In the Matter of The State Bd. of Educ.'s Denial of Petition To Adopt Regulations Implementing the N.J. High Sch. Voter Registration Law.

• Decision Date: 25 April 2011
• Citation: 29 A.3d 1079,273 Ed. Law Rep. 334,422 N.J.Super. 521
• Parties: In the Matter of the STATE BOARD OF EDUCATION'S DENIAL OF PETITION TO ADOPT REGULATIONS IMPLEMENTING the NEW JERSEY HIGH SCHOOL VOTER REGISTRATION LAW.
• Court: New Jersey Superior Court

422 N.J.Super. 521

29 A.3d 1079

273 Ed. Law Rep. 334

In the Matter of the STATE BOARD OF EDUCATION'S DENIAL OF PETITION TO ADOPT REGULATIONS IMPLEMENTING the NEW JERSEY HIGH SCHOOL VOTER REGISTRATION LAW.

Superior Court of New Jersey, Appellate Division.

Submitted April 4, 2011.Decided April 25, 2011.

American Civil Liberties Union of New Jersey Foundation, attorneys for appellants American Civil Liberties Union of New Jersey, Project Vote, and Fair Elections Legal Network (Edward L. Barocas, Legal Director, of counsel and on the brief).Paula T. Dow, Attorney General, attorney for respondents New Jersey Commissioner of Education and New Jersey State Board of Education (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Daniel F. Dryzga, Jr., Deputy Attorney General, on the brief).Before Judges LISA, REISNER, and SABATINO.

The opinion of the court was delivered by

SABATINO, J.A.D.

This case arises from an effort by appellants, three public interest organizations, to compel the Commissioner of Education (“the Commissioner”) and the State Board of Education (“the State Board”) to adopt regulations to implement the High School Voter Registration Law (“HSVRL”), N.J.S.A. 18A:36–27 to –28. For the reasons that follow, we affirm the denial of appellants' petition for rulemaking in part, and reverse it in part.

I.

In January 2010, appellants ¹ submitted a petition for rulemaking to the Commissioner and the State Board proposing the adoption of an extensive set of regulations aimed at fostering increased voter registration and voting by students who turn the age of eighteen before their graduation from high school or nonpublic school. The petition was submitted pursuant to N.J.S.A. 52:14B–4(f), a provision in the Administrative Procedure Act (“APA”) that enables interested parties to present a formal request to “an agency to adopt a new [administrative] rule, or amend or repeal any existing rule.”

In support of their petition, appellants contended that existing measures to promote registration and voting by eligible students in New Jersey are inadequate. The petition further alleged that the Commissioner and the New Jersey Department of Education (“the Department”) have failed to assure that high schools and nonpublic schools fulfill their statutory responsibility to provide voter registration forms and related educational materials to their students who reach the age of eighteen.

Among other things, appellants' petition cited to census data showing that in the 2008 presidential election only 52.5% of eligible New Jersey voters between the ages of eighteen and twenty-four had cast ballots, as compared with a much higher voting rate of 64.1% for all eligible citizens in the State. The petition also presented research from the Public Advocate suggesting that forty to sixty percent of New Jersey high schools were not in full compliance with their obligations under the HSVRL.

Notice of the Department's receipt of the rulemaking petition was duly published in the New Jersey Register. See 42 N.J.R. 595(a) (Feb. 16, 2010). No public hearings were conducted.

The State Board considered the petition at its monthly public meeting on June 16, 2010. Upon reviewing the petition, in consultation with the Commissioner and the Department, the State Board rejected appellants' request to adopt the proposed regulations. Shortly thereafter, the Department issued a public notice, explaining why the petition had been denied. See 42 N.J.R. 1629(a) (July 19, 2010).

The Department observed in its explanatory notice that the specific requirements the HSVRL imposes on school districts and nonpublic schools were already “clear and well understood.” The Department further noted that, to promote compliance with the HSVRL by public schools, the Department had begun including, in a tri-annual monitoring instrument known as the Quality Single Accounting Continuum (“QSAC”),² a specific inquiry on the subject. That inquiry on the QSAC questionnaire requires public school districts to confirm that they are providing students with the voter registration forms and the voting-related materials mandated by the HSVRL.

The Department indicated that all of the 280 school districts it monitored in 2009 reported that they had provided their students with voter registration forms and election-related information. Similarly, all seventy of the districts that the Department reevaluated in 2009 reported that they had provided the necessary voter forms and information. These favorable responses, according to the Department, were verified by the various County Superintendents of Schools. Consequently, the Department “disagree[d] [with petitioners] that further rulemaking will improve current compliance with the law.”

This appeal ensued. Appellants contend that the agency ³ has a mandatory obligation under the HSVRL to promulgate regulations, and that the agency has failed to meet that statutory responsibility. By way of remedy, appellants request that we issue an order compelling the agency to adopt regulations. Respondents, on the other hand, argue that the statute imposes no mandatory obligation to adopt regulations and, moreover, that no regulations are presently necessary.

II.

A.

We evaluate the issues before us based upon the limited administrative record developed in connection with the petition for rulemaking and the denial of that petition.⁴ Before performing that evaluation, we examine the specific language of the applicable statute.

The HSVRL was enacted in 1985. It is a relatively short and straightforward statute, consisting of only two provisions: a substantive provision in N.J.S.A. 18A:36–27, followed by a rulemaking provision in N.J.S.A. 18A:36–28.

The substantive provision, N.J.S.A. 18A:36–27, as amended, presently reads in its entirety:

The board of education of each school district and the appropriate school officials in each nonpublic school shall provide a voter registration form, a summary of voter registration eligibility requirements, and material describing the role of a citizen and the importance of voting to each eligible high school pupil prior to the graduation date for the school year. This material shall be nonpartisan and conform to the provisions of N.J.S.[A.] 18A:42–4.

According to the Senate Education Committee's Statement to A–889—the bill that, as modified, became the HSVRL—the law was prompted by legislative recognition that “[t]he lowest rates of voter registration and voting tend to occur among the youngest eligible citizens.” Sen. Educ. Comm., Statement to Assembly Bill No. 889 (June 25, 1984). The legislation “represents an effort to address the problem by providing high school seniors with a voter registration form and nonpartisan material to inform the students of the importance of participating in the decisions of government through voting.” Ibid.

A–889 passed in the Assembly by a unanimous vote of 66–0 and then passed in the Senate by a near-unanimous vote of 36–1. See N.J. Legislative Index, 1984–85. The bill was then presented to Governor Kean, who commended what he described as its “laudable” purposes, but who also found that the legislation in one aspect did not “embody the best method for effectuating” those purposes. See Conditional Veto of Governor Thomas Kean to A–889 (Jan. 8, 1985). In particular, Governor Kean observed that the bill “requires a voter registration drive which is duplicative of other efforts and would therefore fail in its purpose of registering newly enfranchised citizens.” Ibid. Governor Kean suggested that the law's objectives “could be better effectuated by combining its provisions with the [then-] current election law [ N.J.S.A. 19:32–2] requiring the March voter registration drive in all high schools.” Ibid.

The Legislature promptly revised the bill to incorporate Governor Kean's suggestion. The bill was adopted in that revised form in January 1985 by a 72–0 vote in the Assembly, and by a 33–0 vote in the Senate. See N.J. Legislative Index, 1984–85.

The HSVRL became effective on February 7, 1985, and was not altered for over two decades. The statute was recently amended in 2010 to specify that the voter registration materials must be given to students prior to graduation day, so as to ensure that students who are eligible to register to vote, but not yet graduating, receive the material. The 2010 amendment also now requires that “a summary of voter registration eligibility requirements” be distributed to the students, along with material describing “the role of a citizen and the importance of voting.” The 2010 amendment also deleted the HSVRL's prior reference to voter registration drives conducted by election boards under N.J.S.A. 19:31–2. See L. 2009, c. 281 (amending N.J.S.A. 18A:36–27).

The companion portion of the HSVRL, set forth in N.J.S.A. 18A:36–28, is the provision most critical to the present appeal. It states that:

The Commissioner of Education shall adopt pursuant to the “Administrative Procedure Act,” [citation omitted] rules and regulations necessary to implement the provisions of this act.

[Emphasis added].

Appellants contend that the Legislature's use of the term “shall” in Section 36–28, compels respondents to adopt regulations implementing the HSVRL. Respondents disagree, arguing that the word “shall” in the statute should be construed in a non-mandatory fashion, leaving it to their discretion to determine if such regulations are “necessary” to implement the substantive terms of Section 36–27.

Appellants complain that no regulations have been adopted under the HSVRL ever since it became law over twenty-six years ago. Respondents acknowledge that no comprehensive regulations to implement the HSVRL for public and nonpublic schools have been enacted. However, respondents point to the recent regulations that were enacted in connection with the revision of the QSAC instrument.

The QSAC questionnaire now specifically includes a question ...