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Delaney v. Penza

New Jersey Superior Court, Appellate Division


Decided: July 14, 1977.

JAMES AND HELEN DELANEY, PLAINTIFFS-RESPONDENTS,
v.
ANDREW PENZA ET AL., DEFENDANTS-APPELLANTS. HELEN DELANEY AND JAMES DELANEY, PLAINTIFFS-RESPONDENTS, V. ANDREW PENZA ET AL., DEFENDANTS-APPELLANTS. HELEN DELANEY AND JAMES DELANEY, PLAINTIFFS-RESPONDENTS, V. 466 HIGHLAND AVENUE TENANTS ASSOCIATION ET AL., DEFENDANTS-APPELLANTS

Lynch, Milmed and Antell.

Per Curiam

[151 NJSuper Page 457]

In these actions charging defamation and malicious interference with business relations, we granted defendants 466 Highland Avenue Association and tenants leave to appeal from orders of the Law Division precluding their representation in the litigation by the Department of the Public Advocate, Division of Public Interest Advocacy. We also stayed all proceedings pending disposition of the appeal.

Plaintiffs James and Helen Delaney, landlords of the apartment building at 466 Highland Avenue, Orange, seek damages against defendant 466 Highland Avenue Tenants Association (Association), its president Andrew Penza, 61 tenant members and others, including a local newspaper, for alleged slander, libel and malicious interference with business relations. The tenants claim that the statements complained of are constitutionally privileged. The litigation springs from a long struggle between the Delaneys and the tenants grounded on alleged deficiencies in the operation and maintenance of the apartment building.

Shortly after the last suit was started, the Department of the Public Advocate (Department), Division of Public Interest Advocacy (Division), appeared in the litigation on behalf of the Association and tenants.*fn1 Plaintiffs then moved for an order directing the Department and Division to withdraw

The trial judge, in his opinion reported at 148 N.J. Super. 64 (at 67) (Law Div. 1977), found "that under the statutory definition of 'public interest' there is no public interest involved in the facts of this case." He concluded that

Since the Public Advocate may not, under the statute creating the office, litigate a private matter which has no public interest, the court hereby directs the Department of Public Advocate, Division of Public Interest Advocacy, to withdraw from this representation. The court further directs those defendants represented by this Division to obtain private counsel or proceed pro se , forthwith. [at 67-68]

At the outset we note that plaintiffs, in moving to have the Department and Division withdraw their representation of the Association and tenants, pursued the wrong remedy. Their (plaintiffs') claim, that in determining to represent these defendants the Department exceeded its statutory authority, was reviewable exclusively by direct appeal to this court. R. 2:2-3(a)(2). See Johnson v. New Jersey State Parole Board , 131 N.J. Super. 513 (App. Div. 1974), certif. den. 67 N.J. 94 (1975), and cases cited therein. See also, Edmond v. Dept. of the Public Advocate , 137 N.J. Super. 82 (App. Div. 1975), certif. den. 69 N.J. 445 (1976); Princeton First Aid and Rescue Squad, Inc. v. Division on Civil Rights , 124 N.J. Super. 150 (App. Div. 1973), certif. den. 63 N.J. 555 (1973).

Pfleger v. N.J. State Highway Dept. , 104 N.J. Super. 289 (App. Div. 1968), and Colon v. Tedesco , 125 N.J. Super. 446

[151 NJSuper Page 459]

(Law Div. 1973), relied upon by plaintiffs, are inapposite. Neither involved, as here, the exercise of broad discretionary authority. As this court observed in Princeton First Aid and Rescue Squad, Inc. v. Division on Civil Rights, supra, Pfleger

[124 N.J. Super. at 152; emphasis supplied]

And, in regard to the complaint in Colon v. Tedesco, supra , the Law Division noted:

The essence of the instant complaint is the failure of the agency or its officers to perform the allegedly mandatory, statutory function. [125 N.J. Super. at 452; emphasis supplied]

Plaintiffs' failure to seek relief in the appropriate forum "is of course of no consequence at this stage of the proceedings, R. 1:13-4(b), and we, accordingly, proceed to review the matter as if brought before us by appeal under R. 2:2-3(a)(2)." Johnson v. N.J. State Parole Board, supra , 131 N.J. Super. at 520.

Plaintiffs argue that "The Division of Public Interest Advocacy has no statutory authority to provide representation to these defendants"; that nowhere in the Department of the Public Advocate Act of 1974, L. 1974, c. 27, N.J.S.A. 52:27E-1, et seq. , "can authorization be found to permit the Public Advocate to defend individuals in a law suit, be it tortious, libelous or contractural [ sic ]"; that "The Public Advocate's power depends on whether a governmental action or inaction is involved," and that in any event "the Advocate's decision to represent these defendants is arbitrary and unreasonable." We find no merit in any of these contentions. From our analysis of the statute we perceive no legislative

[151 NJSuper Page 460]

intent to restrict the authority of the Public Advocate in the manner suggested by plaintiffs.

The following sections of the Department of the Public Advocate Act of 1974, prescribing functions, powers and duties of the Public Advocate and the Division of Public Interest Advocacy in the Department, are particularly pertinent here:

N.J.S.A. 52:27E-4. The Public Advocate, as administrator and chief executive officer of the department, shall:

e. Institute or cause to be instituted such legal proceedings or processes consistent with the rules governing the courts of New Jersey and the practice of law therein as may be necessary properly to enforce and give effect to any of his powers or duties;

h. Perform, exercise and discharge the functions, powers and duties of the department through such divisions as may be established by this act or otherwise by law;

N.J.S.A. 52:27E-28. There is hereby established in the Department of the Public Advocate the Division of Public Interest Advocacy under the supervision of the Director of the Division of Public Interest Advocacy, who shall be an attorney-at-law of this State.

N.J.S.A. 52:27E-29. The Division of Public Interest Advocacy may represent the public interest in such administrative and court proceedings, other than those under the jurisdiction of the Division of Rate Counsel pursuant to Article II herein, as the Public Advocate deems shall best serve the public interest.

N.J.S.A. 52:27E-30. 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 in a broad class of such citizens.

N.J.S.A. 52:27E-31. 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. If the Public Advocate determines that there are inconsistent public interests involved in a particular matter, he may choose to represent one such interest based on the considerations in this section, to represent no interest in that matter, or to represent one such interest through the Division of Public Interest

[151 NJSuper Page 461]

Advocacy and another or others through other divisions of the department or through outside counsel engaged on a case basis.

N.J.S.A. 52:27E-32. The Division of Public Interest Advocacy may represent and protect the public interest by:

a. Intervening in or instituting proceedings before any department, commission, agency or board of the State leading to an administrative adjudication or administrative rule as defined in section 2 of P.L. 1968, c. 410 (C. 52:14B-2).

b. Instituting litigation on behalf of a broad public interest when authorized to do so by the Public Advocate.

In construing the statute care must be taken not to limit interpretation to a single phrase in a subsection.*fn2 As pointed out in 2A Sutherland, Statutory Construction (4 ed. Sands , 1973), ยง 46.05 at 56:

The practical inquiry in litigation is usually to determine what a particular provision, clause, or word means. To answer it one must proceed as he would with any other composition -- construe it with reference to the leading idea or purpose of the whole instrument. A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Consequently, each part or section should be construed in connection with every

[151 NJSuper Page 462]

other part or section so as to produce a harmonious whole. Thus it is not proper to confine interpretation to the one section to be construed.

See also, South Shore Nat'l Bank v. Donner , 104 N.J. Super. 169, 173-174 (Law Div. 1969).

We are entirely satisfied that the broad authority conferred upon the Public Advocate to determine in his "sole discretion" whether "to represent or refrain from representing the public interest in any proceeding," N.J.S.A. 52:27E-31, is clearly sufficient to sustain his decision to have the Division represent the defendants 466 Highland Avenue Tenants Association and tenants in this "private" litigation. The statutory language does not restrict the Division's representation to plaintiffs.*fn3 Beyond this, it is obvious that had the Legislature intended to confine the Division's powers of litigation to matters before or appeals from State administrative agencies, as plaintiffs suggest, it would have undoubtedly so provided. See limited powers of other Divisions in the same Department, viz. , the Division of Rate Counsel, see N.J.S.A. 52:27E-18, and the Division of Citizens Complaints and Dispute Settlement, see N.J.S.A. 52:27E-33, et seq.

Plaintiffs argue that "[t]he public interest arises only when there is governmental action or inaction." We perceive no such restriction on the term. It is to be given the comprehensive definition prescribed in the legislation, i.e. ,

The orders under review are reversed.


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