Under Rule 2:8-1(b), motions in the Appellate Division are not normally argued orally. On March 5, however, an Appellate Division panel (Judges Fuentes, Simonelli, and Haas) heard oral argument, at the panel’s request, on a motion by the Fair Share Housing Center (“Fair Share”) to enforce litigants’ rights under Rule 1:10-3. Fair Share complained that the Council on Affordable Housing (“COAH”) had failed to comply with the Appellate Division’s “straight-forward” mandate in In re N.J.A.C. 5:96 and 5:97, 416 N.J. Super. 462 (App. Div. 2010), aff’d, 215 N.J. 578 (2013), which had ordered COAH “to adopt new third round rules that use a methodology for determining prospective need [for low and moderate-income housing in localities under the Mount Laurel doctrine] similar to the methodologies used in the first and second rounds.” In that ruling, the court opined that “COAH should be able to comply with this mandate within five months” without the assistance of outside experts or a special master. Forty-one months later, however, “COAH ha[d] not done anything to comply” with panel’s mandate.
The 2010 opinion, written by Judge Skillman (one of the three judges whom the Supreme Court designated to handle Mount Laurel cases after Southern Burlington Cty. NAACP v. Mount Laurel Tp., 92 N.J. 158 (1983)), and joined by Judges Fuentes and Simonelli, was not the first time that COAH-proposed third round rules were before the Appellate Division. COAH’s second round rules expired in 1999, but COAH did not propose third-round rules until 2004, a delay that the Appellate Division characterized as “dramatic and inexplicable” in In re Six-Month Extension of N.J.A.C. 5:91-1 et seq., 372 N.J. Super. 61 (App. Div. 2004), certif. denied, 182 N.J. 630 (2005). When COAH finally proposed third round rules, the Appellate Division, speaking through Judge Cuff in In re Adoption of N.J.A.C. 5:94 and 5:95, 390 N.J. Super. 1 (App. Div.), certif. denied, 192 N.J. 71 (2007), invalidated substantial portions of those rules and remanded the matter to COAH for the adoption of revised rules in conformance with Judge Cuff’s opinion. The resulting proposed third round rules were again found wanting by Judge Skillman in the 2010 ruling, which “concluded that COAH failed to make a good faith effort” to adopt third round rules in conformity with the court’s 2007 opinion. The panel’s 2010 ruling was affirmed by a 3-2 vote of the Supreme Court on September 26, 2013. 215 N.J. 578 (2013). Thus, the Appellate Division had given COAH multiple opportunities to act before Fair Share’s motion for relief in aid of litigant’s rights came before the panel on March 5.
COAH did not contest Fair Share’s motion on its merits. Instead, COAH observed that, on February 26, 2014, one week before the oral argument on the pending motion, COAH had filed a motion with the Supreme Court seeking to extend until May 1, 2014 COAH’s time “to formally propose and publish in the June 2, 2014 New Jersey Register regulations governing the third round methodology.” COAH asserted that the pendency of that motion deprived the Appellate Division of jurisdiction to enforce its 2010 mandate.
In an opinion issued on the afternoon of March 7, Judge Fuentes emphatically rejected COAH’s argument. “In our tripartite system of governance, once a court has decided a dispute and entered a final judgment awarding relief to the aggrieved party, the executive branch is obligated to enforce the court’s decree. This fundamental principle of the concept of ordered liberty applies with equal, if not greater, force when an administrative agency, as a party in a civil dispute, is ordered by the court to perform a task that is mandated by a statute that was adopted by the Legislature to fulfill a constitutional obligation.”
The panel then ordered COAH to meet on March 12, with a quorum, and to direct its staff to prepare third round rules that use a methodology for determining prospective need similar to the methodologies used in the first and second rounds. The panel also directed COAH to meet on March 26, with a quorum, to review and adopt the rules in compliance with the Administrative Procedures Act (“APA”), including publication in the New Jersey Register to permit public comments on the rules. Finally, the panel mandated that COAH meet on May 14, with a quorum, consider any public comments and any amendments proposed by its Executive Director, and adopt the rules.
There were other requirements too, including bi-weekly reporting by COAH to the court and all parties regarding actions taken to comply with the panel’s order. But there were two other things that evidenced the seriousness of the panel’s ruling. First, Judge Fuentes warned that if COAH fails to carry out any part of the panel’s order, “each member of the COAH board will be ordered to personally appear before this court, at a date and time designated by this court, to show cause why he or she shall not be declared in contempt of this court’s authority subject to monetary sanctions, civil detention, and such other sanctions the court may deem suitable to induce compliance with this order.” Second, the panel sua sponte awarded Fair Share its counsel fees for the motion in aid of litigant’s rights.
Later on March 7, COAH sought a stay of the panel’s ruling. COAH contended that the panel decision “intrudes upon the Supreme Court’s consideration of the agency’s pending motion [to the Supreme Court] for an extension of time,” thereby “transgress[ing] well-established principles of separation of powers.” COAH also argued that the panel’s mandated meeting schedule represents “a timetable inconsistent with the APA” and improperly “purports to waive statutory provisions governing notice and comment of proposed rules and the Open Public Meetings Act.” Fair Share and other parties opposed any stay, and the panel denied a stay. “This Court has jurisdiction to enforce its own order. Asbury Park Board of Education v. New Jersey Department of Education, 369 N.J. Super. 481, 486 (App. Div. 2004). R. 2:9-5(b). In the event COAH cannot meet the deadlines ordered by this court in its March 7, 2014 order in aid of litigant’s rights consistent with the APA, N.J.S.A. 59:14B-4 requirements, it may seek relief from this court to modify these deadlines on a showing of extraordinary circumstances.”
Doubtless, the Supreme Court will be asked to take up this issue, and quickly. Stay tuned.