By: Avi D. Kelin
Acknowledged as New Jersey’s first-ever test of lawmakers’ power to undo rules or regulations introduced by a Governor’s administration, the New Jersey Supreme Court affirmed the intent of and use by the New Jersey Legislature of the Legislative Review Clause.
The Legislative Review Clause, an addition to the New Jersey Constitution in 1992, authorizes the Legislature to make a determination on whether an administrative rule or regulation set forth by an executive department or agency “is consistent with the intent of the Legislature as expressed in the language of the statute while the rule or regulation is intended to implement. This case involved a challenge to the Legislature’s invocation of the Clause, which involved a Legislative “veto” of the proposed changes to the New Jersey Administrative Code. The original proposal called for the Civil Service Commission, under the administration of Governor Christie, to implement “job banding” of job titles for Commission employees.
“The Legislative Review Clause, which has been rarely invoked since its inclusion in the State Constitution in 1992, is meant to function as a check and balance for the branches of state government to work as efficiently and proactively as possible for the taxpayers,” said Avi D. Kelin, Esq. at Genova Burns. “In reaching its decision, the New Jersey Supreme Court established a three-prong test for lower courts to use in reviewing the Legislature’s actions under the Clause, and ensures that procedures are in place when there are differing viewpoints on Constitutional duties among branches of government.”
In March 2013, the Civil Service Commission proposed amendments to the New Jersey Administrative Code. The proposed amendments called for the implementation of a “job band” concept, a grouping of job titles or a series of titles into a single broad band consisting of titles with similar duties, responsibilities, and qualifications. Under the proposal, employees could advance between banded titles without competitive examinations. As a result, their appointing authority would have the discretion to choose among all candidates who demonstrated the required competencies, rather than being required to choose from the three highest-ranking eligible candidates.
The New Jersey Legislature used its powers under the Legislative Review Clause to object to the amendments, as well as a revised amendment submitted by the Commission. The Legislature passed a concurrent resolution declaring the proposed amendment, as well as a second version offered by the Commission, inconsistent with the intent of the Civil Service Act. On July 16, 2014, the Commission offered a third iteration of the job banding rule, and, on September 29, 2014, the Legislature [passed?] a new concurrent resolution that addressed the proposed amendments. On October 22, 2014, the Commission adopted the second iteration of their proposed amendment, to which the Legislature passed a final concurrent resolution, on December 18, 2014, to invalidate the job banding rule. The Commission subsequently approved two requests by appointing authorities to implement job banding.
The Communications Workers of America, AFL-CIO (CWA), the International Federation of Professional and Technical Engineers, AFL-CIO (IFPTE), and the Senate President and the Speaker of the General Assembly challenged the adoption and implementation of the job banding rule by the Commission.
The Appellate Division ruled that the Legislature properly invoked the Legislative Review Clause to invalidate the proposed amendments (N.J.A.C. 4A:3-3.2A). The ruling stated that the deferential standard that ordinarily applies in appellate review of agency determinations should not govern the use of the Legislative Review Clause. Additionally, the appellate panel concluded that the Legislature had complied with the Legislative Review Clause’s procedural requirements, and they found no violation of federal or state constitutional norms. Finally, the panel concluded that the Legislature’s determination “does not amount to a patently erroneous interpretation of the language of the [statute],” and it reversed the Commission’s final determinations and vacated the implementation of the amendments.
The New Jersey Supreme Court affirmed the Appellate Division’s ruling, concluding that the Legislature “correctly determined that (the proposed rule) conflicts with two provisions of the Civil Service Act.” In reaching its decision, the Supreme Court established a three-prong test for lower courts to use when reviewing the Legislature’s veto authority under the Legislative Review Clause. A court may reverse the Legislature’s invalidation of an agency rule or regulation pursuant to the Legislative Review Clause if:
- the Legislature has not complied with the procedural requirements of the Clause;
- the Legislature has incorrectly asserted that the challenged rule or regulation is inconsistent with “the intent of the Legislature as expressed in the language of the statute which the rule or regulation is intended to implement;”
- or the Legislature’s action violates a protection afforded by any other provision of the New Jersey Constitution, or a provision of the United States Constitution.
In the New Jersey Supreme Court ruling, Justice Anne Patterson said, “When the Legislature and Executive dispute the parameters of their constitutional powers, the separation of powers doctrine mandates vigilant judicial review.”