On appeal from the Superior Court of New Jersey, Law Division, Gloucester County.
King, Dreier, and Gruccio. The opinion of the court was delivered by Dreier, J.A.D.
The County of Gloucester here seeks 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 has intervened as amicus curiae, claiming that the same underpayment exists in Morris County, and that the problems of overcrowding and underpayment is pervasive throughout the State. Alternatively, plaintiff contends that the State prisoners in excess of the 20 prisoners that the Gloucester County is contractually bound to house (40 in Morris County), should be removed from the county jail. Originally this action was filed in the Law Division by a complaint in lieu of prerogative writs, but the State successfully moved to transfer this matter to the Appellate Division. The County here pursues both its primary action transferred to the Appellate Division and an appeal from the order of transfer, contending that the matter properly should have been heard in the Law Division so that a more complete record could have been made. We have consolidated these appeals.
In 1981 former Governor Byrne issued Executive Order No. 106 declaring a Statewide emergency due to over-crowded conditions in the correctional institutions of the State, and authorizing the Commissioner of Corrections to house State prisoners in county jails. The early history of the order and its renewals has been thoroughly explored in Worthington v. Fauver, 88 N.J. 183, 440 A.2d 1128 (1982) (upholding the emergency order), and Shapiro v. Fauver, 193 N.J. Super. 237, 473 A.2d 112 (App.Div.1984), certif. denied sub nom., Shapiro v. Albanese, 97 N.J. 668, 483 A.2d 186 (1984) (where presuming the validity of the emergency orders through 1983, the court, over a strong Dissent by Judge Joelson, upheld the appropriateness of the amount of reimbursement established by the Commissioner). Suffice it to say that throughout the administrations of Governor Byrne, Governor Kean and Governor Florio, 16 successive
emergency declarations have been entered by Executive Order, culminating in the current Executive Order No. 52 entered January 17, 1992.
The level of reimbursement was raised from $42.95 per prisoner per day to $45 for the 1985 fiscal year. Notwithstanding the County's assertion of escalating costs, there has been no increase in the reimbursement rate in the past seven years. In sworn testimony in a federal action involving Camden County, the Commissioner stated that the average cost for housing State prisoners in 1989 was approximately $63 per inmate. In his letter to this court he estimates the per diem cost at $50 per day, explaining that the discrepancy in the figures stems from the inclusion in the $63 figure of "costs for treatment, education and care programs which are provided at the State level which are not, in many instances, being provided at the county level."*fn1
The County contends that whatever the costs may be for housing State prisoners in a State facility, the proper measure of support should be the cost of maintaining the prisoner in the particular county facility. It is the difference between the level of reimbursement and cost of maintaining the prisoners in the county jail that is being borne by the county taxpayers. Furthermore, since each county has a different tax base to defray such costs, the burden is unequally spread among the counties and their taxpayers. The County has been provided with the State's own figures for housing prisoners in the various State facilities during 1990. They vary from a low of $51.46 to a high of $86.32 per prisoner, and average $66.49. The Morris County amicus brief represents that the United States Marshall's Service agreed as of October 1, 1991 to reimburse Morris County for federal prisoners housed in the Morris County Jail at the rate of $65 per day.
There is no question that there is a significant problem of over-crowding in all of the State and county facilities. When Gloucester County built its jail 10 years ago it was designed to hold 104 prisoners. Since then it has been ordered to double-up the prisoners and to convert additional space to housing, raising its capacity to 225 prisoners. It is still over-crowded and the jail population is constantly subject to orders reducing the jail time of offenders because of a lack of space. The County therefore seeks removal of 55 State prisoners. Morris County has similar problems. Its jail is operating at 211% of its capacity, including 101 State prisoners, 61 more than the 40 the County is contractually bound to house. It estimates the actual cost of housing its jail population at $88 per inmate per day, for which it is reimbursed at the $45 rate.
The State urges that there still is an emergency. When the original Executive Order took effect in June 1981, the State Prison system held 7,637 prisoners, including 569 juveniles and 470 prisoners in County facilities. According to the last available statistics for July 1991, the total inmate population had risen to 23,111, including 678 juveniles and 3,430 prisoners held in county facilities. The State intake therefore has risen three-fold over this ten-year period. To accommodate this increase the State has constructed new prisons and has tripled its own capacity, yet its continued reliance on county facilities wherein the number of State prisoners has also tripled, has caused the county jails throughout the State to be operating at an average of 167% of capacity (utilizing March 1990 figures). State prisons, however, operated at 104.97% of their capacity in 1990, and are projected to have operated at 108.6% of their capacity in 1991. The 1991 State Corrections Report recommended additional funding to pay for the cost of State ...