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

> New Jersey Superior Court Appellate Division · July 29, 2014

URL: https://www.frixlaw.com/law-library/cases/2686121

## Case

- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** July 29, 2014
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2686121

## How later opinions describe it (automated extraction)

- 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
- declining to dismiss appeal as untimely because it raised allegations of use of excessive force by corrections officers

## Opinion text

NOT FOR PUBLICATION WITHOUT THE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

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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.

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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).

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2686121. Public record. Not legal advice.