On certification to the Superior Court, Law Division, and Department of the Public Advocate.
For affirmance -- Chief Justice Wilentz, and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. For reversal -- None. The opinion of the Court was delivered by Clifford, J.
This appeal challenges the constitutionality of the "Department of the Public Advocate Act of 1974," N.J.S.A. 52:27E-1 to -47. Plaintiffs, a township and two of its resident taxpayers, assert two constitutional infirmities in the statute: (1) the discretionary authority delegated to the Public Advocate is so broad as to violate the separation of powers provision of the New Jersey Constitution, Article 3, paragraph 1; and (2) the Public Advocate spends public funds for private purposes, in violation of Article 8, section 3, paragraph 3. In addition, plaintiffs seek reimbursement from the Public Advocate pursuant to N.J.S.A. 52:27E-31 for legal expenses incurred in the defense of a lawsuit prosecuted in part by the Public Advocate. We reject plaintiffs' contentions and uphold the constitutionality of the Public Advocate Act. We likewise deny the claim for monetary damages based on litigation expense.
These actions were brought in the wake of our decision in Southern Burlington County NAACP v. Township of Mt. Laurel, 67 N.J. 151, appeal dismissed and cert. denied, 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975) (hereinafter Mt. Laurel I), which directed the defendant Township to modify its exclusionary zoning ordinance. After Mt. Laurel I the Public Advocate commenced representation of Township's adversaries in that case, both on its appeal to the United States Supreme Court and in a second action to force compliance with Mt. Laurel I. Southern Burlington County NAACP v. Township of Mt. Laurel, 161 N.J. Super. 317 (Law Div.1978), certif. granted, 84 N.J. 413 (1980) (hereinafter Mt. Laurel II).
On May 2, 1977, a few days before the Mt. Laurel II trial, Mt. Laurel's attorneys asked the Public Advocate, defendant Stanley C. Van Ness, to engage outside counsel for the Township, reasoning that conflicting public interests were involved in the Mt. Laurel II litigation. Under N.J.S.A. 52:27E-31, the Public Advocate may appoint outside counsel to accommodate a conflicting public interest.
On May 19, 1977, the Public Advocate denied the request for legal assistance because of the absence of conflicting public interests. Van Ness stated that his office was seeking only to enforce an order of the New Jersey Supreme Court and that violators of such an order -- that is, the Township -- could not be deemed to be serving a public interest as required by the statute.
After a lengthy trial, the court generally upheld the Township's ordinances. Mt. Laurel II, supra. Some two months later, and over 16 months after their original request, the Township's attorneys sent a "notice of claim" letter to the Public Advocate demanding payment of $108,000, the amount of the Township's legal expenses for the defense of Mt. Laurel II. Counsel claimed these fees were incurred because the Public Advocate arbitrarily and unreasonably refused to appoint independent counsel to represent Mt. Laurel's interest in the Mt. Laurel II litigation. Van Ness denied this second request as untimely.
Plaintiffs' attorneys thereupon appealed from this administrative determination, R. 2:2-3(a), and simultaneously commenced suit in the Superior Court, Law Division, on behalf of the Township and the taxpayer plaintiffs, seeking the relief set forth above. The trial court dismissed plaintiffs' claims. We ordered direct certification of plaintiffs' appeals pending unheard in the Appellate Division. 82 N.J. 291 (1980); R. 2:12-1.
Plaintiffs direct their attack at the Division of Public Interest Advocacy, N.J.S.A. 52:27E-28 to -32, one of the six divisions comprising the Department of the Public Advocate.*fn1 The Public Interest Advocacy Division has been described as "the nation's
first and only government-sponsored public interest law firm", 1977 Annual Report, New Jersey Department of the Public Advocate 1 (1978).
The purpose of the Division is to represent the "public interest" in administrative and court proceedings. N.J.S.A. 52:27E-29. This representation includes the power to institute litigation as well as to intervene in proceedings already commenced. N.J.S.A. 52:27E-32.
The Public Advocate has been delegated the authority to determine the public interests it will support and the proceedings in which it will support them.
The Public Advocate shall have sole discretion to represent or refrain from representing the public interest in any proceedings. He shall consider in exercising his discretion the importance and the extent of the public interest involved and whether that interest could 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 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-31.]
The "public interest" as used in the statute is defined as
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-30.]
This necessarily broad definition is supplemented by more detailed administrative regulations.
Decision to represent particular public interest.
(a) The division may not represent the public interest without the approval of the Public Advocate. The Public Advocate shall have sole discretion to represent or refrain from ...