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With New Jersey Gov. Christine Todd Whitman set to resign her office with the intent of heading the Environmental Protection Agency, Donald DiFrancesco is due to become New Jersey’s acting governor, with all the powers and trappings of an elected governor, while keeping his job as state Senate president. New Jersey’s 1947 constitution expressly allows this breach in the wall between the executive and legislative branches — and this exception to the usual proscription against dual office-holding in state government. The arrangement works fine if the governor is out of the state for a few days and the Senate president is performing only ministerial duties. But if a governor resigns, as Whitman will do if confirmed by the U.S. Senate for the EPA post, the state Senate president — elected only by his district — is handed a virtual mandate to start his own administration, including the appointment of cabinet members, without fear of rebuke by legislators. And DiFrancesco will hold the post until next January, when a newly elected governor — possibly himself — takes office. The result is a kind of czardom, in which the Senate president’s already formidable power is tacked on to the supreme executive power of the state. This is the first time the hybrid power structure envisioned by the 1947 constitution has been implemented. “This is clearly legal,” says state constitutional scholar Robert Williams of Rutgers Law School-Camden. “The real question is, is it wise and should we keep it?” New Jersey is one of only four states that allow the Senate president to hold both offices. The other 46 states designate either a lieutenant governor or another statewide elected official to fill the governor’s seat in the event of a vacancy. The 1947 constitutional convention, which sought to invigorate the previously weak executive branch, decided against creating the post of vice-governor or lieutenant governor; the attendees looked askance at anything that would diminish the power of the legislative branch, including the Senate president’s right of succession. The unusual concentration of power is more potent by dint of the fact that New Jersey has a strong governor’s office to begin with. Unlike states that elect other members of the executive branch, such as attorneys general, New Jersey has only one statewide elected office: the governorship. DiFrancesco could decimate the entire cabinet, except for the attorney general and secretary of state, who are constitutionally protected from removal. The result is a governorship enhanced by the power vested in DiFrancesco as senate president. “As the [Senate's] presiding officer, he sets the agenda,” says Albert Porroni, executive director and chief counsel of the nonpartisan Office of Legislative Services. DiFrancesco keeps the Senate calendar and decides which bills will be posted for a final vote. Simply put, any viable bill that has his approval is on a fast track toward passage. Now, with his exercising gubernatorial power as well, there is no possibility of veto. Porroni notes that DiFrancesco conceivably could carry out the duties of two very demanding positions by properly delegating power. And scholars note that having the Senate president become acting governor, although imperfect, at least gives power to an elected representative until a new election can be held. “It’s not like he’s some despot. He’s a representative of the people,” says Rutgers-Camden’s Williams. Indeed, the state Senate as a whole will enjoy unprecedented power if DiFrancesco becomes acting governor. Under its rules, the New Jersey Senate may vote at any time to elect a new president. Since under the state constitution only the Senate president may be acting governor, the Senate could theoretically elect a new governor at any time, simply by changing the Senate president. Besides obviating the normal procedure for impeachment and removal of a governor, the Senate’s ability to replace DiFrancesco in effect creates a parliamentary system, in which the chief executive can be removed on a vote of “no confidence,” notes Michael Ticktin, author of a 1998 Rutgers Law Journal article on the subject, 29 Rutgers L.J. 1021. CONSTITUTIONALITY UPHELD The state Supreme Court has upheld New Jersey’s system, rejecting arguments that it violates the separation of powers. In 1969, the justices rejected a challenge to the Milk Dating Law, passed by the Senate when Gov. Richard Hughes was out of the state and Senate President Sido Ridolfi was acting governor. Ackerman Dairy Inc. v. Kandle, 54 N.J. 71 (1969). Because Ridolfi had cast the decisive vote on the bill in the Senate, the plaintiff argued that the enactment of the law violated the separation of powers guaranteed by the state constitution. The Court relied on an 1899 decision that, interpreting the 1844 constitution, rejected a similar challenge by a death-row inmate who argued that his execution order was invalid because it was signed by an acting governor who was also the Senate head. Clifford v. Heller, 63 N.J.L. 105 (1899). The Clifford ruling pointed out that the 1844 constitution’s guarantee of the separation of powers contained an important qualifier — “except as herein expressly provided” — which authorized a separate clause making the Senate president acting governor in the event of a vacancy. With minor, stylistic changes, those same clauses were imported into the 1947 constitution. And, the Clifford Court reasoned, the framers could not have intended that the Senate president resign his Senate position when serving as acting governor, since that would mean that the Senate would lose a senator — and either the Democrats or Republicans would lose one vote — any time the governor left the state for even a few days. The attorney who made the separation-of-powers challenge in Ackerman Dairy, Justin Walder, says there are a couple of ways the case could be distinguished from the current situation. For one, Ackerman Dairy involved a situation where the governor’s office was vacant for only a brief time, says Walder, of Roseland’s Walder, Sondak & Brogan. Two, although Ridolfi was acting governor when the Milk Dating Law was passed by the Senate, he did not sign the bill; Gov. Hughes did when he came back. Still, Walder says he doesn’t think the 1969 decision leaves much room for separation-of-power challenges to any laws that are passed, or executive orders signed, after DiFrancesco becomes acting governor. There also isn’t much hope in making a federal constitutional challenge to the state’s succession system, scholars say. The separation of powers under the federal Constitution is much stronger than in New Jersey, says Professor Williams, but federal courts allow the states wide latitude in the precise form of their republican government. Wisconsin, for example, gives its governor “item veto” power, allowing him or her to delete words or phrases from legislation and essentially rewrite the law before signing it, says Williams. But if the state constitution’s method of filling the governor’s vacancy is, in fact, constitutional, the question becomes whether it still violates the fundamental notion that power should be separated, not concentrated. NO NEED FOR ‘FIFTH WHEEL’ A proposal to create a lieutenant governor position was, in fact, on the agenda at the state’s 1947 constitutional convention. “We could have provided for a lieutenant governor if we had wanted. But we didn’t do that,” says Clinton, N.J., attorney and former state senator Wesley Lance, one of the delegates to the 1947 convention. Lance, now 92, says the proposal was opposed because the lieutenant governor would be a “fifth wheel” — he or she would get a salary and staff but would not have much to do, other than to wait around for the governor to vacate. But Lance also gives a more pragmatic reason for the delegates’ opposition to the lieutenant governor proposal. Most delegates were, or hoped to be, state senators, and they were reluctant to give up their power to select acting governors — and the chance to one day become acting governor themselves. In those days, says Lance, the state Senate rotated the president position yearly so that many senators got the chance to serve as acting governor for brief stints. Lance himself served as acting governor for brief periods in 1959. REFORM PROPOSALS Besides creating the position of lieutenant governor, other proposals for reforming New Jersey’s current system have been floated. One idea, says Ticktin, is to make the Senate president resign that post when he or she replaces a governor who is vacating the position permanently. The next Senate president would then be selected by that party’s committee, to serve until the next election. Another way of ensuring separation of powers, says Ticktin, would be to make the secretary of state — who is constitutionally protected from removal — the acting governor in the event of a vacancy. But any change to the current succession procedure would require another constitutional convention — and the election of senators willing to give up their power. According to Williams, that would require enough public interest about the issue that senators would have to promise such a change during their campaigns. And that might not occur without some sort of scandal or abuse of power under the current system.

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