County of Gloucester v. State

• Decision Date: 22 April 1993
• Citation: 623 A.2d 763,132 N.J. 141
• Parties: COUNTY OF GLOUCESTER, Plaintiff-Respondent, v. STATE of New Jersey, The Governor of the State of New Jersey, The Commissioner of New Jersey Department of Corrections and the Legislature of the State of New Jersey, Defendants-Appellants.
• Court: New Jersey Supreme Court

Page 141

132 N.J. 141

623 A.2d 763

COUNTY OF GLOUCESTER, Plaintiff-Respondent, v. STATE of New Jersey, The Governor of the State of New Jersey, The Commissioner of New Jersey Department of Corrections and the Legislature of the State of New Jersey Defendants-Appellants.

Supreme Court of New Jersey.

Argued Feb. 2, 1993.

Decided April 22, 1993.

Mary C. Jacobson, Deputy Atty. Gen., for defendants-appellants (Robert J. Del Tufo, Atty. Gen., attorney; Edward J. Dauber, Executive Asst. Atty. Gen., of counsel; Ms. Jacobson and Catherine M. Brown, Deputy Atty. Gen., on the briefs).

Eugene P. Chell, Woodbury, for plaintiff-respondent.

Ronald Kevitz, First Asst. County Counsel, for amicus curiae County of Morris (Howard F. Appelt, II, Morris County Counsel, attorney).

Isabel McGinty, Deputy Public Defender, for amicus curiae Public Defender (Zulima V. Farber, Public Defender, attorney).

The opinion of the Court was delivered by

CLIFFORD, J.

We granted certification, 130 N.J. 398, 614 A.2d 620 (1992), to determine whether current prison overcrowding constitutes an "emergency" within the meaning of the Disaster Control Act, N.J.S.A. App.A:9-30 to -63. Because the Appellate Division concluded that an "emergency" as contemplated by that Act no longer existed, it invalidated the then-existing Executive Order (No. 52), which had authorized the housing of State prisoners in county jails. 256 N.J.Super. 143, 152-53, 606 A.2d 843 (1992). The Appellate Division directed that its decision become effective one year from April 29, 1992, the date of its decision.

We modify the judgment below only to the extent that this Court's judgment will become effective one year from the date of this decision. As modified, the judgment is affirmed.

I

On May 29, 1990, Gloucester County filed a complaint in lieu of prerogative writs, seeking to compel the Governor of the State of New Jersey and the Commissioner of the New Jersey Department of Corrections to increase the per diem reimbursement rate for State prisoners housed in the Gloucester County jail. The County of Morris, appearing as amicus curiae, claimed a similar undercompensation for its housing of State prisoners and contended that in fact the problems of overcrowding and undercompensation exist throughout the state. Gloucester County sought as alternative relief the removal from its county jail of all State prisoners in excess of the twenty prisoners that its contract with the State obligated it to house. Similarly, Morris County applied for an order that would compel removal of all State prisoners in excess of the forty required by its contract.

The trial court granted the State's motion to transfer the matter to the Appellate Division under Rule 1:13-4. The Appellate Division recognized the severe and continuing problem of prison overcrowding; nonetheless, the court held that an "emergency" within the meaning of the Disaster Control Act no longer existed. The court below said:

[T]he "emergency" as defined in the Disaster Control Act, including the temporary problem of overcrowding, may well not include a permanent or semi-permanent condition. This definition does not imply a vehicle to circumvent the general plan of the State's statutes governing the county and State correction systems over such an extended period of time.

* * * As the parade of annual Executive Orders passes before us, it is our function to state that "the emperor has no clothes;" there is no "emergency." There is, rather, an ongoing condition that must be recognized by the State.

[256 N.J.Super. at 151-52, 606 A.2d 843.]

The Appellate Division thus invalidated Executive Order No. 52, which had authorized the housing of State prisoners in county jails. Id. at 152-53, 606 A.2d 843.

Addressing the question of reimbursement, the court held that pursuant to Shapiro v. Fauver, 193 N.J.Super. 237, 473 A.2d 112 (App.Div.), certif. denied sub nom. Shapiro v. Albanese, 97 N.J. 668, 483 A.2d 186 (1984), the Commissioner could exercise his discretion in setting the per diem rate of compensation during the life of the Executive Order. 256 N.J.Super. at 153, 606 A.2d 843. However, the court determined that once the Executive Order and the power to house State prisoners in county jails under the emergency powers has expired, the State will no longer be permitted to pay the counties less than their costs for housing State prisoners. Ibid.

II

The Disaster Control Act was enacted in 1941 to enable the Governor to assist the federal government during war emergencies, but amendments in 1942, 1949, and 1953 have since widened its scope. The broad purpose of the Act is

to provide for the health, safety and welfare of the people of the State of New Jersey and to aid in the prevention of damage to and the destruction of property during any emergency as herein defined by prescribing a course of conduct for the civilian population of this State during such emergency and by centralizing control of all civilian activities having to do with such emergency under the Governor and for that purpose to give to the Governor control over such resources of the State Government and of each and every political subdivision thereof as may be necessary to cope with any condition that shall arise out of such emergency and to invest the Governor with all other power convenient or necessary to effectuate such purpose.

[N.J.S.A. App.A:9-33.]

The Act empowers the Governor to "utilize and employ all the available resources of the State Government and of each and every political subdivision of this State * * * to avoid or protect against any emergency subject to the future payment of the reasonable value of such services and privately owned property as hereinafter in this act provided." N.J.S.A. App.A:9-34. The Act defines an "emergency" as including a "disaster." N.J.S.A. App.A:9-33.1(4). A "disaster" is

any unusual incident resulting from natural or unnatural causes which endangers the health, safety or resources of the residents of one or more municipalities of the State, and which is or may become too large in scope or unusual in type to be handled in its entirety by regular municipal operating services.

[N.J.S.A. App.A:9-33.1(1).]

N.J.S.A. App.A:9-45 sets forth the broad scope of the Governor's authority to issue emergency orders:

In order to accomplish the purposes of this act, the Governor is empowered to make such orders, rules and regulations as may be necessary adequately to meet the various problems presented by any emergency and from time to time to amend or rescind such orders, rules and regulations, including among others the following subjects:

* * * * *

i. On any matter that may be necessary to protect the health, safety and welfare of the people or that will aid in the prevention of loss to and destruction of property.

j. Such other matters whatsoever as are or may become necessary in the fair, impartial, stringent and comprehensive administration of this act.

Summarizing the foregoing legislative enactments in Worthington v. Fauver, 88 N.J. 183, 440 A.2d 1128 (1982), we said:

These sweeping provisions reveal three general pertinent features of the act. First, the act vests the Governor with broad powers to provide for the health, safety and welfare of the people of the State during any "emergency." N.J.S.A. App. A:9-33, -45. Second, these powers include the authority to centralize control over the resources of the State government and its subdivisions, including the counties, "whether of men, properties or instrumentalities." N.J.S.A. App.A:9-33, -34. Third, a significant purpose of the act is the prevention of harm to life and property. N.J.S.A. App.A:9-33, 45(i).

[Id. at 193-94, 440 A.2d

1128.]

In Worthington, we addressed the precise question before this Court today: whether prison overcrowding constitutes an "emergency" within the meaning of the Disaster Control Act, thereby authorizing the housing of State prisoners in county jails. In Worthington, Atlantic County sought to compel the Corrections Commissioner to accept custody of the State prisoners then housed in its county jail, alleging that the Commissioner's failure to accept such prisoners violated N.J.S.A. 2C:43-10 and N.J.S.A. 30:4-6.

After the action had been initiated, Governor Byrne, invoking his emergency powers pursuant to the Disaster Control Act, issued Executive Order No. 106 on June 19, 1981. In that Order he declared that prison overcrowding had created a "state of emergency * * * in the various State and County penal and correctional facilities." The Order stated that the Department of Corrections was "physically unable to accept from the Sheriffs of the various counties the custody of inmates sentenced" to the Commissioner's custody. Moreover, the Order stated that "these unusual conditions endanger the safety, welfare and resources of the residents of this State, and threaten loss to and destruction of property, and are too large in scope to be handled in their entirety by regular operating services of either counties or the New Jersey Department of Corrections."

Executive Order No. 106 authorized the Commissioner to house State prisoners in county jails and to redistribute such prisoners among the counties, and directed the Commissioner to create an "appropriate compensation program for the counties." According to its terms, the Order was a temporary measure to remain in effect for ninety days from the date of execution.

Commissioner Fauver thus asserted Executive Order No. 106 as an affirmative defense to Atlantic County's complaint. On September 4, 1981, a divided panel of the Appellate Division, to which the case had been transferred under Rule 1:1-2, upheld the validity of the Order and the actions taken by the Commissioner as authorized in the Order. See Worthington v. Fauver, 180 N.J.Super. 368, 382, 434 A.2d 1134 (1981). On September 11, 1981, Governor Byrne issued Executive Order No. 108, which extended Executive Order No....