For reversal -- Chief Justice Hughes, Justices Mountain, Sullivan, Clifford and Schreiber and Judge Conford. For affirmance -- Justice Pashman. The opinion of the Court was delivered by Clifford, J. Pashman, J. (dissenting).
This case presents a challenge, on equal protection and due process grounds, to the constitutionality of N.J.S.A. 13:1B-24. That enactment sets forth the qualifications and recommendation procedures for appointment to the Fish and Game Council, an appointive eleven member body within the Division of Fish, Game and Shell Fisheries of the Department of Environmental Protection. The trial court (which heard the case on what it called "a limited stipulation of facts and legal argument"), in a formal opinion later clarified by a supplemental letter to counsel and subsequent order, held the statute unconstitutional, 129 N.J. Super. 239 (Ch. Div. 1974). While defendants' appeal was pending in the Appellate Division, this Court granted certification directly to the Chancery Division, 69 N.J. 398 (1975). We conclude the statute survives the constitutional attack made here and therefore we reverse.
The Fish and Game Council is invested with certain regulatory powers aimed at protecting and developing an
adequate supply of fish and game for recreational and commercial purposes. These powers are expressed primarily by the Council's determinations as to when and where in the state hunting and fishing shall take place, and which fresh water fish, game birds, game animals, and fur bearing animals may be taken and in what numbers. The wildlife thus regulated are those animals which are the focus of the sports of hunting and fishing.*fn1 In addition, the Council supervises a program of wildlife propagation, the expenses of which are supported by fees for hunting and fishing licenses paid for by sportsmen and commercial fishermen.
Plaintiffs are two non-profit organizations, the Humane Society, New Jersey Branch, and the Sierra Club, and two individuals who are taxpayers and citizens of New Jersey. They contend that the Fish and Game Council membership statute is constitutionally defective because it enumerates three classes of appointees to the Council -- sportsmen, farmers, and commercial fishermen -- and excludes from appointment any person who is not recommended to the Governor by either the State Agricultural Convention or the New Jersey State Federation of Sportsmen's Clubs (hereafter Sportsmen's Federation).
The statutory provisions for membership and appointment are as follows:
13:1B-24. Fish and Game Council; members; terms.
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.
It is stipulated that the individual plaintiffs, the members of the Humane Society, New Jersey Branch, and the Sierra Club are all interested in and knowledgeable about the conservation of fish and game. As the statute indicates, although sponsorship by the Sportsmen's Federation and the State Agricultural Convention is essential to appointment to the Fish and Game Council, membership in those organizations is not. Plaintiffs enjoy the state's lands and wildlife for purposes other than hunting, fishing, and farming. For personal and policy reasons they cannot or will not become affiliated with or seek membership in the Sportsmen's Federation, nor do they at all suggest that they qualify, by occupation or otherwise, as farmers.*fn2 Plaintiffs contend, moreover, that any such affiliation would not serve to give them an effective voice in making or becoming the subject of recommendations to the Governor. In fact, the State conceded at oral argument that as a practical matter all appointees to the Council have been members of either the Sportsmen's Federation or the Agricultural Convention.
The essence of plaintiffs' challenge is that they are practically barred from participating in the Fish and Game Council's decisions which affect plaintiffs' recreational and educational activities. They characterize their exclusion from the ranks of those eligible for appointment as a denial of equal protection. Additionally, they contend that the statutory delegation of the power of appointment to a private organization such as the Sportsmen's Federation violates due process. The trial court's opinion upheld plaintiffs' position and ruled that a person otherwise qualified may not statutorily be excluded from appointment to the Fish and Game Council on the grounds that he or she is not either a sportsman, a farmer, or a commercial fisherman. 129 N.J. Super. at 246. By the order following this formal opinion and supplemental letter, referred to above, the trial judge also declared unconstitutional those provisions of N.J.S.A. 13:1B-24 which channel appointments to the Council through the Sportsmen's Federation and the Agricultural Convention. Finally, he enjoined defendants from acting pursuant to the membership statute, with the result that the terms of five of the eleven Council members have expired and are being filled by holdover appointees.
It must be stressed here that plaintiffs have not alleged malefaction on the part of the Council members, past or present, nor has the inherent subject of their activities -- namely, hunting and fishing in their recreational and commercial aspects -- come under attack. Nor do plaintiffs condemn the qualifications the statute articulates for appointment to the Council, for they agree Council members should be chosen "with due regard to [their] knowledge of and interest in the conservation of fish and game." What rankles is the selection process, which operates so that the individual plaintiffs and the members of the organizational plaintiffs, all of whom possess the statutory qualifications for appointment, are excluded.
The trial court correctly applied to the Council membership statute the minimum scrutiny, rational basis test, which looks to whether a state of facts exists that can reasonably justify the legislative scheme. Salyer Land Co. v. Tulare Lake Basin Water Storage District, 410 U.S. 719, 93 S. Ct. 1224, 35 L. Ed. 2d 659 (1973). There the Supreme Court rejected an equal protection challenge directed against provisions in the California Water Code which established voter qualifications for electing the directors of water storage districts in the state. Only landowners were eligible to vote, and the votes were apportioned according to the assessed valuation of the land. The classification was found acceptable despite the fact that it impinged on the franchise, because landowners as a class bore the entire burden of the costs of the water district and California "could rationally conclude that they, to the exclusion of residents, should be charged with responsibility for [the district's] operation." 410 U.S. at 731, 93 S. Ct. 1231, 35 L. Ed. 2d at 668.
Here, as in Sayler, a particularized unit of government is implicated and the persons who achieve office do not have plenary powers. The Fish and Game Council is a specialized body, with statutorily prescribed duties and statutory limits on its powers and activities. Its members serve by appointment, not by election. Access to the Council cannot be said to be entwined with the fundamental right to vote, which would call for this Court to use the stricter, close scrutiny standard of review and would rebut the presumption of validity the statute now enjoys. Bullock v. Carter, 405 U.S. 134, 92 S. Ct. 849, 31 L. Ed. 2d 92 (1972); Kramer v. Union Free School District, 395 U.S. 621, 89 S. Ct. 1886, 23 L. Ed. 2d 583 (1969).
The burden, then, is on plaintiffs to demonstrate that the impact upon them of the Fish and Game Council's decisions is so significant and substantial as to render a statutory scheme which effectively bars them from appointment to the Council patently arbitrary and unreasonable. Only
upon such a showing can their non-membership in this specialized body assume the dimensions of a ...