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Worthington v. Fauver

Decided: January 6, 1982.


On appeal from the Superior Court, Appellate Division, whose opinion is reported at 180 N.J. Super. 368 (1981).

For affirmance -- Chief Justice Wilentz and Justices Pashman, Clifford, Schreiber, Handler and Pollock. For reversal -- none. The opinion of the Court was delivered by Pashman, J.


To alleviate the potentially disastrous overcrowding of inmates in state and county correctional institutions, the Governor issued Executive Order No. 106 on June 19, 1981.*fn1 In promulgating the order, the Governor invoked his emergency powers under the Civil Defense and Disaster Control Act, N.J.S.A. App.A:9-30 et seq. This temporary emergency measure granted to the Commissioner of Corrections the authority to direct that county correctional facilities house prisoners sentenced to state institutions. The Commissioner was also given the power to redistribute such prisoners among the county facilities.

Atlantic County challenges the statutory and constitutional validity of this emergency measure. We hold that the Governor's Order is authorized by the Disaster Control Act and does not violate the constitutional principle of separation of powers.


It is commonly acknowledged that overcrowding in prisons causes grave problems. Rehabilitative programs and recreation

become disrupted or nonexistent. As crowding increases, frustration and anger emerge, causing tempers to flare and fights to erupt. Lack of space makes it difficult if not impossible to segregate prisoners for disciplinary and other purposes. Overcrowding can contribute to riots.

According to the Commissioner of Corrections, prison overcrowding first became a serious problem in New Jersey in 1975. Although ameliorated somewhat from 1978 to 1980, the problem lately has reached crisis dimensions. This has been caused in large part by an increase in the number and length of custodial sentences following the effective date of the Code of Criminal Justice, adopted in 1979, N.J.S.A. 2C:1-1 et seq.*fn2

At the time this suit was filed, the state prison population was well in excess of the system's capacity. This necessitated housing approximately 480 offenders sentenced to state prison in county facilities because the overcrowded state institutions were

physically unable to receive them.*fn3 This in turn has created overcrowding in many county jails.

Certain counties are far more burdened by state prisoners than others. At the time this litigation began, Atlantic County Jail was at 121% of maximum rated capacity and housed 225 inmates, of whom 41 were state prisoners. At the same time, certain other county jails were only two-thirds full or less. Following the lead of several other counties, on June 16, 1981 the county executive and sheriff of Atlantic County filed a complaint in lieu of prerogative writs in Superior Court against the State Commissioner of Corrections. Plaintiffs sought to compel the Commissioner to accept custody of the state prisoners then housed in the county facility, alleging that his failure to do so violated N.J.S.A. 2C:43-10 and N.J.S.A. 30:4-6.*fn4

After the lawsuit began, Governor Byrne issued Executive Order No. 106 on June 19, 1981. Declaring overcrowding in state prisons to be an emergency, the Order explained 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)." The Governor invoked the emergency powers of the Disaster Control Act on the grounds 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.

Because of the "need to efficiently allocate inmates of state and county penal and correctional institutions to those institutions having available space in order to alleviate overcrowding," the Order designated the Commissioner of Corrections as the sole authority empowered to allocate inmates among the various county facilities, and when possible, to move those prisoners to state institutions.*fn5 The order was to be temporary, lasting only for 90 days or the duration of the emergency. Finally, the Commissioner was ordered to develop an appropriate program to compensate the counties holding state prisoners.

On June 26, 1981, Commissioner Fauver answered Atlantic County's complaint, asserting Executive Order No. 106 as an affirmative defense.*fn6 On the same day, Commissioner Fauver notified Atlantic County that 35 named state prisoners were to remain in the Atlantic County jail. On July 10 the Commissioner formally designated Atlantic County as the place of confinement for all inmates sentenced to state prison who were then in the Atlantic County jail. On July 7, 1981, Assignment Judge Gruccio transferred the issue of the validity of the Executive Order to the Appellate Division, pursuant to R. 1:1-2. This discretionary referral recognized that "the grave problems that have beset our penal institutions" required "a uniform statewide ruling to guide * * * assignment judges in their decisions on

these matters."*fn7 The trial judge's actions were appropriate under the circumstances.

On September 4, 1981 the Appellate Division, 180 N.J. Super. 368 upheld the validity of Executive Order No. 106 and the actions taken by the Commissioner under its authority. On September 11, 1981 Governor Byrne issued Executive Order No. 108, which directed that Executive Order No. 106 remain in effect until January 20, 1982. Because of the dissent below, this case comes before the Supreme Court on appeal as of right. R. 2:2-1(a)(2).*fn8


Since an unnecessary decision on constitutional issues should be avoided, we initially decide whether the Governor has the statutory power to issue Executive Orders 106 and 108. This involves a determination as to (1) whether the current crisis constitutes an emergency within the meaning of the Disaster Control Act, and (2) whether the means chosen by the Governor to address the emergency are authorized by the statute.


The challenged executive orders rely on the authority of the Disaster Control Act, N.J.S.A. App.A:9-30 et seq. There is little legislative history to aid in its interpretation. Enacted in 1941, L. 1941, c. 393, it empowered the Governor to aid the federal government in the war effort. In 1942, the act was broadened to impart wide executive power in providing for civilian defense.

L. 1942, c. 250, 251. The scope of the act was subsequently expanded to apply to "any emergency" resulting from natural causes such as fire, flood or earthquake. L. 1949, c. 86. In 1953 it was further amended to include emergencies resulting from "unnatural causes." L. 1953, c. 438.

The purpose of the act and the broad powers conferred on the Governor are clearly stated in N.J.S.A. App.A:9-33.

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 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.

The Governor's ample powers are further elaborated at N.J.S.A. App.A:9-34.

The Governor is authorized to utilize and employ all the available resources of the State Government and of each and every political subdivision of this State, whether of men, properties or instrumentalities, and to commandeer and utilize any personal services and any privately owned property necessary 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.

Finally, the scope of the Governor's authority to issue emergency orders is defined by N.J.S.A. App.A:9-45:

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 other 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.

These sweeping provisions reveal three general, pertinent features of the act. First, the act vests ...

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