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Unlike the U.S. Constitution, the New Jersey Constitution contains an explicit provision requiring separation of powers: “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. Despite its somewhat proscriptive text, this clause has never been interpreted as requiring watertight division among the exercise of executive, legislative and judicial powers, “but rather a cooperative accommodation among the three branches of government.” Communications Workers of Am. v. Florio, 130 N.J. 439, 449 (1992).

The practical difficulties in allocating power between the legislative and executive branches are nowhere more apparent than in defining their constitutional roles in the modern administrative state. The Legislature has necessarily delegated an enormous amount of discretionary policy-making power to the executive, usually through enabling acts that permit administrative agencies to promulgate rules that often become the primary source of regulation.

Thereafter, however, the Legislature may conclude that the agency has “gone rogue” and not followed the original intent of the enabling statute. At other times, it may develop “buyer's remorse” and wish to rewrite the statute in hindsight. The problem with the latter is that such a revision should be enacted through a new statute that is not only passed by the Legislature but also presented to the governor for approval or veto.

During the 1980s, the Legislature made several attempts to acquire plenary power to invalidate regulations without approval of the governor, first by a statute struck down as unconstitutional, and then by a proposed constitutional amendment rejected by the voters in 1985. In 1992, however, the voters approved a significant shift in the balance of power, when they approved a constitutional provision that, after a complex set of procedures compelling notice and an opportunity to correct by the agency involved, permits the Legislature to invalidate a rule by a concurrent resolution that does not require presentment to the governor. N.J. Const. art. V, §4, ¶6. This legislative veto authority is conditioned upon a finding by the Legislature that the rule or regulation is not “consistent with the intent of the Legislature as expressed in the language of the statute which the rule or regulation is intended to implement.”

In Communications Workers of America, AFL-CIO v. New Jersey Civil Service Commission, the Supreme Court sustained the Legislature's first invocation of its powers under the Legislative Review Clause to invalidate a proposed Civil Service Commission regulation that permitted “job banding,” i.e. grouping of similar job titles into a single band, within which public employees could be promoted without requiring competitive examinations. When the Civil Service Commission promulgated the regulation despite the legislative veto, several challengers brought the case to the Appellate Division. Finding that a legislative veto should be upheld unless it involved a “patently erroneous interpretation” of the enabling statutory language, the Appellate Division upheld the Legislature's invalidation of the regulation, in an opinion whose reasoning we endorsed. (Editorial, “Legislative Veto Ruling Was Right,” ___ N.J.L.J. ___ (Jan. 2, 2017)).

The Supreme Court rendered a 4-3 decision affirming the Appellate Division judgment in a complex alignment of the justices. Justice Patterson announced the judgment of the Court, but in an opinion in which no other justice joined fully. The court unanimously agreed that the exercise of a legislative veto was not a political question and thus was subject to judicial review, that the Legislature had complied with the necessary procedural requirements, and that the veto did not violate any other provision of the state or federal constitution. But the court was divided on the standard of review. Justice Patterson found that in the unusual situation in which the legislative and executive branches disagreed on interpretation of the enabling statute, the usual deference given to the acts of either of the two political branches of government acting on its own does not apply. The court should “simply determine whether the Legislature's finding that the rule or regulation conflicts with statutory language is correct.” Moreover, the court should be guided “exclusively by the statutory text, not by extrinsic evidence of legislative intent.” Applying that test, Justice Patterson found that the Legislature was correct that the job-banding regulation was not consistent with the language of the Civil Service Act, and also N.J. Const. art. VII, §I, ¶2, which both require that appointments in the civil service “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.”

Justice LaVecchia, in a concurring opinion joined by Justices Albin and Timpone, would have afforded “substantial deference” to a “determination by the Legislature about its intent expressed through its own statutory language.” So long as “the Legislature provides a reasonable interpretation of statutory language to support its determination,” Justice LaVecchia would sustain the legislative veto “even if the Executive Branch agency provides an equally reasonable interpretation.” Applying that test, Justice LaVecchia found the legislative veto to be a reasonable interpretation and provided the votes necessary to affirm the Appellate Division's judgment.

Justice Solomon, joined by Chief Justice Rabner and Justice Fernandez-Vina, agreed with Justice Patterson's formulation of the standard of review, but applying that standard would have struck down the legislative veto. Justice Solomon expressed concern that the majority's analysis allowed the Legislature to invalidate executive action based on an amorphous “legislative spirit” and not on the legislative intent “as expressed in the language of” that act, and would “threaten the constitutional balance of power among New Jersey's co-equal branches of government and impermissibly expands the power granted to the Legislature.”

Justice LaVecchia's “substantial deference” standard is perhaps less emphatically expressed than the Appellate Division's “patently erroneous interpretation” test, but upon further reflection, we agree with her and the lower court that, in approving the Legislative Review Clause, the voters must have intended that the Legislature's interpretation of its own language should enjoy a strong presumption of validity. In promulgating a regulation, an administrative agency is not wielding inherently executive power, but is merely exercising a quasi-legislative power delegated to it by the Legislature, so the legislative veto may create less of a separation of powers confrontation than it might first appear.

Nevertheless, we acknowledge that the concerns in Justice Solomon's dissent are substantial. Giving the Legislature too much latitude in striking down regulations that, in hindsight, it does not like, could undermine the balance of power that the Presentment Clause is intended to sustain. The non-deferential and textualist approach adopted by Justice Patterson and the three dissenting justices will presumably rein in future potential overreaching by the Legislature. The entity pulling at those reins, however, will not be the executive, but will necessarily be the Judiciary, when it engages in full plenary review of the Legislature's finding.

But while unambiguous statutory language is devoutly to be wished for, utter linguistic clarity is often unattainable, or often exists merely in the eye of the judicial beholder. As Justice LaVecchia noted, the search for the “correct” textual interpretation often “state[s] a mere conclusion rather than a test to administer.” In this case, however, we agree with Justice Patterson that, even when analyzed under the non-deferential textualist test, the Legislature was “correct” in determining that job banding was inconsistent with the Civil Service Act, and N.J. Const. art. VII, §I, ¶2.

The mere fact that our justices were so deeply divided on this interpretive issue is strong empirical evidence that this test is quite malleable and will enable the judiciary to assert a strong and often decisive role in administrative policy disputes between the Legislature and the executive. In federal jurisprudence, any direct confrontation between the two political branches of government would usually present an early opportunity for the courts to avoid becoming embroiled in an inherently political dispute, using any one of a number of justiciability doctrines. New Jersey, however, has long had a more forceful role for the courts in administrative law. Justice Patterson's solution, while perhaps in some ways doctrinally Solomonic, may in the end be the more historically consistent application of our state constitutional traditions.