State v. Leonardis

In State v. Leonardis, 71 N. J. 85 (1976) (hereinafter “Leonardis”), this Court considered the validity of pretrial intervention programs adopted by Bergen and Hudson Counties pursuant to R. 3:28. In that opinion we fully outlined the history of pretrial intervention (PTI) and the policy considerations which led to the adoption of r. 3:28. Using the context of the specific cases before us, we augmented the procedures mandated by the rule, holding that a prosecutor who refuses to divert a defendant into PTI must furnish a record of the reasons for his decision. 71 N. J. at 114. Equally important, we required PTI programs to be implemented according to formal, uniform guidelines, 71 N. J. at 97-98, 121, and instituted procedures for judicial review to assess both the overall operation of the Court-implemented program and individual decisions made pursuant to these procedures. 71 N. J. at 109.

The appeals in that case were brought by three individuals, Frank Leonardis, Stephen Rose and Frederick Stryehnewicz. All three had been accused of drug-related offenses and had been denied admission into PTI. Leonardis and Rose sought admission into the Bergen County program. Leonardis had been charged with possession of a controlled dangerous substance (marijuana), in violation of N. J. S. A. 24:21-19(a) (1), and Rose had been charged with the same offense and with conspiracy to possess and distribute a controlled dangerous substance in violation of N. J. S. A. 24:21-24. We held that by precluding from consideration for PTI all defendants charged with “heinous offenses,” among which was the sale of a controlled dangerous substance, the Bergen County criteria for admission into PTI failed to conform to the rehabilitative purposes of R. 3:28. 71 N. J. at 112. Accordingly, we. reversed the Appellate Division and remanded the appeals to the trial court to determine whether diversion would be appropriate in light of our opinion. 71 N. J. at 113.

Stryehnewicz had been denied admission into the Hudson County program. He had been charged with possession of and possession with intent to distribute hashish, a controlled dangerous substance, in violation of N. J. S. A. 24:21-20 (a) and 24:21-19(a). We affirmed the trial court’s grant of his motion for an order compelling the prosecutor to give reasons for refusing to consent to PTI, and remanded for proceedings in accordance with our opinion. 71 N. J. at 119

Following our decision in Leonardis, the Attorney General filed notices of motions to intervene as amicus curiae, to obtain an extension of time in which to file a petition for clarification and for a stay of judgment. On September 8, 1976, we granted the motion for clarification and rehearing to consider the. Court’s authority to order diversion of a defendant into PTI when the prosecutor refuses to consent to diversion. We directed the parties to consider whether, in light of the doctrine of separation of powers, the Court had the power,, either before or after indictment, to divert a defendant over the prosecutor’s objection pursuant to either its rule-making or adjudicatory power. On the same day, September 8, 1976, we entered an order adopting guidelines governing the operation of PTI programs. 99 N. J. L. at 865 (September 30, 1976).

In addition to the briefs submitted by the Hudson County Prosecutor, the Public Advocate and the Attorney General, the Court entertained amicus curiae briefs from the Trustees of the Bergen County Bar Association and Judge Ervan Kushner, Presiding Judge of the Municipal Court of Paterson. We granted the Passaic County Prosecutor’s motion to rely upon the brief he filed in Leonardis.

I

CONSTITUTIONALITY OF R. 3:28

A. Pretrial Intervention as a Court Buie

Although rehearing was limited to the issue of the Court’s power to divert a defendant when the prosecutor refuses to consent to diversion, the answer to this question rests, in large part, upon the scope of our constitutionally authorized rule-making, Art. VI, § II, par. 3, and judicial powers, Art. VI, § I, par. 1.

Pretrial intervention was adopted in this state pursuant to Court rule. The Court’s power to promulgate rules stems from the constitutional grant of such authority in N. J. Const. (1947) Art. VI, § II, par. 3, which states in pertinent part:

The Supreme Court shall make rules governing the administration of all courts in the State and, subject to the law, the practice and procedure in all such courts.

The rule-making authority has also been widely recognized as falling within courts’ inherent powers. See Joiner & Miller, “Rules of Practice and Procedure: A Study of Judicial Rule-Making, 55 Mich. L. Rev. 623, 624 (1957); Pound, “Procedure Under Rules of Court in New Jersey,” 66 Harv. L. Rev. 28, 37 (1952); Vanderbilt, Minimum Standards of Judicial Administration 132 (1949); Wig-more, “All Legislative Rules for Judiciary Procedure are Void Constitutionally,” 23 Ill. L. Rev. 276, 278 (1928).

In Leonardis we held that PTI was “a procedural alternative to the traditional system of prosecuting and incarcerating criminal suspects,” 71 N. J. at 92, and thus within the practice and procedure over tvhich our rule-making power extends. Apart from the rule’s goal of aiding in the early rehabilitation of offenders, we also noted that it solved many of the procedural problems facing our judicial system. We cited one author for the proposition that

diversion serves to dispose quickly and inexpensively of cases which are more effectively handled without full criminal disposition. This permits the court to focus its attention and concentrate its resources on those cases where deterrence and rehabilitation can best be achieved by ordinary criminal processing. [Note, “Addict Diversion : An Alternative Approach for the Criminal System,” 60 Geo. L. J. 667, 673 (1972)]

[71 N. J. at 96.]

We added that

pretrial intervention provides one means of addressing the problems of congestion and backlog of cases which currently confront our prosecutors, public defenders and courts. To the extent that a PTI program averts the costs of processing these cases, it also permits a more efficient use of the limited resources available to law enforcement authorities.

lid. at 97.]

As a procedural alternative to trial, PTI falls within the practice and procedure over which the Court has control through its rule-making powers.

B. Separation of Powers

Concerns over the constitutionality of PTI under the separation of powers doctrine stem most directly from the second goal of that program — aiding in the early rehabilitation of offenders. While we did not expressly address ourselves to this issue in Leonardis, we are of the opinion that B. 3:28 does not encroach upon the powers delegated to the legislative or executive branches of government. This conclusion is based both on the nature of the separation of powers doctrine and on the judicial power vested in the Supreme Court.

We have previously adverted to the constitutional procedural power vested in the Supreme Court. Coupled with that is “[t]he judicial power” entrusted to the Court. N. J. Const. (1947) Art. VI, § I, par. 1. Inherent in that judicial power is the judiciary’s authority to fashion remedies once its jurisdiction is invoked. See Adams v. McCorkle, 13 N. J. 561, 564 (1953). This is not to say that the Court can deprive the Legislature of its right to determine that certain types of conduct constituí substantive crimes. State v. Naglee, 44 N. J. 209, 226 (1965) ; State v. Holroyd, 44 N. J. 259, 265 (1965). Rut we have held that: “[t]he fact that the Legislature has acted to provide a remedy does not mean that the judicial branch is limited to the boundary lines of strict legislative expression in fashioning or denying remedies in a particular ease.” State v. Carter, 64 N. J. 382, 392 (1974). In State v. Carter we made it clear that:

The court’s power to fashion remedies in the realm of criminal justice is unquestioned. At common law, courts of criminal jurisdiction had the power to suspend sentences. In re Baer, 140 N. J. Eq. 571, 573 (E. & A. 1947). Probation has a deep-rooted common law basis. The enactment of a statute relating to a particular aspect of probation does not preempt the entire field. Lathrop v. Lathrop, 57 N. J. Super. 532, 538-539 (App. Div. 1959). It follows that a statute neglecting to mention probation would certainly not preempt the court’s ability to provide for it.

ÍM.1

We view PTI as a remedial aspect of a criminal proceeding.

It is important to note that the separation of powers doctrine does not require an absolute division of powers among the three branches of government, or as Chief Justice Vanderbilt stated, “division of government into three . . . watertight compartments.” Vanderbilt, The Doctrine of Separation of Powers and Its Present-Day Significance 50 (1953). See also, In Re Investigation Regarding Ringwood Fact Finding Commission, 65 N. J. 512, 519 (1974); David v. Vesta Co., 45 N. J. 301, 324 (1965); Massett Building Co. v. Bennett, 4 N. J. 53, 57 (1950); Robinson v. Cahill, 67 N. J. 333, 377 (1975) (Mountain, Clifford, JJ., dissenting), cert. den. sub nom., Klein v. Robinson, 423 U. S. 913, 96 S. Ct. 217, 46 L. Ed. 2d 141 (1975). The aim of the constitutional provision is not to prevent cooperative action among the three branches of government, but to guarantee a system of checks and balances. This notion of a blending of powers is expressed in various opinions by both this Court and the United States Supreme Court, interpreting the State and Federal Constitutions. In Brown v. Heymann, 62 N. J. 1 (1972), Chief Justice Weintraub explained :

It is well to repeat that while the doctrine of separation of powers is designed to prevent a single branch from claiming or receiving inordinate power, there is no bhr to cooperative action among the branches of government. On the contrary, the doctrine necessarily assumes the branches will coordinate to the end that government will fulfill its mission.

[62 N. J. at 11]

This same theme — approving cooperative effort among the three branches of government — was expressed by Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 72 S. Ct. 863, 96 L. Ed. 1153 (1952) : “[w]here the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government.” 343 U. S. at 635, 72 S. Ct. at 870, 96 L. Ed. at 1199 (Jackson, J., concurring). And Judge Gibbons of the Third Circuit recently described the doctrine as calling for “[a] dispersal of decisional responsibility in the exercise of each power, as distinguished from a separation of powers. . . .” Gibbons, “The Interdependence of Legitimacy,” 5 Seton Hall L. Rev. 435, 436 (1974). See also, Davis, Administrative Law Treatise § 1.09 at 68 (1958) (“The danger is not blended power. The danger is unchecked power.”).

The applicability of the doctrine of separation of powers to the Court’s rule-making powers has been discussed by both Chief Justice Vanderbilt and Dean Roscoe Pound. Writing for the Court in Winberry v. Salisbury, 5 N. J. 240 (1950), cert. den. 340 U. S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950), the Chief Justice noted that the separation of powers did not prevent the Court from exercising the full sweep of its rule-making powers. He concluded that some overlapping of functions is necessary if the Government is to perform effectively, and denied that the separation of powers doctrine curtailed the Court in its rule-making function. He stated that “[wjhatever confusion there may be as to the nature of the rule-making power stems from an oversimplification of the doctrine of separation of powers.” 5 N. J. at 251. Dean Pound reiterated this thought when he commented upon the Winberry decision, stating that “[a] mistaken extreme analytical idea of the separation of powers long stood in the way of leaving procedure to rules of court and persists in the attacks upon the decision in Winberry v. Salisbury.” Pound, “Procedure Under Rules of Court in New Jersey,” supra, 66 Harv. L. Rev. at 33. See also, Sutherland Statutory Construction § 3.27 (3 ed. rev. 1972). Accordingly, the separation of powers doctrine should not be construed to prevent the Court from adopting rules which have some effect on matters which involve executive and legislative functions.

Pretrial intervention presents precisely the type of cooperative action which the foregoing cases have approved. While PTI serves certain rehabilitative goals which may fall also within the legislative realm, it hardly can be said to impair the “essential integrity of one of the great branches of government.” Massett Building Co. v. Bennett, supra, 4 N. J. at 57. In fact, the program is specifically tailored to respect the Legislature’s judgment. Guideline 3(i) requires authorities in charge of diversion to pay deference to the legislative decision involved in evaluating the seriousness of a given act. By instructing the program director and the prosecutor to consider the nature of the offense, the guidelines follow the Legislature’s lead in determining, generally, whether a class of offenders should be diverted into PTI. In addition, Guideline 3(h) specifically requires the court, the program director and the prosecutor to consider the eligibility criteria and guidelines for exclusion enacted by the Legislature where the defendant is being considered for pretrial intervention pursuant to the Controlled Dangerous Substances Act, N. J. S. A. 24:21—27.

While we recognize that PTI may have an impact upon the substantive rights and liabilities of a defendant, this fact alone is not enough to warrant a different outcome. In Busik v. Levine, 63 N. J. 351 (1973), 'Chief Justice Weintraub, writing for a plurality of the Court, underlined the difficulties in defining the distinction between procedure and substance. He emphasized that

[i]t is simplistic to assume that all law is divided neatly between “substance” and “procedure.” A rule of procedure may have an impact upon the substantive result and be no less a rule of procedure on that account.

[63 N. J. at 364]

Noting that rules governing prejudgment interest, statutes of limitations and evidence all have an impact upon the substantive rights and liabilities of the parties, he explained that they were nevertheless appropriate subjects of the Court’s rule-making function. 63 N. J. at 366 et seq. Other courts and commentators have reached the same conclusion. In Hanna v. Plumer, 380 U. S. 460, 85 S. Ct. 1136, 14 L. Ed. 2d 8 (1965), the Court was faced with construing the scope of the federal rule-making power. The federal statute, as does our state constitutional provision, conferred power upon the Court to promulgate rules governing practice and procedure, as long as Ihey did not “abridge, enlarge or modify any substantive right.” 28 U. S. C. § 2072 (1958 ed). The Court commented that “(t)he line between 'substance’ and 'procedure’ shifts as the legal context changes. Each implies different variables depending upon the particular problem for which it is used.’ [Guaranty Trust Co. v. York, 326 U. S. 99, 108, 65 S. Ct. 1464, 1469, 89 L. Ed. 2079, 2085 (1945)].” 380 U. S. at 471, 85 S. Ct. at 1144, 14 L. Ed. 2d at 16. See also, Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 559, 69 S. Ct. 1221, 1231, 93 L. Ed. 1528, 1543 (1949) (Rutledge, J., dissenting) (“actually in many situations procedure and substance are so interwoven that rational separation becomes well-nigh impossible.”) ; Levin & Amsterdam, “Legislative Control over Judicial Rule-Making; A Problem in Constitutional Revision,” 107 U. Pa. L. Rev. 1, 14-15 (1958).

Thus, we conclude that an absolute prohibition against rules which merely affect substantive rights or liabilities, however slight such effect may be, would seriously cripple the authority and concomitant responsibility which have been given to the Court by the Constitution. See Fehrenbach v. Fehrenbach, 42 Wis. 2d 410, 167 N. W. 2d 218 (1969) (statutory grant of rule-making power not violated by rule which has substantive effect of extinguishing a right or cause of action or creating a defense). However, this should not be taken as a departure from the long standing rule that the Court is not to invade the Legislature’s domain by “mak[ing] substantive law wholesale through the exercise of the rule-making power.” Winberry v. Salisbury, supra, 5 N. J. at 248. See, also, George Siegler Co. v. Norton, 8 N. J. 374 (1952). Nor is this to be taken as an indication of the Court’s authority to upset existing legislative enactments which are substantive in scope. While we have interpreted Art. VI, § II, par. 3 to give the Court exclusive and plenary power over rules which are procedural in nature, Winberry v. Salisbury, supra, George Siegler Co. v. Norton, supra, nothing which we have said today should foreclose the Legislature from enacting measures affecting the substantive aspects of PTI. It is not our desire to inhibit legislative action in this sphere; on the contrary, we welcome it.

JT

CONSTITUTIONALITY OF JUDICIAL REVIEW OVER PTI

A. The Rule-making Power

The constitutionality of the enabling court rule provides the essential foundation for mandating judicial review of determinations made pursuant to that rule. As we stated in Leonardis, authority to engage in rule-making also includes the power to interpret and enforce court rules. 71 N. J. at 108-09. See also, State v. Rush, 46 N. J. 399 (1966); In re Mattera, 34 N. J. 259 (1961); John S. Westervelt's Sons v. Regency, Inc., 3 N. J. 472 (1950). We therefore reaffirm our holding in Leonardis that

our powers of enforcement under . . . [N. J. Const. (1947) Art. VI, § II, par. 3] also include the power to review the operation of court initiated procedures and to review the legal determinations made pursuant to these procedures. Our failure to do so would be an abdication of the rule-making authority with which we have been entrusted.

[71 N. J. at 109]

Unless we are to adopt an interpretation which would render our enforcement powers under Art. VI, § II, par. 3 meaningless, our rule-making power must be held to include the power to order the diversion of a defendant into PTI where either the prosecutor or the program director arbitrarily fails to follow the guidelines in refusing to consent to diversion. Conversely, where the program director or the prosecutor would subvert the goals of the program by approving diversion, meaningful judicial review must also be cognizable.

We also noted in Leonardos that the decision to divert a defendant into PTI is functionally a quasi-judicial decision. Also see, infra at 378-380. As our opinion there suggests, this conclusion dissolves any argument that by ordering a defendant into PTI a court would be violating the separation of powers doctrine:

Our recognition that the decision to admit or reject an applicant for pretrial intervention is an exercise of quasi-judicial power obviates our need to discuss the analogies that the parties draw between PTI programs and administrative agencies. Within a, toholly judicial sphere we cure not confronted "by potential conflicts with either the executive or the legislative branches of our government; similarly, we are not faced with the need to defer to the expertise of an administrative body.

[71 N. J. at 115-16.]

B. Adjudicatory Power

We are also satisfied that courts have ample authority under their adjudicatory powers to review prosecutorial decisions where there is a showing of patent and gross abuse. ■ Even if a diversion decision did not entail the exercise of a “quasi-judicial power,” review in this instance would be consistent with the traditional role which courts have exercised in safeguarding individuals from abusive governmental action. The judiciary is commonly called upon to review the rationality of decisions by other branches of government or agencies with special expertise. For instance, in State v. Wingler, 25 N. J. 161 (1975), this Court upheld its power to review action by the Commissioner of Institutions and Agencies, even though it noted that the authority vested in him was “highly discretionary and that courts will not ordinarily interfere with its exercise,” 25 N. J. at 180-81. In re Senior Appeals Examiners, 60 N. J. 356 (1972) furnishes another example where the Court asserted its power to review decisions which, in the first instance, were not judicial in nature. We concluded that the authority delegated to the Civil Service Commission “carried with it the administrative responsibility of acting reasonably both procedurally and substantively” and that judicial review was appropriate to determine if the Commission had abused its discretion. 60 N. J. at 370. In discussing our power to review decisions of the Parole Board, we held in Monks v. N. J. State Parole Board, 58 N. J. 238 (1971) that the Board “has broad but not unlimited discretionary powers * * * and under our special constitutional structure (N. J. Const., Art. VI, sec. 5, para. 4 (1947)) the Board’s actions are always judicially reviewable for arbitrariness.” 58 N. J. at 242. We implicitly recognized this aspect of the Judiciary’s review power in Leonardis when we voiced our desire to limit “a decisional process which might yield ad hoc or arbitrary determinations.” 71 N. J. at 121.

Certainly, the prosecutor is not immune from the ban against arbitrariness in governmental decision-making. In In re Investigation Regarding Ringwood Fact Finding Comm., supra, the Court held that it had authority to review the prosecutor’s decision to dismiss a complaint concerning an election law violation. It rejected all assertions that such review would violate the separation of power doctrine, 65 N. J. at 518, stating:

It would indeed disserve our democratic processes if misconceptions with respect to the proper meaning and scope of the doctrine of separation of powers were to result in retrogressive restrictions on this and comparable judicial controls which are so well-designed towards curbing governmental improprieties and excesses.

[65 N. J. at 520]

Even assuming arguendo that the prosecutor is entitled to the full protection which the Executive enjoys under the separation of powers doctrine, this fact alone would not render him beyond the reach of judicial review. United States v. Nixon, 418 U. S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974); United States v. United States District Court, 407 U. S. 297, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972).

For can we conclude that by overruling a decision by a prosecutor, a judge would be exercising a prosecutorial function. As we stated in Leonardis, the decision to admit or reject an applicant into a PTI program “is an exercise of quasi-judicial power.” See ante 71 N. J. at 115. Certainly PTI involves alternatives for a prosecutor which he would not have had absent R. 3:28. As the ABA Commission on Correctional Facilities and Services concludes, PTI involves far more than merely an exercise of the charging function. The report states:

It is one thing not to charge and let the accused go totally free, but it may be quite another to withhold a charge, and hence not to invoke the jurisdiction of the court system, on condition that an uncharged, untried, unconvicted person submit to a correctional program.

[Pretrial Intervention Legal Issues: A Guide to Policy Development 12, n. 4 (1974)]

See Gerstein v. Pugh, 420 U. S. 103, 114, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975) (suggesting in dicta that where pretrial release is attended by “burdensome conditions” a judicial hearing may be necessary). Hot only would this result give prosecutors more control than they had prior to the adoption of PTI, but it would pose the threat of expanding governmental control over individuals suspected, yet not convicted, of committing crimes. See Note, “Diversion: The Threat of Expanding Social Control,” 10 Harv. Civ. Rights-Civ. Lib. L. Rev. 180, 182, 197 (1975) ; Note, “Pretrial Intervention Programs-An Innovative Reform of the Criminal Justice System,” 28 Rutgers L. Rev. 1203, 1223 (1975); Note, “Pretrial Diversion from the Criminal Process,” 83 Yale L. J. 827 (1974).

Other courts have also concluded that diversion entails more than merely the charging function, and hence, cannot be said to fall solely within the discretion of the prosecutor. The California Supreme Court, for instance, held that diversion under California’s statutory pretrial program was essentially a judicial function. People v. Superior Court of San Mateo County, 11 Cal. 3d 59, 113 Cal. Rptr. 21, 520 P. 2d 405 (1974); Sledge v. Superior Court of San Diego, 11 Cal. 3d 70, 113 Cal. Rptr. 28, 520 P. 2d 412 (19/74). In the former case the court expressly rejected the notion that diversion was an aspect of the prosecutor’s charging function, and instead, held that “[a]t whatever stage such intervention occurs ... it is an integral step in the process leading to the disposition of the case before the court, and therefore constitutes an exercise of judicial authority within the meaning of the constitutional doctrine of separation of powers.” 11 Cal. 3d at 68, 113 Cal. Rptr. at 27, 510 P. 2d at 409. It reasoned that once the question of diversion arises

tlie prosecutorial die lias long since been cast. The case is “before the court” for disposition, and disposition is a function of the judicial power no matter what the outcome.

[11 Cal. 3d at 65,

113 Cal. Rptr. at 26, 520 P. 2d at 410]

See also, United States v. Gillespie, 345 F. Supp. 1236 (W. D. Mo. 1972). But see, Thompson v. State, 61 Wis. 2d 325, 212 N. W. 2d 109 (1973).

Ill

SCOPE OF REVIEW

While judicial review is consistent with applicable principles under the separation of powers doctrine, we are of the opinion that the scope of such review should he limited. Thus, although review is necessary, the decision should lie, in the first instance, with the program director and prosecutor.

We are mindful of the prosecutor’s duty to enforce the law and of the Legislature’s authority to proscribe certain conduct and fix penalties for violations. Accordingly, great deference should be given to the prosecutor’s determination not to consent to diversion. Except where there is such a showing of patent and gross abuse of discretion by the prosecutor, the designated judge is authorized under R. 3:28 to postpone proceedings against a defendant only where the defendant has been recommended for the program by the program director and with the consent of the prosecutor. R. 3:28(b). By emphasizing prosecutorial discretion we ensure that PTI will fulfill one of the motivating forces behind the program: the “need for prosecutorial options to augment those traditionally exercised by law enforcement authorities.” 71 N. J. at 93.

The guidelines promulgated pursuant to our decision in Leonardos were intended to establish a heavy burden which the defendant must sustain in order to overcome a prosecutorial veto of his admission to PTI. Guideline 8 states, in pertinent part:

If a defendant desires to challenge the decision of a program director not to recommend enrollment or of a prosecutor refusing to consent to enrollment into a PTI program, a motion must be filed before the designated judge (or the Assignment Judge) authorized to enter orders under R. 3:28. The challenge is to be based upon alleged arbitrary or capricious action and the defendant has the burden of showing that the program director or prosecutor abused his discretion in processing the application.

[Emphasis added.]

This passage must be read iu pari materia with Guideline 2 which states that the defendant must show “compelling reasons justifying his admission, and [establish] that a decision against enrollment would be arbitrary and unreasonable.” A statement to the same effect is found in Guideline 3(i) which directs that

where admission to a PTI program would deprecate the seriousness of defendant’s crime, the defendant’s application should generally be rejected. However, in such cases, the applicant shall have the opportunity to present to the program director, and through him to the prosecutor, any facts or materials demonstrating his amenability to the rehabilitative process, showing compelling reasons justifying his admission and establishing that a decision against enrollment would be arbitrary and unreasonable.

[Emphasis added.]

Accordingly, these guidelines should be interpreted to require that the defendant clearly and convincingly establish that the prosecutor’s refusal to sanction admission into the program was based on a patent and gross abuse of his discretion.

In passing, it may be noted that Guideline 3(i) provides that any defendant charged with a crime is eligible for enrollment in a PTI program. In other words, every defendant is entitled to consideration. However, the prosecutor’s refusal to consent or the court’s denial of a diversion order may, where appropriate, be based solely on the nature of the offense charged.

Finally, it is important to reiterate our conclusion in Leonardis that review need not amount to a trial type proceeding, but should be of an abbreviated and informal nature. 71 N. J. at 122. This hearing should not constitute a trial de novo on the applicant’s admissibility, but should be confined to a review of the prosecutor’s actions. See State v. White, 145 N. J. Super. 257 (Law Div. 1976). As we have stated, the purpose of the hearing is to afford the defendant an opportunity to demonstrate that the prosecutor and/or the program director acted in a grossly arbitrary or capricious manner in denying admission and that his conduct amounted to a patent abuse of discretion. Consequently, it should not introduce the same delays which pretrial intervention was intended to avoid. A disposition by the trial court is appealable by leave of court as any interlocutory order. R. 2:2-2.

IY

Pretrial intervention has earned the distinction of being characterized as “one of the more promising correctional treatment innovations in recent years.” Pretrial Intervention Legal Issues, supra, at 1. Whether or not that promise is fulfilled will depend, to a great extent, on the efforts extended by the people who are responsible for the actual operation of the program — judges, lawyers, prosecutors, and program directors. It is especially important that in these early stages of PTI’s development, these individuals carefully follow the guidelines which have been promulgated. They are intended to provide both the flexibility and the uniformity which is necessary in order to carry out the goals of the program.

Our experiences with admission procedures are limited. We intend to continue our supervisory role over the operation of this program and the legal determinations of reviewing courts and local officials. We do not expect, however, that these proceedings will occupy a significant portion of trial or appellate court time. By their very nature, the guidelines place primary responsibility for evenhanded administration of the programs in the hands of the prosecutors and the program directors. Judicial review should be available to check only the most egregious examples of injustice and unfairness.

Accordingly, we reaffirm the constitutionality of pretrial intervention, and once again, stress the importance of following the uniform guidelines in making diversion decisions.

Rule 3:28 provides in pertinent part:

Pretrial Intervention Programs

(a) In counties where a pretrial intervention program is approved by the Supreme Court for operation under this rule, the Assignment Judge shall designate a judge or judges to act on all matters pertaining to the program, with the exception, however, that the Assignment Judge shall himself or herself act on all such matters involving treason, murder, kidnapping, manslaughter, sodomy, rape, armed robbery, or sale or dispensing of narcotic drugs by persons not drug-dependent.

(b) Where a defendant charged with a penal or criminal offense has been accepted by the program, the designated judge may, on the recommendation of the Trial Court Administrator for the county, the Chief Probation Officer for the county, or such other person approved by the Supreme Court as program director, and with the consent of the prosecuting attorney and the defendant,- postpone all further proceedings against said defendant on such charges for a period not to exceed 3 months.

Although of no legal significance to the arguments in this case, none of the three defendants was admitted to PTI upon remand. Rose was tried on the charges and acquitted on January 13, 1977; Leonardis is scheduled for trial on June 6, 1977; and Stryehnewicz pleaded guilty to the charges.

N. J. Const. (1947) Art. III, par. 1 provides:

1. Branches of government

1. The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution.

For instance, it has been repeatedly stated that sentencing is a judicial function. See e.g., State v. Spinks, 66 N. J. 568 (1975); Clifford v. Heller, 63 N. J. L. 105 (Sup. Ct. 1899) ; Jackson v. United States, 338 F. Supp. 7 (D. N. J. 1971), cert. den. 406 U. S. 947, 92 S. Ct. 2050, 32 L. Ed. 2d 334 (1972) ; People v. Tenorio, 3 Cal. 3d 89, 89 Cal. Rptr. 249, 473 P. 2d 993 (1970).

A majority of the Court evidently felt that a rule could embody both procedural and substantive aspects. Mr. Justice Hall, in an opinion joined by Mr. Justice Sullivan, concluded that prejudgment interest was “one of those gray areas, like rules of evidence, which has both procedural and substantive aspects, . . . [but that it] . . . has sufficient procedural aspects justifying the court’s adoption of it. . . .” [63 N. J. at 374].

Equally important, we should not expect that either the Judiciary or the Legislature will engage in a test of the limits of their power. As Chief Justice Weintraub noted in Busik v. Levine:

A coordinate branch should not invite a test of strength by proclamation. Our form of government works best when all branches avoid staking out the boundaries which separate their powers. [63 N. J. at 373]

Significantly, adoption of PTI pursuant to a court rule has not engendered a conflict with the Legislature. Although the Legislature has enacted measures dealing with an intervention program for narcotics offenders, N. J. S. A. 24:21-27, there is no general enactment dealing with pretrial intervention.

N. J. Const. (1947), Art. VI, § V, par. 4 confers prerogative writ jurisdiction on the Judiciary. This authority has been broadly construed to give the court system review power over administrative action, inferior governmental tribunals, and “other public officers.” Monks v. N. J. State Parole Board, supra, 58 N. J. at 242. It is universally recognized that, as an aspect of the courts’ duty to ensure fundamental fairness, they will root out arbitrary governmental action. For instance, in Hyman v. Muller, 1 N. J. 124 (1948), the Court described this role under the Due Process Clause of the Fourteenth Amendment as “shield [ing] the litigant against arbitrary action in disregard of essential right and justice.” 1 N. J. at 129. In Wolff v. McDonnell, 418 U. S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974) the Court stated: “[T]he touchstone of due process is protection of the individual against arbitrary action of government.” [418 U. S. at 558, 94 S. Ct. at 2976, 41 L. Ed. 2d at 952.] Our duty to guarantee equal protection and due process under Art. 1, ¶ 1 of our State Constitution requires no less.

It has been asserted that the defendant who is denied diversion will suffer no grievous loss of liberty, but would merely be subject to the same trial process which he would have undergone if PTI had not been adopted. This argument misses the point. Once the government undertakes to act, it is obligated under our Constitution not to do so in an arbitrary or capricious manner. For instance, in Griffin v. Illinois, 351 U. S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956), reh. denied 351 U. S. 958, 76 S. Ct. 844, 100 L. Ed. 1480 (1956), the Court held that even though a state was not obligated to provide an appeal, once it did so it could not engage in invidious discrimination. Similarly, though the Legislature is not obligated to pass a particular piece of legislation, once it acts it is bound by the constitutional proscription against arbitrariness. Cf., Nebbia v. New York, 291 U. S. 502, 54 S. Ct. 505, 78 L. Ed. 940 (1934) ; State v. Krol, 68 N. J. 236 (1975). Professor Davis explains that the injury is not that the prosecutor refuses to act leniently, but that he exercises his discretion in an arbitrary manner:

The discretionary power to be lenient is an impossibility without a concomitant discretionary power not to be lenient, and injustice from the discretionary power not to be lenient is especially frequent; the power to be lenient is the power to discriminate.

[Davis, Discretionary Justice 170 (1969) ; emphasis in original; footnote omitted.]

This Note also points out that by formalizing pre-existing discretionary practices, PTI gives “oficial definition to these practices and enlarges their scope . . .” 10 Harv. Civ. Rights-Civ. Lib. L. Rev. at 184. In Note, “Pretrial Diversion from the Criminal Process.” supra, it is stated: “most pretrial diversion cases, given the non-serious nature of the charges, would have been disposed of by negotiation and plea rather than trial on the merits.” 83 Yale L. J. at 835. Thus, it also supports the thesis that PTI, if left to the unbridled discretion of prosecutors, might expand the scope of the criminal justice system.

From a policy perspective it would seem that the diversion decision involves various decisions which lend themselves to the judge’s adjudicatory skills. While we expect that the prosecutor’s decision rarely will be overturned, review will guarantee that the judge’s skill in assessing the various factors enumerated in Guideline 3 and in drawing legal conclusions from them are fully utilized.

This same standard of review should be applied regardless of the stage in the proceedings. The court should exercise this standard even when PTI is sought prior to indictment, and the prosecutor should consider the same factors enumerated in the guidelines. It should be noted that to the extent that PTI seeks to avoid the stigma of trial and excessive backlogs in the judicial system, the decision concerning intervention should be made at the earliest possible stage in the proceedings.

At the hearing the trial judge should explain to the defendant that he is waiving his right to a speedy trial. In order to assure that the defendant consents to PTI in a knowing and intelligent manner, the trial judge should explain to him that he may be prosecuted at the end of the intervention period if his rehabilitation has not been satisfactory, or continued in the program for an additional period, at which time he is still subject to prosecution; that his participation in the program may be terminated prior to the normal period if there is cause; and that any delay in going to trial may have the effect of reducing his ability to obtain witnesses in his behalf.

We need not, at this point consider what procedures are necessary when a defendant’s participation in PTI is terminated and he is returned to the normal criminal process. See R. 3:28 (c)(3).