On certification to the Superior Court, Appellate Division, whose opinion is reported at 256 N.J. Super. 143 (1992).
For modification and affirmance -- Chief Justice Wilentz and Justices Handler, Clifford, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None. The opinion of the Court was delivered by Clifford, Justice.
We granted certification, 130 N.J. 398, 614 A.2d 620 (1992), to determine whether current prison overcrowding constitutes an "emergency" within the meaning of the Disaster Control Act, N.J.S.A. App.A:9-30 to -63. Because the Appellate Division concluded that an "emergency" as contemplated by that Act no longer existed, it invalidated the then-existing Executive Order (No. 52), which had authorized the housing of State prisoners in county jails. 256 N.J. Super. 143, 152-53, 606 A.2d 843 (1992). The Appellate Division directed that its decision become effective one year from April 29, 1992, the date of its decision.
We modify the judgment below only to the extent that this Court's judgment will become effective one year from the date of this decision. As modified, the judgment is affirmed.
On May 29, 1990, Gloucester County filed a complaint in lieu of prerogative writs, seeking 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, appearing as amicus curiae, claimed a similar undercompensation for its housing of State prisoners and contended that in fact the problems of overcrowding and undercompensation exist throughout the state. Gloucester County sought as alternative relief the removal from its county jail of all State prisoners in excess of the twenty prisoners that its contract with the State obligated it to house. Similarly, Morris County applied for an order that would compel removal of all State prisoners in excess of the forty required by its contract.
The trial court granted the State's motion to transfer the matter to the Appellate Division under Rule 1:13-4. The Appellate Division recognized the severe and continuing problem of prison overcrowding; nonetheless, the court held that an
"emergency" within the meaning of the Disaster Control Act no longer existed. The court below said:
[The] "emergency" as defined in the Disaster Control Act, including the temporary problem of overcrowding, may well not include a permanent or semi-permanent condition. This definition does not imply a vehicle to circumvent the general plan of the State's statutes governing the county and State correction systems over such an extended period of time.
The Appellate Division thus invalidated Executive Order No. 52, which had authorized the housing of State prisoners in county jails. Id. at 152-53, 606 A.2d 843.
Addressing the question of reimbursement, the court held that pursuant to Shapiro v. Fauver, 193 N.J. Super. 237, 473 A.2d 112 (App.Div.), certif. denied sub nom. Shapiro v. Albanese, 97 N.J. 668, 483 A.2d 186 (1984), the Commissioner could exercise his discretion in setting the per diem rate of compensation during the life of the Executive Order. 256 N.J. Super. at 153, 606 A.2d 843. However, the court determined that once the Executive Order and the power to house State prisoners in county jails under the emergency powers has expired, the State will no longer be permitted to pay the counties less than their costs for housing State prisoners. Ibid.
The Disaster Control Act was enacted in 1941 to enable the Governor to assist the federal government during war emergencies, but amendments in 1942, 1949, and 1953 have since widened its scope. The broad purpose of the 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 Act empowers the Governor to "utilize and employ all the available resources of the State Government and of each and every political subdivision of this State * * * 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." N.J.S.A. App. A:9-34. The Act defines an "emergency" as including a "disaster." N.J.S.A. App.A:9-33.1(4). A "disaster" is
any unusual incident resulting from natural or unnatural causes which endangers the health, safety or resources of the residents of one or more municipalities of the State, and which is or may become too large in scope or unusual in type to be ...