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Public Service Electric and Gas Co. v. Rodriguez

Decided: August 7, 1984.


On appeal from New Jersey Department of the Public Advocate.

Fritz, Furman and Deighan. The opinion of the court was delivered by Fritz, P.J.A.D.


The sole question involved in this appeal is whether the Public Advocate is statutorily authorized to intervene in a federal regulatory matter. Public Service Electric and Gas Company (PSE & G) insists he may not and seeks relief here, citing jurisdiction in R. 2:2-3(a)(2) "in that the Public Advocate's decision to intervene in the [Nuclear Regulatory Commission] proceeding is a final decision of a state administrative agency or officer." We are satisfied that the challenge lacks merit.

The particular factual circumstances of the matter are not significant. On publication of a notice in the Federal Register stating that the Nuclear Regulatory Commission (NRC) would consider an application of PSE & G and Atlantic City Electric

Company (ACE) for a facility operating license for the Hope Creek Generating Station, the Department of the Public Advocate filed a motion with the NRC for admission as a party-intervenor and for a public hearing. It was that "final decision" which prompted PSE & G, on its own behalf and that of ACE, to bring this appeal.*fn1

Both parties attack the statute with studied rigidity, zeroing in on the particular sections which support their respective positions.

For instance, PSE & G insists that the Public Advocate may only act through one of the divisions in the department, N.J.S.A. 52:27E-4h, pointing out that a deputy assigned to the Division of Rate Counsel signed the motion, and argues further that the Division of Rate Counsel is limited by N.J.S.A. 52:27E-18 to State (as contrasted with Federal) proceedings only. The Public Advocate responds that he may integrate functions within the department, N.J.S.A. 52:27E-4j, in order to organize and coordinate the work of the department, N.J.S.A. 52:27E-4i, toward the end of accomplishing his responsibility to "best serve the public interest," N.J.S.A. 52:27E-29, as that interest is defined in N.J.S.A. 52:27E-30 and entrusted to his sole and broad discretion by N.J.S.A. 52:27E-31. PSE & G counters with the assertion that if the principal responsibility lies with the Division of Public Interest Advocacy, its jurisdiction is limited to State matters by the plain language of N.J.S.A. 52:27E-32, at least as far as intervention in an administrative matter is concerned.

These positions point up the fact that the statute itself, while clear enough in the isolated sections, contains conflicts. Our duty in such case is to resolve those conflicts by ascertaining the intent of the Legislature as derived from the Act as a whole. In Clifton v. Zweir, 36 N.J. 309, 323 (1962) Justice Hall described our task and the way to accomplish it by seeking "the sense of the situation." He cautioned:

Judicial resolution of such matters must be guided by only one principle: legislative intent. The recent language of this court in State v. Provenzano, 34 N.J. 318, 322 (1961), although describing the construction of a single statute, is pertinent here: "The goal of the interpretative process is the intent of the Legislature * * * All rules of construction are subordinate to that obvious proposition." Turon v. J. & L. Construction Co., 8 N.J. 543, 557 (1952) uses this language: "The reconciliation of apparently conflicting statutes, judged by the letter alone, to conform to the spirit of the legislation as a whole is a common exercise of the judicial interpretative function." Since ascertainment of intent is necessarily a matter of reconstruction and has elements of fiction in it, a court's realistic approach should be, as a learned contemporary scholar phrases it, to try "to make sense out of the legislation, so far as text and context may allow." Llewellyn, The Common Law Tradition: Deciding Appeals 529 (1960).

We cannot solve problems of this kind merely by mechanically selecting and applying a canon or maxim of statutory construction and mouthing it as the reason for the result reached. While they represent "an accepted conventional vocabulary," which lawyers and judges traditionally utilize in argument and opinion, speaking in "a diplomatic tongue," there are, as Llewellyn emphasizes, two opposing canons on almost every point and "to make any canon take hold in a particular instance, the construction contended for must be sold, essentially, by means other than the use of the canon * * *." Id. 374-375, 521. [At 322-323.]

While legislative delegation has far outrun the confines of Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S. Ct. 241, 79 L. Ed. 446 (1935) and A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S. Ct. 837, 79 L. Ed. 1570 (1935) whose doctrines we long ago said were "apt to wither on the vine as authorities inimical to delegative flexibility," Esso Standard Oil Co. v. Holderman, 75 N.J. Super. 455, 474 (App.Div.1962), aff'd o.b. 39 N.J. 355 (1963), app. dism. sub nom. Humble Oil & Refining Co. v. Male, 375 U.S. 43, 84 S. Ct. 178, 11 L. ...

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