ROBERT A. NOLAN v. GURBIR S. GREWAL (DIVISION OF CRIMINAL JUSTICE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4614-19
ROBERT A. NOLAN, in his
official capacity as CAPE MAY
COUNTY SHERIFF, and
COUNTY OF CAPE MAY,
Plaintiffs-Appellants,
v.
GURBIR S. GREWAL, in his
official capacity as ATTORNEY
GENERAL OF THE STATE OF
NEW JERSEY, and OFFICE
OF THE ATTORNEY GENERAL,
DEPARTMENT OF LAW AND
PUBLIC SAFETY, DIVISION OF
CRIMINAL JUSTICE, 1
Defendants-Respondents.
_____________________________
Submitted November 4, 2021 – Decided January 26, 2022
Before Judges Hoffman, Whipple, and Susswein.
1
The caption in the parties' briefs incorrectly designates the Office of the
Attorney General as the "Office of the State of New Jersey."
On appeal from the Office of the Attorney General,
Department of Law and Public Safety, Division of
Criminal Justice.
Jeffrey R. Lindsay, Cape May County Counsel,
attorney for appellants (Jeffrey R. Lindsay, on the
briefs).
Andrew J. Bruck, Acting Attorney General, attorney for
respondents (Jeremy Feigenbaum, State Solicitor, and
Jane C. Schuster, Assistant Attorney General, of
counsel and on the brief; Emily Marie Bisnauth, Marie
Soueid, Emily Wanger, and Sean P. Havern, Deputy
Attorneys General, on the brief).
PER CURIAM
Robert Nolan, in his official capacity as Cape May County Sheriff, and
the County of Cape May (appellants) filed this action with this court on August
28, 2020, seeking a judgment declaring invalid and unenforceable Attorney
General Law Enforcement Directive No. 2018-6 v2.0, also known as the
Immigrant Trust Directive (Directive 2018-6 v2.0 or the Directive). The
Attorney General issued the Directive, which places strict limitations on state,
local, and county law enforcement agencies regarding their participation in the
enforcement of federal immigration law, with the goal of improving public trust
and clarifying the distinct roles of federal and state actors.
Appellants contend the Attorney General's issuance of the Directive,
without complying with the New Jersey Administrative Procedure Act (APA),
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N.J.S.A. 52:14B-1 to -31, renders it invalid and unenforceable. We disagree,
concluding that the Directive falls under the statutory exemptions for inter-
agency and intra-agency communications, as well as the statutory exemption for
statements concerning the internal management of an agency. N.J.S.A. 52:14B–
2. We therefore affirm the action of the Attorney General's issuance of Directive
2018-6 v2.0.
I.
We begin with a review of immigration law and prior Directives issued by
the Attorney General regarding the participation of state, local, and county law
enforcement agencies in the enforcement of federal immigration law.
A. Background on Immigration Law
Under our federal system, the federal government "has broad, undoubted
power over the subject of immigration and the status of aliens," Arizona v.
United States, 567 U.S. 387, 394 (2012), while the "States possess primary
authority for defining and enforcing the criminal law." United States v. Lopez,
514 U.S. 549, 561 n.3 (1995). Pursuant to the federal government's authority in
this area, the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 to 1537,
"establishe[s] a 'comprehensive federal statutory scheme for regulation o f
immigration and naturalization.'" Chamber of Com. of U.S. v. Whiting, 563
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U.S. 582, 587 (2011) (quoting De Canas v. Bica, 424 U.S. 351, 353 (1976)).
This includes regulation of "which aliens may be removed from the United
States and the procedures for doing so." Arizona, 567 U.S. at 396. "Agencies
in the Department of Homeland Security[,]" including Immigration and Customs
Enforcement (ICE), "play a major role in enforcing" the INA. Id. at 397. ICE
is responsible both for "conduct[ing] criminal investigations involving the
enforcement of immigration-related statutes" and "for the identification,
apprehension, and removal of illegal aliens from the United States." Ibid."Removal is a civil, not criminal, matter[,]" over which federal immigration
officials exercise "broad discretion." Id. at 396.
However, "[t]he pervasiveness of federal regulation does not diminish the
importance of immigration policy to the States[,]" which "bear[] many of the
consequences of unlawful immigration." Id. at 397. The powers of the federal
government to regulate immigration, and the State, to regulate criminal conduct,
"intersect when a state or city arrests an individual whom ICE would also like
to apprehend for removal proceedings." City of Phila. v. Att'y Gen. of the U.S.,
916 F.3d 276, 281 (3d Cir. 2019). "Consultation between federal and state
officials is an important feature of the immigration system." Arizona, 567 U.S.
at 411. Various provisions of the INA "specif[y] limited circumstances in which
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state officers may perform the functions of an immigration officer. A principal
example is when the [United States] Attorney General has [pursuant to Section
287(g) of the INA] granted that authority to specific officers in a formal
agreement with a state or local government." Id. at 408 (citing 8 U.S.C. §
1357(g)(1)). These agreements allow state, county, or local law enforcement
officers to perform the "function[s] of an immigration officer in relation to the
investigation, apprehension, or detention of aliens . . . at the expense of the State
or political subdivision[,]" but under the direction and supervision of the United
States Attorney General. 8 U.S.C. § 1357(g)(1) to (3).
Section 287(g) makes clear that it does not require states and localities to
enter into these agreements. 8 U.S.C. § 1357(g)(9). Where such agreements
exist, state law enforcement officers may operate under them only "to the extent
consistent with State and local law." 8 U.S.C. § 1357(g)(1). Other forms of
cooperation contemplated by the INA are also generally voluntary on the part of
states and localities. For example, the INA refers to detainer requests, 8 U.S.C.
§ 1357(d), but "does not authorize federal officials to command state or local
officials to detain suspected aliens subject to removal" nor to command "notice
of a prisoner's release." Galarza v. Szalczyk, 745 F.3d 634, 641 (3d Cir. 2014).
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In short, while state and federal cooperation is important to the
immigration system that Congress has put in place, that system ultimately
entrusts the enforcement of federal immigration laws to federal authorities.
State law enforcement officers are not required to enforce federal immigration
laws, Galarza, 745 F.3d at 644, nor are they permitted to do so except in "limited
circumstances" specified by federal law. Arizona, 567 U.S. at 408.
B. The New Jersey Attorney General's Authority
"As head of the Department of Law and Public Safety, the Attorney
General is the chief law-enforcement officer in the State." In re Carberry, 114
N.J. 574, 577-78 (1989) (citing N.J.S.A. 52:17B-2). "In that capacity, the
Attorney General is required 'to formulate and adopt rules and regulations for
the efficient conduct of the work and general administration of the department,
its officers and employees.'" Id. at 578 (quoting N.J.S.A. 52:17B-4(d)). In
addition, the Criminal Justice Act of 1970, N.J.S.A. 52:17B-97 to -117, provides
that the Attorney General is also responsible "for the general supervision of
criminal justice . . . in order to secure the benefits of a uniform and efficient
enforcement of the criminal law and the administration of criminal justice
throughout the State." N.J.S.A. 52:17B-98. Accordingly, our Supreme Court
has "[r]ecogniz[ed] the Attorney General's role as New Jersey's chief law
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enforcement officer, with the authority to adopt guidelines, directives, and
policies that bind police departments statewide." Paff v. Ocean Cnty.
Prosecutor's Off., 235 N.J. 1, 19 (2018).
C. APA Rulemaking
"Agencies may 'act informally, or formally through rulemaking or
adjudication in administrative hearings.'" Grimes v. N.J. Dep't of Corr., 452
N.J. Super. 396, 404 (App. Div. 2017). Although an agency has discretion to
choose between rulemaking, adjudication, or informal action in discharging its
duties, courts defer to that choice only if "it complies with due process
requirements and the" APA. Nw. Covenant Med. Ctr. v. Fishman, 167 N.J. 123,
137 (2001). Thus, while courts ordinarily defer to an agency's interpretation "of
statutes and regulations within its implementing and enforcing responsibility[,]"
Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001)
(quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102
(App. Div. 1997)), courts will not defer to an agency when interpreting the APA
or determining whether an agency violated the APA.
"An 'administrative rule' can be promulgated only on notice and in
compliance with N.J.S.A. 52:14B-4" of the APA. Woodland Priv. Study Grp.
v. State, 109 N.J. 62, 65 (1987). Specifically, "an agency must provide thirty
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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.'" Doe v. Poritz, 142 N.J. 1, 95 (1995)
(quoting N.J.S.A. 52:14B-4). "No rule . . . is valid unless adopted in substantial
compliance with" these procedures. N.J.S.A. 52:14B-4(d). "The 'essential
purpose of notice and comment opportunities is to reintroduce public
participation and fairness to affected parties after governmental authority has
been delegated to unrepresentative agencies.'" Id. at 73 (quoting Batterton v.
Marshall, 648 F.2d 694, 703 (D.C. Cir. 1980)). Thus, "compliance with the APA
procedures serves the interests of 'fairness and due process.'" Grimes, 452 N.J.
Super. at 407 (quoting Holmdel Builders Ass'n v. Holmdel, 121 N.J. 550, 578
(1990)).
N.J.S.A. 52:14B-2 defines "administrative rule" or "rule" as an
agency statement of general applicability and
continuing effect that implements or interprets law or
policy, or describes the organization, procedure or
practice requirements of any agency. The term includes
the amendment or repeal of any rule, but does not
include: (1) statements concerning the internal
management or discipline of any agency; (2) intra-
agency and inter-agency statements; and (3) agency
decisions and findings in contested cases.
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There are three distinct reasons why formal rulemaking procedures would
not be required before an agency can act: the action may require adjudication
rather than rulemaking; the action may be an "informal action[,]" meaning one
"that is neither adjudication nor rulemaking"; or the action may be exempt from
rulemaking procedures as an internal management, intra-agency, or inter-agency
statement. Woodland Priv. Study Grp., 109 N.J. at 66-68 (citing In re Request
for Solid Waste Util. Customer Lists, 106 N.J. 508, 519 (1987)). Rulemaking
procedures are only required where an agency's action both (1) has the
characteristics of an administrative rule, rather than of informal action or
adjudication, and (2) falls outside of the statutory exceptions for inter- and intra-
agency statements and statements concerning internal management. Grimes,
452 N.J. Super. at 406.
D. 2007 Directive
On August 22, 2007, then New Jersey Attorney General Anne Milgram
issued Law Enforcement Directive No. 2007-3 (the 2007 Directive) to "establish
the manner in which local, county, and State law enforcement agencies and
officers shall interact with federal immigration authorities."
The 2007 Directive required state, county, or local law enforcement
officers to "inquire about [an] arrestee's citizenship, nationality and immigration
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status" during the booking process if the individual was arrested for "any
indictable crime, or for driving while intoxicated." It provided, further, that an
arresting officer "shall notify" ICE if the officer had "reason to believe that the
[arrestee] may not be lawfully present in the United States," unless the County
Prosecutor or Director of the Division of Criminal Justice determined, in
writing, that "good cause exist[ed] to refrain from notifying ICE." The same
notice was required to be given to "the prosecuting authority that will handle the
matter . . . , and to any court officer setting bail or conditions of pretrial release."
While the 2007 Directive acknowledged that "enforcement of immigration
laws is primarily a federal responsibility," and that "[t]he overriding mission of
law enforcement officers in this State is to enforce the state's criminal laws and
to protect the community that they serve[,]" Attorney General Milgram
concluded that the inquiry and notice requirements were warranted, explaining:
[A]fter an individual has been arrested for a serious
violation of State criminal law, the individual's
immigration status is relevant to his or her ties to the
community, the likelihood that he or she will appear at
future court proceedings to answer State law charges,
and the interest of the federal government in
considering immigration enforcement proceedings
against [the] individual whom the State has arrested for
commission of a serious criminal offense. When there
is reason to believe that the arrestee may be an
undocumented immigrant, the arresting agency is
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responsible for alerting federal immigration officials,
the prosecuting agency, and the judiciary.
The 2007 Directive also established standards for state, county, and local
law enforcement agencies and officers regarding their agreements with ICE to
exercise federal immigration authority and "perform[] functions of a federal
immigration officer," pursuant to Section 287(g) of the Immigration and
Nationality Act, 8 U.S.C. § 1357(g). While the 2007 Directive did not prohibit
such agreements, it cautioned that "[t]he exercise of federal immigration
enforcement authority by State, county or local law enforcement officers must
. . . be consistent with, and in support of, their State law enforcement mission."
Moreover, the 2007 Directive placed specific limitations on officers and
agencies operating under Section 287(g) agreements. The 2007 Directive: 1)
prohibited State, county, or local law enforcement officers from exercising
federal immigration "authority under Section 287(g) unless and until the officer
has arrested an individual(s) for violation of an indictable offense, or for driving
while intoxicated, under State law"; 2) required officers to report any inquiry
into an arrestee's immigration status to their supervisors, and provide
documentation of the arrest leading to the inquiry; 3) required monthly
submission of all such reports to the Division of Criminal Justice "to ensure that
immigration enforcement efforts [were] being performed in compliance with all
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applicable State laws, directives, and guidelines[,]" and so that aggregate data
on those efforts could be made "public on an annual basis"; and 4) required that
all Section 287(g) agencies "enter into a written agreement with an appropriate
ICE-approved detention facility or facilities to ensure that there is adequate
space to hold potential federal detainees" before exercising any authority under
a Section 287(g) agreement.
E. The Immigrant Trust Directive
The 2007 Directive remained in effect until November 29, 2018, when
Attorney General Gurbir S. Grewal issued Directive No. 2018-6, which
"repeal[ed] and supersede[d] the provisions of [the 2007 Directive]." Among
other policy changes, Directive No. 2018-6 "required law enforcement agencies
to seek approval from the Attorney General before renewing existing 287(g)
agreements or entering into new ones."
When the Attorney General issued Directive No. 2018-16, "only three
law enforcement agencies in New Jersey – all County Sheriff's Offices –
continued to rely on such agreements." One of them, the Cape May County
Sheriff's Office, entered into a Section 287(g) agreement with ICE on April 10,
2017. Appellants did not include the agreement in the record, but state in their
brief that "[t]he agreement permitted designated corrections officers to identify
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and process for removal any undocumented immigrant who was confined to the
Cape May County Correctional Facility and fell within ICE's civil immigration
enforcement priorities."
On September 27, 2019, the Attorney General issued Directive No. 2018-
6 v2.0, prohibiting State, county, and local law enforcement agencies from
entering into, modifying, renewing, or extending any Section 287(g) agreement,
and further prohibits the "exercise [of] any law enforcement authority pursuant
to a preexisting Section 287(g) agreement." Directive 2018-6 v2.0 establishes
numerous other restrictions and guidelines for State, county, and local law
enforcement operations in relation to federal immigration enforcement. Indeed,
the guidelines are extensive and comprehensive compared to those of the 2007
Directive.
Section II.A of the Directive prohibits New Jersey law enforcement from
stopping, arresting, searching, or detaining any individual based solely on the
individual's "actual or suspected citizenship or immigration status[,] or [any]
actual or suspected violations of federal civil immigration law." This provision
is consistent with the 2007 Directive's prohibition on State, county, or local law
enforcement exercising federal immigration "authority under Section 287(g)
unless and until the officer has arrested an individual(s) for violation of an
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indictable offense, or for driving while intoxicated, under State law." Further,
Section II.A prohibits New Jersey law enforcement from "[i]nquir[ing] about
the immigration status of any individual, unless doing so is: a) necessary to the
ongoing investigation of an indictable offense by that individual; and b) relevant
to the offense under investigation." (emphasis added). This provision, by
contrast to the first, not only repeals the 2007 Directive's inquiry requirement,
but generally prohibits such inquiries.
Subject to certain enumerated exceptions, Section II.B provides:
[N]o state, county, or local law enforcement agency or
official shall provide the following types of assistance
to federal immigration authorities when the sole
purpose of that assistance is to enforce federal civil
immigration law:
1. Participating in civil immigration enforcement
operations.
2. Providing any non-public personally identifying
information regarding any individual.
3. Providing access to any state, county, or local law
enforcement equipment, office space, database, or
property not available to the general public.
4. Providing access to a detained individual for an
interview, unless the detainee signs a written
consent form . . . .
5. Providing notice of a detained individual's
upcoming release from custody, unless the detainee:
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a. Is currently charged with, has ever been
convicted of, has ever been adjudicated
delinquent for, or has ever been found guilty
by reason of insanity of, a violent or serious
offense as that term is defined in Appendix A;
b. In the past five years, has been convicted of
an indictable crime other than a violent or
serious offense, or
c. Is subject to a Final Order of Removal that has
been signed by a federal judge and lodged
with the county jail or state prison where the
detainee is being held.
6. Continuing the detention of an individual past the
time he or she would otherwise be eligible for
release from custody based solely on a civil
immigration detainer request . . . .
Section II.B.6 is subject to the same exceptions as II.B.5, meaning, for example,
that New Jersey law enforcement could continue the detention of an individual
who had previously been convicted of a "violent or serious offense ."
In addition to the "violent and serious offense" exception and Section
II.B's general qualifier that the prohibited activities are only prohibited "when
the sole purpose of that assistance is to enforce federal civil immigration law[,]"
the provisions of both Section II.A and II.B are subject to enumerated
limitations:
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Nothing in Sections II.A and II.B shall be construed to
restrict, prohibit, or in any way prevent a state, county,
or local law enforcement agency or official from:
1. Enforcing the criminal laws of this state.
2. Complying with all applicable federal, state, and
local laws.
3. Complying with a valid judicial warrant or other
court order, or responding to any request authorized
by a valid judicial warrant or other court order.
4. Participating with federal authorities in a joint law
enforcement taskforce the primary purpose of which
is unrelated to federal civil immigration.
5. Requesting proof of identity from an individual
during the course of any arrest or when legally
justified during an investigative stop or detention.
6. Asking an arrested individual for information
necessary to complete the required fields of the
LIVESCAN database (or other law enforcement
fingerprinting database), including information
about the arrestee's place of birth and country of
citizenship.
7. Inquiring about a person's place of birth on a
correctional facility intake form and making risk-
based classification assignments in such facilities.
8. Providing federal immigration authorities with
information that is publicly available or readily
available to the public in the method the public can
obtain it.
9. When required by exigent circumstances, providing
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federal immigration authorities with aid or
assistance . . . .
10. Sending to, maintaining or receiving from federal
immigration authorities information regarding the
citizenship or immigration status, lawful or
unlawful, of any individual. See 8 U.S.C. §§ 1373,
1644.
Additionally, "[n]othing in Section II of this Directive shall apply to law
enforcement agencies that are currently party to an Intergovernmental Service
Agreement (IGSA) to detain individuals for civil immigration enforcement
purposes when they are acting pursuant to such an agreement." IGSAs, unlike
Section 287(g) agreements, are not prohibited under the Directive.
Section V of the Directive sets forth "[c]onsiderations for [p]rosecutors."
For example, Section V.B provides that "[i]n assessing whether to seek pretrial
detention of an arrestee . . . , the prosecutor shall make an individualized
assessment based on the specific facts presented in each case, and shall not
simply assume that a non-citizen presents a risk of flight." Similarly, Section
V.D states that when deciding how to charge a defendant or what sentence to
seek, "[a]s in all cases, . . . prosecutor[s] should be mindful of potential collateral
consequences and consider such consequences in attempting to reach a just
resolution of the case." This is only a broad guideline; "[n]othing in [the]
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Directive shall be construed . . . to limit prosecutorial discretion in reaching a
just resolution of [a] case . . . ."
Section VI.A of the Directive requires New Jersey law enforcement
agencies and officials to "promptly notify a detained individual, in writing and
in a language the individual can understand, when federal civil immigration
authorities request . . . [t]o interview the detainee[,] . . . [t]o be notified of the
detainee's upcoming release from custody[,]" or the "continue[d] det[ention of]
the detainee past the time he or she would otherwise be eligible for release ."
"When providing such notification, law enforcement officials shall provide the
detainee a copy of any documents provided by immigration authorities in
connection with the request"; however, the Directive provides that nothing in it
"shall be construed in any way to create any substantive right that may b e
enforced by any third party." The Directive further states that its provisions are
severable.
F. Objectives of Directive 2018-6 v2.0
The Attorney General explained the rationale for the Directive as follows:
In recent years, the federal government has
increasingly relied on state and local law enforcement
agencies to enforce federal civil immigration law. This
trend presents significant challenges to New Jersey's
law enforcement officers, who have worked hard to
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build trust with our state's large and diverse immigrant
communities.
It is well-established, for example, that
individuals are less likely to report a crime if they fear
that the responding officer will turn them over to
immigration authorities. This fear makes it more
difficult for officers to solve crimes and bring suspects
to justice, putting all New Jerseyans at risk.
It is therefore crucial that the State of New Jersey
makes very clear to our immigrant communities
something that may seem obvious to those of us in law
enforcement: there is a difference between state,
county, and local law enforcement officers, who are
responsible for enforcing state criminal law, and federal
immigration authorities, who enforce federal civil
immigration law.
Put simply, New Jersey's law enforcement
officers protect the public by investigating state
criminal offenses and enforcing state criminal laws.
They are not responsible for enforcing civil
immigration violations except in narrowly defined
circumstances. Such responsibilities instead fall to the
federal government and those operating under its
authority.
Although state, county, and local law
enforcement officers should assist federal immigration
authorities when required to do so by law, they should
also be mindful that providing assistance above and
beyond those requirements threatens to blur the
distinction between state and federal actors and
between federal immigration law and state criminal
law. It also risks undermining the trust we have built
with the public.
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The Attorney General added that "technological advances and changes in federal
immigration enforcement priorities . . . rendered [the 2007 Directive] less
effective" and that the new Directive sought to "ensure that limited state, county,
and local law enforcement's resources are directed towards enforcing the
criminal laws of this state."
On the same day Directive 2018-6 v2.0 was issued, the Attorney General
sent a letter to "All Law Enforcement Chief Executives" explaining the
revisions. The Attorney General stressed that "the revised Directive updates the
list of violent and serious offenses where notice to ICE is permitted," and
provides "that New Jersey's state, county, and local law enforcement agencies
may no longer enter into or operate under 287(g) agreements." The Attorney
General explained further that "claim[s] that . . . 287(g) agreement[s] [are]
necessary to ensure that dangerous individuals are not released 'back on the
streets'" are "simply incorrect" because the Directive "explicitly allows any
state, county, or local law enforcement agency to refer any individual to ICE
who has been charged with a 'violent or serious offense,' a term that includes
murder, rape, arson, and domestic violence crimes."
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II.
Appellants filed this proceeding after first filing a complaint in the United
States District Court for the District of New Jersey, seeking declaratory and
injunctive relief prohibiting defendants from enforcing the Directive. Cty. of
Ocean v. Grewal, 475 F. Supp. 3d 355 (D.N.J. 2020) aff'd 8 F. 4th 176 (3rd Cir.
2021).2 Defendants filed a motion to dismiss, which the District Court granted
on July 29, 2020. 475 F. Supp. 3d at 361. The court rejected appellants' claims
that elements of the Directive were preempted by federal immigration statutes,
finding "no indication that Congress, in enacting the [INA], sought to usurp"
New Jersey's "police power to regulate the conduct of its own law enforcement
agencies . . . . As such, the federal government cannot strong arm the State into
doing its own bidding." Id. at 376. The court declined to exercise supplemental
jurisdiction over appellants' state-law claims, noting that those claims could be
brought in state court. Id. at 386.
Before this court, plaintiffs argue the Directive constitutes an
administrative rule that was required to be promulgated in accordance with APA
rulemaking procedures pursuant to Metromedia, Inc. v. Dir., Div. of Taxation,
2
The court consolidated appellants' action with a similar action filed by the
County of Ocean. 475 F. Supp. 3d at 361.
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97 N.J. 313, 331-32 (1984).3 Plaintiffs further contend that that the Directive
does not fall within any of the statutory exceptions to the required rulemaking
procedures, asserting that it has "a substantial impact on the rights or interests
of the regulated public." Woodland, 109 N.J. at 75.
In Woodland, our Supreme Court defined an "intra-agency statement as
(1) a communication between agency members that (2) does not have a
substantial impact on (3) the rights or legitimate interests of the regulated
public." Id. at 75. The Court explained that while rulemaking procedures are
required "[w]here a legally countenanced right of a party is threatened by an
internal communication of an agency, . . . an interest that cannot be abridged
without rulemaking procedure . . . must ultimately be legitimate, of justifiable
concern." Id. at 74.
3
Pursuant to this argument, appellants contend we must apply the factors set
forth by the Court in Metromedia, 97 N.J. 313, 331–32 (1984), to determine
whether the Directive qualifies as an "administrative rule," as defined by
N.J.S.A. 52:14B–2. However, we conclude that a Metromedia analysis is not
required here, as this case turns on the applicability of the statute's definitional
exclusions from the term "administrative rule." See Poritz (explaining that the
Metromedia factors do not control when the issue concerns the applicability of
the statutory exclusions); N.J. Builders, 306 N.J. Super. at 100 (declining to
apply the Metromedia factors, pursuant to the Court's holding in Woodland,
because the analysis focused on application of the statutory exclusions).
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The Directive satisfies the first requirement of an inter-agency and intra-
agency communication because it was issued to "All Law Enforcement Chief
Executives," and therefore, it qualifies as "a communication between agency
members" or agencies. Id. at 75. Furthermore, the Directive is "intended to
govern the conduct of agency employees, as opposed to members of the
regulated public." N.J. Builders Ass'n v. N.J. Dep't of Env't Prot., 306 N.J.
Super. 93, 102 (App. Div. 1992).
The Directive also satisfies the intertwined second and third requirements
of an inter-agency and intra-agency communication. In dicta, our Supreme
Court stated that internal memorandum regarding prosecutorial discretion is not
an administrative rule, despite its substantial impact. Woodland, 109 N.J. at 74-
75. Further, the Attorney General "must make important choices" on how best
to allocate "limited resources[.]" Id. at 74. By issuing the Directive, the
Attorney General has chosen to ensure that limited state, county, and local law
enforcement resources are directed towards enforcing the criminal laws of this
state rather than federal immigration laws, "except in narrowly defined
circumstances" or where "required to do so by law." In this context, the public's
generalized "interest in the broad policy issues associated with immigration ," is
less a legitimate interest in protecting it from any harms illegal immigrants may
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cause, and more an "interest in frustrating the agency's enforcement
mechanism[,]" which "cannot be said to [be] . . . legitimate." Woodland, 109
N.J. at 74.
III.
The dispositive issue presented by this appeal is whether the Directive
establishes rules that were required to have been promulgated through APA
rulemaking procedures. Appellants do not challenge the substance of the
Directive or the Attorney General's factual findings, or argue that the Directive
is arbitrary, capricious, or unreasonable. Thus, we do not need to examine the
decision-making process that led to the issuance of the Directive.
Appellants argue that the Directive constitutes an administrative rule that
was required to be promulgated in accordance with the APA's rulemaking
procedures, pursuant to Metromedia, 97 N.J. at 331-32. In their reply brief,
appellants assert the Directive does not fall within the statutory exceptions to
the required rulemaking procedures because of its "substantial impact on the
rights or interests of the regulated public." These arguments lack merit.
Statutory Exceptions to APA Rulemaking Procedures
As noted, N.J.S.A. 52:14B-2 provides that the term "'administrative rule'
or 'rule'" as used in the APA "does not include: (1) statements concerning the
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internal management or discipline of any agency; [and] (2) intra-agency and
inter-agency statements." As a result, intra-agency and inter-agency statements,
and statements concerning internal management, are not subject to the APA's
requirement that agencies comply with notice and comment procedures "[p]rior
to the adoption, amendment, or repeal of any rule." N.J.S.A. 52:14B-4(a).
These exceptions allow the executive branch to avoid the administrative burdens
of the notice and comment process and act through more streamlined procedures
where "the underlying purposes of the rulemaking procedural requirements" are
not implicated. Woodland, 109 N.J. at 73.
In Woodland, our Supreme Court defined an "intra-agency statement as
(1) a communication between agency members that (2) does not have a
substantial impact on (3) the rights or legitimate interests of the regulated
public." Id. at 75. The Court explained that while rulemaking procedures are
required "[w]here a legally countenanced right of a party is threatened by an
internal communication of an agency, . . . an interest that cannot be abridged
without rulemaking procedure . . . must ultimately be legitimate, of justifiable
concern." Id. at 74. "The inquiry is whether the agency's interest in streamlined
procedure is outweighed by the importance of the interests that are affected."
Id. at 75. Stated differently:
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[A]n agency order will be deemed an exempt intra-
agency statement to the extent (1) it is intended to
govern the conduct of agency employees, as opposed to
members of the regulated public; (2) any impact on the
regulated public is incidental or unsubstantial; and (3)
that impact is on interests or rights that do not rise to a
level needing the protection afforded by the APA rule-
making procedures.
[N.J. Builders, 306 N.J. Super. at 102.]
Although New Jersey courts have not yet defined an "inter-agency
statement," we conclude that only the first element of the "intra-agency
statement" definition, as set forth in Woodland, would require alteration.
Therefore, we now define the term "inter-agency statement" as set forth in
N.J.S.A. 52:14B-2 as (1) a communication between or among members of
different agencies that (2) does not have a substantial impact on (3) the rights or
legitimate interests of the regulated public. Because the definition is otherwise
identical to that of an "intra-agency statement," we need not determine whether
a directive of the Attorney General that applies to local law enforcement
agencies is an inter-agency or intra-agency communication.
To illustrate the difference between "legitimate" and illegitimate interests,
the Court in Woodland considered the example of "internal agency memoranda
. . . relating to prosecutorial discretion[,]" and concluded that notice and
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comment procedures were not required for such communications. 109 N.J. at
74. The Court reasoned:
Given limited resources, an agency must make
important choices regarding which actions of the
regulated public it should monitor or prosecute. In a
real sense these communications can have a substantial
impact on the regulated public: the memorandum may
ultimately determine who is prosecuted, and knowledge
of the communication might facilitate illegal conduct.
The regulated public cannot be said to have a legitimate
interest in frustrating the agency's enforcement
mechanism, and thus public hearing and notice need not
precede issuance of the internal memorandum.
[Id. at 74-75.]
This distinction, between legitimate and illegitimate interests, is important
because "[t]he 'substantial impact' test alone" sets a low bar and "may not be
sufficient to isolate those internal agency statements that remain immune from
the notice and hearing requirements." Id. at 74. For example, "an internal
agency directive prohibiting agency members from accepting free lunches will
have a 'substantial impact' on those members of the public with an interest in
buying lunch for a regulator[,]" but that interest is "not sufficiently important or
worthy of recognition." Ibid.Recently, we considered challenges to two Attorney General directives
that amended the Internal Affairs Policy and Procedures (IAPP) to require law
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enforcement to publish reports on officer discipline and make public disciplined
officers' names. In re Att'y Gen. Law Enf't Directive Nos. 2020-5 & 2020-6,
465 N.J. Super. 111, 124 (App. Div. 2020), aff'd, 246 N.J. 462 (2021). Noting
a "long-standing view that the Attorney General's law enforcement directives
and guidelines 'are not administrative rules[,]'" we held that the directives fell
within the "statements concerning . . . internal management or discipline"
exception to APA rulemaking. Id. at 159-60 (quoting O'Shea v. Twp. of W.
Milford, 410 N.J. Super. 371, 383 (App. Div. 2009)). We did not apply a
"substantial impact" test or the Metromedia test. Ibid. Our Supreme Court
affirmed. In re Att'y Gen. Law Enf’t Directive Nos. 2020-5 & 2020-6, 246 N.J.
462, 506 (2021). Regarding the claim that the directives "r[a]n afoul of the
APA[,]" the Court "affirm[ed] the judgment of the Appellate Division largely
for the reasons stated in Judge Accurso's thoughtful opinion." Ibid.We acknowledge that it is not an absolute rule that directives and
guidelines issued by the Attorney General are exempt from APA rulemaking
requirements. In Poritz, 142 N.J at 96, the Court concluded that guidelines
issued by the Attorney General pursuant to a sex offender "Community
Notification Law" could not "be considered internal department
communications." The law required "local chief[s] of police to give [members
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of the public] notification of" a registered sex offender's "presence in the
community," and "provide[d] for three levels of notification . . . depending on
the risk of reoffense." Id. at 22 (citing N.J.S.A. 2C:7-7 and N.J.S.A. 2C:7-8(c)).
We agree with the Attorney General that Metromedia does not apply to
the Directive because "an APA exception applies." The Directive is intended to
have wide coverage and concerns a "large segment of the regulated or general
public, rather than an individual or a narrow select group." Metromedia, 97 N.J.
at 331. Section II, for example, establishes standards for law enforcement
interactions with "any individual." Even narrower provisions, such as those
which allow law enforcement to notify ICE of a detainee's release, concern a
broad class of persons, including detainees who "ha[ve] been convicted of [any]
indictable crime" in the past five years, detainees who have at any time been
convicted of a violent or serious offense, and detainees who are subject to a final
order of removal. The Directive applies "generally and uniformly to all similarly
situated persons" and "to operate only in future cases." Ibid. That is, the
Directive does not constitute a determination in a "particular case[,]" but instead,
it provides a set of prospective "general standard[s]" that law enforcement must
follow in all circumstances described by the Directive. Id. at 329.
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Directive 2018-6 v2.0 Qualifies as an Inter- or Intra-agency Statement
We agree with the Attorney General that the Directive is exempt from
rulemaking requirements as an inter- or intra-agency statement, or as a statement
concerning internal management.
The Directive satisfies the first requirement of an inter- or intra-agency
communication because it was issued to "All Law Enforcement Chief
Executives," and therefore, it qualifies as "a communication between agency
members" or agencies. Woodland, 109 N.J. at 75. Furthermore, the Directive is
"intended to govern the conduct of agency employees, as opposed to members
of the regulated public." N.J. Builders Ass'n, 306 N.J. Super. at 102. It is
concerned primarily with the permissible extent of cooperation between New
Jersey and federal immigration authorities, and establishes guidelines for law
enforcement interactions with members of the public, but the Directive in no
way governs the public itself.
Appellants argue, however, that the Directive "more directly" affects the
state's immigrant communities than it does law enforcement agencies. They
contend that the Directive falls outside of the statutory exceptions to rulemaking,
because it "has a substantial impact on the rights and interests of illegal
immigrants[,] . . . as well as the public’s interest in the broad policy issues
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associated with immigration, . . . which [is] . . . . sufficiently important and
worthy of recognition." This argument lack merit.
The liberty interests of illegal immigrants, and the public's interest in
seeing immigration laws enforced, could be analogized to the interests
recognized in Poritz, 142 N.J. at 96, as legitimate: "the offender's liberty interest
[and] the public's interest in the protection of children." This argument is
complicated, however, by the Court's guidance in Woodland, 109 N.J. at 74-75,
that an internal memorandum relating to prosecutorial discretion – that is, one
that makes "choices regarding which actions of the regulated public it should
monitor or prosecute" – is not an administrative rule, despite its substantial
impact. Because such a policy "may ultimately determine who is prosecuted,"
and because knowledge of the policy may "facilitate illegal conduct[,]" id. at
74, one could describe it as impacting the interests later recognized in Poritz,
142 N.J. at 96: "the offender's liberty interest" or the "the public's interest in" its
protection from crime. Nevertheless, the Woodland Court emphasized that
"[t]he regulated public cannot be said to have a legitimate interest in frustrating
the agency's enforcement mechanism . . . ." Woodland, 109 N.J. at 74.
The Directive here is more analogous to an internal memorandum relating
to prosecutorial discretion than it is to the implementation of the specific
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program at issue in Poritz. The Attorney General "must make important
choices" on how best to allocate "limited resources[,]" ibid., and in this case,
has chosen to "ensure that limited state, county, and local law enforcement
resources are directed towards enforcing the criminal laws of this state" rather
than federal immigration laws, "except in narrowly defined circumstances" or
where "required to do so by law." In this context, the public's generalized
"interest in the broad policy issues associated with immigration," is less a
legitimate interest in protecting it from any harms illegal immigrants may cause,
and more an "interest in frustrating the agency's enforcement mechanism[,]"
which "cannot be said to [be] . . . legitimate." Ibid.That characterization of the public's interest applies to the Directive,
considering that state law enforcement's participation in enforcing immigration
laws is, unlike its enforcement of state criminal laws, limited and entirely
optional by design. If an agency's choice to deprioritize the prosecution of
certain offenses – offenses that state law tasks it with prosecuting – is not a
matter of justifiable concern to the public of this state, id. at 74-75, the public's
interest is even slighter where, as here, an agency opts to prioritize enforcement
of laws it is directed to enforce, over those it has not been directed to enforce.
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While the guidance in Woodland regarding prosecutorial discretion is
dicta,4 it illustrates that the ultimate "inquiry is whether the agency's interest in
streamlined procedure is outweighed by the importance of the interests that are
affected." Id. at 75. This means asking not simply whether a legitimate interest
is implicated, but whether the agency action burdens, abridges, or
"jeopardize[s]" those interests, id. at 71 (quoting Batterton, 648 F.2d at 708),
such that "the protection afforded by the APA rule-making procedures" applies.
N.J. Builders Ass'n, 306 N.J. Super. at 102.
Here, the liberty interests of illegal immigrants do not outweigh the
Attorney General's interest in using a streamlined procedure to adopt a policy
that furthers, rather than jeopardizes, those interests. This is particularly
relevant to Section VI.A of the Directive, which appellants charge "is intended
solely to assist" illegal immigrants in evading federal authorities. Section VI.A,
requiring law enforcement officers to notify detained individuals when federal
immigration authorities request to interview them, to be notified of their
4
We note that, in this State, Supreme Court dicta is binding. As the Court
explained in State v. Dabas, 215 N.J. 114, 136-37 (2013), "[T]he prosecutor's
office is not at liberty to disregard a pronouncement of this Court, even if that
pronouncement is properly characterized as dictum. (citations omitted).
Appellate and trial courts consider themselves bound by this Court's
pronouncements, whether classified as dicta or not."
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upcoming release, or to continue their detainment, is unique among the
Directive's provisions. Whereas the Directive's other key provisions concern
prosecutorial discretion and enforcement priorities (Section II, limiting New
Jersey law enforcement agencies' participation in immigration enforcement;
Section III, prohibiting section 287(g) agreements; and Section V providing
guidance to prosecutors), Section VI.A creates an entirely new procedural
protection for detainees. The notification requirement still only "govern[s] the
conduct of agency employees," N.J. Builders Ass'n, 306 N.J. Super. at 102, and
cannot be said to substantially impact or expand detainees' rights, as it is not
enforceable by them.
Furthermore, while Section VI.A may have the effect of "protect[ing]
illegal immigrants from federal immigration authorities[,]" appellants'
contention that this was the Attorney General's purpose lacks support in the
record. Rather, the Attorney General determined that it is "crucial" to "make[]
very clear to our immigrant communities" that "there is a difference between
state, county, and local law enforcement officers, who are responsible for
enforcing state criminal law, and federal immigration authorities, who enforce
federal civil immigration law." Section VI.A furthers that objective. By
notifying detainees that "federal civil immigration authorities request" to
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interview them, be notified of their upcoming release, or continue their
detainment, New Jersey law enforcement officers communicate that there is a
"distinction[] between state and federal actors."
In this way, Section VI.A is akin to the Attorney General's adoption of
policies making police discipline more transparent. Both go beyond internal
agency workings or communications to require information be given to the
public, or in this case, specific members of the public. Both do so with the aim
of enhancing public trust. Both impact weighty interests of significant social
concern. But neither jeopardizes the rights or interests of affected members of
the public. For this reason, the Directive can be characterized as an inter-agency
or intra-agency communication and is therefore exempt from APA rulemaking.
Affirmed.
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