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Kimmelman v. Burgio

Decided: September 11, 1985.

IRWIN I. KIMMELMAN, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, APPELLANT,
v.
JANE BURGIO, SECRETARY OF STATE OF THE STATE OF NEW JERSEY, RESPONDENT, AND THE SENATE AND GENERAL ASSEMBLY OF THE STATE OF NEW JERSEY, INTERVENING-RESPONDENTS



On appeal from the Secretary of State.

Morton I. Greenberg, J. H. Coleman and Long. The opinion of the court was delivered by Greenberg, P.J.A.D.

Greenberg

This matter comes on before this court on appeal from a decision of the secretary of state placing a proposed amendment to the New Jersey Constitution on the ballot at the 1985 general election. The secretary contemplates including on the ballot both the question to the electorate and an interpretive statement as formulated by the Legislature pursuant to N.J.S.A. 19:3-6. The attorney general appeals from this decision on the grounds that the resolution proposing the amendment is ambiguous and unclear, fails to inform the voters of its intended effect and is not susceptible to interpretation. He requests that we order the amendment stricken from the ballot.

This case may be said to have its origins in the Legislative Oversight Act, L.1981, c. 27, N.J.S.A. 52:14B-4.1 et seq. That statute permitted the Legislature to veto by concurrent resolution rules proposed by administrative agencies. As the statute was about to become effective the attorney general by formal opinion concluded it was unconstitutional and thereupon Governor Byrne informed his cabinet of this opinion and advised those officers to disregard the act in rule making activities.

Litigation in which the Senate and General Assembly sought a declaration that the Legislative Oversight Act was unconstitutional ensued. The Supreme Court resolved the case with its holding on July 22, 1982 that the act was unconstitutional under the separation of powers and presentment clauses of the New Jersey Constitution, N.J. Const. (1947), Art. III, par. 1; Art. V, § 1, par. 14. General Assembly of State of New Jersey v.

Byrne, 90 N.J. 376 (1982). The separation of powers clause requires a division of government into three branches and the presentment clause requires that bills passed by the Legislature be presented to the Governor for approval or veto.

There was a legislative response to the Supreme Court decision that was extraordinarily prompt by any standard. The same day as the decision 30 senators sponsored and introduced Senate Concurrent Resolution No. 133. The resolution, however, did not seek to amend directly either the separation of powers or presentment clauses of the constitution. Instead it proposed that N.J. Const. (1947), Art. V, § 4, par. 6, establishing procedures for filing and publication of certain administrative rules and regulations, be amended by the addition of the following language:

In accordance with such rules as it may adopt, the Legislature may invalidate any rule or regulation, in whole or part, and may prohibit any proposed rule or regulation, in whole or part, by a majority of the authorized membership of each House.

The resolution also set forth the form of the question on the ballot as follows:

CONSTITUTIONAL AMENDMENT LEGISLATIVE DISAPPROVAL OF RULES AND REGULATIONS

Shall the amendment to Article V, section IV, paragraph 6 of the Constitution, agreed to by the Legislature, authorizing the Legislature to prohibit proposed administrative rules and regulations from taking effect and to invalidate existing rules and regulations, be adopted?

An interpretive statement to appear on the ballot (see N.J.S.A. 19:3-6) reading as follows was ...


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