Nolan v. Grewal, A-4614-19
| Court | New Jersey Superior Court – Appellate Division |
| Writing for the Court | PER CURIAM |
| Parties | ROBERT A. NOLAN, in his official capacity as CAPE MAY COUNTY SHERIFF, and COUNTY OF CAPE MAY, Plaintiffs-Appellants, v. GURBIR S. GREWAL, in his official capacity as ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, and OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF CRIMINAL JUSTICE, [1]Defendants-Respondents. |
| Docket Number | A-4614-19 |
| Decision Date | 26 January 2022 |
ROBERT A. NOLAN, in his official capacity as CAPE MAY COUNTY SHERIFF, and COUNTY OF CAPE MAY, Plaintiffs-Appellants,
v.
GURBIR S. GREWAL, in his official capacity as ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, and OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF CRIMINAL JUSTICE, [1]Defendants-Respondents.
No. A-4614-19
Superior Court of New Jersey, Appellate Division
January 26, 2022
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Submitted November 4, 2021
On appeal from the Office of the Attorney General, Department of Law and Public Safety, Division of Criminal Justice.
Jeffrey R. Lindsay, Cape May County Counsel, attorney for appellants (Jeffrey R. Lindsay, on the briefs).
Andrew J. Bruck, Acting Attorney General, attorney for respondents (Jeremy Feigenbaum, State Solicitor, and Jane C. Schuster, Assistant Attorney General, of counsel and on the brief; Emily Marie Bisnauth, Marie Soueid, Emily Wanger, and Sean P. Havern, Deputy Attorneys General, on the brief).
Before Judges Hoffman, Whipple, and Susswein.
PER CURIAM
Robert Nolan, in his official capacity as Cape May County Sheriff, and the County of Cape May (appellants) filed this action with this court on August 28, 2020, seeking a judgment declaring invalid and unenforceable Attorney General Law Enforcement Directive No. 2018-6 v2.0, also known as the Immigrant Trust Directive (Directive 2018-6 v2.0 or the Directive). The Attorney General issued the Directive, which places strict limitations on state, local, and county law enforcement agencies regarding their participation in the enforcement of federal immigration law, with the goal of improving public trust and clarifying the distinct roles of federal and state actors.
Appellants contend the Attorney General's issuance of the Directive, without complying with the New Jersey Administrative Procedure Act (APA),
N.J.S.A. 52:14B-1 to -31, renders it invalid and unenforceable. We disagree, concluding that the Directive falls under the statutory exemptions for inter-agency and intra-agency communications, as well as the statutory exemption for statements concerning the internal management of an agency. N.J.S.A. 52:14B- 2. We therefore affirm the action of the Attorney General's issuance of Directive 2018-6 v2.0.
I.
We begin with a review of immigration law and prior Directives issued by the Attorney General regarding the participation of state, local, and county law enforcement agencies in the enforcement of federal immigration law.
A. Background on Immigration Law
Under our federal system, the federal government "has broad, undoubted power over the subject of immigration and the status of aliens," Arizona v. United States, 567 U.S. 387, 394 (2012), while the "States possess primary authority for defining and enforcing the criminal law." United States v. Lopez, 514 U.S. 549, 561 n.3 (1995). Pursuant to the federal government's authority in this area, the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 to 1537, "establishe[s] a 'comprehensive federal statutory scheme for regulation of immigration and naturalization.'" Chamber of Com. of U.S. v. Whiting, 563
U.S. 582, 587 (2011) (quoting De Canas v. Bica, 424 U.S. 351, 353 (1976)). This includes regulation of "which aliens may be removed from the United States and the procedures for doing so." Arizona, 567 U.S. at 396. "Agencies in the Department of Homeland Security[, ]" including Immigration and Customs Enforcement (ICE), "play a major role in enforcing" the INA. Id. at 397. ICE is responsible both for "conduct[ing] criminal investigations involving the enforcement of immigration-related statutes" and "for the identification, apprehension, and removal of illegal aliens from the United States." Ibid. "Removal is a civil, not criminal, matter[, ]" over which federal immigration officials exercise "broad discretion." Id. at 396.
However, "[t]he pervasiveness of federal regulation does not diminish the importance of immigration policy to the States[, ]" which "bear[] many of the consequences of unlawful immigration." Id. at 397. The powers of the federal government to regulate immigration, and the State, to regulate criminal conduct, "intersect when a state or city arrests an individual whom ICE would also like to apprehend for removal proceedings." City of Phila. v. Att'y Gen. of the U.S., 916 F.3d 276, 281 (3d Cir. 2019). "Consultation between federal and state officials is an important feature of the immigration system." Arizona, 567 U.S. at 411. Various provisions of the INA "specif[y] limited circumstances in which
state officers may perform the functions of an immigration officer. A principal example is when the [United States] Attorney General has [pursuant to Section 287(g) of the INA] granted that authority to specific officers in a formal agreement with a state or local government." Id. at 408 (citing 8 U.S.C. § 1357(g)(1)). These agreements allow state, county, or local law enforcement officers to perform the "function[s] of an immigration officer in relation to the investigation, apprehension, or detention of aliens . . . at the expense of the State or political subdivision[, ]" but under the direction and supervision of the United States Attorney General. 8 U.S.C. § 1357(g)(1) to (3).
Section 287(g) makes clear that it does not require states and localities to enter into these agreements. 8 U.S.C. § 1357(g)(9). Where such agreements exist, state law enforcement officers may operate under them only "to the extent consistent with State and local law." 8 U.S.C. § 1357(g)(1). Other forms of cooperation contemplated by the INA are also generally voluntary on the part of states and localities. For example, the INA refers to detainer requests, 8 U.S.C. § 1357(d), but "does not authorize federal officials to command state or local officials to detain suspected aliens subject to removal" nor to command "notice of a prisoner's release." Galarza v. Szalczyk, 745 F.3d 634, 641 (3d Cir. 2014).
In short, while state and federal cooperation is important to the immigration system that Congress has put in place, that system ultimately entrusts the enforcement of federal immigration laws to federal authorities. State law enforcement officers are not required to enforce federal immigration laws, Galarza, 745 F.3d at 644, nor are they permitted to do so except in "limited circumstances" specified by federal law. Arizona, 567 U.S. at 408.
B. The New Jersey Attorney General's Authority
"As head of the Department of Law and Public Safety, the Attorney General is the chief law-enforcement officer in the State." In re Carberry, 114 N.J. 574, 577-78 (1989) (citing N.J.S.A. 52:17B-2). "In that capacity, the Attorney General is required 'to formulate and adopt rules and regulations for the efficient conduct of the work and general administration of the department, its officers and employees.'" Id. at 578 (quoting N.J.S.A. 52:17B-4(d)). In addition, the Criminal Justice Act of 1970, N.J.S.A. 52:17B-97 to -117, provides that the Attorney General is also responsible "for the general supervision of criminal justice . . . in order to secure the benefits of a uniform and efficient enforcement of the criminal law and the administration of criminal justice throughout the State." N.J.S.A. 52:17B-98. Accordingly, our Supreme Court has "[r]ecogniz[ed] the Attorney General's role as New Jersey's chief law
enforcement officer, with the authority to adopt guidelines, directives, and policies that bind police departments statewide." Paff v. Ocean Cnty. Prosecutor's Off., 235 N.J. 1, 19 (2018).
C. APA Rulemaking
"Agencies may 'act informally, or formally through rulemaking or adjudication in administrative hearings.'" Grimes v. N.J. Dep't of Corr., 452 N.J.Super. 396, 404 (App. Div. 2017). Although an agency has discretion to choose between rulemaking, adjudication, or informal action in discharging its duties, courts defer to that choice only if "it complies with due process requirements and the" APA. Nw. Covenant Med. Ctr. v. Fishman, 167 N.J. 123, 137 (2001). Thus, while courts ordinarily defer to an agency's interpretation "of statutes and regulations within its implementing and enforcing responsibility[, ]" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J.Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J.Super. 93, 102 (App. Div. 1997)), courts will not defer to an agency when interpreting the APA or determining whether an agency violated the APA.
"An 'administrative rule' can be promulgated only on notice and in compliance with N.J.S.A. 52:14B-4" of the APA. Woodland Priv. Study Grp. v. State, 109 N.J. 62, 65 (1987). Specifically, "an agency must provide thirty
days' notice of its intent to issue the rule, publish a summary and explanation of the rule, and afford 'all interested persons reasonable opportunity to submit data, views, or arguments, orally or in writing.'" Doe v. Poritz, 142 N.J. 1, 95 (1995) (quoting N.J.S.A. 52:14B-4). "No rule . . . is valid unless adopted in substantial compliance with" these procedures. N.J.S.A. 52:14B-4(d). "The 'essential purpose of notice and comment opportunities is to reintroduce public participation and fairness to affected parties after governmental authority has been delegated to unrepresentative agencies.'" Id. at 73 (quoting Batterton v. Marshall, 648 F.2d 694, 703 (D.C. Cir. 1980)). Thus, "compliance with the APA procedures serves the interests of 'fairness and due process.'" Grimes, 452 N.J.Super. at 407 (quoting Holmdel Builders Ass'n v. Holmdel, 121 N.J. 550, 578 (1990)).
N.J.S.A. 52:14B-2 defines "administrative rule" or "rule" as an
agency statement of general...
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