the Republican Party nominee for president in 2016, his record in office will eventually take center stage. GOP primary voters are entitled to draw inferences about what kind of president he would make based upon his years as New Jersey’s governor, a uniquely powerful position that conservative columnist George Will has described as “an American Caesar.”

In our separation of powers system, the judiciary stands out as the least political but at times the most powerful branch of government. Despite the many powers delegated to the governor by our 1947 state Constitution -- including appointment of all county prosecutors and judges, and ability to line-item veto any bill or appropriation -- the courts retain ultimate authority. They can order the governor to comply with the law or Constitution, and to expect the governor to carry out their directives, no matter how politically unpopular they may be.

So the question is posed: How has Christie treated the courts, and how have the courts responded? There is a one word answer to the first: scornfully. Christie has thumbed his nose at the long-established bipartisan tradition of governors showing deference and respect for judges’ rulings, even when they disagree.

Further, he has not hesitated to excoriate judges by name if they dare to cross him. When the chief judge of Mercer County, Linda Feinberg, struck down Christie’s effort to reduce judicial salaries, Christie castigated Feinberg’s ruling as “self-interested and outrageous.” Judge Feinberg soon thereafter retired from the bench.

Christie set a confrontational tone almost from the start. One of his earliest acts in office was to reject the heretofore automatic renomination of a sitting Supreme Court justice, John Wallace Jr., the high court’s only African-American. Why? He wanted to send a message that only judges who agree with his viewpoints will be reappointed to serve out their tenure in office until the mandatory retirement age of 70.

But despite this attack on their independence, the state’s judges have waved aside the verbal thunderbolts thrown by the state’s chief executive, regardless of the threats to their job security. Indeed, it is no exaggeration to suggest that Christie has been the governor most frequently judicially reversed in New Jersey history. And the list of judicial setbacks just keeps getting longer.

On April 9, 2015, a three-judge appellate panel vacated the governor’s seizure of $161 million in affordable housing trust funds, and delivered a tongue lashing to the Council on Affordable Housing (COAH) for its failure to act on municipal fair-share plans needed for the release of trust funds to build subsidized Mount Laurel housing -- thereby causing the buildup of unspent funds that Christie tried to grab for filling state budget holes.

This was but the latest COAH case setback for the Christie Administration. A month earlier, a unanimous state Supreme Court -- including three Christie appointees -- criticized COAH for its refusal to comply with prior court orders to adopt updated fair-share housing targets. So frustrated was the court with the Administration’s defiance, that it assigned judges to come up with new numbers so that municipalities would finally know how many low-cost housing units they are required to provide.

Earlier, the court rejected Christie’s use of an executive order to abolish COAH, holding that only the state legislature has authority to disband an agency established by statute.

On the pension front Christie has fared no better. Last year public employee unions sued the Administration to compel compliance with a pension-reform law requiring Christie to make regular payments into the pension reserve fund. On February 23, Superior Court Judge Mary Jacobson ruled that these obligations are contractual, and ordered the state to comply by depositing $1.6 billion into the fund before the end of this fiscal year on June 30.

Ironically, while he was on the presidential campaign trail, Christie was touting this pension reform law as a prime example of his bipartisan leadership skills, how he could “get things done,” and break the logjam in Washington. But in court, Christie’s lawyers argued that the same law is unconstitutional. The case is now before the state Supreme Court to be heard on an expedited basis.

And then there was RGGI -- the Regional Greenhouse Gas Initiative -- the nine-state compact for controlling global warming emissions in a “cap and trade” system for reducing carbon dioxide pollution . By executive order in his first year in office, 2009, Christie pulled New Jersey out of the multistate agreement. On March 25, 2014, an appeals court ruled that the summary manner in which the DEP voided its RGGI rules violated the Administrative Procedure Act.

While these high visibility cases were working their way through the courts, Christie’s officials have been sued at least 23 times for their refusal to hand over public documents, including financial reports on how many state dollars Christie was spending on his many trips to other states and countries. These Open Public Records Act (OPRA) cases are especially expensive for the state to lose, because OPRA requires it to pay the plaintiff’s legal bills. At last count, the state has paid out more than $400,000 in legal fees to just one successful litigant.

Now comes the hotly debated Christie effort to settle the case against Exxon Mobil for decades of pollution, after a court ruled that the giant oil company is guilty for $225 million in “natural resource damage,” which the state’s experts tabulated as requiring $8.9 billion in compensation. The outcome of that case is still pending. Meanwhile, campaign disclosure reports show that Exxon Mobil contributed $1.9 million to the Republican Governors Association after Christie became the national chair.

Christie did prevail in one case. That was a lawsuit this law firm filed, seeking an injunction against the seizure of Clean Energy Trust Funds dedicated by law to financing renewable energy and promoting energy efficiency. In 2011, an appellate court ruled that these “transfers,” now totaling almost $1 billion -- collected through a surcharge on utility rates -- are legal if the legislature has appropriated the funds into the state budget.

If we are keeping score, Christie’s won/loss record would look like this. In the “L” column are three COAH losses, one pension loss, one RGGI setback for a total of five judicial setbacks -- with some two dozen OPRA cases pending. In the “W” column, one win.

Overall that’s not much of a record for a presidential candidate to run on. Then again, in today’s Republican Party, losing in courts to “liberal, activist judges” may not be a political liability. The biggest setbacks are to the rule of law here in New Jersey, where the courts remain steadfast as the last bulwark against the many excesses of this American Caesar.

R. William Potter is a partner in the Princeton-based law firm Potter and Dickson. The views expressed are his own and do not necessarily reflect the views of the firm or any client.

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