In a sweeping decision the state Supreme Court yesterday ruled that Gov. Chris Christie does not have the power to reorganize independent state agencies. The 5-2 decision was specific to the Council on Affordable Housing, and overturned the governor’s order to abolish COAH.
The court also said that Christie did not have the authority to abolish the Commission on Higher Education and transfer its duties to the Secretary of Higher Education, something he did via a reorganization plan filed the same day in June 2011 that he filed a plan to eliminate COAH. But the court took no action to change that reorganization.
Writing for the majority, Justice Stuart Rabner opened his opinion by stating, “This case is about whether a Chief Executive has the authority to abolish independent agencies that were created by legislative action.”
In addition to leading to the reinstatement of COAH, the ruling should prevent Christie from trying to abolish or change similar agencies, including the Pinelands Commission and Highlands Council, with which he does not necessarily agree, said Jeff Tittel, head of the New Jersey Chapter of the Sierra Club.
“It’s an interesting decision,” he said. “It limits the power of an executive who has overstepped his bounds.”
According to Adam Gordon, the attorney who argued the case for Fair Share Housing Center, which sued to overturn Christie’s elimination of the council, “The Supreme Court’s decision ensures greater public participation and transparency in important decisions on where homes get built.” He continued, “It’s a bad idea for policies involving homes for working families, people with special needs, and lower-income seniors to be made behind closed doors.”
“In But Not Of”
Christie used the Executive Reorganization Act of 1969 to abolish COAH and that law only gives the governor authority over agencies that are “of the executive branch,” the majority found. But in creating COAH, the Legislature put it “in but not of” the Department of Community Affairs, a term that “has long been understood to signify an agency’s independence,” continued the ruling.
“The plain language of the Reorganization Act does not encompass COAH,” Rabner wrote. “We therefore conclude that the Act does not authorize a Chief Executive to abolish an independent agency like COAH.”
The ruling went beyond COAH and cautioned that Christie or future governors do not have the authority to try to reorganize other, similar bodies, including the Natural Lands Trust, Election Law Enforcement Commission, Office of the Public Defender, Civil Service Commission and Office of the State Comptroller.
“That same process applies to possible changes to other independent entities,” Rabner wrote. “The precise language in the Reorganization Act does not authorize a Chief Executive to abolish them and replace their independent boards with a cabinet official who answers to the Chief Executive. Instead, to abolish or change the structure of independent agencies, both the legislative and executive branches must enact new laws that are passed by the Senate and Assembly and signed by the Governor.”
Christie, who often complains about “judicial activism,” blasted the ruling.
“Both elected branches of government approved the plan to eliminate COAH,” the governor said in a statement. “Not surprisingly, this liberal Supreme Court once again ignores that and continues to blindly perpetuate its failed social experiment in housing. The Chief Justice’s activist opinion arrogantly bolsters another of the failures he and his colleagues have foisted on New Jersey taxpayers. This only steels my determination to continue to fight to bring common sense back to New Jersey’s judiciary.”
The majority took 49 pages to explain its ruling, much of which turned on the language the Legislature used in drafting the Reorganization Act and many of them devoted to answering the 29-page dissent written by Justice Anne Patterson and joined by Justice Helen Hoens, the two Republican justices on the court. In dissenting, Patterson wrote that the six governors have used reorganization powers in regard to “in but not of” agencies and had the Legislature wanted to exempt these from the 44-year old law it would have specifically done so.
Saying the majority placed too much emphasis on the word “of” to mean reorganizations covered only departments “of the executive branch,” Patterson wrote, “In my view, the word ‘of,’ one of the most common and generic words in our language, serves an unremarkable function in the definition . . . I cannot construe this amorphous word to state or intimate anything more. It is, to me, inconceivable that a Legislature, long experienced in placing clear parameters upon its statutes, would limit this important law by such cryptic use of the word ‘of.’”
But Rabner and the majority affirmed a unanimous March 2012 decision that Christie overstepped his authority in abolishing COAH and transferring its duties to the DCA because of the distinction of the word “of.” The state constitution requires the Legislature to allocate all offices within no more than 20 departments and so to fit independent agencies into that scheme, lawmakers have often created “in but not of” agencies that reside within a department for the sake of the constitution but are meant to “denote an agency’s independent status,” the decision states. The reorganization law, though, only applies to offices “of” the executive branch.
“Words make a difference. In case after case, we note that it is the Court’s responsibility to give force to the words the Legislature has chosen and not rewrite plainly written laws,” Rabner wrote.
The Legislature “did not include independent agencies in the scope or language of the Act. That choice is entitled to respect. We cannot override it and rewrite the plain words of the Reorganization Act.”
Insulating Independent Agencies
Acknowledging that the governor can appoint and remove at least members of the agencies and may even be able to veto their actions, depending on the individual body, Rabner wrote that, “Independent agencies are nevertheless insulated from the full supervision and control of the Executive Branch.”
The decision acknowledged that both Christie and the Legislature have sought to change the way the state oversees affordable housing obligations, first established by the Supreme Court in its landmark Mount Laurel rulings in 1975 and 1983. It noted that the Legislature passed a bill eliminating COAH in January 2011. Christie conditionally vetoed the bill and lawmakers did not concur with his recommendations so COAH stood. The governor also had sought to stop the council from acting shortly after he took office in 2010, but he backed off following a legal challenge.
In her dissent, Patterson noted that the Legislature clearly concurred with Christie’s elimination of COAH both because lawmakers had passed a bill that would have gotten rid of the agency and because they did not challenge the reorganization plan within 60 days as allowed by law.
The ruling will not stop the governor and Legislature “from changing both the decisionmaking structure and approach for the agency responsible for affordable housing,” it stated.
“The plain language of the Reorganization Act does not authorize the Chief Executive to abolish an independent agency like COAH,” the majority concluded. “If the Governor and the Legislature wish to abolish COAH, they must take another path.”
This should mean that Christie will nominate new members to fill out the council — it currently has only 5 of 12 seats filled — and it will resume meeting regularly. A DCA spokeswoman declined comment on those questions yesterday. Even though the appellate division negated the elimination of COAH 16 months ago, the council has met only once since then, on May 1, 2013, and that was largely to authorize the taking as much as $165 million of unspent affordable housing funds from municipalities. That seizure of funds, delayed by Fair Share Housing Center litigation, now could happen in August.
“I think implicit in COAH functioning is that it has to meet, and if it doesn’t we’ll certainly push that issue,” Gordon said. “We’re still opposed to the seizure of the trust funds because no matter what state use they are put for, they won’t create the over 3,000 homes already in local plans and shovel ready.”
In a letter to the state’s mayors, the president, and the executive director of the New Jersey State League of Municipalities noted that the decision “has significant legal implications regarding the role of the executive and legislative branches” but said it has no impact on the loss of the trust funds.
“Today’s court decision, however, underscores the ongoing need for the Legislature and administration to work toward a reasonable legislative solution to the affordable housing issues,” wrote Janice Mironov, the mayor of East Windsor and league president, and William G. Dressel, the league’s executive director.
COAH Must Go
Several Democratic lawmakers, who also want to see COAH abolished, agreed.
“Today’s decision makes it clear that the Governor cannot ignore the law, he can’t dismiss the constitutional role of the Legislature and he shouldn’t ignore the need for affordable housing in New Jersey,” said Sen. Raymond Lesniak (D-Union) and a sponsor of the bill that would have replaced COAH with a different system. “Dismantling COAH with no alternative is no way to answer the need for housing that is affordable to low- and moderate-income residents in a state where it is expensive to buy or rent a home. We should fix the system, not eliminate it.
“I agree that COAH is flawed and that we need to develop a more productive and more responsive means to address the state’s housing needs that will meet the Supreme Court’s requirements,” he added. ““I hope that the governor will now work with me and with the Legislature to find a legal, responsible and successful way to meet the need for affordable housing in New Jersey. It’s a challenge, but it is one we can meet. ”
Assembly Speaker Sheila Oliver (D-Essex) said the governor should have signed the bill lawmakers sent him two years ago.
“Instead the Governor vetoed it, choosing to waste two years and countless dollars fighting the matter in court,” she said. “Now it’s clear that we need to work together to resolve this issue once and for all in a manner that benefits all of the constituents we were elected to serve.”
Beyond COAH, the decision would seem to limit the authority of the governor of the state of New Jersey, considered to have among the most powers of any governor in the nation. Yet it does not affect any prior reorganizations that have already occurred and went unchallenged by the Legislature — which has 60 days by law to block a plan — or through the courts.
Patterson noted in her dissent that former governors have moved the New Jersey Historic Trust, the Office of Administrative Law and the Office of the Public Defendant, among others, from one executive department to another. And she noted Christie’s elimination of the Commission on Higher Education two years ago also stands unchallenged.
“If anything, this example demonstrates that historic practices that went unchallenged do not create precedent,” Rabner countered for the majority. “They do not answer the question presented for the first time in this case: whether the specific, plain language of the Reorganization Act covers independent agencies and allows them to be abolished. We find that it does not.”
Specifically addressing the Higher Education reorganization, the majority wrote simply: “This example, as well, cannot inform our understanding of the Reorganization Act for a simple reason: reorganizations or transfers of the Commission on Higher Education, or any other bodies created under the Higher Education Restructuring Act of 1994, are not subject to the Reorganization Act.”