New Jersey's Supreme Court ruled Wednesday that Gov. Chris Christie's 2011 abolishing of the Council on Affordable Housing without legislative action was beyond his authority.
The court found that because COAH's enabling legislation made it "in, but not of" an executive branch department, Christie could not invoke the Reorganization Act, which extends the governor's authority only to agencies that are "of the executive branch."
An independent agency like COAH can be abolished only by a law passed by the Senate and Assembly and signed by the governor, the court held in In Re Plan for the Abolition of the Council on Affordable Housing, A-127-11/A-14-12.
The 5-2 majority, led by Chief Justice Stuart Rabner, was unpersuaded that the Legislature's failure to veto Christie's reorganization plan — which it could have done under the Executive Reorganization Act — supplied the necessary legislative component.
"The fact that some form of legislative veto exists in the Act does not cure that problem," he said. "If the legislative and executive branches seek to make substantive changes to the law, they have to proceed through the ordinary legislative process."
Rabner said the majority had no opinion on whether COAH should be abolished or remodeled, which he said is "a policy decision left to the Governor and the Legislature and guided by the Constitution."
The court's two Republican justices,
Anne Patterson and Helen Hoens, dissented, finding significant the Legislature's failure to exercise its veto — or to amend the Reorganization Act or the Fair Housing Act to protect COAH.
"In my view, the Reorganization Plan struck down today expressed the coordinate branches' shared intent," Patterson wrote.
Adam Gordon, the attorney for the Fair Share Housing Center in Cherry Hill, which brought the challenge to COAH's reorganization, said the decision "ensures greater public participation and transparency in important decisions on where homes get built. 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."
But the ruling brought a predictable, angry response from Christie.
"Not surprisingly, this liberal Supreme Court once again ignores that and continues to blindly perpetuate its failed social experiment in housing," Christie said. "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 governor's reaction begs the question whether he will renominate Rabner when the chief justice's initial seven-year term ends next June 29. Christie has vowed to reshape the court to one that would break away from the social-engineering mandates of the late 20th century. He began by declining to nominate Justice John Wallace Jr. for tenure in 2010, leading to a schism with the Democratic Senate majority that has paralyzed court appointments.
Two Christie nominees have been rejected by the Senate Judiciary Committee and two more — Superior Court Judge David Bauman and Board of Public Utilities president Robert Hanna — have been waiting for confirmation hearings for more than six months.
In the meantime, Appellate Division judges are filling court vacancies.
"This kind of decision may influence whether he reappoints Chief Justice Rabner, but it's unclear that if he chooses someone else, given the Senate Democratic majority, that nominee would actually be confirmed," says Benjamin Dworkin, executive director of the Rebovich Institute for New Jersey Politics at Rider University.
Christie's statement "suggests he's given some consideration to [Rabner's] renomination and tenure prospects," says Carl Golden, a former communications director for Republican Gov. Thomas Kean and now a senior contributing analyst at Richard Stockton College's William Hughes Center for Public Policy in Galloway.
Christie, says Golden, has made it clear what his goals are, "and that may only be resolved by changing the composition of the court."
Sen. Raymond Lesniak, D-Union, puts it more flatly. "I don't think Rabner had a chance for tenure from Day One," he says. "Christie is intent on having his puppets on the court."