In re Christie's Appointment

Citations: 436 N.J. Super. 575; 95 A.3d 780; 2014 WL 3818670; 2014 N.J. Super. LEXIS 109

Court: New Jersey Superior Court Appellate Division; July 29, 2014; New Jersey; State Appellate Court

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Senate President Stephen M. Sweeney appeals Governor Chris Christie’s appointment of Martin Perez as a public member of the Rutgers University Board of Governors. The court upholds the appointment as valid under N.J.S.A. 18A:65-14. The New Jersey Medical and Health Sciences Education Restructuring Act, enacted on June 28, 2012, aimed to enhance the state's higher education system and mandated liberal construction of its provisions (N.J.S.A. 18A:64M-2(k), 18A:64M-29). This Act reformed the governance of Rutgers University, specifically altering the Board of Governors' composition. The current structure allows for 15 voting members, with the Governor appointing seven (including specific residency requirements) and the board of trustees appointing the remaining seven. The Governor’s initial appointments do not require Senate consent, a provision effective July 1, 2013. The Governor appointed Perez on December 19, 2012, as the first direct appointee under this new structure, preceding the formal consent process for subsequent appointments.

On July 15, 2013, the Governor appointed Richard W. Roper to the Board, who was recommended by the Senate President and the Speaker of the Assembly. Perez was sworn in on the same day. Subsequently, on July 30, 2013, Senator Sweeney sought to challenge Perez's appointment through an emergent motion, which was denied. An appeal was filed on August 13, 2013, alongside a motion to stay the appointment. The Governor responded with a cross-motion to dismiss, arguing lack of standing, jurisdiction, and timeliness. The court denied the Senator's motion for a stay and reserved its decision on the Governor's motion to dismiss, which was ultimately denied.

The court addressed the Governor's argument that the Senator's challenge to Perez's appointment should be brought as an action in lieu of prerogative writs in the Law Division under N.J.S.A. 2A:66-6. The court disagreed, stating that prerogative writs historically allowed citizens to contest administrative agency actions. The New Jersey Constitution consolidated these writs to ensure petitioners maintained their rights to appeal. Challenges to public office claims were traditionally made via quo warranto. Modern law allows proceedings under N.J.S.A. 2A:66-6 for individuals unlawfully holding office based on election validity, residency, or qualification issues. In contrast, writs of certiorari are utilized for reviewing inferior tribunal actions. The court noted that both quo warranto and certiorari could apply when contesting a public official's appointment, as illustrated in prior case law.

The Governor removed the previous board members and appointed a new board, an action that was not challenged at the time. The court noted that prior board members could have contested the legality of the new appointments via certiorari or quo warranto but did not do so. The case centers on the Senator's appeal regarding the Governor's appointment of Perez, specifically challenging the lack of Senate advice and consent. The court determined it has jurisdiction under Rule 2:2-3(a)(2) to hear the Senator's challenge, which is considered a direct appeal from the Governor’s action.

The Governor contended that the appeal should be dismissed as it was filed beyond the required time frame established by Rule 2:4-1(b), which mandates appeals from state agency actions be filed within forty-five days. The Governor argued the appeal, if based on the December 19, 2012 appointment, should have been filed by February 4, 2013, or by early March with an extension. The Senator countered that the appeal was timely since Perez's appointment would not take effect until July 1, 2013. The court, however, concluded that the Governor's appointment was final on December 19, 2012, despite the statute taking effect later, supporting the notion that appointments can be made prior to the establishment of the office.

Senator Sweeney did not timely file a notice of appeal regarding the appointment of Perez, but may have reasonably believed the appeal period was not active due to the Act not being in effect and Perez not being sworn in. Under these circumstances, the notice of appeal is treated as timely. Even if the appeal were untimely, the public interest justifies court jurisdiction to resolve the issue, as past cases have allowed consideration of appeals raising significant public matters despite procedural delays. The question of the Governor's authority to appoint Perez without Senate consent is deemed important to the Senate, the University, the Board, and the public. Sweeney's appeal was initiated within forty-five days of the Act's effective date and Perez's assumption of office, which supports not dismissing it as untimely.

The Governor argues that Senator Sweeney lacks standing to challenge the appointment, asserting insufficient personal interest and that an individual legislator cannot represent the Senate's interests. However, New Jersey law offers a broad definition of standing for challenging governmental actions. The courts require that litigants demonstrate sufficient concern and potential harm related to the issue at hand. The Senate has a vested interest in its authority to advise and consent to gubernatorial appointments, and as Senate President, Sweeney has the standing to file this appeal. This recognition aligns with precedent allowing legislative leaders to engage in litigation concerning executive or legislative actions, reinforcing the Senate President's role in protecting the Senate's interests.

In *In re Forsythe*, 91 N.J. 141 (1982), the court permitted the Speaker of the General Assembly, the Senate President, and the Senate to intervene in a case defending a redistricting statute. In *Gilbert v. Gladden*, 87 N.J. 275 (1981), the court evaluated an appeal from legislators regarding gubernatorial courtesy. The Governor contended that Senator Sweeney lacked authorization to represent the Senate's interests because no resolution was passed for this purpose. However, in *General Assembly of New Jersey v. Byrne*, 90 N.J. 376 (1982), the Legislature had previously authorized the Senate President and Assembly Speaker to initiate legal actions. The court clarified that such a resolution is not necessary for the Senate President to pursue litigation on behalf of the Senate's institutional interests, thus affirming Sweeney's standing to challenge the Governor's appointment of Perez to the Board.

The Senator claimed that the Governor’s appointment of Perez as Public Member 7 violated N.J.S.A. 18A:65-14, arguing it was ultra vires since Perez was not a Camden County resident, as required for appointments made without the Senate's advice and consent. The Governor argued that his appointment was valid since the statute only mandates that two of his eight appointees include one Camden County resident, allowing him to fill other positions without residency restrictions. 

In interpreting the statute, the court emphasized the importance of discerning legislative intent through the statute’s plain language. The court stated that if the statute's wording is clear, further inquiry is unnecessary, and that statutory words must be understood in their ordinary context. The court also noted that it cannot add qualifications to a statute that the Legislature intentionally omitted. The statute, N.J.S.A. 18A:65-14, had been amended to increase the Board's size from eleven to fifteen members and expand gubernatorial appointees from six to eight.

The statute mandates that the Governor appoint eight members to a board with the Senate's advice and consent, including one resident from Camden County and one from Essex County, recommended by the Senate President and the Speaker of the General Assembly. However, the Governor's initial two "additional appointments" can be made without Senate approval, and the statute does not impose residency requirements on these specific appointments. The Governor interprets this to mean that while the eight appointed members must meet residency criteria, the two additional appointees do not have to. The argument presented by a Senator, suggesting the additional appointments should adhere to residency requirements, is dismissed as unconvincing. The plain language of the statute supports the Governor's interpretation, allowing him to appoint a Camden County resident to one of the additional seats without Senate consent. Legislative history is deemed unnecessary for interpretation due to the clarity of the statutory language, although it could be consulted if ambiguities existed. A legislative staff memorandum from June 28, 2012, outlines the Act's changes, confirming the Governor's ability to make initial appointments without Senate consent while specifying residency requirements for subsequent appointments.

The memo challenges the Senator’s interpretation of the statute, emphasizing that the assistant counsel's views are not authoritative, as she lacks legislative status. It highlights that individual legislators' statements do not reliably indicate legislative intent, referencing case law (State v. Yothers and W.Va. Univ. Hosps. Inc. v. Casey). The memo was distributed only to Senators of one political party, with no evidence that the recipients reviewed or agreed with its claims regarding changes to N.J.S.A. 18A:65-14.

The legislative history of Senate No. 2063 reveals a progression of amendments since its introduction on June 7, 2012. Initially, it proposed increasing gubernatorial appointees from six to nine, without direct appointments by the Governor. Subsequent revisions included changes to residency requirements and the process for appointments, specifically indicating that the Governor could make initial appointments without Senate consent. The final version required one appointee to be from Camden County while maintaining the Governor's authority for initial appointments, indicating no connection between the residency requirement and the appointment process. Overall, the legislative history demonstrates that the authority for additional appointments was distinct from other provisions, regardless of changes to member numbers or residency criteria.

The Senator contends that Tambussi’s nomination to the Board is invalid because it did not meet the statutory requirement for at least one Board member to reside in Camden County, as his nomination lapsed without Senate action. Tambussi has been re-nominated in the current legislative session and referred to the Senate Judiciary Committee. According to N.J.S.A. 18A:65-14(b)(i), the Governor must appoint one member from Camden County and another from Essex County, recommended by the Senate President and Assembly Speaker. The Governor nominated a Camden County resident for the Board, and if the Senate does not consent to Tambussi, another nominee must also be a Camden County resident. Nonetheless, the Governor can directly appoint Perez to the Board without Senate consent, which is deemed lawful under N.J.S.A. 18A:65-14. The appeal notice filed by the Senator initially indicated he was acting in an individual capacity but was later amended to reflect his official capacity as Senate President. The document also references the concept of "prerogative writs," which include writs recognized in New Jersey such as certiorari, quo warranto, prohibition, and mandamus.