On appeal from final decision of the Attorney General.
Fritz, Ard and Gaulkin. The opinion of the court was delivered by Ard, J.A.D. Fritz, P.J.A.D. (concurring). Gaulkin, J.s.c. (temporarily assigned) (dissenting).
This is an appeal by the State Health Planning and Coordinating Council (Council) from a decision of the Attorney General denying the Council legal representation at a hearing before the Health Care Administration Board.
Established by state law, the Council is responsible for coordinating the health planning activities throughout the State, and its duties include assessing whether proposed
medical facilities meet statewide standards to deliver health care services. As part of its coordination responsibility it reviews all certificate of need applications by hospitals and like institutions. The aforesaid certificate of need process requires that applications for construction of new health services by health care facilities be filed with the Department of Health. N.J.S.A. 26:2H-6; N.J.A.C. 8:33-1.3. The Council reviews the application in light of statutory criteria to determine if it meets statewide needs and standards. Its determination to approve or deny the project is communicated to the Commissioner of Health. The Commissioner may approve or deny the application, but if a determination is made contrary to the Council's recommendation, the Council and the applicant have a right to a fair hearing pursuant to N.J.S.A. 26:2H-9. This hearing is held before a hearing examiner of the Health Care Administration Board.
The Council in the normal course of its business was considering applications of Cooper Medical Center (Cooper) and Our Lady of Lourdes Hospital (Lourdes) for a certificate of need with respect to the establishment of Perinatal Level III facilities.*fn1 The Commissioner of Health, prior to a recommendation by Council, announced informal approval of the Lourdes' application for a certificate of need. The Council, after several months of debate and discussion, voted to recommend the issuance of a certificate of need to Cooper. This resolution had been preceded by the same recommendation from the local Health Systems Agency. The Commissioner then announced that she was overturning the Council's recommendation and granted conditional approval to Lourdes. The Council then applied for a "fair hearing" pursuant to N.J.S.A. 26:2H-9.
In a separate action Cooper moved for leave to appeal to this Court. Pursuant to R. 2:11-2 the court granted leave to appeal and determined the appeal on the papers submitted on the motion and oral argument. We vacated the decision of the State Commissioner of Health granting a certificate of need to Our Lady of Lourdes because of the Commissioner's failure to grant the applicants a fair hearing in accordance with N.J.S.A. 26:2H-9. The applications were remanded to the Department of Health for a hearing pursuant to the aforementioned statute.
In preparation for the hearing the Council requested the Attorney General to appoint an attorney to represent it at the hearing. The Council alleged it was entitled to such an appointment pursuant to N.J.S.A. 52:17A-4(e) and (g) or N.J.S.A. 52:17A-13. The Attorney General informed the Council that he could not represent it at the hearing since his office already represented the Commissioner. He also refused to appoint special counsel concluding that the Council's position on appeal was identical to Cooper's. The pertinent language contained in the letter is as follows:
It is not feasible for the office of the Attorney General to represent the Council on an appeal, since it is already representing the position of the Commissioner of Health at that hearing and ultimately may be called upon to advise the Health Care Administration Board. Therefore, any legal representation of the Council would have to be by the appointment of Special Counsel pursuant to N.J.S.A. 52:17A-13 with my approval and that of the Governor.
I have concluded that this would not be an appropriate occasion for the appointment of Special Counsel. Cooper Medical Center has taken its own appeal to the Health Care Administration Board and it appears that it will argue the same position before the HCAB as that of the Council. Therefore, it would not seem appropriate to retain a second attorney at public expense to argue precisely the same position as will be argued anyway by the attorney for Cooper Medical Center. Rather, it is our opinion that the interests of the Council in conveying its views to the HCAB can be adequately served by the preparation of written comments regarding the Council's own recommendations and the contrary decision of the Commissioner.
The Council took exception to this and wrote to him protesting the decision. Through its chairman, the Council stated, among other things:
It is of no consequence that Cooper Medical Center may have a similar position to the SHPCC. The SHPCC may ultimately take a different position in this matter and in terms of presenting our point of view, the SHPCC has the right to appeal under the law and is exercising it.
Thereafter, the Council was advised that the Attorney General felt his original determination appropriate. The hearing has been stayed pending this appeal.
Before us the appellant alleges: (1) the Council requires legal representation to meaningfully present its position at the mandated hearing; (2) the Attorney General's discretion is limited by the common sense interpretation of N.J.S.A. 26:2H-9, and (3) the appeal is not interlocutory.
Initially, we do not believe that an application for leave to appeal pursuant to R. 2:5-6(a) is necessary. We conceive this case to be a review of the final decision of a state officer and consequently is before us as of right. R. 2:2-3(a) (2).
The statutes upon which the Council relies are N.J.S.A. 52:17A-4(e) and (g) as well as N.J.S.A. 52:17A-13. In pertinent part they provide:
The powers and duties of the Division of Law shall be the powers and duties now or hereafter conferred upon or required of the Attorney General, * * *:
e. Act as the sole legal adviser, attorney or counsel, notwithstanding the provisions of any other law, for all officers, departments, boards, bodies, commissions and instrumentalities of the State ...