NJ top court takes arguments on governor's power

TRENTON, N.J. (AP) -- The lawyer for an affordable housing advocacy group warned New Jersey's Supreme Court on Monday that if it lets Gov. Chris Christie abolish the state Council on Affordable Housing, he or future governors could easily eliminate other state agencies that were intended be independent of the governor.

Agencies including the Election Law Enforcement Commission, the New Jersey Turnpike Authority and the Office of the public defender could be at risk, Adam Gordon, a lawyer for the Fair Share Housing Center, told the court in arguments Monday.

In 2011, Christie, a Republican, used a state law giving the governor the power to reorganize executive-branch agencies to transfer the functions of COAH to the state Department of Community Affairs.

Instead of having a board of six Democrats and six Republicans make the decisions, control was given to a cabinet member who is accountable to the governor.

Christie's administration presented the change as a way to reduce red tape. The council comes up with and enforces rules for how many units of affordable housing each community is responsible for providing. The agency was created nearly 30 years ago in response to state Supreme Court rulings that established that towns had to do something to house low- and moderate-income people. The agency and its rules have been a bane to local governments ever since, and the affordable housing law itself is constantly subject to litigation.

The question before the court on Monday was whether the governor's power to reorganize government — granted by the legislature more than 40 years ago — applies to agencies like COAH. The language establishing the council describes it as "in but not of" a state agency. It was associated with the Department of Community Affairs but not controlled by it.

"There are times when prepositions matter," Gordon said. "And much of our government is based on the difference between 'in but not of' agencies and 'of' agencies," he said.

Deputy Attorney General Robert Lougy was peppered with questions by five justices and two lower-court judges called up to fill court vacancies.

Justice Barry Albin was troubled by the idea that while it takes the governor and both houses of the Legislature to create an agency, the state was arguing it could be done away with by the governor alone so long as at least one chamber does not protest.

"The legislature created this elaborate construction" of the council, he said to Lougy, "and then you're saying they delegated solely to the executive authority to completely blow up that structure?"

"If it's an agency, your honor, the governor has the power to reorganize it," Lougy said at one point. But he later said that the power does not apply to agencies that issue bonds, such as the Turnpike Authority.

Lougy pointed out that lawmakers could have passed a resolution to stop the elimination of COAH, but chose not to.

The court did not say when it would rule on the case, but it usually takes several months.

The decision in this case is expected to come before the ruling in a second affordable housing case argued in November. In that case, the dispute was over rules established by COAH. If COAH doesn't exist, that issue could be moot.

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