The Legislative Review Clause of the New Jersey Constitution

Communication Workers of America, AFL-CIO v. New Jersey Civil Service Comm’n, 447 N.J. Super. 584 (App. Div. 2016).  Article V, section 4, paragraph 6 of the New Jersey Constitution, approved by the voters in 1992, gives the Legislature the power to “review any [administrative agency] rule or regulation to determine if the rule or regulation 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.”  That provision, known as the Legislative Review Clause, was at the center of this appeal, which involved the Legislature’s rejection of a Civil Service Commission rule regarding “job banding,” which means “grouping certain job titles into one ‘band’ and allowing advancement of employees from lower to higher titles in the same band without competitive promotional examination.”

As the Legislative Review Clause Ruling contemplates, when the Commission proposed the job banding rule, the Legislature passed concurrent resolutions that rejected the rule as conflicting with the Civil Service Act, N.J.S.A. 11A:1-1 to 12-6 (“CSA”), which incorporated the text of article VII, section 1, paragraph 2 of the New Jersey Constitution.  (That is a telescoped version of the procedural history, which the Appellate Division’s opinion lays out in full).  Despite the Legislature’s position, the Commission adopted the rule.  The Legislature and two unions filed a total of six appeals from the Commission’s action.  The appeals were consolidated, and the Appellate Division, through Judge Fasciale, upheld the Legislature’s rejection of the rule.

After describing the history of the Legislative Review Clause, in a discussion that harked back as far as Marbury v. Madison, 5 U.S. 137 (1803), Judge Fasciale addressed the issue of the standard of review applicable to the Legislature’s action.  As has often been seen, the standard of review can go a long way toward determining the outcome of an appeal, with a deferential standard of review often leading to affirmance while a more aggressive review more likely to result in reversal.

The Legislature and the unions argued that the Appellate Division was required to give extreme deference to the Legislature’s action under the Legislative Review Clause.  In fact, the Legislature went so far as to contend that “[t]here is [generally] no role for judicial review of the Legislature’s findings that a regulation is contrary to legislative intent.”  The Commission, in contrast, unsurprisingly demanded “an exacting and thorough judicial review of the Legislature’s findings and conclusions,” a position that the Commission said was “fundamental to our system of governmental checks and balances.”

Judge Fasciale did not accept either of those extreme positions.  He first stated that the normal deference to an agency was not warranted here, due to “the substantial involvement of the Legislature pursuant to the Legislative Review Clause.”  But the Clause “does not negate the well-recognized role of the judiciary to safeguard the protections afforded in the constitution and to prevent any of the branches from potentially exercising illegitimate power over the other.  As a result, [the panel was] not bound by the Legislature’s interpretation of a statute,” since the courts remain “the ultimate arbiter of questions of law.”

Nonetheless, Judge Fasciale concluded, the Legislature was entitled to “substantial deference” in judicial review of actions under the Legislative Review Clause.  The court could void the Legislature’s action only if “(1) the Legislature has not complied with the procedural requirements of the Legislative Review Clause; (2) its action violates the protections afforded by the Federal or New Jersey Constitution; or (3) the Legislature’s concurrent resolution amounts to a patently erroneous interpretation of ‘the language of the statute which the rule or regulation is intended to implement.”  Judge Fasciale cited an Iowa case under a similar state constitutional provision, which likewise concluded that the courts retained the power of judicial review in this context.

From there, it was relatively easy for the panel to uphold the Legislature’s action.  Judge Fasciale found no violation of the procedural requirements.  He also concluded that, “[a]pplying substantial deference to the Legislature,” its action does not amount to a patently erroneous interpretation of the CSA.”  Instead, after carefully analyzing the relevant statutory provisions and their policy in favor of competitive job examinations as a rule, the panel ruled that the Legislature “reasonably found that job banding without competitive promotional examinations was inconsistent with the legislative intent reflected in the plain language of the relevant provisions of the CSA.”

The panel’s view of the correct standard of review in this unique context appears to be correct.  Though the Commission may seek review by the Supreme Court, it appears likely that the Court will either decline to grant review or will affirm Judge Fasciale’s decision.