NJ Supreme Court Upholds Use of Legislative Review Clause

In Communications Workers of America, AFL-CIO v. New Jersey Civil Service Commission, (NJ 2018) the Supreme Court of New Jersey held that the Legislature properly invoked the Legislative Review Clause.

Legislative Review Clause

Legislative Review Clause

In 1992, the New Jersey Constitution was amended to include the Legislative Review Clause. It authorizes the Legislature to determine whether an administrative rule or regulation promulgated by an executive agency “is consistent with the intent of the Legislature as expressed in the language of the statute which the rule or regulation is intended to implement.”

As described by the New Jersey Supreme Court, the Clause outlines the procedure the Legislature must follow to exercise its authority. By concurrent resolution, the Legislature must first notify the Governor and executive agency that the challenged rule or regulation contravenes legislative intent as stated in an enabling act’s statutory terms. Thereafter, the agency is afforded thirty days to reconcile the disputed rule or regulation with legislative intent by amending or withdrawing it.

If the agency does not amend or withdraw the rule or regulation, the Legislature may commence the second phase of the process, in which a second concurrent resolution invalidating the rule or regulation is introduced in the Senate and General Assembly. Either house then holds a public hearing regarding the invalidation of the rule or regulation and delivers a transcript of the hearing to the desk of each legislator. Twenty days after the transcripts are delivered, the Senate and General Assembly may vote to pass the resolution invalidating the rule or regulation.

Facts of Communications Workers of America, AFL-CIO v. New Jersey Civil Service Commission

In March 2013, the Civil Service Commission (the Commission) published amendments to the New Jersey Administrative Code (the Proposed Rule). The Proposed Rule introduced the concept of a “job band,” defined as “a grouping of titles or title series into a single broad band consisting of title levels with similar duties, responsibilities, and qualifications.”

Under the Proposed Rule, employees could advance between banded titles without competitive examinations, and the appointing authority would have the discretion to choose among all of the candidates who demonstrated the required competencies, rather than choosing among the three highest-ranking eligibles. The Legislature used its authority under the Legislative Review Clause to object to the Proposed Rule, as well as an amended Proposed Rule.

In both cases, the Legislature passed a concurrent resolution declaring the Proposed Rule inconsistent with the legislative intent of the Civil Service Act and transmitted the concurrent resolution, commencing the thirty-day period for the Commission to amend or withdraw the rule.

On July 16, 2014, the Commission proposed a third iteration of the job banding rule (the Second Amended Proposed Rule). The Legislature did not recommence the two-phase process. Instead, on September 29, 2014, a new concurrent resolution was introduced in the General Assembly that addressed both the First and the Second Amended Proposed Rules.

The Legislature stated that the amendments were “not responsive to the…finding …that job banding is not consistent with legislative intent as expressed in the language of the Civil Service Act” and thus “do not in any way limit [its] ability to proceed with invalidating the job banding rule.” On October 22, 2014, the Commission adopted the Second Amended Proposed Rule. On December 18, 2014, the Legislature passed the final concurrent resolution 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.

The Appellate Division panel held that the Legislature properly invoked the Legislative Review Clause to invalidate N.J.A.C. 4A:3-3.2A. It concluded that the deferential standard that ordinarily applies in appellate review of agency determinations should not govern an invocation of the Legislative Review Clause. The panel prescribed a three-pronged standard to govern appellate review.

Applying that standard to the dispute before it, the panel concluded that the Legislature had complied with the Legislative Review Clause’s procedural requirements. The panel found no violation of federal or state constitutional norms in the Legislature’s action.

Finally, the panel concluded that the Legislature’s determination that there was a conflict between the job banding rule and the Civil Service Act “does not amount to a patently erroneous interpretation of the language of the [statute].” It reversed the Commissioner’s final agency determinations, and vacated the implementation of N.J.A.C. 4A:3-3.2A.

New Jersey Supreme Court’s Decision in Communications Workers of America, AFL-CIO v. New Jersey Civil Service Commission

The New Jersey Supreme Court affirmed. “We conclude that the Legislature correctly determined that (the rule) conflicts with two provisions of the Civil Service Act,” Justice Anne Patterson wrote. “Accordingly, we concur with the Appellate Division panel that the Legislature properly invoked the Legislative Review Clause.”

In reaching its decision, the court established three-prong test for lower courts to use when reviewing the Legislature’s veto authority under the Legislative Review Clause. As the panel explained:

A court may reverse the Legislature’s invalidation of an agency rule or regulation pursuant to the Legislative Review Clause if (1) the Legislature has not complied with the procedural requirements of the Clause; (2) 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 (3) 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.

The justices added that when determining legislative intent, lower courts should rely exclusively on statutory language. Accordingly, they should not apply a presumption in favor of either the Legislature’s findings or the agency’s exercise of its rulemaking authority.

The standard established by the New Jersey Supreme Court sought to harmonize the Legislative Review Clause with the separation of powers provision of the New Jersey Constitution, as well as the Presentment Clause. “Were we to presume that any legislative invocation of the Legislative Review Clause is correct, we would risk abrogating executive rulemaking authority,” Justice Patterson explained. “When the Legislature and Executive dispute the parameters of their constitutional powers, the separation of powers doctrine mandates vigilant judicial review.”

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.