SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4912-13T3

A-3041-14T3

A-0230-15T3

A-0232-15T3

A-0274-15T3

A-0275-15T3

COMMUNICATIONS WORKERS OF 

AMERICA, AFL-CIO,

Appellant,

v.

NEW JERSEY CIVIL SERVICE

COMMISSION,

Respondent.

____________________________

COMMUNICATIONS WORKERS OF 

AMERICA, AFL-CIO,

Appellant,

v.

NEW JERSEY CIVIL SERVICE

COMMISSION,

Respondent.

______________________________

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

APPROVED FOR PUBLICATION

December 1, 2016

APPELLATE DIVISION
2 A-4912-13T3

AND JOB BANDING REQUEST,

DEPARTMENT OF TRANSPORTATION.

______________________________

IN THE MATTER OF CHANGES IN 

THE STATE CLASSIFICATION PLAN

AND JOB BANDING REQUEST,

DEPARTMENT OF TRANSPORTATION.

______________________________

IN THE MATTER OF JOB BANDING

FOR SOFTWARE DEVELOPMENT 

SPECIALIST 1 AND 2, AND

NETWORK ADMINISTRATOR 1 AND

2, OFFICE OF INFORMATION

TECHNOLOGY.

______________________________

Argued November 9, 2016 – Decided

Before Judges Yannotti, Fasciale and Gilson.

On appeal from the New Jersey Civil Service 

Commission, Docket Nos. 2016-561, 2016-778, 

and 2016-779. 

Annmarie Pinarski argued the cause for 

appellant Communication Workers of America, 

AFL-CIO in A-4912-13, A-3041-14, and A-0230-

15 (Weissman & Mintz, L.L.C., attorneys;

Steven P. Weissman and Ms. Pinarski, on the 

briefs).

Arnold Shep Cohen argued the cause for 

appellant International Federation of 

Professional & Technical Engineers, Local 

195 in A-0232-15 (Oxfeld Cohen, P.C., 

attorneys; Mr. Cohen, of counsel and on the 

brief).

Leon J. Sokol argued the cause for 

appellants Stephen M. Sweeney, President of 

the New Jersey State Senate, and Vincent 

Prieto, Speaker of the New Jersey General 

Assembly, the Senate and General Assembly in 

December 1, 2016
3 A-4912-13T3

A-0274-15 and A-0275-15 (Cullen and Dykman, 

L.L.P., attorneys; Mr. Sokol and Herbert B. 

Bennett, of counsel and on the briefs).

Peter Slocum, Deputy Attorney General,

argued the cause for respondent New Jersey 

Civil Service Commission (Christopher S. 

Porrino, Attorney General, attorney; Mr. 

Porrino, Mr. Slocum and Wan Cha, on the 

briefs).

The opinion of the court was delivered by 

FASCIALE, J.A.D. 

In these six appeals, which we have consolidated for the 

purpose of rendering this opinion, the State Senate, Stephen M. 

Sweeney, President of the New Jersey Senate, the General 

Assembly, and Vincent Prieto, Speaker of the New Jersey Assembly 

(collectively the Legislature), Communications Workers of 

America, AFL-CIO (CWA), and the International Federation of

Professional & Technical Engineers, Local 195 (IFPTE), challenge 

several final administrative agency decisions (the decisions)

rendered by the Civil Service Commission (CSC) pertaining to a

Job Banding Rule (the Rule), N.J.A.C. 4A:3-3.2A. The CSC 

adopted and implemented the Rule after the Legislature invoked 

its veto power, pursuant to N.J. Const. art. V, § 4, ¶ 6 (the 

Legislative Review Clause), finding in numerous concurrent 

resolutions that the Rule conflicted with the Civil Service Act 

(CSA), N.J.S.A. 11A:1-1 to 12-6, which incorporated the text of 
4 A-4912-13T3

N.J. Const. art. VII, § 1, ¶ 2. For the reasons that follow, we 

conclude that the Legislature validly exercised its authority 

under the Legislative Review Clause and correctly invalidated 

the Rule. We therefore reverse the decisions and vacate the 

implementation of that Rule, including any subsequent 

amendments.

I.

We begin with a brief history of the Legislative Review 

Clause and related governing legal principles. Doing so will 

inform our holding on our standard of review and our conclusion 

that the Legislature enjoys a limited constitutional power to 

determine whether any administrative 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. 

In 1981, the Legislature overrode Governor Brendan T. 

Byrne's veto and passed the Legislative Oversight Act, L. 1981, 

c. 27, N.J.S.A. 52:14B-4.1 to -4.9. In general, the Legislative 

Oversight Act permitted legislative veto of administrative 

regulations by concurrent resolution of both houses. In General

Assembly v. Byrne, 90 N.J. 376, 378-79 (1982), the Court applied

the then existing New Jersey Constitution, invalidated the 

Legislative Oversight Act, and stated: 
5 A-4912-13T3

We hold that the legislative veto provision 

in the Legislative Oversight Act, L. 1981, 

c. 27, violates the separation of powers 

principle that "[t]he powers of the 

government shall be divided among three 

distinct branches," N.J. Const. (1947), 

[art. III, ¶]1, by excessively interfering 

with the functions of the executive branch. 

The Legislature's power to revoke at will 

portions of coherent regulatory schemes 

violates the separation of powers by 

impeding the Executive in its constitutional 

mandate to faithfully execute the law. The 

legislative veto further offends the 

separation of powers by allowing the 

Legislature to effectively amend or repeal 

existing laws without participation by the 

Governor. This process also contravenes the 

Presentment Clause requirement that changes 

in legislative policy be effected 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. N.J. Const. (1947), [art. 

V, § 1, ¶]14.

[(First alteration in original) (emphasis 

added).]

 

The Court found that 

the broad and absolute legislative veto 

provision in L. 1981, c. 27, is both an 

excessive intrusion into executive 

enforcement of the law and an 

unconstitutional mechanism for legislative 

policy making beyond the Governor's control. 

The Legislative Oversight Act thereby gives 

the Legislature excessive power both in 

making the laws and in enforcing them. This 

violates the separation of powers and the 

Presentment Clause.

[(Id. at 379).]
6 A-4912-13T3

The separation of powers doctrine tempers the use of 

governmental power. In New Jersey, the Framers created a 

government with three distinct branches, each a separate source 

of power that could check the potential abuses of the other 

branches. N.J. Const. art. III, ¶ 1 reads:

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. 

The Framers established a government of separated and balanced 

powers primarily because they feared "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." Gen. Assembly, supra, 90 N.J. at 383 (quoting 

Consumer Energy Council of Am. v. Fed. Energy Reg. Comm'n, 673 

F. 2d 425, 464 (D.C. Cir. 1982)). It has been the wellrecognized constitutional role of the judiciary to prevent one 

branch of government from exercising illegitimate power over the 

other. Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L. Ed.

60 (1803). 
7 A-4912-13T3

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

that in the Federal Constitution, U.S. Const. art. I, § 7, cl. 

2, states in relevant part:

(a) 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.

(b) A passed bill presented to the Governor 

shall become 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.

The Presentment Clause therefore "prevents the exercise of lawmaking 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, supra, 90 N.J.

at 384. 
8 A-4912-13T3

In response to the Court's decision in General Assembly, 

the Legislature immediately introduced concurrent resolution 

SCR-133 proposing an amendment to the New Jersey Constitution 

giving the Legislature the power to "invalidate any rule or 

regulation, in whole or part," and to "prohibit any proposed 

rule or regulation, in whole or part, by a majority of the 

authorized membership of each House." The Attorney General 

appealed the decision of the Secretary of State to place the 

proposed constitutional amendment on the ballot, arguing the 

interpretive statement was confusing and that the language of 

SCR-133 was ambiguous. See Kimmelman v. Burgio, 204 N.J. Super.

44, 47 (App. Div. 1985). 

In Kimmelman, we concluded the proposed amendment should be 

placed on the ballot, but agreed the interpretive statement was 

misleading. Id. at 53-54. We suggested the interpretive 

statement be replaced with the following language:

State executive agencies are authorized to 

issue rules and regulations which have the 

force and effect of law. The Legislature 

may review those rules and regulations from 

time to time in order to determine whether 

they conform with the intent of the 

statutes. The Supreme Court of New Jersey 

has ruled that under the New Jersey 

Constitution in general the Legislature may 

not invalidate an executive rule or 

regulation except by adopting legislation 

subject to the Governor's veto. This 

amendment addresses that Supreme Court 
9 A-4912-13T3

ruling by modifying the New Jersey 

Constitution to allow the Legislature to 

invalidate executive rules and regulations

without enacting legislation and without 

presenting the issue to the Governor. Its 

enactment would constitute a fundamental 

change in the relationship between the coequal branches of government.

[Id. at 55 (emphasis added).] 

In 1985, this interpretive statement appeared on the ballot, but 

the voters rejected the sweeping proposed constitutional 

amendment. 

Instead, seven years later, the voters approved amending 

the New Jersey Constitution with the text of the Legislative 

Review Clause, giving the Legislature limited power to 

invalidate an administrative rule or regulation, which states:

No rule or regulation made by any 

department, officer, agency or authority of 

this state, except such as relates to the 

organization or internal management of the 

State government or a part thereof, shall 

take effect until it is filed either with 

the Secretary of State or in such other 

manner as may be provided by law. The 

Legislature shall provide for the prompt 

publication of such rules and regulations. 

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 
10 A-4912-13T3

concurrent resolution to the Governor and 

the head of the Executive Branch agency 

which promulgated, or plans to promulgate, 

the rule or regulation. The agency shall 

have 30 days to amend or withdraw the 

existing or proposed rule or regulation. If 

the agency does not amend or withdraw the 

existing or proposed rule or regulation, the 

Legislature may invalidate that rule or 

regulation, in whole or in part, or may 

prohibit that proposed rule or regulation, 

in whole or in part, from taking effect by a 

vote of a majority of the authorized 

membership of each House in favor of a 

concurrent resolution providing for 

invalidation or prohibition, as the case may 

be, of the rule or regulation. This vote 

shall not take place until at least 20 

calendar days after the placing on the desks 

of the members of each House of the 

Legislature in open meeting of the 

transcript of a public hearing held by 

either House on the invalidation or 

prohibition of the rule or regulation.

[N.J. Const. art. V, § 4, ¶ 6 (emphasis 

added).] 

The Legislative Review Clause specifically addressed the Court's 

decision in General Assembly, supra, 90 N.J. at 379.

Pursuant to the unambiguous plain language of the 

Legislative Review Clause, the Legislature may review the rule 

or regulation to determine if it conforms to legislative intent, 

reflected in "language of the statute which the rule or 

regulation is intended to implement." N.J. Const. art. V, § 4, 

¶ 6. In other words, the text of the Legislative Review Clause

permits the Legislature to analyze two things: the State agency
11 A-4912-13T3

administrative rule or regulation and the language of the 

statute.

II.

In May 2012, the CSC established a pilot program for job 

banding in the CSC and the Department of the Treasury. Job 

banding means grouping certain job titles into one "band" and 

allowing advancement of employees from lower to higher titles in 

the same band without competitive promotional examination. The 

program included job banding the Human Resource Consultant, 

Personnel and Labor Analyst, State Budget Specialist, and Test 

Development Specialist title series. 

In February 2013, the CSC filed a proposal (the proposal)

to amend its regulations and implement the Rule. The proposal 

appeared in the March 2013 Register, 45 N.J.R. 500(a). The 

Proposed Rule (Proposed Rule) implemented job banding, 

redefining "promotion" to mean "movement to a title with a 

higher class code not in the employee's current job band." 

According to the Proposed Rule, a "promotion" from a lower 

title to a higher title within a job band would be redefined as 

an "advancement appointment." Adopting the Proposed Rule would 

allow job bands and advancement of employees in the competitive 

service from lower to higher titles without the long-standing 

requirement for competitive promotional examination. The CSC 
12 A-4912-13T3

acknowledged this change by stating in its social impact 

statement accompanying the proposal that

[o]rdinarily, to promote an employee to a 

higher title, both the appointing authority 

and interested eligibles are required to go 

through a process that consists of 

requesting an announcement, filing an 

application in order to determine 

eligibility to compete in an examination, 

developing an examination, conducting the 

examination, issuing an eligible list, 

certifying the list, and making appointments 

of reachable eligibles from the 

certification. 

 

The practical effect of adopting the Proposed Rule would give 

appointing authorities greater discretion in selecting 

candidates for promotion to higher titles than would otherwise 

exist in a competitive examination system.

Between June 2013 and November 2014, the Legislature passed 

four sets of concurrent resolutions1 finding that the Rule, in 

all its amended forms, contravened the CSA, which incorporated 

the plain text of N.J. Const. art. VII, § 1, ¶ 2. In June 2013, 

Assembly resolution ACR-199 and Senate resolution SCR-158 were 

introduced in the Legislature, pursuant to the Legislative 

 

1 June 2013 (ACR-199, which the Senate had substituted for SCR158); January 2014 (ACR-215, which the Senate had substituted 

for SCR-166); June 2014 (SCR-116, which the Assembly had 

substituted for ACR-155); and November 2014 (ACR-192, and in 

December 2014, ACR-192, which the Senate had substituted for 

SCR-147).

 
13 A-4912-13T3

Review Clause. The resolutions stated that the Legislature 

found the Proposed Rule was inconsistent with the legislative 

intent as reflected in the statutes governing appointments and 

promotions in the classified service. The Legislature passed

ACR-1992 after considering the Proposed Rule in light of the

plain text of the CSA. The Legislature also noted the public 

policy, statutes, and constitutional provisions applicable to 

public employees' appointments and promotions in the competitive 

division of the classified service. 

In these concurrent resolutions, the Legislature resolved 

that 

[1.] The proposed new [Rule] is contrary to 

the spirit, intent, and plain meaning of the 

provision in the New Jersey Constitution 

[N.J. Const. art. VII, § 1, ¶ 2, referenced 

in the CSA] 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.

[2.] The fact that the proposed new [R]ule 

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.

 

2 The Senate substituted ACR-199 for SCR-158. 
14 A-4912-13T3

[3.] The proposed new [R]ule 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.

[4.] The proposed new [R]ule is not 

consistent with the legislative intent that 

a competitive promotional examination 

process be established, maintained, and 

administered by the [CSC] to ensure that 

promotions are based on merit and fitness 

and are not based on patronage or 

discriminatory reasons.

 

[5.] The proposed new [R]ule 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 [CSC] 

why a veteran should not receive such 

promotion.

[6.] The proposed new [R]ule is not 

consistent with the intent of the 

Legislature as expressed in the language of 

the [CSA], 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.

The Legislature transmitted the concurrent resolutions to the 

CSC on December 4, 2013, and notified the CSC that it would have 

thirty days to "amend or withdraw" the Proposed Rule, or if 

there was no action, the Legislature may, by the passage of 
15 A-4912-13T3

another concurrent resolution, invalidate the Proposed Rule "in 

whole or in part." 

On December 23, 2013, the CSC adopted amendments (the first 

amendments) to the Proposed Rule (the First Amended Proposed

Rule). The first amendments, however, permitted the CSC to 

place titles in job bands and advance employees from lower to 

higher titles in a job band upon attaining certain 

"competencies." They also stated that veterans would receive 

the same preference in advancements within the band as they did

in promotional settings in place at the time, limited the scope 

of job banding to State service, excluded law enforcement and 

public safety jobs from job banding, and stated that employees 

would retain the right to complain about discrimination in the 

advancement process. 

These amendments did not change the provisions of the rule 

that allowed job banding of titles and promotions within those 

titles without competitive examinations. The first amendments

therefore did not withdraw or substantively amend the Proposed 

Rule to cure its inconsistency with the statutory provisions of 

the CSA which require promotional competitive testing for 

appointments and promotions in the State's competitive service.
16 A-4912-13T3

In January 2014, the Legislature passed concurrent 

resolution ACR-215,

3 which invalidated the First Amended Proposed 

Rule. Nevertheless, on May 7, 2014, the CSC disregarded the 

Legislature's veto and adopted the First Amended Proposed Rule 

with an effective date of June 2, 2014. The CWA appealed from 

the CSC's decision to adopt the First Amended Proposed Rule

shortly thereafter. 

In May 2014, another set of concurrent resolutions was 

introduced in the Legislature pursuant to the Legislative Review 

Clause. The Senate introduced SCR-116 and the Assembly 

introduced ACR-155. On June 12, 2014 and June 16, 2014, the 

Senate and the Assembly passed these concurrent resolutions, 

which mirrored ACR-199 and SCR-158, stating that the First 

Amended Rule remained inconsistent with legislative intent and 

added "[a]ny amended rule that contains a job banding provision 

or elimination of competitive promotional examinations shall be 

deemed by the Legislature as violating Article VII, [§ 1, ¶] 2 

of the Constitution of the State of New Jersey and the [CSA.]" 

The Legislature transmitted SCR-116 and ACR-155 to the CSC on 

June 17, 2014. 

 

3 The Senate substituted ACR-215 for SCR-166. 
17 A-4912-13T3

On July 16, 2014, the CSC proposed a second set of 

amendments (the Second Amended Proposed Rule). The Second 

Amended Proposed Rule stated that the "appointing authority 

would be required to obtain approval of the advancement 

appointment selection process from the Chairperson of the [CSC]

or designee" before proceeding with its advancement appointment 

selection process. Furthermore, the Second Amended Proposed 

Rule stated that the appointing authority would have to rank 

candidates after determining which employees may receive an 

advancement appointment. The Second Amended Proposed Rule also 

retained for civil titles in State service the same components

of the Proposed Rule, specifically, job banding and the lack of 

competitive promotional examinations, to which the Legislature 

fundamentally and repeatedly found to be inconsistent with the 

intent of the plain language of the statutes governing 

promotions in the competitive service. 

Once again, concurrent resolutions were introduced in the 

Legislature: ACR-192 was introduced in the Assembly on September 

29, 2014, and SCR-147 was introduced in the Senate on October 9, 

2014. On October 22, 2014, the CSC adopted its Second Amended 

Proposed Rule. On November 13, 2014, the Assembly passed ACR192, and on December 18, 2014, the Senate passed ACR-192, which 

the Senate had substituted for SCR-147. ACR-192 invalidated the 
18 A-4912-13T3

Second Amended Proposed Rule stating it remained inconsistent 

with legislative intent of the CSA and the civil service 

provision of the New Jersey Constitution. 

In February 2015, the CWA wrote to the CSC asking whether 

the CSC planned to proceed with the Second Amended Proposed 

Rule, given the Legislature's numerous concurrent resolutions. 

On February 9, 2015, the CSC rendered its decision asserting 

that the Second Amended Proposed Rule was not invalidated by the 

Legislature. The CWA appealed from this decision.

In June 2015, the Office of Information Technology (OIT)

submitted a proposal to the CSC to implement job banding for 

Software Development Specialist 1 and 2 and Network 

Administrator 1 and 2. In July 2015, the CWA requested that the 

CSC withhold a decision on whether to implement OIT's proposal 

to band job titles. On July 31, 2015, the CSC issued its

decision approving OIT's job banding proposal. The Legislature 

and the CWA appealed from this decision. 

In July 2015, the New Jersey Department of Transportation

(NJDOT) submitted a proposal to the CSC to discontinue certain 

titles and consolidate others. The NJDOT proposed to assign 

seven job titles to the new Highway Operation Technician (HOT) 

Title Series and job band them pursuant to the Rule. This new 

title series included HOT Trainee, HOT 1, HOT 2, and HOT 3. On 
19 A-4912-13T3

August 21, 2015, the CSC issued its decision approving the 

NJDOT's proposal. The Legislature and the IFPTE appealed from 

this decision.

III.

On appeal, the Legislature, the CWA, and the IFPTE argue 

the Legislature possessed the constitutional power to veto the 

Rule; the Legislature followed the procedural process expressed 

in the Legislative Review Clause for invalidating the Rule; the 

Legislature's findings and conclusions contained in its 

concurrent resolutions are entitled to substantial deference; 

and the CSC's decision to ignore the Legislature's invalidation 

of the Rule amounted to a violation of the separation of powers

doctrine. 

We begin by addressing our standard of review applicable to

the Legislature's findings and conclusions contained in its 

concurrent resolutions. 

The Legislature argues our role is primarily limited to 

determining whether it followed procedural safeguards contained 

in the Legislative Review Clause. Relying on the Legislative 

Review Clause, the Legislature maintains "[t]here is [generally] 

no role for judicial review of the Legislature's findings that a 

regulation is contrary to legislative intent." The Legislature 

asserts we may reverse its concurrent resolutions only if its 
20 A-4912-13T3

findings and conclusions are repugnant to the New Jersey 

Constitution. The Legislature contends that a presumption of 

validity applies to its concurrent resolutions, and that we 

should afford the Legislature substantial deference and not 

second-guess its findings. 

CWA, like the Legislature, asserts we should afford 

deference to the findings and conclusions contained in the 

Legislature's concurrent resolutions invalidating the Rule. CWA 

points out that here, unlike in a typical third-party challenge 

to a final agency decision, we are primarily reviewing whether 

the Legislature correctly exercised its veto power. CWA 

therefore emphasizes that the well-settled standards of review 

in typical agency appeals are inapplicable. The IFPTE also 

argues that if the Legislature properly exercises its 

constitutional veto power, an executive agency is "bound to 

adhere to the legislative will and not implement the invalidated 

regulation." 

The CSC submits our role is not as limited as appellants

advocate. The CSC emphasizes that we should conduct an exacting 

and thorough judicial review of the Legislature's findings and 

conclusions. It stresses that such a review is fundamental to 

our system of governmental checks and balances. The CSC urges 

judicial review of the Legislature's invalidation of the Rule to 
21 A-4912-13T3

avoid violations of the law in general, and particularly to 

ensure compliance with the separation of powers and presentment 

clauses of the New Jersey Constitution. The CSC argues that 

such an exhaustive judicial review is not precluded or limited 

in any way by the plain text of the Legislative Review Clause. 

We agree that our general standard of review in appeals 

from final agency decisions is inapplicable. In a typical 

appeal from a final agency decision, which this is not, our 

capacity to review administrative actions "is severely limited," 

Mazza v. Bd. of Trs., Police & Firemen's Ret. Sys., 143 N.J. 22, 

25 (1995), and we are not free to substitute our judgment for 

the "'wisdom of a particular administrative action'" as long as 

the action is statutorily authorized and not arbitrary or 

unreasonable. Gloucester Cty. Welfare Bd. v. N.J. Civil Serv. 

Comm'n, 93 N.J. 384, 391 (1983) (quoting N.J. Guild of Hearing 

Aid Dispensers v. Long, 75 N.J. 544, 562 (1978)). Although such 

a standard has been well-recognized for years, the 

distinguishing factor obviating use of an administrative agency 

standard of review here is the substantial involvement of the 

Legislature pursuant to the Legislative Review Clause. We are 

not merely determining, as we would if this were a typical 

appeal from an agency decision, whether the CSC decisions were 
22 A-4912-13T3

arbitrary, capricious, or unreasonable, or whether they were 

otherwise unsupported by credible evidence in the record. 

 The plain text of the Legislative Review Clause does not, 

however, limit our traditional role of interpreting the law. 

And it does not preclude the judicial branch from exercising its 

role to enforce the checks and balances embodied in the State 

Constitution. The Legislative Review Clause does not negate the 

well-recognized role of the judiciary to safeguard the 

protections afforded in the constitution and to prevent any of 

the branches from potentially exercising illegitimate power over 

the other. As a result, we are not bound by the Legislature's 

interpretation of a statute. Such questions of law have always 

been within the province of the judicial branch.

We nevertheless conclude that the Legislature is entitled 

to substantial deference when it exercises its constitutional 

power to invalidate an administrative rule or regulation 

pursuant to the Legislative Review Clause. We do so because the 

legislative process for invalidating an administrative rule or 

regulation, established pursuant to the Legislative Review 

Clause, is procedurally rigorous, substantively precise, and 

most importantly, the Legislature possesses general expertise in 

the field of lawmaking. 
23 A-4912-13T3

We retain our authority, however, to review the 

Legislature's findings and conclusions to ensure the Legislature 

has validly exercised its veto power under the Legislative 

Review Clause, by invalidating the rule or regulation, rather 

than passing new legislation, subject to the presentment clause. 

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." 

At least one other jurisdiction with even stronger language 

than that which appears in the Legislative Review Clause has 

likewise persuasively held that the judiciary is not precluded 

from reviewing the Legislature's veto power. For example, the

Iowa constitution includes a broad provision allowing for 

nullification of administrative rules, which states that "[t]he 

general assembly may nullify an adopted administrative rule of a 

state agency by the passage of a resolution by a majority of all 

of the members of each house of the general assembly." Iowa
24 A-4912-13T3

Const. art. III, § 40. The Iowa Supreme Court found that this 

provision did not preclude judicial review to determine if its 

legislative branch violated the law by invalidating an 

administrative rule or regulation. Iowa Fed'n of Labor v. Iowa 

Dep't of Job Service, 427 N.W. 2d 443, 447 (1988) (stating 

"[g]iven th[e] importance of the judiciary's oversight of agency

rules, we doubt that article III, section 40 was intended to 

eliminate one of the three important checks over an agency's 

power to legislate"). 

IV.

When reviewing a Legislative determination that an 

administrative rule or regulation contravenes the "language of 

the statute which the rule or regulation is intended to 

implement," we first analyze whether the Legislature complied 

with procedural requirements outlined in the Legislative Review 

Clause. N.J. Const. art. V, § 4, ¶ 6. Thereafter we afford the 

Legislature's conclusions and findings substantial deference, 

keeping in mind that the judiciary is the ultimate arbiter of 

questions of law.

(i)

Here, the Legislature complied with the procedural 

requirements imposed by the Legislative Review Clause on two 

occasions. First, the Legislature passed ACR-199 after the CSC 
25 A-4912-13T3

proposed the Rule. In mid-December 2013, the CSC proposed a 

First Amended Proposed Rule, and in January 2014, the 

Legislature passed concurrent resolution ACR-215 to invalidate 

it. Although the CSC purportedly amended the Proposed Rule, the 

amendments did not alter the Rule's omission of competitive 

examinations in job banding.

Second, the Legislature passed SCR-116, which mirrored ACR199, in June 2014. The Legislature stated that the job banding 

regulations were still inconsistent with legislative intent and 

"[a]ny amended rule that contains a job banding provision or 

elimination of competitive promotional examinations shall be 

deemed by the Legislature as violating Article VII, [§ 1, ¶] 2 

of the Constitution of the State of New Jersey and the Civil 

Service Act[.]" After the CSC introduced a purported Second 

Amended Proposed Rule in July 2014, which still eliminated 

competitive promotional examinations for job banding, the 

Legislature passed ACR-192.

We reject the CSC's contention that its amendments to the 

Proposed Rule required the Legislature to begin the veto 

procedural process anew. The Legislature correctly invalidated 

the Proposed Rule, and the amendments consistently ignored the 

Legislature's steadfast substantive objection to job banding 

without competitive promotional examinations. 
26 A-4912-13T3

(ii)

The Legislature determined that the Rule conflicts with the 

long-standing law in New Jersey requiring that appointment and 

promotions for the civil service in the competitive division 

shall be accomplished to ensure equal employment opportunity and 

shall be made according to merit and fitness, which is 

ascertained, as far as practicable, by competitive examination. 

That determination by the Legislature does not amount to a 

patently erroneous interpretation of the language of the CSA. 

Applying substantial deference to the Legislature, we discern no 

reason to disagree with the Legislature's determination. 

In 1986, the Legislature found and declared the public 

policy regarding state employees. In N.J.S.A. 11A:1-2, the 

Legislature explicitly stated:

a. It is the public policy of this State to 

select and advance employees on the basis of 

their relative knowledge, skills and 

abilities;

b. It is the public policy of this State to 

provide public officials with appropriate 

appointment, supervisory and other personnel 

authority to execute properly their 

constitutional and statutory 

responsibilities;

c. It is the public policy of this State to 

encourage and reward meritorious performance 

by employees in the public service and to 

retain and separate employees on the basis 

of the adequacy of their performance;
27 A-4912-13T3

d. It is the public policy of this State to 

ensure equal employment opportunity at all 

levels of the public service; and

e. It is the public policy of this State to 

protect career public employees from 

political coercion and to ensure the 

recognition of such bargaining and other 

rights as are secured pursuant to other 

statutes and the collective negotiations 

law.

The Legislature recognized that the Constitution of the State of 

New Jersey specifically addressed appointments and promotions of 

public employees. N.J. Const. art. VII, § 1, ¶ 2 states:

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 reason 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. 

[(Emphasis added).]

Consequently, in 1993, the Legislature made further 

findings and declarations as to civil service, classification, 

and compensation of public employees. In N.J.S.A. 11A:3-2.1, 

the Legislature stated: 

a. the importance of fairness and 

impartiality in State employment is 

recognized in Article VII, Section I, 

paragraph 2 of the New Jersey Constitution 
28 A-4912-13T3

which provides that, "Appointments and 

promotions in the civil service of the State 

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";

b. nevertheless, the framers recognized 

that appointments to certain types of 

employment are not readily made through a 

competitive examination process;

c. accordingly, in implementing the 

constitutional provision, the Legislature 

has provided in N.J.S.[A.] 11A:3-2 that the 

career service shall have a competitive 

division and a noncompetitive division;

d. it was the purpose of the Legislature, 

in making this distinction, to provide for 

positions which cannot properly be tested 

for, such as lower-level jobs which do not 

require significant education or experience, 

to be filled without the need of competitive 

examination but with civil service 

protection for the employee; 

e. however, recent published reports 

suggest that the purpose of the 

noncompetitive division has been subverted 

by the transfer into that division of titles 

which properly belong in the unclassified 

service or in the competitive division of 

the career service, and the making of 

appointments thereto;

f. the apparent reason for this misuse of 

the noncompetitive division is to protect 

political appointees prior to the beginning 

of a new administration; and

g. in order to prevent this abuse of the 

civil service system, there is need for a 

statutory prohibition on the movement of job 

titles and political appointees to the 
29 A-4912-13T3

noncompetitive division of the career 

service during the final six months of the 

Governor's term in office.

On the subject of competitive examinations, N.J.S.A. 11A:4-1 

states that the CSC shall 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. Employees of the 

State or political subdivisions may be so 

engaged as part of their official duties 

during normal working hours with the 

approval of their appointing authority. 

Extra compensation may be provided for such 

service outside normal working hours; and

e. The right to appeal adverse actions 

relating to the examination and appointment 

process, which shall include but not be 

limited to rejection of an application, 

failure of an examination and removal from 

an eligible list.

Furthermore, the CSC must meet certain certification and 

appointment obligations expressed in N.J.S.A. 11A:4-8, which 

provides that
30 A-4912-13T3

The [CSC] 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 [CSC] 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 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.

Thus, the appointment and promotions of the civil service 

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

impracticable. Recognizing that not all types of employment are 

readily discerned through a competitive examination process, the 

Legislature declared in N.J.S.A. 11A:3-2, that career service 

"shall have two divisions, the competitive division and the 

noncompetitive division." It is therefore well-established, and 

consistent with N.J. Const. art. VII, § 1, ¶ 2, that 

appointments and promotions of public employees in the civil 
31 A-4912-13T3

service "shall be . . . ascertained, as far as practicable, by 

examination[.]"

It is undisputed that competitive examinations have been 

used for years to test the merit and fitness of persons in the 

State's competitive service. This practice indicates that it is 

practicable to use such examinations for promotions in the 

competitive service, and if not, the CSC has the authority to 

move the title to the non-competitive service.

We therefore conclude that the Legislature validly 

exercised its authority under the Legislative Review Clause and 

invalidated the Rule. The Legislature's findings and 

conclusions, contained in its numerous concurrent resolutions, 

comply with the procedural requirements of the Legislative 

Review Clause, and do not violate constitutional protections, or 

do not amount to a patently erroneous interpretation of "the 

language of the statute which the rule or regulation is intended 

to implement." The Legislature reasonably found that job 

banding without competitive promotional examinations was 

inconsistent with the legislative intent reflected in the plain 

language of the relevant provisions of the CSA. 

We therefore reverse the decisions and vacate the 

implementation of the Rule, including the subsequent amendments.