                                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,                        APPROVED FOR PUBLICATION

v.                                        December 1, 2016

NEW JERSEY CIVIL SERVICE                 APPELLATE DIVISION
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
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 December 1, 2016

         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

                                 2                       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, Assistant 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


                                        3                                 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:

                                      4                               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).]


                               5                            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   well-

recognized 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).




                                           6                                  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 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, supra, 90 N.J.

at 384.


                                      7                               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

                                         8                                    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 co-
          equal 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

                                     9                            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

                                   10                             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

                                        11                                    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 SCR-
158); 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).



                                    12                                  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.


                                13                              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



                             14                          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.




                                     15                              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.


                                           16                                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 ACR-

192, and on December 18, 2014, the Senate passed ACR-192, which

the Senate had substituted for SCR-147.                      ACR-192 invalidated the

                                          17                                      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

                                   18                                 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

                                     19                                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

                                          20                                      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



                                           21                                   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.



                                       22                                 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

                                             23                                    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

                                           24                                     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 ACR-

199, 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.

                                         25                                      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;

                                              26                                 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

                                  27                              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

                    28                          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

                                   29                              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

                                    30                                  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.



                                         31                                  A-4912-13T3
