The Times, Trenton – Published: Wednesday, August 10, 2011, 6:33 AM

By Richard J. LaRossa

When we weren’t looking, a panel of New Jersey Appellate Court judges got it right! On July 12, a three-judge panel issued a decision that upheld a state agency’s right to reduce benefits because of the state’s financial situation.

In other words, Judges Philip Carchman, Ronald Graves and Carmen Messano agreed that the state does not have to spend money it does not have. What a novel concept. I wonder if that type of sanity will ever make its way to the New Jersey Supreme Court.
The case, which received little attention, involved the state Department of Human Services and its NJ Family Care Program.

NJ Family Care was one of many programs that sustained budget cuts in 2010. Because of those cuts, the department simply complied by eliminating coverage for “resident aliens” under NJ Family Care.

A suit was brought on behalf of the resident aliens (it does not say whether they are legal or not) by the Seton Hall University School of Law Center for Social Justice.

(Anything that uses the phrase “Center for Social Justice” means it wants more taxpayer money.) It was the plaintiffs’ first contention that “interpreting the appropriations acts as providing authority for defendants’ actions results in an unconstitutional delegation of power by the Legislature to the Executive branch in violation of Article III, paragraph 1 of the New Jersey Constitution.”

In other words, the defendants — that is, entities of the state — figured that the appropriations act gave them authority to eliminate services for which they did not have the money. The convoluted logic of the CSJ argues that it was unconstitutional for state entities to carry out their duties as prescribed by the Legislature’s budget.

Unfortunately, the constitution has something called the separation of powers clause, which separates the duties of one branch from another.

Once the budget has been passed and signed into law, it is up to the executive branch to carry it out, and it simply cannot spend more money than was allocated in the appropriations act in the first place. God forbid that anyone should follow the constitution!

The judges dismissed that charge, citing Camden vs. Byrne (1980): “[A] definite legislative intent as reflected in the general appropriation laws … supersedes any previously expressed legislative desires at least for the duration of the particular appropriation act.” The court rightfully found that “[H]ere, cooperation between the legislative branch, in appropriating funds, and the Commissioner, in utilizing her expertise to allocate scarce funds, was necessary to further the underlying purposes of NJ Family Care.”

In other words, the budget can set policy for the duration of the fiscal year. This was further clarified and confirmed in a unanimous 1992 state Supreme Court decision.

The plaintiffs then sought relief by contending that a resident alien was a “person” under the Equal Protection Clause under the 14th Amendment. They charged that the state was therefore denying their clients equal protection under the law.

The court stated that federal laws permit states considerable leeway when it comes to providing services to their resident aliens.

The judges also noted that the United States Code states that “when a state determines that the burden is too high and decides against optional coverage, it is addressing the Congressional concern“ (not just a parochial state concern) that ”individual aliens not burden the public benefits system.“

In the court’s opinion, “plaintiffs are not likely to succeed on their equal protection claims under the United State Constitution.”

After the incomprehensible Abbott XXI school funding decision, it is amazing that a New Jersey court would rule that the state is permitted to spend only to “the limits of the appropriations act,” i.e. the money that it has.

It was also important for the court to note that, “In the exercise of its power to appropriate funds, the Legislature may attach ‘conditions, restrictions … limitations on the expenditure, use, or application of appropriated funds.’ “ That’s actually part of the New Jersey Constitution, in case anyone is wondering!

The three Appellate Court judges are a rarity when it comes to the New Jersey judiciary.
They looked at the facts of the case and ruled based on the facts and the law. They did not legislate from the bench and clearly had no political agenda. New Jersey Chief Justice Stuart Rabner must have had them bound and gagged in a closet somewhere when he was looking for fill-ins to rule on the school funding case.

The Seton Hall University School of Law Center for Social Justice will probably appeal the case to the New Jersey Supreme Court. At the Supreme Court level, it will most likely be successful, because the state Supreme Court is known for making the state spend money that it does not have, which violates the separation of powers clause, wherein only the Legislature has the authority to appropriate funds.

Fortunately, Appellate Court Judges Carchman, Graves and Messano have given us a glimmer of hope. Let’s hope that other New Jersey courts see the light.

Richard J. LaRossa is president and CEO of Solutions for New Jersey Inc.

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