promoted by Rosi
Last Thursday, the Appellate Division of the Superior Court of New Jersey invalidated Gov. Christie’s abolition of the Council on Affordable Housing, ruling that New Jersey’s State Constitution and statutes do not allow Gov. Christie to unilaterally abolish independent agencies.
I’d previously outlined the case in a post here, shortly after oral argument on February 15. As I mentioned in that post, if the court had held that the Governor in fact had the power to abolish the boards of independent agencies, “then every time a board member of an independent agency makes a decision, she will be afraid of being fired if she disagrees with the Governor, the exact opposite of the intent of such agencies. No independent agency really would be independent.” The Court agreed, finding that only the Legislature, not the Governor, has the power to reorganize independent agencies.
The Court’s reasoning, in the decision available here, followed the conservative modes of legal reasoning that the Governor claims to believe in, following a careful statutory and constitutional reading. The Court relied on quotes from Associate Justice Antonin Scalia on the proper separation of powers in the original meaning of the Constitution to reject Governor Christie’s argument that the constitution gave him unlimited power to change the structure of state government, stating that “While the framers of our Constitution intended to create a strong executive in the office of Governor (perhaps the strongest in the United States), they also recognized the need to insulate functions and agencies from executive control.”
The Court ruled that “[w]ithout clear direction in the Reorganization Act that it should apply to independent agencies, there is no basis from which to infer that the Legislature intended to permit a governor to undo such a balanced representation scheme through a reorganization plan.” It further concluded that “application of the Reorganization Act requires an explicit legislative mandate to warrant the abolition of an independent agency, rather than generic language, in order to subject such agencies to reorganization or, as here, to abolition.” The Court thus properly protected the independence of agencies such as the Election Law Enforcement Commission, State Ethics Commission, Public Defender, and dozens of other agencies that would have been subject to gubernatorial abolition if the plan for COAH had been upheld.
The decision marks Governor Christie’s third strike on changing the state’s policies for providing housing for working families, people with special needs, and seniors. He first attempted to eliminate COAH through Executive Order 12 in February 2010. The Appellate Division enjoined that order and Governor Christie then rescinded it. In early-2011, the Governor tried, but failed, to persuade the Legislature to adopt his preferred housing policy after vetoing legislation that would have abolished COAH passed by both houses of the Legislature. Governor Christie felt that municipalities should never be required to provide housing opportunities for lower-income families, seniors, and people with special needs, and thus rejected the Legislature’s attempt to abolish COAH but keep underlying laws against exclusionary zoning – albeit in a way that would have significantly reduced municipalities’ obligations. The main Senate sponsor of that legislation, Sen. Ray Lesniak, said that the decision meant that ” the Governor cannot ignore the Constitution, nor can he ignore the Legislature, in his efforts to comply with the Mount Laurel decisions mandating affordable housing in New Jersey.”
What happens next? The decision reinstates COAH’s board and authority over municipal fair share obligations, and removes DCA’s authority to make those decisions directly without any public participation or hearings (another problematic feature of the Governor’s plan). Governor Christie has said that he plans to ask the Supreme Court to take up the case. But the reasoning in the decision is pretty clear: no prior Governor has ever abolished an independent agency – because no plausible interpretation of our Constitution or statutes gives him that unilateral power.