Mike Davis

@byMikeDavis

TRENTON — A handful of legislators are considering a last-ditch lawsuit against the controversial gasoline tax hike set to take effect on Nov. 1.

Sen. Jennifer Beck, R-Monmouth, said she is "investigating the possibility of legal action," along with other unnamed legislators.

If a lawsuit is filed, it would challenge the controversial 23-cent gasoline tax hike on constitutional grounds, she said.

Any potential legal action would run parallel to a repeal effort launched by Sens. Michael Doherty and Kip Bateman.

"We are doing our homework now and talking to attorneys versed in this topic to get their opinion whether we have the grounds to sue," Beck said.

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Beck's reasoning is two-fold. First, she believes the bill may violate the "one object" clause in the state constitution. That provision mandates that all pieces of legislation deal with one topic at a time, preventing bill sponsors from shoehorning unrelated topics together in order to secure votes and avoid vetoes.

The tax bill signed into law on Oct. 14 includes:

the 23-cent gasoline tax hike;

a sales tax cut from 7 percent to 6.625 percent;

a phaseout of the estate tax;

increasing pension and retirement income tax exclusions to $100,000 for joint filers, $75,000 for individuals and $50,000 for married couples filing separately; and

increased Earned Income Tax Credit to 35 percent of the federal benefit.

Who voted 'yes' on raising the gas tax? Search for your legislator here.

"The courts have been very liberal in their interpretation, but the intent is clear," said Beck, an attorney by trade. "If you're going to increase the retirement income exclusion, that should be a single bill. If you're going to raise the EITC, that should be a separate bill."

Rutgers Law School professor Bob Williams said courts are “generally very deferential to the Legislature,” wary of throwing out carefully-compromised legislation.

The law has been described by proponents as a "tax fairness" law, a term coined by Christie as the bill was drawn up. That topic may be enough to qualify it as "one object," Williams said.

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“The court shouldn’t be in there, willy-nilly throwing out laws that are the product of legislative compromise,” Williams said.

The 'death panel'

Another bill in the package formally reauthorizes an eight-year, $16 billion Transportation Trust Fund that will see new revenue from the gasoline tax hike. But it also comes with a new, four-person panel that will have the final say over what projects get TTF funding.

MORE: TTF has big needs, slack funding

The so-called "death panel" — made up of appointees by the governor, Senate President, Assembly Speaker and state transportation commissioner — is another potential target in a possible suit, Beck said.

All decisions on the panel must be unanimous. If one member says "no," a project won't receive TTF dollars.

Legislators criticized the panel for opening up transportation projects to political influence, with members rejecting or approving projects as part of back-room deals.

"Imagine, hanging over your heads, these three people wheeling and dealing," said Sen. Ray Lesniak, D-Union, shortly before voting against the bill. "This will make the shenanigans at the Port Authority look like a walk in the park."

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While bill sponsor Sen. Paul Sarlo, D-Bergen, has said the Legislature could add rejected projects in during the annual state budget process, Beck believes the law is unconstitutional because it takes power away from legislators.

Williams said the opposite may be true: By having legislative appointees sit on the panel, the Legislature could be seen as tampering with enactment of the law.

“You can’t keep your fingers in the implementation or administration of the law,” Williams said. “It’s a challenge to traditional separation of powers.”

While such breaches are prohibited by the U.S. Constitution, state law generally varies and New Jersey doesn't have any definitive cases on the matter.

“This is really good stuff. There aren’t obvious answers to the questions,” Williams said.

Mike Davis: 732-643-4223; mdavis@gannettnj.com