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Opinion: Another Day 1 Job for Gov. Murphy — Bring Back the Public Advocate

A cabinet-level public advocate can be a spokesman for those who have no voice, a champion of those who have no power

potter
Credit: Amanda Brown
R. William Potter

Among the many reforms Democratic gubernatorial candidate Phil Murphy has listed on his website — from full funding of public education to 100 percent renewable energy by 2050 — one stands out for its omission: return of the Department of the Public Advocate along with constitutional protection so it cannot be routinely abolished at the whim of a future governor, probably the next Republican, if history is a guide.

First conceived by Democratic Gov. Brendan Byrne in 1974 as an institutional way to provide “a voice for the voiceless,” the DPA was the nation’s first — and still the only — cabinet-level, taxpayer-funded, public-interest law firm empowered  to file lawsuits against other state departments and agencies whenever the public advocate  deemed it necessary in “his sole discretion.”

The advocate’s many causes included precedent-setting litigation affirming the civil rights of the mentally ill to refuse debilitating medication and to obtain placement in “the least restrictive setting,” thereby helping to empty huge mental hospitals where patients were sometimes warehoused for years without real treatment. Shades of “One Flew Over the Cuckoo’s Nest,” Ken Kesey’s masterpiece novel of life inside one such gulag of a hospital.

Championing inner-city residents

Among other notable cases — and there were too many to list in one article — the advocate championed the right of low-income inner-city residents to obtain equal access to  suburban housing in a series of lawsuits culminating in the 1983 Mount Laurel II Supreme Court ruling, which mandated that every municipality  provide for its “fair share” of affordable housing”  through various “inclusive zoning techniques.”

The advocate challenged public utilities in dozens of cases, arguably saving consumers billions of dollars in potential rate increases, some of it to finance the construction of floating nuclear power plants on barges anchored along the coastline of New Jersey.

The department of the advocate included:

  • the office of citizen complaints fielded thousands of public complaints and worked hard to mediate disputes short of litigation;

  • the office of developmental disabilities argued on behalf of individuals suffering from severe neurological handicaps and discrimination;

  • the office of mental health advocacy, as already noted, filed and won landmark cases to end the warehousing of the mentally ill;    

  • the office of rate counsel intervened in public-utility rate cases on behalf of consumers, and contested auto and health insurance rate filings;       

  • the office of inmate advocacy promoted the humane treatment of inmates at a time when “mass incarceration” was initially gaining its ugly momentum; and     

  • the office of the public defender continues to this day (like the rate counsel) due to the constitutional right of criminal defendants to an attorney at public expense if they are too poor to hire a lawyer.

(Full disclosure: I was one of the attorneys hired in the mid-1970s by Stanley C. Van Ness, the original leader of the advocate and the first public defender for New Jersey. My portfolio included challenges to the floating nukes and lawsuits against coastal municipalities to compel them to allow equal access to beaches for nonresidents.) 

But it is not enough for the next Democratic governor — most likely Phil Murphy, the overwhelming favorite — to re-establish the public advocate. It needs constitutional status, the only way to end the wasteful historical pattern by which Republican governors elected since Byrne — except the resolutely progressive Tom Kean (1981-1987) — have issued an executive order abolishing the advocate as one of their first official acts.

This has led to an up-and-down, start-stop cycle as Democratic governors restore the advocate only to have a Republican successor abolish the office, followed by the next Democrat who brings it back to life, followed by another Republican who orders an end to it.

What to do? I propose that we amend the New Jersey Constitution to establish a cabinet-level office for the advocate with a fixed term of five or six years and guaranteeing continued existence unless the Legislature votes to abolish by a “super majority” of at least a two-thirds vote. In this way, we can ensure continuity for a state public advocate, ending the up-and-down cycle of the past quarter century.

Why is this needed? Because the job of advancing the public interest is never-ending. Mass incarceration and discriminatory sentencing laws are still with us. The housing needs of the working poor and lower income remain unmet after eight years of Christie administration indifference. The environment may be more threatened than ever as climate-change deniers have hijacked the federal EPA.

So, future governor-elect Murphy, is there a public advocate among your ambitious and much-needed priorities?

R. William Potter is a partner in the Princeton-based law firm Potter and Dickson. The views expressed are his own and do not necessarily reflect the views of the firm or any client.

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