Kolovsky, Lynch and Allcorn. The opinion of the court was delivered by Kolovsky, P.J.A.D.
In one of these consolidated appeals -- A-1519-73, in which leave to appeal was granted by the Supreme Court -- appellant The Howard Savings Institution challenges: (1) the propriety of a number of the interrogatories served by the Director of the Division on Civil Rights (Director) in the course of his preliminary investigation of a complaint alleging racial discrimination filed by Barbara Sims, a former employee of Howard, and (2) the Director's denial of Howard's motion to take the deposition of Barbara Sims and to serve interrogatories upon her. The latter motion was made under the Division's discovery rule, N.J.A.C. 13:4-8.2, and was denied by the Director "on the ground that a finding of probable cause or no probable cause has not been made to date [the Director noting that] if a finding of no probable cause is ultimately indicated, discovery at this juncture will have been a waste of all parties' resources."
In the other appeal (A-186-73), Howard attacks the validity of N.J.A.C. 13:4-8.2, contending that it was entitled to the discovery it sought "as a matter of right."
Preliminarily, it will be helpful to briefly review the procedures mandated by the Law Against Discrimination, N.J.S.A. 10:5-1 et seq., in case a verified complaint charging a discriminatory employment practice is filed with the Director.
On receipt of the complaint the Director (acting "for the Attorney General, in his place and with his powers," N.J.S.A. 10:5-8(d)) is required to cause an investigation to be made. N.J.S.A. 10:5-14. In connection with that investigation the Director may, among other things, "conduct such discovery procedures which may include the taking of interrogatories and oral depositions as shall be deemed necessary by the [Director] in any investigation." N.J.S.A. 10:5-8(i);
If the Director determines "after such investigation that probable cause exists for crediting the allegations of the complaint" he is to seek to eliminate the unlawful discrimination by conference, conciliation or persuasion. N.J.S.A. 10:5-14. "In case of failure so to eliminate such practice or discrimination, or in advance thereof if in his judgment circumstances so warrant," the Director is to serve on the respondent a notice requiring it to answer the charges at a hearing to be held at a designated time and place. N.J.S.A. 10:5-15.
The respondent may file a verified answer and may appear, with or without counsel, at the scheduled hearing at which testimony under oath is to be taken and transcribed. "The case in support of the complaint" is to be presented by the Division's attorney -- although, in the Directors' discretion, the complainant and his counsel may also participate -- and the respondent may submit testimony. N.J.S.A. 10:5-16. At the conclusion of the hearing the Director is required to make findings, and if he finds the charges substantiated, may proceed to take specified remedial action. N.J.S.A. 10:5-17.
Although the statute, by its terms, provides only for discovery by the Director -- both in connection with the investigation and with the hearing if one is held, N.J.S.A. 10:5-8(i) -- N.J.A.C. 13:4-8.2, a rule adopted by the Attorney General pursuant to the authority granted by N.J.S.A. 10:5-8(g) to adopt "suitable rules and regulations to carry out the provisions of the [Law Against Discrimination N.J.S.A. 10:5-1 et seq.]" provides:
(a) The Director may allow any party on motion to take depositions, or to serve interrogatories upon any other party in the case, whenever he shall deem it necessary for the fair presentation of a case, and he shall determine such terms and conditions as are appropriate.
(b) The Director may issue such subpoenas as he deems necessary to aid the ...