Communications Workers of America, AFL-CIO v. New Jersey Civil Service Commission

Annotate this Case

In March 2013, the Civil Service Commission (the Commission) published amendments to the New Jersey Administrative Code (the Proposed Rule). The Proposed Rule introduced the concept of a “job band,” defined as “a grouping of titles or title series into a single broad band consisting of title levels with similar duties, responsibilities, and qualifications.” Under the Proposed Rule, employees could advance between banded titles without competitive examinations, and the appointing authority would have the discretion to choose among all of the candidates who demonstrated the required competencies, rather than choosing among the three highest-ranking eligibles. In the Commission’s view, there was “no Constitutional or statutory impediment to the advancement of employees to different levels within a single title without a formal, competitive examination.” On June 27, 2013, the Legislature passed a concurrent resolution declaring the Proposed Rule inconsistent with the legislative intent of the Civil Service Act. On December 4, 2013, the Legislature transmitted the concurrent resolution, commencing the thirty-day period for the Commission to amend or withdraw the rule. The next day, however, the Senate commenced the second phase of the Legislative Review Clause by introducing a concurrent resolution invalidating the Proposed Rule. At issue before the New Jersey Supreme Court was the Legislature’s first exercise of its constitutional authority under the Legislative Review Clause and the threshold question of whether and under what standard a court could review concurrent resolutions as to agency rules and regulations. The Court determined a court could 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 was 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, a court should rely exclusively on statutory language and not apply a presumption in favor of either the Legislature’s findings or the agency’s exercise of its rulemaking authority. In this case, the Supreme Court found no procedural defect or constitutional infirmity in the Legislature’s actions. The Legislature correctly determined that N.J.A.C. 4A:3-3.2A conflicted with two provisions of the Civil Service Act.

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of
the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of any opinion may not have been summarized.)

Communications Workers of America, AFL-CIO v. New Jersey Civil Service Commission
(A-47-16) (078742)

Argued September 12, 2017 -- Decided August 8, 2018

PATTERSON, J., writing for the Court.

The Court considers the Legislature’s first exercise of its constitutional authority
under the Legislative Review Clause and the threshold question of whether and under what
standard a court can review concurrent resolutions as to agency rules and regulations.

The Legislative Review Clause, adopted as an amendment to the New Jersey
Constitution in 1992, 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. 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.

On December 23, 2013, the Commission announced amendments to the Proposed
Rule (the First Amended Proposed Rule). On May 7, 2014, the Commission adopted the
First Amended Proposed Rule as N.J.A.C. 4A:3-3.2A. In the wake of the Commission’s
adoption of the First Amended Proposed Rule, the Legislature recommenced the Legislative
Review Clause procedure. On June 16, 2014, the Legislature passed a concurrent resolution
declaring the First Amended Proposed Rule contrary to Article VII, Section 1, Paragraph 2 of
the New Jersey Constitution, and the legislative intent of the Civil Service Act. The
concurrent resolution stated that “[a]ny amended rule that contains a job banding provision
or elimination of competitive promotional examinations” would be deemed to violate Article
VII, Section 1, Paragraph 2 and “the Civil Service Act, including the spirit, intent, or plain
meaning of
N.J.S.A. 11A:3-1,
N.J.S.A. 11A:4-1, or N.J.S.A. 11A:4-8.” The Legislature
transmitted the concurrent resolution on June 17, 2014, thus commencing the thirty-day
period for the Commission to amend or withdraw N.J.A.C. 4A:3-3.2A.

On July 16, 2014, the Commission proposed a third iteration of the job banding rule
(the Second Amended Proposed Rule). The Legislature did not recommence the two-phase
process. Instead, on September 29, 2014, a new concurrent resolution was introduced in the
General Assembly that addressed both the First and the Second Amended Proposed Rules.
The Legislature stated that the amendments were “not responsive to the . . . finding . . . that
job banding is not consistent with legislative intent as expressed in the language of the Civil
Service Act” and thus “do not in any way limit [its] ability to proceed with invalidating the
job banding rule.” The Legislature thus resolved to invalidate N.J.A.C. 4A:3-3.2A “in its
entirety” and declared that “any subsequent amendments to said regulation shall be deemed
null and void.” On October 22, 2014, the Commission adopted the Second Amended
Proposed Rule as N.J.A.C. 4A:3-3.2A. On December 18, 2014, the Legislature passed the
final concurrent resolution at issue in this appeal, to invalidate the job banding rule.

On February 9, 2015, the Chairman of the Commission issued a statement declaring
job banding to be consistent with the Constitution and the Civil Service Act. The Chairman
further asserted that the Legislature failed to properly invalidate N.J.A.C. 4A:3-3.2A in light
of the Second Amended Proposed Rule. The Commission subsequently approved two
requests by appointing authorities to implement job banding pursuant to N.J.A.C. 4A:3-3.2A.
The Commission’s approval of the positions constituted final administrative determinations,
subject to appeal. See R. 2:2-3(a)(2).

The Communications Workers of America, AFL-CIO (CWA), the International
Federation of Professional and Technical Engineers, AFL-CIO (IFPTE), and the Senate
President and the Speaker of the General Assembly challenged the adoption and
2
implementation of the job banding rule. The Appellate Division granted the Senate and the
General Assembly leave to intervene in two appeals.

In an opinion by Judge Fasciale, an Appellate Division panel held that the Legislature
properly invoked the Legislative Review Clause to invalidate N.J.A.C. 4A:3-3.2 A. 447 N.J.
Super. 584, 606 (App. Div. 2016). The panel concluded that the deferential standard that
ordinarily applies in appellate review of agency determinations should not govern an
invocation of the Legislative Review Clause. Id. at 600. The panel prescribed a three-
pronged standard to govern appellate review. Applying that standard to the dispute before it,
the panel concluded that the Legislature had complied with the Legislative Review Clause’s
procedural requirements. Id. at 602-03. The panel found no violation of federal or state
constitutional norms in the Legislature’s action. Id. at 606. Finally, the panel concluded that
the Legislature’s determination that there was a conflict between the job banding rule and the
Civil Service Act “does not amount to a patently erroneous interpretation of the language of
the [statute].” Id. at 603. It reversed the Commissioner’s final agency determinations, and
vacated the implementation of N.J.A.C. 4A:3-3.2A. Id. at 606. The Court granted the
Commission’s petition for certification.
229 N.J. 590 (2017).

HELD: 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. Here, the Court finds no procedural defect
or constitutional infirmity in the Legislature’s actions. The Legislature correctly determined
that N.J.A.C. 4A:3-3.2A conflicts with two provisions of the Civil Service Act.

1. The Legislative Review Clause imposes a series of procedural requirements for an
exercise of a legislative veto. If the Legislature has not complied with those requirements, its
attempt to invalidate the agency’s action is a nullity, and the reviewing court’s inquiry ends.
(pp. 24-25)

2. The separation of powers provision, N.J. Const. art. III, ¶ 1, was designed to maintain the
balance between the three branches of government, preserve their respective independence
and integrity, and prevent the concentration of unchecked power in the hands of any one
branch. The doctrine requires not an absolute division of power but a cooperative
accommodation among the three branches of government. Closely aligned with the
separation of powers provision is the Presentment Clause, N.J. Const. art. V, § 1, ¶ 14, which
bars the exercise of law-making power without the concurrence of both houses of the
Legislature and approval by the Executive, unless the Legislature can muster a two-thirds
majority vote of both houses to override the executive veto. Like the separation of powers
3
provision, the Presentment Clause was enacted to prevent unwarranted legislative
interference with the executive branch and excessive legislative law-making power.
(pp. 25-29)

3. In 1981, the Legislature unanimously overrode a veto by Governor Byrne to enact the
Legislative Oversight Act, which required that all new and amended regulations, except
those mandated by federal law or related to an emergency affecting the public health, safety,
or welfare, be submitted to the Legislature for review and approval. In General Assembly v.
Byrne, the Court rejected an application for a declaratory judgment stating that the
Legislative Oversight Act was constitutional.
90 N.J. 376, 385-95 (1982). It acknowledged
the nexus between the separation of powers doctrine and the Presentment Clause, noting that
“[a]ny legislative action that so removes the Governor from law making as to violate the
Presentment Clause, Art. V, § 1, ¶ 14, threatens the separation of powers.” Id. at 385. The
Court also held that the Act violated the separation of powers doctrine and the Presentment
Clause “by giving the Legislature excessive power.” Id. at 395-96. The Court noted that
“the Legislature cannot circumvent the constitutional requirement of presentment to the
Governor merely by passing a statute which allows such a procedure.” Id. at 391. On the
very day that General Assembly was decided, the Legislature passed a concurrent resolution
proposing a constitutional amendment. In the 1985 general election, however, the voters
rejected the proposed constitutional amendment. The Legislative Review Clause approved
by the voters in 1992 is a grant of a far more limited power. By virtue of its limiting
language, the Clause follows the constitutional principles of General Assembly. (pp. 29-34)

4. When the Legislature exercises its constitutional authority to make laws, its actions are
afforded highly deferential judicial review. In its rulemaking function, an executive agency
is similarly afforded substantial deference. When the Legislature and Executive dispute the
parameters of their constitutional powers, the separation of powers doctrine mandates
vigilant judicial review. When a court reviews the Legislature’s finding that there is a
conflict between the enabling statute and the rule or regulation, no presumption should
operate in favor of the position taken by either branch. Instead, the court should simply
determine whether the Legislature’s finding that the rule or regulation conflicts with statutory
language is correct. The court should be guided exclusively by the statutory text, not by
extrinsic evidence of legislative intent. That limitation effectuates the language ratified by
the voters and serves the objectives of the separation of powers provision and the
Presentment Clause because it tethers the veto power to the language of a statute passed by
the Legislature and signed by the Governor. A reviewing court should also determine
whether invocation of the Legislative Review Clause contravenes any other constitutional
provision. In sum, a court should review the Legislature’s invalidation of an administrative
rule or regulation under a three-part inquiry. (pp. 34-42)

5. First, the Court addresses the Legislature’s compliance with the Legislative Review
Clause’s procedural requirements. The Legislature prematurely commenced the Legislative
Review Clause’s second phase in its challenge to the original Proposed Rule. That does not
affect its second invalidation of N.J.A.C. 4A:3-3.2A, which is the operative legislative action
for purposes of these appeals, however. In that second invocation of its legislative veto
4
power, the Legislature took no action during the thirty-day period for the Commission to
amend or withdraw the published rule. As to the assertion that there was a procedural defect
in the Legislature’s subsequent challenge to N.J.A.C. 4A:3-3.2A, the Clause does not
specifically address a setting in which the agency amends the rule or regulation but the
Legislature finds that amendment inadequate. The provision’s objective of ensuring that
rules and regulations comport with their enabling statutes, however, would be undermined if
an agency could indefinitely forestall a legislative veto by a succession of minor amendments
that do not resolve the Legislature’s concern. Here, the Legislature correctly determined that
the amendments did not address its objections, and properly proceeded to invalidate that
regulation. There was no procedural defect in the Legislature’s exercise of the Legislative
Review Clause. (pp. 43-46)

6. The Court next considers whether N.J.A.C. 4A:3-3.2A is consistent with the language of
the Civil Service Act’s relevant provisions. (pp. 46-60)

The Civil Service Act was enacted to secure the appointment and advancement of
civil service employees based on their merit and abilities, and it emphasizes the role of
competitive examinations in appointment and promotion. The Act’s legislative findings
expressly acknowledge and reinforce Article VII, Section I, Paragraph 2 of the New Jersey
Constitution. That provision does not require that merit and fitness be determined by
competitive examination in every case, but only as far as practicable. In addition to stating
the competitive examination requirement, the Civil Service Act addresses the procedure for
those examinations and the appointments and promotions that derive from them. The Act
charges the Commission to “provide for . . . [t]he announcement and administration of
examinations which shall test fairly the knowledge, skills and abilities required to
satisfactorily perform the duties of a title or group of titles.”
N.J.S.A. 11A:4-1(a). Such
“examinations may include, but are not limited to, written, oral, performance and evaluation
of education and experience.” Ibid. Vacancies “shall be filled by a promotional examination
when considered by the commission to be in the best interest of the career service.”
N.J.S.A.
11A:4-2. Following a competitive examination, the Commission is charged to “certify the
three eligibles who have received the highest ranking on an open competitive or promotional
list.”
N.J.S.A. 11A:4-8. The appointing authority is then permitted to select one of the three
highest scoring candidates from an open competitive examination. (pp. 46-51)

The Court concludes that N.J.A.C. 4A:3-3.2A directly contradicts legislative intent as
expressed in two provisions of the Civil Service Act,
N.J.S.A. 11A:4-1 and
N.J.S.A. 11A:4-
8. First, contrary to one of the chief policy goals identified by the Legislature in
N.J.S.A.
11A:3-2.1, the Commission’s job banding rule authorizes promotions between banded titles
in the competitive division without the competitive examinations addressed in
N.J.S.A.
11A:4-1. The Commission argues that for employees in job banded titles, competency
evaluations should be deemed to constitute the competitive examinations envisioned by
Article VII, Section 1, Paragraph 2 and
N.J.S.A. 11A:4-1. That assertion, however, is belied
by the terms of the regulation itself, which makes clear its purpose to eliminate competitive
examinations in advancement between positions within a job band. In short, by the very
terms of the job banding regulation, competency evaluations are distinct from competitive
5
examinations, not their functional equivalent. Second, N.J.A.C. 4A:3-3.2A directly
contravenes
N.J.S.A. 11A:4-8, the Civil Service Act provision codifying the “Rule of Three.”
Under the job banding regulation, the Commission does not certify three eligible candidates
based on their ranking in a competitive examination. Applying no presumption in favor of
either the Legislature’s contentions or the validity of the Commission’s regulation, the Court
concludes that the Legislature properly invoked the Legislative Review Clause. (pp. 51-60)

7. Finally, the Court does not find any violation of a protection afforded by any other
provision of the New Jersey Constitution, or by the United States Constitution, in the
legislative veto at issue in these appeals. (p. 60)

AFFIRMED AS MODIFIED.

JUSTICE LaVECCHIA, concurring in the judgment and dissenting in part,
agrees that the Appellate Division rightly rejected the Commission’s challenge but dissents
from the adopted standard for judicial review in Justice Patterson’s opinion, suggesting that a
substantial deference standard is more consistent with constitutional text that explicitly
provides the Legislature with veto power. Justice LaVecchia notes that the agency’s
rulemaking power is merely derived from the Legislature’s enabling act and that, under the
Constitution as now amended, the Legislature is authorized to explain its intent, using its
language, and thereby explicate the legislative policy and principle of an enabling act for the
benefit of the implementing agency. According to Justice LaVecchia, the Judiciary’s view of
legislative intent, culled from statutory language using the usual tools of statutory
construction, is as subordinate as that of the Executive’s in this setting.

JUSTICE SOLOMON, concurring in part and dissenting in part, concurs in the
majority’s stated standard of review but dissents because, here, the majority improperly
applies that standard. In Justice Solomon’s view, the job banding regulation is consistent
with the Constitution and the “intent” of the Civil Service Act (CSA) “as expressed in [its]
language,” N.J. Const. art. V, § 4, ¶ 6, both in a general sense and in its particulars. Given
the absence of conflict between the language of the statute and the stricken regulation, it
appears to Justice Solomon that the Legislature relied on its view of the “spirit” of the CSA
-- not the Act’s intent as expressed in its plain language -- to strike down the Job Banding
Rule and that, by allowing it to do so, the majority expands legislative authority and reduces
executive authority in a manner that threatens to undo the balance of powers established by
Article III, ¶ 1, and Article V, § 1, ¶ 14 of the New Jersey Constitution.

JUSTICE PATTERSON delivered the opinion of the Court as to both the applicable
standard of review and the outcome in this appeal. JUSTICE LaVECCHIA filed a
separate opinion -- concurring in the outcome in this appeal but dissenting as to the
applicable standard of review -- in which JUSTICES ALBIN and TIMPONE join.
JUSTICE SOLOMON filed a separate opinion -- concurring as to the applicable
standard of review but dissenting as to the outcome in this appeal -- in which CHIEF
JUSTICE RABNER and JUSTICE FERNANDEZ-VINA join.

6
SUPREME COURT OF NEW JERSEY
A-
47 September Term 2016
078742

COMMUNICATIONS WORKERS OF
AMERICA, AFL-CIO,

Appellant-Respondent,

NEW JERSEY CIVIL SERVICE
COMMISSION,

Respondent-Appellant.

COMMUNICATIONS WORKERS OF
AMERICA, AFL-CIO,

Appellant-Respondent,

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.

1
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.

Argued September 12, 2017 – Decided August 8, 2018

On certification to the Superior Court,
Appellate Division, whose opinion is
reported at
447 N.J. Super. 584 (App. Div.
2016).

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

Leon J. Sokol 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, on the briefs).

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

2
Arnold Shep Cohen 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

3
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

constitutional protections, 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 (App. Div. 2016). Under that standard,

4
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.

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.

5
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.

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

6
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

7
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.

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 several significant

amendments to that regulatory scheme. It introduced the concept

of a “job band,” defined as “a grouping of titles or title

series into a single broad band consisting of title levels with

8
similar duties, responsibilities, and qualifications.”
45 N.J.R. at 507. It used the term “competency” to describe “the

minimum level of training and orientation needed to successfully

perform at a particular title level within a job band.” Ibid.

The Proposed Rule defined an “advancement appointment” as “a

movement within a job band, upon achievement of a specific

number of predetermined competencies, to a higher title level

and, where applicable, associated higher class code, which does

not require competitive examination.” Ibid.

The Proposed Rule also amended existing regulatory

definitions. The term “promotion” was limited, in relation to

State service positions, to “a movement to a title with a higher

class code not in the employee’s current job band.” Ibid. The

term “title,” as applied to “titles approved for inclusion in

job bands,” was defined to “mean the title level within the job

band, and, where applicable, the level’s associated class code,

unless otherwise stated, or the context clearly suggests

otherwise.”
45 N.J.R. at 508.

The Commission explained that under the Proposed Rule,

employees could advance between banded titles without

competitive examinations, and that the appointing authority

would have the discretion to choose among all of the candidates

who demonstrated the required competencies, rather than choosing

9
among the three highest-ranking eligibles pursuant to
N.J.S.A.

11A:4-8.
45 N.J.R. at 505.

In the Commission’s view, the constitutional and statutory

mandate to conduct competitive examinations does not

require the application of the formal
examination process in every instance in which
an employee demonstrates (and the needs of the
appointing authority require) that he or she
has progressed from being able to perform
“routine” level work to being able to perform
“complex” level work associated with the
title.

[
45 N.J.R. at 502.]

It explained that an employee’s progression -- treated in

existing regulations “as a 'promotion’ to the next higher, non-

supervisory title in a title series” -- is more accurately

viewed as the employee’s advancement “to the point where he or

she can be entrusted with higher level, non-supervisory duties.”

Ibid. The Commission concluded that there was “no

Constitutional or statutory impediment to the advancement of

employees to different levels within a single title without a

formal, competitive examination.” Ibid.

The Commission predicted that job banding would “streamline

the selection process by eliminating duplicative promotional

procedures, while preserving the underlying principles of merit

and fitness.” Ibid.

10
On June 27, 2013, the Legislature passed a concurrent

resolution declaring the Proposed Rule to be inconsistent with

the legislative intent of the Civil Service Act.
1 A. Con. Res.
199 (2013) (enacted). In the concurrent resolution, the

Legislature made the following findings:

The proposed new Job Banding Rule, N.J.A.C.
4A:3-3.2A, is contrary to the spirit, intent,
and plain meaning of the provision in the New
Jersey Constitution that requires that
promotions be based on merit and fitness to be
ascertained, as far as practicable, by
examination, which, as far as practicable,
shall be competitive.

The fact that the proposed new rule would
eliminate competitive promotional
examinations for tens of thousands of
positions for which such exams have been
administered for decades is compelling
evidence that it is practicable to continue to
determine the merit and fitness of candidates
for such promotional positions by competitive
examination in accordance with the New Jersey
Constitution.

The proposed new rule is not consistent with
the legislative intent that the public policy
of this State is to select and advance
employees on the basis of their relative
knowledge, skills and abilities, ensure equal
employment opportunity at all levels of public
service, and protect career public employees
from political coercion.

The proposed new rule is not consistent with
the legislative intent that a competitive
promotional examination process be

1 On June 20, 2013, the concurrent resolution was introduced in
the General Assembly as ACR-199. On June 24, 2013, the Senate
passed an identical resolution, SCR-158. On June 27, 2013, the
Senate substituted ACR-199 for SCR-158.
11
established, maintained, and administered by
the Civil Service Commission to ensure that
promotions are based on merit and fitness and
are not based on patronage or discriminatory
reasons.

The proposed new rule is not consistent with
the legislative intent that whenever a veteran
ranks highest on a promotional certification,
a nonveteran shall not be appointed unless the
appointing authority shall show cause before
the commission why a veteran should not
receive such promotion.

The proposed new rule is not consistent with
the intent of the Legislature as expressed in
the language of the Civil Service Act,
including the spirit, intent, or plain meaning
of
N.J.S.A. 11A:3-1,
N.J.S.A. 11A:4-1,

N.J.S.A. 11A:4-8 or
N.J.S.A. 11A:5-7.

[Ibid.]

On December 4, 2013, the Legislature transmitted the

concurrent resolution to the Commission and the Governor, thus

commencing the thirty-day period for the Commission to amend or

withdraw the disputed rule under the Legislative Review Clause.

The next day, however, the Senate commenced the second phase of

the Legislative Review Clause by introducing a concurrent

resolution invalidating the Proposed Rule. S. Con. Res. 166

(2013). The Senate held a public hearing regarding the

concurrent resolution on December 12, 2013, thereby commencing

the twenty-day period that the Legislature was required to wait

before voting to invalidate the Proposed Rule. See N.J. Const.

art. V, § 4, ¶ 6.

12
On December 23, 2013, the Commission announced amendments

to the Proposed Rule (the First Amended Proposed Rule). See
46 N.J.R. 260(a) (Feb. 3, 2014). In the First Amended Proposed

Rule, the Commission limited job banding to civilian, non-public

safety job titles in State service. Ibid. It also confirmed

the applicability of the Title 11A veterans’ preference2 to

advancement appointments, and clarified remedies for alleged

discrimination in job banding determinations. Ibid. On January

9, 2014, the Legislature passed a concurrent resolution to

prohibit the adoption of the Proposed Rule.
3 A. Con. Res. 215

(2013) (enacted).

On May 7, 2014, the Commission adopted the First Amended

Proposed Rule as N.J.A.C. 4A:3-3.2A, with an effective date of

June 2, 2014. See
46 N.J.R. 1331(c) (June 2, 2014).

In the wake of the Commission’s adoption of the First

Amended Proposed Rule as N.J.A.C. 4A:3-3.2A, the Legislature

2 The veterans’ preference is a statutory requirement that
“disabled veterans who receive passing scores on open
competitive examinations shall be placed at the top of the
employment list in the order of their respective final scores,”

N.J.S.A. 11A:5-4, and that non-disabled veterans with passing
scores “be placed . . . immediately after disabled veterans,”

N.J.S.A. 11A:5-5.

3 On December 12, 2013, the concurrent resolution, ACR-215, was
introduced in the General Assembly. The General Assembly passed
that resolution on January 6, 2014. On January 9, 2014, the
Senate substituted ACR-215 for SCR-166.

13
recommenced the Legislative Review Clause procedure. On June

16, 2014, the Legislature passed a concurrent resolution

declaring the First Amended Proposed Rule to be contrary to

Article VII, Section 1, Paragraph 2 of the New Jersey

Constitution, and the legislative intent of the Civil Service

Act.
4 S. Con. Res. 116 (2014) (enacted). In that concurrent

resolution, the Legislature restated the findings set forth in

its prior concurrent resolutions, except to delete the finding

that the Rule disregarded the veterans’ preference, and the

citation to
N.J.S.A. 11A:5-7, which addresses the veterans’

preference in promotion. Ibid. The concurrent resolution

stated that “[a]ny amended rule that contains a job banding

provision or elimination of competitive promotional

examinations” would be deemed by the Legislature to violate

Article VII, Section 1, Paragraph 2 and “the Civil Service Act,

including the spirit, intent, or plain meaning of
N.J.S.A.

11A:3-1,
N.J.S.A. 11A:4-1, or N.J.S.A. 11A:4-8.” Ibid.

The Legislature transmitted the concurrent resolution to

the Commission and the Governor on June 17, 2014, thus

4 On May 12, 2014, that concurrent resolution, SCR-116, was
introduced in the Senate. On May 22, 2014, an identical
resolution, ACR-155, was introduced in the General Assembly. On
June 12, 2014, the Senate passed SCR-116. On June 16, 2014, the
General Assembly substituted SCR-116 for ACR-155.
14
commencing the thirty-day period for the Commission to amend or

withdraw N.J.A.C. 4A:3-3.2A.

On July 16, 2014, the Commission proposed a third iteration

of the job banding rule (the Second Amended Proposed Rule).
46 N.J.R. 1765(a) (Aug. 18, 2014). The Commission stated that in

order to avoid “the potential abuses alleged” in the

Legislature’s latest concurrent resolution, it had amended the

job banding rule in two respects. Ibid. First, the Second

Amended Proposed Rule required an appointing authority to

“obtain approval of the advancement appointment selection

process from the Chairperson of the Commission or designee

before administering such process.” Ibid. Second, the Second

Amended Proposed Rule required the appointing authority, after

determining an advancement appointment, to “rank the candidates

for the announced advancement appointment, taking into account

veterans’ preference, if applicable, . . . and to document

accordingly.” Ibid.

In the wake of the Commission’s publication of its Second

Amended Proposed Rule, the Legislature did not recommence the

two-phase Legislative Review Clause process. Instead, on

September 29, 2014, a new concurrent resolution was introduced

in the General Assembly. See A. Con. Res. 192 (2014). That

concurrent resolution addressed both the First Amended Proposed

Rule, already adopted as N.J.A.C. 4A:3-3.2A, and the Second

15
Amended Proposed Rule. Ibid. The Legislature acknowledged the

Commission’s amendments but stated that those amendments “would

make only minor changes and are not responsive to the

Legislature’s finding . . . that job banding is not consistent

with legislative intent as expressed in the language of the

Civil Service Act.” Ibid. Accordingly, the Legislature

declared that those amendments “do not in any way limit [its]

ability to proceed with invalidating the job banding rule

pursuant to [the Legislative Review Clause].” Ibid.

The Legislature thus resolved to invalidate N.J.A.C. 4A:3-

3.2A “in its entirety” and declared that “any subsequent

amendments to said regulation shall be deemed null and void.”

Ibid.

On October 22, 2014, the Commission adopted the Second

Amended Proposed Rule as N.J.A.C. 4A:3-3.2 A. 46 N.J.R. 2277(b)

(Nov. 17, 2014). On December 18, 2014, the Legislature passed

ACR-192, the final concurrent resolution at issue in this

appeal, to invalidate the job banding rule.5

On February 9, 2015, the Chairman of the Commission issued

a statement declaring job banding to be consistent with the

5 On October 9, 2014, the General Assembly held a public hearing
on ACR-192. On the same day, the Senate introduced its
identical resolution, SCR-147. One week later, the transcripts
of the public hearing were delivered to legislators’ desks.
ACR-192 was passed by the General Assembly on November 13, 2014.
The Senate substituted ACR-192 for SCR-147 on December 18, 2014.
16
Constitution and the Civil Service Act. The Chairman further

asserted that the Legislature failed to properly invalidate

N.J.A.C. 4A:3-3.2A in light of the Commission’s proposal of the

Second Amended Proposed Rule.

The Commission subsequently approved two requests by

appointing authorities to implement job banding pursuant to

N.J.A.C. 4A:3-3.2A. In July 2015, the Commission authorized the

Office of Information Technology to band four job titles “in

order to streamline the appointment process with a more finely

calibrated system which considers competencies and job

performance.” In re Job Banding for Software Dev. Specialist 1

& 2, & Network Adm’r 1 & 2, Office of Info. Tech., CSC No. 2016-

651, at 2 (July 31, 2015). The Commission found that the key

distinctions among the titles related to “the complexity of work

performed and the level of supervision received” in the

position, factors that could not accurately be tested by written

examinations. Id. at 6.

The following month, the Commission authorized the

Department of Transportation to band three Highway Operations

Technician titles. In re Changes in the State Classification

Plan & Job Banding Request, Dep’t of Transp., CSC Nos. 2016-778,

-779, at 4 (Aug. 21, 2015). The Commission again found that the

titles differed from one another primarily with respect to “the

complexity of work performed and the level of supervision

17
received” in the position, and that an employee’s ability to

perform more complex work with less supervision could not

accurately be measured by competitive examinations. Id. at 3.

The Commission’s approval of the Office of Information

Technology and Department of Transportation positions

constituted final administrative determinations by the

Commission, subject to appeal. See R. 2:2-3(a)(2).

The Communications Workers of America, AFL-CIO (CWA), the

International Federation of Professional and Technical

Engineers, AFL-CIO (IFPTE), and the Senate President and the

Speaker of the General Assembly challenged the Commission’s

adoption and implementation of the job banding rule in six

appeals, five of which are now before the Court.
6 The Appellate

6 The CWA filed three appeals. See Commc’ns Workers of Am. v.
Civil Serv. Comm’n, No. A-4912-13T3 (challenging Commission’s
adoption of First Amended Proposed Rule as N.J.A.C. 4A:3-3.2A);
Commc’ns Workers of Am. v. Civil Serv. Comm’n, No. A-3041-14T3
(challenging Commission’s February 9, 2015 determination that
N.J.A.C. 4A:3-3.2A conformed to Article VII, Section 1,
Paragraph 2, and Civil Service Act); In re Job Banding for
Software Dev. Specialist 1 and 2, and Network Adm’r 1 and 2,
Office of Info. Tech., No. A-230-15T3 (challenging Commission’s
final agency decision approving Office of Information
Technology’s request to band titles pursuant to N.J.A.C. 4A:3-
3.2A). The CWA later withdrew its first appeal as moot. The
IFTPE challenged the Commission’s final agency decision
approving the Department of Transportation’s request to band
titles pursuant to N.J.A.C. 4A:3-3.2A. In re Changes in the
State Classification Plan and Job Banding Request, Dept. of
Transp., No. A-232-15T3. The Senate President and the Speaker
of the General Assembly filed the final two appeals. See In re
18
Division granted the Senate and the General Assembly leave to

intervene in the two appeals filed by the Senate President and

the Speaker of the General Assembly.

The Appellate Division denied stay applications filed by

the CWA and the IFPTE. It consolidated CWA’s three appeals, but

declined to consolidate the remaining three appeals.

In an opinion by Judge Fasciale, an Appellate Division

panel held that the Legislature properly invoked the Legislative

Review Clause to invalidate N.J.A.C. 4A:3-3.2A. Commc’ns

Workers,
447 N.J. Super. at 606. The panel concluded that the

deferential standard that ordinarily applies in appellate review

of agency determinations should not govern an invocation of the

Legislative Review Clause. Id. at 600. Although it afforded

the Legislature “substantial deference” in exercising its

legislative veto, the panel reasoned that the Legislative Review

Clause neither limits appellate courts’ “traditional role of

interpreting the law,” nor “preclude[s] the judicial branch from

exercising its role to enforce the checks and balances embodied

Changes of State Classification Plan and Job Banding Request,
Dep’t of Transp., No. A-274-15T3 (challenging Commission’s final
agency decision approving Department of Transportation’s request
to band titles pursuant to N.J.A.C. 4A:3-3.2A); In re Job
Banding for Software Dev. Specialist 1 and 2, and Network Adm’r
1 and 2, Office of Info. Tech., No. A-275-15T3 (challenging
Commission’s final agency decision approving Office of
Information Technology’s request to band titles pursuant to
N.J.A.C. 4A:3-3.2A).
19
in the State Constitution.” Id. at 600-01. The panel declared

that it retained its authority to review the Legislature’s

findings and conclusions to ensure that the Legislature has

properly invalidated a rule or regulation rather than “passing

new legislation, subject to the presentment clause.” Id. at

601.

The panel prescribed a three-pronged standard to govern

appellate review:

We therefore hold that we may reverse the
Legislature’s invalidation of an
administrative executive rule or regulation 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.”

[Ibid. (quoting N.J. Const. art. V, § 4, ¶
6).]

Applying that standard to the dispute before it, the panel

concluded that the Legislature had complied with the Legislative

Review Clause’s procedural requirements. Id. at 602-03. The

panel found no violation of federal or state constitutional

norms in the Legislature’s action. Id. at 606. Finally, the

panel concluded that the Legislature’s determination that there

was a conflict between the job banding rule and the Civil

Service Act “does not amount to a patently erroneous

20
interpretation of the language of the [statute].” Id. at 603.

It reversed the Commissioner’s final agency determinations, and

vacated the implementation of N.J.A.C. 4A:3-3.2A. Id. at 606.

We granted the Commission’s petition for certification.

229 N.J. 590 (2017).7

II.

The Commission argues that the Legislature failed to comply

with the Legislative Review Clause’s procedural requirements

when it exercised its legislative veto. It asserts that the

Civil Service Act authorizes it to institute the practice of job

banding and that job banding is not inconsistent with the Act’s

provisions regarding competitive examinations. The Commission

contends that the Legislature improperly invoked the Legislative

Review Clause to divest the Commission of its statutory

authority and to manage an executive agency, thereby violating

the New Jersey Constitution’s separation of powers provision,

N.J. Const. art. III, ¶ 1, and its Presentment Clause, N.J.

7 After the Commission moved before the Appellate Division panel
for a stay of the Appellate Division’s judgment pending this
Court’s determination, the Commission, the CWA, and the
Legislature consented to a stay of the Appellate Division’s
judgment as applied to the 105 employees represented by the CWA
who had received “advancement appointments” under N.J.A.C. 4A:3-
3.2A. The Appellate Division panel denied the Commission’s
motion for a stay of the panel’s judgment. This Court denied
the Commission’s motion for a stay of that judgment beyond the
parameters of the consent stay and denied the Commission’s
motion to accelerate the appeals.

21
Const. art. V, § 1, ¶ 14. The Commission urges the Court not to

defer to the Legislature’s veto of N.J.A.C. 4A:3-3.2A because

that veto unconstitutionally abrogates executive authority.

The Senate President, the Speaker of the General Assembly,

the Senate, and the General Assembly argue that the Appellate

Division panel conducted appropriate judicial review in these

appeals and urge the Court to affirm the panel’s judgment. They

contend that the Legislature complied with the procedural and

substantive requirements of the Legislative Review Clause, that

it properly identified a conflict between the Civil Service

Act’s competitive examination provisions and the Commission’s

job banding rule, and that it acted within the authority

conferred on it by the Legislative Review Clause when it

invalidated that regulation.

The CWA agrees that the Legislature complied with the

Legislative Review Clause’s procedural provisions and urges the

Court to defer to the Legislature’s finding of a conflict

between the Civil Service Act and N.J.A.C. 4A:3-3.2A. The CWA

characterizes the passage of a concurrent resolution as “an

action squarely within the wheelhouse of the legislative branch

of government” that is entitled to the same deference as that

afforded to a statute. It contends that the Legislature

properly concluded that N.J.A.C. 4A:3-3.2A contravened

22
legislative intent, as expressed in
N.J.S.A. 11A:3-1,
N.J.S.A.

11A:4-1, and
N.J.S.A. 11A:4-8.

The IFPTE recognizes “no role for strict judicial review of

the Legislature’s findings that a regulation is contrary to

legislative intent.” It contends that if the Legislature

follows the procedures prescribed by the Legislative Review

Clause, judicial scrutiny of a veto should be limited to whether

the Legislature has acted in a manner “repugnant to the

Constitution.” The IFPTE urges the Court to apply that proposed

standard of review to uphold the legislative veto at issue in

these appeals.

III.

We first determine the standard by which a court reviews a

legislative veto under the Legislative Review Clause.

That determination begins with the language of the

provision itself. See State v. Buckner,
223 N.J. 1, 15 (2015)

(“To understand the meaning and intent of a constitutional

provision, courts look first to the plain language the framers

used.”); Comm. to Recall Robert Menendez from the Office of U.S.

Senator v. Wells,
204 N.J. 79, 105 (2010) (same). “If the

language is straightforward, 'the words used must be given their

plain meaning.’” Buckner,
223 N.J. at 15 (quoting State v.

Trump Hotels & Casino Resorts,
160 N.J. 505, 527 (1999)). A

constitutional provision “must be interpreted and applied in a

23
manner 'that serves to effectuate fully and fairly its

overriding purpose.’” Trump Hotels,
160 N.J. at 527 (quoting

Dickinson v. Fund for Support of Free Pub. Schs.,
95 N.J. 65, 95

(1983) (Handler, J., dissenting in part)).

In our analysis, we strive to harmonize competing

constitutional provisions. State v. Muhammad,
145 N.J. 23, 44

(1996). We “consider[] all the parts [of the Constitution] as a

whole, and not one part as a separate and independent provision

bearing no relation to the remainder.” Behnke v. Highway Auth.,

13 N.J. 14, 24 (1953).

The Legislative Review Clause imposes a series of

procedural requirements for an exercise of a legislative veto.

The Legislature must state, in a concurrent resolution passed by

both houses, its findings that an agency rule or regulation

contravenes the legislative intent of the enabling statute.

N.J. Const. art. V, § 4, ¶ 6. It must then “transmit [that]

finding . . . to the Governor and the head of the Executive

Branch Agency” responsible for the rule’s proposal. Ibid. If

the agency does not withdraw or amend the rule during the

thirty-day window that the Clause prescribes, either the General

Assembly or the Senate holds a public hearing regarding the

rule’s invalidation, the transcript of which must be “plac[ed]

on the desks of the members of each House.” Ibid. When twenty

24
days have elapsed after the delivery of the transcripts, the

Legislature may vote to invalidate the rule. Ibid.

Those procedural requirements serve fundamental goals: to

ensure that the executive agency and the public are on notice of

the Legislature’s objection to the rule or regulation and to

grant the agency the opportunity to address that objection by

amending or withdrawing the rule or regulation. If the

Legislature has not complied with those requirements, its

attempt to invalidate the agency’s action is a nullity, and the

reviewing court’s inquiry ends.

We next determine the scope of judicial review of the

Legislature’s finding that a rule or regulation is inconsistent

“with the intent of the Legislature as expressed in the

language” of the enabling act. N.J. Const. art. V, § 4, ¶ 6.

In our inquiry, we harmonize the Legislative Review Clause

with two other constitutional provisions, the separation of

powers provision, N.J. Const. art III, ¶ 1, and the Presentment

Clause, N.J. Const. art. V, § 1, ¶ 14.

“[S]eparation of powers is a fundamental principle of

American government, expressly provided for in the constitutions

of many states, and implied in almost all the others and in the

federal government from the creation of the three separate

25
branches of government.” David v. Vesta Co.,
45 N.J. 301, 323

(1965); accord Commc’ns Workers of Am. v. Florio,
130 N.J. 439,

449 (1992). The New Jersey Constitution codifies the doctrine:

The powers of the government shall be divided
among three distinct branches, the
legislative, executive, and judicial. No
person or persons belonging to or constituting
one branch shall exercise any of the powers
properly belonging to either of the others,
except as expressly provided in this
Constitution.

[N.J. Const. art. III, ¶ 1.]

Our Constitution vests “[t]he legislative power . . . in a

Senate and General Assembly.” N.J. Const. art. IV, § 1, ¶ 1.

It grants “[t]he executive power . . . [to] a Governor.” N.J.

Const. art. V, § 1, ¶ 1. Finally, the Constitution vests “[t]he

judicial power . . . in a Supreme Court, a Superior Court, and

other courts of limited jurisdiction.” N.J. Const. art. VI,

§ 1, ¶ 1.

The separation of powers provision “was designed to

'maintain the balance between the three branches of government,

preserve their respective independence and integrity, and

prevent the concentration of unchecked power in the hands of any

one branch.’” Florio,
130 N.J. at 449 (quoting David,
45 N.J.

at 326). The provision recognizes “that each branch of

government is distinct and is the repository of the powers which

are unique to it; the members or representatives of one branch

26
cannot arrogate powers of another branch.” Knight v. Margate,

86 N.J. 374, 388 (1981). Separation of powers “is premised on

the theory that government works best when each branch of

government acts independently and within its designated sphere,

and does not attempt to gain dominance over another branch.” In

re P.L. 2001, Chapter 362,
186 N.J. 368, 378 (2006).

Nonetheless, “we have always recognized that the doctrine

requires not an absolute division of power but a cooperative

accommodation among the three branches of government.” Florio,

130 N.J. at 449; accord Gen. Assembly v. Byrne,
90 N.J. 376, 382

(1982); Knight,
86 N.J. at 388. “[T]he doctrine necessarily

assumes the branches will coordinate to the end that government

will fulfill its mission.” Brown v. Heymann,
62 N.J. 1, 11

(1972). The purpose of the separation of powers doctrine “is

not to create three 'watertight’ governmental compartments,

stifling cooperative action among the executive, legislative and

judicial branches,” but to “guarantee a system in which one

branch cannot claim or receive an inordinate power.” In re P.L.

2001,
186 N.J. at 379 (quoting Florio,
130 N.J. at 450 (brackets

removed)).

Closely aligned with the separation of powers provision is

our Constitution’s Presentment Clause, N.J. Const. art. V, § 1,

¶ 14. That Clause provides in part:

27
When a bill has finally passed both houses,
the house in which final action was taken to
complete its passage shall cause it to be
presented to the Governor before the close of
the calendar day next following the date of
the session at which such final action was
taken.

[N.J. Const. art. V, § 1, ¶ 14.]

A bill presented to the Governor becomes law:

(1) if the Governor approves and signs it
within the period allowed for his
consideration; or,

(2) if the Governor does not return it to the
house of origin, with a statement of his
objections, before the expiration of the
period allowed for his consideration; or,

(3) if, upon reconsideration of a bill
objected to by the Governor, two-thirds of all
the members of each house agree to pass the
bill.

[Ibid.]

The Presentment Clause bars “the exercise of law-making

power without the concurrence of both houses of the Legislature

and approval by the Executive, unless the Legislature can muster

a two-thirds majority vote of both houses to override the

executive veto.” Gen. Assembly,
90 N.J. at 384; cf. INS v.

Chadha,
462 U.S. 919, 946 (1983) (“[T]he requirement that all

legislation be presented to the President before becoming law

was uniformly accepted by the Framers.”). It confirms that all

statutes, unless passed by two-thirds of both houses of the

Legislature after a veto, will be enacted with “the concurrence

28
of both houses . . . and approval by the Executive.” Gen.

Assembly,
90 N.J. at 384.

Like the separation of powers provision, the Presentment

Clause was enacted to prevent “unwarranted legislative

interference with the executive branch and excessive legislative

law-making power.” Id. at 385. The Framers sought to ensure

that “no legislative action may have substantial policy-making

effects without the approval of the Governor or a two-thirds

vote of both houses of the Legislature.” Id. at 389.

The Presentment Clause, however, does not mandate that

“every legislative action require[] the approval of both houses

and presentment to the Governor.” Enourato v. Bldg. Auth.,
90 N.J. 396, 408 (1982). To assess a legislative action’s

conformity with the Presentment Clause, a reviewing court

determines whether the challenged action effects “a subsequent

legislative nullification of a policy that a former Legislature

enacted into law.” Id. at 407.

Before our Constitution was amended to adopt the

Legislative Review Clause, this Court invoked the separation of

powers doctrine and the Presentment Clause to strike down an

unrestricted legislative veto provision enacted by statute in

General Assembly,
90 N.J. at 385-95. The Court articulated

principles in General Assembly that guide our determination of

these appeals.

29
In 1981, the Legislature unanimously overrode a veto by

Governor Byrne to enact the Legislative Oversight Act, L. 1981,

c. 27. See id. at 379. That Act required that all new and

amended regulations, except those mandated by federal law or

related to an emergency affecting the public health, safety, or

welfare, be submitted to the Legislature for review and

approval. L. 1981, c. 27, §§ 1, 4. Pursuant to the Legislative

Oversight Act, if the Legislature disapproved of the rule, it

was authorized to adopt a concurrent resolution invalidating the

rule within sixty days of its receipt of that rule. L. 1981, c.

27, § 3.

In General Assembly, this Court rejected an application for

a declaratory judgment stating that the Legislative Oversight

Act was constitutional.
90 N.J. at 385-95. It acknowledged the

nexus between the separation of powers doctrine and the

Presentment Clause, noting that “[a]ny legislative action that

so removes the Governor from law making as to violate the

Presentment Clause, Art. V, § 1, ¶ 14, threatens the separation

of powers.” Id. at 385. The Court identified the

constitutional provisions’ dual objectives:

To determine whether legislative action
violates either clause, the Court must bear in
mind the two purposes of both provisions:
preventing unwarranted legislative
interference with the executive branch and
excessive legislative law-making power. In a
scheme of government that frequently requires

30
cooperation between the branches of
government, we cannot decide what constitutes
excessive legislative power merely by intoning
the abstract principles of separation of
powers. To judge the constitutionality of the
legislative veto provision in [the Legislative
Oversight Act], the Court must determine its
practical effects upon law making and law
enforcement.

[Ibid. (citation omitted).]

The Court deemed the “extremely broad legislative veto”

authorized by the Legislative Oversight Act to “frustrate[] the

Executive’s constitutional mandate to faithfully execute the

law.” Ibid. “Even where the Legislature is not using its veto

power to effectively change the law,” the Court noted, “the veto

can illegitimately interfere with executive attempts to enforce

the law.” Id. at 386.

The Court also held that the Act violated the separation of

powers doctrine and the Presentment Clause “by giving the

Legislature excessive power.” Id. at 395-96. It observed that

[t]he legislative veto gives the Legislature
unlimited potential to block any rules
promulgated pursuant to a particular statute.
The Legislature can use this power to exert a
policy-making effect equivalent to amending or
repealing existing legislation. A veto which
effectively amends or repeals existing law
offends the Constitution because it is
tantamount to passage of a new law without the
approval of the Governor. This violates the
separation of powers, N.J. Const. (1947), Art.
III, ¶ 1, and the Presentment Clause, Art. V,
§ 1, ¶ 14.

[Id. at 388.]

31
The Court noted that “the Legislature cannot circumvent the

constitutional requirement of presentment to the Governor merely

by passing a statute which allows such a procedure.” Id. at

391.

The Court prescribed the following standard to determine

whether a legislative veto provision violates separation of

powers principles and the Presentment Clause: “Where

legislative action is necessary to further a statutory scheme

requiring cooperation between the two branches, and such action

offers no substantial potential to interfere with exclusive

executive functions or alter the statute’s purposes, legislative

veto power can pass constitutional muster.” Id. at 395; see

also Enourato,
90 N.J. at 401.8

The Court’s decision in General Assembly provoked “a

legislative response . . . that was extraordinarily prompt by

8 In Enourato, decided the same day as General Assembly, the
Court identified a legislative veto provision that did not run
afoul of the Constitution.
90 N.J. at 407. The statutory
provision in dispute in Enourato permitted either house of the
Legislature to veto building projects and lease agreements
proposed by the New Jersey Building Authority. Id. at 399. The
Court acknowledged that, taken to the extreme, “repeated
legislative vetoes” could “effectively repeal” the enabling
statute without presentment to the Governor. Id. at 407.
However, it deemed that “[t]he potential . . . to effectively
alter the policy of existing laws without presentment” to be
“negligible under the limited veto power in the Building
Authority Act.” Ibid.

32
any standard.” Kimmelman v. Burgio,
204 N.J. Super. 44, 48

(App. Div. 1985). On the very day that General Assembly was

decided, the Legislature passed a concurrent resolution

proposing a constitutional amendment. Under that proposal,

Article V, Section 4, Paragraph 6 would have been amended to

authorize the Legislature, by a majority of the authorized

membership of each House, to “invalidate any rule or regulation,

in whole or in part,” and to “prohibit any proposed rule or

regulation, in whole or in part.” S. Con. Res. 133 (1982).
9 In

the 1985 general election, however, the voters rejected the

proposed constitutional amendment. See Public Question No. 7

(1985), http://www.njelections.org/election-results/1985-public-

questions.pdf.

The Legislative Review Clause approved by the voters in

1992 is a grant of a far more limited power. See Public

Question No. 4 (1992), http://www.njelections.org/election-

results/1992-public-questions.pdf. The Clause does not purport

to confer on the Legislature the unfettered authority to veto

executive agency rules and regulations envisioned by the

9 In accordance with an Appellate Division panel’s suggestion,
Kimmelman,
204 N.J. Super. at 55, the proposed amendment’s
interpretive statement cautioned voters that the amendment
“would constitute a fundamental change in the relationship
between the co-equal branches of government.” Public Question
No. 7 (1985), http://www.njelections.org/election-results/1985-
public-questions.pdf.
33
Legislative Oversight Act and the rejected amendment of 1985.

N.J. Const. art. V, § 4, ¶ 6. Nor does it authorize the

Legislature to use the veto power to amend the enabling statute,

thus circumventing the Presentment Clause. See Gen. Assembly,

90 N.J. at 391. By virtue of its limiting language, the Clause

follows the constitutional principles of General Assembly.

Against that backdrop, we consider the scope of judicial

review.10 As this Court has long recognized, when the

Legislature exercises its constitutional authority to make laws,

its actions are afforded highly deferential judicial review.

Courts “can and should exercise caution and defer to

[legislative] solutions when appropriately drafted by the

Legislature.” In re Adoption of N.J.A.C. 5:96,
215 N.J. 578,

616 (2013); see also Gangemi v. Berry,
25 N.J. 1, 9 (1957)

10 Four of our sister states have constitutional provisions
providing for legislative oversight of administrative
regulations. Conn. Const., Amends. art. XVIII; Idaho Const.
art. III, § 29; Iowa Const. art. III, § 40; Nev. Const. art. 3,
§ 1. No appellate court in any of those jurisdictions, however,
has addressed the standard of review that governs a legislative
veto of a rule or regulation. In a decision applying the Iowa
constitutional provision, the Iowa Supreme Court addressed a
different separation-of-powers question. It rejected the
executive agency’s contention that only the Legislature, not the
court, could review agency regulations; because the Legislature
had not invoked its power to invalidate the regulation, the
court reviewed that regulation with deference to the agency.
Iowa Fed’n of Labor v. Iowa Dep’t of Job Serv.,
427 N.W.2d 443,
445-49 (Iowa 1988).
34
(stating that Legislature is entrusted “with the general

authority to make laws at discretion” (internal quotation marks

omitted)). A party seeking a ruling that a statute is

unconstitutional “must hurdle '[t]he strong presumption of

constitutionality that attaches’” to a statute. Buckner,
223 N.J. at 14 (alteration in original) (quoting Hamilton Amusement

Ctr. v. Verniero,
156 N.J. 254, 285 (1998)). When a statute is

challenged on constitutional grounds, it will be upheld unless

its “repugnancy to the constitution is clear beyond a reasonable

doubt.” Ibid. (emphasis removed) (quoting Gangemi,
25 N.J. at
10); accord Trump Hotels,
160 N.J. at 527. “When reasonable

people 'might differ’ about the constitutionality of a law,

courts 'must defer[] to the will of the lawmakers.’” Buckner,

223 N.J. at 15 (alteration in original) (quoting N.J. Ass’n on

Corr. v. Lan,
80 N.J. 199, 220 (1979)).

In its rulemaking function, an executive agency is

similarly afforded substantial deference. When it establishes

an administrative agency, the Legislature “delegate[s] the

primary authority of implementing policy in a specialized area

to governmental bodies with the staff, resources, and expertise

to understand and solve those specialized problems.” Bergen

Cty. Pines Hosp. v. Dep’t of Human Servs.,
96 N.J. 456, 474

(1984). We “defer to an agency’s interpretation of both a

statute and implementing regulation, within the sphere of the

35
agency’s authority, unless the interpretation is 'plainly

unreasonable.’” In re Election Law Enforcement Comm’n Advisory

Op. No. 01-2008,
201 N.J. 254, 262 (2010) (quoting Reilly v. AAA

Mid-Atl. Ins. Co. of N.J.,
194 N.J. 474, 485 (2008)).

An appellate court may reverse an agency decision only if

it is arbitrary, capricious, or unreasonable. In re Proposed

Quest Acad. Charter Sch.,
216 N.J. 370, 385 (2013). Judicial

review is limited to three inquiries:

(1) whether the agency’s action violates the
enabling act’s express or implied legislative
policies; (2) whether there is substantial evidence
in the record to support the findings on which the
agency based its action; and (3) whether in
applying the legislative policies to the facts the
agency clearly erred by reaching a conclusion that
could not reasonably have been made on a showing of
the relevant factors.

[In re Petitions for Rulemaking,
117 N.J. 311, 325
(1989).]

In these appeals, however, we review neither a challenge to

a statute’s constitutionality nor an agency’s routine exercise

of its rulemaking authority. Instead, we confront a discrete

issue: whether the Legislature properly invoked its authority

under the Legislative Review Clause.

It is clear that the Clause expanded legislative oversight

of agency rules and regulations. See Hunterdon Med. Ctr. v.

Township of Readington,
195 N.J. 549, 571 n.15 (2008) (observing

that “the Legislature’s authority to challenge regulations with

36
which it disagrees has only increased” with amendment of Article

V, Section 4, Paragraph 6); In re Adoption of Regulations

Governing the State Health Plan,
135 N.J. 24, 28 (1994)

(characterizing Legislative Review Clause as “a strong statement

of the allocation of power between the state department and the

Legislature”). The voters, however, granted that expanded

authority in only one setting: the Legislature may exercise its

power to veto a rule or regulation promulgated by the Executive

in the event of an actual conflict between the rule or

regulation and the intent of the Legislature as reflected in the

language of the enabling statute. N.J. Const. art. V, § 4, ¶ 6.

Were we to presume that any legislative invocation of the

Legislative Review Clause is correct, we would risk abrogating

executive rulemaking authority in violation of the Presentment

Clause and separation of powers. As the Court has noted, “no

deviation from the . . . separation of powers [doctrine] will be

tolerated which impairs the essential integrity of one of the

[three] branches of government.” In re P.L. 2001,
186 N.J. at
379 (alterations in original) (quoting Massett Bldg. Co. v.

Bennett,
4 N.J. 53, 57 (1950)). When the Legislature and

Executive dispute the parameters of their constitutional powers,

the separation of powers doctrine mandates vigilant judicial

review:

37
Although both the giving and taking of power
can be constitutional if not excessive, the
taking of power is more prone to abuse and
therefore warrants an especially careful
scrutiny. The case before us is one in which
the Legislature has taken for itself a power
normally lodged in the executive branch.
Therefore, our deference to the Legislature
must be accompanied by the most thorough and
careful review to guard against the
encroachment of one co-equal branch of
government on another.

[Florio,
130 N.J. at 457.]

Consistent with that principle, we do not review either the

Legislature’s construction of the enabling statute, or the

agency’s position that its regulation conformed with that

statute, with the broad deference that typically governs

judicial review. When a court reviews the Legislature’s finding

that there is a conflict between the enabling statute and the

rule or regulation, no presumption should operate in favor of

the position taken by either branch. Instead, the court should

simply determine whether the Legislature’s finding that the rule

or regulation conflicts with statutory language is correct.

The court should be guided in that inquiry exclusively by

the statutory text, not by extrinsic evidence of legislative

intent. That limitation effectuates the language ratified by

the voters. See N.J. Const. art. V, § 4, ¶ 6 (authorizing

Legislature to determine whether administrative rule or

regulation promulgated by executive agency “is consistent with

38
the intent of the Legislature as expressed in the language of

the statute which the rule or regulation is intended to

implement”). It also serves the objectives of the separation of

powers provision and the Presentment Clause because it tethers

the veto power to the language of a statute passed by the

Legislature and signed by the Governor. See Gen. Assembly,
90 N.J. at 388 (noting need to ensure that veto is not exercised in

manner that “effectively amends or repeals existing law” without

Governor’s approval).

We concur with the Appellate Division that a reviewing

court should also determine whether the Legislature’s invocation

of the Legislative Review Clause contravenes any other provision

of the New Jersey Constitution, or any provision of the United

States Constitution. Commc’ns Workers,
447 N.J. Super. at 601.

In sum, an appellate court should reverse the Legislature’s

invalidation of an administrative 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, ¶

39
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. If the court

finds that none of those standards have been contravened, it

should affirm the Legislature’s action.

In Justice LaVecchia’s opinion, our concurring and

dissenting colleagues refute arguments that are not asserted in

this opinion. See post at ___ (slip op. at 16-21). It is

beyond dispute that when the voters approved the Legislative

Review Clause, they expanded the Legislature’s authority to

nullify executive agency rules, if those rules contravene

legislative intent as expressed in an enabling statute’s

language. Supra at ___ (slip op. at 36-37); see also N.J.

Const. art. V, § 4, ¶ 6. It is equally clear that when the

Legislature exercises its authority to make laws, it is entitled

to substantial deference in judicial review. Supra at ___ (slip

op. at 34-35). Notwithstanding the contentions set forth in the

concurring and dissenting opinion, the standard adopted in this

appeal is not premised on the notion that the Clause grants to

the Executive a corollary power to interpret the enabling

statute, or that judicial review turns on the agency’s view of

what constitutes valid execution of the law. To the contrary,

40
that standard affords no deference to the views of the executive

agency. See supra at ___ (slip op. at 36-38).

There is only one point of dispute between this opinion and

that of our concurring and dissenting colleagues: the second

component of the three-pronged standard governing judicial

review of the Legislature’s invocation of the Legislative Review

Clause. Applying that aspect of the test, a reviewing court

determines whether 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.

That language is not a judicial invention; it is derived

directly from the text of the Clause itself. See N.J. Const.

art. V, § 4, ¶ 6.

Criticizing that test as conclusory and incongruent with

the Legislative Review Clause, post at ___ (slip op. at 16-17,

20), our concurring and dissenting colleagues offer as an

alternative a standard premised on the Legislature’s “reasonable

interpretation” of its statute, post at ___ (slip op. at 23).

The only three cases cited by our concurring and dissenting

colleagues in support of that standard do not address the

setting of this case. See White v. Wheeler, 577 U.S. ___,
136 S. Ct. 456, 460-62 (2015) (holding that federal court reviewing

state court’s excusal of juror under Antiterrorism and Effective

41
Death Penalty Act must be “doubly deferential” (internal

quotation marks omitted)); Turner Broad. Sys. v. FCC,
520 U.S. 180, 195-96 (1997) (according “substantial deference to the

predictive judgments of Congress” when Congress creates national

policy and “out of respect for its authority to exercise the

legislative power”); Roe v. Kervick,
42 N.J. 191, 229 (1964)

(acknowledging principle of “judicial deference to the will of

the lawmakers” in challenge to constitutionality of

appropriations under redevelopment law). More importantly, that

“reasonable interpretation” language is found nowhere in the

Legislative Review Clause.

Under the standard stated in this opinion, if the

Legislature has correctly identified a conflict between

statutory language and the disputed rule or regulation, then it

has properly invoked the Clause, and its action is upheld. If

not, then the limiting language that the voters adopted in the

Legislative Review Clause -- language that harmonizes the Clause

with the separation of powers doctrine and the Presentment

Clause -- constrains the legislative veto. That judicial

determination, grounded in the constitutional text, accurately

reflects the Legislature’s intent when it proposed the

Legislative Review Clause, and the voters’ intent when they

approved it.

IV.

42
In accordance with that standard, we review the legislative

veto invalidating N.J.A.C. 4A:3-3.2A.

We first address the Legislature’s compliance with the

Legislative Review Clause’s procedural requirements.

The Commission contends that after the Legislature

challenged the Proposed Rule by concurrent resolution, it

accelerated the schedule for the second phase of the Legislative

Review Clause procedure by holding a public hearing and passing

a concurrent resolution on the first day of the thirty-day

period in which the agency may amend or withdraw the rule. We

agree. The Clause provides that after the transmittal of the

resolution to the Executive Branch, the agency “shall have 30

days to amend or withdraw the existing or proposed rule or

regulation.” N.J. Const. art. V, § 4, ¶ 6. It further

prescribes that the Legislature may invalidate a rule or

regulation “[i]f the agency does not amend or withdraw the

existing or proposed rule or regulation.” Ibid.

Accordingly, the Legislative Review Clause does not

authorize the Legislature to take further action against an

agency for thirty days after it delivers its findings in a

concurrent resolution to the Governor and the head of the

agency. See Office of Legislative Servs., New Jersey

Legislature Legislator’s Handbook 26 (2016-2017 ed.) (stating

43
that after Legislature transmits its concurrent resolution

stating its findings to Governor and executive agency, it “waits

30 days for the executive agency to withdraw or amend the rule

or regulation”). Thus, the Legislature prematurely commenced

the Legislative Review Clause’s second phase in its challenge to

the original Proposed Rule.

That does not affect its second invalidation of N.J.A.C.

4A:3-3.2A, which is the operative legislative action for

purposes of these appeals, however. In that second invocation

of its legislative veto power, the Legislature took no action

during the thirty-day period for the Commission to amend or

withdraw the published rule. Accordingly, the timing of the

Legislature’s first exercise of the Clause has no impact on our

determination.

The Commission also asserts that there was a procedural

defect in the Legislature’s subsequent challenge to N.J.A.C.

4A:3-3.2A. It contends that when it proposed the Second Amended

Proposed Rule within the thirty-day window, the Legislature was

required to restart the Legislative Review Clause process anew

and to make findings specific to the Second Amended Proposed

Rule in a revised concurrent resolution. Instead, the

Legislature declined to address the Second Amended Proposed Rule

and prospectively invalidated any future amendments.

44
The Clause does not specifically address a setting in which

the agency amends the rule or regulation but the Legislature

finds that amendment to be inadequate to address its concerns.

The provision’s objective of ensuring that rules and regulations

comport with their enabling statutes, however, would be

undermined if an agency could indefinitely forestall a

legislative veto by a succession of minor amendments that do not

resolve the Legislature’s concern.

After the Commission’s second set of amendments to its

proposed rule and its adoption of N.J.A.C. 4A:3-3.2A, the

Commission amended the Rule only to provide for additional

administrative oversight of the advancement appointment

selection process and to require the appointing authority to

rank candidates and document that ranking. The Legislature

correctly determined that the amendments did not address its

objections, and properly proceeded to invalidate that

regulation.11

11 Nothing in the Legislative Review Clause authorizes the
Legislature to prospectively invalidate all future amendments to
N.J.A.C. 4A:3-3.2A; indeed, the Clause envisions that an agency
may amend a rule or regulation in order to align it with the
enabling statute. N.J. Const. art. V, § 4, ¶ 6. Although the
Legislature resolved that any future amendments to N.J.A.C.
4A:3-3.2A would be declared null and void in ACR-192, there were
no such amendments, and that declaration had no impact on the
outcome of these appeals.

45
We therefore concur with the Appellate Division’s

conclusion that there was no procedural defect in the

Legislature’s exercise of its authority under the Legislative

Review Clause.

We next consider whether N.J.A.C. 4A:3-3.2A is consistent

with the language of the Civil Service Act’s relevant

provisions.

The Civil Service Act governs civil service employment in

New Jersey, which includes all positions within state government

and those within the political subdivisions that choose to adopt

it and be governed by its terms. See
N.J.S.A. 11A:2-11(e). The

statute was enacted “to secure the appointment and advancement

of civil service employees based on their merit and abilities.”

Commc’ns Workers of Am. v. Dep’t of Pers.,
154 N.J. 121, 126

(1998). “[T]he Act seeks to put civil service positions beyond

political control, partisanship, and personal favoritism.”

Ibid.

The Civil Service Act grants to the Commission the

authority to:

a. Establish, administer, amend and
continuously review a State classification
plan governing all positions in State service
and similar plans for political subdivisions;

46
b. Establish, consolidate and abolish titles;

c. Ensure the grouping in a single title of
positions with similar qualifications,
authority and responsibility;

d. Assign and reassign titles to appropriate
positions; and

e. Provide a specification for each title.

[N.J.S.A. 11A:3-1.]

It directs the Commission to “promulgate, pursuant to the

'Administrative Procedure Act,’ [
N.J.S.A. 52:14B-1 to -31],

rules and regulations to effectuate the purposes of” the Civil

Service Act.
N.J.S.A. 11A:4-1.2. Those “purposes” are defined

by the statute to include the selection and advancement of

employees “on the basis of their relative knowledge, skills and

abilities”; the encouragement and rewarding of “meritorious

performance”; and the retention and separation of employees “on

the basis of the adequacy of their performance.”
N.J.S.A.

11A:1-2. The Act’s provisions addressing the manner in which

employees are appointed to particular titles and promoted from

one title to another are at the center of these appeals.

The Civil Service Act emphasizes the role of competitive

examinations in appointment and promotion. The Act’s

legislative findings expressly acknowledge and reinforce Article

VII, Section I, Paragraph 2 of the New Jersey Constitution. See

N.J.S.A. 11A:3-2.1. That constitutional provision states:

47
Appointments and promotions in the civil
service of the State, and of such political
subdivisions as may be provided by law, shall
be made according to merit and fitness to be
ascertained, as far as practicable, by
examination, which, as far as practicable,
shall be competitive; except that preference
in appointments by reasons of active service
in any branch of the military or naval forces
of the United States in time of war may be
provided by law.

[N.J. Const. art. VII, § 1, ¶ 2.]

That provision “does not require that merit and fitness be

determined by competitive examination in every case, but only

'as far as practicable.’” Newark Superior Officers Ass’n v.

City of Newark,
98 N.J. 212, 232 (1985) (quoting N.J. Const.

art. VII, § 1, ¶ 2). As this Court observed, “[t]he framers of

the Constitution recognized that although competitive

examinations would be the general rule in Civil Service

appointments and promotions, there would be situations where

such examination would not be practicable, and they made

explicit provision therefor.” Falcey v. Civil Serv. Comm’n,
16 N.J. 117, 122-23 (1954).

Acknowledging that “appointments to certain types of

employment are not readily made through a competitive

examination process,”
N.J.S.A. 11A:3-2.1, the Civil Service Act

divides the career service into a competitive division and a

noncompetitive division.
N.J.S.A. 11A:3-2. In contrast to the

“examination and certification” process governing advancement in

48
the competitive division, the Act provides for “appointment” to

titles in the noncompetitive division.
N.J.S.A. 11A:4-13. The

Commission has the authority to “assign and reassign such titles

to each division and may provide for movement, including

promotion, of employees from one division to the other.”

N.J.S.A. 11A:3-2.12

Like the noncompetitive division of the career service, the

senior executive service, the State unclassified service, and

the political subdivision unclassified service are exempt from

the competitive examination provisions of the Civil Service Act.

See
N.J.S.A. 11A:3-3 to -5. The Act also permits the Commission

to “waive an examination for an applicant who has a physical,

mental, or emotional injury, impairment, or disability” that

meets statutory criteria.
N.J.S.A. 11A:7-13.13

12 In 1993, the Legislature amended the Civil Service Act to bar
the transfer of any title “from the State unclassified service
or the senior executive service” to the noncompetitive division
of the career service, and to bar the transfer or appointment of
any “individual serving in a title of the State unclassified
service or the senior executive service” to the noncompetitive
division of the career service,” in the last six months of a
governor’s term.
N.J.S.A. 11A:3-2.2.

13 Regulations other than N.J.A.C. 4A:3-3.2A also authorize
waivers of competitive examinations. See N.J.A.C. 4A:4-2.14
(authorizing waiver of examination for persons with
disabilities); N.J.A.C. 4A:4-2.7 (authorizing Commission to
waive examination for promotion if “[t]he employee has been
successfully tested in the basic skills required for the
promotional title”; [t]he employee has not failed, within one
year prior to the announced closing date, a promotional
examination for that title”; “[t]he number of interested
49
In addition to stating the competitive examination

requirement, the Civil Service Act addresses the procedure for

those examinations and the appointments and promotions that

derive from them. The Act charges the Commission to “provide

for . . . [t]he announcement and administration of examinations

which shall test fairly the knowledge, skills and abilities

required to satisfactorily perform the duties of a title or

group of titles.”
N.J.S.A. 11A:4-1(a). Such “examinations may

include, but are not limited to, written, oral, performance and

evaluation of education and experience.” Ibid. Vacancies

“shall be filled by a promotional examination when considered by

the commission to be in the best interest of the career

service.”
N.J.S.A. 11A:4-2.

Following a competitive examination, the Commission is

charged to “certify the three eligibles who have received the

highest ranking on an open competitive or promotional list.”

N.J.S.A. 11A:4-8. The appointing authority is then permitted to

“select one of the three highest scoring candidates from an open

competitive examination.” In re Foglio,
207 N.J. 38, 45 (2011)

(quoting Local 518, State Motor Vehicle Emps. Union v. DMV,
262 N.J. Super. 598, 603 (App. Div. 1993)). That practice, known as

eligibles for the promotional examination does not exceed the
number of promotional appointments by more than two”; and
“[v]eterans preference rights are not a factor”).

50
the “Rule of Three,” has “governed the certification of

candidates to the appointing body as well as the appointing

body’s hiring discretion for over a century.” Ibid. (citing L.

1908, c. 156, § 21).

We conclude that N.J.A.C. 4A:3-3.2A directly contradicts

legislative intent as expressed in two provisions of the Civil

Service Act,
N.J.S.A. 11A:4-1 and
N.J.S.A. 11A:4-8.

First, contrary to one of the chief policy goals identified

by the Legislature in
N.J.S.A. 11A:3-2.1, the Commission’s job

banding rule authorizes promotions between banded titles in the

competitive division without the competitive examinations

addressed in
N.J.S.A. 11A:4-1.

The Commission has broad authority to “[e]stablish . . .

and abolish titles”; “[a]ssign and reassign titles to

appropriate positions”; and “[e]nsure the grouping in a single

title of positions with similar qualifications, authority and

responsibility.”
N.J.S.A. 11A:3-1. It is authorized to

reallocate titles from the competitive division to the

noncompetitive division, thereby obviating the need to

administer competitive examinations in titles as to which they

are impracticable.
N.J.S.A. 11A:3-2.

In N.J.A.C. 4A:3-3.2A, however, the Commission seeks to do

much more. For titles covered by the job banding rule, an

employment action that would otherwise be considered a promotion

51
requiring a competitive examination is renamed an “advancement

appointment” exempt from the constitutional and statutory

mandate. N.J.A.C. 4A:1-1.3. For job banded titles, N.J.A.C.

4A:3-3.2A does not require the Commission to find competitive

examinations impracticable in order to dispense with those

examinations. In short, N.J.A.C. 4A:3-3.2A obviates the need

for the Commission to administer competitive examinations that

N.J.S.A. 11A:4-1 would otherwise require.

The Commission notes that in accordance with N.J.A.C. 4A:3-

3.2A(d), an employee’s competencies are regularly assessed, and

advancement appointments are based on those competencies. It

argues that for employees in job banded titles, these competency

evaluations should be deemed to constitute the competitive

examinations envisioned by Article VII, Section 1, Paragraph 2

and
N.J.S.A. 11A:4-1.

That assertion, however, is belied by the terms of the

regulation itself, which makes clear its purpose to eliminate

competitive examinations in advancement between positions within

a job band:

(b) The Civil Service Commission shall review
titles and title series in State service to
determine whether they are appropriate for job
banding.

1. This determination shall be guided by
whether a movement from one position to
a higher level position may be achieved
based on an evaluation of relative

52
knowledge, skills, and abilities without
resorting to competitive examination
procedures, while still satisfying the
State constitutional and statutory
mandate for merit and fitness in
selections and appointments.

[N.J.A.C. 4A:3-3.2A(b)(1).]

Distinguishing the advancement procedures prescribed for

job banded titles from those governing titles outside of the

band, the job banding regulation provided that “[t]he movement

to a supervisory title outside of the band shall be effected

through promotional examination procedures.” N.J.A.C. 4A:3-

3.2A(i). In short, by the very terms of the job banding

regulation, competency evaluations are distinct from competitive

examinations, not their functional equivalent.

In the Social Impact statement of the Proposed Rule, the

Commission underscored its position that its job banding rule

would dispense with competitive examinations for job banded

titles.
45 N.J.R. at 505. Describing the complex and time-

consuming process of promotion by competitive examination, the

Commission stated that “[i]t is the intention of the proposed

new job banding program to streamline the selection process by

eliminating duplicative promotional procedures, while preserving

the underlying principles of merit and fitness.” Ibid.

Accordingly, when it introduced the Proposed Rule, the

Commission did not assert that the competency evaluations

53
envisioned by N.J.A.C. 4A:3-3.2A(d) satisfied the statutory

requirement of competitive examinations. To the contrary, it

argued that it could achieve the Civil Service Act’s overriding

objectives of merit and fitness in appointments in banded titles

more efficiently without the cumbersome competitive-examination

process. Ibid.

As the Commission candidly stated when it published the

Proposed Rule, the evaluations used to determine advancement

appointments between banded titles are distinct from the

competitive examinations envisioned by Article VII, Section 1,

Paragraph 2 and
N.J.S.A. 11A:4-1. To the extent that such

evaluations are substituted for competitive examinations in the

competitive division, they are inconsistent with legislative

intent, as expressed in the language of
N.J.S.A. 11A:4-1.14

14 The Commission’s reliance on its promulgation and enforcement
of N.J.A.C. 4A:3-3.7 to implement job banding in trainee
positions, which prompted no legislative veto pursuant to N.J.
Const. art. V, § 4, ¶ 6, is misplaced. That regulation,
governing only “entry level employment,” requires a trainee to
complete a training period before appointment to a “primary
title,” N.J.A.C. 4A:3-3.7(a), (c), (j). As the Commission
stated in a final administrative action reallocating various
trainee titles to the noncompetitive division of the career
service, “competitive testing [for those trainee titles] is not
practicable since the knowledge, skills, and abilities
associated with a trainee title are evaluated during the
mandatory training period.” In the Matter of Reallocation of
Local Trainee Titles from the Competitive to the Non-Competitive
Division of the Career Service, CSC Docket No. 2015-2987, final
administrative action, (May 8, 2015), 2 http://www.state.nj.us/
csc/about/meetings/decisions/pdf/2015/5-6-15/B-74.PDF. The
“trainee” titles are clearly within the category of positions
54
Second, N.J.A.C. 4A:3-3.2A directly contravenes
N.J.S.A.

11A:4-8, the Civil Service Act provision codifying the “Rule of

Three.” Under the job banding regulation, the Commission does

not certify three eligible candidates based on their ranking in

a competitive examination, so that the appointing authority can

select one of the three for the position, as
N.J.S.A. 11A:4-8

provides. Instead, when an appointing authority identifies a

vacancy at a particular level within a job band, “it may

consider all employees who have attained the predetermined

competencies.” N.J.A.C. 4A:3-3.2A(d)(1). The appointing

authority then conducts “an advancement appointment selection

process approved by the Chairperson or designee” and determines

“which employee or employees may receive an advancement

appointment,” taking into account the veterans’ preference set

forth in the regulation. N.J.A.C. 4A:3-3.2A(d)(3). The

“appointing authority” ranks the candidates and documents that

ranking. Ibid. In short, for job banded titles, N.J.A.C. 4A:3-

3.2A eliminates the statutory certification and appointment

procedure prescribed by the Civil Service Act, directly

contradicting the language of
N.J.S.A. 11A:4-8.

that “cannot be properly tested for, such as lower-level jobs
which do not require significant education or experience,” for
which the noncompetitive division exists.
N.J.S.A. 11A:3-
2.1(d).
55
Applying no presumption in favor of either the

Legislature’s contentions or the validity of the Commission’s

regulation, we conclude that the Legislature properly invoked

the Legislative Review Clause, N.J. Const. art. V, § 4, ¶ 6.

The Legislature correctly found the job banding practice

prescribed by N.J.A.C. 4A:3-3.2A to be inconsistent with

legislative intent, as expressed in the language of two Civil

Service Act provisions,
N.J.S.A. 11A:4-1 and
N.J.S.A. 11A:4-8.

In his concurring and dissenting opinion, Justice Solomon

asserts that this opinion authorizes the Legislature to

invalidate executive action based on what he terms the

“legislative spirit” of the Civil Service Act, thereby

contravening separation of powers principles. Post at ___ (slip

op. at 19-21). The Legislature’s concurrent resolutions

invalidating N.J.A.C. 4A:3-3.2A cited the “spirit” of various

provisions of the Civil Service Act as well as its “intent” and

“plain meaning.” S. Con. Res. 116; A. Con. Res. 192. To the

extent that the Legislature intended to rely on the “spirit” of

the Civil Service Act as distinct from its express language, its

invocation of the statute’s “spirit” is immaterial to our

analysis. In accordance with the express language of the

Legislative Review Clause, we consider only whether N.J.A.C.

4A:3-3.2A is “consistent with the intent of the Legislature as

56
expressed in the language” of the Civil Service Act. N.J.

Const. art. V, § 4, ¶ 6.

Notwithstanding the view expressed by our concurring and

dissenting colleagues, that inquiry reveals a significant

disparity between statute and rule. The concurring and

dissenting opinion stresses that N.J.A.C. 4A:3-3.2A’s

advancement appointment selection process fairly assesses

competing candidates’ skills and experience, and that the

process constitutes, in effect, the “competitive examinations”

envisioned by
N.J.S.A. 11A:4-1 and 11A:4-8. Post at ___ (slip

op. at 10, 14-15).

Not even the Commission, however, suggests that advancement

appointments are competitive examinations within the meaning of

either Article VII, Section I, Paragraph 2 of the New Jersey

Constitution or
N.J.S.A. 11A:4-1 and 11A:4-8.15 To the contrary,

the Commission maintains that the grouping of multiple titles

within a single band would further constitutional and statutory

objectives to promote merit and fitness in public employment as

it obviates the need for competitive examinations in the

15 In light of the Commission’s amendments to the job banding
proposal, the Legislature did not rely on
N.J.S.A. 11A:5-7, the
provision addressing the veteran’s preference in promotions, in
the concurrent resolutions under review. See S. Con. Res. 116;
A. Con. Res. 192. That statute is thus not relevant to our
analysis.
57
advancement of employees within a given band. N.J.A.C. 4A:3-

3.2A(b)(1).

In short, the Commission’s stated intent was not simply to

redesign competitive examinations in the advancement of

employees within a job band, as our colleagues suggest, but to

eliminate competitive examinations in that setting. Ibid.; see

also N.J.A.C. 4A:3-1.2(b) (“A career service job title in the

competitive division is subject to the competitive examination

procedures of N.J.A.C. 4A:4-2, except as provided in N.J.A.C.

4A:3-3.2A.”).

Moreover, our concurring and dissenting colleagues cannot

reconcile N.J.A.C. 4A:3-3.2A with
N.J.S.A. 11A:4-8, the Civil

Service Act provision that codifies the “Rule of Three.” The

job banding rule abandons the statutory practice by which the

Commission certifies three qualified candidates and the

appointing authority selects one of those three candidates for

the position; it instead authorizes the appointing authority to

select from all employees with predetermined competencies for

the position. Compare N.J.A.C. 4A:3-3.2A(d)(1) (“When an

appointing authority determines a need to fill a position at a

particular level within a band, it may consider for advancement

appointment all employees who have attained the predetermined

competencies.”), with
N.J.S.A. 11A:4-8 (prescribing that

Commission “shall certify the three eligible who have received

58
the highest ranking on an open competitive or promotional list”

and that appointment “shall be made from among those eligible”).

The statutory language belies the notion, suggested in the

concurring and dissenting opinion, that the Rule of Three has

only a limited application to the civil service appointment and

promotion process, and that it does not conflict with the job

banding rule. Post at ___ (slip op. at 16). See In re Foglio,

207 N.J. at 45-46 (discussing respective roles of Commission and

appointing authority under
N.J.S.A. 11A:4-8 “Rule of Three”

procedure).

Our concurring and dissenting colleagues suggest that the

“Rule of Three” could be incorporated into a job banding

process. Post at ___ (slip op. at 16-17). Whether or not that

is so, the regulation before the Court does not attempt -- let

alone accomplish -- such integration. See N.J.A.C. 4A:3-

3.2A(d)(1);
46 N.J.R. at 1339 (“The Rule of Three is not

applicable to advancements under job banding, since these are

not open or promotional appointments under N.J.S.A. 11A:4-18.”).

By its own terms, N.J.A.C. 4A:3-3.2A is simply incompatible with

the “Rule of Three” provision set forth in
N.J.S.A. 11A:4-8.

Our concurring and dissenting colleagues argue that the

Legislature’s exercise of its veto authority under the

Legislative Review Clause violates constitutional principles.

Post at ___ (slip op. at 7-8, 19-20). We disagree. As the

59
voters authorized it to do, the Legislature invalidated N.J.A.C.

4A:3-3.2A because it is inconsistent “with the intent of the

Legislature as expressed in the language” of the Civil Service

Act. N.J. Const. art. V, § 4, ¶ 6.

Finally, we do not find any violation of a protection

afforded by any other provision of the New Jersey Constitution,

or by the United States Constitution, in the legislative veto at

issue in these appeals. Because the Legislature exercised its

veto power based on a proper finding that N.J.A.C. 4A:3-3.2A

contravened the language of provisions of the Civil Service Act,

that veto comports with the separation of powers doctrine, N.J.

Const. art. III, ¶ 1, and the Presentment Clause, N.J. Const.

art. V, § 1, ¶ 14. The Legislature’s action implicates no other

provision of the State Constitution, or any provision of the

United States Constitution.

We affirm as modified the judgment of the Appellate

Division.

JUSTICE PATTERSON delivered the opinion of the Court as to
both the applicable standard of review and the outcome in this
appeal. JUSTICE LaVECCHIA filed a separate opinion --
concurring in the outcome in this appeal but dissenting as to
the applicable standard of review -- in which JUSTICES ALBIN and
TIMPONE join. JUSTICE SOLOMON filed a separate opinion --
concurring as to the applicable standard of review but
dissenting as to the outcome in this appeal -- in which CHIEF
JUSTICE RABNER and JUSTICE FERNANDEZ-VINA join.

60
SUPREME COURT OF NEW JERSEY
A-
47 September Term 2016
078742

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

1
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.

JUSTICE LaVECCHIA, concurring in the judgment and

dissenting in part.

In 1992, New Jersey voters approved a state constitutional

amendment that worked a substantial change in the framework of

State government. That constitutional amendment -- known as the

Legislative Review Clause -- gave the Legislature the power to

veto an administrative agency’s rule or regulation. N.J. Const.

art. V, § 4, ¶ 6.

Now, more than two decades later, this appeal arises in the

context of the Legislature’s first and only use of that veto

authority. Employing the Constitution’s procedural steps, the

Legislature utilized its veto power to invalidate N.J.A.C. 4A:3-

3.2A, the “Job Banding Rule” promulgated by the Civil Service

Commission (Commission). The Commission challenges the

Legislature’s veto of the Job Banding Rule as not lawful.

The appeal presents two questions. First, by what standard

may a court review the Legislature’s use of its constitutional

2
veto power. Second, does the legislative veto at issue

withstand challenge.

Because I agree that the Appellate Division rightly

rejected the Commission’s challenge, I and three other members

of the Court comprise a majority to affirm the judgment of the

Appellate Division.

However, I disagree with the standard of review in Justice

Patterson’s opinion, which is joined by three members of the

Court. In my view, that Court-adopted standard for judicial

review of the Legislature’s use of its constitutional veto power

fails to give due deference to the Legislature. For the reasons

more fully set forth hereinafter, I respectfully dissent from

the Court-adopted standard. When the Legislature exercises its

constitutional veto power in a procedurally sound manner and

invalidates an administrative agency’s rule because the

Legislature has determined that the rule contravenes legislative

intent as expressed in the statutory authority for the rule, the

Judiciary should afford that legislative determination

substantial deference.

The voters of New Jersey amended the State Constitution in

1992 to add Article V, Section 4, Paragraph 6 to the powers

entrusted to the Legislature. The Legislative Review Clause

3
permits the Legislature to review and invalidate Executive

Branch administrative rules and regulations. N.J. Const. art.

V, § 4, ¶ 6.

The amendment has a past, and that past is prologue to the

question before us. To that history, I turn.

The Legislature has long sought an oversight role

concerning Executive Branch administrative rules and

regulations. Undoubtedly, that is because of the shared

responsibility between the two Branches for promulgated

administrative rules and regulations, which carry the force and

effect of law. As this Court well recognizes,

[m]any agency regulations differ little in
their scope and effect from legislative
commands. Yet, in our system of government,
the Legislature and not the Executive must
make the law. Administrative agency power
derives solely from a grant of authority by
the Legislature. The Legislature has the
power to limit that scope of authority or even
abolish it.

[Gen. Assembly v. Byrne,
90 N.J. 376, 393
(1982).]

Certain bedrock principles of administrative law and agency

rulemaking authority place into proper context the appropriate

analysis for the question the proper amount of judicial

deference due to the Legislature in its exercise of its

constitutional veto power. Administrative agencies are

4
creatures of statute. In re Appeal of Certain Sections of Unif.

Admin. Procedure Rules,
90 N.J. 85, 93 (1982) (“Agencies are

specially created by the Legislature to administer laws in

accordance with the statutory duties that have been selectively

delegated to them.”). Each state agency operates pursuant to an

enabling act that specifies the agency’s mission and powers.

See generally 37 Steven L. Lefelt, et al., New Jersey Practice:

Administrative Law and Practice § 1.6 (2d ed. 2000). Sometimes

the agency’s enabling act includes a grant of specific means by

which the Legislature expects the agency to fulfill statutory

policy, such as the grant of rulemaking authority or

adjudicative authority. See Abelson’s, Inc. v. State Bd. of

Optometrists,
5 N.J. 412, 423 (1950). Such grants of authority

are recognized as “grant[s] of administrative power for the

execution of the statutory policy; and its exercise is of

necessity restrained by the declared policy and spirit of the

statute and the criteria and standards therein laid down.”

Ibid.; see also State Chamber of Commerce v. Election Law Enf’t

Comm’n,
82 N.J. 57, 82-83 (1980) (noting that even when broad

rulemaking authority is granted, agency may not promulgate

regulations that alter or frustrate terms or policy embodied in

statute).

Thus, when an enabling statute delegates rulemaking power

to an agency, as has been done in the present instance for the

5
Commission, see
N.J.S.A. 11A:2-6(d) (conferring broad rulemaking

authority), the administrative agency has quasi-legislative

power to promulgate rules that carry the force and effect of law

because the Legislative Branch has authorized the rulemaking

power, Abelson’s,
5 N.J. at 423-24. And, rulemaking is not an

impermissible delegation of “essential legislative power in

contravention of constitutional limitations” when it is subject

to proper legislative limits guiding the discretionary actions

of the agency. Ibid. (“[R]ules and regulations . . . cannot

subvert or enlarge upon the statutory policy . . . [and] cannot

deviate from the principle and policy of the statute.”).

Tethering rulemaking authority to its delegation and to

limitations expressed and implied by the principles and policy

of the legislative grant of authority is essential. As this

Court has explained, “[t]he distinction is between the making

and the execution of the law.” Id. at 423. In sum, an agency

may promulgate regulations as valid administrative action, and

not as impermissible legislative action, when authorized and

subject to the limits of its authority delegated by the

Legislature. Id. at 424.

Thus, there is an inherent tension in legislative grants of

rulemaking authority, as the agency must implement the

rulemaking responsibility entrusted to it without transgressing

the limits of the delegated power received from the Legislature.

6
To the extent there is ambiguity in an enabling statute,

administrative agencies have received, in challenges to the

authority of a rule brought by a third party member of the

public, the benefit of a liberal construction, particularly when

public health or welfare are involved. N.J. Guild of Hearing

Aid Dispensers v. Long,
75 N.J. 544, 562 (1978) (“[T]he grant of

authority to an administrative agency is to be liberally

construed in order to enable the agency to accomplish its

statutory responsibilities and . . . courts should readily imply

such incidental powers as are necessary to effectuate fully the

legislative intent.”). However, legislative intent is the

touchstone. And now, through the Legislative Review Clause, the

Legislature gets its say about what its words in an enabling

statute were intended to authorize an administrative agency to

do when the agency exercises its delegated rulemaking authority.

But that took a while for the Legislature to accomplish.

The 1980s marked the beginning of the Legislature’s

persistent endeavors to establish a legislative review over

agency rules and regulations promulgated pursuant to legislative

delegations of authority. The Legislature consistently made

efforts to have a substantive say in whether an agency’s

regulations exceeded the legislative intent for the regulatory

scheme entrusted to an agency for implementation.

7
The Legislature’s first effort to accomplish that goal

occurred when the Legislature overrode a gubernatorial veto to

pass the Legislative Oversight Act (or “the Act”), L. 1981, c.

27 (codified at
N.J.S.A. 52:14B-4.1 to -4.9). The Act required

all new and amendatory regulations to be submitted to the

Legislature for review and approval. L. 1981, c. 27, §§ 1, 2.

Under the Act’s new scheme for review of promulgated

regulations, the Legislature had sixty days from receipt of a

submitted rule to disapprove it through the adoption of a

concurrent resolution. L. 1981, c. 27, § 3. The legislation

contained no standard for the Legislature’s exercise of its

power to invalidate a rule. Ibid. The Act also gave

disapproval authority to a newly created joint Legislative

Oversight Committee, to which the Legislature also entrusted the

review of rules to ensure that the rules were “consistent with

legislative intent, in accord with judicial findings, and within

the scope of the promulgating agency’s authority.” L. 1981, c.

27, §§ 5, 6, 7. The Act stated that it applied to all rules,

subject to an exception not relevant here. See L. 1981, c. 27,

§ 4.

The shift in power between the Branches of government

wrought by the Legislative Oversight Act generated inter-Branch

8
conflict.1 That led the Legislature, in 1982, to file an action

seeking a declaration that the Legislative Oversight Act was

constitutional. Gen. Assembly,
90 N.J. at 378. The suit proved

ultimately unsuccessful. On July 22, 1982, this Court declared

the legislation unconstitutional under the State Constitution’s

Separation of Powers and Presentment Clauses. Id. at 395-96.

With respect to separation of powers, the Court held that

the legislative veto “excessively” interfered with the

functioning of the Executive Branch in two ways. Id. at 378.

The Court determined that the statutorily created legislative

“power to revoke at will portions of coherent regulatory

schemes” was unconstitutional because it would “imped[e] the

Executive in its constitutional mandate to faithfully execute

the law.” Ibid. The Court determined that the “legislative

veto further offend[ed] the separation of powers [doctrine] by

allowing the Legislature to effectively amend or repeal existing

1 On March 10, 1981, the Attorney General issued a Formal
Opinion to Counsel to the Governor, Daniel O’Hern, opining that
the Legislative Oversight Act was unconstitutional.
Specifically, the Opinion advised that the Act’s provisions
concerning the means for effectuating the new legislative veto
power constituted acts that were equivalent to legislation.
From that determination, the Opinion reasoned that the Act’s
provisions were inconsistent with state constitutional
requirements for the passage of legislation and for the
presentment of the same to the governor for his review and
approval. The Attorney General advised the Governor’s Counsel
that the administrative agencies of state government should be
directed not to conform their rulemaking activities to the law’s
requirements on its effective date.
9
laws without participation by the Governor.” Id. at 378-79.

With respect to the Presentment Clause, the legislative veto

process enacted through the Act also was determined to

contravene that Clause’s procedural requirements, by which

changes to legislative policy must occur “by a majority vote of

both houses of the Legislature and approval by the Governor or,

after executive veto, by a two-thirds vote of both houses.” Id.

at 379.

The General Assembly decision left room for inter-Branch

cooperation under the Constitution’s provisions at the time. As

noted in a companion case decided the same day, the Court

underscored that “in General Assembly[, it] made clear that the

separation of powers leaves room for some legislative oversight

and participation in executive action. Not every legislative

input into law enforcement [impermissibly] interferes with the

Executive’s law enforcement power.” Enourato v. Bldg. Auth.,
90 N.J. 396, 401 (1982) (upholding against challenge legislative

veto process incorporated in review of Executive Branch leases

that require continuing budget appropriations). That said,

based on the form of legislative veto, enacted through

legislation and examined under the then-current iteration of the

Constitution, the Court determined in General Assembly that the

legislative veto aggregated excessive law-making power to the

10
Legislature and contravened the requirements of the Presentment

Clause.
90 N.J. at 395-96.

On the very day that this Court’s decision in General

Assembly issued, the Legislature acted to secure for itself a

constitutional form of the legislative veto. See Kimmelman v.

Burgio,
204 N.J. Super. 44, 48 (App. Div. 1985). Thirty

Senators sponsored Senate Concurrent Resolution 133 (1982),

seeking to amend the New Jersey Constitution by adding a new

Article V, Section 4, Paragraph 6 to establish procedures for

filing and publication of administrative rules and regulations.

Both houses of the Legislature ultimately passed a concurrent

resolution that proposed as a constitutional amendment that the

Legislature could “invalidate any rule or regulation, in whole

or part, and may prohibit any proposed rule or regulation, in

whole or part, by a majority of the authorized membership of

each House.” Ibid. The resolution included the form of the

question to be presented to voters on the ballot, as well as the

interpretive statement to accompany the question for the voters.

Ibid.

In Burgio, the Attorney General appealed to the Appellate

Division seeking an injunction striking from the ballot the

above-described proposed constitutional amendment. Id. at 47.

The respondent, Secretary of State Jane Burgio, took the

position that, although the proposed constitutional amendment

11
had “several ambiguities and is susceptible to competing

interpretations,” the proposed amendment would be included on

the ballot unless the courts instructed otherwise. Id. at 50.

The Attorney General contended that the language of the

amendment, as well as its proposed placement2 within the

Constitution, “is so ambiguous and subject to conflicting

interpretations” that it should not be included on the ballot.

Id. at 50-51. Further, even if the amendment itself was not

determined to be misleading, the Attorney General argued that

the interpretive statement was misleading to the voters, taking

issue with, among other things, the fact that the statement did

not refer to General Assembly and did not explain the

substantial change that the amendment would effectuate for the

workings of State government. Ibid. In sum, the Attorney

General took the position that “because the intent of the

Legislature in submitting the amendment is so unclear the only

solution” was to strike the proposed amendment from the ballot.

Id. at 51.

The Appellate Division rejected the latter argument by the

Attorney General and, from the timing of the legislative

2 The Attorney General maintained that because the amendment was
not proposed to be placed either in the Separation of Powers or
Presentment Clauses of the Constitution, the amendment was
merely confirmatory. This argument was used to bolster the
ambiguity argument advanced by the Attorney General.
12
reaction inferred that the resolutions’ drafters “had an intent

to vest in the Legislature a power denied it under General

Assembly” and “indicat[ed] an intent to grant new powers to the

Legislature.” Id. at 53. Although it declined to enjoin the

proposed amendment from the ballot, the panel noted that it was

not passing on the substantive validity of the proposed

amendment. Id. at 55.

With respect to the interpretative statement, however, the

panel agreed with the Attorney General that it was misleading

and thus invalid. Id. at 54. The panel explained that

[t]he difficulty with the statement is that
while it appears to indicate the amendment
involves only a routine housekeeping matter,
somehow furthering a power the Legislature
already has, its real purpose is an attempt to
limit the application of the separation of
powers and presentment clauses of the
constitution, fundamental clauses of great
importance. Thus the amendment may reasonably
[be] said to be intended to alter the basic
relationship between the executive and
legislative branches of government. While the
voters may be privileged to this, the
Legislature must take reasonable steps to
insure that the voters recognize what they
have been asked to do.

[Ibid. (citation omitted).]

The statement’s use was enjoined, and the matter was remanded to

the Legislature for preparation of an alternative statement.

Id. at 55. The panel suggested, but did not mandate, an

alternative form of the statement. Id. at 54-55.

13
When finally placed before the voters in the 1985 general

election, the proposed constitutional amendment failed to

achieve a majority of the votes cast. However, another

constitutional amendment was proposed and placed before the

voters in 1992. The 1992 version presented a more refined

version of the legislative veto power to be entrusted to the

Legislature. That achieved passage by the voters.

The successful proposal differed from the previous one

presented to the voters both in its procedural and substantive

respects. Rather than allowing the Legislature to invalidate or

prohibit any rule or regulation by a simple majority vote in

each house of the Legislature, as contemplated by the 1985

proposed amendment, the constitutional amendment that passed in

1992 set forth a series of steps the Legislature must take prior

to invalidating a rule promulgated by the Executive Branch. See

N.J. Const. art. V, § 4, ¶ 6 (permitting invalidation only if

rule is deemed inconsistent with legislative intent and only

after agency’s opportunity to amend or withdraw rule).

The process, as described in detail in the opinion of the

Court, ante at ___ (slip op. at 6-8), requires the Legislature

to first determine whether the rule or regulation is consistent

with the legislative intent of the implementing statute as

expressed in the statute. A statement explaining the

Legislature’s concern about the rule is required and a hearing

14
must be conducted. The Executive Branch then has the

opportunity to review, amend, or withdraw the rule or

regulation, consistent with the Legislature’s determination of

its intent as expressed in the legislative language, and only if

not corrected or withdrawn may the Legislature invalidate the

rule by exercise of its veto authority.

II.

The constitutional amendment adding the Legislative Review

Clause does not specify a role for the Judiciary. Neither does

it insulate disputes over exercises of the Legislature’s veto

power from judicial review. That amendment stands in contrast

to other constitutional provisions that effectively preclude

judicial review. Compare N.J. Const. art. V, § 4, ¶ 6 (silent

regarding judicial review), with N.J. Const. art. I, ¶ 2(b)

(providing that review of sufficiency of statement of reasons

for recall of elected official “shall be a political rather than

a judicial question”), and N.J. Const. art. VIII, § 2, ¶ 5(b)

(declaring determinations of Council on Local Mandates to be

political and not judicial determinations).

As among the parties to this action, as well as the courts

to have reviewed it, there is no disagreement that the

Judiciary’s authority to review legislative exercises of the

constitutional veto power includes, at minimum, the ability to

15
examine for procedural compliance. The Appellate Division held

that the bases for judicial invalidation of a legislative veto

allow courts to

reverse the Legislature’s invalidation of an
administrative executive rule or regulation 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.

[Commc’ns Workers of Am. v. Civil Serv.
Comm’n,
447 N.J. Super. 584, 601 (2016)
(internal quotation marks omitted).]

The majority who agree on the standard set forth in the

Court’s opinion primarily accept the Appellate Division’s

recitation of the standard, ante at ___ (slip op. at 5), but

disagree with the level of deference accorded the Legislature

when implementing the last prong of the standard. They state

the test differently, asking whether “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.’” Ante at ___ (slip op. at 39-40)

(quoting N.J. Const. art. V, § 4, ¶ 6).

In my view, besides finding the Court-adopted standard to

state a mere conclusion rather than a test to administer, I also

16
believe that the Court-adopted standard fails to accord to the

Legislature proper deference in the exercise of its new

constitutional authority. That the Court does so out of

separation of powers concerns is, to me, misplaced.

Separation of powers concerns -- as between the Legislature

and the Executive -- are absent here. “The constitutional

spirit inherent in the separation of governmental powers

contemplates that each branch of government will exercise fully

its own powers without transgressing upon powers rightfully

belonging to a cognate branch.” Knight v. Margate,
86 N.J. 374,

388 (1981). The exercise of the Constitution’s Legislative

Review Clause does not usurp executive authority because the

Clause has become a part of the organic document governing the

functioning of our government. It changed the framework in

which the two Branches operate with respect to delegated

rulemaking authority.

The people, in unambiguous language, have granted to the

Legislature a new and augmented constitutional power to

invalidate administrative rules and regulations when determined,

by the Legislature, to contravene legislative intent as

expressed in the language of an enabling statute. We must take

the language of the Constitution “as we find it,” and the job of

17
the Judiciary is to enforce it. Winberry v. Salisbury,
5 N.J.
240, 244 (1950).

Under the Constitution as now amended, the Legislature is

authorized to explain its intent, using its language, and

thereby explicate the legislative policy and principle of an

enabling act for the benefit of the implementing agency. When a

Branch of government exercises a power granted to it under the

Constitution, substantial deference is generally given to that

Branch in its exercise of that conferred power. In this dispute

between an Executive Branch agency and the Legislature’s use of

its veto power to invalidate the agency’s rule, the agency

certainly does not enjoy the liberal construction of the

underlying statute that it enjoys when a third party challenges

an administrative rule as unauthorized by statute. Cf. N.J.

Guild of Hearing Aid Dispensers,
75 N.J. at 562.

Yet, here, the agency is insisting on its own view of its

authority to promulgate an implementing rule. But, the

constitutional amendment did not grant a corollary power to the

Executive Branch to interpret its enabling statute in contrary

fashion to that of the Legislature. The Legislature is the

Branch responsible for the delegation of rulemaking authority to

the administrative agency in the first instance, and an

administrative agency, as a creature of statute, has rulemaking

power when the Legislature delegates it. See, e.g., Worthington

18
v. Fauver,
88 N.J. 183, 208 (1982). In this clash over

legislative intent, when viewed through the prism of the

constitutional amendment, the Executive Branch agency is not on

equal footing. The agency’s rulemaking power, and any

incidental ability to fill in details on policy through

rulemaking, is merely derived from the Legislature’s enabling

act.

This challenge by an Executive Branch agency to the

Legislature’s use of its veto power should not rise and fall on

the legitimacy of the agency’s view of what constitutes a valid

execution of the law. This appeal concerns whether the

Legislature properly exercised its constitutional veto authority

to redirect the Executive Branch concerning the import of its

statutory language and what that language indicates about the

Legislature’s intent for the statute’s policy. Although the

constitutional amendment does not empower the Legislature to

make new positive law, the Legislature has had its power

augmented. It has now new means to redirect an Executive Branch

agency about the meaning of its statutory language, and what

that language intended to authorize the agency to do when,

through the promulgation of rules, the agency purports to

implement the intended policy of the statute.

In sum, separation of powers concerns fall away here and do

not provide a sound basis to impose a judicial review standard

19
that is not deferential to a determination of the Legislature

about its intent expressed through its own statutory language.

The legislative veto is a means of communication between the

Executive and Legislative Branches and not an incursion on

exclusive powers reposed in the Executive Branch. Presentment

Clause concerns are also utterly absent. This appeal does not

require the harmonizing of competing constitutional provisions.

The constitutional amendment says nothing about any

standard by which the Judiciary should review and determine

whether the Legislature’s statement about its intent, as

expressed in legislative language, is “correct.” Ante at ___

(slip op. at 38). I find it difficult to believe that the

effort that the Legislature went through to achieve this

augmented constitutional power was to culminate in having only

the ability to make a declaration, which the Judiciary must

determine to be worthy of affirmance as a “correct”

interpretation of the Legislature’s own language, using the

courts’ usual tools of statutory construction.

Indeed, in Burgio, the Appellate Division invalidated an

interpretative statement from appearing on the ballot

specifically because the proposed explanation of the amendment

did not adequately inform voters of the significant alteration

that inclusion of a legislative veto would have in the interplay

20
between the Legislature and the Executive concerning regulations

that transgressed statutory intent.
204 N.J. Super. at 54. Now

that the amendment has passed, the Judiciary’s duty is to

enforce the provision as we find it. Winberry,
5 N.J. at 244.

The amendment changed the interaction between the Legislature

and the Executive. It empowers the Legislature to tell an

Executive Branch agency that a rule is inconsistent with

legislative intent as expressed through an enabling act and

authorizes the Legislature to invalidate the rule if the agency

does not withdraw or correct it.

Also, as noted previously, the amendment does not signal

that the Executive Branch’s view would be entitled to equal

weight when the Judiciary is called on to umpire a statutory

intent battle between the Executive and the Legislative

Branches. As between a constitutional power granted by the

people, through our State government’s organic document, to the

Legislature, and an executive rulemaking power granted, if at

all, by virtue of legislative action, there can be no equipoise.

The Court adopts a standard of review that, in my view,

aggregates to the Judiciary more power than should be authorized

by the intent and spirit of the constitutional amendment. We

are not being called on to adjudicate a third party’s challenge

to an agency rule. We are passing on the Legislature’s use of

its constitutional power to invalidate a rule. The Judiciary’s

21
view of legislative intent, culled from statutory language using

the usual tools of statutory construction, is as subordinate as

that of the Executive’s in this setting.

I respectfully suggest that a substantial deference

standard of review is more consistent with constitutional text

that explicitly provides the Legislature with veto power. Our

job is not to determine whether the constitutional amendment is

a wise or welcome addition to the interplay between Branches of

Government. Our job is to enforce it. The application of

substantial deference to a determination is a well-known and

easily replicable standard that allows for the possibility that

reasonable minds may differ, but that is not enough to

invalidate a decision to which deference is owed. Several

courts have explained the concept of substantial deference in

other contexts. See, e.g., White v. Wheeler, 577 U.S. ___,
136 S. Ct. 456, 462 (2015) (discussing “substantial deference” and

noting that “simple disagreement does not overcome” when

deference is due); Turner Broad. Sys. v. FCC,
520 U.S. 180, 195-

96 (1997) (applying “substantial deference” standard); Roe v.

Kervick,
42 N.J. 191, 229 (1964) (discussing cases that apply

“principle of judicial deference” and recognizing that deference

is not overcome when reasonable minds might differ).

The test that I would apply in a challenge to the

Legislature’s use of the legislative veto power to invalidate an

22
agency rule can be summarized as follows. When (1) the

Legislature’s veto process complies with the Legislative Review

Clause’s procedural requirements; (2) the Legislature provides a

reasonable interpretation of statutory language to support its

determination that an administrative agency’s rule is

inconsistent with the legislative intent expressed through that

language; and (3) the veto does not work a violation of another

provision of the State Constitution or one of the Federal

Constitution, the legislative veto should be upheld. Even if

reasonable people could differ, the Legislature’s explanation of

its intent, rooted in the statutory language, must prevail under

a substantial deference standard. Under that approach, which I

favor, the Legislature’s explanation of its statutory intent,

using the language of the statute, will survive challenge in the

courts, even if the Executive Branch agency provides an equally

reasonable interpretation.

III.

To conclude, I find the standard adopted by the Court not

suitable for the Judiciary to employ in the setting of a

challenge to the Legislature’s exercise of its constitutional

veto power. To the extent that standard is now adopted for

application in this and future appeals of this nature, I dissent

from the holding of the Court on that issue.

23
Applying the deferential standard that I believe

appropriate, the legislative veto at issue must be sustained.

The Appellate Division judgment, which I would affirm, reached

the same conclusion applying a deferential standard. To the

extent that the Court’s opinion upholds the veto action of the

Legislature, I concur in the judgment.

24
SUPREME COURT OF NEW JERSEY
A-
47 September Term 2016
078742

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.

1
IN THE MATTER OF JOB BANDING
FOR SOFTWARE DEVELOPMENT
SPECIALIST
1 AND 2, AND
NETWORK ADMINISTRATOR
1 AND 2, OFFICE OF INFORMATION
TECHNOLOGY.

JUSTICE SOLOMON, concurring in part and dissenting in part.

I join the majority and agree that a court may reverse the

Legislature’s invalidation of an agency rule or regulation

pursuant to the Legislative Review Clause (the Clause). I

dissent because the Constitution gives the Legislature the power

to invalidate such rules or regulations under limited

circumstances: when the challenged rule or regulation is

inconsistent with the “intent of the legislation 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

majority’s analysis has broadened those limited circumstances

and allowed the Legislature to invalidate executive action based

on the “legislative spirit” of the Civil Service Act,
N.J.S.A.

11A:1-1 to 12-6 (CSA or the Act), and not the legislative intent

“as expressed in the language of” that Act. The majority’s

analysis thus threatens the constitutional balance of power

among New Jersey’s co-equal branches of government and

impermissibly expands the power granted to the Legislature by

the voters when they approved the Clause.

2
I.

The Clause allows “the Legislature [to] 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.” N.J. Const. art. V, § 4, ¶ 6. It is important to

understand the Clause’s evolution and the reasoning behind its

careful wording.

In January 1977, the General Assembly Speaker recommended

the establishment of the Assembly Legislative Oversight

Committee (the Committee) in part “to review administrative

rules and regulations to ascertain whether the executive

department, agency or authority promulgating the rules or

regulations is faithfully executing the intent of the

Legislature in its grant of statutory authority to issue such

rules or regulations.” Legislative Oversight Comm., Gen.

Assembly, Eye on the Executive 1 (Dec. 1977), http://www.njleg.

state.nj.us/legislativepub/reports/executive.pdf (citation

omitted). Later that year, the Committee issued its report

entitled, Eye on the Executive (the report), which recommended

that “the legislature should be empowered to permanently veto

such rules if they are found to be unreasonable, arbitrary,

capricious, inconsistent with legislative intent, or beyond the

3
scope of the agency’s authority.” Id. at 34 (emphasis omitted).

The report recognized “legislative intent” as the threshold to

review rules promulgated and implemented by executive agencies.

See id. at 16 (prescribing post-auditing and review of

expenditures to determine if rules are in accord with

legislative intent); id. at 19 (requiring that committees

“devote greater attention to an explanation of their intent when

approving legislation” as means of “pre-oversight” and noting

that “[t]he lack of clear intent (and confusion as to language)

in many pieces of legislation stands as the most common

criticism of the Legislature from Executive agencies”).

Thereafter, the Legislature drafted legislation consistent

with the recommendations of the Committee. A. 2323 (1978)

required agencies to submit “a statement of either the terms or

substance of the intended action or a description of the

subjects and issues involved” to the Legislature and provided

that they could proceed with the action unless that action

should be disapproved by a majority vote of each House within

sixty days of submission. And S. 1026 (1978) provided for a

similar ability to disapprove agency action by concurrent

resolution of both Houses within ninety days of submission.

Governor Byrne pocket vetoed both A. 2323, see Governor’s

Statement on Filing A. 2323 Unsigned (Mar. 3, 1978), and S.

4
1026, see Governor’s Statement on Filing S. 1026 Unsigned (Feb.

26, 1980).

Iterations proposed in 1980 and 1981 would have provided

the Legislature with wide latitude to review whether an

administrative “rule is adequate, proper, timely, appropriate,

necessary, reasonable, equitable, understandable, consistent

with legislative intent, in accord with judicial findings, and

within the scope of the promulgating agency’s authority.” S.

1560 (L. 1981, c. 27); S. 1203 (1980). Governor Byrne, who

found those proposals to be an unconstitutional encroachment by

the Legislative Branch upon the Executive, vetoed both bills.

Governor’s Veto Statement to S. 1560 (Jan. 13, 1981); Governor’s

Veto Statement to S. 1203 (Sept. 22, 1980).

The General Assembly unanimously overrode the Governor’s

veto of S. 1560 (L. 1981, c. 27), and we were asked to decide

the law’s constitutionality. In General Assembly v. Byrne, we

found that it was overly broad and “[gave] the legislature

unlimited potential to block any rules,” without the Governor’s

signature,
90 N.J. 376, 388 (1982), thereby violating the

Separation of Powers and Presentment Clauses of our

Constitution, id. at 396.

Next, the Legislature moved for “Legislative Disapproval of

Rules and Regulations” to be added to the New Jersey

Constitution through two proposed ballot questions that each

5
would have “authoriz[ed] the Legislature to prohibit proposed

administrative rules and regulations from taking effect and to

invalidate existing rules and regulations.” Sen. Con. Res. 107

2 (May 14, 1984); S. Con. Res. 133 2 (July 22, 1982). The

interpretive statement that was to appear before the voters

posited that “[t]he Legislature has the duty to review [agency-

issued] rules and regulations to see if they carry out the

intention of the Legislature as contained in law and if they are

efficient and effective.” Ibid.

Again the courts intervened, finding the statement “highly

misleading” to the voters. Kimmelman v. Burgio,
204 N.J. Super.
44, 54 (App. Div. 1985). The Appellate Division explained that

[Ibid.]

Emphasizing that voters must recognize what they have been asked

to do, the Appellate Division suggested a rewrite of the

interpretive statement and allowed the measure to appear on the

ballot in the 1985 General Election. Id. at 54-55. The voters

6
overwhelmingly rejected the amendment by a twenty-five percent

margin. See Public Question No. 7 (1985), http://www.

njelections.org/election-results/1985-public-questions.pdf.

Seven years later, in 1992, as the culmination of a

fifteen-year effort by the Legislature to acquire the right of

legislative review of executive action, the voters approved the

measure currently before this Court. A. Con. Res. 199 (2013)

(enacted). The language of the successful amendment contains a

narrow veto power permitting only the invalidation of a rule

deemed inconsistent with legislative intent “as expressed in the

language of the statute.” N.J. Const. art. V, § 4, ¶ 6.

The history of the substantial contraction of the Clause

before it was finally passed reinforces the limited review power

provided for in the plain language of the Clause and underscores

that the standard against which the Legislature may measure

administrative action is the legislative intent “as expressed in

the language of the statute,” and not the more nebulous

“legislative spirit” of an enactment. Looking beyond the text

of a statute -- for example, looking to its “legislative spirit”

-- would exceed the constitutional authority granted to the

Legislature by the amendment and would grant the Legislature a

power that was rejected by Governor Byrne, our courts, and our

voters.

7
Nevertheless, the resolution currently before us presents

the Legislature’s findings as to the Job Banding Rule in the

following terms:

The proposed new Job Banding Rule,
N.J.A.C. 4A:3-3.2A, is contrary to the
spirit, intent, and plain meaning of the
provision in the New Jersey Constitution
that requires that promotions be based on
merit and fitness to be ascertained, as
far as practicable, by examination,
which, as far as practicable, shall be
competitive.

. . . .

The proposed new rule is not consistent
with the intent of the Legislature as
expressed in the language of the Civil
Service Act, including the spirit,
intent, or plain meaning of N.J.S.A.
11A:3-1,
N.J.S.A. 11A:4-1, N.J.S.A.
11A:4-8 or
N.J.S.A. 11A:5-7.

[A. Con. Res. 199 (2013) (enacted) (emphases
added).]

To the extent that the Legislature relied on the purported

“spirit” of the CSA, and not exclusively on the legislative

intent “as expressed in the language of the statute,” in

determining to strike down the Job Banding Rule, the Legislature

exceeded its authority under Article V, Section 4, Paragraph 6

of the New Jersey Constitution. We therefore turn to the

language of the CSA to properly determine whether the

regulations proposed by the Commission are inconsistent with

8
“the language of the statute” on its own, absent impermissible

extraneous considerations.

II.

Under the Legislative Review Clause, the Legislature was

entitled to consider whether the Civil Service Commission’s Job

Banding Rule was inconsistent with the legislative intent of the

CSA “as expressed in the language of the statute.”

The Job Banding Rule “facilitates advancement appointments

of qualified employees to the next higher title level within a

job band when a vacancy exists.” N.J.A.C. 4A:3-3.2A(a). A job

band is “a grouping of titles or title series into a single

broad band consisting of title levels with similar duties,

responsibilities, and qualifications,”
45 N.J.R. at 507, and

movement from a lower to a higher title within a job band is

considered an “advancement appointment,” N.J.A.C. 4A:3-3.2A(c).

The question is whether such intra-band advancement procedures

conflict with the legislative intent as expressed in language of

the CSA.

Under the regulations, job bands have multiple title levels

within which movement to a higher level is considered an

advancement. N.J.A.C. 4A:3-3.2A(c). In choosing whether titles

are appropriate for job banding, and consistent with the

Commissioner’s authority “to establish the procedures by which

9
merit-based appointments are to be made,” In re Foglio,
207 N.J.
38, 44 (2011), the Commissioner determines “whether a movement

from one position to a higher level position may be achieved

based on an evaluation of relative knowledge, skills, and

abilities without resorting to competitive examination

procedures, while still satisfying the State Constitutional and

statutory mandate for merit and fitness in selections and

appointments,” N.J.A.C. 4A:3-3.2A(b)(1).

In practice, eligible employees being considered for

advancement endure a multifaceted and competitive examination of

their skills and attributes. Although the regulation indicates

that advancement is possible “without resorting to competitive

examination procedures,” it is clear in context that the

regulation proposes to bypass only competitive written

examinations, not all competitive examinations.

First, the job banding regulation establishes predetermined

competencies for a position and notifies all of those in the

next lower level of the opportunity to apply. N.J.A.C. 4A:3-

3.2A. The job banding regulation further provides that the

appointing authority “shall conduct an advancement appointment

selection process” -- a competitive examination process.1 Ibid.

1 For example, when the Office of Information Technology (OIT)
implemented job banding, it established the following competency
standards to be considered: (1) Performance Assessment Review

10
The appointing authority then decides which candidates “may”

receive an advanced appointment, and, finally, the candidates

are ranked and the appointments are announced. Ibid. (emphasis

added).

Nothing in the Job Banding Rule conflicts with the

legislative intent of the CSA as expressed in its language. The

CSA governs civil service employment in New Jersey, including

all positions within state government and those within the

political subdivisions that choose to adopt and be governed by

the CSA. See
N.J.S.A. 11A:2-11(e). It was enacted to

effectuate the mandate of Article VII, Section 1, Paragraph 2 of

the New Jersey Constitution that “[a]ppointments and promotions

in the civil service of the State, . . . be made according to

merit and fitness to be ascertained, as far as practicable, by

examination, which, as far as practicable, shall be

competitive.” See Foglio,
207 N.J. at 52. Our courts have

explained the requirements for advancement of state employees

classified by title; as the Appellate Division noted in this

(PAR) -- twenty percent; (2) structured interview during which a
panel no fewer than three interviewers will rate all candidates
based on their responses to a set of predetermined questions
designed to illicit responses that demonstrate each employee’s
competencies in areas relevant to the position -- forty percent;
(3) written exercise (where practicable) to include preparing a
sample program, solving a scenario-driven network problem, etc.,
with each question to be graded anonymously using rubric --
twenty percent; and (4) a work history review -- twenty percent.

11
case, “the appointment and promotions of the civil service of

New Jersey must be made based on merit and fitness except if

impracticable.” Commc’ns Workers of Am. v. Civil Serv. Comm’n,

447 N.J. Super. 584, 605 (App. Div. 2016).

The CSA likewise affirms that “[i]t is the public policy of

this State to select and advance employees on the basis of their

relative knowledge, skills and abilities” and the “adequacy of

their performance.”
N.J.S.A. 11A:1-2(a), (c). And, in keeping

with the constitution’s preference for competitive examinations,

the CSA calls for competitive examinations to be used when

hiring and promoting civil service employees.
N.J.S.A. 11A:4-1.

The Job Banding Rule provides for “promotions” “based on

merit and fitness,” and is therefore in harmony with the

legislative intent of the CSA “as expressed” in its “language”

as a general matter. It is therefore appropriate to consider

whether any particular aspect of the job banding regulations

conflicts with the legislative intent of the CSA as expressed in

any of its component provisions.

The Legislature struck down the Commission’s Job Banding

Rule as inconsistent with the CSA, “including
N.J.S.A. 11A:3-1,

N.J.S.A. 11A:4-1,
N.J.S.A. 11A:4-8 or N.J.S.A. 11A:5-7.” A.

Con. Res. 199 (2013) (enacted). I consider each point of

purported conflict in turn.

12
1.

To implement the hiring and advancement policies that

undergird the CSA, the Act explicitly delegates certain powers

to the New Jersey Civil Service Commission (the Commission).

The CSA confers upon the Commission the authority to “assign and

reassign” and to “consolidate and abolish titles.”
N.J.S.A.

11A:3-1. In particular, the CSA states that the Commission

shall:

a. Establish, administer, amend and
continuously review a State classification
plan governing all positions in State service
and similar plans for political subdivisions;

b. Establish, consolidate and abolish
titles;

c. Ensure the grouping in a single title of
positions with similar qualifications,
authority and responsibility;

d. Assign and reassign titles to appropriate
positions; and

e. Provide a specification for each title.

[Ibid. (emphasis added).]

Therefore, the authority to classify or abolish positions

and the metrics by which they are filled are expressly delegated

to the Commission. Furthermore, Title 11 of the CSA gives the

Commissioner the authority to “adopt and enforce rules to carry

out this title and to effectively implement a comprehensive

personnel management system.”
N.J.S.A. 11A:2-6. Accordingly,

13
the Commissioner is authorized “to establish the procedures by

which merit-based appointments are to be made.” Foglio,
207 N.J. at 44.

Nothing “expressed in the language of [N.J.S.A. 11A:3-1]”

bars job banding; indeed, the Job Banding Rule would seem to

fall within the Commission’s delegated ability to consolidate

titles and to group positions within a title.

N.J.S.A. 11A:4-1, in relevant part, instructs the

Commission to provide for:

a. The announcement and administration of
examinations which shall test fairly the
knowledge, skills and abilities required to
satisfactorily perform the duties of a title
or group of titles. The examinations may
include, but are not limited to, written,
oral, performance and evaluation of education
and experience;

b. The rating of examinations;

c. The security of the examination process
and appropriate sanctions for a breach of
security;

d. The selection of special examiners to act
as subject matter specialists or to provide
other assistance.

Under the statute, competitive examinations may range from

written and oral tests to performance or education and

experience evaluations provided that they “fairly test” the

14
preparedness of applicants to fulfill the functions of a

particular job “title or group of titles.” Ibid.

Indeed, under subsection (a) of
N.J.S.A. 11A:4-1, the CSA

grants the Commission wide latitude in determining the nature of

competitive examination it will use to assess qualifications for

appointment and advancement, and nowhere does it prohibit the

non-written yet still rigorous “evaluation of relative

knowledge, skills, and abilities” provided for in Section 4A:3-

3.2A(b)(1) of the job banding regulations. In short, nothing

“expressed in the language of [N.J.S.A. 11A:4-1]” prohibits job

banding.

The Legislature claims and the majority agrees that the job

banding regulation “eliminates the statutory certification and

appointment procedure prescribed by the [CSA], directly

contradicting [its] language.” Ante at ___ (slip op. at 55).

N.J.S.A. 11A:4-8 provides that

[t]he commission shall certify the three
eligibles who have received the highest
ranking on an open competitive or promotional
list against the first provisional or vacancy.
For each additional provisional or vacancy
against whom a certification is issued at that
time, the commission shall certify the next
ranked eligible. If more than one eligible
has the same score, the tie shall not be broken
and they shall have the same rank. If three
or more eligibles can be certified as the
result of the ranking without resorting to all

15
three highest scores, only those eligibles
shall be so certified.

A certification that contains the names of at
least three interested eligibles shall be
complete and a regular appointment shall be
made from among those eligibles. An eligible
on an incomplete list shall be entitled to a
provisional appointment if a permanent
appointment is not made.

Eligibles on any type of reemployment list
shall be certified and appointed in the order
of their ranking and the certification shall
not be considered incomplete.

Nowhere in the job banding regulation is N.J.S.A. 11A:4-8’s

“Rule of Three” process countermanded -- or even mentioned.

Applicants are notified of an advancement opportunity, examined,

selected, and ranked. N.J.A.C. 4A:3-3.2A. That does not

prevent application of the “Rule of Three” process. It does not

alter or supersede the statute. See Morton v. 4 Orchard Land

Tr.,
362 N.J. Super. 190, 198 (App. Div. 2003) (“We are mindful

that when a regulation conflicts with a statute, the regulation

is void as a matter of law.”); In re Terebetski,
338 N.J. Super.
564, 571 (App. Div. 2001) (“[A] regulation cannot supersede or

alter a statute.”).

Further, the “Rule of Three” is self-contained and does not

purport to occupy the entire field of appointment and promotion

determinations. Although the rule must be followed, nothing in

the statute precludes the adoption of additional, supplementary

procedures. And “nothing expressed in the language of [N.J.S.A.

16
11A:4-8]” would prohibit the supplementary procedures set forth

in the Job Banding Rule.

The final section of the CSA with which the Legislature has

found the job banding regulations to conflict is
N.J.S.A. 11A:5-

7, which provides that “whenever a veteran ranks highest on a

promotional certification, a nonveteran shall not be appointed

unless the appointing authority shall show cause before the

board why a veteran should not receive such promotion.”

The Job Banding Rule also contains a veterans’ preference:

Once an appointing authority determines which
eligible employees are interested, it shall
conduct an advancement appointment selection
process approved by the Chairperson or
designee and make a determination as to which
employee or employees may receive an
advancement appointment. The appointing
authority shall then rank the candidates for
the announced advancement appointment and
document same, taking into account the
veterans’ preference described in (d)3i and ii
below, where applicable.

i. Whenever a veteran ranks highest in the
advancement appointment selection process, a
nonveteran shall not be appointed unless the
appointing authority shows cause before the
Civil Service Commission why the veteran shall
not receive the advancement appointment.

ii. When the advancement appointment
selection process results in a tie between a
veteran and a nonveteran, the veteran shall be
offered the advancement appointment.

[N.J.A.C. 4A:3-3.2A(d)(3)(i) to (ii).]

17
Not only does the regulation not conflict with the statutory

veterans’ preference, but it uses the statutory language

verbatim and adds a non-conflicting provision for ties. In

short, nothing “expressed in the language of [N.J.S.A. 11A:5-7]”

prohibits the veterans’ preference established in the job

banding regulations.

In sum, the job banding regulation is consistent with the

Constitution and the “intent” of the CSA “as expressed in [its]

language,” N.J. Const. art. V, § 4, ¶ 6, both in a general sense

and in its particulars. The Job Banding Rule does not clash

with the constitutional mandate for merit- and fitness-based

hiring and promotion that undergirds the CSA. See N.J. Const.

art. VII, § 1, ¶ 2;
N.J.S.A. 11A:1-2(a), (c); Foglio,
207 N.J.

at 52. Although job banding changes the traditional format of

competitive examination used to assess merit and fitness, it

does so within statutory and constitutional bounds. Had the

Legislature intended to limit competitive examinations to

written examinations, it would have said so. Instead, the CSA

allows the Commissioner to devise multi-faceted competitive

examinations so long as they “test fairly the knowledge skills

and abilities” of an applicant.
N.J.S.A. 11A:4-1. Similarly,

the Act does not forbid the adoption of procedures to supplement

the “Rule of Three,”
N.J.S.A. 11A:4-8, or the veterans’

18
preference,
N.J.S.A. 11A:5-7. And job banding in no way

conflicts with the delegation of responsibility for job

classification schemes to the Commission.
N.J.S.A. 11A:3-1.

Given the absence of conflict between the language of the

statute and the stricken regulation, it appears that the

Legislature relied on its view of the “spirit” of the CSA -- and

not the Act’s intent as expressed in its plain language -- to

strike down the Job Banding Rule. In allowing it to do so, the

majority has permitted the Legislature to exceed its

constitutional authority.

III.

“Words make a difference.” In re Plan for the Abolition of

the Council on Affordable Hous.,
214 N.J. 444, 470-71 (2013).

By allowing the Legislature to rely upon the perceived “spirit”

of the CSA, the majority expands legislative authority and

reduces executive authority in a manner that threatens to undo

the balance of powers established by Article III, Paragraph 1,

and Article V, Section 1, Paragraph 14 of the State

Constitution.

The constitutional balance among branches of government is

integral to our fundamental organic law. Knight v. Margate,
86 N.J. 374, 387-88 (1981). It is a constitutional axiom that each

branch of government is distinct and serves as the repository of

the powers unique to it; the members or representatives of one

19
branch cannot arrogate the powers of another branch. Id. at

388.

Co-equal branches of government exist to safeguard from

fears “that in a representative democracy the Legislature would

be capable of using its plenary lawmaking power to swallow up

the other departments of the Government.” General Assembly,
90 N.J. at 383, 448 (citations omitted). “Each branch of

government is counseled and restrained by the constitution not

to seek dominance or hegemony over the other branches.” Knight,

86 N.J. at 388. “[T]he taking of power is more prone to abuse

and therefore warrants an especially careful scrutiny.”

Commc’ns Workers of Am. v. Florio,
130 N.J. 439, 457 (1992).

When it overturned the Legislative Oversight Act in General

Assembly, this Court stated, “we cannot allow the Legislature to

create oversight mechanisms that will circumvent the

constitutional procedures for making laws and interfere unduly

with the Executive’s constitutional responsibility to enforce

them.”
90 N.J. at 395. By allowing the Legislature to divine

the “spirit” of legislation to invalidate job banding, this

Court now allows that which it warned against twenty-five years

ago in General Assembly. The nearly half century of legislative

attempts to achieve the power to review administrative action

confirms the significance of the phrase “as expressed in the

language of the statute.” N.J. Const. art. V, § 4, ¶ 6. By

20
improperly applying our standard of review here, the majority

alters the balance of powers upon which our government rests.

IV.

For the reasons set forth above, I concur in the majority’s

stated standard of review but dissent because, here, the

majority improperly applies that standard of review, and expands

the Legislative Review Clause to allow the Legislature to divine

the “legislative spirit” of the CSA.

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