*1 JERSEY, STATE PLAINTIFF-RESPONDENT, OF NEW v. LEONARDIS, FRANK DEFENDANT-APPELLANT. JERSEY, PLAINTIFF-RESPONDENT, STATE OF v. NEW ROSE, DEFENDANT-APPELLANT, MI- STEPHEN AND BATTAGLIA, CHAEL BATTAGLIA DALE AND DEFEND- ANTS. JERSEY, STATE PLAINTIFF-APPELLANT, OF NEW STRYCHNEWICZ, FREDRICK JOHN DEFENDANT-RE SPONDENT. Reargued May 31, November 1976 Decided 1977. *4 Mr. J. Director, Robert Del of Criminal Division Tufo, Justice, the cause for amicus Gen- argued Attorney curiae William, eral F. of New Jer- Hyland, General Attorney {Mr. se; sey, Mr. David 8. Bcdme pro Lowell attorney Espey, Mr. Giceo, and Mr. John De brief). on the counsel and Mr. Richard J. Williams for amicus argued the cause curiae County Prosecutors’ Association of New Jersey. Shulman,
Mr. William Z. Prosecutor, argued Assistant 0’Ilalloran, cause for the T. State of New Jersey James {Mr. Hudson County Prosecutor, attorney).
Mr. A. David amicus curiae Pressler the cause for argued Breslin, Bar J. Bergen County Association Michael {Mr. brief). Mr. Ezra D. Rosenberg, Defender, Assistant Public Deputy argued the cause defendant for amicus Leonardis and. curiae Strychnewicz Public Defender in O. Stanley Van {Mr. Ness, Defender, Public attorney).
Mr. H. Gary Mr. Schlyen and Joseph Rodgers submitted a brief on behalf of intervenor Prosecutor County Passaic *5 Burl (Mr. Ives Humphreys, Passaic Prosecutor, at- County torney pro se).
Mr. Ervan F. Kushner amicus a curiae. submitted brief as The opinion of the court was delivered by Leonardis, In State v. Pashmah, J. (1976) (hereinafter this Court “Leonardis”), validity considered the of pretrial intervention adopted by аnd programs Bergen R. Hudson to 3:28.1 In that we pursuant Counties opinion outlined the fully history pretrial intervention (PTI) the of r. 3:28. which considerations led the policy adoption the us, context cases before Using specific aug we the procedures by mented a rule, mandated holding who refuses to a PTI divert defendant into must 71 N. J. at a furnish record of the reasons his decision. 114. we PTI Equally important, required programs formal, uniform according guidelines, implemented N. J. at 97-98, 121, procedures and instituted for judicial both the overall of the Court-im operation review assess made individual decisions program pursuant plemented 71 N. J. 109. procedures. to these pertinent provides part: 3 :28 1Rule Programs Pretrial Intervention pretrial program approved (a) a intervention In counties where operation by Supreme rule, Assignment under Court this designate judge judges Judge pertain- or to act on all matters shall ing program, exception, however, Assign- with Judge involving shall or herself act on all ment treason, murder, kidnapping, himself such matters manslaughter, sodomy, rape, armed robbery, dispensing drugs persons by drug- or sale or of narcotic not dependent. (b) charged penal Where defendant сriminal or offense accepted program, designated judge may, has been on the county, Trial recommendation Court Administrator for the county, person approved Probation for the Chief Officer such other Supreme program director, and with the consent prosecuting attorney defendant,- postpone and the all further proceedings against period charges said defendant on such for a 3 months. exceed in that appeals brought by individuals, case were three *6 Frank Leonardis, Rose and Frederick Stephen Stryehnewicz. All three been accused and had of offenses had drug-related been into denied PTI. Leonardis and Rose sought admission admission into the Leonardis had Bergen County program. charged been sub possession with of a controlled dangerous N. stance in violation of J. A. 24:21- (marijuana), S. with offense 19(a) and Rose had been the same (1), charged and to and distribute a controlled conspiracy possess A. in of N. J. S. 24:21-24. dangerous substance violation all We from consideration for PTI by precluding held offenses,” which was defendants with “heinous charged among substance, Bergen the sale of a controlled dangerous admissiоn into PTI to conform County criteria for failed R. :28. 71 N. J. at 112. to the rehabilitative of 3 purposes and re reversed Division Appellate we. Accordingly, to whether manded the trial court determine appeals of in our diversion be appropriate light opinion. would J. at 113. N. Hudson had been admission into
Stryehnewicz denied with possession He County program. charged been had hashish, a controlled and with intent to distribute possession A. substance, (a) in J. S. 24:21-20 violation dangerous of his trial court’s grant and We affirmed the 24:21-19(a). rea prosecutor give motion for an order compelling for PTI, pro and to consent to remanded sons refusing 71 N. with our J. in opinion.2 accordance ceedings Leonardis, Gen- Attorney our decision Following curiae, intervene as amicus of motions to eral filed notices in which to file a petition an extension time to obtain On stay September for a of judgment. and clarification rehearing motion for clarification and we granted significance arguments 2Although legal case, no this upon defendants admitted three was to PTI remand. none charges acquitted January 13, 1977; Rose was tried on 6, 1977; Stryehnewicz for trial Leonardis on June is scheduled chаrges. pleaded guilty to the to consider Court’s authority the. to order diversion of a de fendant into PTI when the refuses to consent to We whether, diversion. directed the parties consider of the doctrine of light separation powers, the Court either after indictment, had the before or power,, divert objection defendant over the prosecutor’s pursuant either its or adjudicatory power. On the same rule-making 8, 1976, we an order day, entered September adopting guide lines of PTI 99 N. L. governing operation programs. at 865 (September 1976).
In addition to the briefs submitted County Hudson Prosecutor, the Public Advocate General, and the Attorney the Court entertained amicus curiae briefs from the Trust- ees the Bergen Bar County Association and Ervan Judge *7 Kushner, Presiding of the Judge Pa- Municipal Court of terson. We granted Passaic County Prosecutor’s motion to rely the brief he upon filed in Leonardis.
I CONSTITUTIONALITY OF R. 3 :28 A. Pretrial Intervention aas Court Buie
Although was rehearing limited to the issue the Court’s divert a defendant when the prosecutor refuses to consent to diversion, the answer to rests, this question large part, upon of our scope constitutionally authorized VI, Art. rule-making, II, par. 3, and judicial powers, Art. § VI, I, 1. par. §
Pretrial intervention was adopted in this state pur suant to rule. Court The Court’s power to rules promulgate stems from the constitutional grant of such N. J. Const. (1947) VI, Art. II, par. 3, which states in § pertinent part: Supreme The shall governing make rules the administration
of all and, subject courts in law, the State practice procedure in all such courts. also widely has been rule-making authority recognized & within Joiner courts’ inherent See falling powers. A Miller, of Practice and Procedure: of Ju Study “Rules 623, L. dicial 55 Mich. Rev. Rule-Making, (1957); Pound, Jersey,” “Procedure Under of Court in New Rules Vanderbilt, 66 Harv. L. Rev. Minimum (1952); Judicial Standards Administration 132 (1949); Wig- more, “All Rules Legislative Judiciary Procedure are Constitutionally,” Void 23 Ill. L. Rev. that PTI “a al- Leonardis we held was procedural
In and in- system the traditional prosecuting ternative N. J. and thus criminal suspects,” carcerating over tvhich our rule-mak- procedure within the practice from rule’s goal extends. Apart aiding ing power offenders, also noted that it rehabilitation we early our procedural problems facing many solved cited author for the proposition We one system. inexpensively dispose quickly and of cases which serves diversion disposition. effectivеly This full criminal without handled more are attention and concentrate its re focus its permits court can deterrence and rehabilitation best cases where on those sources processing. [Note, ordinary “Addict Diver criminal achieved System,” Approach for the Criminal Geo. An Alternative : sion (1972)] 667, 673 L. J. J. at [71 96.] added that We *8 addressing problems provides
pretrial of the one means intervention currently backlog our congestion confront of cases which of prosecutors, public that a PTI To the extent defenders and courts. cases, permits processing program these it also costs the of averts law enforce- available to of limited resources use efficient more ment authorities. 97.] lid. trial, PTI falls within alternative As procedural which the Court has con over and procedure practice rule-making powers. its trol through
369 B. Powers Separation of
Concerns over the constitutionality of PTI under the of separation powers4 doctrine stem most from the directly — second of that goal program aiding rehabili early tation we of offenders. While did not expressly address our Leonardis, selves to this issue in we of are the opinion that B. 3:28 does not encroach upon the powers delegated or legislative branches executive of government. con This clusion is based both on the nature of the separation powers doctrine and the judicial power vested Court. Supreme
We
adverted to the constitutional
previously
have
vested
Court.
procedural power
Supreme
Coupled
N.
that is
J.
judicial power” entrusted
the Court.
“[t]he
I,
Const.
VI,
ju
Art.
1. Inherent
in that
(1947)
par.
§
dicial
to fashion remedies
judiciary’s authority
is the
McCorkle,
Adams
invoked.5
v.
jurisdiction
once its
See
N. J.
564
561,
13
This is not to
(1953).
say that the
can
its
determine that
deprive
Legislature
right
certain
State
conduct constituí
substantive crimes.
types
;
226
v.
44 N. J.
v.
Naglee,
209,
(1965) State
44
Holroyd,
259,
N. J.
265
we
(1965).
have held that:
fact
Rut
“[t]he
has acted to
Legislature
provide
does
remedy
(1947)
III, par.
provides:
4N.
1
J. Const.
Art.
government
1. Branches
powers
government
among
1.
shall be divided
three
judicial.
branches,
legislative, executive,
per-
distinct
No
persons belonging
constituting
son or
one branch
exer-
shall
powers
any
properly belonging
others,
cise
either
except
expressly provided in
this Constitution.
instance,
repeatedly
sentencing
5For
has
it
been
stated that
is a
e.g.,
Spinks,
(1975);
v.
See
State
N.
function.
66
J. 568
Heller,
(Sup.
1899) ;
v.
L.
63
105
Ct.
Jackson v.
Clifford
States,
Supp.
(D.
1971),
F.
United
N. J.
cert.
den. 406 U. S.
2050,
; People
(1972)
Tenorio,
L.
2d
92 S. Ct.
Ed.
Rptr.
Cal.
Cal.
3d
not mean or fashioning expression legislative lines strict dary of Carter, 64 v. ease.” State remedies in particular denying clear v. Carter we it made N. In State 382, (1974). J. 392 that: power of criminal in the to remedies realm court’s fashion The juris- law, unquestioned. justice criminal common courts of At is Baer, suspend In re 140 J. sentences. diction had the deep-rooted 1947). Eq. 571, (E. Probation has a common & A. 573 aspect relating particular to a of a statute enactment law basis. The Lathrop Lathrop, preempt probation v. the entire field. does not 1959). Super. (App. 532, that a Div. It follows J. 538-539
57 N.
certainly
preempt
probation
neglecting
would
to mention
statute
ability
provide for
it.
the court’s
ÍM.1
as a
a criminal
view PTI
remedial aspect
proceeding.
We
It
note
separation
powers
important
an absolute
of powers
doctrine does not
division
require
as Chief
the three branches of
Jus
among
government,
stated,
three
tice
“division
into
government
Vanderbilt
Vanderbilt, The Doctrine
. . .
compartments.”
watertight
Present-Day Significance
Powers and Its
50
Separation of
also, In
Regarding Ringwood
See
Re
(1953).
Investigation
Commission,
David
65 N.
519
Finding
512,
Fact
(1974);
Co.,
Vesta
N. J.
Building
v.
45
324
Massett
301,
(1965);
Bennett,
Cahill,
N. J.
Co.
57
Robinson v.
53,
(1950);
JJ.,
N. J.
Clifford,
dis
(1975) (Mountain,
Robinson,
nom.,
U.
Klein v.
S.
cert. den. sub
senting),
aim of
inordinate there is no bhr to action the government. contrary, necessarily of branches On the the doctrine government assumes the branches will coordinate to the that will end fulfill mission. its N. J. at [62 11] — This same theme approving cooperative effort among — of was the three branches Jus government expressed by & v. Youngstown tice Jackson in Sheet Tube Co. Sawyer, 863, 343 U. S. Ct. 96 L. Ed. : 579, 72 S. 1153 (1952) the Constitution the se better to diffuses “[w]here cure liberty, contemplates it also that will practice inte into a workable grate powers thе 343 dispersed government.” 635, U. S. at Ct. 72 S. 96 Ed. at L. 1199 (Jack son, J., And of concurring). Judge Gibbons the Third Cir recently cuit described as the doctrine calling “[a] of dispersal decisional in the each responsibility exercise of as power, from of . distinguished separation . .” powers. Gibbons, “The Interdependence of Seton Legitimacy,” also, Davis, Hall L. Rev. See Adminis trative Law Treatise 1.09 at 68 (1958) (“The danger is § not blended power. The danger unchecked power.”). of the of applicability doctrine of separation Court’s
powers
been
rule-making powers has
dis
both
cussed
Chief Justice Vanderbilt and Dean Roscoe
for the Court in
Writing
Winberry
Pound.
v. Salisbury, 5
cert.
den. 340 U.
(1950),
S.
Ct. 123,
S.
thought mistaken idea of the analytical stating extreme “[a] powers way leaving stood separation long pro court and in the attacks persists to rules of upon cedure Pound, Winberry Salisbury.” the decision “Procedure in New Jersey,” supra, Rules of Court Harv. Under also, L. Rev. Construc Statutory at 33. See Sutherland tion 3.27 (3 1972). Accordingly, separation ed. rev. § doctrine construed to prevent should of powers which mat from rules have some effect adopting functions. which executive legislative involve ters type Pretrial intervention presents precisely *11 have approved. action which the cases cooperative foregoing may certain rehabilitative which fall goals While PTI serves realm, within the can be hardly also it said legislative the “essential one of the branches integrity great impair Bennett, Building supra, Massett Co. v. 4 government.” fact, In the at 57. tailored to program specifically 3(i) the Legislature’s judgment. Guideline respect requires authorities of diversion to deference to the charge pay decision involved in the seriousness legislative evaluating By act. the director and the given instructing program to consider nature offense, guide of the the follow the lead lines Legislature’s determining, generally, a class into whether of offenders should be diverted PTI. addition, court, In Guideline 3(h) specifically requires director and the consider the program prosecutor to criteria and guidelines exclusion enacted eligibility where the Legislature being defendant is considered intervention pursuant Dangerous the Controlled pretrial Act, N. A. J. S. 24:21 — 27. Substances PTI an that have may impact upon we recognize While defendant, and liabilities of this rights the substantive warrant a is not different outcome. In enough alone fact Levine, N. J. 351 'Chief Justice Wein Busik v. 63 (1973), of the Court, for a underlined the traub, writing plurality
373 and difficulties in the distinction between defining procedure substance. that emphasized He simplistic neatly [i]t assume all law is between divided “procedure.” procedure may “substance” and A rule have an
impact upon pro- substantive result and be no a rule less cedure on that account. 5 [63 N. J. 364] at interest, Noting that rules statutes governing prejudgment of limitations and evidence all have an impact upon substantive he rights parties, explained liabilities of that they subjects were nevertheless appropriate Court’s function. 63 N. J. 366 et rule-making courts seq. Other have commentators In reached same conclusion. Plumer, Hanna v. L. U. S. 85 S. Ct. Ed. 2d 8 the Court (1965), was faced construing scope the federal stat power. federal rule-making ute, as does our state constitutional conferred provision, upon the Court to prac rules promulgate governing tice and as procedure, as did not long Ihey enlarge “abridge, modify any substantive U. S. C. right.” (1958 § ed). The commented “(t)he 'sub line between stance’ and 'procedure’ shifts context legal changes. Each implies different variables depending upon par ticular for which it problem is used.’ Trust Co. [Guaranty York, 99, 108, 326 U. S. Ct. L. Ed. 1464, 1469, S. *12 2079, 471, 2085 380 U. (1945)].” 1144, S. at 85 Ct. at S. also, L. 16. 14 Ed. 2d See v. Indus Cohen Beneficial trial Loan 337 Corp., 559, 1221, 1231, U. S. Ct. S. L. Ed. 1528, 1543 (1949) (Rutledge, J., dissenting) majority embody evidently 5A that a the Court felt rule could procedural Hall, aspects. both in and substantive Mr. an Justice opinion joined by Sullivan, prejudgment concluded Mr. Justice that evidence, gray areas, interest was like “one of those rules which procedural aspects, has both [but it] . . . substantive . that . . procedural aspects justifying adoption has sufficient the court’s . .” [63 it. . at 374]. are many in and substance
(“actually procedure situations im well-nigh so interwoven that rational becomes separation over ; Amsterdam, Levin & “Legislative Control possible.”) A in Revi Judicial Problem Constitutional Rule-Making; sion,” Pa. L. (1958). 107 U. Rev. 14-15
Thus, that an we conclude absolute prohibition li or against rules which affect merely rights substantive seriously abilities, be, however slight may such effect would which cripple authority concomitant responsibility Feh have been See to the Court the Constitution. given by Fehrenbach, renbach v. 42 Wis. 167 N. W. 2d 2d violated (1969) not (statutory grant rule-making power rule which has substantive of extinguishing effect However, or right cause of action creating defense). as a from the stand departure long this should not be taken rule Court not invade Legislature’s ing through law domain substantive wholesale by “mak[ing] Salisbury, v. Winberry exercise of the power.” rule-making See, also, v. Nor 5 N. 248. Co. supra, George Siegler J. at ton, N. an in J. 374 Nor is this to be taken legisla dication of the Court’s upset existing we While tive which scope. are substantive enactments VI, Art. II, have interpreted par. give § rules procedural exclusive and over which are plenary Co. v. nature, Winberry Salisbury, Siegler supra, George Norton, v. have should supra, nothing today which said we affecting enacting foreclose the from measures Legislature desire to substantive of PTI.6 It our aspects not Judiciary expect 6Equally important, should not either we power. Legislature engage their a test limits of or the will in Busik Levine: noted As Chief Justice Weintraub strength invite a test of A branch should coordinate government proclamation. form works best when all Our separate staking out boundaries which their branches avoid powers. 373] [63 N. J. at adoption pursuant Significantly, has not of PTI to a rule court engendered Legislature Legislature. Although conflict with *13 contrary, action in this on the sphere; inhibit legislative welcome it. we
JT OF REVIEW CONSTITUTIONALITY JUDICIAL OVER PTI Power A. The Rule-making rule court constitutionality enabling foundation for re judicial essential
provides mandating we view determinations made to that rule. As pursuant Leonardis, also stated to engage rule-making includes court rules. power interpret enforce also, Rush, N. J. at 108-09. See 46 N. J. 399 State Mattera, In re J. 259 John West 34 N. S. (1966); (1961); Inc., ervelt's Sons v. Regency, 3 N. J. We therefore reaffirm our in Leonardis that holding powers (1947) VI, our [N. enforcement under . . J. Const. . Art. II, par. power operation 3] § also include the to review the procedures legal court initiated made and to review the determinations pursuant procedures. to these Our failure to do so would be rule-making authority an abdication been with which we have entrusted. [71 109] J. at an which would ren adopt interpretation we are to Unless VI, II, Art. under par. our enforcement powers der § in must be held to rule-making power our meaningless, into the diversion of defendant to order clude either or the director program PTI the prosecutor where to con guidelines refusing fails to follow arbitrarily where the director Conversely, program sent to diversion. would subvert the goals program or the prosecutor must diversion, review meaningful by approving also be cognizable. program dealing for nar-
has measures with an intervention enacted general offenders, 24:21-27, is no enactment N. J. S. A. there cotics dealing pretrial intervention. *14 di in Leonardos that the decision We also noted PTI functionally into is quasi-judicial vert defendant see, at As our there opinion decision. Also 378-380. infra or by that any argument this conclusion dissolves suggests, violating PTI a court would be a defendant into dering doctrine: of powers separation applicant reject an recognition admit or decision that Our power quasi-judicial obvi- pretrial an еxercise intervention parties analogies draw between that discuss the ates our need to a, judicial toholly agencies. Within programs administrative and PTI "by potential either sphere with not we cure conflicts confronted government; similarly, legislative our branches or the executive expertise of an ad- the need to defer not faced with we are body. ministrative 115-16.] J. at [71 N. Power Adjudicatory B. authority also satisfied that courts have ample
We are review their de adjudicatory powers prosecutorial under is a and abuse. showing patent cisions where there gross n Even if a diversion decision did not entail the exercise review in of a this instance would power,” “quasi-judicial role which consistent with the traditional have courts individuals from safeguarding exercised abusive govern judiciary commonly mental action. The called upon of decisions other rationality review branches instance, with For special expertise. government agencies 25 N. J. 161 Wingler, in State this Court (1975), up action held its to review the Commissioner of power Institutions and even it noted Agencies, though that in him was “highly vested and that discretionary exercise,” will ordinarily courts not interfere its Examiners, N. In J. 180-81. re Senior 60 N. J. Appeals as furnishes another where the Court (1972) example which, its to review decisions in serted the first power stance, in nature. We concluded judicial were that to the Civil Service Commission “carried authority delegated with it reason- responsibility the administrative acting ably substantively” both procedurally review was to determine if the Commission had appropriate 60 N. J. our abused its discretion. at 370. In discussing held Board, review decisions we power to Parole Board, Monks v. N. Parole J. 238 J. State (1971) Board “has broad but not unlimited discretionary * * * and under our constitutional powers special structure Const., Board’s VI, Art. para. (1947)) sec. (N. arbitrariness.”7 judicially actions reviewable for always are N. J. this aspect at 242. We implicitly recognized voiced in Leonardis when we review Judiciary’s *15 which might yield “a decisional process our desire to limit J. 121. 71 N. at ad hoc or determinations.” arbitrary immune from is not Certainly, the prosecutor decision-making. arbitrariness in governmental ban against Fact Ringwood Finding In Regarding In re Investigation re Comm., to authority it had the Court held that supra, con a complaint to dismiss view the decision prosecutor’s all assertions rejeсted law violation. It an election cerning doc power violate the separation such review would J. trine, 518, 65 N. at stating: VI, par. prerogative (1947), V, 7N. J. § Const. Art. 4 confers writ jurisdiction Judiciary. broadly on the This has been con system give strued the court review administrative over action, governmental tribunals, public inferior and “other officers.” Board, supra, v. N. Parole N. Monks J. State 58 J. 242. It at universally recognized that, aspect duty as an of the courts’ they fairness, arbitrary govern fundamental ensure will root out Hyman instance, Muller, mental For in v. 1 action. N. J. 124 (1948), the Court this under described role the Due Process Clause [ing] litigant against the Fourteenth Amendment “shield arbitrary disregard right justice.” action in of essential 1 N. J. McDonnell, 539, 2963, at 129. In v. 418 U. S. S. 94 Ct. 41 Wolff (1974)
L. Ed. 2d 935
stated:
“[T]he
touchstone of due
process
protection
against
arbitrary
of the individual
action of
government.”
558,
2976,
[
Even assuming under the enjoys the full which the Executive protection doctrine, fact alone would this separation powers United him review. beyond render the reach Nixon, 3090, 41 Ed. 683, States v. 94 Ct. L. 418 U. S. S. v. District United States United States (1974); 2d Court, Ed. 2125, Ct. 32 L. 2d 297, 407 U. S. 92 S. a decision overruling
For can we conclude that
func
would be exercising
prosecutorial
judge
prosecutor,
Leonardis,
to admit or
the decision
As we stated
tion.
denied diversion
has been asserted that
the defendant who is
8It
merely
subject
grievous
liberty,
would
suffer no
loss of
but
will
undergone
process
PTI
which he would
if
same trial
have
point.
adopted.
argument
This
misses the
Once the
had not been
government
obligated
act,
it is
under
Constitution
undertakes to
our
capricious
arbitrary
instance,
For
so in an
manner.
not to do
Illinois,
585,
(1956),
Ed.
76 S. Ct.
L.
351 U. S.
Griffin
(1956),
U.
S. Ct.
L. Ed. 1480
reh. denied 351
S.
*16
though
obligated
pro
a
held
state
not
to
the
that even
was
appeal,
engage
an
did
it could
dis
once it
so
not
invidious
vide
obligated
though
Legislature
Similarly,
the
is not
crimination.
pass
to
particular piece
by
legislation,
it
bound
a
of
once it acts
is
the
Cf.,
proscription agаinst
Nebbia
constitutional
York,
arbitrariness.
v. New
;
505,
(1934)
291 U. S.
S. Ct.
1223 “Pretrial Diversion (1975); from the Criminal Process,” Yale L. 83 J. 827
Other courts have also concluded that diversion en
tails more
merely
than
function,
hence,
charging
and
cannot be
fall
said to
within
solely
the discretion of the
The
prosecutor.
California Supreme Court, for instance, held
that diversion under California’s statutory pretrial program
was
essentially
judicial function.
v.
People
Superior Court
San Mateo County, 11 Cal.
59,
21,
3d
113 Cal. Rptr.
tlie lias die since been cast. case “before disposition, disposition ju- court” for is a function of the dicial no matter what the outcome. [11 Cal. 3d at Rptr. Cal. 410] 2d at P. also, See v. United States 345 F. Gillespie, Supp. see, State, D. Mo. But Wis. 2d (W. Thompson 1972). W. 2d 109 (1973). policy perspective 10From a de it would seem that the diversion judge’s cision involves various decisions which lend themselves to the adjudicatory expect prosecutor’s skills. we decision While rarely guarantee overturned, judge’s will be review will assessing skill the various factors enumerated in Guideline 3 drawing legal fully conclusions from them are utilized.
Ill SCOPE OF REVIEW While review is with consistent applicable under the principles separation powers doctrine, we are that the opinion of such review should lim scope he Thus, ited. although review is necessary, the decision should lie, in the first with instance, the program director and prosecutor.
We are mindful the to enforce the prosecutor’s duty law and the certain Legislature’s to proscribe conduct and fix for penalties violations. great Accordingly, deference should be given prosecutor’s determination to not consent to such a diversion. there Except where showing patent and abuse of the gross by discretion the prosecutor, R. designated judge is authorized under 3:28 to postpone a where proceedings against only defendant the has defendant been recommended program director program and the consent of prosecu- tor. R. 3:28(b). By discretion emphasizing prоsecutorial ensure PTI will we fulfill one of the forces motivating behind the program: “need to prosecutorial options those augment traditionally exercised law enforcement authorities.” 71 N. J. at 93.
The de guidelines to our promulgated pursuant in Leonardos were cision intended to establish a bur heavy must den which the defendant sustain in order overcome to veto of his admission prosecutorial Guideline to PTI. states, in pertinent part: challenge program If a defendant to desires the decision of director prosecutor refusing to recommend or of a enrollment to consent program, into a PTI enrollment motion must be filed before the judge designated (or Assignment Judge) authorized to enter challenge upon alleged under R. is to be based orders 3:28. arbitrary capricious action and the has the burden defendant showing program director or his abused dis- of cretion in application. processing [Emphasis added.] materia must read with Guideline pari be iu passage
This rea “compelling which states that the defendant must show admission, his and that a de sons justifying [establish] unrea arbitrary cision enrollment would be against A statement the same is found in Guide sonable.” effect which directs that 3(i) line program deprecate admission a PTI where would seriousness crime, application generally of defendant’s the defendant’s should rejected. However, cases, applicant in such shall have opportunity present director, program through him *19 prosecutor, any demonstrating or facts materials his amena- bility showing compelling justi- process, to the rehabilitative reasons fying establishing against his admission and that enroll- a decision arbitrary ment be would and unreasonable. [Emphasis added.] should be re- these guidelines interpreted
Accordingly, and estab- clearly convincingly the defendant quire refusal admission into lish that to sanction prosecutor’s the on a and abuse of his patent gross was based program discretion.11 be noted that Guideline may 3(i) pro- it
In passing, with a crime is charged eligible defendant any vides In words, a PTI other de- every in program. enrollment However, the consideration. prosecu- fendant entitled a or the court’s denial of diversion to consent tor’s refusal on solely be based the nature where may, appropriate, order charged. of the offense to reiteratе our conclusion important it is
Finally, need not amount to a trial type Leonardis that review applied regardless should be 11This same standard review proceedings. stage The court should exercise this standard in the prior sought indictment, PTI when even guidelines. factors enumerated in the should consider same It stigma that PTI seeks noted that to the extent to avoid the should be backlogs system, in the trial and excessive the decision possible concerning stage intervention should made at the earliest proceedings. in the an abbreviated and informal but should be proceeding, con This should hearing J. at 122. nature. but a de novo the applicant’s admissibility, stitute trial on to a review of actions. should be confined the prosecutor’s White, See State v. 145 N. Super. 1976). 257 (Law Div. have stated, As we is to afford purpose hearing an to demonstrate that opportunity defendant the prose ar cutor director acted program grossly and/or or manner admission bitrary capricious and that denying his amounted conduct of discretion.12 patent abuse it should not introduce same Consequently, delays which intervention was intended A pretrial to avoid. disposition court is by the trial leave of appealable by any court as order. R. interlocutory 2:2-2.
IY Pretrial intervention has earned the distinction of being characterized as “one of the more promising correctional treatment innovations in recent Pretrial Interven- years.” Issues, tion Legal at 1. supra, Whether not that promise will is fulfilled depend, extent, great ex- efforts tended who are people responsible the actual op- — eration the program judges, lawyers, prosecutors, *20 directors. It program especially important that in these hearing judge explain 12At the should trial to the defendant waiving right speedy that his he is a trial. In order to assure knowing intelligent to PTI the defendant consents in a manner, judge explain may prose the trial should to him that he period cuted at the end of the intervention if his rehabilitation has satisfactory, program not been or continued in the for an additional period, subject prosecution; which at time he is still that his participation program may prior in the be terminated to the normal period cause; any delay going if there is may and that in to trial reducing ability have the effect his to obtain witnesses his in behalf. not, point procedures We need this consider what are neces- sary participation when a defendant’s in PTI is terminated and he process. is returned to the normal criminal (c)(3). R. See 3:28 individuals care- early these stages development, PTI’s follow the which have been fully promulgated. guidelines are and the They flexibility intended to both the provide carry which in order to out uniformity necessary goals the program.
Our with admission are limited. experiences procedures We intend the op- to continue our role over supervisory eration of this and the determinations program legal courts and officials. reviewing expect, local We do not however, these will occupy significant proceedings of trial portion very court time. their appellate By nature, for even- the guidelines place responsibility primary handed administration of the in the hands programs prosecutors and Judicial review should program directors. be available to check most only examples egregious injustice and unfairness. we reaffirm the
Accordingly, constitutionality pretrial intervention, and of fol- importance once again, stress lowing uniform in decisions. guidеlines diversion making J. A. Temporarily Assigned, concurring Conford, P. D., in stress, result. At my the outset I agree emphasis, ment with the Court has Court’s conclusion that rule- defined cir making authority narrowly certain provide, cumstances, for diversion of criminal without proceeding I am also con consent of the I believe prosecutor. currence, as a matter with the Court’s de of broad principle, I file as to of those circumstances. termination the nature this I am not in with the opinion only agreement because reaches its conclusion as to its rationale ivhich the Court would refine the articulation and because I power rule-making the Court for overruling prosecu of the criteria stated not to consent tor’s decision diversion. upon requested argument which we questions the three
Of first listed in the footnote need rehearing,1 at the Supreme Court, exercise of its 1(1) function, adjudicative of the courts of this declare the *21 be discussed since the Court has its exercised in authority adjudicative the matter in basically only its not rule-making, its function,2 d we axe unanimous that rule-making an exists in the authority premises.
The on issues which we allowed of I reargument Leonardis since, prior did exist of decision that case our PTI rule (R. 3:28) theretofore made diversion a by defendant the court conditional the absolutely upon by consent prosecu I, tor. But the shortly after Leonardis and im to filing its plement rationale, the Court approved Guidelines for all State, PTI in 8, 1976, effective programs September which Guideline 8 in provides, part, * * * * * * challenge a defendant desires to the. of a [i]f decision prosecutor refusing program, PTI to consent to enrollment into a * * designated judge motion must be filed before the lenge *. The chal upon alleged arbitrary capricious action, be based * * * showing prosecutor tire has the burden defendant application. processing abused his discretion in
Thus, stood, then this matters Court had rule created for machinery of a de- judicial overruling prosecutorial defendant, cision even one in- prosecute who had been proceeding, hearing, to divert a criminal after without state prosecutor, light separation in consent of the the doctrine powers; Supreme Court, (2) rule- the exercise of its making power, to declare the of the courts of this State proceeding prоsecutor; a criminal to divert without consent of respect foregoing, (3) any of both of In whether there is post-indictment proceedings pre-indictment. between distinction may sense, thought 2In a have acted the matter adjudicative opinion capacity Leonardis, in its since the in State (1976) (“Leonardis I”), preexisting 3:28, 71 N. J. 85 construed R. express provisions prose which contained no of a review diversion, contemplate judicial cutor’s refusal to consent re any arbitrary view of “ad hoe or of a determinations” 121; any under event, at the rule. 71 N. J. and see 71 N. In 108. adopted text, as indicated Guideline the Court September 8, 1976, expressly provides review, motion, aof prosecutor’s refusal to consent. *22 386 of this implications It was the separation-of-powers
dieted. Attorney Court, filing action which moved the after I, to grant Leonardis of for clarification of a petition General issues the separation-of-powers limited to but petition 1, in note supra. specified — Problem
I Basis Separation-of-Powers the separa not confront squarely The Court’s does opinion order in our formulated carefully issue we tion-of-powers time was us at that What concerned reargument. granting a county of a decision basically elemental consideration that General) Attorney latterly, (and, of prosecutor- of the is a function a for crime whether to prosecute suspect Branch. Government, not the Judicial Executive Branch of 1, 11; V, III, 1; par. N. Art. Art. Sec. par. J. Const. (1947), Winne, 152, 171 12 N. J. 2A:158-5; N. J. A. State v. S. Forbes, 388 (Wein Morss v. (1957) (1953); Attica Correc J., Inmates traub, in part); C. dissenting of 375, 379-380 (2 tional 477 F. 2d Rockefeller, Facility Cox, Cir.), 2d (5 F. Cir. United States v. 1973); L. Ed. cert. U. S. Ct. 2d 700 den. 381 S. function discretionary charging discharge will be two which entails kinds decisions by prosecutors relationships seen have differing a sus prosecute is the affirmative decision oversight. One forego prosecution decision to the other pect; That conditionally. aspect whether suspect, absolutely Ju which would authorize the the PTI rule and guidelines what the former kind is creates to veto a decision of diciary the substantial issue which our separation-of-powers engaged interest case. allowing reargument this To the issue starkly, present question whether, had R. the Court not 3 :28 in adopted form, its it would original have had the without power, legislation, adopt rule of court simply any defendant providing indicted crime on a motion could before the court fоr bring deferral of trial on a rehabilitation, of the his showing probability Court, prosecutor, over objection to defer trial only but thereafter to the indict- dismiss ment upon rehabilitation after a showing defendant’s specified of time. I period do not can seriously believe it be contended that such in- action the Court would not as a valid raw usurpation of authority by Executive Judiciary.3
How, then, 3:28, 8, does R. by Guideline supplemented as it does the veto in encompassing prospect spec ified circumstances of prosecutorial a to prosecute decision a rise suspect, above the bar hypoth separation-of-powers esized above? The answer is not generalizations “procedural alternatives” to trial or inherent (p. 368) authority “to fashion remedies” 369). Projection (p. those ideas begs question as to whether the underlying or jurisdiction as to the function is prosecution not in the executive rather than the judicial sphere. Analysis is not aided dealing with PTI as an undifferentiated lump- I concept. submit, rather, that the key question to the of ju dicial the matter lies in the difference, crucial ad above, verted to between a prosecutor’s affirmative decision to prosecute a suspect indicted (or person) his decision to desist prosecution. The latter type decision lies from heart the PTI process, and, seen, as will be is within the inherent of the oversight Judicial Branch.
—II Judicial Over Authority Prosecutions Dropping
as the Source Bule-Making Power. There anis unbroken line of authority that when the mat- of a ter prosecutor’s determination to discontinue or nolle prosecution a or indictment is pros involved, such action is court, to the subject approval of the at least where the matter question presented Legislature 3A different would be if the had giving right apply enacted a statute an indicted defendant such relief. R. has the formal indictment passed complaint stage. 3:2B-1; v. In re In 273, State 43 N. Ashby, (1964); Comm., vestigation Ringwood Fact Regarding Finding N. J. N. J. Conyers, State (1974); 515-516 Vien, 146-147 ; State v. Le 44 N. J. (1971) Compare Federal Rules Criminal Procedure 48(a). The from rationale for the latter situation distinguishing one in which the forward with prosecutor intends go prosecution affirmatively who obvious. A fairly prosecutor a criminal when has been prosecuting suspect cause probable found is patently the criminal duty his to enforce performing Winne, law. State v. supra. It be an arrogation would authority for a to tell dif court him to exercise his discretion e., ferently (i. But where a prosecute). proposes to such a oí con drop prosecution possibility nivance or in non-feasance, contrary public culpable terest, activates a public judicial superin strong policy tendence of such a decision. to oversee court consequent, accepted authority prosecutor’s ceasing prosecu- his role performance of Court to undertake
tion affords the theoretical for this basis su- in the area. The of rules and promulgation regulations *24 authority always which had the pervisory function the Court on a obviously ad discharge to assume on an hoc basis it may is thus clearly appropriate controlled and basis. It regulated of judicial oversight the the Court to regulate practice from the criminal to defendants decisions divert prosecutorial set- the rules controlling procedure by adopting process the courts will apply criteria which standards and ting application pre- of a particular the grant passing upon trial diversion. does undertake that R. 3:28 not aware
I am of course to cease area of discretion prosecutorial whole with the deal con- may For a prosecutor example, drop or prosecutions. involves a which violation complaint a criminal clude interest so unintentional” public or “technical is case, it, Ringwood in the by served pursuing would not be supra N. J. at (65 517). In such ease there will not be a proposal for “intervention”, but rather for freeing sus pect from further prosecution unconditionally.
has not adopted any rule standards creating for exercise of role of the discretionary such instances.4 This, however, is why no reason Court should not have 3:28, R. adopted one at in dealing attempt kind tervention of the process by criminal prosecutor. Obviously the Court is not all cover required by aspects rule-making of the procedure attendant judicial oversight pros upon ecutorial in order to discretion terminating prosecutions validate as to one rule-making aspect.
—Ill Between Judicial Relationship Over Authority Prosecutions
Dropping and Such over Authority Pursuing Prosecutions.
The more difficult then question arises as to the extent to which the Court can by rule-mаking prosecu- regulate tor’s conduct determines, when he in the in- course tervention R. process by 3:28, fixed will consent that he to the 3-month R. postponement 3:28 specified by (b) either a dismissal of the or a further 3-month charges post- ponement, as provided for R. 3:28 This (c) (1) question the Court’s encompasses permit discretion”, review such a refusal for “abuse of Guideline 8, or on blush, other of review. At first it any standard would seem that prosecutor’s prosecute if affirmative decision no unreviewable for discretion when there is court rule automatically be pre-trial intervention such a decision cannot mere rule adoption practice rendered reviewable to oversee a on the acknowledged founded court’s 4There, commonly also closing used device administrative *25 complaint judicial notwithstanding of on the file determination of probable Attorney cause or waiver thereof. See General’s Formal Opinion ( 3-31-76). No. 11-1976
prosecutor’s However, decision not further re- to prosecute. flection on casts a different the matter. light
What would seem to ordinarily judicial constitute absolute aas of more unreviewability mаtter be principle may perhaps plausibly explained impracticability establishing such as faith or motivations unconstitutional discrimina bad tion or not when to whether prosecutorial decision-making to ad hoc prosecute controlling carried on without visible 21 prosecutors, standards And there regulations.5 since are some of whom have numerous who exercise assistants actual it be area, function in this would decision-making un questionable to to an total justify attempt analogy with from over reviewability the absolute immunity exercise, of a of his sight governor’s example, Durand, veto Allan v. N. L. 30 over legislation. J. Cf. County Passaic Bar Ass’n (Sup. 1948); Hughes, Ct. Thus, when Super. (Ch. 1969). prosecutor, Div. of a the power separation-of-power questioned grounds, names to him to disclose legislative compel committee ex .him, the held "the wiretappers working sufficiently is not prominent ecutive chain command which prerogative to claim any high enable to with respect state executive with might enjoyed Forbes, Morss v. Legislature”. from the information holding opinion also the concurring 24 N. J. at 372-373. See supra, 377-378). the same case (at Jacobs Justice re- rules and guidelines existence court actual ques- material intervention becomes spect pretrial insis- prosecutorial review of of judicial tion of legitimacy enuncia- Firstly, respects. in two on prosecution tence as- a prosecutor’s criteria govern tion of standards upon least a basis also provides partial intervention sent to arbitrary, assent is whether refusal to determine which faith, or dis- good of discretion honest exercise an Overview”, Cox, Am. Cr. An Discretion: “Prosecutorial 5See 407-408, L. Rev.
391 criminatorily motivated to of contrary principles equal protection, whichever of these be determined may to be ap propriate criteria for judicial review of the exercise of dis cretion. the formal existence Secondly, of such rules se per — creates a of new species right part on the of the defendant — he right did not have before to make and application for have formal consideration an of in for application pretrial tervention. The existence of such should en procedure in a gender, of system criminal committed justice to notion of fairness, fundamental an assurance to applicants relief of at least a of degree relative fairness im and partiality in the treatment of Monks v. N. applications. J. Cf. Board, State Parole 238, 58 N. State J. 246-248 (1971); Kunz, v. N. v. 128, Clifford, 144-145 Avant (1969); J. 496, 520-521 (1975).6
I thus conclude that the constitutional ju- dicial review of prosecutorial refusal to to consent pretrial intervention can survive the principle separation powers against rules, that formal PTI but background criteria for such a must overruling decision the prosecutor be I extremely narrow. to of those proceed the consideration criteria. — Judicial Review Prosecutorial De- Scope
IV
not
cision
to Consent
Intervention.
re-
fixes
criterion
this
above,
As noted
Guideline 8
“arbitrary
action is
prosecutor’s
whether
gard
being
a showing
of the veto is
on
only
Reversal
capricious”.
The Court’s present opinion
©f “an abuse of discretion”.
may possibly
play
into
6There
also come
in this connection the
although
obliged
principle
right
the State
to confer a
so,
(e. g.,
prisoners),
on
if
do
nevertheless
it undertakes
due
process
right
away except
pro
not be
demands that
taken
protection against arbitrary
abrogation
carrying
right.
cedures
539,
McDonnell,
v.
S
Ct.
U.
S.
41 L. Ed.
Wolff
(1974) ;
Illinois,
12, 18,
2d
and see
351 U. S.
76 S. Ct.
Griffin
The also Leonardis I the decision to refuse as to whether prosecutor’s of the can rest on the nature offense consent alone ultimately 113.7 can; J. at Compare involved. It 382. p. in the Nevertheless, salutary emphasis the despite and of discretion on the breadth the prosecutor’s Court’s opinion consent, in Court’s dispo- in concurrence the my refusing of the on my reading reargument premised sition of this on the imply guideline present gloss Court’s opinion action,” judicial criterion, capricious restricting or “arbitrary discretion con- prosecutorial exercise of interference with the of concept the conventional more than under siderably tightly In action for arbitrariness. of review administrative legiti- which can the of considerations my range judgment, aof par- opt prosecution a prosecutor motivate mately ain for articulation set too broad is almost ticular offender in breadth stand- certainly transcends and guidelines of discretion by of exercises controlling commonly ards agency. administrative executive typical deny hearing however, case, or should the trial court 7“In no by solely of of crime of reason the nature refuse intervention defendant accused.” which As us General accurately Attorney argued this case: spectrum necessity A facts evaluated broad must prosecu- deciding
prosecuting attorney discharging duty [in his case, evidentiary strength culpability tion]. The State’s of the background urgency par- acсused, of deterrence in a and of the offenses, ticular class the most efficacious allocation law en- resources, forcement and the attitudes and the com- victim munity, are a few of the most obvious considerations. num- but precise ber of variables classification.8 defies Justice covered in his Pashman the same ground concurring In re Investigation Regarding opinion dissenting Comm., Fact N. J. 531 Ringwood Finding supra at 531- (65 when "more enter 532) prosecutor’s he said: factors de cision than drop proceed prosecution] [whether an are whether the offense requirements present”. technical circumstances of the He then enumerated following: act, of fair of the considerations expectations Legislature, offender, nature character play, and history nature of To offense, harm to the victim the locale. these *28 added, General, the the must be as out pointed by Attorney It victim and of the is ob community. of the expectations a to decline to a consent par vious decision prosecutor’s can intervention pretrial legitimately ticular application dealing respected in 8Compare сourt federal of a observations the prosecutorial problem a de review of converse with the outlining particular some prosecute offense. After not a to cision prose by go imponderables a a determination such which into of the Facility v. Rocke cutor, Attica Correctional in Inmates the court 380-381) supra, : feller, (477 2d F. said ju- engender to questions doubts as the serious difficult These problem diciary’s capacity arbitrariness and as to to review balance, prosecution. any judicial On order decision to in inherent compel prose- decision to a court’s substitution of we believe that prosecute, upon Attorney’s even decision to for the S. cution U. if to review and even limited of discretion standard an abuse faith, Note, good directing prosecution see be. undertaken that a Crimes, Rights 74 Yale Civil Prosecute Federal Discretion to (1965), unwise. would be J.L. 1310-12 be based a upon of an discretionary weighing amalgam some or all of the thus factors Justice Pashman by mentioned by as well set forth Attorney General as those in the pretrial intervention guidelines.9
It is essential to note that consequence of foregoing cоnsiderations the to factors be taken account into by a Court on motion a by defendant addressed alleged arbitrariness of a by a consent in- to prosecutor refusal tervention cannot be confined to the for inter- guidelines vention adopted by the Court. See Guideline 3. nec- They include the essarily other considerations alluded discretionary In contrast, above. those with other rele- guidelines “along vant circumstances” do set forth all the criteria be given consideration director, the and the program prosecutor court before action on an application interven- affirmative tion.
In a court trial called consider my judgment, upon whether a refusal to consent to intervention is prosecutor’s shown “gross to be abuse “clearly convincingly” discretion”, of his as the Court’s specified the exercise properly employ measuring yard- should present opinion, whether demonstrated that applicant stick of has an has failed to make honest appraisal faith. conditions in Stated relevant circumstances and good the movant should be to establish alternatively, required has of the Court part prosecutor.10 bad faith This an expression by Supreme approval quoted of Missouri that the correct exercise of dis- earmark decision prosecutor making prosecu- cretion by whether there has been “a tion in a case particular good Relating 9See A.B.A. Standards to the Prosecution Function and *29 Function, Charging Function, p. the Defense 3.9. Discretion in § (Appr. 1971). 33 Dr. goes saying 10It without refusal can consent also be rejected impinging unconstitutionally if motivated considerations upon process equal protection rights. a defendant’s due or
395 ** * stated, or, otherwise discretion”, faith sound exercise "willfully his course has chosen whether the prosecutor ** Vien, J. at N. supra, v. Le in bad faith State v. Winne, 174; J. State v. N. supra, 327. State Cf. Williamson, 54 N. v. J. State Begyn, (1961); aff’d b. 31 J. N. J. o. Super. Div.) (App. J., concurring); C. id. at 22 (Weintraub, see (1959), Savoie, n. 7 439, 461-462, 67 N. State v. J. cf. fore- am assuming this I case In concurring of a prose- review criteria as to the views going consistent are intervention consent to refusal to cutor’s herein. opinion the Court’s D., P. A. the result. concurring
Confoed, Justices Hughes, For Justice Moun- affirmance —Chief and Sohrbiber Sullivan, Pashman, tain, Cliffoed Judge Confoed —7.
For reversal —Hone. PLAINTIFF-APPELLANT, PALKO, MAY
VERNA PALKO, DEFENDANT-RESPONDENT. DANIEL May 19, February 1977. Argued 1977 Decided