A New Jersey Senate panel has gutted a measure that would have given administrative law judges the final word in regulatory cases.
But the bill Monday passed by the Senate State Government, Wagering, Tourism and Historic Preservation Committee includes other provisions designed to cut down on such litigation.
They are based on recommendations made by Gov. Chris Christie’s Red Tape Review Commission in 2010.
“I would have voted for it” as originally written, says committee chairman Sen. James Whelan, D-Atlantic. “But it appears that in order to get it signed these amendments may be necessary.”
The bill permits a state agency head to issue an order providing for the recommended report and decision of an ALJ in the Office of Administrative Law to be deemed adopted immediately as the final agency decision.
It also allows ALJs to hold prehearing conferences; consider motions and hear witness testimony by telephone or video conference calls; and issue oral checklist-form decisions in contested cases under certain conditions.
The OAL would have to develop an electronic filing system; assign ALJs or other personnel to act as arbitrators, mediators or conductors of other forms of alternative dispute resolution; schedule hearings an in expeditious and efficient manner, taking into consideration the needs of the parties, their available resources and costs.
State agencies would be required to develop systems for settlement of contested cases. They could compromise and settle, at their discretion, any penalty they consider appropriate and equitable unless prohibited by state or federal law.
At Monday’s committee hearing, representatives of business and industry groups said they still supported the bill, but would have preferred to make ALJ decisions binding on agencies.
Paul Josephson, chairman of the New Jersey State Bar Association’s Administrative Law Section, said there is a “great hue and cry” among lawyers about having to litigate administrative cases twice—first before an ALJ and then before a department head.
“The vast majority of these cases do not involve policy setting,” said Josephson, a former director of the Division of Law now with Duane Morris in Cherry Hill.
But he said the bar supports this version of the bill as well. “There is a need for reform,” he added. “The art of the possible is always preferable, I guess.”
The bill is sponsored by Assemblymen John Burzichelli, D-Gloucester; Scott Rumana, R-Passaic; Ralph Caputo, D-Essex; and Ruben Ramos Jr., D-Hudson; and by Assemblywoman Annette Quijano, D-Union. The sponsor of the Senate version, S-2555, is Sen. Jefferson Van Drew, D-Cape May. Burzichelli did not immediately return a telephone call seeking comment.
The bill, A-1521, passed the Assembly in a 73-1 vote in April. Assemblyman John McKeon, D-Essex, cast the sole negative vote out of environmental concerns. He said he believed people would prefer to have Department of Environmental Protection cases decided by the commissioner, not an ALJ.
A Christie spokesman, Michael Drewniak, declined to comment on the bill or the changes. It is unlikely, however, that Christie would have supported legislation that would have taken decision-making authority away from his department heads and placed in the hands of independent judges.
The OAL is situated in the Department of State for organizational purposes but operates independently.