On appeal from Executive Order No. 118, Issued September 22, 2000.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Fisher and Baxter.
We address in these consolidated appeals the continued viability of an executive order, issued in 2000, which mandated the continued temporary housing of sexually violent predators at the Hudson County Correctional Facility in Kearny (the Kearny facility). The failure to locate a housing alternative for the last nine years compels our holding that the circumstances upon which the executive order was based no longer constitute an emergency within the meaning of the Disaster Control Act, N.J.S.A. App. A:9-30 to -45, and that appellants are entitled to relief.
In 1998, the Legislature enacted the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, which authorized the involuntary civil commitment of persons found to be sexually violent predators.*fn1 The SVPA placed with the Department of Corrections (DOC) the responsibility of operating a facility for "the custody, care and treatment" of SVPs. N.J.S.A. 30:4-27.34.
In April 1999, the DOC designated the Kearny facility, which at the time housed 311 minimum security inmates, as the only available site for the temporary housing of SVPs. A few months later, the County of Hudson filed a complaint, which alleged the DOC's failure to provide a fully-executed lease agreement or to pay rent for July, and obtained an order that required the DOC to show cause why the lease should not be terminated and the DOC enjoined from designating the Kearny facility as a location for the housing of SVPs. The trial court concluded that the County was under no obligation to lease the facility to the DOC and entered a judgment for possession, in favor of the County, on January 3, 2000; the judge stayed execution of the warrant of removal until March 31, 2000. We affirmed by way of an unpublished opinion, County of Hudson v. Department of Corrections, No. A-3008-99T1 (App. Div. June 21, 2000), and the trial judge thereafter issued a warrant of removal but continued to stay its execution until September 29, 2000.
On September 22, 2000, one week before the stay expired, Governor Christine Todd Whitman invoked her emergency powers, pursuant to the Disaster Control Act, and entered Executive Order 118. Governor Whitman declared in the order's preamble that approximately 120 SVPs were then housed in the Kearny facility, the number "will continue to increase," and the removal of the SVPs "from the Kearny facility will create a statewide emergency within the meaning of the Disaster Control Act." As a result, Governor Whitman ordered:
1. Pursuant to the Disaster Control Act, the Kearny facility is hereby designated as a facility appropriate for the temporary housing of [SVPs] by the [DOC].
2. The Kearny facility will be used to house [SVPs] until there exists either other temporary facilities capable of and appropriate for the housing of all individuals committed pursuant to the [SVPA] or until a permanent facility capable of accommodating this population is constructed and operational.
3. Hudson County shall be compensated for the use of the Kearny facility consistent with the terms of the 1998 payment provisions of the lease; and
4. This Order shall take effect immediately.
The County applied in the trial court for an order that would require the DOC to demonstrate that Executive Order 118 was legitimately based on the Disaster Control Act. The trial judge determined that original jurisdiction over that issue laid with this court, causing the County to apply here for relief. We found that Executive Order 118 constituted a valid exercise of the authority provided ...