Commc'ns Workers of Am. v. N.J. Civil Serv. Comm'n

• Decision Date: 08 August 2018
• Docket Number: 078742,A-47 September Term 2016
• Citation: 191 A.3d 643,234 N.J. 483
• Parties: COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, Appellant-Respondent, v. NEW JERSEY CIVIL SERVICE COMMISSION, Respondent-Appellant. Communications Workers of America, AFL-CIO, Appellant-Respondent, v. New Jersey Civil Service Commission, Respondent-Appellant. In the Matter of Job Banding for Software Development Specialist 1 and 2, and Network Administrator 1 and 2, Office of Information Technology. In the Matter of Changes in the State Classification Plan and Job Banding Request, Department of Transportation. In the Matter of Changes in the State Classification Plan and Job Banding Request, Department of Transportation. In the Matter of Job Banding for Software Development Specialist 1 and 2, and Network Administrator 1 and 2, Office of Information Technology.
• Court: New Jersey Supreme Court

234 N.J. 483

191 A.3d 643

COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, Appellant-Respondent,

v.NEW JERSEY CIVIL SERVICE COMMISSION, Respondent-Appellant.

Communications Workers of America, AFL-CIO, Appellant-Respondent,

v.New Jersey Civil Service Commission, Respondent-Appellant.

In the Matter of Job Banding for Software Development Specialist 1 and 2, and Network Administrator 1 and 2, Office of Information Technology.

In the Matter of Changes in the State Classification Plan and Job Banding Request, Department of Transportation.

In the Matter of Changes in the State Classification Plan and Job Banding Request, Department of Transportation.

In the Matter of Job Banding for Software Development Specialist 1 and 2, and Network Administrator 1 and 2, Office of Information Technology.

A-47 September Term 2016

078742

Supreme Court of New Jersey.

Argued September 12, 2017

Decided August 8, 2018

Peter Slocum, Roseland, argued the cause for appellant New Jersey Civil Service Commission (Christopher S. Porrino, Attorney General of New Jersey, attorney; Melissa H. Raksa, Trenton, of counsel; and Peter Slocum, on the brief).

Leon J. Sokol, Hackensack, argued the cause for respondents Stephen M. Sweeney, President of the New Jersey State Senate, Vincent Prieto, Speaker of the New Jersey General Assembly, the Senate, and the General Assembly (Cullen and Dykman, attorneys; Leon J. Sokol and Herbert B. Bennett, Princeton, on the briefs).

Annmarie Pinarski, Somerset, argued the cause for respondent Communications Workers of America, AFL-CIO (Weissman & Mintz, attorneys; Annmarie Pinarski and Steven P. Weissman, on the brief).

Arnold Shep Cohen, Newark, argued the cause for respondent International Federation of Professional & Technical Engineers Local 195 (Oxfeld Cohen, attorneys; Arnold Shep Cohen, of counsel and on the brief).

JUSTICE PATTERSON delivered the opinion of the Court.

The Legislative Review Clause 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." N.J. Const. art. V, § 4, ¶ 6. The Clause prescribes a procedure through which the Legislature, by concurrent resolution, notifies the Governor and executive agency that the challenged rule or regulation contravenes legislative intent as stated in an enabling act's statutory terms, and gives the agency an opportunity to amend or withdraw the rule or regulation. In a second concurrent resolution, the Legislature invalidates the rule or regulation. Ibid.

In the five appeals before the Court, we consider the Legislature's first exercise of its constitutional authority under the Legislative Review Clause. The appeals arose from the Civil Service Commission's (the Commission) introduction of a rule allowing "job banding," the aggregation of certain public employment job titles in a "band" that permits employees to advance to higher titles within a band without competitive examinations. N.J.A.C. 4A:3-3.2A. The Legislature contended that the Commission's job banding rule contravened Article VII, Section 1, Paragraph 2 of the New Jersey Constitution, a provision addressing competitive examinations in public employment, and the New Jersey Civil Service Act, N.J.S.A. 11A:1-1 to 12.6. It first objected to, and then invalidated, the rule by concurrent resolution. Asserting that its job banding rule was consonant with the New Jersey Constitution and the Civil Service Act, the Commission nevertheless adopted and implemented that rule.

The Commission's actions were challenged in appeals filed by Stephen M. Sweeney, President of the Senate; Vincent Prieto, Speaker of the General Assembly; the Senate; the General Assembly; and two unions representing public employees affected by the job banding rule. A threshold question arose as to whether and under what standard a court can review concurrent resolutions as to agency rules and regulations. An Appellate Division panel held that a court may reverse the Legislature's invalidation of a rule or regulation if the Legislature's action is procedurally deficient, if it violates federal or state constitutionalprotections, or if it constitutes a patently erroneous interpretation of the statutory language of the enabling act. Commc'ns Workers of Am. v. Civil Serv. Comm'n, 447 N.J. Super. 584, 601, 149 A.3d 844 (App. Div. 2016). Under that standard, the panel found no defect in the Legislature's invalidation of the job banding rule. The panel therefore reversed the Commission's decisions, and invalidated N.J.A.C. 4A:3-3.2A. Id. at 606, 149 A.3d 844.

We now modify the standard of review articulated by the Appellate Division panel to harmonize the Legislative Review Clause with our Constitution's separation of powers provision, N.J. Const. art. III, ¶ 1, and Presentment Clause, N.J. Const. art. V, § 1, ¶ 14. We hold that 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," N.J. Const. art. V, § 4, ¶ 6 ; 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. To determine legislative intent, the court should rely exclusively on statutory language. It should not apply a presumption in favor of either the Legislature's findings or the agency's exercise of its rulemaking authority.

Applying that standard of review to the legislative veto at issue in these appeals, we find no procedural defect or constitutional infirmity in the Legislature's actions. We conclude that the Legislature correctly determined that N.J.A.C. 4A:3-3.2A conflicts with two provisions of the Civil Service Act, N.J.S.A. 11A:4-1 and N.J.S.A. 11A:4-8. Accordingly, we concur with the Appellate Division panel that the Legislature properly invoked the Legislative Review Clause, and we affirm as modified its judgment.

I.

A.

The Legislative Review Clause, adopted as an amendment to the New Jersey Constitution in 1992, provides in relevant part:

The Legislature may review any 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. Upon a finding that an existing or proposed rule or regulation is not consistent with legislative intent, the Legislature shall transmit this finding in the form of a concurrent resolution to the Governor and the head of the Executive Branch agency which promulgated, or plans to promulgate, the rule or regulation. The agency shall have 30 days to amend or withdraw the existing or proposed rule or regulation. If the agency does not amend or withdraw the existing or proposed rule or regulation, the Legislature may invalidate that rule or regulation, in whole or in part, or may prohibit that proposed rule or regulation, in whole or in part, from taking effect by a vote of a majority of the authorized membership of each House in favor of a concurrent resolution providing for invalidation or prohibition, as the case may be, of the rule or regulation. This vote shall not take place until at least 20 calendar days after the placing on the desks of the members of each House of the Legislature in open meeting of the transcript of a public hearing held by either House on the invalidation or prohibition of the rule or regulation.

[ N.J. Const. art. V, § 4, ¶ 6.]

The Legislative Review Clause thus prescribes a two-phase procedure. In the first phase, the Legislature passes a concurrent resolution asserting an inconsistency between the disputed agency rule or regulation and the Legislature's intent, as expressed in the language of the enabling statute. Ibid. Following delivery of that resolution to the Governor and the head of the agency, the agency is afforded thirty days to reconcile the disputed rule or regulation with legislative intent by amending or withdrawing it. Ibid.

If the agency does not amend or withdraw the rule or regulation, the Legislature may commence the second phase of the process. Ibid. In that phase, 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. Ibid. Twenty days after the transcripts are delivered, the Senate and General Assembly may vote to pass the resolution invalidating the rule or regulation. Ibid.

Prior to the legislative veto that gave rise to these appeals, the Legislature had never invalidated a rule or regulation pursuant to the Legislative Review Clause.

B.

In March 2013, the Commission published amendments to Title 4A of the New Jersey Administrative Code (the Proposed Rule). 45 N.J.R. 500(a) (Mar. 18, 2013). The Commission stated that the Proposed Rule was intended "to codify a new job banding program that would apply to positions in both State and local service." 45 N.J.R. at 501.

The Commission acknowledged that it had been its established practice to administer competitive examinations for promotions in every job title in State service. Ibid. The Commission deemed that process -- which required the announcement of an opening, a determination of who is eligible to take the examination, the administration of the examination, and the certification of the highest ranking scores to the appointing authority -- to be inefficient. 45 N.J.R. at 505.

The Proposed Rule incorporated...