By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Appeals & Appellate Law Attorney

One of the aspects to our constitutional system is that the judiciary alone does not have the power to enforce its own orders.  It has no police force or agents tasked in making sure its will is fulfilled.  Instead, it often relies on the power of the executive branch and various government agencies to carry out its commands.  This creates a possible flaw for the power of the judiciary.  If the Appellate Division declares an executive agency’s regulations to be unconstitutional or not in line with the power granted to the agency by the Legislature, and orders the agency to come up with new regulations, then what happens if the agency refuses to comply?

Like at the trial level, a litigant who wins relief at the appellate level can motion to enforce his or her rights under court rule 2:9-1(a) demanding the other party to comply with the court’s decision, as held under In re Plan for Abolition of Council on Affordable Housing.  The standard to enforce the prevailing party’s rights, which is a motion made under court rule 1:10-3, requires three different elements to prove.  First, it must show that the respondent, which would be the person not following the order in this case, is acting in such a way that violates the appellate court’s decision.  The court can establish this through affidavits and documents that show the respondent not to be in compliance.

The next element in establishing this motion is to show the respondent is capable of compliance.  One of the defenses to this type of motion is that the decision of the appellate court is ambiguous enough to not know what the obligations of the respondent are.  Should a motion to enforce be filed in this type of situation, the respondent should cross-move for clarification from the court asking just what its decision means.  Finally, the last element to establish the motion is to show the respondent lacks a compelling reason not to comply.  Stating that the case was wrongly decided or would result in a bad precedent is not a compelling reason.

Should these three elements be proven, the appellate court then will fashion an equitable remedy that seeks to enforce what was held in the decision.  But think back to what I said earlier.  What remedy can be fashioned that will assert the power of the judiciary in the face of a non-compliant executive agency?  I can think of no better remedy fashioned that in the case of In re Adoption of N.J.A.C. 5:96, where the New Jersey Supreme Court held that the regulations passed by the Council on Affordable Housing were invalid and directed the agency to make new regulations.  When the agency failed to do this, a motion for litigant’s rights was filed with the Supreme Court.  The Court held the agency failed to comply with its direction and stated that because no administrative regulations were in place, any regulation directing aggrieved parties to file an action with the agency in lieu of filing an action in Superior Court were non-existent.  It therefore held that those who would normally seek relief through the agency were permitted to seek relief in Superior Court pending the formulation of new regulations.  The remedy created direct judicial relief for the people when the executive agency failed to do its duty without involving the other branches of government.  That’s what made the remedy so powerful for the Court in the end.

To discuss your NJ Appeals & Appellate Court matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.