“Shall” We? Is it “Necessary”?

In re State Bd. of Education’s Denial of Petition to Adopt Regulations Implementing the New Jersey High School Voter Registration Law, 2011 WL 1529734 (App. Div. 2011).  Public interest organizations submitted a petition for rulemaking to compel the Commissioner of Education to promulgate regulations to implement the High School Voter Registration Law (“HSVRL”), N.J.S.A. 18A:36-27 to -28.  The Commissioner declined to adopt the requested regulations.  The Department of Education had previously adopted a regulation that requires the Quality Single Accounting Continuum (“QSAC”), an instrument that is sent to public school districts (but, significantly, not to nonpublic schools), to include an inquiry confirming that districts are providing students with voter registration forms and voting-related materials required by the HSVRL.  The Department believed that was sufficient regulation.  The public interest groups appealed to the Appellate Division.

Judge Sabatino first addressed the scope of review, labeling it “a mixed one.”  Questions of statutory construction are addressed de novo.  The Appellate Division is “not bound” by an agency’s interpretation of the statute, but “should give considerable weight” to that interpretation.  In reviewing an agency decision on rulemaking, however, “courts ordinarily defer to the agency’s particular expertise in the subject matter.”  Thus, only if the Department of Education’s decision not to adopt appellants’ requested rules were arbitrary, capricious, unreasonable, or beyond the agency’s delegated powers” would the panel reverse the agency.

Judge Sabatino focused on N.J.S.A. 18A:36-28.  That provision states: “The Commissioner of Education shall adopt pursuant to the ‘Administrative Procedure Act,’ [citation] rules and regulations necessary to implement the provisions of [the HSVRL].”

The first key word in that provision was “shall.”  Judge Sabatino noted that “shall” normally is mandatory.  Only in “limited situations,” where “no public benefit ensues and no private right is ensured” by construing “shall” as mandatory will it be viewed as merely “directory” or non-mandatory.  There was a public benefit in construing “shall” as mandatory: “the education of young voters regarding their important role in our democracy and the encouragement of their participation at the polls.”

But “shall” in the HSVRL was “arguably tempered” by the phrase “necessary to implement the provisions of this act.”  The panel saw the issue, then, as “who makes (or has made) the determination of ‘necessity’ for regulations under the HSVRL; the Legislature or the agency.”

Judge Sabatino observed that the HSVRL did not say that regulations are to be adopted “if the Commissioner finds that they are necessary” or, on the other hand, that the Commissioner “shall adopt … regulations [which the Legislature has determined are] necessary” to implement the statute.  He then canvassed numerous other statutes that included other formulations, and concluded that the panel was “left with a textual ambiguity as to the plain meaning of the statute.”

Ultimately, the Appellate Division considered “whether it is likely that the Legislature envisioned that the agency would enact at least some regulations to address the chronic problem of low registration and turnout by student voters” that the HSVRL sought to address.  Given the strong public policies underlying the statute, Judge Sabatino concluded that the Legislature did have that expectation.

Applying the deferential standard of review of rulemaking decisions, the panel upheld the Commissioner’s decision that the QSAC was sufficient regulation in the context of public schools.  But the QSAC did not apply to nonpublic schools.  Judge Sabatino held that the “total omission of regulations covering nonpublic schools” was arbitrary and capricious.  The panel remanded the matter to the Department of Education for the prospective adoption of regulations covering nonpublic schools.