On appeal from a final decision of the New Jersey Department of Corrections.
Antell, Joelson and McElroy. The Opinion of the Court was delivered by Antell, P.J.A.D. Joelson, J.A.D. dissenting.
[193 NJSuper Page 238] On June 19, 1981 Executive Order No. 106 was signed by Governor Brendan T. Byrne. Authorized by N.J.S.A. App. A:9-34 of the Civil Defense and Disaster Control Act, it directed that the Commissioner of the Department of Corrections ("Commissioner") designate the place of confinement of all inmates confined
in all state and county penal or correctional institutions and for this purpose the Commissioner was empowered to utilize "any available, suitable, and appropriate institution or facility, whether owned by the State, a County, or any political subdivision of this State, or any other person, for the confinement of inmates confined in the State and/or County penal or correctional institutions." Pertinent to this appeal, paragraph 10 of the order provides: "The Commissioner of Corrections shall develop an appropriate compensation program for the counties."
Executive Order No. 106 has been extended by a number of orders signed by Governor Byrne and his successor, incumbent Governor Thomas H. Kean.
By letter of June 29, 1981 from the Commissioner to the Director of Corrections for Essex County, the Essex County Jail and its Annex were designated as places of confinement "for all persons currently sentenced by the courts in Essex County to the care and custody of the Commissioner of the New Jersey Department of Corrections," and those facilities have since been utilized accordingly by the State.
The issue raised by this appeal centers on so much of Executive Order No. 106 which directs the Commissioner to develop "an appropriate compensation program for the counties." Plaintiff contends that the weighted average per diem cost to house an inmate is $63.36, whereas the Commissioner allows only $42.95 in reimbursement. His determination to this effect is stated in a letter dated February 18, 1983 replying to plaintiff's letter of January 27, 1983 asking for reimbursement at the rate of $60 a day. No hearing has been conducted and we do not have the benefit of any findings by the Commissioner. However, on April 8, 1983 the county filed its notice of appeal from the Commissioner's letter determination of February 18, 1983.
We are here asked to decide that the Commissioner's action is arbitrary, capricious and unreasonable and to direct the State to reimburse Essex County for its actual weighted average per diem cost per inmate. The only source of authority for the
county's claim of entitlement to reimbursement is so much of Executive Order No. 106 which directs the Commissioner to "develop an appropriate compensation program for the counties." Although under N.J.S.A. 2C:43-10 and N.J.S.A. 30:4-6 the Commissioner is ordinarily required to receive for safekeeping in State Prison all convicted defendants within 15 days of conviction, it was held in Worthington v. Fauver, 88 N.J. 183, 200 (1982) that Executive Order No. 106 suspends the normal operation of these statutes. It was also there held that the actions taken by the legislative and executive branches of government in connection with the foregoing exercise of emergency powers by the Governor were in all respects valid and effectual. Although the Supreme Court there noted that the order's explicit provision for compensation to the counties obviated a major concern expressed prior to Executive Order No. 106 in Cryan v. Klein, 148 N.J. Super. 27 (App.Div.1977), holding that under N.J.S.A. 2A:164-18 (the predecessor of N.J.S.A. 2C:43-10) the Commissioner of Corrections was obliged to receive prisoners sentenced to a state institution within 15 days, the Court nowhere suggested that the payment of compensation was essential to the validity of the Order. As the decision states, quoting United States v. Yoshida Intern. Inc., 526 F.2d 560, 583 (Cust. & Pat.App.1975), "'[I]f every law applicable to tranquil times were required to be followed in emergencies, there would be no point in delegating emergency powers and no adequate, prompt means for dealing with emergencies.'"
In our view, the action of the Governor in directing payment of compensation to the counties was not compelled by law and therefore there is no legal or constitutional standard against which to measure the Commissioner's exercise of discretion. In directing the Commissioner to formulate an "appropriate" program of compensation the Governor evidently chose to leave the entire question of how much the counties should be paid to the expertise of the department of corrections. If it was the Governor's intention that the counties should be fully reimbursed for their actual cost the executive order could readily
have said so. Taking into consideration the fact that he did not direct such a result and the further fact that the counties were legally entitled to nothing in compensation for the emergency takeover of their jail facilities except what the Governor chose to allow, we cannot perceive any criterion by ...