Oakwood at Madison, Inc. v. Township of Madison

Cliítobd, J.

(concurring). Sometimes judges decide cases with their fingers crossed. I confess that my vote with the majority opinion is east with a discomforting feeling that this judicial effort to meet the imperative of Mount Laurel 1 , from which I would not retreat, is neither entirely satisfactory nor wholly successful. Were it not for this lingering sense of unease, I would not presume to burden the discussion further, which I do somewhat reluctantly in view of the barrels of ink already lavished upon this case.

I

Some of the shortcomings of the Court’s response to the problems presented are laid bare in Justice Mountain’s concurring and dissenting opinion. While I am inclined to agree with much of his gentle probing of the vulnerable areas, I tend to look upon whatever infirmity may inhere in our position not as the result of flawed analysis but rather as an unfortunate but inescapable by-product of the judicial function being called upon to solve the extraordinarily complex problems underlying this litigation — problems whose solution, it may be plausibly argued, should be undertaken elsewhere. This concept is touched upon in a trenchant editorial entitled “Help for a Stepchild” appearing in the New Jersey Law Journal on December 23, 1976 (98 N. J. L. J. 1132):

*632 We should inquire whether we are asking too much of our courts today. Are there not controversies now being laid at the doorstep of our courts which, in reality, ought to be resolved by other governmental branches? We cannot blame judicial activism for an attempt to eliminate deficiencies in justice. Do controversies enter the judicial system because of a default, or inability to cope, on the part of the other branches? Recently, courts have been called upon to render assistance in areas formerly considered inappropriate, because they are “political” in nature. Courts have now tackled and dealt with major New Jersey problems of housing, zoning, education and taxation. * * * [T]he Legislature and the Executive * * * branches of government have, consciously or otherwise, left it to the judiciary to discharge burdens more properly within their provinces.

This same thought is recognized in the majority opinion, ante at 534.

We take this occasion to make explicit what we adumbrated in Mount Laurel and have intimated above — that the governmental-sociological-economic enterprise of seeing to the provision and allocation throughout appropriate regions of adequate and suitable housing for all categories of the population is much more appropriately a legislative and administrative function rather than a judicial function to be exercised in the disposition of isolated cases.

Indeed, every opinion in this case makes that point, not at all in any spirit of twitting the legislature but of something between entreaty and persuasion. It is with this latter impulse that I yield to cacoethes scribendi and add these brief comments.

Recognizing the difference between what should come to the courts and what should be dealt with by other institutions is a difficult enough exercise in the abstract; but striking that balance in practice and then maintaining it seems as much to elude our powers of management as those of our co-ordinate branches of government. The spectrum of views expressed by my colleagues demonstrates that disagreement on this fundamental problem underlies at least part of today’s division of the Court, as it has others in the past. Doubtless I have, from time to time, contributed my share to what may strike some as this unseemly disarray. There is some solace to be found, however, in the recollection that *633 the subject is so vexatious as to have confounded judges more experienced and more learned than I.

Let me narrow the focus. What I seek to emphasize is this: society has yet to achieve agreement on the basic question of what it is our courts are expected to do; as a result of this uncertainty we may be accepting litigational burdens which, according to one commentator, are beyond the institutional capacity of the tribunals and the “cranial capacity” of the judges. This, from former Judge Simon H. Rifkind, who points out in his penetrating article, “Are We Asking Too Much of Our Courts?,” 15 Judges’ J. 43 (1976) (Address of Judge Rifkind at the April, 1976 “National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice”) (hereinafter i(Rifkind”), that the judiciary has increasingly been solicited to become the problem-solver of our society, sort of its all-around handyman.

The American public today perceives courts as jaeks-of-all-trades, available to furnish the answer to whatever may trouble us: Shall we build nuclear power plants, and if so, where? Shall the Concorde fly to our shores? How do we tailor dismissal and lay-off programs during the depression, without undoing all of the progress achieved during prosperity by anti-discrimination statutes? All these are now the continuous grist of the judicial mills.

Thus, it is not surprising to learn that a lawsuit was recently filed in the Southern District of New York seeking to prevent the United States Postal Service from issuing a commemorative stamp honoring Alexander Graham Bell — on the grounds that someone else invented the telephone.

[Rifkind, supra, at 44.]

The thrust of the Rifkind essay is that courts, being institutions of last resort, should be required to do nothing which other, less irreplaceable institutions can do as well, and should be preserved for doing that which cannot be done elsewhere.

Other institutions, in the other branches of government and outside of the government, must be evaluated to determine whether they can assume greater responsibility. The role of the courts should be *634 restricted to doing that which commands their special expertise, and to seeing that the other institutions do the jobs that they are supposed to do. There will continue to be dissatisfaction with the administration of justice as long as we promote the notion that the courts are the only place in which justice is administered.

[Id. at 50.]

In developing his theme Judge Rifkind dwells on the distinction between the traditional judicial function of “dispute-resolving,” with its well-placed reliance on the adversary process, and “problem-solving,” for which the adversary system is conspicuously ill-adapted. He cautions that

[p] roblem-solving is * * * a chancy business requiring, in a democracy, not only wisdom and inventiveness but a keen perception of the political implications. Moreover, it imposes a duty upon the problem-solver to hear all those who have a significant interest in the problem. Very frequently the problem-solver tends to become a champion of a cause and not a neutral decider. His reward comes from popular acclaim, not from law review commendation. Despite this chasm which divides the problem-solver from the dispute resolver, there is a growing tendency to confuse the two.

On the campuses, voices are heard which look benignly upon those areas of our jurisprudence wherein courts have become problem-solvers. It is projected as the wave of the future. Indeed, new words have been coined to describe the new judicial role. Courts have become mini-legislatures. Judges now preside at proceedings in which there is no clear alignment of parties but at which all who have so-called significant interest may have their say, and indeed they should since the decree will directly affect them by judgment and not by precedent. Judges, being human, are not averse to their enlarged role and expanded responsibility. It is exhilarating to administer relief to a universe of victims, and if some are unknown and unknowable, then to distribute largesse to the deserving by application of the cy-pres doctrine in the fashion of Haroun Al-Rashid. 2

*635 It is one thing for judges to decide bi-party controversies and, in so doing, pronounce principles which may have an effect on the solution of the underlying problem, sometimes favorable and sometimes unfavorable. It is another for the courts to be burdened with the responsibility for the solution of the problems.

[Id. at 46-47.]

As Justice Mountain has observed, the gravitation into the judicial machinery of causes better and more effectively dealt with elsewhere surely jeopardizes the judiciary’s “power of legitimacy.” See Mountain, J., concurring and dissenting, ante at 628; cf. Robinson v. Cahill, 70 N. J. 155, 163-64 (dissenting opinion of Mountain, J.). The concern he expresses is shared by many others. It has reached sufficient magnitude to prompt a recent feature or “cover” article in a national news magazine, which refers to the mounting influence of law and lawyers on American life as

* * * one of the great unnoticed revolutions in U. S. history; the ever-increasing willingness, even eagerness, on the part of elected officials and private citizens to let the courts settle matters that were once settled by legislatures, executives, parents, teachers — or chance.

[Newsweek, Jan. 10, 1977, at 42.]

Dean Roger Cramton of Cornell Law School is quoted in the same article as posing the “critical question” of how, in a republic, “government by nonelected officials can be squared with representative democracy.” Id. at 42 — 43. In the long run this phenomenon may very well bring on results which instead of being simply unfortunate or ugly become nothing short of calamitous, in the sense of dam *636 aging not the courts alone but the whole fabric of the American system of government. We would do well to heed Judge Arlin M. Adams’ sober warning:

Democracy — and the judicial system in our democracy — will not, in my view, succumb to assassination. But it may succumb to an erosion of confidence from the disruptive and unwise arrogation of legislative power by institutions not suited to its exercise.

[Adams, “Judicial restraint, the best medicine,” 60 Judicature 179, 182 (1976).]

II

There is an additional point perhaps worth making here, and that is that in many instances the law is becoming “excessively complex, excessively sophisticated, unduly mysterious.” Rifkind, supra at 50. The author refers specifically to the field of taxes, sensibly acknowledging that “[a]fter 50 years of practice, I would no more have the audacity to formulate my own tax return than I would engage in open heart surgery.” Id.

It may be that the same excessive complexities and compounded anfraetuosities are finding their way into our zoning-planning law. And elsewhere. I have no ready answer as to how that dilemma may be avoided as long, again, as the courts are looked to for ultimate solution of the kinds of problems presented by this case. An attempted solution too often seems to defy its articulation in a judicial opinion unfettered by distracting obfuscation. Reality thus becomes camouflaged.

While I do not for a moment labor under any misapprehension that the general public seeks out our pronouncements to savor the delights of fine English prose, the fact remains that our opinions in this field have to be read — and understood — by the bench and bar, particularly by lower court judges who must decide the next case; by attorneys representing municipal bodies, builders, developers, and public interest groups; by legal scholars and professionals in *637 the field; and probably by some conscientious non-lawyer members of governing bodies, planning boards, and boards of adjustment. Those readers are not likely to contemplate our current outpourings with complete serenity, much less great rejoicing. 3 Unless our determinations are susceptible of concise expression and clear interpretation, they can hardly act as a guide or aid in the predictive art. When it fails in that regard, the law has lost one of its indispensable characteristics. As Edwin Newman puts it, “We are all safer when language is specific. It improves our chances of knowing what is going on.” E. Newman, A Civil Tongue 69 (1976).

Ill

In referring earlier to the majority opinion I termed it an “effort.” Ante at 631. My purpose has been to develop (albeit by leaning more heavily on excerpts from the works of others than on any original thinking) the proposition that it is the nature of the judicial enterprise which precludes any opinion in this case from being more than that — an effort — in the sense of furnishing a lasting solution. In no sense do I intend either by that label or by any of the ruminations offered herein to demean Judge Conford’s remarkable accomplishment on behalf of the Court, gratuitously to sermonize my colleagues on this bench or elsewhere *638 in the court system, or to recommend wholesale abdication of our proper responsibilities. Rather, I have used the occasion to draw attention to what must be considered a major, growing problem touching the foundation of our society.

So long as modem life grows ever more complex, demands on the law will increase. That much is inevitable. And if Americans want .to prevent their system of government from being changed in a fundamental manner, they will have to find ways in which to prevent every buck from being passed to a judge and every problem from being turned over to a lawyer. The U. S. has created the most sophisticated — and the fairest — legal process in the world. But the burdens aré becoming intolerable.

[Newsweek, supra at 47.]

Because the majority opinion seems to me to represent the best judicial accommodation of the present controversy to Mount Laurel’s essential principles, I vote with it.

Fúr affirmance and remandment as modified — Chief Justice Hughes, Justices Sullivan and Clifeobd and Judge Confokd — 4.

Concurring in part and dissenting in part — Justices Mountain, Pashman and Schreiber — 3.

So. Burl. Cty. N.A.A.C.P. v. Twp. of Mt. Laurel, 67 N. J. 151, app. dism. and cert. den., 423 U. S. 808 , 96 S. Ct. 18 , 46 L. Ed. 2d 28 (1975).

I take this last to represent a somewhat more generous characterization of a particular type of judge than the one furnished by Mr. Justice Rehnquist, who undoubtedly would find room for this hypothetical judicial confrere of Haroun Al-Rashid in a class of jurists consisting of

* * * people attracted by the opportunity to throw their weight around, to tell other people what to do, to get their names in newspapers. The opportunity to write innovative opinions on constitutional questions which would be published in the West Reporter *635 system would make the other disadvantages of a judge’s life pale into insignificance. In case you haven’t recognized it, this type of person has an element of the zealot in him, and is far from an ideal judge.

[Rehnquist, “The Cult of the Robe,” 15 Judges’ J. 74, 77 (Address of Justice Rehnquist at the Judicial Administration Division’s 1976 Annual Dinner in Honor of the Judiciary).]

Perhaps we would fare better were those who must study our opinions endowed with a quality recently attributed to the English, which my own heritage may permit me to repeat. Harold Lever, Chancellor of the Duchy of Lancaster, is reported in the New York Times as having offered this appraisal:

When a policy is immediately disagreeable, the English believe it must produce ultimate and enduring benefit. If it is couched in language they cannot understand, they believe it to be the product of much learning. A conjunction of the unpleasant and the incomprehensible is therefore irresistable to Englishmen.

[N. Y. Times, Dec. 24, 1976, at A2, col. 1 (late Jersey ed.).]