On appeal from a decision of the Public Advocate.
Matthews, Kole and Milmed. The opinion of the court was delivered by Milmed, J.A.D.
[169 NJSuper Page 406] The single issue in these consolidated appeals is the propriety of the Public Advocate's decision to institute suit on behalf of himself, the Morris County Fair Housing Council and the Morris County Branch of the National Association for the Advancement of Colored People, as plaintiffs, against 27 Morris County municipalities challenging the legality of their land use plans and ordinances and seeking, among other things, injunctive and declaratory relief. The complaint in that action in lieu of prerogative writs is currently pending in the Law Division and, in essence, alleges that defendants, each a developing municipality, have adopted land use plans and ordinances which arbitrarily exclude or substantially hinder the development of housing within their borders for low and moderate-income families, in violation of the mandate of Southern Burlington Cty.
The named appellants*fn1 herein seek (1) to have us review "the factors considered by the [Public Advocate] in determining that his intervention was necessary" in the Law Division action, and (2) to have us set aside the Public Advocate's decision to institute that litigation. Pursuant to R. 2:5-4(b), the Assistant Commissioner of the Department of the Public Advocate filed with this court a statement of the items comprising the record on appeal, listing (1) the complaint filed in the Law Division action, and (2) an affidavit of Stanley C. Van Ness, the Public Advocate, dated December 19, 1978. Apparently deeming the statement inadequate, appellants moved to compel the Public Advocate "to produce the factual record upon which [he] concluded that a public interest existed which would not be adequately represented without [his] intervention," and "to supplement the record on appeal by the taking of additional evidence pursuant to R. 2:5-5(b)." We denied that motion. The discovery sought was, in the circumstances, entirely inappropriate. See Dunlop v. Bachowski , 421 U.S. 560, 572-574, 95 S. Ct. 1851, 44 L. Ed. 2d 377, 389-390 (1975), and cf. State v. Mitchell , 164 N.J. Super. 198, 202 (App. Div. 1978).
While agreeing that the decision of the Public Advocate to institute the litigation is subject to judicial review, see Delaney v. Penza , 151 N.J. Super. 455, 458-459 (App. Div. 1977), and cases cited therein, and cf. Dunlop v. Bachowski, supra , the parties disagree as to the proper standard of review. The Public Advocate argues that the role of this court must be limited to a review of the complaint filed in the Law Division and his affidavit of December 19, 1978, "to determine whether it evinces a good faith effort to fulfill the Advocate's statutory responsibilities." He maintains that "justice only
requires judicial intervention to protect the public in limited circumstances where the Advocate's action is utterly baseless and arbitrary on the face of the complaint itself." He suggests that our review be limited to determining whether his "action is so irrational or so patently abusive as to constitute his decision a violation of his public trust." Appellants ask us to fashion a standard of review "as circumstances dictate and the public interest requires." They urge that "justice and fundamental fairness require at least a threshold determination by the courts as to the propriety of Public Advocate's actions." They contend that if we accept "the position of the Public Advocate regarding the limits of his authority, the statute conferring such authority must be struck down as unconstitutional," since it would then violate "the fundamental constitutional principle that all legislative delegation be carefully limited" or circumscribed. Finally, they suggest that "[b]ecause of the paucity of information provided by the Public Advocate," this court "cannot determine the legitimacy of [his] decisions leading up to the institution of suit against the municipalities," and we must, therefore, "declare the challenged decision of the Public Advocate null and void or, at the very least, require [him] to provide substantiation for his acts."
In his affidavit of December 19, 1978 the Public Advocate asserts: that he authorized the filing of the lawsuit against the 27 municipalities pursuant to the authority conferred upon him by N.J.S.A. 52:27E-32(b), part of the Department of the Public Advocate Act of 1974, N.J.S.A. 52:27E-1 et seq.; that in doing so he "conscientiously and in good faith considered the importance and extent of the public interest involved and whether that interest would be adequately represented without the action of" the Department of the Public Advocate; that he "determined that the issues involved were imbued with a highly significant public interest" as set forth in the complaint which was filed, "affecting a broad class of citizens of this State"; that he "determined that the lawsuit had ample factual and legal support"; that
in reaching his determination to institute suit he had numerous discussions with his legal staff; that his staff had "assessed the land use regulations" of each of the municipalities in Morris County; that "[t]he housing situation in several counties, including Morris, was in fact analyzed regarding the zoning of vacant developable land, present and future population, income, present and future employment and the amount, type, value and cost of housing," and that
In considering whether the public interest involved would be adequately protected without the action of my Department, I carefully weighed and balanced many factors including the nature of the proofs needed to establish a cause of action, and the resources and expertise available to me, to other public advocacy groups and to our potential plaintiffs. I was aware of the resources otherwise available without the action of my Department because members of my staff had made personal inquiry of advocacy groups and our potential plaintiffs regarding their ability to litigate. I concluded that the complexity of litigating a lawsuit against 27 municipalities and the resources available required the representation of my Department because the public interest involved would not otherwise be adequately represented. Moreover, I also determined that the interests involved were of such overwhelming public significance as to justify the legal involvement of my Department.
Several 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 ...