NOT FOR PUBLICATION WITHOUT THE 

APPROVAL OF THE APPELLATE DIVISION 

 SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-0050-22 

IN THE MATTER OF THE 

APPOINTMENT OF THE 

COUNCIL ON AFFORDABLE 

HOUSING BY GOVERNOR 

PHILIP MURPHY. 

___________________________

Argued December 12, 2023 – Decided January 23, 2024 

Before Judges Sumners, Rose and Smith. 

On appeal from an inaction of Governor Philip Murphy. 

 

Jeffrey R. Surenian argued the cause for appellants

Borough of Beach Haven (Ocean County), Township of 

Bordentown (Burlington County), Township of 

Chatham (Morris County), Township of Cranford 

(Union County), Township of East Hanover (Morris 

County), Township of Egg Harbor (Atlantic County), 

Township of Fairfield (Essex County), Township of 

Freehold (Monmouth County), Township of Jackson 

(Ocean County), Township of Mahwah (Bergen 

County), Borough of Montvale (Bergen County), 

Township of Readington (Hunterdon County), Borough 

of Sayreville (Middlesex County), Township of West 

Caldwell (Essex County), Borough of Franklin Lakes 

(Bergen County), Township of Hillsborough (Somerset 

County), and Township of Warren (Somerset County) 

(Surenian, Edwards, Buzak & Nolan, LLC, attorneys; 

Jeffrey R. Surenian and Michael J. Edwards, of counsel 

and on the briefs; William Edward Olson, on the 

briefs).

APPROVED FOR PUBLICATION 

January 23, 2024 

APPELLATE DIVISION 
2 A-0050-22

Michael L. Zuckerman, Deputy Solicitor General, 

argued the cause for respondent Philip Murphy, in his 

official capacity as Governor of New Jersey (Matthew 

J. Platkin, Attorney General, attorney; Jeremy M. 

Feigenbaum, Solicitor General, Michael L. Zuckerman, 

and Melissa Dutton Schaffer, Assistant Attorney 

General, of counsel; Susan Marie Scott, Tim Sheehan, 

and Levi Malcolm Klinger-Christiansen, Deputy 

Attorneys General, on the brief). 

Adam M. Gordon argued the cause for amicus curiae 

Fair Share Housing Center (Adam M. Gordon, of 

counsel and on the brief; Zoey Chenitz, on the brief). 

Frank Glenn Marshall, Jr., Associate General Counsel, 

argued the cause for amicus curiae New Jersey State 

League of Municipalities and New Jersey Institute of 

Local Government Attorneys (William J. Kearns, Jr.,

General Counsel, attorney; Frank Glenn Marshall, Jr., 

on the brief). 

Thomas F. Collins, Jr., argued the cause for amicus

curiae Township of South Brunswick and Township of 

South Brunswick Planning Board (Vogel, Chait, 

Collins & Schneider, attorneys; Thomas F. Collins, Jr., 

and Thomas James Molica, on the brief). 

Jonathan Edward Drill argued the cause for amicus

curiae Borough of Chatham (Morris County), 

Township of Clinton (Hunterdon County), Township of 

Greenwich (Warren County), Borough of Lebanon 

(Hunterdon County), Borough of Saddle River (Bergen 

County), and Town of Westfield (Union County) 

(Stickel, Koenig, Sullivan & Drill, LLC, attorneys;

Jonathan Edward Drill, on the brief). 

The opinion of the court was delivered by 
3 A-0050-22

ROSE, J.A.D. 

 This appeal requires us to consider whether the Governor can be 

compelled by mandamus to act on an appointment power when the statute at 

issue neither expressly requires, nor provides a deadline for, the exercise of that 

discretionary function. Seventeen municipalities challenge the Governor's

inaction, demanding he fill long-standing vacancies on the Council on 

Affordable Housing (COAH). Contending the Fair Housing Act (FHA), 

N.J.S.A. 52:27D-301 to -329.20, mandates the chief of the executive branch to 

fill those appointments, appellants argue Governor Murphy's inaction violates 

that obligation and undermines the public policy reflected in the FHA. 

Appellants claim this court can and must enforce the Governor's obligation to 

appoint members to COAH. Appellants also assert the Governor's inaction 

violates the Chief Executive's constitutional duty to "take care that the laws be 

faithfully executed." See N.J. Const., art. V, § I, ¶ 11. Finally, appellants claim 

the Governor effectively and inappropriately abolished COAH in contravention 

of our Supreme Court's decision in In re Plan for the Abolition of the Council 

on Affordable Housing, 214 N.J. 444, 471 (2013) (Abolition of COAH). 

Governor Murphy counters this court cannot compel the Chief Executive 

to make appointments because mandamus – the relief appellants seek – cannot 
4 A-0050-22

be applied against the Governor, generally. In particular, the Governor argues 

"New Jersey courts have long held that they lack jurisdiction to issue a writ of

mandamus compelling the Chief Executive to act." Further, even if mandamus 

were applicable to the Governor, the remedy is unavailable here because 

appellants seek to compel an exercise of discretion. Finally, Governor Murphy 

contends "a Governor's decision regarding when and whether to make 

appointments is a classic type of nonjusticiable question that courts have 

consistently avoided" under separation-of-powers principles, specifically, the 

political question doctrine. 

 Having considered the parties' arguments in view of long-established legal 

principles, we hold the Governor cannot be compelled by mandamus to fill 

COAH's vacancies. Accordingly, we reject appellants' contentions and dismiss 

the appeal. 

I.

A. COAH's History and Framework 

We begin by setting forth COAH's history and framework in some detail 

to give context to the issues raised on appeal. COAH's origin is rooted in our 

Supreme Court's landmark decision in Southern Burlington County NAACP v.

Township of Mount Laurel, 67 N.J. 151, 174 (1975) (Mount Laurel I), which 
5 A-0050-22

held developing municipalities are under a constitutional obligation to provide 

a realistic opportunity for the creation of affordable housing. Eight years later, 

the Court clarified and reaffirmed that constitutional requirement in Southern 

Burlington County NAACP v. Township of Mount Laurel, 92 N.J. 158, 351-52

(1983) (Mount Laurel II). 

Finding "widespread non-compliance with" Mount Laurel I, id. at 199, 

and acknowledging the Legislature had thus far failed to act to protect "the 

interests involved," id. at 212, the Court in Mount Laurel II created a judicial 

remedy to enforce the constitutional zoning obligations of municipalities. Id. at

289-91. Specifically, the Court fashioned a special litigation track for 

exclusionary zoning cases and expanded "builder's remedies" enabling them to

sue for the opportunity to construct housing at higher densities than a 

municipality would permit. Id. at 279-81, 287-93. The Court, however, 

expressed its long-standing preference for legislative rather than "judicial action 

in this field." Id. at 212. 

 Two years later, in 1985, the Legislature responded to Mount Laurel II by 

"enact[ing] the FHA, which created COAH and vested primary responsibility 

for assigning and determining municipal affordable housing obligations in that 

body." In re Adoption of N.J.A.C. 5:96 & 5:97, 221 N.J. 1, 7 (2015) (Mount 
6 A-0050-22

Laurel IV) (citing N.J.S.A. 52:27D-305, -307). In the "Findings" section of the 

FHA, the Legislature expressly recognized the Court's statements in Mount 

Laurel II that addressing the Mount Laurel obligation was "'better left to the

Legislature' . . . and that the judicial role in upholding the Mount Laurel doctrine 

'could decrease as a result of legislative and executive action.'" N.J.S.A. 

52:27D-302(b). 

Pursuant to the FHA, COAH was "established in, but not of, the

Department of Community Affairs [(DCA)] and [COAH] . . . to consist of 12

members appointed by the Governor with the advice and consent of the Senate." 

N.J.S.A. 52:27D-305(a). Membership must be balanced to represent various 

constituencies, with no political party enjoying a majority presence. Ibid. The

FHA also required the Governor nominate members within thirty days of the

act's effective date. N.J.S.A. 52:27D-305(d). Generally, members serve sixyear terms "until their respective successors are appointed and shall have 

qualified," with terms staggered via varying term lengths designated for the

initial batch of appointees. N.J.S.A. 52:27D-305(b). Of particular relevance to

this appeal: "Vacancies shall be filled in the same manner as the original 

appointments, but for the remainders of the unexpired terms only." Ibid. 
7 A-0050-22

By structuring COAH in this manner, the Legislature intended the Council 

"to be independent." Abolition of COAH, 214 N.J. at 471. "Although the 

Governor has the power to appoint the Council's members," our Supreme Court 

has explained "the membership requirements in the statute ensure that a crosssection of community and State interests serve on the Council, with individual 

members representing different voices: local government, households in need 

of low- and moderate-income housing, nonprofit builders of affordable housing,

the disabled, for-profit builders, and the public interest." Ibid. Moreover, 

"[m]embers serve staggered six-year terms that do not coincide with

gubernatorial terms." Ibid. (citing N.J.S.A. 57:27D-305(b)). 

The FHA required COAH "to enact regulations that establish, and 

thereafter update, statewide affordable housing need; to assign to each

municipality an affordable housing obligation for its designated region; and to

identify the delivery techniques available to municipalities in addressing the

assigned obligation." Mount Laurel IV, 221 N.J. at 7 (citing N.J.S.A. 52:27D307, -308). "The FHA also transferred pending Mount Laurel litigation to

COAH for resolution through an administrative process." Id. at 8. Under the 

act, municipalities are permitted to voluntarily submit their fair share housing

plans to COAH for review. N.J.S.A. 52:27D-309(a). 
8 A-0050-22

Shortly after the FHA's enactment, the Supreme Court commended the 

"unprecedented willingness by the Governor and the Legislature to face the

Mount Laurel issue" in response to the Court's "unprecedented decisions." Hills

Dev. Co. v. Bernards, 103 N.J. 1, 23 (1986) (Mount Laurel III). Reiterating its

view "that the vindication of the Mount Laurel constitutional obligation is best 

left to the Legislature," the Court noted the enactment of the FHA constituted 

the "[l]egislative action," which it had requested in Mount Laurel II. Id. at 46-

47.

"COAH adopted rules to govern its first and second housing cycles, but

when the Second Round rules expired in 1999, COAH had not proposed new 

regulations for the third housing cycle." In re Declaratory Judgment Actions 

Filed by Various Muns., Cnty. of Ocean, 227 N.J. 508, 514 (2017) (Mount 

Laurel V). COAH finally adopted Third Round rules in late 2004, a "dramatic 

and inexplicable" delay that "frustrated" "[t]he public policies underlying the

FHA and the Mount Laurel cases." In re Six Month Extension of N.J.A.C. 5:91-

1 et seq., 372 N.J. Super. 61, 95-96 (App. Div. 2004). However, "reviewing 

courts found several key aspects of the regulations to be invalid and violative of

the Mount Laurel doctrine," Mount Laurel V, 227 N.J. at 514-15, and partially 

invalidated the regulations first in 2007 and again in 2010 after COAH adopted 
9 A-0050-22

revised Third Round rules in 2008. Ibid.; In re Adoption of N.J.A.C. 5:94 & 

5:95, 390 N.J. Super. 1, 86-87 (App. Div.), certif. denied, 192 N.J. 71 (2007); 

In re Adoption of N.J.A.C. 5:96 & 5:97, 416 N.J. Super. 462, 477, 511-12 (App. 

Div. 2010), aff'd as modified, 215 N.J. 578 (2013). 

In 2010, the Senate passed a bill that would have "abolish[ed] COAH and 

transfer[red] many of its responsibilities to the [DCA]." In re Adoption of

N.J.A.C. 5:96 & 5:97, 416 N.J. Super. at 477. After approving various 

amendments, the Legislature passed a revised version of the bill. See Abolition

of COAH, 214 N.J. at 452. Then-Governor Chris Christie conditionally vetoed 

the bill, outlining specific objections and requesting amendment to a version 

previously passed by the Senate. Ibid. Shortly thereafter, the bill was 

withdrawn from consideration in the Legislature, and legislative attempts to

reform affordable housing policy and abolish COAH effectively ended. Id. at

452-53.

The following year, Governor Christie issued Reorganization Plan No. 

001-2011 which would have abolished COAH and "transferred COAH's powers, 

functions, and duties to DCA and replaced the twelve-member Council with the 

DCA Commissioner." Id. at 453. "The Governor relied on the [Executive 

Reorganization Act of 1969, N.J.S.A. 52:14C-1 to -11 (Reorganization Act)] to
10 A-0050-22

authorize this action." Ibid. This court thereafter invalidated the plan following 

The Fair Share Housing Center's (FSHC) ensuing appeal. Id. at 453-54 (citing 

In re Plan for Abolition of Council on Affordable Hous., 424 N.J. Super. 410 

(App. Div. 2012)). 

On certification, our Supreme Court affirmed our decision holding the 

Reorganization Act only authorizes the Governor to reorganize entities that are 

"of the executive branch." Id. at 454, (quoting N.J.S.A. 52:14C-3(a)). COAH, 

an independent agency as denoted by its establishment "in, but not of," the DCA, 

was "not 'of' the Executive Branch," and therefore "not subject to the 

[Reorganization] Act." Id. at 468 (quoting N.J.S.A. 52:27D-305(a)). Notably, 

COAH's status and whether the Council fell within the scope of the

Reorganization Act was the only issue before the Court. Id. at 448-49. 

The Court in Abolition of COAH found further support for COAH's 

independent design in its structure which included the membership 

requirements. Id. at 471. "The law, thus, does not give the Chief Executive 

plenary power over the operation of the Council. The current statute reflects 

careful judgments about who should make decisions on affordable housing 

policy and how those decisions are to be reached." Ibid. However, the Court's 

decision only concerned the applicability of the Reorganization Act: "The plain 
11 A-0050-22

language of the Reorganization Act does not authorize the Chief Executive to

abolish an independent agency like COAH. If the Governor and the Legislature 

wish to abolish COAH, they must take another path." Id. at 479. 

No other path was taken. COAH ultimately failed to adopt Third Round 

rules. In 2015, the Supreme Court "responded to years of delay and uncertainty 

with Mount Laurel IV, reaffirming the constitutional obligation to create a 

realistic opportunity for the provision of affordable housing" and "declar[ing] 

COAH defunct." Mount Laurel V, 227 N.J. at 515 (citing Mount Laurel IV, 221

N.J. at 3-4). The Court eliminated the FHA's exhaustion-of-administrativeremedies requirement, explaining the requirement "[wa]s premised on the

existence of a functioning agency, not a moribund one." Mount Laurel IV, 221

N.J. at 5. 

The Court in Mount Laurel IV thus recognized affordable housing 

disputes could proceed in a judicial forum. Id. at 5. However, the Court did not

foreclose "either COAH or the Legislature from taking steps to restore a viable 

administrative remedy that towns can use in satisfaction of their constitutional 

obligation." Id. at 34. The Court therefore was "hope[ful] that an administrative 

remedy w[ould] again become an option for those proactive municipalities that 
12 A-0050-22

wish to use such means to obtain a determination of their housing obligations." 

Ibid. 

In Mount Laurel V, 227 N.J. at 531, the Court reiterated that COAH could 

be "resurrect[ed] and operate constitutionally" in the future. It also recognized 

the possibility of "alternative methods," and "welcome[d] legislative attention 

to this important social and economic constitutional matter." Ibid. In the 

meantime, however, judicial oversight of municipal affordable housing 

obligations continues. 

B. The Present Appeal 

Contending "the COAH Board ceases to exist" as a direct consequence of 

the Governor's failure to fill its vacancies "for at least six years," on June 10, 

2022, ten municipalities1 sent a letter to Governor Murphy, demanding he 

"fulfill [his] duty under the FHA to appoint members to the COAH Board so that 

the FHA operates as the Legislature designed it." Citing the Court's decision in 

Abolition of COAH, the municipalities asserted the Governor's inaction 

1

 Township of Bordentown (Burlington County), Township of Chatham (Morris 

County), Township of Cranford (Union County), Township of East Hanover 

(Morris County), Township of Egg Harbor (Atlantic County), Township of 

Freehold (Monmouth County), Township of Mahwah (Bergen County), Borough 

of Montvale (Bergen County), Township of Readington (Hunterdon County), 

and Borough of Sayreville (Middlesex County). 
13 A-0050-22

effectively abolished COAH. The municipalities further claimed they would 

"seek relief from the [c]ourts" if the Governor failed to make the appointments 

within thirty days. In a second letter dated June 17, 2022, the municipalities 

reiterated their demands and clarified that they sought both a "commitment to 

appoint members . . . within 30 days of receipt of the letter on June 15, 2022,"

and actual appointments by August 15, 2022. 

The Governor took no action. Accordingly, the municipalities appealed 

from a purported "decision entered on 06/15/2022."2 After the appeal was filed, 

we granted the motions of four groups to appear as amici curiae: (1) FSHC; (2) 

a municipal group, comprised of six municipalities;3 (3) the Township of South 

Brunswick and its planning board; and (4) the New Jersey State League of 

Municipalities and the New Jersey Institute of Local Government Attorneys. 

2

 Seven additional municipalities thereafter joined this appeal: Borough of 

Beach Haven (Ocean County), Township of Fairfield (Essex County), Township 

of Jackson (Ocean County), Township of West Caldwell (Essex County), 

Township of Hillsborough (Somerset County), Township of Warren (Somerset 

County), and Borough of Franklin Lakes (Bergen County). 

3

 Borough of Chatham (Morris County), Township of Clinton (Hunterdon 

County), Township of Greenwich (Warren County), Borough of Lebanon 

(Hunterdon County), Borough of Saddle River (Bergen County), and Town of 

Westfield (Union County). 
14 A-0050-22

FSHC urges us to deny appellants' application; the remaining groups support the 

appeal. 

II. 

A. Appellate Jurisdiction 

At issue in this appeal is the Governor's "inaction" for failing to fill 

COAH's vacancies. As a preliminary matter, we agree with appellants that this 

court has jurisdiction "to review the Governor's actions and inactions" pursuant 

to Rule 2:2-3(a)(2). Although the Governor contends New Jersey courts "lack 

jurisdiction to issue a writ of mandamus compelling the Chief Executive to act," 

he does not dispute that the present matter was properly filed in this court. 

Rule 2:2-3(a)(2) provides, in pertinent part, "appeals may be taken to the 

Appellate Division as of right . . . (2) to review final decisions or actions of any 

state administrative agency or officer, and to review the validity of any rule 

promulgated by such agency or officer." As we have held, this court has 

jurisdiction over agency action and inaction. Caporusso v. N.J. Dep't of Health 

& Senior Servs., 434 N.J. Super. 88, 101 (App. Div. 2014) (quoting Pressler & 

Verniero, Current N.J. Court Rules, cmt. 3.1 on R. 2:2-3(a)(2) (2014)); see also 

Twp. of Neptune v. N.J. Dep't of Env't. Prot., 425 N.J. Super. 422, 432 (App. 
15 A-0050-22

Div. 2012). We also have assumed jurisdiction of appeals from actions of the 

Governor. Vas v. Roberts, 418 N.J. Super. 509, 519 (App. Div. 2011). 

B. Interpretation of the Statute Establishing COAH, N.J.S.A. 52:27D-305

 We next address appellants' contention that the Governor's initial 

appointment of COAH members under N.J.S.A. 52:27D-305 applies with full 

force and effect to the Governor's "obligation" to fill the Council's vacancies. 

Because this argument presents a question of statutory interpretation, we must, 

of course, "effectuate the intent of the Legislature, as evidenced by the plain 

language of the statute, its legislative history and underlying policy, and 

concepts of reasonableness." State v. Courtney, 243 N.J. 77, 85 (2020). A 

"statute's plain language 'is the "best indicator" of legislative intent.'" Ibid. 

(quoting State v. Rodriguez, 238 N.J. 105, 113 (2019)). 

The Legislature's words and phrases must be construed within the context 

of "related provisions so as to give sense to the legislation as a whole" and given 

their "generally accepted meaning," unless that meaning is "inconsistent with 

the manifest intent of the Legislature." Ibid. (first quoting Spade v. Select 

Comfort Corp., 232 N.J. 504, 515 (2018); and then quoting N.J.S.A. 1:1-1). "If 

the plain language leads to a clear and unambiguous result, then our 
16 A-0050-22

interpretative process is over." Courtney, 243 N.J. at 86 (quoting Johnson v. 

Roselle EZ Quick LLC, 226 N.J. 370, 386 (2016)). 

Paragraph (a) of N.J.S.A. 52:27D-305 plainly established COAH and the 

Governor's role in the nomination process: "There is established in, but not of, 

the [DCA] a Council on Affordable Housing to consist of 12 members appointed 

by the Governor with the advice and consent of the Senate." The same paragraph 

prescribes, at length, the Legislature's mandate that COAH's members be

diverse: 

[F]our [members] shall be elected officials representing 

the interests of local government, at least one of whom

shall be representative of an urban municipality having 

a population in excess of 40,000 persons and a 

population density in excess of 3,000 persons per 

square mile, at least one of whom shall be

representative of a municipality having a population of

40,000 persons or less and a population density of 3,000 

persons per square mile or less, and no more than one

of whom may be a representative of the interests of

county government; four shall represent the interests of

households in need of low and moderate housing, one

of whom shall represent the interests of the nonprofit 

builders of low and moderate income housing, and shall 

have an expertise in land use practices and housing

issues, one of whom shall be the Commissioner of

Community Affairs, ex officio, or his or her designee, 

who shall serve as chairperson, one of whom shall be

the executive director of the agency, serving ex officio; 

and one of whom shall represent the interests of

disabled persons and have expertise in construction 

accessible to disabled persons; one shall represent the 
17 A-0050-22

interests of the for-profit builders of market rate homes, 

and shall have an expertise in land use practices and 

housing issues; and three shall represent the public

interest. Not more than six of the 12 shall be members 

of the same political party. The membership shall be

balanced to the greatest extent practicable among the

various housing regions of the State. 

[N.J.S.A. 52:27D-305(a).] 

Pursuant to the plain terms of N.J.S.A. 52:27D-305(d), the Governor was 

required to nominate the initial COAH members within a specific time frame: 

"The Governor shall nominate the members within 30 days of the effective date 

of this act." See Aponte-Correa v. Allstate Ins. Co., 162 N.J. 318, 325 (2000) 

(stating "the word 'shall' generally is mandatory"). No such temporal mandate 

applies to the filling of vacancies. 

Instead, paragraph (b) of the statute provides, in pertinent part: 

"Vacancies shall be filled in the same manner as the original appointments, but

for the remainders of the unexpired terms only." N.J.S.A. 52:27D-305(b). 

Appellants claim the "same manner as the original appointments" language 

requires the Governor fill COAH vacancies – and seemingly suggest in their 

June 2022 demand letters – that the vacancies must be filled within thirty days 

of those openings. We disagree. 
18 A-0050-22

In Meredith v. Mercer County Board of Chosen Freeholders, the trial court 

concluded a substantially similar phrase, "[a]ny vacancy . . . shall be filled in 

the same manner as the original appointment" in the statute at issue in that case, 

N.J.S.A. 19:32-26, "refer[red] back to the manner in which an appointment to 

such a position 'shall be filled by some suitable person who shall be nominated 

by the Governor with the advice and consent of the Senate.'" 117 N.J. Super. 

379, 383, 391 (Law Div. 1970). We "affirmed essentially for the reasons set 

forth in the [trial court's] opinion," 117 N.J. Super. 368, 368 (App. Div. 1971), 

and the Court affirmed our judgment "for the reasons expressed in [the] majority 

opinion . . . in accordance with the trial court opinion," 59 N.J. 530, 530 (1971). 

Similarly, here, we discern no reason to conclude the "same manner as the 

original appointments" set forth in the vacancy provision, N.J.S.A. 52:27D305(b), mandates the Governor make appointments beyond the initial COAH 

membership. 

Needless to say, however, we cannot conclude when the Legislature 

created COAH it intended the Council would become entirely non-functional 

because of the lack of appointments. Instead, the Legislature likely envisioned 

the Governor would make new appointments after the end of each COAH 

member's term to preserve staggered terms. In that sense, the Governor's 
19 A-0050-22

inaction is patently inconsistent with the FHA's legislative goal in creating 

COAH. 

Nonetheless, the Legislature's expectation that the Governor would make 

appointments to COAH is not equivalent to an intention to obligate the Chief 

Executive to do so. 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. See In re R.K., 475 N.J. Super. 

535, 543 (App. Div. 2023) (holding courts neither "rewrite a plainly-written

enactment of the Legislature nor presume that the Legislature intended 

something other than that expressed by way of the plain language" (quoting State 

v. Frye, 217 N.J. 566, 575 (2014))). Absent express language in the statute 

compelling the Governor to make successor appointments to COAH, we discern 

no reason to construe the statute otherwise. See, e.g., Courtney, 243 N.J. at 85. 

C. Applicability of Mandamus to the Governor's Inaction 

Assuming, however, the FHA not only empowers but also obligates the 

Governor to make appointments to COAH, there remains the main point of

dispute between the parties: whether that obligation is judicially enforceable. 
20 A-0050-22

Well-established principles guide our review. As our Supreme Court has 

reiterated: 

A writ of mandamus is an order given by a court to a 

government official "that commands the performance 

of a specific ministerial act or duty, or compels the

exercise of a discretionary function, but does not seek 

to interfere with or control the mode and manner of its

exercise or to influence or direct a particular result." 

Switz v. Middletown Township, 23 N.J. 580, 598

(1957). Mandamus is a well-established remedy for 

"official inaction." Joseph v. Passaic Hosp. Ass'n, 26

N.J. 557, 571 (1958). 

[In re Resol. of State Comm'n of Investigation, 108 N.J. 

35, 45 n.7 (1987).] 

"Thus, mandamus is an appropriate remedy '(1) to compel specific action 

when the duty is ministerial and wholly free from doubt, and (2) to compel the

exercise of discretion, but not in a specific manner.'" Vas, 418 N.J. Super. at

522 (quoting Loigman v. Twp. Comm. of Middletown, 297 N.J. Super. 287, 299 

(App. Div. 1997)). A duty is "ministerial" if it is "absolutely certain and 

imperative, involving merely the execution of a set task, and when the law which 

imposes it prescribes and defines the time, mode and occasion of its performance 

with such certainty that nothing remains for judgment or discretion." Ibid. 

(quoting Ivy Hill Park Apartments v. N.J. Prop. Liab. Ins. Guar. Ass'n, 221 N.J. 

Super. 131, 140 (App. Div. 1987)). 
21 A-0050-22

Commencing in 1856 with State v. Governor, 25 N.J.L. 331, 349-50 (Sup. 

Ct. 1856), New Jersey courts have repeatedly held mandamus may not issue

against the Governor. In that case, a party claiming he had been elected 

surrogate of Passaic County sought to compel the Governor issue him the

commission for the position. Id. at 343. The court rejected his claim on the 

merits, id. at 344-45, and the "ground that th[e] court ha[d] no power to award 

a mandamus, either to compel the execution of any duty enjoined on the

executive by the constitution, or to direct the manner of its performance," id. at

349. 

The court explained "[t]he exercise of such power would be an

unwarrantable interference with the action of the executive within his

appropriate sphere of duty" because "[t]he issuing of the commission under the

constitution of this state is clearly an exercise of political power." Id. at 349-

50. "In regard to any other executive duty prescribed by the constitution," the

court said, "it has never been pretended that the judiciary has the power to

enforce its execution, or to direct the manner of its performance." Id. at 350. 

The court also clarified that, with respect to the Governor, the distinction 

between ministerial duties and discretionary functions did not apply, and courts 

could compel neither. Id. at 351.
22 A-0050-22

Decades later in Cole v. Corio, 105 N.J.L. 511, 512 (Sup. Ct. 1929), the

Supreme Court considered a challenge to a statute providing that "the 

[G]overnor [wa]s authorized and empowered to appoint by and with the advice 

and consent of the [S]enate an additional judge of the Court of Common Pleas." 

The statute was challenged, in part, on the ground that by allowing the Governor 

to determine whether an additional judge would be appointed, it unlawfully 

delegated the Legislature's discretionary power to the Executive. Id. at 513. The

Court rejected this argument, reasoning "it is somewhat immaterial whether the

statute be permissive or mandatory, as the [G]overnor cannot be compelled by

mandamus to appoint if he refuse to do so." Ibid. 

Stated another way, even if a statute mandates the Governor make an

appointment, that obligation cannot be enforced by the Judiciary. Ibid. 

Pertinent to this appeal, the Court discerned no "practical" difference between a 

statute permitting the Governor to make an appointment and one requiring the 

Governor to do so. Ibid. 

Thereafter, the Chancery Division addressed the Governor's appointment 

powers in a lawsuit initiated by the county bar association against the Governor 

and Senate, seeking to compel the appointment of judges to remedy the longstanding, "disproportionately large number of judicial vacancies in Passaic 
23 A-0050-22

County." Passaic Cnty. Bar Ass'n v. Hughes, 108 N.J. Super. 161, 163 (Ch. Div.

1969). Relevant here, the judge found several reasons for denying the relief 

sought against the Governor, including that a writ of mandamus cannot issue

against the Chief Executive. Id. at 174. Citing State v. Governor, the judge was 

convinced an even "stronger case for the denial of relief" existed in the matter 

before him than that "leading decision" on mandamus because "an exercise of

the appointing power [is] highly discretionary." Id. at 174-75. 

Notwithstanding the principles set forth in State v. Governor, as reiterated 

in Cole and Passaic County Bar Association, appellants argue all three cases are

inapposite to their statutory argument because they "involve[d] the Governor's 

constitutional obligations." We are not persuaded. 

For example, appellants' reliance on the court's decision in Driscoll v.

Sakin (Driscoll I), 121 N.J.L. 225 (Sup. Ct. 1938), aff'd 122 N.J.L. 414 (E. & A.

1939), is misplaced. In Driscoll I, the court ordered the defendant ousted from 

the county board of election because he was appointed by the Governor without 

the statutorily required nomination of his party's state chairman. Id. at 227-29. 

The court acknowledged it could not "compel the execution of any duty imposed 

by the constitution," but noted the defendant was not "appointed pursuant to the

constitution." Id. at 227. The court elaborated: 
24 A-0050-22

It, therefore, seems settled that where the

constitution of this state is silent the [L]egislature may 

determine the manner in which a public official may be

named, and may delegate the selection to others and 

that the executive may be clothed with no discretion in

the issuance of the commission. Nor do we see any 

encroachment upon the authority of the executive. The 

executive never had a constitutional power to appoint 

members of county boards of election. The county 

boards were created by the [L]egislature which 

provided in plain words the manner of their selection. 

This court, in declaring the defendant to have been 

commissioned not in accordance with the mandates of

the [L]egislature, is not in any sense supervising or

interfering with the transaction. 

[Id. at 228-29.] 

Appellants construe Driscoll I as demonstrating "a dispositive distinction 

between executive appointments prescribed in the Constitution and 

appointments that only arise from a delegation of Legislative authority." And

in specifying that it could not compel the execution of "constitutional" duties, 

and noting the statutory basis for the county board appointments, the court in

Driscoll I seems to suggest some such distinction, if not a dispositive one. 

 Driscoll I, however, did not involve mandamus at all. "It d[id] not involve

the question of the power of the court to compel the [G]overnor to appoint the

nominee of the state chairman nor the doctrine of separation or integration, as

the case may be, of governmental power." Driscoll v. Sakin (Driscoll II), 122 
25 A-0050-22

N.J.L. 414, 414-15 (E. & A. 1939) (Rafferty, J., dissenting). It did not involve 

the exercise of discretionary gubernatorial appointment power, whether based 

on the constitution or statute, as the Governor had "no discretion in the issuance 

of the commission" at issue. Driscoll I, 121 N.J.L. at 228. As the court made 

clear, it was "not in any sense supervising or interfering with the transaction" of

appointing a county board member. Id. at 229. The court simply reviewed 

governmental action and found it unlawful. Ibid. 

Nor are we persuaded by appellants' contention that the appointment 

power is "not inherently executive." Although the power to make appointments 

does not belong exclusively to the Chief Executive, "[g]enerally speaking, the

power to appoint personnel within the executive branch of government is an

executive function." Murphy v. Luongo, 338 N.J. Super. 260, 267 (App. Div.

2001). "Legislative power, as distinguished from executive power, is the

authority to make laws, but not to enforce them or appoint the agents charged 

with the duty of such enforcement. The latter are executive functions." 

Enourato v. N.J. Bldg. Auth., 90 N.J. 396, 416 (1982) (quoting Springer v.

Philippine Islands, 277 U.S. 189, 202 (1928)). Under our state constitution, the

Governor is responsible for "nominat[ing] and appoint[ing], with the advice and 

consent of the Senate, all officers for whose election or appointment provision 
26 A-0050-22

is not otherwise made by this Constitution or by law." N.J. Const., art. V, § 1, 

¶ 12. By contrast, our constitution expressly prohibits the Legislature from 

"appoint[ing] any executive, administrative or judicial officer except the State 

Auditor." N.J. Const., art. IV, § 5, ¶ 5. 

To be sure, "among the most important fields of discussion" at the 1947 

New Jersey Constitutional Convention were "the needs for strengthening the 

Executive and . . . curbing [the Legislature's] appointments." Richman v. 

Ligham, 22 N.J. 40, 49 (1956). In explaining its then-proposed ban on 

legislative appointments, the "Commission on Revision of the New Jersey 

Constitution" stated that "the power of appointment to public office" is "an 

essentially executive power." Id. at 48. 

Finally, we are not convinced that the basic principles of mandamus 

permit the relief sought by appellants. As we have stated, mandamus is an 

appropriate remedy to compel ministerial action or "to compel the exercise of

discretion, but not in a specific manner." Vas, 418 N.J. Super. at 522. Although

the parties agree that the Governor's appointment of COAH members is a 

discretionary function – in that the choice of appointees is discretionary – the 

parties disagree whether the timing of appointments is a matter of discretion. 
27 A-0050-22

As the Governor argues in his responding brief, "the act of deciding which 

appointments to prioritize is inherently discretionary, as the Governor and his 

or her advisers have finite time and resources." Indeed, we have recognized one 

factor distinguishing ministerial and discretionary functions is that "the law 

which imposes" a ministerial duty "prescribes and defines the time, mode[,] and 

occasion of its performance with such certainty that nothing remains for 

judgment or discretion." Vas, 418 N.J. Super. at 522 (quoting Ivy Hill Park 

Apartments, 221 N.J. Super. at 140). As discussed above, N.J.S.A. 52:27D305(b) does not prescribe a time limit for filling vacancies on COAH. 

Accordingly, the relief sought by appellants is not ministerial and cannot issue

by mandamus. Further, compelling the Governor to make nominations to COAH 

would necessarily require establishing a deadline to do so, thereby improperly 

compelling the "specific manner" of a discretionary act. Vas, 418 N.J. Super. at

522. 

To the extent we have not addressed a particular argument, it is because 

either our disposition makes it unnecessary, or the argument lacks sufficient 

merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). 

Dismissed.