[129 NJSuper Page 241] This action has been submitted to the court on a limited stipulation of facts and legal argument. Plaintiffs Humane Society and Sierra Club are nonprofit
organizations having many members who are interested in and knowledgeable about the conservation of fish and game in the State, and many members who use and enjoy the State's wildlife, parks, waters and open lands. These plaintiffs, along with the individual plaintiffs, wish an opportunity to participate in the decision-making process of defendant Fish and Game Council. Plaintiff corporations are not now members of the New Jersey State Federation of Sportsmen's Clubs and have not requested membership because of policy decisions and personal beliefs.
Plaintiffs question the composition of the Fish and Game Council as provided for in N.J.S.A. 13:1B-24. While they do not question the qualifications set forth in the statute, the thrust of the attack is to the origin of the nominations. The issue presented to the court is whether the process of appointing members to the Fish and Game Council is violative of the equal protection clause of the Fourteenth Amendment of the Federal Constitution and the concept of equal protection implicit in the New Jersey Constitution of 1947.
The part of the statute which is being questioned, N.J.S.A. 13:1B-24, provides as follows:
There shall be within the Division of Fish and Game, a Fish and Game Council which shall consist of eleven members, each of whom shall be chosen with due regard to his knowledge of and interest in the conservation of fish and game. Each member of the council shall be appointed by the Governor, with the advice and consent of the Senate. Three of such members shall be farmers, recommended to the Governor for appointment to the council by the Agricultural Convention held pursuant to the provisions of article two of chapter one of Title 4 of the Revised Statutes; six of such members shall be sportsmen, recommended to the Governor for appointment to the council by the New Jersey State Federation of Sportsmen's Clubs; and two of such members shall be commercial fishermen * * *.
Plaintiffs' contention is that the aforementioned provisions limit the prospective appointees of the Fish and Game Council to three categories of persons, i.e., either sportsmen, farmers or commercial fishermen. Simply stated, the question
is whether the State may exclude from consideration for appointment a person, otherwise qualified, because he is not a sportsman, farmer or commercial fisherman.
Addressing itself first to the question of which standard of equal protection is to be applied in the case at bar, the court must consider whether to apply the traditional standard under which a legislative classification "must be sustained unless it is 'patently arbitrary' and bears no rational relationship to a legitimate governmental interest," Frontiero v. Richardson, 411 U.S. 677, 683, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973), or the more stringent standard which may be termed "the compelling state interest standard." Under this second standard the essential inquiry would be whether the exclusions are "necessary to promote a compelling state interest." Kramer v. Union Free School District, 395 U.S. 621, 627, 89 S. Ct. 1886, 23 L. Ed. 2d 583 (1969). Kramer, supra, dealt with the classifications affecting the right to vote, and in that matter the Supreme Court applied the more stringent compelling state interest standard.
In Kramer the court said:
Accordingly, when we are reviewing statutes which deny some residents the right to vote, the general presumption of constitutionality afforded state statutes and the traditional approval given state classifications if the Court can conceive of a "rational basis" for the distinctions made are not applicable [citations]. The presumption of constitutionality and the approval given "rational" classifications in other types of enactments are based on an assumption that the institutions of state government are structured so as to represent fairly all the people. However, when the challenge to the statute is in ...