Battle Over Governor’s Powers Underscores Importance of Upcoming Supreme Court Fight

With a partisan Senate fight looming over Gov. Chris Christie’s two latest Supreme Court nominees, the administration yesterday argued that it has the right to unilaterally abolish the Council on Affordable Housing -- and thus has the power to seize more than $140 million originally earmarked for low-cost housing to balance the state budget.

While oral arguments before the Supreme Court yesterday focused on narrow constitutional and legal issues pertaining to gubernatorial powers under the 40-year-old Reorganization Act, the case underscored the importance of the ongoing struggle between Christie and Senate President Stephen Sweeney (D-Gloucester) over the partisan makeup of the state’s highest court.

“If the administration wins this case, the governor would have the ability to abolish any independent agency from the Board of Public Utilities and the Election Law Enforcement Commission to the Public Defender’s Office, the Highlands Commission, and the Pinelands Commission,” said Adam Gordon, staff attorney for the Fair Housing Coalition.

“This would be an extension of the governor’s power that could make any independent agencies subject to the governor’s control, and that’s dangerous,” Gordon said, noting that any governor who controlled one house of the Legislature would not have to worry about a legislative override vote. “It would fundamentally change the way state government has functioned since 1947,” when the new state Constitution was adopted.

Whether this governor and future governors get that power is currently up to a New Jersey Supreme Court consisting of two Democrats, Chief Justice Stuart Rabner and Associate Justice Barry Albin; two Republicans, Associate Justices Anne Patterson and Helen Hoens; and one independent, Associate Justice Jaynee LaVecchia, whose political leanings are at the core of the Christie-Sweeney dispute.

By unwritten tradition since 1947, no more than four of the seven members of the Supreme Court can be from one party in order to ensure relative partisan balance. Christie insists that LaVecchia is an independent, but Sweeney counts her as a Republican because she served in high-level positions under two GOP governors.

Christie vowed to remake New Jersey’s Supreme Court, once one of the most activist, liberal courts in the nation, in his own conservative image. But the Democratic-controlled Senate rejected Christie’s efforts to nominate one Republican and one Republican-leaning independent last spring, charging that the governor was trying to “pack the court.”

Christie came in with two new nominees on December 10 -- Board of Public Utilities President Robert Hanna and Superior Court Judge David Baumann. Once again, one is a Republican and one is an independent, and the Senate has yet to schedule hearings on their nominations. Last week, an irate Christie stepped up the rhetoric in the Supreme Court fight by accusing Sweeney of “cowardice” and labeling the Senate’s inaction “reprehensible.”

As a result of the long Christie-Sweeney standoff, the Supreme Court once again had to designate two fill-in appeals court judges, Mary Catherine Cuff and Ariel Rodriguez, to sit in on the oral arguments in yesterday’s case.

Killing COAH

Ironically, yesterday’s case focused on the abolition of the Council on Affordable Housing, which was created as an independent agency “in but not of” the state Department of Community Affairs, to set regulations governing each municipality’s “fair share” of affordable housing under the guidelines set in the Supreme Court’s Mount Laurel housing rulings.

It was the Mount Laurel case law and the Abbott v. Burke cases that required large-scale state funding of public schools in 31 inner-city districts that infuriated Republicans and led them to call for the ouster of the late Chief Justice Robert Wilentz, a Democrat, when he came up for reappointment in the mid-1980s. Former Republican Gov. Tom Kean, who opposed the Mount Laurel rulings, pushed through Wilentz’s renomination in the interest of an independent judiciary.

It was Christie’s unprecedented refusal in 2010 to reappoint Associate Justice John Wallace, the only African-American on the court, because he disagreed with his liberal court votes that spawned what is now a three-year partisan battle over control of the court.

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