On appeal from Superior Court of New Jersey, Law Division, Atlantic County.
Kole,*fn* Joelson and McElroy. The opinion of the court was delivered by McElroy, J.A.D. Joelson, J.A.D., dissenting.
[180 NJSuper Page 370] This matter requires consideration of Executive Order 106 issued by the Governor on June 19, 1981. This order was promulgated as a temporary measure, effective for a 90-day period, and gives authority to the Commissioner of the Department of Corrections to attempt to alleviate the dire conditions of inmate overcrowding in state and county correctional facilities by allocating the flow and movement of prisoners sentenced to state facilities from county correctional institutions and, where necessary, redistribution of such prisoners among county facilities. The principal issues raised are the Governor's power to so act and whether this particular executive action conflicts with the provisions and intent of N.J.S.A. 2C:43-10 which requires the sheriffs of the counties to deliver such prisoners to the
custody of the Commissioner within 15 days of the date of imposition of sentence, and N.J.S.A. 30:4-6 which directs the Commissioner's agents to receive such prisoners.
Anyone who reads the newspapers, and certainly all persons involved in the three branches of government, are aware that the counties and the State are facing a problem of prisoner housing which has lately assumed unwieldy dimensions. The record here demonstrates that at the time this suit was filed approximately 480 offenders sentenced to state institutions were in county facilities slated for transfer to overcrowded state institutions physically unable to receive them. This, in turn, created overcrowding in many counties. Although the rising rate of crime has had nationwide effect upon outdated and inadequate correctional facilities in most, if not all, of the states, it has achieved particular proportion in New Jersey because of the effects of the number and length of custodial sentences imposed by proper enforcement of the new Code of Criminal Justice, effective September 1, 1979 (N.J.S.A. 2C:1-1 et seq.), and the decrease in the grant of paroles under the Parole Act of 1979 (N.J.S.A. 30:4-123.45).
This case brings into sharp focus the present desperate need to provide proper facilities to house and maintain those convicted of crime in this era of unprecedented increase in prison population. The case pointedly illustrates not only the inadequacies and superannuated nature of most of our county jails and state prisons, but equally highlights the legislative need to reconsider statutes which limit the period during which prisoners sentenced to state institutions may be held and maintained in county facilities, as well as re-examination of the intent of such statutes. See Cryan v. Klein , 148 N.J. Super. 27 (App.Div.1977). Also evidenced in the factual pattern presented is the necessity for centralization of the authority to determine when, in the interests of a reasonable flow of such prisoners from county holding facilities to the state institutions, this distribution should be accomplished.
The requirement for placement of the power in a single authority is apparent in the fact that some counties are heavily burdened with prisoners consigned to state facilities and with those sentenced to county custody, while others are less weighed down and a few are afflicted in relatively small degree. Movement of these prisoners among the network of county facilities and, eventually, with due haste, to state institutions, can only be rationally accomplished by a central authority possessing the power to survey the populations and accommodations of all state and county institutions.
In recognition of the situation confronting the State and the counties the Governor, on June 19, 1981, issued Executive Order 106 which declared a state of emergency to exist in the various state and county correctional facilities by reason of overcrowding. The order recited that the Department of Corrections "is physically unable to accept from the Sheriffs of the various counties the custody of inmates sentenced to the custody of the Commissioner of the Department of Corrections, as mandated by N.J.S.A. 2C:43-10(e)." It noted "a need to efficiently allocate inmates of state and county penal and correctional institutions to those institutions having available space in order to alleviate overcrowding." It observed 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 entirely by regular operating services of either the counties or the New Jersey Department of Corrections." The order was declared to be in effect only during the overcrowding crisis and was designated to expire 90 days from its date of execution. The Commissioner of Corrections was designated to effectuate the provisions of the order and empowered to utilize "any available, suitable and appropriate institution or facility, whether owned by the State, a County or any political subdivision of the State . . . for the confinement of inmates confined in the State and/or County penal or correctional institutions." The Commissioner was given authority to transfer inmates among the various institutions in his discretion,
even those awaiting trial, with the exception "that only persons sentenced to a prison or committed to the custody of the Commissioner may be confined to a State Prison." The Commissioner was directed "to develop an appropriate compensation program for the counties." The executive order based its exercise of emergency powers upon N.J.S.A. App. A:9-30 et seq. , an act which delineates the "Emergency Powers of the Governor."
A public statement issued by the Governor on June 23, 1981 recited that a state of emergency was declared because of overcrowded conditions in state prisons "that forced several counties to keep in their own jails offenders sentenced to [s]tate prisons." The order was described as "'an administrative tool to allow the Commissioner to equalize the burden statewide. It gives him the flexibility to take advantage of existing resources wherever they may be found in the State to alleviate temporarily the problems caused by overcrowding.'" The Attorney General was quoted in this release as characterizing the executive order as providing, "temporary measures until more permanent solutions can be found." It was noted therein that "the Department of Corrections is already the defendant in several lawsuits where the courts in four separate counties have ordered the State to accept inmates within 15 days after being sentenced to [s]tate institutions."*fn1
Three days before the issuance of the executive order the present plaintiffs sought, by a complaint in lieu of prerogative writs, to compel the Commissioner to accept prisoners from Atlantic County who were sentenced to state institutions. Plaintiffs based their demands upon N.J.S.A. 2C:43-10(e) and N.J.S.A. 30:4-6.
Relying principally on Cryan v. Klein , 148 N.J. Super. 27 (App.Div.1977), plaintiffs contend that defendant Commissioner is mandated by these statutes to accept such prisoners and may not, despite the concededly overcrowded state prison conditions, refuse to receive and house them after 15 days have elapsed from the date any such prisoner was sentenced.*fn2 Plaintiffs also
assert that the executive order attempts to suspend N.J.S.A. 2C:43-10 and N.J.S.A. 30:4-6 and is therefore unconstitutional; that the Governor's statutory emergency powers do not authorize the executive order here issued; that the Commissioner's actions pursuant to the executive order is directed only to "those counties which have sued the State to accept custody of prisoners and is a retaliatory action. . . ." and that although the matter is before this court on order of the Supreme Court directing this court to decide the validity of the executive order and all issues, the trial court nevertheless is not deprived of jurisdiction to decide the issues raised by plaintiffs' complaint. We regard these latter two issues as clearly lacking in merit and decline to treat them. R. 2:11-3(e)(1)(E). See also, R. 2:2-3(a); Markert v. Byrne , 154 N.J. Super. 410, 414 (App.Div.1977).
Consideration of the remaining issues requires an analysis governed by concepts universally applied in matters of this nature:
(1) The executive's power, if any, to issue an emergency order must stem from either an act of the Legislature or from the Constitution itself. Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153 (1952).
(2) A case which seeks to declare an executive action unconstitutional as usurpation of or intrusion into the constitutional power of another coequal branch of government stirs any court to a sense of caution in its approach and to a realization of the requirement that its decision be based upon the narrowest possible ground capable of deciding the case. Dames & Moore v. Regan , U.S. , , 101 S. Ct. 2972, 2991, 69 L. Ed. 2d (1981). General guidelines covering other possible situations are to be carefully avoided so that a particular executive
action. Countenanced by a given emergency or legislative delegation of power, express or implied, cannot in the future be taken as license for unwarranted extension of such power to other circumstances not here involved.
(3) Where, as here, the executive action is rooted in an assertion of emergency power alleged to be statutorily delegated either expressly or impliedly, a court must consider the extent to which the action taken bears relation to the power delegated and the emergency giving rise to the action. United States v. Yoshida International, Inc. , 526 F.2d 560, 578 (CCPA 1975).
(4) Equally applicable is the principle that where the executive acts pursuant to an express or implied authorization from the legislature, he exercises not only his own powers but those delegated by the legislature. In such circumstance the executive action should be "supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it." Youngstown Sheet & Tube Co. v. Sawyer, supra , 343 U.S. at 637, 72 S. Ct. at 871 (Jackson, J., concurring).
(5) In the inquiry into whether the executive action falls within those powers delegated either expressly or impliedly by an emergency powers statute, a court should realize that a legislature cannot foresee every possible emergency and thus have the wisdom to lay down narrowly definitive standards by which specific emergencies must be met by particular executive action. The concept that the legislature must surround every delegation of emergency power with detailed limitations runs contrary to the imperative inherent in the delegation of emergency powers. Yoshida, supra , at 581.
We turn now to a review of N.J.S.A. App. A:9-30 et seq. upon which the executive order is bottomed. No assistance is to be had from resort to the legislative history of this enactment; it is virtually nonexistent. The act originated in 1941 as a briefly stated war emergency measure empowering the Governor to aid the Federal Government. L. 1941, c. 393. In 1942 it
was broadened to provide for civilian defense and created broad executive power in that area. L. 1942, c.c. 250 and 251. The wartime flavor of the act continued, but in 1949 it assumed broader proportion and was amended to include provision for "any emergency" and for "extraordinary emergency," including those resulting "from fire, flood, earthquake or other natural causes." L. 1949, c. 86. It presently stands as it did after the 1953 amendments which further expanded its coverage. L. 1953, c. 438. Section 33 states its purpose:
The purpose of this 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 ...