The Staff Judge Advocate (SJA) finds the Study / Report to be legally sufficient in that it complies with the directive of the New Jersey Legislature set forth in L. 2004, c. 300 (S 2309 and A 3019). In addition, the SJA finds the recommendations to be consistent with the findings and the findings to be supported by the evidence considered by the committee as well as the general knowledge of the committee members not subject to dispute.
In response to a request from The Adjutant General regarding the legal validity of the structure of the NJNMJC, the Office of the Attorney General, Division of Law, rendered a legal opinion concluding that under New Jersey law it is permissible for the NJNMJC to serve as the command group for both the Naval Militia and the State Guard. The opinion also concluded that as a matter of state law the structure of the NJNMJC does not prohibit the Naval Militia from obtaining available federal resources. However, the opinion did not answer federal questions of law and added that the federal government may reach a different conclusion regarding whether the structure would comply with the statutory requirements for obtaining federal resources. The opinion stated that a structure where the Naval Militia is not in a joint command with the State Guard would enhance the likelihood of obtaining federal resources and that any change in structure is a policy decision and not a legal question under state law. The SJA concurs with that opinion.
The SJA recommends promulgation of draft regulations concerning the administration, discipline, training and standards of the NJNMJC. The SJA cautions that the regulations be consistent with and reflect the policy found in applicable statutes and regulations: Naval Militia - 10 U.S.C. 311, 10 U.S.C. 7851 through 7854, N.J.S.A. 38A:1-1 and 38A:-3, N.J.S.A. 38:8-1, and the State Guard - 32 U.S.C. 109, N.J.S.A.. 38A:1-1 and 38A:1-3, and National Guard Regulation (NGR) 10-4.
The SJA also advises that since both the Naval Militia and the State Guard are considered components of the “organized militia of New Jersey,” N.J.S.A. 38A:1-1(a) and 38A:1-3(a), the New Jersey statutes that pertain to the “militia” or “organized militia” (e.g., N.J.S.A. 38A, Chapter 4 - Personnel of the Organized Militia - General Provisions; Chapter 5, Officers; Chapter 6, Enlisted Members), would apply to the Naval Militia and the State Guard.
Regarding the State Guard, the SJA further advised that the regulations should not fall outside the general scope of the mission and organization outlined in NGR 10-4 (State Defense Forces). For example, NGR 10-4, paragraph 5a, states that “the mission of a State Defense Force, as conceived by these regulations, is to provide an adequately trained and organized State military reserve force which would be under the exclusive control of the governor. It would be capable of accomplishing those State emergency responsibilities normally assigned to the National Guard, when that force is federalized or otherwise not available to the needs of the governor. In addition, they would be available to perform any such missions as the governor directs, within Federal and State laws concerned.”
Regarding State Guard organization, NGR 10-4, paragraph 6a, states that the operations and activities of a State Defense Force (State Guard) “are supplemental to the state mission of the National Guard during peacetime and are considered to be of a constabulary nature and not that of combat forces.” Paragraph 6 of the regulation provides that “priority for any future Federal support” will be given to those states whose State Guard “is considered most appropriate to accomplish the general missions outlined” in the regulation (paragraph 6b). The SJA advises that any regulations should comply with the guidance set forth in NGR 10-4.
In a final review of this report, the Attorney General found that the Naval Militia and the State Guard may not be called to active or inactive duty to provide aid to localities in circumstances which may threaten or are a danger to the public health, safety and welfare. (N.J.S.A.38A:3-6.1 See Appendix C) A statutory change will be needed for the NJNMJC to fully participate in the homeland security mission as a force multiplier and as envisioned in this report.