In the Matter of Governor Chris Christie's Appointment of Martin Perez as Public Member 7 of the Rutgers University Board of Governors ( 2014 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6047-12T3
APPROVED FOR PUBLICATION
IN THE MATTER OF GOVERNOR CHRIS July 29, 2014
CHRISTIE'S APPOINTMENT OF
MARTIN PEREZ AS PUBLIC MEMBER 7 APPELLATE DIVISION
OF THE RUTGERS UNIVERSITY
BOARD OF GOVERNORS.
_______________________________________
Argued May 12, 2014 – Decided July 29, 2014
Before Judges Yannotti, Ashrafi and Leone.
On appeal from an appointment of Governor
Chris Christie to the Rutgers University
Board of Governors.
Leon J. Sokol argued the cause for appellant
Stephen M. Sweeney, in his capacity as
Senate President (Sokol, Behot & Fiorenzo,
attorneys; Mr. Sokol, of counsel; Mr. Sokol
and Steven Siegel, on the brief).
David S. Frankel, Deputy Attorney General,
argued the cause for respondent Governor
Chris Christie (John J. Hoffman, Acting
Attorney General, attorney; Melissa H.
Raksa, Assistant Attorney General, of
counsel; Mr. Frankel, on the briefs).
The opinion of the court was delivered by
YANNOTTI, P.J.A.D.
Stephen M. Sweeney, in his capacity as Senate President,
appeals from Governor Chris Christie's appointment of Martin
Perez as a public member of the Rutgers University Board of
Governors. For the reasons that follow, we hold that the
Governor's appointment was a proper exercise of his authority
under N.J.S.A. 18A:65-14.
I.
The New Jersey Medical and Health Sciences Education
Restructuring Act (the "Act"), was enacted on June 28, 2012, and
signed by the Governor on August 22, 2012. L. 2012, c. 45,
codified as N.J.S.A. 18A:64M-1 to -43, and in other sections of
Title 18A. The Act restructured the higher education system in
New Jersey in order to improve the quality and increase the
efficiency of public educational services. N.J.S.A. 18A:64M-
2(k); N.J.S.A. 18A:64M-29. To accomplish those purposes, the Act
required that its provisions be liberally construed. N.J.S.A.
18A:64M-29. Among the many reforms implemented by the Act were
governance changes to Rutgers University. N.J.S.A. 18A:64M-2(q).
At issue here is L. 2012, c. 45, § 87, codified at N.J.S.A.
18A:65-14, which altered the composition of Rutgers' Board of
Governors. The statute provides:
The membership of the board of
governors shall be classified as follows and
consist of:
a. the president of the corporation,
serving as an ex officio non-voting member;
and
2 A-6047-12T3
b. 15 voting members,
i. seven of whom shall be appointed
by the Governor of the State, with the
advice and consent of the Senate, with one
of these members being a resident of Camden
County, and one of whom shall be appointed
by the Governor upon the recommendation of
the President of the Senate and the Speaker
of the General Assembly and who shall be a
resident of Essex County, and
ii. seven of whom shall be appointed
by the board of trustees, from among their
members, one of whom shall be a resident of
Essex County and one of whom shall be a
resident of Middlesex County, elected and
serving under the provisions of subsection
I.c. or I.d. of 18A:65-15.
The first additional appointments made
by the Governor pursuant to P.L.2012, c.45
(C.18A:64M-1 et al.), shall not require the
advice and consent of the Senate, but
thereafter such advice and consent shall be
required.
All members shall serve for terms of
six years[.]
[N.J.S.A. 18A:65-14.]
Section 87 amended subsection (b) of the statute, which
previously read:
11 voting members,
i. six of whom shall be appointed by
the Governor of the State, with the advice
and consent of the Senate, and
ii. five of whom shall be appointed by
the board of trustees, from among their
members elected and serving under the
3 A-6047-12T3
provisions of subsection I.c. or I.d. of
18A:65-15.
All members shall serve for terms of
six years[.]
[N.J.S.A. 18A:65-14 (L. 1967, c. 271,
§ 18A:65-14, eff. Jan. 11, 1968; amended by
L. 1994, c. 48, § 177, eff. July 1, 1994).]
Although the amendment suggests that the Governor appoints
seven members of the fifteen-member Board, the parties agree
that a close reading of subsection (b)(1) establishes that the
amendment actually increased the number of gubernatorial
appointments from six to eight, the seven specified appointees
plus one from Essex County upon the recommendation of the
legislative leaders.
The penultimate paragraph of the amended N.J.S.A. 18A:65-14
permits the Governor to make his "first additional appointments"
directly, without the advice and consent of the Senate. Section
153 of the Act provides that this provision and others shall
take effect on July 1, 2013, but allows administrative action to
be taken in advance of that date as may be necessary for
implementation of the legislation.
The Governor made his first direct appointment to the
expanded Board on December 19, 2012, when he appointed Perez, a
resident of Middlesex County, as Public Member 7. On May 13,
2013, the Governor nominated Camden County resident William M.
4 A-6047-12T3
Tambussi to an existing vacancy on the Board "with the advice
and consent of the Senate." The Governor made his second direct
appointment to the Board on July 15, 2013, when he appointed
Richard W. Roper, a resident of Essex County, who had been
recommended by the Senate President and the Speaker of the
Assembly. Perez was sworn in as a member of the Board on July
15, 2013.
On July 30, 2013, Senator Sweeney filed an application
before this court for leave to submit an emergent motion on
short notice challenging Perez's appointment. The application
was denied that same day. The Senator filed a notice of appeal
on August 13, 2013, along with a motion to stay the appointment.
In response, the Governor filed a cross-motion to dismiss the
appeal, arguing that the Senator lacked standing, this court
does not have jurisdiction in the matter, and the appeal was not
timely filed.1
We denied the Senator's motion for a stay, and reserved our
decision on the Governor's motion to dismiss. As we explain
herein, the Governor's motion will be denied.
1
We note that the Senator's notice of appeal indicated that he
was pursuing the matter in his individual capacity. The Senator
filed an amended notice of appeal on September 12, 2013, stating
that he was pursuing the matter in his official capacity as
Senate President.
5 A-6047-12T3
II.
We turn first to the Governor's contention that, because
the Senator is challenging Perez's right to hold office as a
member of the Board, his claim may only be asserted in an action
in lieu of prerogative writs brought in the Law Division
pursuant to N.J.S.A. 2A:66-6. We do not agree.
In New Jersey, prerogative writ actions have historically
been used by citizens to challenge actions of administrative
agencies. Alexander's Dep't Stores of N.J., Inc. v. Borough of
Paramus, 125 N.J. 100, 107 (1991).2 In order to streamline and
strengthen the prerogative writs practice, article VI, section
V, paragraph 4 of the 1947 New Jersey Constitution consolidated
the established prerogative writs into a single action which
"guaranteed a petitioner the same rights to appeal as were
provided by those writs." Alexander's, supra, 125 N.J. at 107.
Challenges to an individual's claim to public office had
historically been brought as an information in the nature of quo
warranto. See In re Fichner, 144 N.J. 459, 470 (1996) (noting
that unqualified officers may be removed under the writ of quo
2
"Prerogative writs" is the name, derived from English law,
given to certain writs issued by the courts, Black's Law
Dictionary 1182 (6th Ed. 1990). New Jersey traditionally
recognized the prerogative writs of certiorari, quo warranto,
prohibition, and mandamus. In Re LiVolsi, 85 N.J. 576, 593
(1981).
6 A-6047-12T3
warranto); Swede v. City of Cifton, 22 N.J. 303, 315-16 (1956)
(observing that under the former Constitution, "the right and
title to a public office was triable only by an information in
the nature of quo warranto").
In modern practice, the right to institute a proceeding in
lieu of the prerogative writ of quo warranto against any person
for unlawfully holding any office is embodied in N.J.S.A. 2A:66-
6. Pickett v. Harris, 219 N.J. Super. 253, 258 (App. Div. 1987),
appeal dismissed, 114 N.J. 471 (1989). A proceeding may be
brought under this statute if an office holder was not lawfully
elected, did not meet residency requirements, or did not possess
other qualifications of the office. Id. at 259.
On the other hand, the writ of certiorari was used to
"review the actions of inferior tribunals such as administrative
agencies." In re LiVolsi, supra, 85 N.J. at 594 n.18 (1981); Vas
v. Roberts, 418 N.J. Super. 509, 521 n.3 (App. Div. 2011). Thus,
a writ of certiorari involving state agency action corresponds
to the appeal presently allowed under Rule 2:2-3(a)(2). See D.J.
Miller & Assocs. v. State, Dep't of the Treasury, 356 N.J.
Super. 187, 192 (App. Div. 2002) (noting that appellate review
of administrative agency action under Rule 2:2-3(a)(2) is
essentially the substitute for the common law writ of
certiorari).
7 A-6047-12T3
Under the prior practice, when the administrative act
challenged was the appointment of a public official, the writs
of quo warranto and certiorari could both be implicated. This is
explained in Vanderbach v. Hudson County Board of Taxation, 133
N.J.L. 499, 500 (Sup. Ct. 1946), aff'd, 135 N.J.L. 349 (E. & A.
1947). There, the court affirmed a resolution of the Board of
Taxation that had suspended the board secretary for misconduct.
Id. at 512. The Governor removed the existing board members and
appointed an entirely new board. Id. at 500. The court observed:
The act of the governor in removing the old
and appointing the new board was not under
challenge at the time of the events herein
recounted nor, with the exception
hereinafter noted, has it since been. Had
the old members of the board chosen, while
still in possession, to dispute the legality
of the appointment of the new members
certiorari was available to them, Murphy v.
Freeholders of Hudson County, 92 N.J.L. 244
[E. & A. 1918]; and later, quo warranto,
Murphy v. Ellenstein, 119 N.J.L. 159 [Sup.
Ct. 1937].
[Ibid.]
Vanderbach thus indicates that the Governor's appointment
of Perez on December 19, 2012, was the sort of action that could
have been challengeable under the previously recognized writ of
certiorari. Vanderbach suggests that, after the challenged
official takes office, the procedural route to challenge the
official's possession of the office is by way of a quo warranto
8 A-6047-12T3
action. However, we are not convinced that the right to
challenge the appointment no longer existed once Perez took
office, particularly in view of the nature of the challenge
brought in this case.
As we understand it, the Senator's appeal is primarily
addressed to the Governor's action in appointing Perez without
the advice and consent of the Senate. In our view, that
challenge rests squarely within this court's jurisdiction under
Rule 2:2-3(a)(2). Therefore, we need not consider whether this
challenge also could have been brought under N.J.S.A. 2A:66-6.
We note that, although Rule 2:2-3(a)(2) does not expressly
mention the Governor, we have held that the rule encompasses
appeals from actions by the Governor because such actions are
those of a "state administrative agency or officer." Bullet
Hole, Inc. v. Dunbar, 335 N.J. Super. 562, 571-72 (App. Div.
2000). See also Vas, supra, 418 N.J. Super. at 519.
We therefore conclude that the Senator may maintain a
direct appeal under Rule 2:2-3(a)(2) to this court from the
Governor's action in appointing Perez to the Board.
III.
Next, the Governor argues that, if we determine that the
Senator may challenge the appointment in an appeal to this court
under Rule 2:2-3(a)(2), the appeal must be dismissed as having
9 A-6047-12T3
been filed beyond the time prescribed by Rule 2:4-1(b).
Rule 2:4-1(b) requires that an appeal from a final action
of a state administrative agency or officer be taken within
forty-five days from the date of notice of the action. Rule 2:4-
4(a) also permits the court to extend the time for appeal up to
thirty days for good cause shown. The time limitations
established by these rules are generally mandatory and
jurisdictional. Joseph L. Muscarelle, Inc. v. State, Dep't of
Transp., 175 N.J. Super. 384, 394 (App. Div. 1980), appeal
dismissed, 87 N.J. 321 (1981). Thus, if an appeal is filed
beyond the time limits established by the rules, the court
normally lacks jurisdiction over the matter and it must be
dismissed. Ibid.
The Governor contends that, because the Senator is
challenging the appointment made on December 19, 2012, his
appeal should have been filed by February 4, 2013, pursuant to
Rule 2:4-1(b), or at least by early March 2013, if the time to
appeal is extended for thirty days, as permitted by Rule 2:4-
4(a).
In response, the Senator argues that the appeal is timely
because Perez's appointment was not operative until July 1,
2013, the date when N.J.S.A. 18A:65-14 took effect. The Senator
also argues that even if the time for appeal began to run on
10 A-6047-12T3
December 19, 2012, when the appointment was made, the appeal
should be heard in the public interest.
We are convinced that the Governor's appointment of Perez
was final on December 19, 2012, even though the statute under
which the appointment was made did not take effect until July 1,
2013. It is well established that "'an appointment to a new
office to take effect on the establishment of such office may be
made before the law establishing such office goes into effect.'"
Pashman v. Friedbauer, 4 N.J. Super. 123, 127 (App. Div. 1949)
(quoting 46 C.J. § 64 (1928)).
Here, Senator Sweeney did not file a notice of appeal from
the appointment within the time prescribed by the court rules.
However, the Senator may have reasonably believed that the time
for appeal did not run because the Act had not taken effect, and
Perez had not been sworn into office. Under these circumstances,
it is appropriate to treat the notice of appeal as having been
filed as within time.
In addition, even if Senator Sweeney's appeal was untimely,
this is the rare case in which the public interest requires that
we exercise jurisdiction and decide the issue presented. The
courts have from time to time considered appeals, although not
timely filed, in which issues of genuine public importance have
been raised. See Jacobs v. N.J. State Highway Auth., 54 N.J.
11 A-6047-12T3
393, 396 (1969) (considering untimely challenge to Authority's
retirement policy for workers because of "the importance of the
public question involved"); In re Rodriguez, 423 N.J. Super.
440, 447 (App. Div. 2011) (declining to dismiss appeal as
untimely because it raised allegations of use of excessive force
by corrections officers); Rumana v. Cnty. of Passaic, 397 N.J.
Super. 157, 171 (App. Div. 2007) (noting our reluctance to
impose the time bar of Rule 2:4-1(b) "where the issues raised
involve significant questions of public interest").
The question of whether the Act empowers the Governor to
appoint Perez to the Board without the advice and consent of the
Senate is a matter of importance and interest to the Senate, the
University, the Board and the public generally. In addition, the
delay here was not excessive, and the Senator brought the appeal
within forty-five days of the effective date of the Act and
Perez's entry into office. We therefore conclude that the appeal
should not be dismissed as untimely.
IV.
The Governor further argues that Senator Sweeney does not
have standing to challenge Perez's appointment. He contends that
the Senator lacks a sufficient interest in the Board to support
an action challenging the appointment. He also argues that, as
an individual legislator, the Senator lacks standing to bring an
12 A-6047-12T3
action to protect the Senate's interest as a legislative body.
Again, we disagree.
"New Jersey has a broad definition of standing when it
comes to challenging governmental actions." Loigman v. Twp.
Comm. of Middletown, 297 N.J. Super. 287, 294 (App. Div. 1997).
New Jersey's liberal approach to standing is based in part on
the fact that our Constitution, unlike its federal counterpart,
contains no express language confining the exercise of judicial
power to actual cases and controversies. Crescent Park Tenants
Ass'n v. Realty Equities Corp. of N.Y., 58 N.J. 98, 107 (1971).
Nevertheless, New Jersey courts are reluctant to render
advisory opinions or function in the abstract, and have
"confined litigation to those situations where the litigant's
concern with the subject matter evidenced a sufficient stake and
real adverseness." Ibid. As we have explained, "[t]here must be
a substantial likelihood the plaintiff will experience some harm
if the court returns an unfavorable decision." Loigman, supra,
297 N.J. Super. at 295.
We are convinced that the Senate has a strong interest in
exercising its authority to advise and consent to gubernatorial
appointments, if such advice and consent is required by law. We
are also convinced that, as Senate President, Sweeney has
standing to bring this appeal to advance that interest.
13 A-6047-12T3
Recognition of the Senate President's standing in this
dispute is consistent with past practice. Indeed, the courts
have permitted the Senate President, the Speaker of the General
Assembly, or both, to participate in litigation challenging
actions by the Governor or the Legislature. Abbott v. Burke, 164
N.J. 84, 87 (2000) (allowing Speaker to intervene in appeal "out
of deference to the constitutional branches of government");
Karcher v. Kean, 97 N.J. 483, 487 (1984) (considering appeal
brought by the Senate President and Speaker challenging the
Governor's use of the line-item veto); In re Forsythe, 91 N.J.
141, 144 (1982) (allowing Speaker, the General Assembly, the
Senate President and the Senate to intervene to defend
redistricting statute); Gilbert v. Gladden, 87 N.J. 275, 278-79
(1981) (considering appeal brought by individual legislators
challenging practice of gubernatorial courtesy).
The Governor argues that Senator Sweeney should not be
permitted to represent the Senate's interest in this case
because the Senate did not adopt a resolution authorizing him to
do so. We note that in General Assembly of New Jersey v. Byrne,
90 N.J. 376, 381 (1982), the Legislature had passed a concurrent
resolution authorizing the Senate President and Assembly Speaker
to begin a legal action to enforce certain legislation. However,
such a resolution is not required to confer standing on the
14 A-6047-12T3
Senate President to further the Senate's institutional interests
through litigation.
We conclude that the Senator has standing to challenge the
Governor's appointment of Perez to the Board in his capacity as
Senate President.
V.
We turn to the merits of the appeal. The Senator argues
that the Governor's appointment of Perez as Public Member 7 of
the Board is contrary to the plain language of N.J.S.A. 18A:65-
14 and is therefore ultra vires and unlawful. He contends that
under the statute, the Governor could only appoint Public Member
7 without the advice and consent of the Senate if the person so
appointed is a resident of Camden County, which Perez is not.
The Senator maintains that, while the Governor nominated
Tambussi, a Camden County resident, to an existing vacancy on
the Board, this does not satisfy the requirement that the
Governor's appointees to the Board include a Camden County
resident. The Senator says the Camden County resident must be
one of the two persons appointed to the Board without advice and
consent of the Senate.
In response, the Governor contends that his appointment of
Perez is a proper exercise of the authority conferred upon him
in N.J.S.A. 18A:65-14. He maintains that the statute merely
15 A-6047-12T3
requires that two of his eight appointees to the Board include
one Camden County resident. He argues that, as long that
residency requirement is satisfied by one of his appointees of
the Board, he could select an individual for appointment for one
of the additional seats on the Board, without the Senate's
advice and consent, even though that person does not reside in
Camden County.
When interpreting a statute, our objective is "to discern
and implement the Legislature's intent." State v. Drury, 190
N.J. 197, 209 (2007); McCann v. Clerk of Jersey City, 167 N.J.
311, 320 (2001). To do so, we begin our analysis "with the words
of the statute because if the language is plain and its meaning
clear, the inquiry ends there." State v. Malik, 365 N.J. Super.
267, 274 (App. Div. 2003), certif. denied, 180 N.J. 354 (2004);
see also State, Dep't of Law & Pub. Safety v. Bigham, 119 N.J.
646, 650-51 (1990) (noting that "when a statute is clear on its
face, a court need not look beyond the statutory terms to
determine the legislative intent").
Furthermore, "the words and phrases in the statute must be
given their generally accepted and ordinary meaning, and must be
examined not only in their own contextual setting, but in
relation to surrounding provisions in the statutory scheme."
Malik, supra, 365 N.J. Super. at 275-76 (citations omitted);
16 A-6047-12T3
accord Body-Rite Repair Co. v. Dir., Div. of Taxation, 89 N.J.
540, 543 (1982). We may not "'rewrite a plainly-written
enactment' or engraft 'an additional qualification which the
Legislature pointedly omitted.'" Donelson v. DuPont Chambers
Works, 206 N.J. 243, 261 (2011) (quoting Mazzacano v. Estate of
Kinnerman, 197 N.J. 307, 323 (2009)).
As we stated previously, N.J.S.A. 18A:65-14, as amended,
expanded the Board from eleven to fifteen members, and increased
the number of gubernatorial appointees from six to eight. The
statute provides that the Governor shall appoint those members
with the advice and consent of the Senate. One of those eight
members must be a resident of Camden County, and one must be a
resident of Essex County, appointed upon the recommendation of
the Senate President and the Speaker of the General Assembly.
The statute further provides, however, that the Governor's
"first additional appointments" may be made without the advice
and consent of the Senate.
Thus, the residency requirements in N.J.S.A. 18A:65-14
apply generally to the eight Board members appointed by the
Governor. The term "first additional appointments" refers to the
two additional appointments permitted by the Act. The paragraph
granting the Governor the authority to make those two
appointments without the advice and consent of the Senate makes
17 A-6047-12T3
no reference to the aforementioned residency requirements. As
the Governor points out, the Legislature could have written the
statute to impose residency requirements for the "first
additional appointments" if that was its intention. However, the
Legislature imposed no such limitation.
In support of his argument, the Senator asserts that, by
referring to the Act in the paragraph pertaining to the "first
additional appointments," the Legislature expressed its intent
that the "first additional appointments" be for the two newly-
created, residency-linked seats. We are not convinced by this
argument. As we read the statute, the Legislature intended that
the Governor's eight appointees would include two members that
meet the prescribed residency requirements. The Legislature did
not expressly provide that "first additional appointments" meet
those residency requirements.
We are therefore convinced that the plain language of
N.J.S.A. 18A:65-14 supports the Governor's interpretation of the
statute. Since the Governor nominated a Camden County resident
to fill an existing vacancy on the Board, his appointment of
Perez to one of the additional two seats without the advice and
consent of the Senate was an appropriate exercise of the
authority conferred on him by the statute.
18 A-6047-12T3
Because the Legislature's intent can be discerned from the
plain language of the statute, we need not consider the
legislative history of N.J.S.A. 18A:65-14. We note, however,
that, if statutory language is ambiguous, we may turn to
extrinsic evidence as an aid to construction, including the
legislative history. DiProspero v. Penn, 183 N.J. 477, 492-93
(2005) (citing Cherry Hill Manor Assocs. v. Faugno, 182 N.J. 64,
75 (2004)); Burns v. Belafsky, 166 N.J. 466, 473 (2001). Indeed,
"[w]here available, the official legislative history and
legislative statements serve as valuable interpretive aids in
determining the Legislature's intent." Drury, supra, 190 N.J.
at 209 (internal quotation marks and citation omitted).
In support of his interpretation of the statute, the
Senator cites a legislative staff memorandum prepared by an
assistant counsel to the Senate Democratic Majority, and
distributed to all Democratic Senators on June 28, 2012, the day
that the legislation was passed. The eleven-page memorandum
summarized the changes that would be implemented under the Act.
Section 4(a) of the memorandum stated:
The Rutgers University Board of Governors
would be expanded from 11 members to 15.
The four new members of the Rutgers Board of
Governors would be:
i. One member appointed by the Governor
(who must reside in Camden County), the
initial appointment would be without
19 A-6047-12T3
the advice and consent of the Senate
but subsequent appointments would
require advice and consent.
ii. One member recommended to the Governor
by the Speaker and the Senate President
and appointed by the Governor, who must
reside in Essex County.
iii. Two members from the Board of Trustees:
one must reside in Essex County and one
must reside in Middlesex County.
The memo does not support the Senator's interpretation of
the statute. It sets forth the assistant counsel's
interpretation of the proposed law, but she is not a legislator.
Furthermore, even if the assistant counsel was a member of the
Legislature, "statements of individual legislators are not
generally considered to be a reliable guide to legislative
intent." State v. Yothers, 282 N.J. Super. 86, 104 (App. Div.
1995) (Skillman, J., dissenting) (citing W. Va. Univ. Hosps.,
Inc. v. Casey, 499 U.S. 83, 98-99, 111 S. Ct. 1138, 1147, 113 L.
Ed. 2d 68, 83 (1991)).
In addition, the memorandum apparently was only provided to
Senators of one political party, and not to members of the
General Assembly. Moreover, there is no indication that the
Senators who received the memo read its summary of the changes
to N.J.S.A. 18A:65-14, or that they concurred in the analysis.
The progression of the bill through the Senate provides
more insight into the Legislature's intent. Senate No. 2063 (the
20 A-6047-12T3
"Bill"), as introduced on June 7, 2012, amended N.J.S.A. 18A:65-
14(b)(i) to increase the members to be appointed by the Governor
from six to nine, "with the advice and consent of the Senate,
two of whom shall be from a northern county in the State." S.
2063 (as introduced by Senate, June 7, 2012). There was no
provision for the direct appointment of members by the Governor.
The Senate Budget and Appropriations Committee reprinted
the Bill on June 18, 2012, to again provide for the Governor's
appointment of nine members with the advice and consent of the
Senate, but deleted the requirement that two members be from a
northern county, and added the requirement that one member
"shall be appointed jointly by the President of the Senate and
the Speaker of the General Assembly and who shall be a resident
of Essex County." S. 2063 (as reported by the S. Budget and
Appropriations Comm., June 18, 2012). The June 18, 2012, reprint
of the Bill also added the provision that the "first additional
appointments" made by the Governor would not require the advice
and consent of the Senate. Ibid.
The Senate reprinted the Bill on June 21, 2012, reducing
the number of gubernatorial appointments to eight: "seven of
whom shall be appointed by the Governor of the State with the
advice and consent of the Senate, and one of whom shall be
appointed jointly by the President of the Senate and the Speaker
21 A-6047-12T3
of the General Assembly and who shall be a resident of Essex
County." S. 2063 (as amended by the Senate, June 21, 2012). The
Bill retained the provision allowing the Governor to make the
"first additional appointments" without the advice and consent
of the Senate. Ibid.
The final reprint of the Bill was introduced on June 28,
2012. It altered the wording of subsection (i) to provide for
the appointment of seven members with the advice and consent of
the Senate, and one member, who is a resident of Essex County,
to be appointed by the Governor upon the recommendation of the
President of the Senate and the Speaker of the General Assembly.
S. 2063 (as amended by the Senate, June 28, 2012).
For the first time, subsection (i) required that "one of
these members" be a resident of Camden County. Ibid. The final
reprint retained the provision allowing the Governor to make the
first additional appointments without the advice and consent of
the Senate, unchanged from the June 18, 2012, and June 21, 2012,
versions. Ibid.
The legislative history of the Bill thus shows that there
was never a link between the Camden County residency requirement
and the Governor's authority to make the first additional
appointments without the advice and consent of the Senate.
Rather, the grant of authority to directly appoint members
22 A-6047-12T3
pertained simply to the additional appointments allotted to the
Governor above the original six, and remained unchanged as the
number of additional members, geographical requirements and
other language was altered.
In his reply brief, the Senator argues that Tambussi's
nomination to the Board does not satisfy the requirement that at
least one Board member reside in Camden County, because
Tambussi's nomination was never acted upon by the Senate, and in
fact, expired. We note that Tambussi was again nominated in the
current legislative session and his nomination was referred to
the Senate Judiciary Committee.
In any event, as we have explained, the statute requires that
one of the Governor's appointees be a resident of Camden County,
and another a resident of Essex County, appointed upon the
recommendation of the Senate President and the Assembly Speaker.
N.J.S.A. 18A:65-14(b)(i). The Governor nominated a resident of
Camden County to one of the vacant seats on the Board.
If the Senate does not give its advice and consent to
Tambussi's nomination, one of the Governor's other nominees to
the Board would have to be a Camden County resident. This does
not, however, preclude the Governor from directly appointing
Perez as a member of the Board, without the Senate's advice and
consent.
23 A-6047-12T3
We therefore conclude that the Governor's appointment of
Perez to the Board, without the advice and consent of the
Senate, was a lawful exercise of the authority conferred upon
him by N.J.S.A. 18A:65-14.
Affirmed.
24 A-6047-12T3