On appeal from the Commissioner of Labor.
King, R.s. Cohen and Stern. The opinion of the court was delivered by Cohen, R.s., J.A.D.
William L. Boyan, a Judge of Compensation, appealed the adoption by the Commissioner of Labor of regulations concerning the conduct and discipline of Judges of Compensation. N.J.A.C. 12:235-3.11 through 3.23. He contends that the adoption process was faulty and also that the regulations contain a number of unlawful provisions. We agree that the procedures leading to the adoption of the regulations were flawed, and that the regulations must therefore be set aside. We do not reach the substantive faults which appellant says they contain.
The proposed regulations established a Commission of Judicial Performance. Commission action was authorized in the event a Judge of Compensation suffered mental or physical disability, or was guilty of misconduct in office, willful failure to perform his or her duties, incompetence, "habitual intemperance", violations of law or any rule, regulation, policy or procedure of the Division, the Department or the State, or, finally, conduct prejudicial to the administration of justice that brings the judicial office into disrepute.
The Commission was authorized to make preliminary investigations, hold hearings of a sort, dismiss charges with or without an explanation or counseling with the judge, or to report to the Director of the Division of Workers' Compensation when the Commission concludes censure, suspension or removal is called for.
The regulations define and deal with a judge's physical and mental capacity to preside. They authorize physical and mental examinations for good cause, and outline procedures for removal
of judges on various grounds and for lesser means of discipline.
The regulations were proposed and published on October 3, 1988, in the New Jersey Register. 20 N.J.R. 2442(c). Notice was given there that written comment would be accepted for a period of thirty days. No additional notice was given the Judges of Compensation. The Administrative Procedure Act governs such notices. N.J.S.A. 52:14B-4(a)(1) provides:
(a) Prior to the adoption, amendment, or repeal of any rule, except as may be otherwise provided, the agency shall:
(1) Give at least 30 days' notice of its intended action. The notice shall include a statement of either the terms or substance of the intended action or a description of the subjects and issues involved, and the time when, the place where, and the manner in which interested persons may present their views thereon. The notice shall be mailed to all persons who have made timely request of the agency for advance notice of its rule-making proceedings and in addition to other public notice required by law shall be published in the New Jersey Register and shall be filed with the President of the Senate and the Speaker of the General Assembly. The notice shall be additionally publicized in such manner as the agency deems most appropriate in order to inform those persons most likely to be affected by or interested in the intended action. Methods that may be employed include publication of the notice in newspapers of general circulation or in trade, industry, governmental or professional publications, distribution of press releases to the news media and posting of notices in appropriate locations. [emphasis supplied.]
Two things are clear from the statute. First is that 30 days is the minimum period permitted to receive public comment. That does not mean that 30 days is a desirable period to choose in every case. There was no need here for haste. Adoption of the regulations was not an emergent matter. The proposed regulations were drafted in the Division of Workers' Compensation without participation of the Workers' Compensation bench or bar. Yet, when the legislative counsel of the New Jersey State Bar Association wrote to ask for an additional four weeks because needed for the Workers' Compensation Section to prepare a response to the Division's proposal, he was turned down. The Commissioner's denial was sent to the legislative counsel ...