Courts can’t force Gov. Murphy to fill vacancies on defunct affordable housing board, judges say

An appellate panel has declined to force Gov. Phil Murphy to make appointments to the defunct Council on Affordable Housing, ruling it lacks the authority to compel the governor to make nominations.

Tuesday’s decision is a defeat for the 17 municipalities behind a lawsuit that sought to force Murphy to make appointments to the council, which New Jersey’s Supreme Court declared “moribund” in 2015.

The three-judge panel found courts lack the authority to issue mandamus — a judicial writ ordering a person or court to perform a certain duty — against the governor, citing court precedents first set in 1856 and reinforced over the intervening years.

“Stated another way, even if a statute mandates the Governor make an appointment, that obligation cannot be enforced by the Judiciary,” the judges wrote.

The judges added that even if they could order Murphy to perform a certain act, they could not order him to make appointments because such actions are discretionary and fall outside the bounds of court power.

The court further rejected arguments that the governor is required by law to make such appointments within a certain timeframe.

In filings, the municipalities said they lodged the suit to regain control of development and speed the creation of affordable housing.

The ruling comes as the Legislature is considering a bill that would eliminate the Council on Affordable Housing and revamp the state’s affordable housing system. A hearing on the bill is scheduled to be heard by a Senate committee Thursday.

Plaintiffs in the case argued provisions of the Fair Housing Act that require the governor to nominate the inaugural council members within 30 days of the act’s effective date place a deadline on nominations that Murphy must observe.

But the judges discounted that argument, saying language that the housing council’s vacancies be “filled in the same manner as the original appointments” refers only to the process of their appointment and not their timing.

They said that while legislators who drafted the Fair Housing Act may have expected the governor to make nominations to the council, that expectation was not the same as a mandate.

“The Legislature may not have thought a mandate was appropriate or necessary. Indeed, Governors generally need not be compelled to make appointments or exercise a political power that permits them to lawfully further their policy goals. But we need not speculate about the Legislature’s intentions, nor can we rewrite the legislation,” the judges wrote.

Attorneys for the municipalities did not return a request for comment, and it’s unclear whether the towns will ask the New Jersey Supreme Court to take up the case.