author: Michels, P. J. A. D. Morgan, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. HERBERT GAINES, JR., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted January 6, 1975
    Decided July 8, 1975.

      Before Judges Michels, Morgan and Milmed.

      Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Mr. Jasper J. Jackson, Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for respondent (Mr. Joseph J. Bodgers, Deputy Attorney General, of counsel and on the brief).
   The opinion of the court was delivered by

Michels, P. J. A. D.

Defendant and six others were charged with possession of a controlled dangerous substance, to wit, heroin, in violation of N. J. S. A. 24:21 — 20. Defendant’s motion to suppress evidence uncovered as a result of a warranted search was denied. Defendant and one other (codefendant Oreanne Williams) were found guilty by a jury. Defendant was sentenced to the Youth Correctional Institution Complex to be transported to the Youth Reception and 'Correction Center at Yardville for an indeterminate term. Defendant appeals.

The State’s proofs established that on January 27, 1973 Sergeant DiBiano and six other uniformed officers of the As-bury Park'Pólice Department went to an apartment located at 1217 Springwood Avenue in Asbury Park for the purpose of executing a search warrant. The apartment was leased by 'Katherine Ellis. As they approached the apartment Artee Roberta Watkins pulled the door shut. When Ms. Watkins refused to open the door Sergeant DiBiano was forced to break the glass window and open the door in order to gain entry to the apartment. Upon entering DiBiano observed defendant run into the bathroom and close the door. DiBiano followed defendant into the bathroom and found him lying fully clothed and face down in the bathtub. When defendant stood up DiBiano observed two glassine envelopes containing a white powdery substance in the bathtub. Subsequent analysis of the envelopes established that the substance contained therein was starch, not heroin.

Meanwhile, Officer Elliott, who had entered the apartment with Sergeant DiBiano, went to the kitchen area where he observed Oreanne Williams, who was with Ms. Ellis, throw a purse out the window. The purse was retrieved and found to contain narcotic paraphernalia. Detective Wheary observed Eugene Jennings near the area of the kitchen, Sylvester Ellis sitting on a bed and Daniel Johnson standing near him.

An immediate search of the IJ^-room apartment by the police officers disclosed 16 glassine envelopes near a window located in the living room, 21 glassine envelopes in the waste basket in the living room, and a plastic bag containing syringes, needles and bottle caps on top of the refrigerator in the kitchen area. Analysis of 5 of the 16 envelopes and 10 of the 21 envelopes established that the substance contained therein was heroin. Upon analysis, the syringes, needles and bottle caps also revealed traces of heroin.

On his motion to suppress the evidence seized pursuant to the aforementioned search warrant, defendant challenged the affidavit which was submitted in support of the application for the warrant. The affidavit averred that Sergeant DiBiano and Detective Wheary received information from an informant who had “provided reliable information in the past” that two females known as Katherine Ellis and Marie Ellis and a male known as “Kenny” were selling heroin from apartment “N” at 1217 Springwood Avenue in Asbury Park, New Jersey. The affidavit further disclosed that DiBiano was subsequently informed by an investigator in the Monmouth County Prosecutor’s Office that a male known as “Kenny” was selling heroin from this apartment, and that a check of the records of the Asbury Park Police Department revealed that Marie Ellis had previously been arrested for the possession and sale of heroin. The affidavit also indicated that DiBiano and Wheary made a surveillance of the described premises for about an hour and a half, during which time four persons, all of whom had arrest records for either the possession or sale of narcotic drugs, were observed entering the apartment.

Defendant contends that the trial judge erred in denying his motion to suppress the evidence seized pursuant to the search warrant, arguing that the supporting affidavit provided an insufficient basis for its issuance. We disagree.

The reliability of the informant is adequately vouched for by the statement that he had “provided reliable information in the past.” State v. Ebron, 61 N. J. 207, 212 (1972). Reliable past performance on the part of an informant is an index to present reliability. State v. Perry, 59 N. J. 383, 390 (1971). Moreover, the accumulation of information from an investigator in the Monmouth County Prosecutor’s Office, the records of the Asbury Park Police Department and the surveillance conducted by the .applying police officers assures that none of the information contained in the affidavit stemmed from irresponsible rumor •or conjecture.

It is well settled that police officers’ statements made in affidavit form to support the issuance of a search warrant should be tested and interpreted by the court “in a common sense way without a grudging or negative attitude.” State v. Kasabucki, 52 N. J. 110, 117 (1968); State v. Kurland, 130 N. J. Super. 110, 113 (1974). Once the judge has made a finding of probable cause on the proofs submitted and issued the search warrant, a reviewing court should give substantial deference to his determination. State v. Perry, supra, 59 N. J. at 393; State v. Kasabucki, supra, 52 N. J. at 120; State v. Kurland, supra, 130 N. J. at 114. Even assuming that the validity of the affidavit is in doubt, “the resolution of doubtful or marginal cases in this area should be largely determined by the privilege to be accorded to warrants.” United States v. Ventresca, 380 U. S. 102, 109, 85 S. Ct. 741, 746, 13 L. Ed. 2d 684, 689 (1965); State v. Perry, supra, 59 N. J. at 394.

In the light of this positive, common sense approach, we are satisfied that the information obtained from the informant was reliable and, coupled with the other information contained in the affidavit, was enough to “permit the suspicions engendered by the informant’s report to ripen into a judgment that a crime was probably being committed.” Spinelli v. United States, 393 U. S. 410, 418, 89 S. Ct. 584, 590, 21 L. Ed. 2d 637, 645 (1969); State v. Ebron, supra. Accordingly, the motion to suppress the evidence obtained during the search of Ellis’ apartment pursuant to a search warrant was properly denied.

We also find no merit in defendant’s claim that the State failed to prove that 'he exercised actual or constructive dominion and control over the heroin found in the Ellis apartment” —■ an essential element of the crime charged • — ■ and that the trial judge therefore erred in denying his motion for judgment of acquittal at the end of the State’s case.

N. J. S. A. 24:21-20 provides that it is “unlawful for any person, knowingly or intentionally * * * to possess, actually or constructively, a controlled dangerous substance.” The unqualified term “possess,” as used in this as well as other criminal statutes, signifies an intentional control and dominion of a designated article accompanied by knowledge of its character. See State v. Reed, 34 N. J. 554, 557 (1961); State v. Lobato, 7 N. J. 137, 148 (1951); State v. Reyes, 98 N. J. Super. 506, 512 (App. Div. 1968), certif. den. 51 N. J. 582 (1968). See also State v. Humphreys, 54 N. J. 406, 413-414 (1969). Actual physical manual control of the article is not required if the intention to exercise dominion and control over the object is manifested in circumstances where it is reasonable to infer that the capacity to do so exists. State v. Rajnai, 132 N. J. Super. 530, 536 (App. Div. 1975); State v. Bozeyowski, 77 N. J. Super. 49, 51 (App. Div. 1962), cert. den. 374 U. S. 851, 83 S. Ct. 1916, 10 L. Ed. 2d 1071 (1963); State v. Brown, 67 N. J. Super. 450 455 (App. Div. 1961); State v. Campisi, 42 N. J. Super. 138, 145 (App. Div. 1956), rev’d on other grounds 23 N. J. 513 (1957).

While the mere presence of defendant and others in the Ellis apartment may have been alone insufficient to establish either actual or constructive possession of the heroin found in the apartment (see State v. Serrano, 53 N. J. 356, 359-360 (1969); United States v. Vilhotti, 452 F. 2d 1186, 1188-89 (2 Cir. 1971), cert. den. 406 U. S. 947, 92 S. Ct. 2051, 32 L. Ed. 2d 335 (1972)), evidence of the other circumstances was sufficient for a jury to find that defendant exercised dominion and control over the heroin beyond a reasonable doubt.

During their hour and a half surveillance the police observed four, biown drug offenders enter the apartment. When the police finally forced their way into the apartment they saw defendant fleeing to a bathroom in an obvious attempt to escape detection. Further search of the apartment revealed the presence of 36 glassine envelopes of heroin as well as other narcotic paraphernalia. In these circumstances defendant’s conduct clearly evinced a consciousness of guilt not only with respect to the glassine envelopes he attempted to secrete but with respect to the heroin in the apartment as well. A jury could, therefore, conclude that defendant was guilty of possession of heroin. See State v. Bozeyowski, supra, 77 N. J. Super, at 58. See also, State v. Leak, 128 N. J. Super. 212, 216-217 (App. Div. 1974), certif. den. 65 N. J. 565 (1974); State v. Petrolia, 45 N. J. Super. 230, 233 (App. Div. 1957), certif. den. 25 N. J. 43 (1957), cert. den. 355 U. S. 942, 78 S. Ct. 431, 2 L. Ed. 2d 422 (1958); Wigmore, Evidence (3 ed. 1940), §276 at 111-119. Cf. State v. Bailey, 97 N. J. Super. 396, 405 (App. Div. 1967).

The result we reach here is supported in principle by State v. Hull, 15 Ariz. App. 134, 486 P. 2d 814 (1971), wherein the Arizona Court of Appeals affirmed defendant’s conviction for possession of marijuana under somewhat similar circumstances, stating:

* * Here, there was testimony of rapid activity within the apartment, including the flushing oí a toilet and running water within the two-minute interval before defendant admitted the police officers. There was also expert testimony to the effect that there was an odor in the apartment of burned marijuana. We hold that the combined effect of all the evidence presented was sufficient to “link the defendant to the [marijuana] in such a manner and to such an extent that a reasonable inference may arise that the defendant knew of the [marijuana’s] existence and of its whereabouts,” * * *. [486 P. 2d at 815]

In Guthrey v. State, 507 P. 2d 556, 560-561 (1973), the Oklahoma Court of Criminal Appeals found the additional factor necessary to establish knowledge and control of the narcotic drug from the fact that defendant slammed the door to the bathroom and attempted to flush the syringe and needle down the commode when the officer entered the premises. See also, State v. LaBarre, 292 Minn. 228, 195 N. W. 2d 435 (Sup. Ct. 1972).

The standard to be applied in determining a motion for judgment of acquittal under B. 3 :18-1 at the conclusion of the State’s case is set forth in State v. Reyes, 50 N. J. 454 (1967), as follows:

[T]he broad test for determination of such an application is whether the evidence at that point is sufficient to warrant a conviction of the charge involved. R. R. 3 :7-6. More specifically, the question the trial judge must determine is whether, viewing the State’s evidence in its entirety, he that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a jury could find guilt of the charge beyond a reasonable doubt. * * * [at 458-459]

The obligation of this court in reviewing the determination of such a motion by the trial court is to consider the State’s proofs in the light of the foregoing standard and to determine therefrom how the motion should have been decided. State v. Reyes, supra; State v. Moffa, 42 N. J. 258, 263 (1964). In our determination no consideration has been given to any evidence or reasonable inferences to be drawn therefrom adduced on defendant’s case. See State v. Reyes, supra; State v. Fiorello, 36 N. J. 80, 86-91 (1961), cert. den. 368 U. S. 967, 82 S. Ct. 439, 7 L. Ed. 2d 396 (1962).

We are convinced that, considered in a light most favorable to the State, the evidence at the end of its case and the logical inferences to be drawn therefrom were sufficient for a jury to find defendant guilty of possession of heroin beyond a reasonable doubt. Accordingly, the trial judge properly denied defendant’s motion for a judgment of acquittal at the end of the State’s case.

For the foregoing reasons, the judgment of conviction is affirmed.

Morgan, J. A. D.

(dissenting). I am constrained to dissent from my colleagues with respect to the conclusion reached as to the sufficiency of the State’s ease.

The evidence is undisputed that defendant was not a tenant or permanent occupant of the apartment in which the heroin was found. At best, he was a visitor to the apartment who had been there for approximately iy hours before the entry of the police. There was no evidence indicating that defendant had any other or a prior connection with the premises.

A conviction for possession of illicit drugs may, of course, be predicated upon circumstantial evidence. Such a conviction may be based upon evidence demonstrating constructive, rather than actual possession. State v. Campisi, 42 N. J. Super. 138 (App. Div. 1956), rev. in part, dism. in part 23 N. J. 513, 516 (1957). Evidence of joint as -well as exclusive possession may support such a conviction.

Where, however, defendant is one of several persons found on premises where illicit drugs are discovered, it may not be inferred that he knew of the presence or had control of the drugs unless there are other circumstances or statements of defendant tending to permit such an inference to be drawn. Although there exists no New Jersey case directly in point, research has disclosed a number of recent cases from several other jurisdictions so holding. In People v. Mosley, 131 Ill. App. 2d 722, 265 N. E. 2d 889 (Ill. App. 1971), the court held that discovery of marijuana in the trunk of a car in which defendant was a passenger was not sufficient to establish defendant’s possession thereof. In Commonwealth v. Florida, 441 Pa. 534, 272 A. 2d 476 (Sup. Ct. 1971), the court held that guests at a party could not be convicted of possession because a jar containing marijuana and four butts in an ashtray were found on the premises when no marijuana was found on any of defendants. Mere proof of the defendants’ presence at the party with an opportunity to use or possess marijuana was considered insufficient to convict. In State v. Haynes, 25 Ohio St. 2d 264, 267 N. E. 2d 787 (Sup. Ct. 1970), the court held that where the only evidence of possession is the police discovery of narcotics in the general living area of the apartment occupied by defendant and four others, such evidence is not sufficient to convict for possession. See also, Brown v. State, 481 P. 2d 475 (Okl. Cr. 1971); Commonwealth v. Schuloff, 218 Pa. Super. 209, 275 A. 2d 835 (Sup. Ct. 1971); Langdon v. State, 235 So. 2d 321 (Fla. App. 1970).

Defendant was not a possessor of the premises and hence the law concerning the possible guilt of one enjoying nonexclusive possession of premises where drugs have been found has no application to this case. In State v. LaBarre, 292 Minn. 228, 195 N. W. 2d 435 (Sup. Ct. 1972), defendant was in possession of the premises, although on a non-exclusive basis. He shared with another the bedroom in which the drugs were discovered. His act, then, of fleeing from the police when he encountered them searching the apartment provided strong circumstantial evidence that the drugs found belonged to him. Again, in Guthrey v. State, 507 P. 2d 556 (Okl. Crim. App. 1973), cited in the majority opinion, a factual question concerning defendant’s occupancy of the apartment in question was raised. It was, however, undisputed that he had been in exclusive possession of the premises until approximately two weeks before the search. In these circumstances his attempt to dispose of a syringe and needle in the toilet provided strong circumstantial evidence of guilt.

Here defendant was but a casual visitor to the premises. There is no indication that he had ever been in the apartment prior to the date of the search. Moreover, the record is bare of evidence as to the location of the heroin before the search. It is entirely possible that, before the police entered, it was in the actual and concealed possession of one or more of the co defendants. There is nothing to suggest that the contents of the plastic bag containing narcotic paraphernalia found on top of the refrigerator would have been apparent to the casual visitor. Thus, there exists no direct evidence that defendant could even have known that the heroin was in the apartment.

The opinion of the court, however, places principal, indeed exclusive reliance, upon defendant’s conduct of fleeing into the bathroom upon the police entry, as permitting an inference of consciousness of guilt sufficient to support the conviction. The conduct referred to was not, however, simply flight to the bathroom in an attempt to hide from the police, but flight with two bags of starch which defendant made an attempt to conceal. One cannot limit consideration to one aspect of the flight, without considering all aspects of that conduct. While the evidence of flight is certainly sufficient to permit an inference that the defendant possessed the starch which he was at such great pains to conceal, it does not, in my view, permit an inference that he also possessed the other heroin found in the apartment which he made no attempt to conceal. As noted in the case of State v. DiRienzo, 53 N. J. 360, 376 (1969), a jury may be permitted to draw an inference if it is "more likely than not that the facts proven point to the fact inferred.” The two facts upon which the conviction rests, defendant’s fortuitous and casual presence in the apartment for an hour and a half, together with flight into the bathroom with two bags of starch upon entry of the police, do not make it "more likely than not” that defendant possessed the heroin found in the apartment, particularly in the absence of any evidence that he knew, or even could have known, of its presence before the police entered.

One may suspect that defendant’s presence in an apartment containing substantial amounts of heroin bespeaks knowledge of its presence or an intention to participate in its use. Mere suspicion is, however, not enough to sustain a conviction. In any event, it is not unlawful to be in an apartment where illicit drugs are found, even were it to be shown that an accused knew that the drugs were present. Commonwealth v. Tine, 221 Pa. Super. 318, 292 A. 2d 483 (Super. Ct. 1972). Even where defendant was a colessee of an apartment in which drugs were found in the presence of four other people, the evidence was held insufficient to convict the colessee. Commonwealth v. Schuloff, supra. In this case, however, there was no proof that defendant knew, or could have known, of the presence of the drugs. The sole issue presented to the trial judge on the motion for acquittal at the end of the State’s case was whether the State had presented sufficient evidence from which a jury could infer that the defendant possessed the heroin found in the apartment beyond a reasonable doubt. In my view, the evidence presented fell far short of that standard.

I would reverse the trial judge’s denial of defendant’s motion for acquittal at the end of the State’s ease.

      Two other codefendants Sylvester Ellis and Daniel Johnson, pleaded guilty prior to trial. The three remaining defendants, Katherine Ellis, Eugene Jennings and Artee Roberta Watkins, were found not guilty.

      But see, State v. Serrano, 53 N. J. 356, 360 (1969), wherein a conviction of receiving a stolen car was reversed where it was shown the defendant as passenger was not in possession thereof and could not therefore be regarded as a receiver notwithstanding defendant’s flight from the vehicle when it was stopped by the police.


source: Caselaw Access Project

author: Gelman, J. S. C.

license: Public Domain

text:
    NORMAN SEIDEN AND SAMUEL WARSHAUER, PLAINTIFFS, v. MICHAEL L. ALLEN ET AL., DEFENDANTS AND THIRD-PARTY PLAINTIFFS, v. FINANCIAL RESOURCES GROUP, INC.: GLOBE MORTGAGE CO., MURRAY BEER AND SOL KUGLER, THIRD-PARTY DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    May 23, 1975.

      Ms. Elizabeth Westcott for third-party plaintiffs (Messrs. Stryker, Tams & Bill, attorneys). .

      Mr. Jerald D. Baranoff for third-party defendants (Messrs. Sills, Beck, Gummis Badin & Tischmm, attorneys).
   Gelman, J. S. C.

This discovery motion presents questions which have not been ruled upon by our courts in any reported opinion. First, is a party permitted to answer a written interrogatory by a general reference to a transcript of his deposition, and second, does the following form of oath affixed to answers to interrogatories constitute compliance with the requirements of R. 4:17-4(a) : “I have read the foregoing interrogatories and answers thereof [sic] and they are true to the best of my knowledge, information and belief.”

A third-party complaint was served at or about the time the deposition of the third-party plaintiff Michael Allen was being taken by plaintiff in the main action. Although their attorney was in attendance, the third-party defendants did not participate in this deposition. Prior to the time the deposition was completed in late January 1975, the third-party defendants served written interrogatories upon the third-party plaintiffs. After extensions of time were granted, the third-party plaintiff answered the interrogatories on March 27, 1975. Over 20 of the answers furnished contained a general reference to the deposition transcripts, which contain more than 700 pages. The answer furnished to interrogatory No. 2 is typical of the answers supplied:

See transcripts of deposition of Michael L. Allen, attended by the third-party defendants, wherein the date, time, place and substance of all such conversations which the third-party plaintiffs can recall, were given in detail.

It is hardly necessary to repeat anew the numerous recitations in the case law concerning the purpose of our liberal pretrial discovery rules. R. 4:10-1 permits discovery by “one or more” of the methods prescribed by the rules, including depositions upon oral examination and written interrogatories. The purpose of discovery is not only to elicit information but to obtain a precise factual' statement from a party which may be used at the trial as affirmative evidence, or for the purpose of impeaching or contradicting the party if he appears as a witness. See R. 4:17-8(a); R. 4:16-1 (a) and (b). The party propounding the interrogatories is entitled to have answers furnished in a form which will permit their use at the trial in the manner envisioned by the rules of court. See J. J. Delaney Carpet Co. v. Forrest Mills, Inc., 34 F.R.D. 152 (S.D.N.Y. 1963); Smith v. Danvir Corp., 188 A. 2d 118 (Del. Super. Ct. 1963).

R. 4:17-4(a) requires that answers be furnished “separately, fully and responsively.” Neither the letter nor the spirit of the rule allows a party to supply answers which cast upon his adversary the impossible burden of ferreting out of a deposition transcript that which the answeror intends as his answer. If the called-for information is contained in the transcripts of the deposition, it is the answeror’s obligation to collect it and supply it in the form required by the rule. See Hyster Co. v. Industrial Power Equip. Co., 9 F.R.D. 685 (W. D. Mo. 1950); Grimmett v. Atchison, Topeka & Sante Fe Ry. Co., 11 F.R.D. 335 (N. D. Ohio 1951); Annotation, 96 A.L.R. 3d 598 (1964); cf. Anderson v. United Air Lines, Inc., 49 F.R.D. 144 (S.D. N.Y. 1969) (motion to strike interrogatories because answers given at prior deposition denied).

The oath supplied by the third-party plaintiff is also deficient. B. 4:17-4(a) requires interrogatories to be answered “under oath.” While the cited rule does not define the form of oath to be supplied, R. l:4-4(b) inferentially mandates that any oath required by the rules of court must affirm the truth of the answers supplied on the basis of personal knowledge, and not on the basis of hearsay. Cf. R. 1:6 — 6; Ash v. Frazee, 37 N. J. Super. 546, 547 (App. Div. 1955); Toth v. Vazquez, 3 N. J. Super 379, 383 (Ch. Div. 1949); see Hensley v. Fairview Park Hosp., 26 Ohio Misc. 128, 265 N.E. 2d 800 (Ohio C.P. 1970); Nagler v. Admiral Corp., 167 F. Supp. 413 (S.D. N.Y. 1958). The form of oath signed by the answering party here would render the interrogatories valueless for the uses authorized by R. 4:17-8 (a) and described above.

The third-party defendants’ motion is granted and an appropriate order may be submitted in conformance with this opinion.

      R. 1:4-4 (b) permits a certification to be supplied in lieu of an oath. The text of the rule is as follows:
      In lieu of the affidavit, oath or verification required by these rules, the affiant may submit the following certification which shall be dated and immediately precede his signature: “I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made hy me are wilfully false, I am subject to punishment.

      A wilfully false answer to a written interrogatory may also serve as a basis for criminal prosecution under N. J. S. A. 2A:131-4. State v. Parmigiani, 65 N. J. 154 (1974).


author: Furman, J. S. C.

text:
    ABRAHAM RESNICK, PLAINTIFF, v. EAST BRUNSWICK TOWNSHIP BOARD OF EDUCATION, REFORM TEMPLE OF EAST BRUNSWICK, EAST BRUNSWICK BAPTIST CHURCH, NATIVITY EVANGELICAL LUTHERAN CHURCH OF EAST BRUNSWICK, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    June 26, 1975.

      Mr. Sanford Rader for plaintiff (Messrs. Kovacs, Anderson, Horowitz & Rader, attorneys).

      Mr. Frank J. Rubin for defendant East Brunswick Township Board of Education (Messrs. Rubin & Lerner, attorneys).
    Mr. Samuel H. Davis and Mr. Ira S. Novak for defendant Reform Temple of East Brunswick (Messrs. Dubowsky & Davis and Messrs. Gross, Novak & Klein, attorneys).
    Mr. Seymour Gelzer for defendant East Brunswick Baptist Church (Messrs. Iaria & Gelzer, attorneys).
    Mr. Stephen R. Philpitt for defendant Nativity Evangelical Lutheran Church of East Brunswick.
   Furman, J. S. C.

Plaintiff citizen and taxpayer seeks to enjoin use of public schools within his municipality for religious services and religious education. He charges violations of the governing statute (N. J. S. A. 18A:20-34) and of the United States and New Jersey Constitutions (U. S. Const., Amend. I and Amend XIV; N. J. Const. (1947), Art. I, par. 3 and par. 4).

The facts established at trial are as follows. Since 1962 defendant board of education has leased school facilities at hours not interfering with the school curriculum and activities to various religious groups, as well as to other nonprofit social, civic, recreational and charitable groups. A rental is assessed approximating the cost of janitorial services, except that if the meeting is for fund-raising purposes or admission is charged, a substantially higher rental is assessed in accordance with a rental schedule. By way of illustration, a religious group would pay $125 for four hours use of an all-purpose room and ten classrooms under the rental schedule, only $18 at present towards the cost of janitorial services.

Defendant East Brunswick Baptist Church rents an all-purpose room in an elementary school for religious services and ten classrooms for religious instruction on Sundays, and the all-purpose room for a prayer meeting on Wednesday evenings. Bibles, hymnals and a wooden pulpit with a cross are stored in a closet off the all-purpose room, together with school recreational equipment. The East Brunswick Baptist Church owns a five-acre building site in the township, has retained an architect and an engineer and has applied for site plan approval to the township planning board. Its initial rental of public school facilities was in October 1968. Its application was for an indefinite period of time. Defendant board of education has approved yearly renewals.

Defendant Nativity Evangelical Lutheran Church limits its use of the facilities of a second elementary school to iy2 hours of religious instruction in ten classrooms on Sundays, with the all-purpose room as a headquarters. 'Sunday School literature and materials are locked in a cabinet. The Nativity Evangelical Lutheran Church has its own church in the township for religious services. It has retained an architect, who is working on plans for a religious education building. Its initial rental of public school facilities was in September 1968. Its application was for an indefinite period of time. Defendant board has approved yearly renewals.

Defendant Reform Temple of East Brunswick rents most of a third elementary school building for religious services and religious instruction for five hours on Sundays, its gymnasium for religious services and a social gathering on Friday evenings, and five classrooms for Hebrew language instruction, limited to children of the congregation, on Tuesday and Thursday evenings. Some religious artifacts are stored at the school. The Reform Temple has a building site in the township under option to purchase and has retained an architect. Its initial rental of public school facilities was in March 1973. Its application was for an indefinite period of time. Defendant board has approved yearly renewals.

Defendant board is limited in its exercise of powers to those granted expressly or by necessary or fair implication in state legislation. Botkin v. Westwood, 52 N. J. Super. 416, 427 (App. Div. 1958), app. dism. 28 N. J. 218 (1958). N. J. S. A. 18A:20-34 authorizes boards of education to permit use of school facilities, when not in use for school purposes, for:

a. The assembly of persons for the purpose of giving and receiving instruction in any branch of education, learning or the arts, including the science of argieulture, horticulture and floriculture;
c. The holding of such social, civic and recreational meetings and entertainments and such other purposes as may be approved by the board.

Purportedly pursuant to this authorization defendant board adopted rules and regulations permitting use of its facilities by "any East Brunswick organization which is non-profit in nature,” including, as implemented, religious bodies without preference or distinction among them. No judicial decision is cited in support, and only one administrative ruling, McGuire Air Force Base v. North Hanover Tp. Bd. of Ed., S. L. D. 62 (1963), directing the North Hanover board to permit use of public school facilities owned by the Federal Government, in the absence of any other suitable accommodation, for weekend religious and moral training of dependent children of Hnited States military personnel, an obligation of the Commander of the base to provide by Air Force regulation. In openings allusions were made to a widespread practice in the State of religious use of school buildings during nonschool hours, but the proofs dwindled to one such current use and two such former uses.

Religious uses are not specified in N. J. S. A. 18A:20-34(c), although constitutional and legislative enumeration of "religion” or related terms is commonplace. E.g., N. J. Const. (1947), Art. VIII, § 1, par. 2; N. J. S. A. 10:1-3; N. J. S. A. 15:14-6; N. J. S. A. 18A:38-5.1; N. J. S. A. 18A:72A-3; N. J. S. A. 39:4-139; N. J. S. A. 45:2A-7.

To encompass religious meetings and purposes within "social, civic and recreational” in N. J. S. A. 18A:20-34(c) overlooks the Legislature’s meticulous listing of "religion” or "creed” in other statutes. Expressio unius est exclusio alterius is applicable as a rule of construction. The phrase “such other purposes” in (e) is not an imprimatur for purposes other than “social, civic and recreational.” The contention that N. J. S. A. 18A:20-34(c) authorizes religious services and education in public school buildings along with “social, civic and recreational” uses must be rejected.

As to N. J. S. A. 18A:20-34(a) a religious service is not “instruction.” Rather it is an assemblage of persons offering worship and homage to Divinity according to established exercises and rituals. Defendant board lacks statutory authorization to rent its facilities for religious services. Only the Sunday 'School and Hebrew language instruction fit within the sanction in (a) of “instruction in any branch of education, learning or the arts,” which must be construed to embrace religious literature and dogma. Cf. Lewis v. New York City of Bd. of Ed., 157 Misc. 520, 285 N. Y. S. 164, 169 (Sup. Ct. 1935).

The constitutional issue must therefore be met whether indefinite use of public school facilities for Sunday School and Hebrew language instruction by organized religious bodies, at rentals defraying only the cost of janitorial services, is such governmental assistance to religion or such entanglement between government and religion as to offend the United States and New Jersey Constitutions.

The United States Constitution, First Amendment, provides: “'Congress shall make no law respecting an establishment of. religion, or prohibiting the free exercise thereof . . .” That amendment is applicable to the States under the Fourteenth Amendment. Meek v. Pittenger, - U. S.-95 S. Ct. 1753, 44 L. Ed. 2d 217, 43 U. S. L. W. 4596 (Decided May 19, 1975); Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203, 68 S. Ct. 461, 92 L. Ed. 649 (1948); Everson v. Board of Education, 330 U. S. 1, 67 S. Ct. 504, 91 L. Ed. 711 (1947), reh. den. 330 U. S. 855, 67 S. Ct. 962, 91 L. Ed. 1297 (1947).

The New Jersey Constitution provides in Art. I, par. 3:

No person shall be deprived of the inestimable privilege of wor-shipping Almighty God in a manner agreeable to the dictates of his own conscience; nor under any pretense whatever be compelled to attend any place of worship contrary to his faith and judgment; nor shall any person be obliged to pay tithes, taxes or other rates for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right or has deliberately and voluntarily engaged to perform.

The New Jersey Constitution provides in Art. I, par. 4: “There shall be no establishment of one religious sect in preference to another; no religious or racial test shall be required as a qualification for any office or public trust.”

Chief Justice Vanderbilt reviewed the history of the separation of church and state and the prohibition against the establishment of religion in Tudor v. Rutherford Bd. of Ed., 14 N. J. 31 (1953), cert. den. Gideons International v. Tudor, 348 U. S. 816, 75 S. Ct. 25, 99 L. Ed. 644 (1954), holding unconstitutional the distribution of King James version bibles in the public schools to students voluntarily accepting them.

Illinois ex rel. McCollum v. Board of Education, supra, struck down as unconstitutional a public school program of released time during the school day for religious education classes conducted by sectarian teachers in public school buildings. The rationale was that the program had a predominant purpose to benefit religions and thus, although without preference or discrimination, infringed the First and Fourteenth Amendments.

Unquestionably instruction of the young in the beliefs, writings and practices of a religion is of prime importance, instilling understanding and inculcating adherence. Religious instruction of adults, for example, in the adult classes of the East Brunswick Baptist Church Sunday School, may broaden that understanding and reinforce that adherence. Religious instruction is an indispensable adjunct to religious worship. The Sunday School instruction in defendant board’s schools must be found to be a religious use. Likewise the Hebrew language instruction is pervasively religious.

Other States have split in judicial decisions whether use of public school facilities in nonschool hours for religious purposes is constitutionally or statutorily authorized. See 5 A. L. R. 886 (1920); 141 A. L. R. 1153 (1942); 79 A. L. R. 2d 1163 (1961). Upholding such religious use are Pratt v. Arizona Board of Regents, 110 Ariz. 466, 520 P. 2d 514 (Sup. Ct. 1974); Southside Estates Bapt. Church v. Board of Trustees, 115 So. 2d 697 (Fla. Sup. Ct. 1959); Nichols v. School Directors, 93 Ill. 61, 34 Am. R. 160 (Sup. Ct. 1879); Davis v. Boget, 50 Iowa 11 (Sup. Ct. 1878). Striking down religious use of public school facilities as invalid by constitution or statute are Harfst v. Hoegen, 349 Mo. 808, 163 S. W. 2d 609 (Sup. Ct. 1942); Hysong v. School Dist., 164 Pa. 629, 30 A. 482 (Sup. Ct. 1894); Spencer v. Joint School District, 15 Kan. 259, 22 Am. R. 268 (Sup. Ct. 1875); Baggerly v. Lee, 37 Ind. App. 139, 73 N. E. 921 (Ct. App. 1905).

The argument is pressed that defendant board’s rules and regulations permitting use of public school facilities for instruction by religious organizations are intended to benefit nonprofit organizations generally and that exclusion of religious organizations from such use would unconstitutionally inhibit religion. See Chief Justice Weintraub’s dictum in Clayton v. Kervick, 56 N. J. 523, 529 (1970), vacated 403 U. S. 945, 91 S. Ct. 2275, 29 L. Ed. 2d 854 (1971), on remand 59 N. J. 583 (1971) :

Hence the secular aim of a statute may touch the interests of religion, and when a statute does, the question arises whether it violates the “establishment clause” to accord to a sectarian institution the benefit of that secular aim or whether to deny that benefit because the institution is sectarian will inhibit religion and thereby equally offend the Amendment.

A parallel is drawn to the prevailing state property tax exemption of organized religions, which was sustained in Walz v. Tax Commission, 397 U. S. 664, 90 S. Ct. 1409, 25 L. Ed. 2d 697 (1970). A classification of institutions with beneficial and stabilizing influences in the community, including religions, was held proper in Walz.

These authorities are distinguishable. The tax exemption of religions does not involve an expenditure of tax moneys. Defendant religious bodies enjoy the use of defendant board’s public school facilities but pay for janitorial services only and not, for example, for utilities, which are paid for out of public school taxes. The public policy against tax foreclosure on churches is inapplicable. Religious bodies, unlike most other nonprofit organizations, maintain buildings, that is, houses of worship. The word “church” denotes both the building and the institution. As the Nativity Evangelical Lutheran pastor conceded in testimony, a congregation which has public facilities available to it is “off to a good start.” It can thus postpone its church or temple building program for years, a substantial credit between the nominal rental it pays and what it would have paid as rental for comparable private facilities.

The religious freedom provisions of the New Jersey Constitution are specifically drawn. Defendant board’s program under attack is not a preference of one religion but is available to all religions until the capacity of its school facilities is filled, a remote contingency. The outlay of public school taxes is minimal but in violation of Art. I, par. 3. An upward adjustment of the rentals for Sunday School and Hebrew language instruction to reflect extra utility, heating and administrative, as well as janitorial, costs would obviate that state constitutional invalidity.

The First Amendment of the United States Constitution, although its literal language only prohibits laws respecting an establishment of religion, was intended, according to Thomas Jefferson, to erect “a wall of separation between Church and State.” As most recently applied to Pennsylvania legislation in Meek v. Pittenger, supra, the First and Fourteenth Amendments sanction state loans of textbooks acceptable for use in the public schools to students attending nonpublic schools, bar state loans of instructional materials and equipment, including periodicals, photographs, maps, charts, sound recordings, films, projection equipment, recording equipment and laboratory equipment, to nonpublie schools, and bar state assignments of publicly employed professional staff with supportive materials and equipment for both accelerated and remedial instruction, speech and hearing therapy and other auxiliary services to nonpublie schools. More than 75% of the nonpublic schools in Pennsylvania are church-related.

The rationale of Justice Stewart’s opinion for the court is that loans to church-related schools, even of wholly secular materials and equipment, amount to massive aid to religion, neither indirect nor incidental, thus impermissibly establishing religion; that, following Board of Education v. Allen, 392 U. S. 236, 88 S. Ct. 1933, 20 L. Ed. 2d 1060 (1968), loans of textbooks to nonpublic school students make available to children the benefits of a general program, thus fitting within constitutional bounds, and that supplying instructional personnel and materials and equipment for special instruction, therapy and other services is fraught with the potential of entanglement between church and state, administrative entanglement in “continuing surveillance” to guarantee that the subsidized instruction is not sectarian, and political entanglement because of yearly confrontations over state appropriations, with the peril of division along religious lines.

Justice Stewart’s opinion restates three tests to determine the constitutionality of state legislation under the First and Fourteenth Amendments: Has it a secular legislative purpose? Does its “primary effect” neither advance nor inhibit religion? Does its administration avoid excessive government entanglement with religion ? See also, Committee for Public Education v. Nyquist, 413 U. S. 756, 93 S. Ct. 2955, 37 L. Ed. 2d 948 (1973); Lemon v. Kurtzman, 403 U. S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971), reh. den. 404 U. S. 876, 92 S. Ct. 24, 30 L. Ed. 2d 123 (1971); Walz v. Tax Commission, supra.

In Lemon, which struck down as unconstitutional Pennsylvania and Ehode Island legislation providing state reimbursement to nonpublie schools for teachers’ salaries, textbooks and instructional materials in specified secular subjects, Chief Justice Burger graphically delineated the peril of church-state entanglement:

A broader base of entanglement of yet a different character is presented by the divisivet political potential of these state programs. In a community where such a large number of pupils are served by church-related schools, it can be assumed that state assistance will entail considerable political activity. Partisans of parochial schools, understandably concerned with rising costs and sincerely dedicated to both the religious and secular educational missions of their schools, will inevitably champion this cause and promote political action to achieve their goals. Those who oppose state aid, whether for constitutional, religious, or fiscal reasons, will inevitably respond and employ all of the usual political campaign techniques to prevail. Candidates will be forced to declare and voters to choose. It would be unrealistic to ignore the fact that many people confronted with issues of this kind will find their votes aligned with their faith.
Ordinarily political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. [403 U. S. at 622, 91 S. Ct. at 2115.]

Neither Meek, Lemon nor McCollum is parallel on its facts. Also McCollum is limited by Zorach v. Clauson, 343 U. S. 306, 72 S. Ct. 679, 96 L. Ed. 954 (1952), which upheld the constitutionality of a public school program of released time during the school day for religious education classes conducted by sectarian teachers outside public school buildings. The distinction, significantly, is that public school classrooms were used for religious instruction in McCollum, not in Zorach.

The three tests measuring First and Fourteenth Amendments constitutionality posited by the United States Supreme Court, together with the rationale of Meeh and other recent authorities, must be applied to N. J. S. A. 18A :20-34 and the rules and regulations of defendant board of education pursuant thereto, which permit use of public school facilities for religious instruction by defendant religious bodies.

As administered, defendant board’s rules and regulations have provided significant financial aid indefinitely to defendant religious bodies, up to seven years to two of them. The program involves entanglement between church and state, administrative entanglement in the record keeping and scheduling by defendant board’s employees, and political entanglement in subjecting defendant board’s members, elected ofiScials, to the demands and pressures of religious bodies and of those opposing them to approve or disapprove leases for religious use of public school facilities. In addition, religious books and artifacts stored in the public school buildings are accessible to children during school hours.

Defendant board’s leases to defendant religious bodies are held to be in violation of the First and Fourteenth Amendments to the Federal Constitution, as well as of Art. I, par. 3 of the State Constitution. This holding is limited to its facts. Specifically, this holding does not deal with leases of public school facilities to religious bodies at rentals approximating what would be charged on the open market for comparable private facilities, nor with leases of public school facilities for temporary periods during emergencies such as after a fire or flood.

Under the circumstances the enforcement of this judgment by an injunction forthwith in effect would be harsh. Jurisdiction is retained. Within 45 days defendant board may present to this court for its approval a proposal for continuing use of the public school facilities by any one or more of defendant religious bodies for such fixed period of time as will enable it or them, with due diligence, to secure adequate alternative accommodations for religious services and religious education.


author: Francis, J. S. C.

text:
    THE GALLOWAY TOWNSHIP BOARD OF EDUCATION, ATLANTIC COUNTY, A CORPORATE AND GOVERNMENTAL AGENCY OF THE STATE OF NEW JERSEY, PLAINTIFF, v. THE GALLOWAY TOWNSHIP EDUCATION ASSOCIATION, AN UNINCORPORATED ASSOCIATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided June 19, 1975.

      Mr. Martin R. Pachman for plaintiff (Messrs. Murray and Packman, attorneys).

      Mr. Edward J. Turnback for defendant (Messrs. Starkey, Turnback, White and Kelly, attorneys).
   Francis, J. S. C.

This matter was brought before the court by Galloway Township Board of Education (board) by application for a temporary restraining order and an order to show cause on May 23, 1975. A temporary injunction was issued enjoining the parties from arbitrating a dispute over the institution of a sign in-sign out procedure.

The Galloway Township Education Association (association) made application for a modification of this injunction in order to permit the arbitration hearing scheduled for May 27 to proceed. The court permitted such modification with the proviso that the arbitrator’s decision would be held in abeyance pending final hearing. The arbitration was not held on May 27, and final hearing was held on June 6, 1975. At that hearing the association moved to dismiss the complaint.

This dispute arose when the board instituted a sign in-sign out procedure at the Arthur Rann School upon the teachers return from their Christmas recess in January 1975. The Arthur Rann School is on split session, with the lunch period being the dividing period. The morning teachers are required to return after lunch to sign out, while the afternoon teachers are required to appear before lunch to sign in. Neither group of teachers is required to remain on the school grounds during lunch. This sign in-sign out procedure has not changed the working hours of the teachers since all the teachers have previously been required to be present before and after lunch. The Arthur Rann School is the largest school in the Galloway Township system and presently is the only school on split session. The board maintains that the sign in-sign out procedure enables management to ensure that the teachers are appearing at the school at the required times. As such, the board maintains that this is a proper administrative decision that does not affect any terms and conditions of employment.

The association alleges that this procedure does affect the terms and conditions- of their employment and therefore must be negotiated before implementation under N. J. S. A. 34:13A-5.3. The teachers further allege that the implementation of this sign in-sign out procedure is a harassing tactic by the board to get the teachers to buckle under at the bargaining table where the 1975-76 contract is being negotiated. In this regard the teachers point out that the majority of the association’s negotiators work at the Arthur Rann School. While those negotiations are presently at an impasse, it is not clear that the negotiators reached this impasse before the sign in-sign out procedure was implemented. In further support of their claim of harassment the teachers allege that other schools in the township system have had split sessions without a sign in-sign out procedure.

Finally, the teachers contend that it would be inequitable to enjoin arbitration at this stage of the proceedings. The board participated in all the grievance procedure steps and the selection of the arbitrator. The teachers feel that through their conduct the board has waived any right to seek court interference in the arbitration proceeding.

Standing alone, this sign in-sign out procedure is not a term and condition of employment and therefore is not a subject for arbitration. Dunellen Bd. of Ed. v. Dunellen Education Ass’n, 64 N. J. 17 (1963) controls the present case. This procedure is a reasonable method available to management to check upon its employees. Management responsibilities are the concern of the local and state boards and not subject to negotiation. N. J. S. A. 18A:11 — 1.

The suggestion is made that this sign in-sign out procedure was implemented to have a coercive effect upon the teachers in the ongoing contractual negotiations. The board argues that N. J. S. A. 34.-13A-5.4 does not apply to the instant case since it was not effective when this canse of action arose. However, under N. J. S. A. 34:13A-5.3 the board has the obligation to negotiate in good faith with respect to the contractual negotiations for the 1975-76 school year. If the board is harassing the associations’ negotiators in an attempt to make them buckle under at the negotiating table, the board would be in violation of N. J. S. A. 34:13A-5.3. However, the facts presented by the association do not support this allegation of harassment.

The association’s claim that the board has waived any objection to arbitration is without merit.

Finally, the court would point out to the parties the last sentence of the Dunellen opinion, supra-.

It would seem evident that, when dealing in fields with which the teachers are significantly concerned though outside the fields of mandatory negotiation, the end of peaceful labor relations will generally be furthered by some measure of timely voluntary discussion between the school administration and the representatives of its teachers even though the ultimate decisions are to be made by the Board in the exercise of its exclusive educational prerogatives, [at 32]

The association’s motion to dismiss is denied. A permanent injunction against arbitration of the sign in-sign out procedure will be entered.


author: Kimmelman, J. S. C.

text:
    RALPH C. DE ROSE, INDIVIDUALLY, AND AS COMMISSIONER OF THE WATERFRONT COMMISSION OF NEW YORK HARBOR, PLAINTIFF, v. BRENDAN T. BYRNE, GOVERNOR, STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided July 7, 1975.

      Mr. William O. Barnes, Jr. for plaintiff.

      Mr. William F. Hyland, Attorney General of New Jersey, for Defendant (Mr. Robert J. Del Tufo, First Assistant Attorney General, appearing).
   Kimmelman, J. S. C.

Plaintiff Ralph C. De Rose, a commissioner of the Waterfront Commission of New York Harbor, brings this action against the Governor of the State of New Jersey for a declaratory judgment with appropriate restraints that (a) Executive Order No. 21 of 1975 which purports to make De Rose’s position as commissioner full-time, is void, and (b) that the New Jersey Conflicts of Interest Law, N. J. S. A. 52:13D-12 et seq., is inapplicable to De Rose’s office as a member of a bi-state agency approved by act of Congress. Both parties having cross-moved for summary judgment, the matter is before the court for decision. In chronological fashion, the salient facts appear as follows:

1. De Eose is an attorney at law of New Jersey practicing with the firm of De Eose, Spinrad and Schneider in East Orange.

2. On July 29, 1974, pursuant to an appointment by the Governor with the advice and consent of the Senate of New Jersey, De Eose was sworn as the New Jersey member of the Waterfront Commission of New York Harbor and thereupon assumed the duties of that office.

3. De Eose accepted the appointment with the understanding that the position would continue as a part-time post and that he would be able to continue in the active practice of law. The Governor acknowledges such understanding with De Eose, made during discussions with him prior to his appointment.

4. In early 1975 the Governor became aware that De Eose’s law firm had entered into a five-year retainer agreement with Porter and Eipa Associates, Inc., an engineering firm, for the monthly payment of $10,000 by way of compensation. The retainer agreement, dated January 15, 1974, required the law firm, not merely De Eose, to make its members available at all times for the purpose of rendering the following enumerated professional services:

a. The rendering of general legal advice and opinions concerning all aspects of the business of client.

b. The negotiation, preparation and review of contracts entered into by client with third persons, including employees of the client.

c. The preparation and review of Environmental Impact Statements required by the National Environmental Policy Act of 1969 and subsequently enacted state statutes and regulations.

d. Eeview of and response to correspondence, attendance at meetings as requested, response to and initiation of phone communication as requested.

e. The institution or defense of any lawsuit in any court in New Jersey, before any administrative body, or before any arbitrators or mediators.

f. All other legal duties not specifically set forth herein which reasonably and necessarily relate to client’s interests.

5. The Governor then requested an opinion from the Attorney General of New Jersey as to whether De Rose’s legal representation of Porter and Ripa Associates, Inc., while a member of the Waterfront Commission, violates the New Jersey Conflicts of Interest Law. That opinion, dated April 9, 1975, was duly rendered to the Governor with this conclusion :

There can be little doubt that De Rose is a state employee within the meaning of the conflicts statute. This much resolved, there is strong evidence of a conflict of interest in De Rose’s continuing agreement to represent Porter and Ripa before the D.E.P. [Department of Environmental Protection], as well as other evidence of a potential conflict of interest due to the adverse interests which may be espoused by the D.E.P. during its hearings. Although the issue is not free from doubt, the forceful language of the Conflicts of Interest Law and its accompanying legislative history strongly suggest that this situation be rectified in line with the remedies proposed above.

6. On May 7, 1975 the Governor wrote to De Rose as follows:

Dear Ralph:
For several days I have tried to contact you without success. Your office indicated that you were in Beirut and could not be reached.
I have received a Memorandum of Law from the Attorney General which concludes that your representation of Porter & Ripa Associates, Inc., while a member of the Waterfront Commission, violates the conflict of interest provision of New Jersey law. I am attaching a copy of the Attorney General’s report on this subject. The Attorney General has informed me that in the course of preparing this report, he considered 'carefully the arguments on the legal points which you made to him.
The normal procedures would require that the Attorney General forward this report to the Executive Commission on Ethical Standards for appropriate action. In the circumstances, I believe it would be preferable for you to resign your position as a member of the Waterfront Commission. This action would, in my judgment, be in the best interests of the State and of the Commission. I have previously indicated my belief that membership on the Waterfront Commission should become a full-time responsibility, and I intend to take appropriate steps toward that end.
I hope you will agree that a voluntary resignation is the best way to resolve this matter.
Sincerely,
s/ Brendan T. Byrne GOVERNOR

7. De Eose refused to resign, and on the next day, May 8, 1975, the Governor issued Executive Order No. 21 which recited and directed the following:

WHEREAS, the Waterfront Commission of New York Harbor was created by the States of New Jersey (P. B. 1953, c. 202) and New York (L. 1953, c. 882, c. 883) with the consent of Congress (67 Stat. 541, Act August 12, 1953, c. 407) to improve the conditions under which waterfront labor is employed within the Port of New York district, and
WHEREAS, that Commission consists of two members, one chosen by each State, each of whom shall receive compensation to be fixed by the Governor of each State, and
WHEREAS, the scope and the nature of the responsibilities assumed by each said commissioner require that his full time be devoted to that undertaking, and
WHEREAS, the Commission’s annual budget is submitted to the Governor of each State who then has thirty days to disapprove or reduce any item thereof;
NOW, THEREFORE, I, BRENDAN BYRNE, Governor of the State of New Jersey, by virtue of the authority vested in me by the Constitution and by the statutes of this State, do hereby ORDER and DIRECT:
1. That every commissioner of the said Waterfront Commission of New York Harbor, heretofore or hereafter chosen by the State of New Jersey, shall devote his entire time to the duties of the Commission and shall not engage in any gainful employment other than his official duties or responsibilities as a commissioner.
s/ Brendan T. Byrne GOVERNOR

8. On May 15, 1975 De Eose instituted this action by way of verified complaint and order to show cause seeking temporary restraints. On that day this court met in chambers with De Bose’s attorney and with the First Assistant Attorney General representing the Governor. Because of the very preliminary posture of the matter and with due deference for a coequal branch of government this court declined to issue an outright restraint against the Governor but instead directed that the Governor not take any steps to enforce his executive order except upon seven days’ notice to De Rose’s attorney.

9. On the adjourned return day of the order to show cause, June 5, 1975, this court again declined to- restrain the Governor, reimposed the same direction as aforesaid as to seven days’ notice and also ordered that the Attorney General “be obliged to notify the court promptly of any adverse action which may hereafter be contemplated against plaintiff and of which the Attorney General has knowledge * * *”

10. Both sides thereafter moved, in due course, for the entry of summary judgment. De Rose’s supporting affidavit, not challenged in any way, shows that he devotes approximately 20 hours a week to his duties as commissioner, with the remainder of his working hours spent as a partner in his law firm; that he receives a salary as commissioner of approximately $33,000 a year and that from the very inception of the Waterfront Commission in 1953 the New Jersey commissioners all served part-time and engaged in other gainful employment — usually the practice of law.

11. The Governor’s supporting affidavit, dated June 27, 1975, recites in pertinent part:

3. In discussions which I had with plaintiff prior to his appointment as New Jersey’s representative to the Waterfront Commission of New York Harbor, it was anticipated that service on the Commission would proceed on a part-time basis. At the time of those initial conversations, however, I was aware neither of plaintiff’s intention to represent private clients before various New Jersey State agencies nor of the magnitude of the work required by him in dealing with his private practice. With particular reference to Porter & Ripa Associates, Inc., I was unaware of the extraordinary demands of availability and potential service which are called for under plaintiff’s arrangement with that client. I was then aware neither of the retainer arrangement which plaintiff had with that client, nor of the fact that plaintiff had previously represented Porter & Ripa before the Department of Environmental Protection, nor of plaintiff’s agreement to represent Porter & Ripa before this agency and possibly other State agencies in the future.
I am convinced, as stated in my May 7, 1975 letter to plaintiff, that the responsibilities of the office are of sufficient sensitivity and importance to justify full-time attention. This view is reflected in Executive Order No. 21 of 1975 which I promulgated on May 8, 1975. New Jersey’s representative to the Waterfront Commission should not, while he serves, engage in private employment or enterprise and, with reference to the present circumstances, he should not undertake to represent private clients, particularly before other State agencies. Such full-time service is essential to the avoidance not only of actual conflicts of interest but also of the appearance of such conflicts. The nature and importance of the office of Waterfront Commissioner, as well as the need to maintain public confidence in the Waterfront Commission and in government generally, demands no less. These considerations, especially when coupled with the sensitive and far-reaching responsibilities of the post, require the New Jersey representative to devote his full time and attention to his public duties and to eschew other efforts for private gain.

12. Three days after executing the foregoing affidavit in which he reiterated the direction contained in Executive Order No. 21 that De Eose devote full-time and attention to his public duties and not engage in any other gainful employment, the Governor, without notice to the court and apparently without notice to the Attorney General, directed a letter to the executive director of the Waterfront Commission disapproving the $33,390 salary item for De Eose in the 1975-1976 budget of the Commission and ordered that it be eliminated.

I

Although the issues have been framed in legal fashion, the political overtones of this dispute are unmistakable. Nevertheless, this court may not concern itself with nor speculate upon these extrajudicial matters. Nor is there before the court any question as to the propriety of the Porter and Eipa retainer agreement and the substantial compensation to be earned by the De Eose law firm thereunder. Undoubtedly, these factors are of interest to the Governor and may have motivated his actions. This court, however, is not required to pass upon the same in view of its analysis of the applicable legal issues.

II

The core of the problem presented centers about the construction and interpretation of the New Jersey Conflicts of Interest Law, N. J. S. A. 52 .13D-12 et seq. and its applicability to a member of the Waterfront Commission of New York Harbor, a bi-state agency created by compact between the Legislatures of New York and New Jersey and approved by act of Congress. Specifically, the question is whether the Waterfront Commission is a state agency and De Rose a state officer within the meaning and scope of the conflicts of interest law.

The current version of the Conflicts of Interest Law, L. 1971, c. 182, § 1 et seq., effective January 11, 1972, was designed to regulate the outside or unofficial conduct of state officers and employees and members of the Legislature in order to avoid activities which create an impression that their public trust is being violated.

N. J. 8. A. 52:13D-16(b) provides in pertinent part that

No State officer * * * nor any partnership * *’ ■r in which he has an interest, nor any partner * * * or employee of any such partnership # * * shall represent, appear for, or negotiate on behalf of, or agree to represent, appear for, or negotiate on behalf of, any person or party * * * in connection with any cause, proceeding, application or other matter pending before any State agency; * * *

A “state officer or employee” means any person holding an office or employment in a state agency, N. J. S. A. 52:13D-13(b), and a “state agency” is defined as “any of the principal departments in the Executive Branch of the State Government, and any division, board, bureau, office, commission or other instrumentality within or created by such department * * * and any independent State authority, commission, instrumentality or agency * * *.” N. J. S. A. 52:13D-13(a).

The “head of a state agency” means (1) in the case of the Executive Branch of the State government, the department head or, if the agency is not assigned to a department, the Governor, and (2) in the case of the Legislative Branch, the chief presiding officer of each house of the Legislature. N. J. S. A. 52:13D-13(d).

The Waterfront Commission is not assigned to any department of State Government and hence, within the context of this statute, the Governor is deemed to be its “head” if it is a “state agency.”

N. J. S. A. 52:13D-23 imposes a key duty upon the head of each state agency in order to make the Conflicts of Interest Law a workable piece of legislative machinery. “The head of each State agency * * * shall within 6 months from the date of enactment [of the New Jersey Conflicts of Interest Law — June 2, 1971] promulgate a code of ethics to guide the conduct of * * * the State officers and employees in the agency to which said code is applicable.” When formulated such code must first be approved by the Attorney General and the Executive Commission on Ethical Standards.

It is conceded by the Attorney General that neither the present Governor nor his predecessor has since June 2, 1971 ever caused to be promulgated a code of ethics to guide the conduct of the New Jersey member of the Waterfront Commission, nor has the Waterfront Commission itself deemed this particular statute applicable and formulated a code of ethics for itself pursuant to its terms and standards.

Is this failure on the part of the Governor to promulgate a code of ethics for an agency which he is deemed to “head” by virtue of the statute simply neglect and oversight on his part or rather a recognition that the New Jersey Conflicts of Interest Law was not intended to cover bi-state agencies such as the Waterfront Commission of New York Harbor? For reasons hereafter stated, there was no neglect on the part of the Governor. The Waterfront Commission is not a state agency and De Rose is not a state officer within the meaning of the New Jersey Conflicts of Interest Law.

As the product of an interstate compact, the Waterfront Commission is not a single state agency created and exclusively controlled by one state. It is an instrumentality of the States of New York and New Jersey and beyond being an agent of each state it is an agent of both of them. State v. Murphy, 36 N. J. 172, 185-186 (1961). At one ánd the same time it is part of both states. Cf. Delaware River and Bay Auth. v. New Jersey Public Employment Rel. Comm’n, 112 N. J. Super. 160, 165 (App. Div. 1970), afffd 58 N. J. 388 (1971). Consequently, De Rose, once having been appointed as the New Jersey member of the Waterfront Commission, N. J. S. A. 32:23-8, became as much a part of the governmental structure of New York as he is part of the governmental structure of New Jersey. All bi-state officers occupy a unique status and cannot be classified as an officer of a particular state without simultaneously being classified as an officer of all states party to the interstate compact.

While the external affairs or outside conduct of bi-state agencies and their officers may be subject to some state regulation, Agesen v. Catherwood, 26 N. Y. 2d 521, 311 N. Y. S. 2d 886, 260 N. E. 2d 525 (Ct. App. 1970), the internal structure of the New Jersey Conflicts of Interest Law precludes such application here. The Attorney General would isolate and apply N. J. S. A. 52:13D-16 (b) against De Rose on the abstract proposition of his being a state officer and would ignore other provisions of the law relative to employees of an agency or the promulgation of a code of ethics for officers and employees of an agency. Unfortunately, he may not do so.

The various provisions of a single act must be so read that all may, if possible, have and be given effect without repugnancy or inconsistency so as to render the statute a consistent and harmonious whole. A court is bound to read the entire statute and construe it as a homogeneous whole rather than to limit its focus on an isolated section. No single component part may be utilized to ascertain the true meaning and scope of the entire statute. In the interpretation of a statute the Legislature will be presumed to have inserted every part thereof for a purpose. The different parts of a statute reflect light upon each other and statutory provisions are regarded as in pari materia where they are parts of the same act. A statute should not be construed in such manner as to render it partly effective or inefficient if another construction will make it wholly effective. If a statute is at all applicable, it applies in its entirety and must be given effect accordingly. Delaware River and Bay Auth., supra, 112 N. J. Super. 164; Denbo v. Moorestown Tp., 23 N. J. 476, 481-482 (1957); Wager v. Burlington Elevators, Inc., 116 N. J. Super. 390, 395 (Law Div. 1971); State v. Madewell, 117 N. J. Super. 392, 394-395 (App. Div. 1971), aff'd 63 N. J. 506 (1973); State v. Kress, 105 N. J. Super. 514, 520 (Law Div. 1969); State v. Angleton, 89 N. J. Super. 85, 89 (App. Div. 1965); Gould v. Theresa Grotta Center, 83 N. J. Super. 169, 175 (Law Div. 1964) aff'd 89 N. J. Super. 253 (App. Div. 1965). See 73 Am. Jur. 2d, Statutes, § 191 at 389-390; § 250 at 423, 424; 2A Sutherland, Statutory Construction (4 ed.), § 46.05 at 56.

If the act were made to apply in its entirety to the Waterfront Commission, the following would be contemplated:

1. The Governor as “head” of the agency (which he is not) or the agency itself must formulate a code of ethics to apply to its officers and all employees, whether they reside in New Jersey or New York. N. J. S. A. 52:13D-23 (a). Any code of ethics promulgated by the agency itself must have the concurrence of the New York Commissioner. N. J. 8. A. 32:23 — 9. New Jersey, of course, may not impose its will upon the New York Commissioner without his consent.

2. The Executive Commission on Ethical Standards would be empowered to suspend from employment with the Waterfront Commission and fine any officer or employee, including the New York commissioner appointed by the Governor of New York (who becomes by virtue of his appointment an officer or agent of New Jersey), who is found to have violated any provisions of the code.

Not only was the foregoing not contemplated by the Legislature in enacting the Conflicts of Interest Law but the onus thereby imposed on a bi-state instrumentality without the consent of New York would violate and impinge upon the terms of the compact. See Delaware River and Bay Auth. v. New Jersey Public Employment Rel. Comm’n, supra, where the New Jersey Employer-Employee Relations Act was held not to apply to a bi-state agency described by the court as “a single agency of government of both states.” 112 N. J. Super. 165.

In order to avoid such result, the New Jersey Conflicts of Interest Law must be Tead and construed as not applying to interstate instrumentalities. The only manner in which the act may be applied as a harmonious whole is to exclude bi-state agencies. Hence, the Attorney General’s construction which would carve out and apply only sections suitable to the Governor’s position may not be adopted.

Ill

Can Executive Order No. 21 convert the position of the New Jersey member of the Waterfront Commission of New York from a part-time to a full-time post?

The Attorney General admits the absence of the existence of any state of emergency which prompted the Governor to issue Executive Order No. 21 changing the terms of De Eose’s office in midstream when he had initially agreed to it being part-time. Eather, the justification is sought in the Governor’s subsequent awareness of the magnitude of the work required by De Eose in dealing with his private practice and of the extraordinary demands of availability and potential service which are called for under the retainer agreement with Porter and Eipa Associates, Inc. These activities of De Eose must yield, the Governor concludes, to the responsibilities of the office of Waterfront Commissioner which he holds are of sufficient sensitivity and importance to justify full-time attention.

None of the foregoing reasoning is supportive of the executive order. Completely ignored are the facts and the law. The Porter and Eipa retainer agreement is not solely with De Eose but with his law firm, and the legal responsibilities undertaken thereby are the law firm’s and not solely De Eose’s. His affidavit, not controverted, indicates that he has sufficient working hours to accommodate the needs of his official office.

Additionally, the Legislatures of New York and New Jersey, in establishing the Waterfront Commission in 1953, contemplated either part-time or full-time commissioners at their option. Note N. J. 8. A. 32:23-ll, which provides that the “powers and duties of the commission may be exercised by officers, employees and agents designated by them, except the power to make rules and regulations.” The commissioners opted for the appointment of subordinate officers and employees to carry out the day-to-day operations of the Waterfront Commission and thus confined themselves to rule-making and supervisory functions which they considered to be part-time. Every New Jersey commissioner serving prior to De Eose has functioned on that basis. Clearly, this finds legal sanction in the original compact between the states. The Governor has not shown, as was his burden, that the responsibilities of a waterfront commissioner and the needs of the office or its sensitivity have changed over the years since 1953 to now warrant full-time service.

An executive order must find support for its validity either in a state of facts which gives rise to an emergent situation or must be based upon the furtherance of a legislative act or constitutional mandate. Youngstown Sheet Tube Co. v. Sawyer, 343 U. S. 579, 585, 72 S. Ct. 863, 96 L. Ed. 2d 1153 (1952). No such circumstance is here present. The absence of an emergency is conceded; De Rose is not an employee of the Executive Department; his salary is not paid by the taxpayers of New Jersey but by assessments levied upon companies using port facilities and operating under authority of the commission, N. J. S. A. 32:23 — 58; neither legislature has authorized unilateral executive orders which could affect the office of waterfront commissioner, and the Constitution of New Jersey does not speak to the point.

Even with respect to purely state officers, such as prosecutors within the Executive Department and under the control of the Governor, when the Governor sought to make them full-time and prohibit them from the practice of law or other' gainful employment, it required an act of the Legislature which when adopted, applied prospectively only and not to those prosecutors holding office at the time of passage. L. 1970, c. 6, § 1, approved February 9, 1970.

Moreover, were De Rose’s position to be made full-time while his coequal New York commissioner remains part-time, a serious question would arise as to a denial to De Rose of the equal protection of the laws. Generally speaking, all persons in like circumstances and like conditions must be treated alike, both as to privileges conferred and as to liabilities or burdens imposed. De Rose may well argue that without similar action being taken by the Governor of New York, Executive Order No. 21 is a constitutional nullity.

One final issue remains for decision. Was the Governor’s act in eliminating De Eose’s salary from the budget of the Waterfront Commission, in view of the Governor’s steadfast position, by executive order and recent affidavit, that De Eose “devote full time and attention to his public duties” and that he “eschew other efforts for private gain” valid? Or was his attempt to require a public official to work full-time for no compensation an arbitrary and capricious exercise of executive power? In order to furnish a proper basis for judicial decision, counsel are directed to amend the pleadings in the cause so as to frame this issue which arose only after the cross-motions for summary judgments had been filed.

For the foregoing reasons, De Eose is entitled to retain his position on a part-time basis as a member of the Waterfront Commission of New York Harbor free of any restriction contained in the New Jersey Conflicts of Interest Law.

      Senate Bill No. 3046 introduced in the current legislative session on February 13, 1975 for the purpose of extending the provisions of the New Jersey Conflicts of Interest Law, while not binding upon this court, impliedly recognizes as much in its statement: “Members of interstate bodies are officers of both states party to the compact, and thus are not ‘state officers’ subject to the present Conflicts of Interest Law.”

      By its terms N. J. S. A. 52:13D-16(b) would not seem to apply to prospective matters, i. e., where an attorney ( — ) state officer might in the future be called upon to represent a client before a state agency. The act seems only to prohibit representation before state agencies in matters presently docketed and then pending before them. No one has been able to point to any matter now pending before a state agency in which De Rose or his law firm appears — only that such future possibility exists.


author: Miller, J. C. C.,

text:
    MICHAEL GRUCCIO AND PHYLLIS GRUCCIO, HIS WIFE, PLAINTIFFS, v. DAVID BAXTER, M.D., ELMER MAT-TIOLI, M.D., AND MILTON FINEMAN, M.D., DEFENDANTS.
    Superior Court of New Jersey Law Division
    June 24, 1975.

      Mr. Marvin D. Perskie for plaintiffs (Messrs. Perskie and Callinan, attorneys).

      Mr. Burchard V. Martin for defendants David Baxter, M.D. and Elmer Mattioli, M.D. (Messrs. Martin, Crawshaw & Mayfield, attorneys).

      Mr. James W. Taylor for defendant Milton Eineman, M.D.
   Miller, J. C. C.,

Temporarily Assigned. Plaintiffs seek to amend a pretrial order previously entered by adding under paragraph seven thereof, as an additional legal issue, “lack of informed consent and assault and battery and the damages therefrom.” R. 4:25-1 (b) (7). The motion was precipitated by the suggestion of the court during the pretrial conference when plaintiffs insisted on the inclusion of such issues in the pretrial order. The court declined to include this issue, but, mindful of the sanctions imposable under In re Contempt of Carton, 48 N. J. 9 (1966), suggested this motion to afford both sides opportunity to research and argue the matter. Insofar as applicable, the facts pleaded or disclosed are as follows. (The complaint is woefully deficient of factual allegation, although replete with unsupported conclusions of law).

Defendants Baxter and Mattioli are engaged in the practice of general surgery. Defendant Eineman is engaged in the practice of internal medicine. Michael Gruccio was, during the times complained of, a patient of some or all of the defendants. In 1972 he complained to Eineman of certain symptoms in his left lower abdomen, the history being suggestive of diverticulitis. An admission to the hospital as a medical patient disclosed an abdominal mass. He was admitted to the service of defendant Baxter and on December 4, 1972 his abdomen was explored surgically by Baxter, assisted by Mattioli. A mass the size of “one’s double fist” was discovered adherent to the dome of the bladder and to the area of the promontory of the sacrum and the iliac vessels. Baxter felt this mass was cancerous, declined to remove it, and advised plaintiff he had terminal cancer and that the mass was irremovable. This diagnosis was wrong and the mass was later removed by another surgeon and found to be benign. This suit resulted, Gruceio’s wife suing per quod.

Eor an analysis of the issues presented reference must be had to the complaint, which, absent amendment, governs the course of plaintiff’s ease. R. 4:9; 4:25-1. An analysis of this complaint discloses that the acts complained of recite “malpractice * * * in that they * * * negligently diagnosed his condition * * * and wrongly advised the plaintiff that he had a short terminal illness.” It is further alleged that they “negligently carried out surgical procedures * * * and negligently performed a procedure that was unindicated in the first place.” Other allegations in the complaint are mere conclusions of law and do not constitute proper pleading. Untermann v. Untermann, 19 N. J. 507, 518 (1955); McKee v. Harris-Seybold Co., 109 N. J. Super. 555, 573 (Law Div. 1970), aff’d 118 N. J. Super. 480 (App. Div. 1972). The ad damnum clause seeks compensatory damages, interest and costs. Punitive damages are not sought.

Paragraph three of plaintiffs’ pretrial memorandum, which is quite complete, recites in detail facts supporting the above allegations of the complaint and further contains the following intriguing language:

“Plaintiff incorporates all allegations of negligence made in Ms interrogatories. Also, the defendants failed to inform the plaintiff of the risks and complications attendant to the surgery that was performed in accordance with contemporary community standards and therefore, the surgery that was performed, was obtained without an informed consent and constituted the assault and battery for which compensatory and punitive damages are sought. The action sounds in negligence, malpractice, lack of informed consent, and assault and battery.” (Emphasis supplied).

It is to be noted that the language of this paragraph differs significantly from that of the complaint and constitutes a radical and unwarranted departure therefrom. It demonstrates graphically the effect of deviation from the practice of good pleading, and the confusion between the practice of permitting liberal amendments to pleadings in order to prevent injustice, on the one hand, and the fundamentally necessary requirement that a viable cause of action be properly pleaded on the other.

This confusion more often than not generates wasteful and unnecessary expenditures of time and money by counsel and courts. It frequently results in delay, expense and injustice. A return to basics would appear appropriate.

R. 4:5-2 states as follows: “A pleading which sets forth a claim for relief * * * shall contain a statement of the facts on which the claim is based, showing that the pleader is entitled to relief* * *” (Emphasis supplied). Nothing in recent jurisprudence has appeared to emasculate the forceful and concise language of Grobart v. Society for Establishing Useful Mfrs., 2 N. J. 136 (1949) :

The flexibility and seeming informality of pleadings * * * should not deceive one into believing that the essentials of sound pleading * * * have been abandoned. Quite the contrary; the objective of reaching an issue of law or of fact in two or at the most three simple pleadings has been attained, but not at the sacrifice of stating the elements of a claim or of a defense. They remain the same as at common law as a matter of substantive law as well as of good pleading. “The forms of action we have buried, but they still rule us from their graves.” Maitland (1940) Forms of Action at Common law, p. 2. [at 150]

Grobart, while possibly forgotten (or unlearned), remains an outstanding example of the essential function of modern pleading. It ought to be required reading for every law student.

It is true that the legal system has moved far from the days when pleadings constituted straightjaokets. R. 4:9-1 permits amendments, R. 4:9-2 permits them to be made to conform to the evidence (but only after fair notice), and R. 4:9-3 permits them to relate back (if it can be done without prejudice). This rule is necessary to avoid injustice, to prevent a party from being injured by his (or his counsel’s) failure to perceive his proper course of action. But it must be read in conjunction with the spirit of all, particularly R. 4:5-2 and Grobart. Liberal as our practice is, it does not justify the pleading of mere conclusions without facts, followed by reliance upon subsequent discovery (without a frame of reference) to justify a lawsuit.

It is just inexcusable to plead merely a conclusion and thereafter attempt to justify this action by an attempt to resort to the discovery practice permitted by our rules. Such discovery is intended as an aid to every litigant to avoid surprise and make a lawsuit an inquiry into truth and justice. It is not (and was not intended) to be a substitute for good pleading, a shield for the lazy pleader or a means of avoiding the requirements of pleading legally sufficient facts. So vague a pleading ought to be met promptly by a motion for a more definite statement under R. 4:6-4. If such statement is not promptly forthcoming, the pleading should be promptly stricken after a motion under B. 4:6-5. Our discovery practice is no more a cure to legally deficient pleadings than aspirin is to cancer.

Measured by these standards an analysis of the instant case indicates clearly both the thrust and deficiencies of the plaintiffs’ case. Obviously the gravamen of the case sounds in tort. It is, by the plaintiff’s own statement, a medical malpractice case. Plaintiffs would attempt to make medical malpractice a separate tort, sui generis, but this is patently an erroneous assumption. A medical malpractice suit is merely an expensively labelled negligence ease. It involves an alleged deviation from a given standard of performance by one claiming to be skilled in his field. Schueler v. Strelinser, 43 N. J. 330, 345 (1964); Toy v. Rickert, 53 N. J. Supw. 37, 31 (App. Div. 1958). In the final analysis it is distinguishable from an ordinary negligence case only by its factual background and possibly by more dramatic damages. There can be fairly spelled out in this complaint and pretrial memorandum the essentials of such a cause of action, sounding in negligence. Plaintiffs are obviously entitled to proceed with their proofs.

This motion, however, seeks to go further. Despite a lack of any such allegations in the complaint, plaintiffs’ factual and legal contentions quoted hereinabove seek to impose liability and punitive damages on defendants on the theory of an assault. This ingenious theory bottoms itself on supposed deviation from informed consent. It is alleged that such deviation constitutes assault; that for assault, punitive damages will lie. Manifestly this must presuppose willful or wanton misconduct on the part of defendants, for punitive damages or “smart money” are damages imposed by the law upon this type of defendant. Hot one fact is alleged to justify such damages, and conclusions without facts are impotent in the law. See Berg v. Reaction, Motors Div., 37 N. J. 396, 412 (1962); Neigel v. Seaboard Finance Co., 68 N. J. Super. 542, 554 (App. Div. 1961). The charged deviation from “informed consent” was the failure to remove the mass. Ho straining of the English language can convert inactivity into an assault. Non-action can never become action.

Plaintiffs need not include “lack of informed consent” as a legal issue under paragraph seven of the pretrial order. Such “lack of informed consent” would obviously constitute a deviation from a standard of care, and, if proven, would be actionable. Cf. Bennan v. Parsonnet, 83 N. J. L. 20 (Sup. Ct. 1912). To that extent their motion is denied as unnecessary since it is already within the scope of the pretrial order.

Plaintiffs’ application to include assault is denied. Hothing in the case remotely suggests a deliberate tort (as an assault must be) and only in plaintiffs’ pretrial memorandum does such suggestion occur. Until such time as plaintiffs can allege facts, they then will become able, under our liberal practice, to formally move to amend. The court must then look on their application with favor. Until then, they, as all parties to a lawsuit, must be bound by the rules of good pleading and the words of the old legal maxim, “Out of the facts the law ariseth.”

The motion is denied. In view of the fact that the motion was invited by the court it would be manifestly unjust to impose costs.