On certification to the Superior Court, Appellate Division, whose opinion is reported at 350 N.J. Super. 489 (2002).
This appeal considers whether a board of school estimate of a county college, created pursuant to an abridged version of the procedures delineated in N.J.S.A. 18A:64A-1 to -25, nonetheless has the authority to compel a county's board of chosen freeholders to fund a capital project for the college.
In 1981, the Warren County Board of Chosen Freeholders (Freeholders) established the Warren County Community College Commission (Commission) pursuant to N.J.S.A. 18A:64A-30. By 1986, the Board of Higher Education (BHE) approved the award of associate degrees by the Commission. Subsequently, the Commission resolved to change its status from a community college agency to a county college and to build a campus. In 1991, the BHE authorized the Commission's plan to become a county college and it instructed the Commission on the procedure to achieve that status. The BHE did not view the proposed change as a petition to create a new college under N.J.S.A. 18A:64A-2 to -6. It considered the statutes to be applicable only when a county does not have an established community college agency. Accordingly, the BHE instructed the Commission to submit a petition for re-licensure asking that it be allowed to change its name to Warren County Community College (WCCC). The BHE granted the Commission's petition on January 25, 1992.
Six years later, the WCCC Board of Trustees (Trustees) decided to construct a college community center. In a November 3, 1998, non-binding referendum, the voters of Warren County rejected the proposal. The Trustees subsequently adopted a resolution approving the construction and referencing their intent to seek matching funds under a State program. The Trustees forwarded the resolution to the college's Board of School Estimate. In February 1999, that board certified that the amount necessary to complete the capital project was $4,140,720, and it forwarded the certification to the Freeholders. The certification occurred as a result of a three-to-two vote by the Board of School Estimate, with the majority consisting of the two non-elected trustee members and one freeholder.
Pursuant to N.J.S.A. 18A:64A-19, certification by a board of school estimate requires the freeholders to raise the funds so certified by one of several methods, including the issuance of bonds. Here, however, the Freeholders failed to provide the funding. On October 14, 1999, the trial court ordered the Freeholders to appropriate the funds. Thereafter, the State approved matching funds on the condition that the county issue bonds no later than August 1, 2001. Concerned that this deadline could not be met, the Trustees filed a motion to compel compliance with the court's order. The Freeholders opposed the motion, contending that WCCC did not achieve college status properly under the statutes and therefore the Board of School Estimate lacked the power to compel the appropriation of funds or the issuance of bonds. The court rejected that argument, and ordered that the bonding proceed.
The Appellate Division reversed, concluding that the provision that requires a county governing body to appropriate funds certified by a board of school estimate is unconstitutional as applied to Warren County. The court so held because the makeup of the board of school estimate in that county resulted in a situation where it could certify funds even though only one of the three elected freeholders supported the action. The panel concluded that the statute was unconstitutional as applied to a three-member freeholder board because a non-majority vote by the freeholder members on the board of school estimate could bind the hands of an elected body. The court observed also that the Commission had failed to convert properly into a county college because it had not followed the statutory procedures that provide an opportunity for voter input on the decision to create a county college.
HELD: Because Warren County Community College was established without an opportunity for public input and because the statutory power to mandate appropriations through the certification authority of the college's Board of School Estimate impacts the County Freeholders' authority to levy local taxes, the Board of School Estimate here does not -- and constitutionally cannot -- mandate county appropriations to the college. Despite the procedural irregularity that occurred in the college's formation, the college shall not lose its status.
1. The scheme established by the Legislature for the creation of a county college provides, in part, that after the county freeholders pass a resolution establishing a county college, the resolution must be published. Thereafter, citizens of the county have forty-five days to produce a petition requesting a referendum on the creation of the school. If such a petition is filed, a referendum must be submitted to the voters of the county in the next general election, and it must pass by a majority vote. (Pp. 9 to 11.)
2. A county college must have a board of school estimate comprised of the chairman of the freeholders, two other freeholders selected by their board, and two member of the board of trustees selected by that board. It is the board of school estimate that, at a public hearing, determines the funds necessary to operate the college. Following the public hearing, the board must certify the amount in writing to the board of chosen freeholders. The freeholders have no discretion to alter the amount; they must appropriate the monies, which are assessed, levied, and collected in the same manner as other county appropriations. Alternatively, funds may be raised by the county's issuance of bonds or other forms of financing. (Pp. 11 to 12).
3. If a county has not established a college, the freeholders may establish a community college agency, as was done in Warren County initially. To do so, the freeholders need only obtain the consent of the Commission on Higher Education. The community college agency is governed by a community college commission, which is charged with providing a recommendation in respect of operating funds. As determined by the Appellate Division, there are two key distinctions between an established county college and a county college agency: (1) only the board of school estimate of a county college can fix the amount of operating funds and then compel the county freeholders to provide that funding; and (2) a voter participation opportunity is required to establish a county college. (Pp. 12 to 14).
4. The New Jersey Constitution confers on the Legislature the power to impose taxes and otherwise raise revenue. The power to levy taxes at the local level may be delegated to political subdivisions to defray local costs and expenses on the principle that for local purposes the local authorities are the representatives of the people. Thus, implicit in the delegation of taxing power to counties and municipalities is the concept of popular representation rooted in the principle that the right of taxation rests ultimately with the people. (P. 14).
5. N.J.S.A. 18A:64A-1 to -25 encompasses a scheme that empowers the board of school estimate to force the allocation or appropriation of revenue. To withstand constitutional scrutiny, that legislative authorization must reflect the will of the people. The constitutional requirement is met when the public is afforded an opportunity to decide whether to subject itself to a statutory scheme in which appropriations determinations will be made by an entity consisting of both elected and non-elected officials. The legislative plan for the creation of a county college provides a mechanism to permit public input on whether to create the college, within a structure that includes a board of school estimate empowered to compel the expenditure of funds. Only after complying with those procedures does a board of school estimate obtain the power to mandate appropriations by county freeholders. (Pp. 14 to 16).
6. Here, the creation of WCCC by sanction of the BHE eliminated the opportunity for public participation necessary to vest in the Board of School Estimate the power to mandate appropriations. The legislation does not envision that result, and the constitutional principles governing the taxing power prohibit it. However, WCCC is in no way infirm in respect of any other powers, and the Court's decis ion is limited to the effect that must be given to certifications issued by the Board of School Estimate. The Court does not reach the other conclusions of the Appellate Division except to note that it disagrees with its determination that the statutory scheme is unconstitutional as applied to Warren County. Had there been an opportunity for public input as the legislative scheme envisions, there would be no constitutional infirmity in this setting. (Pp. 16 to 18).
The judgment of the Appellate Division is AFFIRMED, as MODIFIED.
JUSTICE VERNIERO, concurring, agrees that Warren County's failure to gain public input when it established the county college rendered the Board of County Estimate without authority to act in the manner sought here.
However, he would reserve for another day the question whether the board's action would have passed constitutional muster had such public input been obtained.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, ZAZZALI, and ALBIN join in JUSTICE LaVECCHIA's opinion. JUSTICE VERNIERO ...