A Big (In Every Way) Decision Under the New Jersey Constitution’s Legislative Review Clause

Communications Workers of America, AFL-CIO v. New Jersey Civil Service Commission, 234 N.J. 483 (2018).  In one of the biggest constitutional decisions of the current term, an unusually divided Supreme Court today modified and affirmed the decision of the Appellate Division in this Legislative Review Clause case.  The Appellate Division’s decision, which was reported at 447 N.J. Super. 584 (App. Div. 2016), was discussed in detail here.

There were two issues:  (1) the standard of judicial review of concurrent resolutions of the Legislature regarding the consistency of administrative rules or regulations with enabling legislation; and (2) whether the job banding legislation at issue was in fact inconsistent with applicable legislation.  The Court split 4-3 on each issue.  Only Justice Patterson, who wrote the Court’s opinion, was in the majority on both issues.  She affirmed the Appellate Division’s determination that the Legislature’s rejection of the regulation was valid, since the regulation conflicted with two provisions of the Civil Service Act, N.J.S.A. 11:4A-1 and -8.  But she modified the standard of review that the Appellate Division had found appropriate.

There were two separate opinions, each concurring in part and dissenting in part.  Justice LaVecchia, writing for herself and Justices Albin and Timpone, agreed with the ultimate result, but expressed the view that the standard of review should have been more deferential to the Legislature.  Justice Solomon, joined by Chief Justice Rabner and Justice Fernandez-Vina, agreed with Justice Patterson’s standard of review, but believed that, under that standard, the Court should not have upheld the Legislature’s position.

The three opinions run to 111 pages.  The case also produced unusual groupings of the Justices.  This one is well worth reading in full, given the time to do so.