author: Coiaestek, J. A. D. Confokd, P. J. A. D.,

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JACOB ROSEN, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued September 15, 1969
    Decided October 23, 1969.
    See also 110 N. J. Super. 212.

      Before Judges Coneokd, Coiaestee and Kolovsky.

      Mr. Louis Lipschitz, a member of the Pennsylvania Bar, argued the cause for appellant {Mr. Frederick H. Martin, attorney).

      Mr. Myron H. Gottlieb, Assistant Prosecutor, argued the cause for respondent {Mr. Martin J. Queenan, County Prosecutor, attorney).
   The opinion of the court was delivered by

Coiaestek, J. A. D.

This is an appeal from an order dismissing defendant’s petition for post-conviction relief.

Defendant Jacob Rosen was indicted for (1) breaking and entering with intent to commit larceny and (2) possession of burglar’s tools. Pending trial Angelo Malandra, his retained attorney, was appointed to the bench. At the trial Ralph Kmiee, Judge Malandra’s former law associate, appeared to represent the defendant. Rosen objected to proceeding contending he had retained Malandra and not Kmiee. The trial judge said Rosen must have known for some weeks that Malandra had become a judge, that if he wanted an attorney other than Kmiee he should have engaged one, that the ease was one of the oldest in the county and he was not inclined to grant a further adjournment. The judge granted a recess in order that defendant could confer with Judge Malandra, who, he was informed, was on the way to the court house. However, he said it was his “present thinking” that, if necessary, he would appoint Kmiee to serve as defendant’s attorney and to proceed with the trial. Following the recess the defendant informed the court that he was ready and willing to proceed, that he did not wish to wait until Judge Malandra’s arrival, and that it was all a misunderstanding.

Defendant was convicted by the jury of breaking and entering with intent to commit larceny and acquitted of the charge of possessing burglar’s tools. On July 7, 1967 he was sentenced to a State Prison term of 3 to 5 years, which sentence was later reduced to 2 to 3 years. A direct appeal on his behalf was taken to this court by Mr. Kmiec who raised eight grounds for reversal in the brief he filed on October 5, 1967. On March 26, 1968 Mr. Kmiec was relieved as defendant’s attorney and thereafter defendant’s present attorney filed a supplemental brief and argued the appeal. In the supplemental brief defendant argued that he was entitled to a new trial because the trial court failed to allow him to select an attorney of his own choosing and coerced him to consent to a trial with Kmiec as his attorney.

The defendant’s conviction was affirmed by this court which specifically held there was no merit in the contention that he was not permitted to be represented by counsel of his own choice and also found that defendant had been given competent and skillful representation.

Defendant filed a petition for post-conviction relief alleging the same grounds urged on his direct appeal, viz., his right to counsel of his own choosing had been denied; he had been denied the effective assistance of counsel, and the trial court had coerced him to go to trial with counsel not selected by him. The post-conviction hearing judge dismissed the petition without a hearing. The judge ruled that all the points raised by the defendant had been passed on adversely to him on the direct appeal; that the only new matter set forth in the petition and advanced for the first time was defendant’s allegation that he had agreed to go to trial because Kmiec had told him his bail would probably be revoked if he insisted on retained counsel other than Kmiec.

On appeal defendant presents the same arguments made below and contends that the post-conviction hearing judge erred in not conducting an evidentiary hearing. The record clearly indicates that the issues raised before the post-conviction judge (except the allegation that Kmiec told him his bail might be revoked) were all passed on by this court on the direct appeal. It is well settled that an issue, even of constitutional dimension, once decided, may not be re-litigated. State v. Smith, 43 N. J. 67, 74 (1964) ; R. R. 3 :10A—5 [now R. 3 :22—5].

While we agree that it would have been more desirable for the post-conviction hearing judge to have conducted an evidentiary hearing to determine whether Kmiec told the defendant his bail would probably be revoked if he insisted on other trial counsel, we do not consider the judge’s failure to do so to constitute prejudicial error. There is no contention that the trial judge had knowledge of such a statement, if in fact it was made, or that the court threatened to take such action. And assuming that such a statement had been made by Kmiec it would not be a ground for a new trial, particularly in view of defendant’s subsequent statement to the trial judge that he was ready and willing to proceed with the trial. Cf. State v. Hale, 45 N. J. 255, 266-267 (1965). Moreover, we note that the defendant continued to retain Kmiec as his attorney to prosecute his appeal for a period of eight months following his conviction.

The order dismissing the petition for post-conviction relief is affirmed.

Confokd, P. J. A. D.,

dissenting. The transcript indicates the occurrence of the following when defendant’s case was called for trial:

“THE COURT: The next matter is tile matter of State of New Jersey versus Rosen and Sineavage.
It the State ready?
MR. KMIEC: If your Honor, please, T appear on behalf of the defendant Rosen. After discussing the matter with Mr. Rosen earlier this morning there arises this problem that he had originally retained Mr. Malandra with whom I was formerly associated to handle this matter, and it is essentially his position that Mr. Malandra is his attorney, not I. And this leaves me in a very embarrassing position with the Court. I have spoken with Mr. Malandra this morning and he is on his way here. I respectfully ask that it be held until his arrival so we can determine where we go from there.
THE COURT: Thank you, Mr. Kmiec. I can understand your position in this matter.
Where is Mr. Rosen?
MR. ROSEN: I am here.
THE COURT: I will address my comments to the Prosecutor and Mr. Kmiec and his client, Mr. Rosen.
First of all, Mr. Malandra now, and has been for some weeks. Judge Malandra. He cannot be, obviously as Judge, counsel for any defendant or any party in any Court. Now my present feeling — this comes as a surprise to the Court ■—• my present feeling is this case has to be moved and is going to be moved. It is one of the oldest cases in Burlington County. The offenses are alleged to have been committed back on July 5, 1965.
Now it seems to the Court that any defendant, or Mr. Rosen, knew or must have known that Judge Malandra has been a Judge these number of weeks. If he wanted other counsel, other than Mr. Malandra’s associate or partner, he could have and should have engaged such counsel. Now, furthermore, I am not at all impressed as to the sincerity of any such position because I am going to say this: I am not throwing bouquets at anyone. Mr. Kmiec is an experienced and very able attorney. I know that of my own personal knowledge. * * *
So I will, because of Mr. Kmiec’s sensitive, position — I understand how he must feel about his client’s attitude — I will grant a, few more minutes since Judge Malandra is going to be good enough and considerate enough to leave his Courtroom in Camden and come up here. I will out of deference to Judge Malandra and Mr. Kmiec grant a few minutes time. But we are not going to, and this is my present thinking, unless Judge Malandra has some compelling consideration, my present thinking is we are not going to postpone this case for a few weeks or a couple of months to allow any defendant more time to get another lawyer. This could have been done in the last month or more.
* * * as I say my present thinking is this ease is going to proceed and if the defendant is unwilling for it to proceed I will take the simple expedient as Judge by appointing Mr. Kmiec to serve. I don’t see how I have any alternative.
May I ask, Mr. Rosen, is this your position that you want some counsel other than Mr. Kmiec?
MR. ROSEN: At this time I would rather have the few minutes until Mr. Malandra gets here.
THE COURT: Judge Malandra.
MR. ROSEN: Judge Malandra gets here, and discusses it and clears it up.
THE COURT: We will recess for a few minutes. Will counsel stay available? (Whereupon the Court then took a short recess.)
(After recess.)
******** *
Let the record reflect that Judge Malandra has not arrived, has not consulted with any of the parties and apparently he is held up.
What is your wish, Gentlemen:
MR. KMIEC: Your Honor, at this point we are ready to proceed.
THE COURT: Mr. Rosen, let me ask you, after further consultation are you willing and ready to proceed in this case?
MR. ROSEN: Yes. It was a misunderstanding.
THE COURT: And you do not wish to wait until Judge Malandra gets here?
MR. ROSEN: No. I take my counsel’s word for that. I am ready.
THE COURT: Very well. The case will proceed. * * (emphasis by the writer)

The post-conviction petition recites that during the short recess reflected by the foregoing transcript “the defendant conferred with Mr. Kmiec. He was told that his bail would probably be revoked if he insisted on retained counsel or counsel other than Mr. Kmiec. The defendant thereupon agreed to be represented by Mr. Kmiec.”

The petition also alleges the following:

“There is no evidence in the record to show that Rosen knew when Mr. Malandra was appointed to a judgeship or that as a judge he was disqualified from representing the defendant. There was no evidence in the record to show when Rosen was advised of the listing of ihe case or that he had on any prior occasion requested a postponement of the trial.
The defendant-petitioner contends that he was deprived of counsel of his own choosing and effective assistance of counsel; that the Court’s statement required him to go to trial with Mr. Kmiec as his counsel; that additional time was needed to adequately prepare for trial ; that, petitioner did not waive his rights intelligently and voluntarily ; that foe was exposed to coercion and pressure. It is contended that Rosen’s submission to authority is insufficient to establish a waiver.” (emphasis by the writer)

On inquiry by this court at oral argument defendant represented to the court through counsel that if afforded a hearing ho would testify that he was unaware of Mr. Malandra’s appointment to the Bondi prior to the trial date and had not previously conferred with Mr. Kmiec.

It is my view that upon the total fact showing thus projected it was incumbent on the post-conviction judge to conduct a factual hearing to determine whether defendant was coerced into going to trial without representation by a prepared attorney of his own choice, necessarily including the subordinate material issue of whether any waiver of his constitutional right to such representation was voluntary. I do not regard the dismissal without hearing by the post-conviction judge to have been compelled by the determination of this court on the appeal from the conviction.

There can be no doubt that the constitutional right to counsel in a criminal case includes the right to counsel of one’s own choice. See Glasser v. United States, 315 U. S. 60, 70, 62 S. Ct. 457, 86 L. Ed. 680 (1942); People v. McLaughlin, 291 N. Y. 480, 53 N. E. 2d 356 (Ct. App. 1944); United States v. Bergamo, 154 F. 2d 31 (3d Cir. 1946). Clearly, at least a debatable factual issue as to whether defendant was coerced to agree to go to trial with counsel not of his own selection was presented by the combination of the preliminary remarks of the trial judge when the case was called for trial and the facts asserted by the petition for post-conviction relief. Whether defendant’s agreement after the recess to be tried forthwith with the representation of Mr. Kmiec constituted a voluntary waiver of his constitutional right to counsel was necessarily also a debatable factual issue, under the facts now asserted, and the burden of proof rested upon the State to establish voluntariness. Glasser v. United States, supra, 315 U. S., at 70, 62 S. Ct. 457; Burke v. United States, 328 F. 2d 399, 402 (1st Cir. 1964). If defendant’s factual assertions are established at a hearing the fact-finder obviously will be able to find that defendant’s ultimate acquiescence as recorded in the transcript was not voluntary.

It is plain to me that considerations of sound post-conviction procedure indicate that defendant should be afforded an evidentiary hearing under the extraordinary circumstances presented. “Where it is not clear that dismissal on the pleadings is the correct determination of the merits of the issues presented by the [post-conviction] application, the doubt should he resolved in favor of further inquiry * * Standards Relating to Post-Conviction Remedies, American Bar p. 63 (Approved Draft 1968).

The decision of the Appellate Division on the appeal from the conviction did not decide the issue presented to the post-conviction court. On that appeal the record as it then stood precluded any determination of more than whether the trial transcript demonstrated deprivation of defendant’s right to counsel of his choice. While the remarks of the trial judge were of a coercive tenor, the record seemingly demonstrated unequivocal acquiescence by defendant in the directions of the conrt. Defendant did not, nor could he properly, argue to the appellate court on that appeal that Mr. Kmiec’s representations to him during the recess combined with the trial court’s initial strictures made his agreement to go to trial involuntary, since the former facts were not in the record then before the court. Consequently the adjudication in the prior appeal was not a “prior adjudication upon the merits” of the specific grounds for relief asserted in the instant post-conviction petition, within a proper application of R. R. 3:10A-5 (Bar of Ground Expressly Adjudicated). Cf. Commonwealth v. Wood, 425 Pa. 612, 230 A. 2d 729 (S. Ct. 1967).

The majority says the failure to accord defendant an evidential hearing is not “prejudicial error.” It implies that the asserted statement by Kmiec to defendant is irrelevant as not imputable to the trial court. Of course, one cannot know whether such a statement, if made, is imputable to the trial court without hearing Kmiec’s testimony. In any event, if defendant in fact went to trial with Kmiee as counsel unwillingly, and only because of the threat, a fact-finder could, in my judgment, find that defendant had been deprived of his right to free choice of counsel, giving due weight to the pressure undoubtedly generated by the court’s opening remarks. While defendant’s ultimate remarks at the end of this colloquy are evidential against him, they are far from conclusive on the issue of voluntariness. In any case, when reviewing a prima facie wrongful denial of a post-conviction relief hearing on the facts, an appellate court should not in my judgment be astute to find absence of prejudice. This is not the road to effective implementation of the salutary policy underlying the adoption by the Supreme Court of the post-conviction relief procedure in 1964.

Finally, I cannot find material the circumstance alluded to by the majority that defendant permitted Kmiee to represent him on appeal from the conviction. If Kmiee was improperly forced on defendant at trial the constitutional injury was done, and he cannot be regarded as waiving his right to post-conviction relief because of his entirely reasonable decision to make the best of his then situation by having trial counsel handle the appeal in relation to trial error. He did, of course, make a preliminary effort to salvage his constitutional claim through supplemental counsel on the appeal, but I see no element of waiver therein.

       The statement in the opinion of this court on the prior appeal that “Defendant had been aware for several weeks that Ms retained counsel had been appointed to the bench and would be unable to represent him at trial" was undoubtedly an inadvertence since there was no evideneial support therefor in the record of the case. The trial court had said defendant “knew or must have known” that fact. But there was no evidence relating to actual knowledge at all.


source: Caselaw Access Project

author: Cofeord, P. J. A. D.

license: Public Domain

text:
    PAUL SVEC, PETITIONER-RESPONDENT, v. WESTFIELD MOTOR SALES CO., INC., RESPONDENT-APPELLANT
    Superior Court of New Jersey Appellate Division
    Argued February 9, 1970
    Decided April 29, 1970.

      Before Judges Cofeord, Collester and Kolovsky.

      Mr. Boland Vree'land argued the cause for appellant (Mr. Isidor Kalisclt, attorney).

      Mr. Otto O. 8laubach argued the cause for respondent (Messrs. Weiner. Weiner and Qlennon, attorneys).
   The opinion of the court was delivered by

Cofeord, P. J. A. D.

The nature of this litigation is indicated in the opinion of the Union County Court, reported at 105 N. J. Super. 226 (1969).

The principal ground of appeal is that the judge of compensation was without “jurisdiction” to ignore the finding of fact by the “referee, formal hearings” in the earlier section 22 proceeding (N. J. 8. A. 34:15-22) that there was no causal connection between the accident and any impairment of the eye itself, as distinguished from the injury to the eyebrow or forehead. The contention is that the stated earlier finding was res judicala and therefore precluded the later finding, even though made in a section 27 proceeding (N. J. 8. A. 34:15-27), that the claimed injury to the eye was causally related to the same accident, and the consequent conclusion that petitioner’s disability from the accident had increased since the first award.

We are in essential agreement ■with the reasons given by Judge Di Buono in the County Court for rejecting respondent’s argument. We add the following. The fact that a different bodily unit or function is implicated in the increased overall disability from that involved in the earlier award does not derogate from the appropriateness of section 27 relief. Sec Yecmans v. Jersey City, 27 N. J. 496, 509 (1958). Moreover, the fact that the judge of compensation in the later proceeding did not articulate his conclusions in terms of degree of increase of disability, as strictly as he should have, is not material since the substance of his determination amounted to such a finding, and the County Court placed its affirmance on that basis. See the County Court opinion, 105 N. J. Super., at 232-233.

On this appeal respondent raises for the first time the contention that it should have been credited in the final judgment for the $673.75 initially awarded against it for tho injury to the right eyebrow. We could well ignore the belated argument. Baginsky v. American Smelting & Refining Co., 88 N. J. Super. 69, 83 (App. Div. 1965), certif. den. 45 N. J. 588 (1965). It Avill suffice to say we have considered and find no merit in the contention.

Respondent also argues that the compensation court erred in allowing $10 per Aveek for the scheduled 200 weeks for loss of sight of the eye contrary to the rate of $35 per week fixed by the statute as it stood as of the date of the accident. N. J. S. /I. 34:15-12(c). This point was raised in the County Court by simple assertion in the respondent’s brief but was not dealt with in the opinion of that court, probably because not supported by argument. We deal Avith it because the question is important, has not been ruled upon before, and should he settled.

In allowing petitioner $40 per week against respondent for the sehednled 200 weeks of loss of sight of the eye the judge of compensation said :

* * * the rate being determined by the fact that his visual disability is a significant and necessary part of his total disability; and that being totally disabled as a result of this accident, in conjunction with other pre-existing but non-aggravated disabilities —• namely heart and nephritis — he should be paid at the rate applicable for total disability at the time of his accident.

The allusion to the, heart and nephritis conditions is related to the fact that after filing his petition for increased disability petitioner had also filed a petition for Fund (formerly known as the One Percent Fund) benefits pursuant to A. J. S. A. 34:15-95 based on the allegation that the combined effect of his employment-connected injury and other previous non connected ailments rendered him permanently and totally disabled. The judge of compensation found that this was so and that the heart disability and the nephritis disability were each 25% of total. No contention to the contrary has been made by anyone. Although the Attorney General, presumably representing the Fund, was present before the Compensation Division, he did not appear before the County Court or on this appeal. His nonparticipation will not, however, prejudice the Fund, for we have concluded that although petitioner is entitled to the $40 rate for the scheduled 200-week period, it is payable in entirety by respondent-employer and not to any extent by the Fund.

The issue presented, from the standpoint of petitioner, is merely whether he is entitled to $40 per week for the 200 weeks in question or only $35. But determination thereof is hardly separable, as a matter of statutory construction, from the question as to who is liable for the $5 difference, if petitioner prevails, as between respondent and the Fund. This is so because petitioner’s whole position is premised on the provisions of the Fund Act, specifically, A. J. S. A. 34:15-95.

The general purposes and objects of the Fund Act have been frequently reviewed by the courts and need not be detailed here. It will suffice to say that if a person already suffering partial permanent disability from a noncompensable condition or accident sustains a work-connected accident and becomes totally and permanently incapacitated from the combined effect of the two disabilities, he is entitled under section 95 to compensation for the full disability, but in such case the employer’s liability is limited to the portion of the incapacity produced by the employment accident, and the balance is charged to the statutory fund (except for certain situations specified in paragraphs (a) to (d) of section 95 not here claimed to be applicable). Belth v. Anthony Ferrante & Son, Inc., 47 N. J. 38, 48 (1966) ; Balash v. Harper, 3 N. J. 437, 442 (1950).

We address our attention first to whether petitioner is entitled to $40 a week rather than $35 for the 200 weeks scheduled for loss of sight of an eye in section 12(c) from someone, whether the $5 difference is due from the employer or the Fund. We think it hardly debatable but that he is entitled to the $40 rate. Section 95 expressly states that where a Fund situation is implicated, compensation pajunents shall be made “in accordance with the provisions of paragraph (b) of section 34:15-12.” That paragraph deals with “disability total in character and permanent in quality” and fixes a maximum allowance of $40 per week (it is not questioned that petitioner was entitled to the maximum as against the lesser rates specified in “Wage and Compensation Schedule” of section 12). It is therefore clear to us that the limitation of a $35 maximum rate in paragraph (c) of section 12 for such scheduled losses as the loss of. sight of an eye is intended not to be applicable when that loss is an integral part of the combined disabilities equating total and permanent disability which render operative the Fund provisions of section 95. Otherwise the workman-beneficiary of section 95 would realize less than the full maximum rate expressly specified in that section. We can only conclude that the scheduled limitation of $35 a week in section 12 (c), relied npon here by respondent, applies only when a claim for Ennd benefits under section 95 is not implicated.

This brings ns to the issue as to who is liable for the $5 weekly difference for the 200 weeks — the employer or the Fund.

Prior to the adoption of the amendment of section 95 by L. 1940, c. 133, the section read, in pertinent part:

In such cases [total disablement from tbe combined conditions or accidents] the compensation payable from such fund shall cover that portion of the period for which the employer is not legally responsible due to the permanent and partial disability suffered or possessed by the employee at the time that the employee sustained the injury as a result of which the employee became totally and permanently disabled. [Emphasis added]. See L. 1938, c. 198.

In the process of a rather sweeping revision and amendment of section 95 the Legislature, by L. 1940, c. 133, omitted the sentence quoted immediately hereinabove. But it inserted, in a different location of the revamped section, the following new language:

Upon the approval of an application for benefits, the compensation payable from such fund shall be made from the date when the final payment of compensation by the employer is or was payable for the injury or injuries sustained in the employment wherein the employee became totally and permanently disabled * * *.

This provision continued effective as of the date of the instant accident and down to the present time.

In Toohey v. Gorman, 125 N. J. L. 41 (E. & A. 1940), dealing with the statute as of prior to the 1940 amendment, the court stated (at 44) that “[t]he evident design of section 34:15-95 of the Revision * * * was to relieve the tiie employer of the obligation to render compensation for the portion of the period of disability for which he was ‘not legally responsible due’ to the permanent and partial disability suffered by the employe [sic] at the time the wholly disabling compensable injury was sustained.”

In the instant case the period of disability for which the employer is responsible obviously includes the 200 weeks specified by the statute for loss of the sight of an eye sustained in an accident at work. Under the rationale of the statute as expounded in the Gorman case, supra, accordingly, whatever money the employee is entitled to for the stated period of 200 weeks is allocable as the responsibility of the employer, not the Pund.

We find no basis for a different conclusion in the legislative revision of section 95 by L. 1940, c. 133, mentioned above. The new language added thereto and quoted above was, in our view, essentially a substitute for that omitted from the section as it previously stood. No intent for a substantive alteration in the respective responsibilities of the employer and the Pund is discernible to us from the change or argued by respondent. No clue of any such intent appears in the Statement of the introducers of the bill which was enacted into law as L. 1940, c. 133. To the contrary, the present statutory direction that compensation from the Pund does not begin until the final payment by the employer is made or payable strongly indicates that whatever payments appertain to the 200 weeks for the eye are to be met by the employer and are thus removed from any responsibility of the Pund.

Our ultimate conclusion that the employer must pay the additional $5 per week for the 200 weeks is not incompatible with the basic philosophy of the Pund legislation. Were it not for the Pund Act, as was demonstrated in Belth v. Anthony Ferrante & Son, Inc., supra, 47 N. J., at 45-48, employers would continue to be, as they previously were, responsible for the entirety of the total and permanent disability consequent upon an accident at work even though the disability would not have been permanent and total had it not been for a previous partial disability not attributable to the employment. See Combination Rubber Mfg. Co. v. Obser, 95 N. J. L. 43 (Sup. Ct. 1920), aff’d o. b. 96 N. J. L. 544 (E. & A. 1921). Respondent continues, notwithstanding today’s decision of the present case, to retain the basic benefit ol the Fund Act in that the Fund takes over liability for that period of disability (here., for the heart and nephritis conditions) distinct from the period of disability for the eye which is the exclusive responsibility of the employer. That it must pay for that period at the permanent and total rate does not undermine the basic benefit it retains under the Fund scheme.

Judgment affirmed.

       The rate was increased to $40 per Aveek by L. 1962, c. 57, § 1, but this fact Avas not the basis for the award in the compensation court and is here irreleA'ant.


author: Stamlek, (Joseph II.), J. S. C.

text:
    WEST MORRIS REGIONAL BOARD OF EDUCATION, IN THE COUNTY OF MORRIS; JO KOTULA; ROBERT T. OLSEN AND SUSAN BACCHUS, PLAINTIFFS, v. ARTHUR J. SILLS, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY; CARL L. MARBURGER, COMMISSIONER OF EDUCATION OF THE STATE OF NEW JERSEY; THE NEW JERSEY STATE BOARD OF EDUCATION; ABRAM A. VERMEULEN, DIRECTOR DIVISION OF BUDGET AND ACCOUNTING OF THE STATE OF NEW JERSEY; JOHN A. KERVICK, TREASURER OF THE STATE OF NEW JERSEY; LESLIE P. REAR, SUPERINTENDENT OF SCHOOLS OF MORRIS COUNTY, NEW JERSEY; AND THE BOARD OF EDUCATION OF THE TOWNSHIP OF MORRIS, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided April 28, 1970.

      Mr. Garret A. Hobart, IV, for plaintiffs (Messrs. Schenck, Price, Smith S King, attorneys).

      Mrs. Virginia Long Annich, Deputy Attorney General, for defendants (Mr. Arthur J. Sills, Attorney General of New Jersey).

      Mr. Arnold Chait, for defendant Morris Township Board of Education (Messrs. Vogel, Chait and Wacks, attorneys).
   Stamlek, (Joseph II.), J. S. C.

Plaintiffs are West Morris Regional Boaid of Education, two duly elected members of that board and a taxpayer of the Township of Morris. Defendants are the Attorney General of New Jersey, the Commissioner of Education, the State Board of Education, the State Director of the Division of Budget and Accounting, the State Treasurer, the Superintendent of Schools of Morris County and the Morris Township Board of Education. Plaintiffs, seeking a declaratory judgment in accordance with the provisions of N. J. S. A. 2A :16-5o (Hniform Declaratory Judgment Act), assert that N. J. S. A. 18A:39-1 is unconstitutional. Briefly stated, this latter statute requires school districts, under appropriate circumstances, to transport children residing in the district to and from nonpublic, non-profit schools up to 30 miles distant from their place of residence.

Plaintiffs attack the validity of this statute, popularly referred to as the “new school busing law,” on two basic grounds: (1) that the primary benefit of the legislation flows to institutions operated by religious orders and, therefore, tends to establish religion contrary to the Eirst Amendment of the Uniled States Constitution, and (2) assuming, arguendo, that the primary purpose of the legislation is “child benefit” and does not result in an Establishment Clause violation, plaintiffs contend that the classification of children benefited by this statute is arbitrary and discriminatory, and consequently violates the Equal Protection provisions of the Fourteenth Amendment of the United State's Constitution. Defendants take the position that the statute is valid in all respects.

The questioned statute permits boards of education to provide for the transportation to and from school of pupils who reside “remote from any schoolhouse” and includes therein transportation of both public school children and those who attend non-public, non-profit schools. However, the benefits of the statute for non-public school children only become operative if the district in the first instance transports public school children. This is the so-called “triggering” provision.

N. J. S. A. 18A :39-l provides in pertinent part as follows :

Whenever in any district there are pupils residing remote from any schoolhouse, the board of education of the district may make rules and contracts for the transportation of such pupils to and from school, including the transportation of school pupils to and from school other than a public school, except such school as is operated for profit in whole or in part.
When any school district provides any transportation for public school pupils to and from school pursuant to this section, transportation shall be supplied to school pupils residing in such school district in going to and from any remote school other than a public school, not operated for profit in whole or in part, located within the State not more than 20 miles from the residence of the pupil provided the per pupil cost of the lowest bid received does not exceed $150.00 and if such bid shall exceed said cost then the parent, guardian or other person having legal custody of the pupil shall be eligible to receive said amount toward the cost of his transportation to a qualified school other than a public school, regardless of whether such transportation is along established public school routes.
This section shall not require school districts to provide any transportation to pupils attending a school other than a public school where the only transportation presently provided by said district is for school children transportated pursuant to chapter 46 of this Title [18A:46-1 et se<?.] or for pupils transported to a vocational, tehnical or other public school offering a specialized program. Any transportation to a school, other than a public school, shall be pursuant to the same rules and regulations promulgated by the State Board as governs transportation to any public school. [Emphasis supplied]

If, in its discretion, the district determines that pupil transportation is advisable, then the district is reimbursed by the State to the extent of 75% of total cost “when the necessity for such transportation and the cost and method thereof have been approved by the county superintendent of the county in which the district paying the cost of such transportation is situate.” N. J. S. A. 18A:58-7.

After the present suit was commenced Judge Lora decided the case of McCanna v. Sills, 103 N. J. Super. 480 (Ch. Div. 1968), which decision upheld the constitutionality of the “busing statute” against an asserted violation of the Establishment Clause. Thereafter, Judge R. Cooper Brown reached the same conclusion in Board of Education of Woodbury Heights v. Gateway Regional High School Dist., 104 N. J. Super. 76 (Law Div. 1968). No appeal was presented in either case. Plaintiffs hero contend that these two trial court decisions are not binding upon this court, and this court is urged to reach the opposite result.

In the present case a stipulation of facts was filed and the parties brought the matter on for hearing on cross-motions for summary judgment. The stipulation in great part deals with legislative background. Judge Larner, in Fox v. Board of Education, 93 N. J. Super. 544 (Law Div. 1967), thoroughly detailed the history of the predecessor statute, R. S. 18 :14-8, and what occurred thereafter in the Legislature leading up to the present statute is described in McGanna, supra, and Woodbury, supra. Repetition here of such legislative history would be superfluous.

It is important to note that, effective July 19, 1968, an amendment to the new statute limited the per pupil cost to $150. Therefore, the details of dollar expenditures under the statute prior to this amendment, referred to at length in the stipulation, are not pertinent to the issues now raised.

It was stipulated by the parties that 75% of the funds advanced by each school district is being reimbursed by the State to the districts, whether each district paid for busing or found it more expedient to make direct payments of up to $150 to parents or guardians.

The stipulation also reveals that as of April 1967 there were 363,560 students enrolled in the non-public schools of Hew Jersey from kindergarten through grade 12. Of this total, 332,519 students were attending schools conducted under the auspices of the Roman Catholic Church. Thus, 91.4% of all the non-public school pupils attended schools affiliated with the Roman Catholic Church. As of April 1967, 88,782 students, 26.6% of the Roman Catholic school pupils, lived two miles or more from the school they attended. Of that number, 69,656 were transported to school by bus.

In the West Morris Regional High School District, for the 1967-68 school year, a total of 429 private school students were transported. Of that number, 346 students were transported to parochial schools. Defendant Morris Township Board of Education buses 519 pupils to non-public schools.

In contrast to West Morris Regional and Morris Township is the Town of Morristown. The stipulation acknowledges :

The Morristown Board of Education transported no public school students during the school year 1967-1968. It will transport no private and parochial students in the 1968-1969 school year because it provides no transportation for public school students.

It has been further stipulated that in many instances nonpublic school curricula include religious instruction and sectarian prayer.

Attending to plaintiffs’ first contention that the statute and its implementation violates the Establishment Clause of the First Amendment, this was fully argued in both McCanna, supra and Woodbury, supra, and this court adopts the conclusions of Judges Lora and Brown as they relate to the alleged Establishment Clause violation. In both cases the statute was held to be constitutional.

The second phase of plaintiffs’ attack is that the statute constitutes a denial of equal protection of the law. It is urged that the classification of children to receive the statutory benefits is arbitrary and consequently in violation of the Fourteenth Amendment. This issue was specifically not raised in McCanna, supra. From the record before this court, it was not fully presented in Woodbury, supra.

Plaintiffs, addressing themselves to the equal protection question, state paradoxically that this statute does not go far enough, while at the same time, under the Establishment Clause argument, they say the statute goes too far. Plaintiffs assert that the operation of N. J. 8. A. 18A:39-1 violates the Equal Protection Clause by reason of “under-inclusion.” Plaintiffs cite six categories of school children who are excluded from transportation by reason of the operation of the act, to wit: (1) New Jersey residents attending out-of-state schools; (2) students outside the 20-mile radius; (3) pupils attending profit-making private schools; (4) pupils living in districts which only transport handicapped children pursuant to N. J. 8. A. 18A:46-23; (5) students living in districts which only provide transportation to children attending public vocational schools, and (6) private or parochial non-profit school pupils residing in a district which provides no transportation to its public schools. Plaintiffs maintain that, by reason of these exclusions, the challenged act denies equal protection to pupils in the excluded categories. If the health, welfare and safety of all school children in the State are the underlying motives for the statute, plaintiffs ask why all school children should not receive its protection and benefits, regardless of where they happen to live ?

The United States Constitution, Amend. XIV, § 1 commands:

No State shall * * * deny to any person within its jurisdiction the equal protection of the laws.

Its application is directed to many areas of governmental activity, including primarily state legislation. Strauder v. West Virginia, 100 U. S. 303, 25 L. Ed. 664 (1880).

While the judiciary is obligated to insure and protect constitutional rights, it must simultaneously acknowledge that the Legislature is a coordinate branch of government, and its views are entitled to measured attention and respect. It is well settled that legislative enactments are presumed to be constitutional, and courts will strive to reach that decisional result. See In re Village of Loch Arbour, 25 N. J. 258, 264 (1957); WHYY, Inc v. Borough of Glassboro, 50 N. J. 6, 13 (1967).

Judicial application of the equal protection clause acknowledges that states must regard some of its citizens under separate circumstances and special situations differently from others. In Wilson v. City of Long Branch, 27 N. J. 360, (1958), the court considered a statute alleged to be discriminatory as against private property owners • and in favor of public utilities, contrary to the Fourteenth Amendment of the United States Constitution and Art. I, par. 5 of the New Jersey Constitution. There the court said:

But the Legislature may classify different types of property owners and treat them differently without offending the fundamental law. The requirement of equal protection is satisfied if all persons within a class reasonably selected are treated alike. And a classification is reasonable if it rests upon some ground of difference having a real and substantial relation to the basic object of the particular enactment or on some relevant consideration of public policy. If there is a reasonable distinction, there is no oppressive discrimination. The Legislature has a wide range of discretion in this area and distinctions will be presumed to rest upon a rational basis if there be any conceivable state of facts which would afford reasonable support for them. Robson v. Rodriquez, 26 N. J. 517 (1958). [at 377]

The court then concluded that public utilities were necessary adjuncts of the public welfare and that the Legislature could treat them differently from private property owners.

In New Jersey Chapter, American Institute of Planners v. New Jersey State Board of Professional Planners, 48 N. J. 581 (1967), the court reiterated that equal protection does not mean that regulation of a particular profession must serve to regulate all or none. The court said:

The Legislature has wide discretion in the creation of or recognition of classes for different treatment. Equal protection does not require that all persons be dealt with identically. If there is some reasonable basis for the recognition of separate classes, and the disparate treatment of the classes has a rational relation to the object sought to be achieved by the lawmakers, the constitution is not offended. The transgression arises only when the classification rests upon grounds wholly irrelevant to achievement of the State’s objective ; the separate treatment must admit of but one conclusion beyond a rational doubt, i. e., that the basis therefor is arbitrary and unreasonable, and without relevance to the legislative goal, [at 601]

But the decision in the Planners ease acknowledged that the judiciary has a duty to inquire into legislative acts and to intrude whore separate treatment afforded by a statute represents invidious discrimination, or where different treatment has no rational basis in relation to the expressed purpose of the legislation. Planners makes a distinction between licensed professionals exempt from examination and those seeking to be licensed and made subject to examination. In Wilson, supra, the statutory classification involved a separation of public utilities and private property owners. In the case at bar the subjects of the classification under the “busing statute” are all school children in New Jersey.

Education in our State is essentially a state-supervised function, and this includes private schools as well as public, religious as well as secular. Our state school laws require that all children between the ages of 6 and 16 attend school, public or private, or at least obtain equivalent instruction. N. J. S. A. 18A:38-25 et seq. (This is compulsory for all children, except those whose mental or physical condition would impose a burden upon the child. But in such cases, an opportunity for special schooling and transportation is available. N. J. S. A. 18A:46-1, 23.) The Legislature has established it to be a qua,si-criminal offense for parents to ignore this mandate (N. J. S. A. 18A:38-31), and a juvenile offense for a child to be truant (N. J. S. A. 18A:38-27). However, parents do have a constitutional right to choose the type and character of education they feel is best suited for their children, be it secular or sectarian. Pierce v. Society of Sisters, etc., 268 U. S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925).

The first inquiry in the determination of a statute’s constitutionality is as to the “purpose” of the particular measure. What are the objectives which the legislators might have had in enacting the statute? The essential integrity of the legislative arm of government is not to be impugned where a permissible purpose for the enactment is found. Although in Yick Wo. v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886), the questioned statute was held unconstitutional “because of unequal administration rather than unequal on its face,” the Supreme Court did say, by way of dictum, that the Equal Protection Clause demanded not only equal application of a law according to its terms, hut also “the protection of equal laws.” (118 U. S., at 369, 6 S. Ct. 1064. This proposition has been frequently cited and quoted with approval; e. g., Hines v. Davidowitz, 312 U. S. 52, 69, 61 S. Ct. 399, 85 L. Ed. 581 (1941); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942). It is abundantly clear that the purposes of the legislation and the legitimacy of legislative classifications are properly subject to judicial inquiry when considering equal protection arguments raised against a particular statute.

In Everson v. Board of Education, Ewing Tp., 133 N. J. L. 350 (E. & A. 1945), affirmed 330 U. S. 1, 67 S. Ct. 504, 91 L. Ed. 711 (1947), it was held that extending transportation benefits to non-pub]ie school students did not transgress the Establishment Clause of the First Amendment. Both the New Jersey Court of Errors and Appeals and the United States Supreme Court based their conclusions on a finding that the primary purpose of the legislation was “child benefit.” In Fox, supra, Judge Earner determined that the local school board did not have the power to transport children to nonpublic schools along independent routes, for such discretion was not authorized in the then existing legislation. 93 N. J. Super., at 565-566. The court there held that this result was ineluctable, notwithstanding the incorporation of the Everson doctrine into the New Jersey Constitution (Art. VIII. § IV, par. 3) and the acknowledgement in the Fox decision that no state funds were sought for or used in the proposed plans for transportation.

Judge Brown noted in Woodbury, supra, that the Legislature expanded the scope of the earlier legislation when it enacted the current statute, N. J. S. A. 18A:39—1. The revised law was intended to accomplish by legislative act that which Judge Earner had refused to do judicially in the Fox decision. Under the new statute, non-public school transportation is not limited to only established public school bus routes. Woodbury, supra, 104 N. J. Super, at 84.

The decision in Woodbury also dealt with the federal Equal Protection Clause as applied to N. J. S. A. 18A :39-l. Although not raised specifically by the complaint, the plaintiff in Woodbury did allego that the statute resulted in an unconstitutional classification of pupils with respect to the benefits available under the law. Judge Brown dismissed this attack and, under the facts there presented as outlined in Ms opinion, held that all similarly situated students were treated equally under the statute, according to a “remoteness criteria.” 104 N. J. Super., at 85-86.

But this does not answer the equal protection arguments raised in the present case. Here, the contention, in part, is that payments are made from public funds to some private school pupils who live remote from their schools to the exclusion of other private school pupils who also live remote and are similarly situated, except insofar as those pupils in the first group live in districts which happen to provide school transportation to their public school pupils, while those in the second category reside in districts which provide no such public school transportation. It would seem that the statute here in question leads to a paradoxical result, especially where, according to defendants, “the object of a school transportation law is to provide a general overall program for seeing that all children get to the school of their choice safely * * (Defendant’s brief; emphasis supplied)

Plaintiffs, who assail the statute, must overcome the presumption of constitutionality of legislative classifications and must carry the heavy burden of showing such classifications to be arbitrary. In David v. Vesta Co., 45 N. J. 301 (1965), the court said:

The constitutionality of a legislative classification is presumed, and one who assails the classification must carry the burden of showing its arbitrariness. A classification having some reasonable basis is not invalid merely because it is not made with mathematical nicety or because in practice it results in some inequality. And the classification must be upheld if any set of facts can reasonably be conceived to support it. In short, the equal protection clause forbids only invidious discrimination. [Citing cases; at 315]

In Rinaldi v. Yeager, 384 U. S. 305, 86 S. Ct. 1497, 16 L. Ed. 2d 577 (1966), the U. S. Supreme Court considered a New Jersey statute which required those imprisoned to pay for their trial transcripts, while permitting the guilty who were fortunate to receive only a fine, probation or suspended sentence in lieu of imprisonment not to be so obligated. In holding the statute to be unconstitutional Mr. Justice Stewart, speaking for the court, said:

The Equal Protection Clause requires more of a state law than nondiscriminatory application within the class it establishes. [Citing case] It also imposed a requirement of some rationality in the nature of the class singled out. To be sure, the constitutional demand is not a demand that a statute necessarily apply equally to all persons. ‘The Constitution does not require things which are different in fact * * * to be treated in law as though they were the same.’ [Citing ease] Hence, legislation may impose special burdens upon defined classes in order to achieve permissible ends. But the Equal Protection Clause does require that, in defining a class subject to legislation, the distinctions that are drawn have ‘some relevance to the purpose for which the classification is made.’ [Citing cases; at 308-309, 86 S. Ct. at 1499]

The equal protection issue in the present case resolves itself to whether or not the school children who fall under this statute’s operation are treated differently, although they are similarly situated except as to where each happens to live within the State. If such children are subject to different classifications (and therefore, different benefits) by the statute, the question then becomes whether there is some relevant and constitutionally permissible purpose for which such classifications are made.

Brought into sharp focus is not only the Equal Protection Clause of the 14th Amendment, but also three vitally relevant sections of our New Jersey State Constitution. Art. I, par. 5 of the New Jersey Constitution contains an equal protection clause whose language differs from that in the United States Constitution. Although the phrases differ, this clause has been held to mean that equality of right is fundamental, as in the United States Constitution, and both clauses forbid “class legislation” which arbitrarily discriminates against some and favors others in like circumstances. Washington National Ins. Co. v. Board of Review, 1 N. J. 545 (1949).

After describing the perpetual fund established for support of free public schools, its use is limited by the New Jersey Constitution as follows:

* * * tbe income thereof * * * shall be anually appropriated to the support of free public schools, for the equal benefit of all the people of the State; * * * [xlit. VIII, § IV, par. 2; Emphasis supplied]

The New Jersey Constitution, Art. VIII, § IV, par. 3, further provides:

The Legislature may, within reasonable limitations as to distance to be prescribed, provide for the transportation of children within the ages of five to eighteen years inclusive to and from any school. [Emphasis supplied]

Examining the “under-included” categories set forth in plaintiffs’ argument, the first category of “New Jersey residents attending out-of-state schools” results only in the exclusion of students who are not “similarly situated” to those benefited. No proof has been offered by plaintiffs and the stipulation does not acknowledge the existence of any students within this classification. However, the court will judicially note that some residents send their children to far distant, truly remote areas out of State, so that they may attend non-public schools. Their “safety” in going to and from school is not advanced by the statute here in question, since they are excluded by its very terms. However, this limitation is found to be permissible.

“Students going to schools outside the 20 mile radius” (the second category) are not required to be included, for the New Jersey Constitution (Art. VIII, § IV, par. 3) specifically permits the determination of “reasonable limitations as to distance” by the Legislature with respect to school transportation. It is not for this court to usurp legislative discretion by recommending a greater or lesser distance. This exclusion does not offend either the New Jersey Constitution or the United States Constitution, because the legislative classification is found to be valid. Also, no showing was made before this court that any such exclusion results in real and invidious harm.

As to the third category of “pupils attending profit-making private schools,” the record made by plaintiffs is also deficient. The court’s attention has not been directed by the parties to a single “profit-making private school” operating in New Jersey, nor to any students attending such schools who are denied the benefits of this statute. The burden of proving that this category of alleged “under-inclusion” is truly existent and discriminatory has not been maintained.

Categories (4) and (5) are composed of children who live in districts where only handicapped and vocational school children are to be transported. Here, the “triggering action” of the statute is unaffected by such transportation, in that transportation of handicapped or vocational school children does not necessitate the transportation of non-public school children. Such children are in specialized schools for specialized needs and obviously are not within the same classification as those who attend the required daily classes at regular elementary and secondary schools in our State, be they public or parochial. Therefore, these two cases of classifications which allegedly result in “under-inelusion” are held to be constitutionally valid.

The troublesome category is the sixth: “private or parochial non-profit school pupils residing in districts which provide no transportation to their public school pupils.” Here, plaintiffs’ contentions as to “under-inclusion” are supported by ample proofs in the stipulation.

Bor example, Morris Township and Morristown are divided in one area by South Street. Morris Township has determined, in its discretion, to transport public school children, and therefore it must provide (subject to statutory limitations) for non-public school children who reside in the district but who go to and from non-public schools outside the district. In contrast, Morristown does not provide any transportation for public school students, and therefore it need not under the statute provide for non-public school students. It is obvious that non-public school students might receive transportation under the statute’s terms in one instance, while being denied such aid in a second instance, depending on which side of the same street their families happen to reside! Such geographical division is not unique in our State. Bor example, Millbnrn and Summit are separated by a single roadway, and Millburn has opted to transport public school students while Summit has not. In like manner are Verona and West Orange, and other examples are apparent.

If students A and B reside as neighbors in Morris Township and students C and D live directly across the street in Morristown, the inequality of treatment will become apparent when hypothetical situations as to schools attended are examined. If A and C are pupils at Newark Academy (secular) and B and D attend St. Benedicts Academy or Delbarton School (parochial, when the description is used loosely), A and B will be transported whereas C and D will not. Morristown cannot under this statute be obligated to transport non-public school students (pupils C and D) if in its discretion it has determined that transportation of public school students is unnecessary. Nor can this court question the need or obligate Morristown to expend moneys for busing “public school students,” so that pupils C and D can receive treatment equal to pupils A and B. Morris-town and Morris Township, each with its separate municipal problems, are respectively entitled by statute to use discretion in determining the need to provide transportation for public school children.

What cannot be ignored is the contribution of state funds (75% of cost) to A and B and not to C and D, who may be equally, if not more, in need of the assistance compared to A and B. To all in the position of A and B there is annually paid, albeit indirectly, up to $150 per pupil, of which up to $112.50 comes from a special, limited use trust fund. N. J. Const., Art. VIII, § IV, par. 2. C and D and others similarly situated receive nothing towards their school transportation. If the primary purpose of the statute is “child benefit and safety,” as the State here contends and as agreed by the United States Supreme Court in Everson, supra, and as reiterated in the New Jersey Constitution (Art. VIII, § IV, par. 3), are not C and D deprived of the equal protection guaranteed to them under both the United States Constitution and our own New Jersey Constitution?

Both N. J. S. A. 18A:39-1 and 18A:58-7 must be examined as to the effect of their interaction, one upon the other. If it is fairly concluded that, in the present case, certain school children are similarly situated except for geographical or municipal boundary lines, the extension of benefits or rights to some results, at least by implication if not by operation, in an unconstitutional denial to others, especially in view of the use of state funds to support such benefits.

In Shelley v. Kraemer, 334 U. S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948), the court, in dealing with restrictive racial covenants, said

Equal protection of tlie laws is not achieved through indiscriminate impositions of unequalities, [at 22, 68 S. Ct. at 846]

Cannot the same be said of the indiscriminate granting of school transportation benefits? Unless a truly relevant distinction can be made between those school children benefited and those deprived under this statute, school children similarly situated should not be treated differently. The geographical accident of the location of their homes in a non-busing community is not a relevant distinction on which statutory classifications can be validly established. The New Jersey Constitution permits the Legislature, “within reasonable limitations as to distance,” to provide for the transportation of children within the ages of 5 to 18 years, inclusive to and from any school. Once having availed itself of this permission in the Constitution, the Legislature’s power of statutory classification or discrimination is limited to “distance” only and does not extend to excluding or including any particular children, their places of residence or particular schools, unless such classification was within the permissible “distance zone” regulatory power.

Whatever is right or wrong for A and B must be right or wrong for 0 and D, unless some relevant difference can be shown to exist between A and B on the one hand and C and D on the other to justify different treatment under the statute.

It is concluded that the equal protection provisions of the United States Constitution are violated. Although not raised by counsel, but brought sharply into focus by Judge Larner’s opinion in Fox, supra, this court must also consider the statute and its relation to the New Jersey Constitution, Art. VIII, § IV, pars. 2 and 3. Judge Larner concluded in Fox that, under the statute which was the predecessor of the one here in question, public funds could not be used to establish and pay for bus routes designed solely for non-public school children. The statute under consideration in Fox spoke of an “established school route” as the statutory “triggering” provision. The statute sub judice was obviously intended to override the decision by Judge Larner. However, it still must be examined with constitutional limitations in view.

Here, unlike the statute considered in Fox, state school funds are to be used for the transportation authorized by the current statute. School funds must be used “for the equal benefit of all the people of the State.” N. J. Const., Art. VIII, § IV, par. 2. It is obvious that the 75% contribution from state funds to some non-public school students, and not to others similarly situated, violates this section. The burden should be on the defendants to show not only that the objectives of the statute could not be attained by measures which did not discriminate, but also that a solution which partially solves a public problem outweighs any resulting harm that will be suffered by certain excluded private parties. Once state monies have been expended for a special class (here, private school students attending schools outside the district who reside in districts where public school students are transported) to the exclusion of another class (here, private school students attending the same schools outside the district who reside in districts where no public school students are transported), the classification becomes suspect of constitutional invalidity.

It cannot be found here that special benefits to children who happen to be included under the present statute are based upon special needs. Hereinabove, it was noted that the Morristown-Morris Township geographical relationship was not unique in this State. Judicial notice can be taken of the fact that, for the most part in our State, the highly compact urban areas do not provide for public school pupil transportation and therefore do not have to provide transportation to non-public school children. The parish school children in the elementary grades living in most urban areas would advance to sectarian high schools located outside the parish area, and no transportation would be provided. It is recognized that these compact urban communities are characterized by a below-average economic level. If the statute in question makes its classification on economic need, it is not supported by any facts before this court. As a matter of fact, the statute as now constituted operates to deprive just those non-public school children who are most in need of financial assistance (e. g., urban area dwellers).

The suburban communities, where public school transportation is more common, may be characterized as being above the general economic level of the urban areas. It would seem apparent that many of those who can afford to live in “suburbia" (where distance between homes on large lots meets the “remote" criterion) are in a better economic position to finance their children’s private school transportation than are most residents of the cities today. Since most cities do little school busing because of the close proximity of “neighborhood schools,” it is the poorer non-public school children against whom this statute serves to discriminate. The result is unconstitutional under the present statutory scheme, notwithstanding that the Legislature may have had the best intentions.

If this statute is based upon the laudable legislative purpose of seeing that all children get to the school of their choice safely, what makes C and D of Morristown or a child in Newark more capable of walking the streets with safety than the Morris Township or Miliburn children who are transported at public expense to non-public schools and whose parents would be better able for the most part to afford the transportation than the Morristown or Newark child’s parents?

The statute in question, N. J. S. A. 18A:39-1, is declared to be violative of the Fourteenth Amendment of the United. States Constitution. It is also concluded that the statute violates the New Jersey Constitution, Art. VIII, § IV, par. 3, wherein the statute extends its discriminatory features beyond the permitted “reasonable limitations as to distance.” The statute, by discriminating between children and using public funds inequitably, also offends the constitutional proscription that the funds, or income therefrom, shall be used “for the equal benefit of all the people of the State.” N. J. Const. Art. VIII, § IV, par. 8.


author: Goldman^ P. J. A. D. Matthews, J. A. D.

text:
    BERTHA L. CZYZEWSKI AND JOHN CZYZEWSKI, INDIVIDUALLY IN HIS OWN RIGHT, PLAINTIFFS-APPELLANTS, v. MARTIN J. SCHWARTZ AND PORTER’S BODY SHOP, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-APPELLANTS, AND TROOPER WARREN FERRY, OF THE NEW JERSEY STATE POLICE, INDIVIDUALLY, JOINTLY, SEVERALLY AND/OR IN THE ALTERNATIVE, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 5, 1970
    Decided May 26, 1970.

      Before Judges Goldmann, Lewis and Matthews.

      Mr. William 8. Zink argued the cause for appellants (Messrs. Bleakly, Stockweil, Zink >& McGeary, attorneys for Martin J. Schwartz; Messrs. McGuire, Healey Green, attorneys for the Czyzewskis; Messrs. Kisselman, Devine, Deighan and Montano, attorneys for Porter’s Body Shop, Inc.)

      Mrs. Priscilla Read Ohenoweth, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General, attorney).
   The opinion of the court was delivered by

Goldman^ P. J. A. D.

Pursuant to leave granted, plaintiffs appeal from a Law Division order dismissing their complaint against defendant Trooper Eerry in their action to recover damages resulting from a rear-end collision.

On November 39, 1966, at about 9 a.m., Troopers Eerry and Miller were conducting a radar operation on Route 73 (northbound) in Yoorhees Township, Camden County. Miller was operating the radar machine some 0.2 miles to the south of where Eerry was acting as interceptor. Traffic was light, visibility clear, and the road surface dry. Miller radioed Eerry to stop a white Cadillac going north in his direction. Eerry observed two vehicles approaching in the slow lane. The car in front, owned by plaintiff John Czyzewski and driven by his wife Bertha, was some distance ahead of the white Cadillac driven by defendant Schwartz and loaned to him by defendant Porter’s Body Shop, Inc., while his car was being repaired.

In the affidavit filed by Ferry in support of the motion to dismiss the complaint, he stated that

* * * as is t.ha normal procedure, when the vehicle was approximately 300 feet away, I began to motion with a full sweeping moUon of my right hand and arm for [the Czyzewski ear] to continue on * * *. As her car came within 50 feet of myself, I then with my right arm straight, pointed directly at the driver of the Cadillac which was behind Mrs. Czyzewski. Failing to get his [Schwartz’] attention and noting he was applying brakes for an emergency stop, X then turned to look at the Czyzewski car. At this point 1 noted Mrs. Ozyzewski with her mouth agape and both hands off the steering wheel, pointing with both hands to herself and jamming the brakes on her car. * * *

After the Czyzewski car had traveled about 20 feet, it was struck in the rear by the Cadillac. Ferry averred that he was in no way negligent nor did he improperly or incorrectly signal Mrs. Czyzewski so as to cause her to stop immediately; rather, she misinterpreted his signal and stopped her car abruptly. ("We note here that Ferry signaled from where he was standing in the fast lane.)

In her affidavit opposing the Ferry motion Mrs. Czyzewski stated that she was traveling at a moderate rate of speed when Ferry motioned with his left hand and thumb for her to pull over, and when she did so her car was struck from the rear. At no time was her mouth agape and both hands off the steering wheel, and at no time did she point with her hands to herself, as alleged in the Ferry affidavit. As in her complaint, she contended that the trooper was negligent and improperly signaled her, thereby creating an emergency situation which required her to stop immediately, with the resulting rear-end collision.

Defendant Schwartz also filed an affidavit in which he said that as the two cars approached, the trooper suddenly began motioning with his arms. He made the same motion at the same time to both drivers, but Schwartz thought that the trooper meant for the Czyzewski car to stop, since he started motioning while that car was still approaching him. There was no warning of an impending stop; Schwartz conld not pass to the left because the trooper was standing in the fast lane; and although he applied his brakes, the Cadillac ran into the stopped Czyzewski car.

Mrs. Czyzewski had sued to recover damages for personal injuries sustained, joining Schwartz, Porter’s Body Shop, Inc., and Perry, “of the New Jersey State Police,” individually, jointly, severally and/or in the alternative. Her husband sued per quod and for property damage. Schwartz answered, denying negligence and setting up the defenses of contributory negligence and the sole negligence of defendant Perry, from whom he demanded contribution.

The Attorney General filed an answer on behalf of Perry and the State of New Jersey, Department of Law and Public Safety, Division of State Police, although nowhere did the complaint name the State or any agency thereof as a defendant, or charge that Perry was acting as an agent of the State. Negligence was denied, and by way of affirmative defenses it was alleged that the complaint failed to state a claim upon which relief could be granted; what Perry did was within the scope of his official duties and in accordance with lawful and proper police procedures; the complaint was in essence a suit against the State and would not lie; Perry enjoyed the State’s immunity from suit, and plaintiffs were contributorily negligent.

Porter’s answer denied negligence, alleged contributory negligence, and sought contribution from defendants Schwartz and Perry.

Despite the answer filed by the Attorney General, he was permitted without objection to move on behalf of Perry for a summary judgment of dismissal because the complaint failed to state a claim upon which relief could be granted and Perry was entitled to judgment as a matter of law. The affidavits in support of and opposition to this motion have been summarized above.

At the hearing on the motion all agreed that the State could under existing law claim sovereign immunity. (But see Willis v. Department of Conservation and Economic Development, 55 N. J. 534 (April 20, 1970), holding that in a proper ease the State could, after January 1, 1971, be held liable in tort.) Counsel for plaintiffs pointedly remarked that his clients were not suing the State, but an individual, Perry. Nonetheless, the trial judge was of the opinion that Perry was an alter ego of the State and as such not subject to suit; he did not think that “on the trial level we ought to open a door this wide,” leaving that to the appellate courts. Accordingly, he entered an order dismissing the complaint and the cross-claims for contribution as to defendant Perry.

Although a public officer or employee is not absolved from liability for his private and personal torts, the question of liability has been left in a legal twilight zone with respect to responsibility for negligent acts committed in the course of his official duties. See Prosser on Torts, § 126, at 1013 et seq. (1964); 2 Harper and James, The Law of Torts, § 29.10, at 1638 et seq. (1956); Kisielewski v. State, 68 N. J. Super. 258, 262 (App. Div. 1961). Prosser observes (at 1015) that while federal courts have tended to extend immunity down the scale to all officers of lower degree as long as they act within the scope of their duties, state courts, with some exceptions, have been much more disposed to restrict absolute immunity to superior officers only. See also, Annotations, 40 A. L. R. 1358 (1926) (annotation to Florio v. Mayor, etc., Jersey City, 101 N. J. L. 535 (E. & A. 1925)) ; 53 A. L. R. 381 (1928); 60 A. L. R. 2d 873, particularly § 5, at 890 (1958); 43 Am. Jur., Public Officers, § 279 and §§ 258, 259 (1942).

As to officers occupying a position in the lower governmental eschelons, Prosser observes that

* * * the whole situation has been much complicated by the drawing of another line of distinction, which in effect achieves a rather uneasy compromise. The courts have set up a finespun and more or less unworkable distinction between acts which are regarded as “discretionary,” or “quasi-judicial,” in character, requiring personal deliberation, decision and judgment, and those whoch are merely “ministerial,” amounting only to an obedience to orders, or the performance of a duty in which the officer is left no choice of his own. * * * [at 1015]

It is practicably impossible to draw a clear and definite line in applying tbe discretionary-ministerial distinction. As the court said in Ham v. Los Angeles County, 46 Cal. App. 148, 162, 189 P. 462, 468 (D. C. App. 1920), “It would be difficult to conceive of any official act, no matter how directly ministerial, that did not admit of some discretion in the manner of its performance, even if it involved only the driving of a nail.”

Florio v. Jersey City, above, dealt with a foreman who negligently ran the fire truck he was driving into a horse and wagon. The court reviewed the eases and held him liable. In Kisielewski v. State, above, an inmate of the State Home for Girls sued employees of that institution for injuries suffered when she was burned while working in the kitchen. This court held that whether a public officer or employee is clothed with immunity in the performance or nonperformance of an act in the course of his public duties, “depends upon the nature of his duties and the nature and quality of the allegedly tortious act or omission with which he is charged.” In affirming the denial of defendants’ motion for summary judgment, the court, after noting the discretionary-ministerial dichotomy, observed that the complaint charged negligence in terms so broad that there was a possibility of proof which could be the basis of liability or nonliability of any or all of the individual defendants. Eor this reason, there was a need for full disclosure of their duties, their acts or omissions, and the relation of these to plaintiff’s claims which was indispensable to a proper determination of the case. Cf. Bedrock Foundations, Inc. v. Geo. H. Brewster & Son, Inc., 31 N. J. 124 (1959).

The Attorney General cites us to State v. Dantonio, 18 N. J. 570 (1955), and Gallena v. Scott, 11 N. J. 231 (1953). Dantonio is irrelevant because it merely validated the use of radar in apprehending speeders. Gallena is inapposite because plaintiff was suing state officials for his salary, and the court correctly saw the State as the real defendant in interest and dismissed the suit.

The State argues that the enforcement of traffic regulations is an important governmental function, and to hold Perry for alleged negligent signaling would make it difficult, if not impossible, to recruit state troopers; further, troopers would be less zealous in performing their duties. We find unpersuasive an argument so flatly stated in so unsupported and eonclusionary a manner. The State carries insurance for automobiles driven by state troopers, and although it does not presently insure them for other negligent acts committed in the course of their regular duties, it could readily do so. Any attempt to distinguish between negligence while driving a patrol car and negligence while controlling traffic on the roads would, in our view, be illogical as well as futile. Whatever substantive content there might be in the argument just referred to would readily and simply be resolved by the State purchasing comprehensive coverage for the State Police. Such insurance would be socially useful in spreading risks. It is unfair to put the risk of an occasional careless act by a trooper in the line of duty on either the innocent victim or the trooper, where what he does (or does not do) is not lacking in good faith or does not constitute gross negligence.

We have no hesitation in declaring that the trooper’s signal in this ease did not involve the exercise of discretion beyond a ministerial function. It was an act done in the regular course of his patrol duties — as he said in his affidavit, by way of “normal procedure” ■—• in response to a radio signal given him by Trooper Miller who was in charge of the radar equipment a fifth of a mile away. Unless Perry chose to disregard completely Miller’s order to stop the white Cadillac, he had to signal the approaching car to stop for a traffic violation. There was no exercise of judgment involved, but only routine procedure.

We hold that it was improper to let Perry out of the case, and accordingly we remand the matter for a full trial with respect to all defendants.

Reversed and remanded.

Matthews, J. A. D.

(dissenting). In my view the facts of this case, insofar as they deal with the activities of Trooper Perry, come within the interdiction of our Supreme Court contained in Willis v. Department of Conservation and Economic Development, 55 N. J. 534 (1970) against actions in tort against the State until January 1, 1971.

The majority takes the position that it would be futile to attempt to distinguish between negligence of a state trooper while driving a patrol ear and his negligence while controlling traffic on the roads. I disagree. Only an indidividual employed by the State as a state police officer is permitted to conduct a radar trap or otherwise control the flow of traffic on state highways. In carrying out these functions, a state police officer executes the power of the State granted to it both under the Constitution and by the Legislature. A state police officer is permitted to exercise radar trap and traffic control duties only after he has been certified to become competent to perform such duties by the State itself thorugh its training agency. Negligent performance of such duties must necessarily involve the negligence of the State, since it is the State who has certified the indiivdual as being competent to carry out the police function. Such is not the case in a situation when a trooper negligently operates a patrol car, either marked or unmarked, a fireman negligently operates a fire department vehicle, or an employee in a state institution supervises the operation of a kitchen in a careless manner.

The majority has no hesitation in finding that Trooper Perry’s signal in this case did not involve the exercise of discretion beyond a ministerial function. This finding is not helpful. What he did do was carry out a routine state procedure. His activity as an individual was, in my judgment, indistinguishable from his activity as a state police officer.

I would affirm.