Plaintiff landlords instituted actions sounding in libel, slander and malicious interference with their business against a tenants' association, its individual members, a newspaper and its managers. The complaints allege that at various times between December 25, 1973 and June 26, 1975, defendants wrote letters, posted notices and caused newspaper articles to be published, all of which contained tortious descriptions of plaintiffs and their business practices. The answers contain general and particular denials, and aver, among other things, that the material is true or constitutionally privileged as fair comment made without malice. Certain of these defendants have counterclaimed for malicious prosecution in one of the suits.
The Department of the Public Advocate, Division of Public Interest Advocacy, has undertaken to defend the association and its individual members. Plaintiffs moved for an order to direct the withdrawal of that office as attorneys representing these private citizens on the ground that the Department of the Public Advocate has exceeded its authority by becoming involved in this private litigation, contrary to law.
N.J.S.A. 52:27E-1 et seq. establishes the Department of the Public Advocate and by Article 4 establishes the Division of Public Interest Advocacy. N.J.S.A. 52:27-E-31 grants the following powers to the Public Advocate:
The Public Advocate shall have sole discretion to represent or refrain from representing the public interest in any proceeding. He shall consider in exercising his discretion the importance and the extent of the public interest involved and whether that interest would be adequately represented without the action of the department. * * * [Emphasis supplied]
The significant term for the purpose of this motion is "public interest."
The affidavit of the Public Advocate in opposition to the motion quotes the statutory language, supra , and avers his belief that the Department's representation of these defendants is appropriate. This affidavit is completely conclusory and contains no fact or circumstances to support a claim that the defense of this case represents the "public interest." While the court concludes that this affidavit is insufficient to meet plaintiffs' argument that the action of the Public Advocate here is arbitrary, it has permitted a broader range of argument.
In its briefs the Division argues that the questions involved contain "a public interest" of constitutional proportion and that the Public Advocate's decision to represent these parties is not arbitrary.
The Department cited O'Regan v. Schermerhorn , 25 N.J. Misc. 1 (Sup. Ct. 1946), and Kugler v. Romain , 58 N.J. 522 (1971). Neither is of assistance to the Division, both are clearly distinguishable. O'Regan involved the defense of the grand jury system, obviously a clear matter of public interest. Kugler involved a class of persons clearly affected by an unlawful act and was an evident involvement of public interest.
N.J.S.A. 52:27E-30 contains the following language:
As used in this act, public interest shall mean an interest or right arising from the Constitution, decisions of court, common law or other laws of the United States or of this State, inhering in the citizens of this State or a broad class of such citizens. [Emphasis supplied]
This matter is a private dispute. The Division argues that the public interest at stake here is the constitutional right of free speech guaranteed by the First Amendment of the United States Constitution to this tenant group and, by extension, to all tenant groups in this State. The issues are simple. If a jury finds that the comments or publications were not made or published by ...