Tuesday, September 1, 2009



We continue with our look at this landmark 1995 New Jersey case. As always, the text is here.

Section VIII is entitled “Administrative Procedure Act”.

Here, Plaintiff Doe “challenges the authority of the Attorney General to promulgate Guidelines for implementation of the registration and notification requirements. Plaintiff asserts that the Attorney General’s Guidelines are rules which must be adopted in conformance with the notice and hearing requirements of the Administrative Procedure Act (the ‘APA’). The APA requires that prior to the adoption of an administrative rule, an agency must provide thirty days notice of its intent to issue the rule, publish a summary and explanation of the rule, and afford ‘all interested persons reasonable opportunity to submit data, views, or arguments, orally or in writing.’”

This is a doozey of the problem Plaintiff sets the Court here. New Jersey had passed a law to prevent bureaucracy from coming up with whacky regulations; one could be forgiven for imagining that if any situation begged to be covered by that law, it’s this one.

But having supported the Legislature in its already-perpetrated effort to stifle any such opportunity for anybody to “submit data, views, or arguments” and actually having to face the huge problems inherent in its new scheme (the Legislature, you recall, skipped the entire Committee process for vetting a Bill and held no Hearings), the Court can’t very well go and let what promised to be a wide and deep opposition to this new-fangled scheme in through the back door of the APA.

The Court had already pooh-poohed the many substantive Amicus Curiae Briefs filed against the scheme in this case, saying that the place for all that was during the legislative process (which, neatly, the Legislature itself had suspended because of the ‘emergency’). The Mad Hatter’s Tea Party meets Catch-22.

The Attorney General, on behalf of the State, asserts that a) the Guidelines for classification and notification do not need to conform to the APA procedural requirements; b) that the Guidelines are not administrative guidelines as defined by the APA; c) that the Guidelines actually fall under the APA’s exemption for ‘the internal management or discipline of any agency’; and that d) the Legislature clearly did not intend that the Guidelines be subject to the APA requirements for notice and hearing.

The Court starts off surprisingly well: “Because of the widespread impact of the Guidelines, not only on the offenders required to register but also on the members of the general public who seek notification, we disagree with the Attorney General’s contention that the Guidelines can be considered internal department communications.”

But now it has to “determine whether the Guidelines otherwise meet the statutory definition of administrative rules”.

Yes, if you’ve been reading the previous Posts then you know where this is going. But for the sake of enlightenment, take a moment to see how the Court pulls it off.

It sets forth 6 factors (that it had devised in a tax case a decade before) that will determine “whether an agency action constitutes rule-making which must conform to the requirements of the Administrative Procedure Act: 1) it is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; 2) it is intended to be applied generally and uniformly to all similarly situated persons; 3) it is designed to operate only in future cases, that is, prospectively; it prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; 5) it reflects and administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule or (ii) it constitutes a material and significant change from a clear, past agency position on the identical subject matter; and 6) it reflects a decision on administrative regulatory policy in the nature of the interpretation of low or general policy.

Not all the factors get equal weight, and not all of them need be met; it’s just a set of factors the Court uses and then says what it’s going to say.

Factors (1), (2), and (3), the Court admits quickly, do indicate that the Attorney General Guidelines as to classifying and registering sex-offenders constitute rule-making, are intended to have wide-coverage, to be applied uniformly and to be applied prospectively. Which is a ray of light that promises a dawn.

But instantly the Court says: “However, the remaining factors point strongly in the other direction, and, in this case, deserve the most weight”. And here we go.

As to the 4th factor – whether the Guidelines actually prescribe a legal standard that is not expressly provided in the enabling legislation (Megan’s Law) – the Court opines that “the Guidelines are to a great extent merely a formalization of the classification requirements explicitly set forth in the statute”. The classification system was in the text of the Law, and – anyway – the Court even went so far as to fix them a bit and bring them even more closely into conformity with the language of the Law. So factor number 4, the Court decides, does not support the assertion that Megan’s Law has to fall within the APA’s requirements.

As to whether the new Guidelines conflict with an agency’s past position on the matter, well – this is all so new that no State agency, including the Attorney General’s Office, has ever had to deal with this before, so obviously factor number 5 doesn’t trigger the APA requirements.

Nor does factor number 6, which triggers review is a State agency is making a radical new interpretation of law or general policy. It’s not the AG’s Office that’s doing that, it’s the Legislature, whose scheme it is and which was written into the text of the Law itself.
“We therefore hold that the Guidelines are not administrative rules which must conform to the requirements of the Administrative Procedure Act.”

The shrewdness of this whole thing becomes clear: get the ‘right’ science from ‘advocacy’ researchers to justify the ‘emergency’; then put together a sweeping new kind of scheme which is based on an alien – Continental European – philosophy of law that the Framers themselves rejected when they constructed the Constitution to support their vision of the American polity*; then allow no Committee phase where members could debate and discuss among themselves (and create a record of their thoughts); and thus hold no Hearings which would permit the presentation of professional testimony and evidence both as to how profoundly alien and how scientifically ungrounded this new scheme really is; then have debate only on the floor where few members would dare stand up publicly against a wave of public mania**; then – could they not have figured this? – let the inevitable court challenges proceed because the State Supreme Court is presided over by a Chief Justice with a demonstrated and flaunted history of being partial to this new and alien philosophy of law.

You could hardly be criticized for wondering if this entire thing wasn’t planned out beforehand. If perhaps it wasn’t a tinder-dry forest simply waiting for a match. Any match that came along.


*See the Post immediately preceding this one – “Doe v. Poritz 7” for a discussion of the Continental philosophy of law.

**In the event, not a single member of the New Jersey Legislature voted against the Law.

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