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Fair Housing Council Inc. v. New Jersey Real Estate Commission

Decided: May 6, 1976.

FAIR HOUSING COUNCIL, INC., A NON-PROFIT NEW JERSEY CORPORATION, LEONCIA PORTER AND MARTIN M. FRIEDMAN, CITIZENS AND TAXPAYERS OF THE STATE OF NEW JERSEY, AND STANLEY C. VAN NESS, PUBLIC ADVOCATE OF THE STATE OF NEW JERSEY, PLAINTIFFS-APPELLANTS AND CROSS-RESPONDENTS,
v.
NEW JERSEY REAL ESTATE COMMISSION, AN AGENCY OF THE STATE OF NEW JERSEY; AND THE STATE OF NEW JERSEY, ITS OFFICERS, AGENTS AND EMPLOYEES, DEFENDANTS-RESPONDENTS AND CROSS-APPELLANTS



Matthews, Lora and Morgan.

Per Curiam

Plaintiffs challenge the statutory requirement that five of the seven members of the defendant New Jersey Real Estate Commission must be licensed real estate brokers with at least ten years' experience. N.J.S.A. 45:15-5.*fn1 Fair Housing Council is a nonprofit corporation organized to seek and promote equal housing opportunities in Bergen County. Leoncia Porter and Martin M. Friedman are officers of the Fair Housing Council. The action is also brought by the Public Advocate.

Count 1 of the complaint alleges that the statutory restrictions for membership on the Commission improperly curtail plaintiffs' rights to be appointed to the Commission and to have their views as nonbrokers "become the prevailing philosophy of the Commission," thus violating equal protection of the law. Plaintiffs, in count 2, sue as members of the public who desire to have their interests fully represented

on the Commission and allege an inherent conflict of interest in "allowing industry representatives to set enforcement policies and priorities for that industry by obtaining a majority vote on the Commission which regulates it." It is their position that the restriction on nonindustry representation violates equal protection and constitutes an arbitrary delegation of public power to a private industry, in violation of plaintiffs' due process rights. Count 3 challenges the requirement that certain Commission members be licensed brokers and have ten years' experience, alleging that a smaller proportion of individuals of racial minority backgrounds possess the 10 years' experience as brokers than the proportion of minority group individuals in the general population, thus violating equal protection concepts.

The trial judge granted defendants' motion to dismiss for failure to state a claim on which relief can be granted as to counts 1 and 2 only. Plaintiffs' motion for leave to appeal the partial dismissal was granted, as was defendants' motion for leave to cross-appeal from the trial judge's refusal to dismiss as to count 3.

Plaintiffs contend that the trail judge erred in dismissing counts 1 and 2 and that the case is justiciable. They assert that the dismissal on the basis of the pleadings and the motion to dismiss is in contravention of Two Guys from Harrison, Inc. v. Furman , 32 N.J. 199 (1960). We disagree.

The remand for trial ordered in that case was obviously bottomed upon the doubts which even the majority of the Supreme Court entertained concerning the rationale of the merchandise classifications within the New Jersey Sunday Closing Law which proscribed the sale of certain goods on Sunday while permitting the sale of other goods. We do not construe Two Guys to require an evidentiary hearing whenever, as here, a constitutional challenge is directed toward a legislative enactment. In their brief in support of their motion for leave to appeal plaintiffs represented that they proposed to present at trial:

Expert testimony by public administration specialists on the efficacy of self-regulation and an analysis of the effect of industry domination of the commission on its performance with regard to the promulgation of regulations protecting consumers, establishment of enforcement priorities, inducing racial minority entrance into the industry, public criticism of the industry, etc.

and the transcript of the argument before the trial court reveals that plaintiffs wanted "to develop a lot of strong discovery" concerning the statutory qualifications for appointment.

However, the only function of the trial judge was to determine whether, as a matter of law, there existed a "conceivable state of facts" supporting the regulatory system which the Legislature had chosen. Wilson v. Long Branch , 27 N.J. 360, 377 (1958); cert. den. 358 U.S. 873, 79 S. Ct. 113, 3 L. Ed. 2d 104 (1958); Reingold v. Harper , 6 N.J. 182, 196 (1951). The judicial function is a limited one -- to determine whether it is possible to conclude that the legislative decision is without rational basis. Stated in another way, one who attacks a legislative enactment must negate every conceivable basis which may reasonably support the legislative action. Jamouneau v. Harner , 16 N.J. 500, 515 (1954); cert. den. 349 U.S. 904, 75 S. Ct. 580, 99 L. Ed. 1241 (1955); N.J. Restaurant Ass'n v. Holderman , 24 N.J. 295, 300-302 (1957); Indep. Electr., etc., Assn. v. N.J. Bd. of Exam'rs. etc. , 48 N.J. 413 (1967).

It is settled that with respect to qualifications for office holding, the Legislature may prescribe qualifications which reasonably relate to the specialized demands of an office, whether that office be elective or appointive. Alongi v. Schatzman , 57 N.J. 564, 577 (1971); Kohler v. Barnes , 123 N.J. Super. 69, 83 (Law Div. 1973). But see, Humane Soc. of U.S. v. N.J. State Fish and Game , 129 N.J. Super. 239 (Ch. Div. 1974), certif. granted 69 N.J. 398 (1975), which held that the Legislature could ...


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