Missing the Point on Highlands Legal Appointment

Radical Doctrine of Executive Power Is Threat, Not Advocacy of Repeal of Highlands Act

The Star Ledger reports today on the controversy over appointment of a new Legal Counsel at the Highlands Commission:

CHESTER TOWNSHIP — The new chief counsel for the state’s Highlands Council, appointed last week, wrote in a November 2011 essay that the Highlands Act “should be repealed,” touching off a barrage of criticism from environmentalists and some council members.

I often criticize news coverage as misdirected, misleading, lame, etc and usually blame the reporter – but not in this case.

In this case, I blame his sources.

The environmental critics focused on the fact that Mr. Davis advocated repeal of the Highlands Act as the main reason for why he should not have been appointed.

While clearly a disturbing view, that criticism is misplaced, while the real reason Mr. Davis is not qualified is ignored.

First of all, the NJ Senate already confirmed Council members [Gov. Christie nominees] who opposed and openly called for the Highlands Act to be repealed, so Mr. Davis breaks no new ground.

But more importantly, Mr. Davis’ role as Chief Counsel to the Highlands Council is advisory, not a policy making role. His advice to the Council will reflect his legal views, analysis, and judgements, which are supposed to be based on law (yes, which are shaped by his policy views, but the law establishes constraints on policy views).

Therefore, while his policy views on the Act are relevant, the more important consideration is his legal views, not his policy views.

In the legal arena, Mr. Davis’ legal views should be disqualifying.

Mr. Davis wrote an Op-Ed – written as a lawyer, for a legal audience, and based on his legal analysis – that advocated discredited, false, and radical views on executive power.

The reason that  Mr. Davis’ views on executive power are supremely relevant is that he thinks that his policy views (i.e. repeal of the Act) legitimately can be accomplished via executive action.

That dangerous and radical notion taints every legal recommendation he will offer.

Let me be specific:

In addition to advocating the repeal of the Highlands Act, Mr. Davis argued that if the Act was NOT repealed by the Legislature, that Gov. Christie had the legal power to and should abolish the Commission by Executive action – under the Executive Reorganization Act – and transfer its functions to the State Planning Commission. (see prior use by Gov. Christie on higher education)

This is radical and discredited (in case of COAH ) legal doctrine and should be the basis for disqualification from any public office. A lawyer who advocates such legal views is either a radical, outside the legal mainstream, or incompetent. Either are grounds for rejection of his candidacy.

It is the same as if an advocate of nullification and interposition were seeking appointment as the head of the US Justice Department’s civil rights division.

We’ve seen similar abuses when religious fundamentalists have taken over school boards and injected their radical religious views into the science curriculum on Darwinian evolution or climate change.

Here are Davis’ own words, from an November 2011 Op-Ed in the NJ Law Journal, revealingly titled: A Fix for the Highlands Problem  (subscription service, so no link available. Will share upon request):

The Highlands Act should be repealed, and the planning functions of the council reallocated elsewhere in state government, preferably through an act of the Legislature. If no legislation is forthcoming, the powers of the Executive Reorganization Act could be exercised by the governor to achieve the same result. 

The planning responsibilities of the Highlands Council could be transferred to the State Planning Commission, which itself was recently transferred to the Department of State under Reorganization Plan No. 002-2011. The commission is an entity already in existence, and already charged with mapping out state land use policy, so it would make sense to incorporate all the Highlands planning data and knowledge base into this agency. Such a merger would also eliminate or reduce the overhead costs of running the council in its current form.

The Highlands Council was created by the legislature and the powers of the Council were delegated by and allocated to the Council by the Legislature.

The Council can not be abolished by action of the Governor, nor can its powers be transferred without an act of the Legislature.

This is not an arcane legal point.

Mr. Davis may attempt to implement his policy views by executive power – which directly conflict with the policy established by the Legislature in the Highlands Act – via his recommendations to the Council.

And that is the underlying problem with Mr. Davis.

He can legitimately hold any policy view under the sun, but he can’t just make up legal shit.

(ps – I am not suggesting that the Gov. will abolish the Council by executive action.

Rather, that Mr. Davis and his like minded Council members will feel empowered and that it is legally legitimate to unwind the Master Plan, dismantle the work of planners and scientists, and gut the Act via the accelerated 2014 Plan update.

They will feel that there are no legal constraints to doing what they could never accomplish through legitimate action by the legislature.

And that’s what makes them such dangerous radicals: righteousness without legal constraint.