In re Christie's Appointment

95 A.3d 780, 436 N.J. Super. 575, 2014 WL 3818670, 2014 N.J. Super. LEXIS 109
CourtNew Jersey Superior Court Appellate Division
DecidedJuly 29, 2014
StatusPublished
Cited by4 cases

This text of 95 A.3d 780 (In re Christie's Appointment) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Christie's Appointment, 95 A.3d 780, 436 N.J. Super. 575, 2014 WL 3818670, 2014 N.J. Super. LEXIS 109 (N.J. Ct. App. 2014).

Opinion

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 eonsist of:
a. the president of the corporation, serving as an ex officio non-voting member; and
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 [580]*580be 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 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. Tam-bussi to an existing vacancy on the Board “with the advice and [581]*581consent 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.

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, 592 A.2d 1168 (1991).2 In order to streamline and [582]*582strengthen 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, 592 A.2d 1168.

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, 677 A.2d 201 (1996) (noting that unqualified officers may be removed under the writ of quo warranto); Swede v. City of Clifton, 22 N.J. 303, 315-16, 125 A.2d 865 (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

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95 A.3d 780, 436 N.J. Super. 575, 2014 WL 3818670, 2014 N.J. Super. LEXIS 109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-christies-appointment-njsuperctappdiv-2014.