In the Matter of the Appointment of the Council on Affordable Housing by Governor Philip Murphy ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0050-22
IN THE MATTER OF THE
APPOINTMENT OF THE APPROVED FOR PUBLICATION
COUNCIL ON AFFORDABLE January 23, 2024
HOUSING BY GOVERNOR APPELLATE DIVISION
PHILIP MURPHY.
___________________________
Argued December 12, 2023 – Decided January 23, 2024
Before Judges Sumners, Rose and Smith.
On appeal from the inaction of the Council on
Affordable Housing.
Jeffrey R. Surenian argued the cause for appellants
Borough of Beach Haven (Ocean County), Township of
Bordentown (Burlington County), Township of
Chatham (Morris County), Township of Cranford
(Union County), Township of East Hanover (Morris
County), Township of Egg Harbor (Atlantic County),
Township of Fairfield (Essex County), Township of
Freehold (Monmouth County), Township of Jackson
(Ocean County), Township of Mahwah (Bergen
County), Borough of Montvale (Bergen County),
Township of Readington (Hunterdon County), Borough
of Sayreville (Middlesex County), Township of West
Caldwell (Essex County), Borough of Franklin Lakes
(Bergen County), Township of Hillsborough (Somerset
County), and Township of Warren (Somerset County)
(Surenian, Edwards, Buzak & Nolan, LLC, attorneys;
Jeffrey R. Surenian and Michael J. Edwards, of counsel
and on the briefs; William Edward Olson, on the
briefs).
Michael L. Zuckerman, Deputy Solicitor General,
argued the cause for respondent Philip Murphy, in his
official capacity as Governor of New Jersey (Matthew
J. Platkin, Attorney General, attorney; Jeremy M.
Feigenbaum, Solicitor General, Michael L. Zuckerman,
and Melissa Dutton Schaffer, Assistant Attorney
General, of counsel; Susan Marie Scott, Tim Sheehan,
and Levi Malcolm Klinger-Christiansen, Deputy
Attorneys General, on the brief).
Adam M. Gordon argued the cause for amicus curiae
Fair Share Housing Center (Adam M. Gordon, of
counsel and on the brief; Zoey Chenitz, on the brief).
Frank Glenn Marshall, Jr., Associate General Counsel,
argued the cause for amicus curiae New Jersey State
League of Municipalities and New Jersey Institute of
Local Government Attorneys (William J. Kearns, Jr.,
General Counsel, attorney; Frank Glenn Marshall, Jr.,
on the brief).
Thomas F. Collins, Jr., argued the cause for amicus
curiae Township of South Brunswick and Township of
South Brunswick Planning Board (Vogel, Chait,
Collins & Schneider, attorneys; Thomas F. Collins, Jr.,
and Thomas James Molica, on the brief).
Jonathan Edward Drill argued the cause for amicus
curiae Borough of Chatham (Morris County),
Township of Clinton (Hunterdon County), Township of
Greenwich (Warren County), Borough of Lebanon
(Hunterdon County), Borough of Saddle River (Bergen
County), and Town of Westfield (Union County)
(Stickel, Koenig, Sullivan & Drill, LLC, attorneys;
Jonathan Edward Drill, on the brief).
The opinion of the court was delivered by
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ROSE, J.A.D.
This appeal requires us to consider whether the Governor can be
compelled by mandamus to act on an appointment power when the statute at
issue neither expressly requires, nor provides a deadline for, the exercise of that
discretionary function. Seventeen municipalities challenge the Governor's
inaction, demanding he fill long-standing vacancies on the Council on
Affordable Housing (COAH). Contending the Fair Housing Act (FHA),
N.J.S.A. 52:27D-301 to -329.20, mandates the chief of the executive branch to
fill those appointments, appellants argue Governor Murphy's inaction violates
that obligation and undermines the public policy reflected in the FHA.
Appellants claim this court can and must enforce the Governor's obligation to
appoint members to COAH. Appellants also assert the Governor's inaction
violates the Chief Executive's constitutional duty to "take care that the laws be
faithfully executed." See N.J. Const., art. V, § I, ¶ 11. Finally, appellants claim
the Governor effectively and inappropriately abolished COAH in contravention
of our Supreme Court's decision in In re Plan for the Abolition of the Council
on Affordable Housing, 214 N.J. 444, 471 (2013) (Abolition of COAH).
Governor Murphy counters this court cannot compel the Chief Executive
to make appointments because mandamus – the relief appellants seek – cannot
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be applied against the Governor, generally. In particular, the Governor argues
"New Jersey courts have long held that they lack jurisdiction to issue a writ of
mandamus compelling the Chief Executive to act." Further, even if mandamus
were applicable to the Governor, the remedy is unavailable here because
appellants seek to compel an exercise of discretion. Finally, Governor Murphy
contends "a Governor's decision regarding when and whether to make
appointments is a classic type of nonjusticiable question that courts have
consistently avoided" under separation-of-powers principles, specifically, the
political question doctrine.
Having considered the parties' arguments in view of long-established legal
principles, we hold the Governor cannot be compelled by mandamus to fill
COAH's vacancies. Accordingly, we reject appellants' contentions and dismiss
the appeal.
I.
A. COAH's History and Framework
We begin by setting forth COAH's history and framework in some detail
to give context to the issues raised on appeal. COAH's origin is rooted in our
Supreme Court's landmark decision in Southern Burlington County NAACP v.
Township of Mount Laurel, 67 N.J. 151, 174 (1975) (Mount Laurel I), which
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held developing municipalities are under a constitutional obligation to provide
a realistic opportunity for the creation of affordable housing. Eight years later,
the Court clarified and reaffirmed that constitutional requirement in Southern
Burlington County NAACP v. Township of Mount Laurel, 92 N.J. 158, 351-52
(1983) (Mount Laurel II).
Finding "widespread non-compliance with" Mount Laurel I, id. at 199,
and acknowledging the Legislature had thus far failed to act to protect "the
interests involved," id. at 212, the Court in Mount Laurel II created a judicial
remedy to enforce the constitutional zoning obligations of municipalities. Id. at
289-91. Specifically, the Court fashioned a special litigation track for
exclusionary zoning cases and expanded "builder's remedies" enabling them to
sue for the opportunity to construct housing at higher densities than a
municipality would permit. Id. at 279-81, 287-93. The Court, however,
expressed its long-standing preference for legislative rather than "judicial action
in this field." Id. at 212.
Two years later, in 1985, the Legislature responded to Mount Laurel II by
"enact[ing] the FHA, which created COAH and vested primary responsibility
for assigning and determining municipal affordable housing obligations in that
body." In re Adoption of N.J.A.C. 5:96 & 5:97, 221 N.J. 1, 7 (2015) (Mount
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Laurel IV) (citing N.J.S.A. 52:27D-305, -307). In the "Findings" section of the
FHA, the Legislature expressly recognized the Court's statements in Mount
Laurel II that addressing the Mount Laurel obligation was "'better left to the
Legislature' . . . and that the judicial role in upholding the Mount Laurel doctrine
'could decrease as a result of legislative and executive action.'" N.J.S.A.
52:27D-302(b).
Pursuant to the FHA, COAH was "established in, but not of, the
Department of Community Affairs [(DCA)] and [COAH] . . . to consist of 12
members appointed by the Governor with the advice and consent of the Senate."
N.J.S.A. 52:27D-305(a). Membership must be balanced to represent various
constituencies, with no political party enjoying a majority presence. Ibid. The
FHA also required the Governor nominate members within thirty days of the
act's effective date. N.J.S.A. 52:27D-305(d). Generally, members serve six-
year terms "until their respective successors are appointed and shall have
qualified," with terms staggered via varying term lengths designated for the
initial batch of appointees. N.J.S.A. 52:27D-305(b). Of particular relevance to
this appeal: "Vacancies shall be filled in the same manner as the original
appointments, but for the remainders of the unexpired terms only." Ibid.A-0050-22
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By structuring COAH in this manner, the Legislature intended the Council
"to be independent." Abolition of COAH, 214 N.J. at 471. "Although the
Governor has the power to appoint the Council's members," our Supreme Court
has explained "the membership requirements in the statute ensure that a cross-
section of community and State interests serve on the Council, with individual
members representing different voices: local government, households in need
of low- and moderate-income housing, nonprofit builders of affordable housing,
the disabled, for-profit builders, and the public interest." Ibid. Moreover,
"[m]embers serve staggered six-year terms that do not coincide with
gubernatorial terms." Ibid. (citing N.J.S.A. 57:27D-305(b)).
The FHA required COAH "to enact regulations that establish, and
thereafter update, statewide affordable housing need; to assign to each
municipality an affordable housing obligation for its designated region; and to
identify the delivery techniques available to municipalities in addressing the
assigned obligation." Mount Laurel IV, 221 N.J. at 7 (citing N.J.S.A. 52:27D-
307, -308). "The FHA also transferred pending Mount Laurel litigation to
COAH for resolution through an administrative process." Id. at 8. Under the
act, municipalities are permitted to voluntarily submit their fair share housing
plans to COAH for review. N.J.S.A. 52:27D-309(a).
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Shortly after the FHA's enactment, the Supreme Court commended the
"unprecedented willingness by the Governor and the Legislature to face the
Mount Laurel issue" in response to the Court's "unprecedented decisions." Hills
Dev. Co. v. Bernards, 103 N.J. 1, 23 (1986) (Mount Laurel III). Reiterating its
view "that the vindication of the Mount Laurel constitutional obligation is best
left to the Legislature," the Court noted the enactment of the FHA constituted
the "[l]egislative action," which it had requested in Mount Laurel II. Id. at 46-
47.
"COAH adopted rules to govern its first and second housing cycles, but
when the Second Round rules expired in 1999, COAH had not proposed new
regulations for the third housing cycle." In re Declaratory Judgment Actions
Filed by Various Muns., Cnty. of Ocean, 227 N.J. 508, 514 (2017) (Mount
Laurel V). COAH finally adopted Third Round rules in late 2004, a "dramatic
and inexplicable" delay that "frustrated" "[t]he public policies underlying the
FHA and the Mount Laurel cases." In re Six Month Extension of N.J.A.C. 5:91-
1 et seq., 372 N.J. Super. 61, 95-96 (App. Div. 2004). However, "reviewing
courts found several key aspects of the regulations to be invalid and violative of
the Mount Laurel doctrine," Mount Laurel V, 227 N.J. at 514-15, and partially
invalidated the regulations first in 2007 and again in 2010 after COAH adopted
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revised Third Round rules in 2008. Ibid.; In re Adoption of N.J.A.C. 5:94 &
5:95, 390 N.J. Super. 1, 86-87 (App. Div.), certif. denied, 192 N.J. 71 (2007);
In re Adoption of N.J.A.C. 5:96 & 5:97, 416 N.J. Super. 462, 477, 511-12 (App.
Div. 2010), aff'd as modified, 215 N.J. 578 (2013).
In 2010, the Senate passed a bill that would have "abolish[ed] COAH and
transfer[red] many of its responsibilities to the [DCA]." In re Adoption of
N.J.A.C. 5:96 & 5:97, 416 N.J. Super. at 477. After approving various
amendments, the Legislature passed a revised version of the bill. See Abolition
of COAH, 214 N.J. at 452. Then-Governor Chris Christie conditionally vetoed
the bill, outlining specific objections and requesting amendment to a version
previously passed by the Senate. Ibid. Shortly thereafter, the bill was
withdrawn from consideration in the Legislature, and legislative attempts to
reform affordable housing policy and abolish COAH effectively ended. Id. at
452-53.
The following year, Governor Christie issued Reorganization Plan No.
001-2011 which would have abolished COAH and "transferred COAH's powers,
functions, and duties to DCA and replaced the twelve-member Council with the
DCA Commissioner." Id. at 453. "The Governor relied on the [Executive
Reorganization Act of 1969, N.J.S.A. 52:14C-1 to -11 (Reorganization Act)] to
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authorize this action." Ibid. This court thereafter invalidated the plan following
The Fair Share Housing Center's (FSHC) ensuing appeal. Id. at 453-54 (citing
In re Plan for Abolition of Council on Affordable Hous., 424 N.J. Super. 410(App. Div. 2012)).
On certification, our Supreme Court affirmed our decision holding the
Reorganization Act only authorizes the Governor to reorganize entities that are
"of the executive branch." Id. at 454, (quoting N.J.S.A. 52:14C-3(a)). COAH,
an independent agency as denoted by its establishment "in, but not of," the DCA,
was "not 'of' the Executive Branch," and therefore "not subject to the
[Reorganization] Act." Id. at 468 (quoting N.J.S.A. 52:27D-305(a)). Notably,
COAH's status and whether the Council fell within the scope of the
Reorganization Act was the only issue before the Court. Id. at 448-49.
The Court in Abolition of COAH found further support for COAH's
independent design in its structure which included the membership
requirements. Id. at 471. "The law, thus, does not give the Chief Executive
plenary power over the operation of the Council. The current statute reflects
careful judgments about who should make decisions on affordable housing
policy and how those decisions are to be reached." Ibid. However, the Court's
decision only concerned the applicability of the Reorganization Act: "The plain
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language of the Reorganization Act does not authorize the Chief Executive to
abolish an independent agency like COAH. If the Governor and the Legislature
wish to abolish COAH, they must take another path." Id. at 479.
No other path was taken. COAH ultimately failed to adopt Third Round
rules. In 2015, the Supreme Court "responded to years of delay and uncertainty
with Mount Laurel IV, reaffirming the constitutional obligation to create a
realistic opportunity for the provision of affordable housing" and "declar[ing]
COAH defunct." Mount Laurel V, 227 N.J. at 515 (citing Mount Laurel IV, 221
N.J. at 3-4). The Court eliminated the FHA's exhaustion-of-administrative-
remedies requirement, explaining the requirement "[wa]s premised on the
existence of a functioning agency, not a moribund one." Mount Laurel IV, 221
N.J. at 5.
The Court in Mount Laurel IV thus recognized affordable housing
disputes could proceed in a judicial forum. Id. at 5. However, the Court did not
foreclose "either COAH or the Legislature from taking steps to restore a viable
administrative remedy that towns can use in satisfaction of their constitutional
obligation." Id. at 34. The Court therefore was "hope[ful] that an administrative
remedy w[ould] again become an option for those proactive municipalities that
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wish to use such means to obtain a determination of their housing obligations."
Ibid.In Mount Laurel V, 227 N.J. at 531, the Court reiterated that COAH could
be "resurrect[ed] and operate constitutionally" in the future. It also recognized
the possibility of "alternative methods," and "welcome[d] legislative attention
to this important social and economic constitutional matter." Ibid. In the
meantime, however, judicial oversight of municipal affordable housing
obligations continues.
B. The Present Appeal
Contending "the COAH Board ceases to exist" as a direct consequence of
the Governor's failure to fill its vacancies "for at least six years," on June 10,
2022, ten municipalities 1 sent a letter to Governor Murphy, demanding he
"fulfill [his] duty under the FHA to appoint members to the COAH Board so that
the FHA operates as the Legislature designed it." Citing the Court's decision in
Abolition of COAH, the municipalities asserted the Governor's inaction
1
Township of Bordentown (Burlington County), Township of Chatham (Morris
County), Township of Cranford (Union County), Township of East Hanover
(Morris County), Township of Egg Harbor (Atlantic County), Township of
Freehold (Monmouth County), Township of Mahwah (Bergen County), Borough
of Montvale (Bergen County), Township of Readington (Hunterdon County),
and Borough of Sayreville (Middlesex County).
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effectively abolished COAH. The municipalities further claimed they would
"seek relief from the [c]ourts" if the Governor failed to make the appointments
within thirty days. In a second letter dated June 17, 2022, the municipalities
reiterated their demands and clarified that they sought both a "commitment to
appoint members . . . within 30 days of receipt of the letter on June 15, 2022,"
and actual appointments by August 15, 2022.
The Governor took no action. Accordingly, the municipalities appealed
from a purported "decision entered on 06/15/2022."2 After the appeal was filed,
we granted the motions of four groups to appear as amici curiae: (1) FSHC; (2)
a municipal group, comprised of six municipalities; 3 (3) the Township of South
Brunswick and its planning board; and (4) the New Jersey State League of
Municipalities and the New Jersey Institute of Local Government Attorney s.
2
Seven additional municipalities thereafter joined this appeal: Borough of
Beach Haven (Ocean County), Township of Fairfield (Essex County), Township
of Jackson (Ocean County), Township of West Caldwell (Essex County),
Township of Hillsborough (Somerset County), Township of Warren (Somerset
County), and Borough of Franklin Lakes (Bergen County).
3
Borough of Chatham (Morris County), Township of Clinton (Hunterdon
County), Township of Greenwich (Warren County), Borough of Lebanon
(Hunterdon County), Borough of Saddle River (Bergen County), and Town of
Westfield (Union County).
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FSHC urges us to deny appellants' application; the remaining groups support the
appeal.
II.
A. Appellate Jurisdiction
At issue in this appeal is the Governor's "inaction" for failing to fill
COAH's vacancies. As a preliminary matter, we agree with appellants that this
court has jurisdiction "to review the Governor's actions and inactions" pursuant
to Rule 2:2-3(a)(2). Although the Governor contends New Jersey courts "lack
jurisdiction to issue a writ of mandamus compelling the Chief Executive to act,"
he does not dispute that the present matter was properly filed in this court.
Rule 2:2-3(a)(2) provides, in pertinent part, "appeals may be taken to the
Appellate Division as of right . . . (2) to review final decisions or actions of any
state administrative agency or officer, and to review the validity of any rule
promulgated by such agency or officer." As we have held, this court has
jurisdiction over agency action and inaction. Caporusso v. N.J. Dep't of Health
& Senior Servs., 434 N.J. Super. 88, 101 (App. Div. 2014) (quoting Pressler &
Verniero, Current N.J. Court Rules, cmt. 3.1 on R. 2:2-3(a)(2) (2014)); see also
Twp. of Neptune v. N.J. Dep't of Env't. Prot., 425 N.J. Super. 422, 432 (App.
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Div. 2012). We also have assumed jurisdiction of appeals from actions of the
Governor. Vas v. Roberts, 418 N.J. Super. 509, 519 (App. Div. 2011).
B. Interpretation of the Statute Establishing COAH, N.J.S.A. 52:27D-305
We next address appellants' contention that the Governor's initial
appointment of COAH members under N.J.S.A. 52:27D-305 applies with full
force and effect to the Governor's "obligation" to fill the Council's vacancies.
Because this argument presents a question of statutory interpretation, we must,
of course, "effectuate the intent of the Legislature, as evidenced by the plain
language of the statute, its legislative history and underlying policy, and
concepts of reasonableness." State v. Courtney, 243 N.J. 77, 85 (2020). A
"statute's plain language 'is the "best indicator" of legislative intent.'" Ibid.(quoting State v. Rodriguez, 238 N.J. 105, 113 (2019)).
The Legislature's words and phrases must be construed within the context
of "related provisions so as to give sense to the legislation as a whole" and given
their "generally accepted meaning," unless that meaning is "inconsistent with
the manifest intent of the Legislature." Ibid. (first quoting Spade v. Select
Comfort Corp., 232 N.J. 504, 515 (2018); and then quoting N.J.S.A. 1:1-1). "If
the plain language leads to a clear and unambiguous result, then our
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interpretative process is over." Courtney, 243 N.J. at 86 (quoting Johnson v.
Roselle EZ Quick LLC, 226 N.J. 370, 386 (2016)).
Paragraph (a) of N.J.S.A. 52:27D-305 plainly established COAH and the
Governor's role in the nomination process: "There is established in, but not of,
the [DCA] a Council on Affordable Housing to consist of 12 members appointed
by the Governor with the advice and consent of the Senate." The same paragraph
prescribes, at length, the Legislature's mandate that COAH's members be
diverse:
[F]our [members] shall be elected officials representing
the interests of local government, at least one of whom
shall be representative of an urban municipality having
a population in excess of 40,000 persons and a
population density in excess of 3,000 persons per
square mile, at least one of whom shall be
representative of a municipality having a population of
40,000 persons or less and a population density of 3,000
persons per square mile or less, and no more than one
of whom may be a representative of the interests of
county government; four shall represent the interests of
households in need of low and moderate housing, one
of whom shall represent the interests of the nonprofit
builders of low and moderate income housing, and shall
have an expertise in land use practices and housing
issues, one of whom shall be the Commissioner of
Community Affairs, ex officio, or his or her designee,
who shall serve as chairperson, one of whom shall be
the executive director of the agency, serving ex officio;
and one of whom shall represent the interests of
disabled persons and have expertise in construction
accessible to disabled persons; one shall represent the
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interests of the for-profit builders of market rate homes,
and shall have an expertise in land use practices and
housing issues; and three shall represent the public
interest. Not more than six of the 12 shall be members
of the same political party. The membership shall be
balanced to the greatest extent practicable among the
various housing regions of the State.
[N.J.S.A. 52:27D-305(a).]
Pursuant to the plain terms of N.J.S.A. 52:27D-305(d), the Governor was
required to nominate the initial COAH members within a specific time frame:
"The Governor shall nominate the members within 30 days of the effective date
of this act." See Aponte-Correa v. Allstate Ins. Co., 162 N.J. 318, 325 (2000)
(stating "the word 'shall' generally is mandatory"). No such temporal mandate
applies to the filling of vacancies.
Instead, paragraph (b) of the statute provides, in pertinent part:
"Vacancies shall be filled in the same manner as the original appointments, but
for the remainders of the unexpired terms only." N.J.S.A. 52:27D-305(b).
Appellants claim the "same manner as the original appointments" language
requires the Governor fill COAH vacancies – and seemingly suggest in their
June 2022 demand letters – that the vacancies must be filled within thirty days
of those openings. We disagree.
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In Meredith v. Mercer County Board of Chosen Freeholders, the trial court
concluded a substantially similar phrase, "[a]ny vacancy . . . shall be filled in
the same manner as the original appointment" in the statute at issue in that case,
N.J.S.A. 19:32-26, "refer[red] back to the manner in which an appointment to
such a position 'shall be filled by some suitable person who shall be nominated
by the Governor with the advice and consent of the Senate.'" 117 N.J. Super.
379, 383, 391 (Law Div. 1970). We "affirmed essentially for the reasons set
forth in the [trial court's] opinion," 117 N.J. Super. 368, 368 (App. Div. 1971),
and the Court affirmed our judgment "for the reasons expressed in [the] majority
opinion . . . in accordance with the trial court opinion," 59 N.J. 530, 530 (1971).
Similarly, here, we discern no reason to conclude the "same manner as the
original appointments" set forth in the vacancy provision, N.J.S.A. 52:27D-
305(b), mandates the Governor make appointments beyond the initial COAH
membership.
Needless to say, however, we cannot conclude when the Legislature
created COAH it intended the Council would become entirely non-functional
because of the lack of appointments. Instead, the Legislature likely envisioned
the Governor would make new appointments after the end of each COAH
member's term to preserve staggered terms. In that sense, the Governor's
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inaction is patently inconsistent with the FHA's legislative goal in creating
COAH.
Nonetheless, the Legislature's expectation that the Governor would make
appointments to COAH is not equivalent to an intention to obligate the Chief
Executive to do so. The Legislature may not have thought a mandate was
appropriate or necessary. Indeed, Governors generally need not be compelled
to make appointments or exercise a political power that permits them to lawfully
further their policy goals. But we need not speculate about the Legislature's
intentions, nor can we rewrite the legislation. See In re R.K., 475 N.J. Super.
535, 543 (App. Div. 2023) (holding courts neither "rewrite a plainly-written
enactment of the Legislature nor presume that the Legislature intended
something other than that expressed by way of the plain language" (quoting State
v. Frye, 217 N.J. 566, 575 (2014))). Absent express language in the statute
compelling the Governor to make successor appointments to COAH, we discern
no reason to construe the statute otherwise. See, e.g., Courtney, 243 N.J. at 85.
C. Applicability of Mandamus to the Governor's Inaction
Assuming, however, the FHA not only empowers but also obligates the
Governor to make appointments to COAH, there remains the main point of
dispute between the parties: whether that obligation is judicially enforceable.
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Well-established principles guide our review. As our Supreme Court has
reiterated:
A writ of mandamus is an order given by a court to a
government official "that commands the performance
of a specific ministerial act or duty, or compels the
exercise of a discretionary function, but does not seek
to interfere with or control the mode and manner of its
exercise or to influence or direct a particular result."
Switz v. Middletown Township, 23 N.J. 580, 598
(1957). Mandamus is a well-established remedy for
"official inaction." Joseph v. Passaic Hosp. Ass'n, 26
N.J. 557, 571 (1958).
[In re Resol. of State Comm'n of Investigation, 108 N.J.
35, 45 n.7 (1987).]
"Thus, mandamus is an appropriate remedy '(1) to compel specific action
when the duty is ministerial and wholly free from doubt, and (2) to compel the
exercise of discretion, but not in a specific manner.'" Vas, 418 N.J. Super. at
522 (quoting Loigman v. Twp. Comm. of Middletown, 297 N.J. Super. 287, 299
(App. Div. 1997)). A duty is "ministerial" if it is "absolutely certain and
imperative, involving merely the execution of a set task, and when the law which
imposes it prescribes and defines the time, mode and occasion of its performance
with such certainty that nothing remains for judgment or discretion." Ibid.(quoting Ivy Hill Park Apartments v. N.J. Prop. Liab. Ins. Guar. Ass'n, 221 N.J.
Super. 131, 140 (App. Div. 1987)).
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Commencing in 1856 with State v. Governor, 25 N.J.L. 331, 349-50 (Sup.
Ct. 1856), New Jersey courts have repeatedly held mandamus may not issue
against the Governor. In that case, a party claiming he had been elected
surrogate of Passaic County sought to compel the Governor issue him the
commission for the position. Id. at 343. The court rejected his claim on the
merits, id. at 344-45, and the "ground that th[e] court ha[d] no power to award
a mandamus, either to compel the execution of any duty enjoined on the
executive by the constitution, or to direct the manner of its performance," id. at
349.
The court explained "[t]he exercise of such power would be an
unwarrantable interference with the action of the executive within his
appropriate sphere of duty" because "[t]he issuing of the commission under the
constitution of this state is clearly an exercise of political power." Id. at 349-
50. "In regard to any other executive duty prescribed by the constitution," the
court said, "it has never been pretended that the judiciary has the power to
enforce its execution, or to direct the manner of its performance." Id. at 350.
The court also clarified that, with respect to the Governor, the distinction
between ministerial duties and discretionary functions did not apply, and courts
could compel neither. Id. at 351.
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Decades later in Cole v. Corio, 105 N.J.L. 511, 512 (Sup. Ct. 1929), the
Supreme Court considered a challenge to a statute providing that "the
[G]overnor [wa]s authorized and empowered to appoint by and with the advice
and consent of the [S]enate an additional judge of the Court of Common Pleas."
The statute was challenged, in part, on the ground that by allowing the Governor
to determine whether an additional judge would be appointed, it unlawfully
delegated the Legislature's discretionary power to the Executive. Id. at 513. The
Court rejected this argument, reasoning "it is somewhat immaterial whether the
statute be permissive or mandatory, as the [G]overnor cannot be compelled by
mandamus to appoint if he refuse to do so." Ibid.
Stated another way, even if a statute mandates the Governor make an
appointment, that obligation cannot be enforced by the Judiciary. Ibid.
Pertinent to this appeal, the Court discerned no "practical" difference between a
statute permitting the Governor to make an appointment and one requiring the
Governor to do so. Ibid.
Thereafter, the Chancery Division addressed the Governor's appointment
powers in a lawsuit initiated by the county bar association against the Governor
and Senate, seeking to compel the appointment of judges to remedy the long-
standing, "disproportionately large number of judicial vacancies in Passaic
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County." Passaic Cnty. Bar Ass'n v. Hughes, 108 N.J. Super. 161, 163 (Ch. Div.
1969). Relevant here, the judge found several reasons for denying the relief
sought against the Governor, including that a writ of mandamus cannot issue
against the Chief Executive. Id. at 174. Citing State v. Governor, the judge was
convinced an even "stronger case for the denial of relief" existed in the matter
before him than that "leading decision" on mandamus because "an exercise of
the appointing power [is] highly discretionary." Id. at 174-75.
Notwithstanding the principles set forth in State v. Governor, as reiterated
in Cole and Passaic County Bar Association, appellants argue all three cases are
inapposite to their statutory argument because they "involve[d] the Governor's
constitutional obligations." We are not persuaded.
For example, appellants' reliance on the court's decision in Driscoll v.
Sakin (Driscoll I), 121 N.J.L. 225 (Sup. Ct. 1938), aff'd 122 N.J.L. 414 (E. & A.
1939), is misplaced. In Driscoll I, the court ordered the defendant ousted from
the county board of election because he was appointed by the Governor without
the statutorily required nomination of his party's state chairman. Id. at 227-29.
The court acknowledged it could not "compel the execution of any duty imposed
by the constitution," but noted the defendant was not "appointed pursuant to the
constitution." Id. at 227. The court elaborated:
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It, therefore, seems settled that where the
constitution of this state is silent the [L]egislature may
determine the manner in which a public official may be
named, and may delegate the selection to others and
that the executive may be clothed with no discretion in
the issuance of the commission. Nor do we see any
encroachment upon the authority of the executive. The
executive never had a constitutional power to appoint
members of county boards of election. The county
boards were created by the [L]egislature which
provided in plain words the manner of their selection.
This court, in declaring the defendant to have been
commissioned not in accordance with the mandates of
the [L]egislature, is not in any sense supervising or
interfering with the transaction.
[Id. at 228-29.]
Appellants construe Driscoll I as demonstrating "a dispositive distinction
between executive appointments prescribed in the Constitution and
appointments that only arise from a delegation of Legislative authority." And
in specifying that it could not compel the execution of "constitutional" duties,
and noting the statutory basis for the county board appointments, the court in
Driscoll I seems to suggest some such distinction, if not a dispositive one.
Driscoll I, however, did not involve mandamus at all. "It d[id] not involve
the question of the power of the court to compel the [G]overnor to appoint the
nominee of the state chairman nor the doctrine of separation or integration, as
the case may be, of governmental power." Driscoll v. Sakin (Driscoll II), 122
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N.J.L. 414, 414-15 (E. & A. 1939) (Rafferty, J., dissenting). It did not involve
the exercise of discretionary gubernatorial appointment power, whether based
on the constitution or statute, as the Governor had "no discretion in the issuance
of the commission" at issue. Driscoll I, 121 N.J.L. at 228. As the court made
clear, it was "not in any sense supervising or interfering with the transaction" of
appointing a county board member. Id. at 229. The court simply reviewed
governmental action and found it unlawful. Ibid.
Nor are we persuaded by appellants' contention that the appointment
power is "not inherently executive." Although the power to make appointments
does not belong exclusively to the Chief Executive, "[g]enerally speaking, the
power to appoint personnel within the executive branch of government is an
executive function." Murphy v. Luongo, 338 N.J. Super. 260, 267 (App. Div.
2001). "Legislative power, as distinguished from executive power, is the
authority to make laws, but not to enforce them or appoint the agents charged
with the duty of such enforcement. The latter are executive functions."
Enourato v. N.J. Bldg. Auth., 90 N.J. 396, 416 (1982) (quoting Springer v.
Philippine Islands, 277 U.S. 189, 202 (1928)). Under our state constitution, the
Governor is responsible for "nominat[ing] and appoint[ing], with the advice and
consent of the Senate, all officers for whose election or appointment provision
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is not otherwise made by this Constitution or by law." N.J. Const., art. V, § 1,
¶ 12. By contrast, our constitution expressly prohibits the Legislature from
"appoint[ing] any executive, administrative or judicial officer except the State
Auditor." N.J. Const., art. IV, § 5, ¶ 5.
To be sure, "among the most important fields of discussion" at the 1947
New Jersey Constitutional Convention were "the needs for strengthening the
Executive and . . . curbing [the Legislature's] appointments." Richman v.
Ligham, 22 N.J. 40, 49 (1956). In explaining its then-proposed ban on
legislative appointments, the "Commission on Revision of the New Jersey
Constitution" stated that "the power of appointment to public office" is "an
essentially executive power." Id. at 48.
Finally, we are not convinced that the basic principles of mandamus
permit the relief sought by appellants. As we have stated, mandamus is an
appropriate remedy to compel ministerial action or "to compel the exercise of
discretion, but not in a specific manner." Vas, 418 N.J. Super. at 522. Although
the parties agree that the Governor's appointment of COAH members is a
discretionary function – in that the choice of appointees is discretionary – the
parties disagree whether the timing of appointments is a matter of discretion.
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As the Governor argues in his responding brief, "the act of deciding which
appointments to prioritize is inherently discretionary, as the Governor and his
or her advisers have finite time and resources." Indeed, we have recognized one
factor distinguishing ministerial and discretionary functions is that "the law
which imposes" a ministerial duty "prescribes and defines the time, mode[,] and
occasion of its performance with such certainty that nothing remains for
judgment or discretion." Vas, 418 N.J. Super. at 522 (quoting Ivy Hill Park
Apartments, 221 N.J. Super. at 140). As discussed above, N.J.S.A. 52:27D-
305(b) does not prescribe a time limit for filling vacancies on COAH.
Accordingly, the relief sought by appellants is not ministerial and cannot issue
by mandamus. Further, compelling the Governor to make nominations to COAH
would necessarily require establishing a deadline to do so, thereby improperly
compelling the "specific manner" of a discretionary act. Vas, 418 N.J. Super. at
522.
To the extent we have not addressed a particular argument, it is because
either our disposition makes it unnecessary, or the argument lacks sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Dismissed.
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