For affirmance -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For reversal -- None. The opinion of the court was delivered by Pashman, J. Conford, P.J.A.D., Temporarily Assigned, concurring in result.
[73 NJ Page 365] In State v. Leonardis, 71 N.J. 85 (1976) (hereinafter " Leonardis "), this Court considered the validity of pretrial intervention programs adopted by Bergen and Hudson Counties pursuant to R. 3:28.*fn1 In that opinion we fully outlined the history of pretrial intervention (PTI) and the policy considerations which led to the adoption of R. 3:28. Using the context of the specific cases before us, we augmented the procedures mandated by the rule, holding that a prosecutor who refuses to divert a defendant into PTI must furnish a record of the reasons for his decision. 71 N.J. at 114. Equally important, we required PTI programs to be implemented according to formal, uniform guidelines, 71 N.J. at 97-98, 121, and instituted procedures for judicial review to assess both the overall operation of the Court-implemented program and individual decisions made pursuant to these procedures. 71 N.J. at 109.
The appeals in that case were brought by three individuals, Frank Leonardis, Stephen Rose and Frederick Strychnewicz. All three had been accused of drug-related offenses and had been denied admission into PTI. Leonardis and Rose sought admission into the Bergen County program. Leonardis had been charged with possession of a controlled dangerous substance (marijuana), in violation of N.J.S.A. 24:21-19(a)(1), and Rose had been charged with the same offense and with conspiracy to possess and distribute a controlled dangerous substance in violation of N.J.S.A. 24:21-24. We held that by precluding from consideration for PTI all defendants charged with "heinous offenses," among which was the sale of a controlled dangerous substance, the Bergen County criteria for admission into PTI failed to conform to the rehabilitative purposes of R. 3:28. 71 N.J. at 112. Accordingly, we reversed the Appellate Division and remanded the appeals to the trial court to determine whether diversion would be appropriate in light of our opinion. 71 N.J. at 113.
Strychnewicz had been denied admission into the Hudson County program. He had been charged with possession of and possession with intent to distribute hashish, a controlled dangerous substance, in violation of N.J.S.A. 24:21-20(a) and 24:21-19(a). We affirmed the trial court's grant of his motion for an order compelling the prosecutor to give reasons for refusing to consent to PTI, and remanded for proceedings in accordance with our opinion.*fn2 71 N.J. at 119
Following our decision in Leonardis, the Attorney General filed notices of motions to intervene as amicus curiae, to obtain an extension of time in which to file a petition for clarification and for a stay of judgment. On September 8, 1976, we granted the motion for clarification and rehearing
to consider the Court's authority to order diversion of a defendant into PTI when the prosecutor refuses to consent to diversion. We directed the parties to consider whether, in light of the doctrine of separation of powers, the Court had the power, either before or after indictment, to divert a defendant over the prosecutor's objection pursuant to either its rule-making or adjudicatory power. On the same day, September 8, 1976, we entered an order adopting guidelines governing the operation of PTI programs. 99 N.J.L. at 865 (September 30, 1976).
In addition to the briefs submitted by the Hudson County Prosecutor, the Public Advocate and the Attorney General, the Court entertained amicus curiae briefs from the Trustees of the Bergen County Bar Association and Judge Ervan Kushner, Presiding Judge of the Municipal Court of Paterson. We granted the Passaic County Prosecutor's motion to rely upon the brief he filed in Leonardis.
CONSTITUTIONALITY OF R. 3:28
A. Pretrial Intervention as a Court Rule
Although rehearing was limited to the issue of the Court's power to divert a defendant when the prosecutor refuses to consent to diversion, the answer to this question rests, in large part, upon the scope of our constitutionally authorized rule-making, Art. VI, § II, par. 3, and judicial powers, Art. VI, § I, par. 1.
Pretrial intervention was adopted in this state pursuant to Court rule. The Court's power to promulgate rules stems from the constitutional grant of such authority in N.J. Const. (1947) Art. VI, § II, par. 3, which states in pertinent part:
The Supreme Court shall make rules governing the administration of all courts in the State and, subject to the law, the practice and procedure in all such courts.
The rule-making authority has also been widely recognized as falling within courts' inherent powers. See Joiner & Miller, "Rules of Practice and Procedure: A Study of Judicial Rule-Making, 55 Mich. L. Rev. 623, 624 (1957); Pound, "Procedure Under Rules of Court in New Jersey," 66 Harv. L. Rev. 28, 37 (1952); Vanderbilt, Minimum Standards of Judicial Administration 132 (1949); Wigmore, "All Legislative Rules for Judiciary Procedure are Void Constitutionally," 23 Ill. L. Rev. 276, 278 (1928).
In Leonardis we held that PTI was "a procedural alternative to the traditional system of prosecuting and incarcerating criminal suspects," 71 N.J. at 92, and thus within the practice and procedure over which our rule-making power extends. Apart from the rule's goal of aiding in the early rehabilitation of offenders, we also noted that it solved many of the procedural problems facing our judicial system. We cited one author for the proposition that
diversion serves to dispose quickly and inexpensively of cases which are more effectively handled without full criminal disposition. This permits the court to focus its attention and concentrate its resources on those cases where deterrence and rehabilitation can best be achieved by ordinary criminal processing. [Note, "Addict Diversion: An Alternative Approach for the Criminal System," 60 Geo. L.J. 667, 673 (1972)]
pretrial intervention provides one means of addressing the problems of congestion and backlog of cases which currently confront our prosecutors, public defenders and courts. To the extent that a PTI program averts the costs of processing these cases, it also permits a more efficient use of the limited resources available to law enforcement authorities.
As a procedural alternative to trial, PTI falls within the practice and procedure over which the Court has control through its rule-making powers.
Concerns over the constitutionality of PTI under the separation of powers*fn3 doctrine stem most directly from the second goal of that program -- aiding in the early rehabilitation of offenders. While we did not expressly address ourselves to this issue in Leonardis, we are of the opinion that R. 3:28 does not encroach upon the powers delegated to the legislative or executive branches of government. This conclusion is based both on the nature of the separation of powers doctrine and on the judicial power vested in the Supreme Court.
We have previously adverted to the constitutional procedural power vested in the Supreme Court. Coupled with that is "[t]he judicial power" entrusted to the Court. N.J. Const. (1947) Art. VI, § I, par. 1. Inherent in that judicial power is the judiciary's authority to fashion remedies once its jurisdiction is invoked.*fn4 See Adams v. McCorkle, 13 N.J. 561, 564 (1953). This is not to say that the Court can deprive the Legislature of its right to determine that certain types of conduct constitute substantive crimes. State v. Naglee, 44 N.J. 209, 226 (1965); State v. Holroyd, 44 N.J. 259, 265 (1965). But we have held that: "[t]he fact that the Legislature has acted to provide a remedy does
not mean that the judicial branch is limited to the boundary lines of strict legislative expression in fashioning or denying remedies in a particular case." State v. Carter, 64 N.J. 382, 392 (1974). In State v. Carter we made it clear that:
The court's power to fashion remedies in the realm of criminal justice is unquestioned. At common law, courts of criminal jurisdiction had the power to suspend sentences. In re Baer, 140 N.J. Eq. 571, 573 (E. & A. 1947). Probation has a deep-rooted common law basis. The enactment of a statute relating to a particular aspect of probation does not preempt the entire field. Lathrop v. Lathrop, 57 N.J. Super. 532, 538-539 (App. Div. 1959). It follows that a statute neglecting to mention probation would certainly not preempt the court's ability to provide for it.
We view PTI as a remedial aspect of a criminal proceeding.
It is important to note that the separation of powers doctrine does not require an absolute division of powers among the three branches of government, or as Chief Justice Vanderbilt stated, "division of government into three . . . watertight compartments." Vanderbilt, The Doctrine of Separation of Powers and Its Present-Day Significance 50 (1953). See also, In Re Investigation Regarding Ringwood Fact Finding Commission, 65 N.J. 512, 519 (1974); David v. Vesta Co., 45 N.J. 301, 324 (1965); Massett Building Co. v. Bennett, 4 N.J. 53, 57 (1950); Robinson v. Cahill, 67 N.J. 333, 377 (1975) (Mountain, Clifford, JJ., dissenting), cert. den. sub nom., Klein v. Robinson, 423 U.S. 913, 96 S. Ct. 217, 46 L. Ed. 2d 141 (1975). The aim of the constitutional provision is not to prevent cooperative action among the three branches of government, but to guarantee a system of checks and balances. This notion of a blending of powers is expressed in various opinions by both this Court and the United States Supreme Court, interpreting the State and Federal Constitutions. In Brown v. Heymann, 62 N.J. 1 (1972), Chief Justice Weintraub explained:
It is well to repeat that while the doctrine of separation of powers is designed to prevent a single branch from claiming or receiving inordinate power, there is no bar to cooperative action among the branches of government. On the contrary, the doctrine necessarily assumes the branches will coordinate to the end that government will fulfill its mission.
This same theme -- approving cooperative effort among the three branches of government -- was expressed by Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153 (1952): "[w]here the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government." 343 U.S. at 635, 72 S. Ct. at 870, 96 L. Ed. at 1199 (Jackson, J., concurring). And Judge Gibbons of the Third Circuit recently described the doctrine as calling for "[a] dispersal of decisional responsibility in the exercise of each power, as distinguished from a separation of powers. . . ." Gibbons, "The Interdependence of Legitimacy," 5 Seton Hall L. Rev. 435, 436 (1974). See also, Davis, Administrative Law Treatise § 1.09 at 68 (1958) ("The danger is not blended power. The danger is unchecked power.").
The applicability of the doctrine of separation of powers to the Court's rule-making powers has been discussed by both Chief Justice Vanderbilt and Dean Roscoe Pound. Writing for the Court in Winberry v. Salisbury, 5 N.J. 240 (1950), cert. den. 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950), the Chief Justice noted that the separation of powers did not prevent the Court from exercising the full sweep of its rule-making powers. He concluded that some overlapping of functions is necessary if the Government is to perform effectively, and denied that the separation of powers doctrine curtailed the Court in its rule-making function. He stated that "[w]hatever confusion there may be as to the nature of the rule-making power stems from an oversimplification of the doctrine of separation of powers." 5 N.J. at 251. Dean Pound reiterated this
thought when he commented upon the Winberry decision, stating that "[a] mistaken extreme analytical idea of the separation of powers long stood in the way of leaving procedure to rules of court and persists in the attacks upon the decision in Winberry v. Salisbury." Pound, "Procedure Under Rules of Court in New Jersey," supra, 66 Harv. L. Rev. at 33. See also, Sutherland Statutory Construction § 3.27 (3 ed. rev. 1972). Accordingly, the separation of powers doctrine should not be construed to prevent the Court from adopting rules which have some effect on matters which involve executive and legislative functions.
Pretrial intervention presents precisely the type of cooperative action which the foregoing cases have approved. While PTI serves certain rehabilitative goals which may fall also within the legislative realm, it hardly can be said to impair the "essential integrity of one of the great branches of government." Massett Building Co. v. Bennett, supra, 4 N.J. at 57. In fact, the program is specifically tailored to respect the Legislature's judgment. Guideline 3(i) requires authorities in charge of diversion to pay deference to the legislative decision involved in evaluating the seriousness of a given act. By instructing the program director and the prosecutor to consider the nature of the offense, the guidelines follow the Legislature's lead in determining, generally, whether a class of offenders should be diverted into PTI. In addition, Guideline 3(h) specifically requires the court, the program director and the prosecutor to consider the eligibility criteria and guidelines for exclusion enacted by the Legislature where the defendant is being considered for pretrial intervention pursuant to the Controlled Dangerous Substances Act, N.J.S.A. 24:21-27.
While we recognize that PTI may have an impact upon the substantive rights and liabilities of a defendant, this fact alone is not enough to warrant a different outcome. In Busik v. Levine, 63 N.J. 351 (1973), Chief Justice Weintraub, writing for a plurality of the Court, underlined the
difficulties in defining the distinction between procedure and substance. He emphasized that
[i]t is simplistic to assume that all law is divided neatly between "substance" and "procedure." A rule of procedure may have an impact upon the substantive result and be ...