Appellate Division Enjoins EO on COAH
Posted by Kevin Walsh on February 19th 2010
On February 9, 2010, Gov. Christie issued an executive order that, in his own words, “shut down” the Council on Affordable Housing (COAH). That afternoon, we asked for permission to proceed on an emergent basis to enjoin the executive order, a request that was granted two days later. On February 16, Adam Gordon and I filed FSHC’s emergent motion with the appellate court, claiming that the governor had far overstepped his lawful authority. The Attorney General filed her response this afternoon. Soon thereafter, we received the Appellate Division’s order enjoing Executive Order 12 and thus reopening COAH for business.
The Court’s decision today “stayed” the executive order, which means that it is not currently in effect. We are back to where we were on February 9 before the governor issued the executive order.
In response to the Court’s decision, COAH announced that the agency will comply with the Court’s directive and “return to its normal activities.”
We issued a statement as well. Peter O’Connor, who has been down similar roads before, said:
Throughout New Jersey, we can now move forward with creating thousands of homes, many of which are shovel-ready but held up by municipal red tape. We look forward to working with non-profit organizations, builders, municipalities, and the Christie Administration to meet the high demand for starter homes, and need for jobs.
I said:
Today’s injunction is a victory for democracy. The Court has recognized the paramount importance of this matter, in which Gov. Christie asserted sweeping powers unlike anything ever seen in New Jersey’s history. Good government demands, and our State Constitution requires, that the Governor work with the Legislature and operate through a fair and transparent public process.
The appellate court’s order today is not a final determination of the appeal, but it does suggest that we are ultimately likely to succeed. In order to enjoin the governor’s executive order, we had to demonstrate, among other things, that we were ultimately likely to prevail “on the merits” of our argument.
Where do we go from here? The Appellate Division’s order designates the appeal as “accelerated,” establishes a briefing schedule, and sets oral argument for Tuesday, March 16, 2010. So, we will brief the issues in the appeal again and then appear in less than a month before the three judges who issued today’s order.
It, of course, would have been better if Gov. Christie didn’t take the illegal action of shutting down an independent state agency that implements a constitutional obligation, but today’s decision sets us on a path to remedying that wrong for good.
