Separation “of” Powers: N.J. High Court Strikes Down Governor’s Reorganization Plan Abolishing COAH
I. The Case
In In Re Plan for the Abolition of the Council on Affordable Housing, the Supreme Court of New Jersey examined whether the Executive Reorganization Act of 1969 authorizes the Governor to abolish the Council on Affordable Housing (COAH), which the New Jersey State Legislature created and placed “in, but not of,” an Executive Branch department.[1] To determine whether the Governor’s unilateral abolition of COAH was lawful, the Court looked to COAH’s status as established by the Legislature, as well as the scope of the Reorganization Act.[2]
Pursuant to the longstanding “Mount Laurel Doctrine,” New Jersey’s municipalities have a state constitutional obligation to provide an adequate opportunity for the development of affordable housing.[3] “In 1985, the Legislature codified this doctrine by enacting the Fair Housing Act (FHA),” under which COAH was created to ensure that municipalities fulfill their constitutional obligation to provide affordable housing.[4] Upon its creation, the New Jersey Constitution required the Legislature to place COAH “within” an Executive Branch department.[5] As a result, the Legislature placed COAH within the Department of Community Affairs (DCA), but at the same time, the Legislature included key language in the enacting legislation that “placed COAH ‘in, but not of,’ the [DCA].”[6]
In June 2011, Governor Chris Christie invoked the Executive Reorganization Act of 1969, which allows consolidation of executive functions to increase efficiency, and issued Reorganization Plan No. 001-2011 (“Reorganization Plan”) to abolish COAH and replace it with the DCA commissioner.[7] The plan took effect in August 2011 and the Fair Share Housing Center (FSHC) challenged the Reorganization Plan in court, claiming the Governor exceeded his authority under the Executive Reorganization Act.[8] Hence, the question before the court was whether the Governor has the authority under the Reorganization Act to issue a plan to abolish COAH, an “in, but not of” entity, and replace COAH with the DCA commissioner?
II. The Holding
The Appellate Division invalidated the Reorganization Plan, concluding that the Executive Reorganization Act authorizes the Governor to reorganize only entities that are “of the Executive Branch,” but not agencies like COAH that are independent by way of their “in, but not of” statutory status.[9] The Supreme Court agreed with the Appellate Division, applying the well-settled rules of statutory construction that dictate courts must first look to the “plain language” of the statute and give the words their “ordinary, generally accepted meaning.”[10] In doing so, the Court found the Reorganization Act extends to agencies that are “of” the Executive branch, but not to independent agencies that are simply “in” it.[11] That phrase—“in, but not of”—“has long been understood to signify an agency’s independence,” as in N.J. Turnpike Authority v. Parsons, where the Court found that: “the State Highway Commissioner is given no authority whatsoever over the Turnpike Authority. The turnpike [sic] Authority is ‘in but not of’ the State Highway Department and that fact does not make it any the less an independent entity, as the language of the entire Act clearly demonstrates.”[12]
Consequently, the Court held that because COAH is “in, but not of,” an Executive Branch department, the plain language of the Reorganization Act, which extends the Governor’s authority only to agencies that are “of the Executive Branch,” does not authorize the Governor to abolish independent agencies such as COAH.[13] As a corollary to this holding, the Court explicitly directed that to abolish an independent agency, “the Governor and the Legislature . . . must take another path,” meaning that a law must be passed by the Senate and Assembly and then be signed by the Governor.[14]
* Brittney Cafero is a May 2015 J.D. Candidate at Rutgers School of Law – Camden, and a Staff Editor on the Rutgers Journal of Law & Public Policy.
[1] In re Plan for Abolition of the Council on Affordable Hous., 70 A.3d 559, 561 (N.J. 2013); see N.J. STAT. ANN. § 52:14C-1 to -11 [hereinafter “Reorganization Act” or “the Act”].
[2] In re Plan, 70 A.3d at 561.
[3] Judith Nallin, In re Plan for the Abolition of the Council on Affordable Housing, N.J. L.J., Mar. 12, 2012, available at http://www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202545604803.
[4] Id.
[5] In re Plan, 70 A.3d 559, 561 (citing N.J. CONST. art. V, § 4, ¶ 1).
[6] Id.; see N.J. STAT. ANN. § 52:27D–305(a).
[7] Nallin, supra note 3; Reorganization Plan 001-2011, 43 N.J.R. 1621(a) (Aug. 1, 2011) (“Accordingly, this Plan transfers all functions, powers, duties, and personnel of the Council [on Affordable Housing], in but not of the Department of Community Affairs, to the Commissioner of the Department [of Community Affairs].”).
[8] Nallin, supra note 3.
[9] In re Plan for Abolition of the Council on Affordable Housing, 38 A.3d 620, 621 (N.J. Super. Ct. App. Div. 2012).
[10] In re Plan, 70 A.3d at 573.
[11] Id. at 573-74. After examining statutes passed around the same time period as the Executive Reorganization Act that extended their reach to government entities ”within” the Executive Branch departments, the Court explained that “[w]hen the Legislature has carefully employed a term in one place and excluded it in another, it should not be implied where excluded.” Id. at 574 (citations and internal quotations omitted).
[12] 69 A.2d 875, 879 (N.J. 1949) (relied on by In re Plan, 70 A.3d at 570-71).
[13] In re Plan, 70 A.3d at 573-74.
[14] See id. at 580.