author: Wood, A. C., J. C. C.,

text:
    ELIJAH REDDING AND MARGIE JACKSON REDDING, HIS WIFE; AND HATTIE HARRIS, GEORGE MORGAN, GLADYS CARR, LOUISE LIPSCOMB AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS, v. BURLINGTON COUNTY WELFARE BOARD, A BODY CORPORATE AND POLITIC, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided April 27, 1973.

      Mr. Murray J. Klein of the Camden Eegional Legal Services, Inc. for plaintiffs.

      Mr. John B. Mathews for defendant.
   Wood, A. C., J. C. C.,

Temporarily Assigned. This is an action in lieu of prerogative writs instituted by plaintiffs as a class action “on behalf of themselves individually and all others similarly situated,” in which plaintiffs seek to restrain the Burlington County Welfare Board (hereinafter the Board) from prosecuting certain actions against plaintiffs in the Burlington County District Court.

The facts are simple and are undisputed. Since September 1972 the Board has instituted about 100 actions in the Burlington County District Court against these plaintiffs and others, all of whom are or were recipients of welfare aid under the AEDC (Aid to Eamilies with Dependent Children) program. In each case the Board alleges that there were payments to such recipients in various amounts in excess of amounts authorized by law, and that the recipients of such overpayments are thereby indebted to the Board in the amount of such overpayments. The complaints do not allege that such overpayments were the result of any wrongdoing on the part of the defendants named therein. Indeed, they allege nothing except the fact of overpayment, the amount thereof, and the consequent “indebtedness.” However, an affidavit filed by the Board’s solicitor in support of the Board’s motion for summary judgment states that the Board “stands ready to prove that the overpayment resulted from a lack of knowledge on the part of the Board of the receipt of some type of income to the defendant, or the possession by the defendant of assets which, if known by the Board, would have reduced or eliminated a monthly grant of assistance to the defendant.” He states that such lack of knowledge by the Board resulted from “either fraudulent, willful or negligent withholding of such information by the defendant or from mere ignorance of any requirement.”

The solicitor further candidly asserts that the Board is about to file additional similar actions in the Superior Court, in eases where the alleged overpayments exceed the jurisdictional limits of the county district court.

By this class action plaintiffs here (defendants in the county district court actions), for themselves and others, seek to enjoin and restrain the Board from instituting and prosecuting these actions on the ground that they are instituted in violation of the Board’s powers under both federal and state statutes; that they are in violation of plaintiffs’ rights under applicable federal regulations, and that they violate plaintiffs’ rights to the equal protection of the laws under the Fourteenth Amendment to the United States Constitution. Plaintiffs seek by way of further relief: (1) the restraining of the Board from collecting or attempting to collect under any judgments heretofore entered; (2) dismissal of all actions; and (3) the refund to plaintiffs of any monies heretofore collected by means of these actions.

There being, as stated, no dispute as to the facts underlying this proceeding, defendant Board now moves for summary judgment of dismissal of the action, and plaintiffs move for summary judgment granting the relief sought. The matter is before the court on these cross-motions.

Initially, plaintiffs also move that the court order that this action be maintainable as a class action pursuant to R. 4:32-l et seq. The court is satisfied that the action meets all the requirements of R. 4:32-1 (a). Moreover, it appears that the questions of law here raised predominate over any questions affecting only individual members, and that a class action, at this juncture, is the fairest and most efficient method of adjudication of the controversy. R. 4:32-l(b) (3). Indeed, that the action is maintainable as a class action is conceded by defendant. The action will therefore be so maintained.

The AFDC program is established under the authority of the Social Security Act of 1935, 42 U. 8. G. A. §§ 601-1396. Its history and statutory scheme are lucidly and succinctly outlined in X v. McCorkle, 333 F. Supp. 1109, 1113-1115 (D. N. J. 1970). However, a brief recapitulation of the statutory scheme may be helpful here.

The AFDC program, 4.2 U. S. C. A. § 601 et seq., singles out the “dependent child” for welfare assistance. A “dependent child” is a needy child who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent, and who is living with any one of several listed redatives and who is age-qualified. 42 U. S. c. A. § 606(a). The Federal Government provides funds to the states that participate in the program. New Jersey, like all other states in the Union, does so participate.

Each state’s plan for the administration of its program must have the approval of the Secretary of Health, Education and Welfare. Each state has considerable latitude in allocating its AEDO resources,. since each is free to determine its own standards of need and determine the level of benefits, by the amount of funds it devotes to the. program. King v. Smith, 392 U. S. 309, 318-319, 88 S. Ct. 2128, 2134, 20 L. Ed. 2d 1118 (1968). The authority for limitations on and variations in assistance payments derives from 42 U. S. C. A. § 601, which states the purpose of the program as —

* * * enabling each State to furnish financial assistance and rehabilitation and other services * * * to needy dependent children and the parents or relatives with whom they are living to help maintain and strengthen family life and to help such parents or relatives to attain’ or retain capability for the maximum self-support and persona] independence consistent with the maintenance of continuing parental care and protection * * *.

Despite the broad language of’ the statute and the latitude it gives to the states to determine and set eligibility standards for recipients of financial assistance, each state must- nevertheless conform to specific requirements of the Social Security Act and the regulations promulgated thereunder. State regulations attempting to set eligibility standards in violation of the federal act have repeatedly been set aside by the courts as illegal and void.

Thus, in King v. Smith, 392 U. S. 309, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968), an Alabama law, called cynically a “substitute father” law, which denied AEDC benefits to the children of a mother in whose household an able bodied man was residing, whether such man was legally obligated to support the children or not, was held to contravene the act and to be invalid. The court held that the Alabama law violated the federally imposed duty to extend aid with reasonable promptness to all eligible individuals.

In Rosado v. Wyman, 397 U. S. 397, 90 S. Ct. 1207, 25 L. Ed. 2d 442 (1970), a New York regulation changing that state’s definition of “need” was struck down as violating a 1968 amendment to the Social Security Act enacted to increase benefits to recipients (42 U. S. C. A. § 602(a) (23)).

. In Woolfolk v. Brown, 456 F. 2d 652 (4 Cir. 1972), the court struck down a Virginia “work rule” which purported to deny benefits to the families of persons who “refused suitable employment,” holding that 1967 amendments to the act, called the “Work Incentive Program,” preempted work rules for those in the ÁEDO category and that this Virginia rule was contrary to the federal standard.

And in X v. McCorkle, supra, a New Jersey regulation which failed to provide for deduction of statutory “income disregards” in determination of eligibility, 42 U. S. C. A. § 602(a)(7), was invalid, and enjoined the State from enforcing that section of its regnlations.

Similarly, regulations denying benefits to needy college students, and to families whose breadwinner was absent in the armed services, have been held to violate the act. Townsend v. Swank, 404 U. S. 282, 92 S. Ct. 502, 30 L. Ed. 2d 448 (1971); Carleson v. Remillard, 406 U. S. 598, 92 S. Ct. 1932, 32 L. Ed. 2d 352 (1972).

The AEDC program is implemented in this State by N. J. S. A. 44:10—1 et seq. The statutes conform to federal standards. The Commissioner of Institutions and Agencies is

Authorized, directed and empowered * * * to do or cause to be done all * * acts and things necessary to secure for the State of iNTew Jersey the maximum federal financial participation that is available with respect to [the AFDC program]. [A. J. S. A. 44:10-3]

Among the prime objects of the program are the maintenance and strengthening of family life, and the helping of parents or relatives to attain the maximum self-support and personal independence consistent with the maintenance of continuing parental care and protection. N. J. 8. A. 44:10-l(a)(2) and (3).

To these ends the act provides for financial assistance to dependent children and the parents or relatives with whom they are living, in accordance with need and under limitations as determined and prescribed by appropriate regulations promulgated by the Commissioner.

The grants of assistance as provided are outright grants. Ho provision is made in the Social Security Act or in the state statute for any reimbursement by the grantee, or creating any obligation to reimburse the State or the county welfare boards who administer the program for any of the funds so granted. In this the AFDC program differs from several other assistance programs established by the State. Thus, the statutes providing for old age, assistance specifically provide for the establishment of a debtor-creditor relationship between the grantee and the county welfare board by agreement of the former to reimburse the latter, and for the creation of a lien on the property of the beneficiary for that purpose. N. J. 8. A. 44:7-14. Similarly the Aid to Families of the Working Poor program contains a specific proviso that assistance granted shall "constitute a debt owed to the State of Hew Jersey which shall be recoverable by the State of Hew Jersey or its agents.” N. J. 8. A. 44:13-9.

Ho such reimbursement obligation is created by the AFD.C program. On the contrary, such obligation is specifically omitted therefrom. N. J. S. A. 44:10-2 provides that the program shall be administered in accordance with and governed by requirements, limitations and procedures established by Chapter 7 of Title 44, except, inter alia, N. J. S. A. 44:7-14. The state statute does contain a provision for reimbursement under certain limited conditions, e. g., where there is pending payment to the child or his parents from a claim owned by them, or where the child dies before his 21st birthday leaving an estate. Ho such unique situation is applicable here.

The question thus arises whether “overpayments,” viz., payments in excess oí proper allotments, may be recovered, and if so by what means. Neither the state statutes nor the federal enabling legislation or the regulations promulgated thereunder contain any provision for such recovery by the State or its agencies by civil action.

In the federal statutory and regulatory scheme the sole provision for recovery of overpayments is set forth in the regulation promulgated by the Department of Health, Education and Welfare, 4ñ O. F. B., § 233.20 (a) (3) (ii) (d), as follows:

Current payments of assistance will not be reduced because of prior overpayments unless the recipient has income or resources currently available in amounts by which the agency proposes to reduce payment, exeept that where there is evidence which clearly establishes that a recipient willfully withheld information about his income or resources, such income or resources may be considered in the determination of need to reduce the amount of the assistance payments in current or future period».

As for the state statutes, N. J. S. A. 44:7-32, which is incorporated in the AFDG statutes by reference (cf. N. J. S. A. 44:10-2), provides:

Any person who, by means of a false statement, or false representation, or by impersonation, or other fraudulent device, obtains or attempts to obtain, or aids or abets, any person to obtain funds under this chapter to which he is not entitled, or a larger amount of assistance than that to which he is justly entitled, or payment, of any forfeited installment grant; or knowingly aids or abets in buying, or in any way disposing of, the property of an applicant without the consent of the county welfare board, shall he guilty of a misdemeanor and punished accordingly. If such person be himself an applicant or recipient of old age assistance, his application may be denied or his grant withdrawn, and future grants denied at the discretion of the board.

The policy of the AEDG legislation, as above stated, is assistance to families with dependent children to aid them in gaining and retaining economic independence. The right of the welfare board to seek recovery of overpayments by civil action must be found in the legislation from which it derives its authority. The AFDC legislation gives no such .authority, and it must be concluded that in the absence thereof such authority does not exist. The sole means provided by statute or regulation for the recovery of overpay- . meats are the imposition of criminal sanctions, or reduction or denial of future payments, where overpayments are shown to be the result of fraud or wrongdoing on the part of the recipient.

In the instant case the civil actions do not allege any fraud or wrongdoing. Each action simply alleges an overpayment and demands its recovery. A general power in the welfare board to seek by civil action the recovery of over-payments without regard to the reasons for or causes of such overpayments might well be subversive of the objective of the program. Quite conceivably the recovery of a judgment against a person newly emancipated from the aid program might result in the loss of a job or in other ways again destroy his financial independence and put him back on the welfare rolls.

Moreover, it would seem that such actions as these must necessarily be exceedingly difficult, if not impossible, to defend. All the records on which the claim is based must be in the hands of the welfare board. Families receiving assistance do not customarily keep accurate records. They are, of course, poor and in most instances ignorant of the fine points of the law. No doubt there are many cases of overpayments made simply because of a lack of understanding of the recipients of questions asked them or information required of them by the welfare board bearing on their eligibility for assistance and the allowable amounts thereof. Such persons are hardly in a position to defend themselves effectively agains.t such actions as these. Furthermore, these actions impliedly assert a right of recovery even if the overpayment was occasioned entirely by the fault or error of the Board itself and the recipient was guilty of no wrong or mistake whatever. For such a right of recovery to exist it must be specifically authorized by statute. It has not been so authorized.

This court concludes that in instituting these actions the Board has acted in violation of its authority under both the Social Security Act and the state act implementing its provisions.

In view of this conclusion it is not necessary to deal with the constitutional and procedural issues raised by plaintiffs. However, it is perhaps appropriate to note that, in the event that the Board seeks to invoke proper statutory sanctions against any of the plaintiffs or members of the class, it would appear that such persons must be accorded the opportunity of an administrative hearing, as provided by the federal regulations 45 G. F. R., § 205.10(a). Indeed, the court is informed that the affording of such hearing is in accordance with state regulation and welfare board policy.

For the foregoing reasons the pending actions are declared to be illegal and void and the Board is declared to be without power to institute civil actions for the recovery of alleged overpayments. The following relief is granted:

(a) The Board is directed to enter voluntary dismissals of all pending actions for recovery of overpayments.
(b) The Board is permanently enjoined and restrained from instituting any civil actions against plaintiffs or members of the class they represent for the recovery of alleged overpayments of AFDC benefits, except as specifically authorized by statute.
(c) The Board is permanently enjoined and restrained from seeking payments, voluntary or otherwise, from plaintiffs or members of the class they represent, in order to recoup any alleged overpayments, except as specifically authorized by statute.

Plaintiffs also seek judgment directing the Board to return monies previously collected by it for alleged overpayments. This must be denied. There is no evidence before the court as to what monies, if any, have been collected, or from whom, or the amounts thereof. Such recovery should be sought by plaintiffs or members of the class in individual actions if any such payments have in fact been made.

The motion of defendant Board for summary judgment of dismissal of this action is denied.


source: Caselaw Access Project

author: Yanoei?, J. 0. C.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. CHARLIE FAY NELSON, DEFENDANT.
    Essex County Court Law Division (Criminal)
    Decided April 23, 1973.

      Mr. George Pappas, Assistant Prosecutor, for plaintiff (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).

      Mr. John J. Hughes, Assistant Deputy Public Defender, for defendant (Mr. Stanley G. Van Ness, Public Defender, attorney).
   Yanoei?, J. 0. C.

This issue arises by reason of an indictment in two counts under N. J. S. A. 2Á:96-5 and 5.1 (L. 1966, c. 12).

Section 5 provides:

A person -who is addicted to the use of morphine, cocaine, heroin, opium or any derivative thereof, or marihuana, and who hires, employs or uses any child under the age of 18 years to transport, carry, sell, prepare for sale or offer for sale any of said drugs for any unlawful purpose, is guilty of a high misdemeanor. •

Section 5.1 provides:

A person who is not addicted to the use of morphine, cocaine, heroin, opium or any derivative thereof, or marihuana, and who hires, employs or uses any child under the age of 18 years to transport, carry, sell, prepare for sale or offer for sale any of such drugs for any unlawful purpose, is guilty of a high misdemeanor and shall be punished by imprisonment for not more than 30 years except upon the affirmative recommendations of the jury of life imprisonment in which case the punishment shall be imprisonment for life.

The Dangerous Substance Control Law (IV. J. S. A. 24: 21-1 et seq.) does not make provisions for these offenses.

Strangely enough, neither our research nor that of counsel has revealed any previous decision under these sections. There is apparently no similar statute in any other jurisdiction. Of. 28 U. S. O. A.j § 2901 (the Narcotic Addict Rehabilitation Act of November 8, 1966).

The first count of the indictment alleges that defendant, “a person who is addicted to the use of narcotics did hire * * *” a minor to transport, etc., narcotics, in violation of section 5. The second count makes no allegation as to whether defendant is addicted, and alleges only that he “did hire * * * a child under the age of 18 years * * * to transport * * * a narcotic drug * * in violation of section 5.1.

Defendant moves to dismiss the indictment on due process grounds. Defendant’s arguments are threefold:

1. The State must prove addiction or nonaddiction as an element of the crime. It is urged that addiction is not defined or definable; therefore defendant cannot know the nature of the charges against him, and the statute must fall, citing State v. Gagliardi, 57 N. J. Super. 238 (App. Div. 1959).
2. The statute is too vague to be enforceable.
3. The accused may be compelled to take the stand to prove addiction, and thereby to incriminate himself, in order to avoid the heavier penalty imposed upon non-addicts.

The State argues addiction or nonaddiction bears only upon the penalty, and that if the State proves only use “of a child under the age of 18 to transport, carry, * * * any of said drugs for an unlawful purpose,” it has established the crime but that defendant is subject only to the lesser penalty. It urges, further, that if the State comes forward with evidence of nonaddiction, defendant is then obligated to meet the issue by proving addiction, implying that there is a presumption of nonaddiction.

It is, of course, the duty of the court to sustain the statute if there is a rational basis upon which it can be done:

There is a strong presumption that a statute is constitutional, General Electric Co. v. City of Passaic, 28 N. J. 499, 510 (1958) ; In re Village of Loch Arbour, 25 N. J. 258, 264-265 (1957), and a legislative act will not be declared void unless its repugnancy to the Constitution is clear beyond a reasonable doubt. Gangemi v. Berry, 25 N. J. 1, 10 (1957). ‘To declare a statute unconstitutional is a judicial power to be delicately exercised.’ Wilentz v. Hendrickson, 133 N. J. Eq. 447, 487 (Ch. 1943), affirmed 135 N. J. Eq. 244 (E. & A. 1944). In Loch Arbour, supra, Mr. Justice Francis said (25 N. J. at pages 264-265) :
“In approaching a problem such as this, courts always recognize a strong presumption of constitutionality; doubts are resolved in favor of conformity with the organic law, and if the statute under attack admits of two constructions, one of which will render it invalid and the other valid, the intrepretation sustaining constitutionality will be adopted.”

[Harvey v. Essex County Board of Freeholders, 30 N. J. 381, 388 (1959)]

Applying that canon of construction it is clear that whether accused is subject to the greater or lesser penalty bears upon the punishment, and not upon whether the offense has been committed.

The two sections prohibit use of a minor in connection with narcotics in precisely the same words. They differ only by imposing a greater penalty upon a non-addict who commits the prohibited acts. The legislative purpose is clear enough; it is to punish more severely one who is not under the compulsion of addiction.

Once the State has established that defendant has used a minor for the prohibited purposes, it has proved the requisite elements of the crime under section 5. Therefore, it is not necessary to decide whether an allegation that defendant is an “addict” is sufficiently clear and precise to give defendant the notice which constitutional law requires that he be given. If the State goes no further than proving that defendant has used a minor for the forbidden purposes, the punishment will necessarily be the lesser one.

This, however, does not dispose of the problem raised by the second count of the indictment. It seems to me that in dealing with this problem the appropriate analogy is N. J. S. A. 2A:85-12, the Habitual Criminal Act. The statute there provides for increased punishment for a criminal convicted of other offenses. Prior to the enactment of N. J. S. A. 2A:85-13, effective May 22, 1953, which specified the procedure to be followed where the State sought to invoke the penalties of the Habitual Criminal Act, the proper practice when the State wished to punish defendant as a habitual criminal was to allege the prior convictions in the indictment, and to submit any factual issue to the jury. State v. Lutz, 135 N. J. L. 603 (Sup. Ct. 1947); State v. Laird, 25 N. J. 298 (1957). There was a similar result in State v. Booker, 88 N. J. Super. 510 (App. Div. 1965), in construing N. J. S. A. 24:18-47 (now N. J. S. A. 24:21-29) which provided for increased punishment for a person convicted as a second offender for the sale of narcotics. Cf. State v. McCall, 14 N. J. 538 (1954); State v. Johnson, 109 N. J. Super. 69 (App. Div. 1970). Clearly, the State, if it seeks a conviction under section 5.1, must plead and prove that defendant is not a narcotic addict. In the words of Justice Heher in State v. Laird, supra:

The procedure is rooted in the fundamental common-law principle that in penal proceedings the accused shall be clearly informed of the charge he is called upon to meet; and this of necessity involves the elements of aggravation which under the statute enlarged the grade of the crime by enhancing the punishment. [25 N. J. at 303]

It follows that the second count must be dismissed because of the failure to allege that defendant is not a narcotics addict. The defect cannot be remedied by reliance upon a “presumption” of nonaddiction. While a statute may enable a finder of fact to make an inference of guilt from an act which in common experience leads to such a conclusion (the “rational connection” test), without diminishing from the State’s burden to prove guilt beyond a reasonable doubt (State v. Di Rienzo, 53 N. J. 350 (1969), the statute in this ease does not authorize such an inference.

In view of the above there is no need to determine whether an allegation of nonaddiction, which might put defendant to the necessity of proving addiction, would violate his Fifth Amendment rights.

An order will therefore be entered denying the motion as to the first count, and granting it as to the second count.


author: Aikins, J. C. C.

text:
    THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. COMMUNITY DISTRIBUTORS, INC. t/a DRUG FAIR, DEFENDANT-APPELLANT.
    Monmouth County Court Law Division
    Decided April 23, 1973.

      Mr. Donald J. Fay, Deputy Attorney General, for plaintiff (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).

      Mr. David H. Bothberg argued the cause for defendant (Messrs. Sachar, Bernstein & Bothberg, attorneys).
   Aikins, J. C. C.

Defendant, owner and operator of a drug store known as “Drug Fair,” appeals from its conviction in the Freehold Township Municipal Court on November 9, 1972 of violations of N. J. S. A. 2A:170-90.1 in that defendant did influence, request or require three of its employees, as a condition of employment or continued employment, to take or submit to lie detector tests. The three employees, all of whom took the test at the request of the employer, were Harold Cohen, Isabelle Bayer and Matilda Nipps.

Harold Cohen was employed on April 27, 1971 and was asked at the time of hiring if he would take a lie detector test. After being told that he did not have to take the test, he signed a consent form and took the test on May 11, 1971. His employment was terminated seven months later for reasons unrelated to the polygraph test.

Isabelle Bayer was employed on October 19, 1971 and was asked when applying for the job if she would he willing to take a lie detector test, though also told she was not so obligated. She, too, consented to the test, signed a waiver form, and took the test on November 4, 1971. Her employment was terminated immediately apon conclusion of and as a direct consequence of the test, which revealed that she had previously been involved in a larceny.

Matilda Nipps had previously been employed by Drug Fair and was roemployed on September 22, 1971. Like Cohen and Bayer, she was asked if she would take the test, signed a waiver form, and was told that she did not have to take the test. She took the polygraph test on October 5, 1971. Her employment was terminated a short time before December 25, 1971 because of an hours dispute which was unrelated to the test.

A fourth employee, Anna .Battle, took the test at one time, • but had refused to do so on other occasions. Her employment status was unaffected by her refusal.

Defendant first contends that the statute is unconstitutional in that it deprives defendant of the ability to protect its property and, incidental thereto, asserts that the right of privacy of the employee is overshadowed by the property rights of the employer. Defendant also claims exemption from the statute since it is in the business of dispensing narcotics and dangerous drugs, and lastly asserts that there was no violation of N. J. 8. A. 2A:170-90.1 in that the lie detector tests were not given as a condition of employment and continued employment.

In approaching the problem it is in order to survey briefly the history of the statute, N. J. 8. A. 2A:170-90.1 (L. 1966, c. Ill), which provides as follows:

Any person wbo as an employer shall influence, request or require an employee to take or submit to a lie detector test as a condition of employment or continued employment is a disorderly person.

The statute was enacted on June 17, 1966 after four previously unsuccessful attempts at passing a similar law. Since enactment only one other bill has been introduced in the Legislature respecting lie detectors in private enterprise (Assembly Bill 1518 [1973]), and that hill proposes upgrading a violation of the statute from a disorderly persons offense to a misdemeanor.

On the issue of constitutionality defendant asserts a property right in the protection of its business, claiming such right to be superior to any personal privacy rights protected by the statute, which it contends is unconstitutional on the grounds that it denies it protection of its property and violates “due process.”

A strong presumption exists in favor of a statute’s constitutionality. David v. Vesta Co., 45 N. J. 301, 315 (1965); Fried v. Kervick, 34 N. J. 68, 74 (1961); Levitt & Sons, Inc. v. Div. Against Discrimination, etc., 31 N. J. 514, 531 (1960); Jamouneau v. Harner, 16 N. J. 500, 515 (1954), cert. den. 349 U. S. 904, 75 S. Ct. 580, 99 L. Ed. 1241 (1955). Along with this presumption of constitutionality goes a correspondingly heavy burden of proof and persuasion upon the party urging unconstitutionality of the statute. Levitt & Sons, Inc. v. Div. Against Discrimination, etc., supra, 31 N. J. at 531.

With respect to the right to privacy and the prohibition of invasions thereof, the United States Supreme Court has recognized the right to privacy as one which ought to be protected. Stanley v. Georgia, 394 U. S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969); Griswold v. Connecticut, 381 U. S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965). See also Breard v. City of Alexandria, 341 U. S. 622, 626, 644, 71 S. Ct. 920, 95 L. Ed. 1233 (1951), reh. den. 342 U. S. 843, 72 S. Ct. 21, 96 L. Ed. 637 (1951). New Jersey courts have also held that there is a right to privacy and that “equity will intervene to protect” that right. McGovern v. Van Riper, 137 N. J. Eq. 24, 30 (Ch. 1945), aff’d in part 137 N. J. Eq. 548 (E. & A. 1945). See also, Palmer v. Schonhorn Enterprises, Inc., 96 N. J. Super. 72 (Ch. Div. 1967). The New Jersey Legislature also gave credence to the right to privacy by prohibiting employer-given polygraph tests in the enactment of N. J. S. A. 2A:170-90.1.

Defendant contends, however, that its right to protect its business through the use of a lie detector supersedes any personal right to privacy that its employees may have. Thus, the court is confronted with competing interests, as was the United States Supreme Court in Breard v. City of Alexandria, supra, 341 U. S. at 644, 71 S. Ct. 920, wherein city housewives succeeded in keeping the representatives of a $5,000,000 magazine subscription agency from soliciting on their premises pursuant to a city ordinance. Here the “competitors” are a large drug store chain with nine stores in New Jersey, and individual employees whose thoughts and past history the lie. detector seeks to probe in an effort to screen “undesirable” employees.

The court is unimpressed with defendant’s contention that the enactment of N. J. S. A. 2A :170-90.1 effectively deprives it of its property without due process of law. Defendant concedes that there are other, although perhaps more costly, ways of screening job applicants and employees. The statute in no way forecloses defendant or other employers from utilizing their remaining screening options. The constitutional right to privacy here involved is of controlling importance. The statute, therefore, is clearly constitutional and does not abridge any rights of due process.

With regard to defendant’s claimed exemption, it should be noted that no exemptions are granted either in the statute in question or any other statute of New Jersey. Case law is quite explicit that “[t]he absence of such a provision leads [to a conclusion] that the Legislature intended no such exemption to exist.” Parking Auth. of Trenton v. Trenton, 40 N. J. 251, 257 (1963). The attitude of the courts in this regard is aptly stated thusly;

The authority to classify and exempt is within the Legislature; it is not an administrative or judicial function. [Male v. Pompton Lakes Mun. Util. Auth., 105 N. J. Super. 348, 358 (Ch. Div. 1969)]

N. J. S. A. 2A:170~90.1 is to be distinguished from simliar statutes of other jurisdictions, such as Pennsylvania’s, which explicitly exempts from the ban employer polygraph testing of “persons who dispense or have access to narcotics or dangerous drugs.” Pa. 8tat. Ann., Title 18, § 4666.1. This court therefore concludes that by failing to exempt any particular employee or group of employees from the purview of the statute, the Legislative intent to exclude no one is manifest. The granting of exemptions is a matter for the Legislature, and the courts should not usurp that prerogative.

Defendant’s remaining contention, that the tests were not given as a condition of employment or continued employment, necessitates a determination of legislative intent and the meaning of the statutory language employed.'

In the absence of statutorily created definitions, words used in statutes are to be “read and construed with their context” and are to ‘“be given their generally accepted meaning.” N. J. S. A. 1:1-1; Jamouneau v. Harner, supra, 16 N. J. at 513. Emphasis must therefore be placed on some of the terms used in the statute, remembering that the choice of words by the Legislature evidences the purpose behind the statute.

The first word, “influence,” is perhaps the broadest. It is defined in Webster’s Third New International Dictionary (1971) as follows:

INFLUENCE refers to power exerted over others, often through high position, strength of intellect, force of character, or degree of accomplishment, sometimes exercised unconsciously and felt insensibly, sometimes consciously or calculatedly brought to bear * * *

The second term is “request,” which is defined in Blade’s Law Dictionary (4th ed. rev. 1968) as “an asking * * *, the expression of a desire to some person for something to be granted or done.” “To request” is defined in Webster’s Third New International Dictionary as “to ask to do something.”

The final term is “require.” According to Webster’s, to require is “to ask for authoritatively or imperatively.”

Having determined the meaning of the three statutory terms, the question is: Did defendant influence, request, or require the three named parties to take a lie detector test?

Considering that some employees, particularly Anna Battle, refused to take such a test and remained employed, and that in all three cases the parties were asked if they would take a test either at the time of their application for work or sometime subsequent thereto, it follows that defendant did not “require” the parties to take the test.

Whether defendant influenced or requested such tests is quite another matter. At the time Isabelle Bayer filed her employment application and was interviewed, she was asked by Anna Battle of the cosmetics department if she would be willing to take a lie detector test. There is no question that Mrs. Battle was acting as an agent of defendant, thereby making the statute applicable. Matilda. Nipps, a returning employee, was asked to take the test two weeks after her reemployment. Harold Cohen was asked by the assistant manager at the time of his being hired if he would take the test. All three parties signed consent forms.

The facts are clear in each case. Each person was requested,, i. e., asked, if he or she would take the test. The matter of consent waivers being signed by all parties is of no relevance. There would be no consent but for the request, and the actual request is the violation the statute proscribes. The defendant is therefore “an employer [who did] request * * * an employee to take or submit to a lie detector test.” Since the three prohibited acts are set forth in the disjunctive, the court need not leach the element of influence, although influence certainly enters into the final determination of whether there has been a statutory violation.

It is important at this point to note that the New Jersey statute’s omnibus provision, i. e., “influence, request or require,” far exceeds the reaches of statutes such as those of Pennsylvania and California. Section 4666.1 of the Pennsylvania Penal Code makes it a crime only for “whoever requires" a polygraph test as a condition of employment or continued employment (emphasis supplied). The California Labor Code (c. 1881, § 432.2, Stats. 1963), states that “no employer shall demand or require” employees or prospective émployees to submit to a lie detector test as a condition of employment or continued employment (emphasis supplied). Thus, the New Jersey law is distinguishable from the laws of these other states which prohibit an employer from mandating the taking of the tests. New Jersey, in an effort to prohibit virtually all employer-administered polygraph tests, has enacted a very broad law, seeking to curb not only employer-mandated tests, but also those given at the “request” or “influence” of the employer.

The remaining issue to be considered is whether or not the defendant’s acts of requesting employees to submit to lie detector tests was done as a “condition of employment or continued employment.” Again, the court notes that the term “condition of employment” is not defined in the New Jersey statutes or case law. The court must therefore seek out the generally accepted meaning of the words or phrase and apply same to the context of the statute. “Condition” is defined by Webster’s Third New International Dictionary as:

la: Something established or agreed upon as a requisite to the doing or taking effect of something else. 2: Something that exists as an occasion of something else: a circumstance that is essential to the appearance or occurrence of something else. 3a: Something that limits or modifies the existence or character of something else: a restriction or qualification.

“Condition,” then, “indicates a requisite action, circumstance, or quality on which rests the validity or effectiveness of an agreement, a plan, promise, attribution * * Webster’s, supra.

Admittedly, defendant did not physically compel its employees to submit to lie detector tests. Nor did defendant orally threaten its employees with loss of their jobs if they did not submit to the tests. Rrom a realistic viewpoint, however, defendant-employer stands in the supreme bargaining position and, should it please, may adopt a “take it or leave it” attitude toward prospective and present employees. It essentially contends, however, that by not orally commanding the test with employment as the lure it has successfully circumvented the prohibition of N. J. S. A. 2A:170-90.1.

Compelling psychological factors nonetheless enter into a situation wherein someone who wants a job is asked if he will volunteer to take a lie detector test. The court does not envision, nor does the defendant suggest, that prospective or current employees would initiate the administering of a lie detector test. The requests and suggestions clearly come from the employer.

Another psychological factor was clearly recognized in the “continued employment” context of- a labor arbitration case in which it was held that:

[T]he implicit social threat to an employee in the setting of a plant community were he to refuse to submit to lie detector testing where crimes have concededly been committed so compels consent that a guiltless but emotionally fearful employee has practically no choice but to consent to testing procedure * * * [B. F. Goodrich Tire Co., 36 Lab. Arb. 552, 558 (1961)]

It is eminently clear that, although defendant’s prospective employees are only “requested” to submit to lie detector tests, they are in fact “influenced” to do so psychologically by being introduced to an establishment where many employees take the tests. The psychological compulsion to take the test is bolstered by the posting of names on the employee bulletin board of those employees who are scheduled to take the upcoming test. By merely “requesting” the employee to take the test, the employer is in fact offering the employee an ultimatum — either he takes the test or he puts his character in doubt among the management as well as his fellow workers.

The conclusion is inescapable that the actions of defendant in requesting and administering lie detector tests to its employees is the very type of activity that the Legislature proscribed in N. J. S. A. 2A:170-90.1. Any amendments or exemptions deemed necessary are strictly the subject matter of further legislative enactment.

The convictions below are affirmed, and the fines of $100 plus $10 costs on each are reimposed.


author: Steiebetjgge, J. C. C.,

text:
    LOIS GLASS, WERNER GLASS AND DONALD GLASS, PLAINTIFFS, v. FORD MOTOR COMPANY AND WESTFIELD MOTOR SALES, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided May 3, 1973.

      Mr. Leonard S. Sachar, for plaintiffs (Messrs. Sachar, Bernstein & Rothberg, attorneys).

      Mr. Richard J. Badolaio, for defendants Eord Motor Co. (Messrs. Morgan, Melhuish, Monaghan, McOoid and Spielvogel, attorneys).

      Mr. Thomas G. Aljian, for defendant Westfield Motor Sales.
   Steiebetjgge, J. C. C.,

Temporarily Assigned. This is a products liability action in which the plaintiffs allege that defendants breached implied warranties of merchantability and of fitness for a particular purpose under the Uniform Commercial Code. N. J. 8. A. .12A:2-314, 12A: 2-315. Although not specifically pleaded by name, the theory of strict liability in tort, as set out in the Restatement, Torts 2d, § 402A, is equally applicable to the situation at bar. Justice Erancis has urged that warranty language be avoided in products liability actions, and that the pleadings allege what is in fact the essence of such a suit, which is an action in tort and not in contract.

[Practical administration suggests that the principle of liability be expressed in terms of strict liability in tort thus enabling it to be applied in practice unconfined by the narrow conceptualism associated with the technical niceties of sales and implied warranties. [Newmark v. Gimbel’s, Inc., 54 N. J. 585, 595 (1969)]

The question for consideration concerns the effect that should be given to defendant Ford Motor Company’s request to charge No. 11. The requested charge is as follows:

The standard of safety with respect to the liability of the manufacturer of a product apart from negligence is similar to that described as the implied warranty of merchantability, and with respect to the allegation of liability against the defendant apart from negligence, the plaintiff has the burden of establishing, along with causation, that the product was unreasonably dangerous and not reasonably fit for the ordinary purpose for which such articles are sold and used because of a defect therein which arose out of the design, preparation or manufacture of the article while it was in the control of the manufacturer.

The italicized phrase is evidently drawn verbatim from § 402A of the Restatement, which states:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(aj the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. [Italics supplied]

The court holds that the additional element of “unreasonable danger” is not a valid part of the concept of strict liability in tort in the State of New Jersey. It therefore adopts as law § 402A, minus the phrase “unreasonably dangerous” and minus any necessity for the jury to find that the product was in a “defective condition unreasonably dangerous.” If the jury finds that (1) the product was defective while in the hands of defendant; (2) this defect proximately contributed to the harm complained of, and (3) plaintiff was a reasonably foreseeable user or consumer of the product, that is sufficient to give a verdict to plaintiff.

The function of the “unreasonably dangerous” qualification in § 402A is, at best, unclear. Dean Prosser thought that it was added to save the manufacturer, processor or distributor of a product that might, inherently, harm some people (e. g., whiskey, drugs) from becoming “automatically responsible for all the harm that such things do in the world.” Prosser, “Strict Liability to the Consumer in California,” 18 Hastings L. J. 9, 23 (1966).

If the sole effect of the “unreasonably dangerous” qualification were to prevent a seller from becoming an insurer, it would not meet with objection. But, as is made clear in Cronin v. J. B. E. Olson Corp., 8 Cal. 3d 121, 104 Cal. Rptr. 433, 501 P. 2d 1153 (Sup. Ct. 1972), the requirement “. . . has burdened the injured plaintiff with proof of an element which rings of negligence.” (104 Cal. Rptr. at 442, 501 P. 2d at 1162). That is, the jury is influenced by the “unreasonable danger” requirement to employ the “reasonable man” standard and thereby arrive at the conclusion that an “ordinary consumer” either would, or would not have expected the defective condition of the particular product. If the jury finds that the defect would have been expected by the ordinary consumer •— which is the same as saying that the product’s defective condition was not unreasonably dangerous — then the injured plaintiff, regardless of his own expectations, is denied recovery.

The notions of negligence and of strict liability, however, are antithetical to each other. Brody v. Overlook Hospital, 121 N. J. Super. 299, 309 (Law Div. 1972). The purpose of the doctrine of strict liability, for various policy reasons too well known to be repeated here, is “to relieve the plaintiff from problems of proof inherent in pursuing negligence * * * remedies.” Cronin, supra, 104 Cal. Rptr. at 442, 501 P. 2d at 1162. This court is free to purge the “unreasonably dangerous” requirement from strict tort liability in New Jersey, since that qualification has never been expressly adopted as the common law of this State in any of the controlling cases that have cited § 402A. See, e. g., Rosenau v. New Brunswick and Gamon Meter Co., 51 N. J. 130, 136 (1968); Newmark v. Gimbel’s, Inc., 54 N. J. 585, 595 (1969): Bexiga v. Havir Mfg. Co., 60 N. J. 402, 408 (1972); Finnegan v. Havir Mfg. Co., 60 N. J. 413, 420 (1972). As Cronin, supra, 104 Cal. Rptr. at 442, 501 P. 2d at 1162, correctly observes, “a requirement that a plaintiff also prove that the defect made the product “unreasonably dangerous’ places upon him a significantly increased burden and represents a step backward * *

This court will not take that step, and therefore holds that the qualification of “unreasonable danger” plays no role in the common law concept of strict liability in tort.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CARL JACKSON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted April 9, 1973
    Decided May 8, 1973.

      Before Judges Lewis, Carton and Mintz.

      Mr. Stanley O. Van Ness, Public Defender, attorney for appellant (Mr. Robert J. Konzelman, Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. John S. Kuhlthau, Middlesex County Prosecutor, attorney for respondent (Ms. Joyce S. Munkacsi, Assistant Prosecutor, on the brief).
   Per Curiam.

Defendant was tried to a jury and convicted for possession of a controlled dangerous substance, to wit, heroin, in violation of N. J. S. A. 24:21-20, subd. a(l). He was sentenced to the New Jersey Youth Correctional Institution at Yardville for an indeterminate term.

On appeal defendant initially contends that the trial court erred in permitting Detective Hampton to testify that he came to the conclusion that defendant was under the influence of narcotics and that a field test was positive for an opiate. No objection was raised to the field test result but objection was taken to Detective Hampton’s testimony in which he concluded defendant was under the influence of an opiate.

On August 17, 1971 Detective Hampton, a member of the Narcotics Bureau of the New Brunswick Police Department, picked up an object which defendant, whom he knew by sight, dropped. It was a piece of aluminum foil with seven small pieces of aluminum wrapped inside. He opened one of the small pieces and observed a white powdered substance which he believed to be heroin. He thereupon arrested defendant. When asked about his personal observations of defendant at the police station, Detective Hampton replied:

Upon my observation of the defendant at Police Headquarters I checked the defendant’s left arm and I found a puncture wound with dry blood, what appeared to be a fresh needle mark. Upon checking the defendant’s eyes I found that the defendant’s pupils were pinned and it did not react to light. Upon talking to the defendant I learned that the defendant’s speech was slurred. Upon observing the way the defendant was walking I learned that he was walking with an unsteady gait.

He further testified that there was no smell of alcohol on his breath, and “At this time I came to the conclusion that the defendant was under the influence of a narcotic drug.” Detective Hampton further testified that he field-tested the evidence, which proved to be positive for an opiate.

Although Detective Hampton was not offered as an expert witness, the record reveals that he did have specific schooling and training in the field of narcotics and had participated in 75 to 100 arrests and seizures of evidence pertaining to narcotics. In any event, a lay witness if sufficiently 'experienced and trained may testify generally as to the observable reaction of drug users and of the technique of the use. State v. Johnson, 87 N. J. Super. 195, 198 (Law Div. 1965). Moreover, most of Hampton’s statements were a layman’s observation and admissible under Evidence Rule 56(1). Additionally, as a non-expert he was competent to make such a conclusion. Cf. Searles v. Public Service Ry. Co., 100 N. J. L. 222 (Sup. Ct. 1924)) State v. Risden, 56 N. J. 27 (1970).

As already noted, no objection was raised to Detective Hampton’s testimony respecting the field test he conducted. In any event, the State presented testimony by an expert witness from the New Jersey State Police Laboratory that the evidence was indeed heroin. Hence, defendant suffered no prejudice from Detective Hampton’s testimony regarding his field test.

Secondly, defendant asserts that the evidence regarding results of laboratory tests were inadmissible since there was a major interruption in the chain of custody. We have reviewed the record and find no substance to this contention. The evidence respecting the chain of custody amply comports with the criteria set forth in State v. Brown, 99 N. J. Super. 22, 27 (App. Div.), certif. den. 51 N. J. 468 (1968).

Einally, defendant contends that the sentence was manifestly excessive. Unfortunately this young defendant has a drug problem. We have reviewed the record, including the presentence report, and take note of his prior record. We find no abuse of discretion on the part of the trial court in the imposition of the sentence.

Affirmed.


text:
    THE CITY OF NEWARK, PLAINTIFF-APPELLANT, v. SUE CORPORATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 2, 1973
    Decided May 8, 1973.

      Before Judges Lora, Allcorn and Handler.

      Mr. Irving B. Venokur argued the cause for appellant (Mr. William, E. Walls, attorney).

      Mr. Walter B. Cohn argued the cause for respondent (Messrs. Cohn & Turk, attorneys).
   Per Curiam.

The City of Newark appeals from a decision of the County Court, 121 N. J. Super. 205, reversing municipal court convictions of defendant Sue Corporation. The offenses charged were violations of municipal ordinances in four separate complaints. These pertained to defendant’s failure as the owner of a six-family frame dwelling to keep the premises in good repair and structurally sound and free from defects and deterioration; in permitting the building to remain vacant, unoccupied and in not securing it from fire, vandalism and the like, and in having the premises in a dangerous and hazardous condition.

The city contends on this appeal that a municipality in temporary possession of premises by virtue of N. J. S. A. 54:5-53.1 for the purpose of collecting rents to apply to past due taxes is not responsible for the upkeep of the building and that there is no duty or responsibility upon such a municipality to make repairs to premises held under a tax sale certificate or under N. J. S. A. 54:5-53.1.

The city purchased tax lien certificates at the tax sale of the premises, which were recorded on November 9, 1967. In September 3969 the city tax collector commenced collecting rents from the tenants to be credited on taxes, assessments and other municipal charges. In May 1971 the last of the tenants moved out and the building became vacant. Each of the complaints charges that the violations occurred in September 1971.

When a municipality becomes the holder by purchase of such a certificate which is recorded, it becomes entitled to the “immediate possession of the property sold and described in the certificate and to all rents and profits thereof while the holder thereof, until redemption * * N. J. S. A. 54:5-53.1. A tax sale certificate is not an outright conveyance and does not constitute a final and irrevocable divestiture of the title of the fee owner. Brewer v. Porch, 53 N. J. 167 (1969); Chelsea Laundry Co. v. Toscano, 14 N. J. Super. 496 (App. Div. 1951). The rights and duties of a holder of a certificate of tax sale in possession of the premises affected thereby “are akin to those of a mortgagee in possession.” Clark v. Jersey City, 8 N. J. Super. 33, 37 (App. Div. 1950). “The duties of a mortgagee in possession are those of a prudent owner.” Taylor v. Morris, 1 N. J. Super. 410, 415 (Ch. Div. 1948); Asbury Park v. Ehrlich, 25 N. J. Misc. 367, 54 A. 2d 118 (Cty. Ct. 1947). A mortgagee in possession may be liable to third persons for negligence in connection with the property, and is, therefore, under a duty to keep such premises properly repaired and maintained. Zanzonico v. Zanzonico, 2 N. J. 309 (1949); Scott v. Hoboken Bank for Savings, 126 N. J. L. 294 (Sup. Ct. 1941); Orange Land Co. v. Bender, 96 N. J. Super. 158 (App. Div. 1967).

In contrast, a municipality in possession of premises by virtue of a tax sale certificate prior to a final decree of foreclosure is “not liable for injury to said property * * * from the use of the property.” N. J. S. A. 54:5-53.1; Clark v. Jersey City, supra. This statutory immunity derogates from an affirmative duty upon such a municipality to maintain and repair the property. N. J. S. A. 54:5-53.1, however, provides that the municipality’s agent “shall be allowed such expenses in connection with the operation and management thereof * * * as the governing body of such municipality may deem necessary to secure the greatest income therefrom.” This right to operate and manage property to maximize its income implies reasonably a right to undertake appropriate maintenance and repair. Such a right would be inconsistent with a continuing responsibility on the part of the preempted property owner to provide for the physical upkeep of property. Therefore, the penal sanctions of a municipal ordinance which purports to impose these duties with respect to such property cannot be applied to a dispossessed owner under these circumstances.

Affirmed.


author: O’Brien, J. S. C.,

text:
    IN THE MATTER OF THE ESTATE OF EUGENE J. POLITOWICZ, DECEASED.
    Superior Court of New Jersey Appellate Division
    Submitted February 20, 1973
    Decided April 16, 1973.

      Before Judges Carton, Mintz and O’Brien.

      Messrs. Melnik, Muller, Morgan & Weinberg, attorneys for appellant (Mr. Stephen D. Morgan on the brief).

      Messrs. Archer, Greiner & Bead, attorneys for respondent (Mr. David H. Ibbeken on the brief).
   The opinion of the court was delivered by

O’Brien, J. S. C.,

Temporarily Assigned. The sole issue involved in this appeal is whether, in light of the facts in the case, a witness properly subscribed her name to a will “in the presence of the testator.”

On April 20, 1971 Dr. Eugene J. Politowicz signed a self-made will on a coffee table in the living room of his home, as did the first subscribing witness, Florentine Seotese. The second subscribing witness, Mary Seotese, was unable to bend over and sign the will on the coffee table as she was pregnant at the time. As a result she took the will from the living room into the adjoining dining room where she subscribed her name at a table. Both decedent and Florentine remained in the living room. She then returned to the living room and handed the will to the decedent.

Testator died on August 7, 1971. On August 30, 1971 the will was admitted to probate by the Surrogate of Camden County. Harriet M. Politowicz' was appointed executrix. Decedent had previously been married to Patricia C. Powers and was the father of her three minor children. Mrs. Powers, as guardian ad litem of the children, instituted this action seeking to set aside probate of the will and issuance of the letters testamentary.

The trial court concluded that the will had not been executed in accordance with the requirements of N. J. S. A. 3A:3-2, finding that there was no evidence that Mary Scotese subscribed her name “in the presence of the testator.” It therefore set aside probate of the will. It is from this decision that the proponent of the will appeals. No appeal was taken from an additional determination by the trial court as to the genuineness of the signature of decedent.

Although the record does not contain a copy, the trial court found that “the attestation clause attached to the will contained language which would constitute prima facie proof of due execution and publication.” Thus, the court recognized the well settled principle that a perfect attestation clause is prima facie evidence of all the facts stated therein.

A perfect attestation clause is a safeguard against defective memories, unintentionally dulled by the passage of time or deliberately dulled by changes in human relationships, giving rise to enmity for the testator or the persons he makes beneficiaries of his will. An attestation clause is prima facie evidence of the facts stated in it, which may be overcome by clear and convincing proof to the contrary, either from the subscribing witnesses themselves or from facts or circumstances actually incident to the execution. Such proof must be clearly irreconcilable with the recitations of the clause. In re Hale, 21 N. J. 284, 299 (1956).

While the presumption which arises from a perfect attestation clause has never been regarded as conclusive, the clause operates to cast the burden of proof upon the contestant to negative its averments. The attestation clause is now accepted as “a most important element of proof” and the derivative presumption is deemed impregnable unless it is devastated by “strong and convincing evidence.” In re DuBois, 9 N. J. Super. 280, 283, 284 (App. Div. 1950).

The trial judge made the following findings and conclusions of fact:

In so considering tile testimony, I find that of Mary Scotese to be the most reliable and entirely credible. She admitted she signed at the dining room table, while the decedent and her husband were still in the living room. I am satisfied and I find that such was the fact. While the distance between them was not great, she was physically in a different room than the decedent when she signed. She testified to no fact or surrounding circumstances from which it can be inferred that decedent could have seen her sign while she did so.
sh * *
The evidence here establishes that the two rooms adjoined, that a sizeable doorway separated them, and that the distance between the living room coffee table and the dining room table was not great. There is, however, no testimony from which this court can reliably infer that at the very moment when Mrs. Scotese appended her signature, the testator was in a position from tvhich he could have seen her sign if he had looked. Absent such testimony, the court must infer that decedent was not in position to see her sign and thus did not, in fact, see her sign. [Emphasis supplied]

While there was testimony on rebuttal from Harriet Politowicz that decedent was standing directly behind Mary Scotese, looking over her shoulder when she signed, apparently the trial judge did not find this testimony credible. In concluding that the witness, Mary Scotese, did not subscribe the will in the presence of the testator, the trial court placed reliance upon Mandeville v. Parker, 31 N. J. Eq. 242 (Prerog. 1879), wherein the court said:

The object of the provision of the statute that witnesses shall sign in the presence of the testator, is to prevent substitution and fraud upon him. An attestation made in the same room in which he is, is prima facie, an attestation in his presence. On the other hand, an attestation made in another room is, prima facie, not made in his presence. [At 252]

In connection with his decision as to the genuineness of the testator’s signature, the trial court concluded that the witness, Rita H. Wister, was truly disinterested in all respects. This witness testified that decedent had shown her a will he had recently executed which she identified as the will admitted to probate. This testimony would seem to negative any substitution or fraud practiced upon decedent.

Moreover, the facts in the instant case are clearly distinguishable from the facts in Mandeville v. Parker, supra. There the testator was bedridden and the evidence demonstrated that it was impossible for him to have seen the witnesses sign the will at a table in the adjoining room even though the door between the rooms was open. There was a partition wall located between the testator, who was lying in his bed and the table at which the witnesses concededly signed. Furthermore, the will was not taken nor shown to the testator after the witnesses had signed it.

In the present case Dr. Politowicz was not bedridden and was at most only six feet from the dining room table where Mrs. Scotese signed the will. There was a very large opening between the two rooms. There was no’ evidence that the testator could not have seen Mrs. Scotese subscribe the will if he had looked. After signing the will Mrs. Scotese immediately handed it to testator.

The prima facie presumption arising from a perfect attestation clause was also recognized by the court in Mandeville v. Parker, supra, where the court said:

The certificate of attestation declares that the witnesses signed in the presence of the testator, and that fact throws the burden of proof to the contrary on the opponents of the will, [at 248]

Likewise, the attestation clause in this case apparently stated that the subscribing witness, Mary Scotese, signed in the presence of testator. The burden, therefore, rested upon the contestant to establish that Mrs. Scotese did not subscribe her name in the presence of the testator. The quantum of this burden was by clear and convincing proof. In re Hale, supra; In re Hartung, 52 N. J. Super. 508, 511 (App Div. 1958).

The emphasized portions of the trial court’s conclusions cited above, indicate that no weight was given to the prima facie presumption arising from the perfect attestation clause. Eather, the court concluded that since the presumption is but a prima facie one, where “the full testimony of the witnesses to the will is offered, the presumption dissolves and the issue must then be decided upon the proven facts,” citing In re Blake, 21 N. J. 50, 58 (1956). But see, In re Rittenhouse, 19 N. J. 376 (1955); In re Weeks, 29 N. J. Super. 533 (App. Div. 1954), and 11 Rutgers Law Review 387, 391 (1956).

The trial court apparently concluded either that (1) only the burden of going forward with the proof shifted and since the subscribing witnesses had testified fully, the presumption had dissolved, or, (2) once the evidence established that Mrs. Scotese had signed the will in another room, that an inconsistent presumption arose by reason of the language of Mandeville v. Parker, supra, to the effect that an attestation made in another room is prima facie not made in the presence of testator.

The field of presumptions is a most complexing one. It has been the subject of much debate as to whether a presumption shifts only the burden of going forward or shifts the burden of proof itself, which is clearly the effect as to some presumptions. In re Weeks, supra. The rules of evidence adopted by the Supreme Court in 1967 include two rules dealing with presumptions. Evidence Rule 13 defines a presumption as “a rebuttable assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action.” Evidence Rule 14 purports to set forth the effect of a presumption. However, it does not characterize the type nor quantum of evidence required to rebut the presumption, nor upon whom the burden of proof rests. Evidence Rule 15, relating to inconsistent presumptions and Evidence Rule 16, providing that the burden of proof is not ■ relaxed as to some presumptions, were not adopted. Many of the rules of evidence are simply codifications of existing law. The nonadoption of some of the proposed-rules does not impair the validity of decisional law relating to the subject of such proposed rule.

We have concluded that it is unnecessary for us to discuss the effect of presumptions generally, nor the nonadoption of Evidence Buies 15 and 16, since the existing decisions clearly establish the effect of the presumption involved in this case.

The question of inconsistent presumptions was dealt with in Turro v. Turro, 38 N. J. Super. 535 (App. Div. 1956), where the court said:

It may be * * :i that any two conflicting presumptions of equal weight will always neutralize each other * * *. But * * *’ where one of two conflicting presumptions rests on substantially stronger considerations of policy or probability, it displaces the weaker one and stands alone in the action. * * * [at 540]

This same general principle was referred to in In re Weeks, supra, at 536; however, when the court there dealt with a perfect attestation clause, it said the following:

*■ * * The perfect attestation clause here raises a presumption of the sort above spoken of, namely, one heavily fortified in policy. To rebut it, contestant must establish by strong and convincing evidence, or perhaps beyond all reasonable doubt, that the will was not properly executed. In re DuBois’s Estate, 9 N. J. Super. 280 (App. Div. 1950). To state the test is to decide the issue here. Contestant relies only upon matters affecting in trivial aspects the credibility of the subscribing witnesses and the attorney who attended to the execution of the will. The presumption clearly stands unrebutted, [at 544]

The cited language in Weeks might well apply to this case. The burden rested upon the contestant to establish that Dr. Politowicz was not in a position to see Mrs. Scotese sign the will at the dining room table. This the contestant did not do.

Thus, it is our conclusion that the contestant failed to carry her burden of proving, by clear and convincing proof, that Mrs. Scotese did not sign the will in the presence of the testator. The trial court’s conclusion to the contrary resulted from improperly shifting the burden of proof to the proponent to establish that Mrs. Scotese did subscribe her name in the presence of the testator, whereas the presumption arising from. the attestation clause had already-created a strong presumption of that fact.

Reversed.


text:
    IN THE MATTER OF THE PRESENTMENT OF THE CAMDEN COUNTY GRAND JURY, JANUARY STATED SESSION, 1970 TERM, PANEL B, IN RE THE PENNSAUKEN POLICE DEPARTMENT.
    Superior Court of New Jersey Appellate Division
    Submitted April 3, 1973
    Decided May 11, 1973.

      Before Judges Kolovsky, Matthews and Crahay.

      Messrs. McGuire, Green & Young, attorneys for appellants (Mr. Thomas F. McGuire on the brief).

      Mr. Thomas J. Shusted, Camden County Prosecutor, attorney for respondent (Mr. Archibald Krieger, Assistant Prosecutor, of counsel).
   Per Curiam.

Appellants, 43 out of the 56 members of the Pennsauken Police Department, on May 11, 1972 “petitioned” the assignment judge to expunge a paragraph in a presentment handed up by the Camden County grand jury in Januray 1972, claiming that it constituted an improper and unfair censure of them. Then Assignment Judge Schalick denied the motion, generating this appeal.

In November 1970 a survey of the Pennsauken Township Police Department was conducted by one Walter V. McLaughlin, a law-enforcement consultant, at the request of the township committee. Its stated purpose was two-fold: (1) to determine the conditions and causes affecting the morale of the Pennsauken Police Department, and (2) to examine generally the existing police organization. The McLaughlin report, consisting of 97 pages, extensively reviewed every facet of the operation of the Pennsauken Police Department. The report was subpoenaed before the September 1970 term of the Camden County grand jury and incorporated by reference into the involved presentment. After reviewing the presentment as required by the rules, (B. 3: 6-9), Judge Schalick on January 26, 1972 released the presentment and provided for its distribution.

The presentment provided in part;

* * * The Grand Jury heard testimony from every member of the Pennsauken Police Department and numerous other witnesses. The investigation had been requested by a majority of the members of the Pennsauken Police Department and other citizens of Pennsauken Township.
The testimony has shown that some members of the Pennsauken Police Department engaged in criminal activities. Some of these members have been indicted, but in other instances, the Grand Jury did not feel they had sufficient evidence to indict, even though they were convinced that numerous members, either past or present, of the Department, had engaged in criminal activities. * * * [Emphasis added]

Appellants, by their “petition” to the assignment judge filed on May 11, 1972, challenged the italicized portion of the presentment and asked that it be expunged urging that “the Grand Jury abused its power and went beyond the bounds of a legal presentment in determining guilt of numerous officers.” The petitioners claim that “The Camden County Grand Jury * * * in effect, wrongfully found numerous Police Officers guilty of criminal activity.” On June 29, 1972 the assignment judge denied the “petition.”

Appellants argue that since the presentment employs the term “numerous members,” it taints the reputation of every member of the Pennsauken Police Department and syllogize that each petitioner then as an individual has suffered public censure for a charge of criminal activity. The argument has no merit. As Assignment Judge Schalick noted, it was beyond the realm of reason to think that the challenged portion of the presentment dealt with ascertainable individuals.

Appellants’ reliance on In re Presentment by Camden Country Grand Jury, 34 N. J. 378 (1961) (Camden II), is misplaced. In Camden II, a readily identifiable individual, the City of Camden’s Director of Public Safety, was effectively censured for his alleged official misconduct in connection with gambling activities. The court there noted that following In re Camden County Grand Jury, 10 N. J. 23 (1952) (Camden I), the Supreme Court amended then R. R. 3:3-9 et seq. regulating the filing practice respecting presentments. B. B. 3 :3 — 9 is the source rule for R. 3:6-9, which now provides in pertinent part —

(a) Finding.
A presentment may be made only upon the concurrence of 12 or more jurors. It may refer to public affairs or conditions, but it may censure a publie official only where his association with the deprecated public affairs or conditions is intimately and inescapably a part of them. * * *
# ❖
(e) Examination; Reference Back; Striking.
Promptly and before the grand jury is discharged, the Assignment Judge shall examine the presentment. If it appears that a crime has been committed for which an indictment may be had, he shall refer the presentment back to the grand jury with appropriate instructions. If a publie official is censured the proof must be conclusive that the existence of the condemned matter is inextricably related to non-criminal failure to discharge his public duty. If it appears that the presentment is false, or is based on partisan motives, or indulges in personalities without basis, or if other good cause appears, he shall strike the presentment either in full or in part. * * *'
(d) Filing and Publication.
Such portions of the presentment as are not referred back to the' grand jury for further action or are not stricken in accordance with paragraph (c) of this rule shall be filed and made public, and the Assignment Judge shall instruct the clerk of the grand jury to send copies thereof to such public bodies or officials as may be concerned with the criticisms and recommendations made therein and to the Administrative Director of the Courts. *' * * [Emphasis added]

Camden II, supra reversed the action of the assignment judge there for failure to order expungement in part or permit the individual censured from exercising his relief under the rule.

The majority held:

* * * the subject must be a matter of general public interest, or relate to some aspect of public affairs, or to some public evil or condition to which, in the discretion of the jury, the attention of the community should be directed. And censure of a public official is permissible only where it may be said with absolute certainty that his connection with the condemned matter is such that its existence is inextricably related to non-criminal failure to discharge his public duty. More particularly and by way of further qualification, the criticism of the individual is allowable only where it is integrally associated with the main purpose of the report, i. e., to draw critical attention to some undesirable condition in the affairs of the public, [at 391]

Chief Justice Weiatraub in a concurring opinion said:

. . . Indeed the grand jury was invented to protect the individual against the ordeal of a trial of an arbitrary charge. But when a process thus designed to protect the individual against an unfounded charge is converted into a final trial and results in the condemnation of an individual, the basic purpose of a grand jury is subverted and indeed by a procedure wholly unsuitable as a vehicle for that final decision, [at 403; Emphasis added]

It will be seen then that emphasis is placed on protecting identifiable individuals from censure or reprobation for specific wrongdoing. It is a non sequitur to suggest that reference to “numerous members/’ “past or present/’ of the Pennsauken Police Department engaged in criminal activity, charges all or any of the appellants here with specified wrongdoing to which they may not defend. A grand jury’s interest in the workings of a police department are the proper subject of comment in a presentment. In re Presentment of Essex County Grand Jury, 46 N. J. 467, 475 (1966).

Appellants’ argument that the assignment judge should have disqualified himself from hearing the expungement “petition” is frivolous. The presentment was made public by the assignment judge on January 26, 1972. The “petition” was filed on May 11, 1972, and while it was without a return date, was treated as a motion for expungement and heard on June 22, 1972. B. 3:6-9 (d) requires that the assignment judge lile and make public presentments unless they are referred back to the grand jury for further action or are stricken in part or in whole under B. 3:6-9(c). Here, as noted, the assignment judge properly caused the presentment to be filed and made public, having determined that there was no specific crime or crimes committed which should have been returned to the grand jury for indictment, nor was any public official identified and censured.

Approximately five months after the publication of the presentment appellants “petitioned” the assignment judge for expungement of the allegedly offending statement. When the matter was called for argument appellants moved to have the assignment judge disqualify himself, on the grounds that he was in effect being called upon to reverse himself. Appellants noted that Assignment Judge Schalick was by repute “extremely competent and extremely fair” and that they had no doubt that he would decide the motion on its merits. B. 3 :6-9 mandates that the assignment judge guide presentments to their appropriate conclusion. No authority is advanced to the contrary. Cf. In re Camden County Grand Jury, 10 N. J. 23 (1952).

R. 1:12-1, “Disqualification and Disability of Judges” provides in pertinent part —

The judge of any court shall disqualify himself on his own motion and shall not sit in any matter, if he * * *
=:-= *
(d) has given his opinion upon a matter in question in the action; * * *
Paragraphs (e), (d) and (e) shall not prevent a judge from sitting because he has given his opinion in another action in which the same matter in controversy came in question or given his opinion on any questipn in controversy in the pending action in the course of previous proceedings therein, * * *.

Affirmed.


author: Consodine, J. S. C.

text:
    JOSEPH L. MAHNE, PLAINTIFF, v. GRANGE R. MAHNE, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided May 14, 1973.

      Mr. Edward S. Snyder, attorney for plaintiff.

      Mr. Gerald W. Kolba, attorney for defendant.

      Mr. Gary N. Skoloff for the intervenor (Messrs. Skoloff & Wolfe, attorneys).
   Consodine, J. S. C.

Plaintiff seeks divorce on adultery. Defendant denied, and counterclaims under oath in extreme cruelty. The corespondent denied the adultery both by his verified petition to intervene and by his answer.

Defendant and corespondent both refuse to answer interrogatories, claiming the privilege of the Fifth Amendment to the United States Constitution. Plaintiff moves to dismiss their pleadings for failure to answer on discovery. Adultery is a misdemeanor in this State. N. J. S. A. 2A: 88-1.

The motion raises a constitutional question on which there is little in New Jersey case law hut some in a few other jurisdictions.

Marsh v. Marsh, 16 N. J. Eq. 391, 397 (Ch. 1863), and Black v. Black, 26 N. J. Eq. 431, 434 (Ch. 1875), sustained demurrers to discovery as to the commission of adultery. In Marsh, the court stated:

«, * * The rule is, that a defendant is not bound to accuse himself of a crime, or to furnish any evidence whatever which shall lead to any accusation of that nature.

Florida dealt with the issue involved both before and after Spevack v. Klein, 385 U. S. 511, 87 S. St. 625, 17 L. Ed. 2d 574 (1967) (penalty of disbarment could not be imposed), and Garrity v. New Jersey, 385 U. S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967) (penalty of loss of position as policeman could not be imposed).

Stockham v. Stockham, 168 So. 2d 320 (Fla. Sup. Ct. 1964), held that unless plaintiff who had sued in adultery answered in discovery, the complaint would be dismissed.

Spevack and Garrity, supra, intervened before Simkins v. Simkins, 219 So. 2d 724 (Fla. D. Ct. App. 1969), and Minor v. Minor, 232 So. 2d 746 (Fla. D. Ct. App. 1970), aff’d 240 So. 2d 301 (Fla. Sup. Ct. 1970). In Simkins an intermediate appellate court felt constrained to take an opposite position to that of Spevack. A dissent argued that neither United States Supreme Court case changed the law of Stockham, supra, because neither Spevack nor Garrity came into court voluntarily.

In Minor the trial court ordered plaintiff to answer discovery or be dismissed where defendant charged adultery. The appellate court affirmed, adopting the dissent in the Simkins case. This was affirmed by the Florida Supreme Court, which cited Stockham v. Stockham, supra. See also Simonet v. Simonet, 241 So. 2d 720 (Fla. D. Ct. App. (1970)).

There are other jurisdictions in accord. Annest v. Annest, 49 Wash. 2d 62, 298 P. 2d 483 (Sup. Ct. 1956); Franklin v. Franklin, 365 Mo. 442, 283 S. W. 2d 483 (Sup. Ct. 1955), were before 1967. Subsequent to that year Minnesota agreed with Florida.

In Christenson v. Christenson, 281 Minn. 507, 162 N. W. 2d 194 (Minn. Sup. Ct. 1968), the court held that while the wife could not be compelled to waive her constitutional privilege, she was required either to waive it or have her divorce action dismissed. The court stated:

Research indicates that with the exception of Bishop v. Bishop, 157 Ga. 408, 121 S. 13. 305, all of the cases which have dealt with the legal questions presented herein have recognized that a motion to dismiss a complaint * * * should be sustained where the plaintiff has refused to answer questions pertinent to the issues involved on the ground of self-incrimination. These decisions appear to have been based upon the rationale that although the privilege against self-incrimination is available to either party to a civil action the party who seeks affirmative judicial relief from the court and at the same time invokes this privilege should not be permitted to prevail and, in effect, “eat his cake and have it too” * S! * [at 202]

See comment 55 Minn. L. R. 348, and generally, 28 Fordham L. R. 537.

It seems clear that in matrimonial cases the weight of authority favors dismissal of pleadings of a party who invokes the privilege against self-incrimination in discovery. The corespondent here is equally a party with plaintiff and defendant.

Query: Have not defendant by denial of adultery in her answer and the corespondent by verified denial of adultery in his petition to intervene, waived the privilege against self-incrimination.

Motion striking pleadings of defendant and corespondent granted. Submit order.


author: Lane, J. S. C.

text:
    CARL HUBER, PLAINTIFF, v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF HOWELL, MONMOUTH COUNTY; TOWNSHIP COMMITTEE OF THE TOWNSHIP OF HOWELL, MONMOUTH COUNTY; HESS OIL & CHEMICAL DIVISION, AMERADA HESS CORPORATION, A CORPORATION OF THE STATE OF DELAWARE, AUTHORIZED TO DO BUSINESS IN THE STATE OF NEW JERSEY; IRVIN HOLLAND AND EILEEN HOLLAND, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Argued May 11, 1973
    Decided May 11, 1973.

      Mr. Benjamin Edelstein argued the cause for plaintiff (Messrs. Edelstein Edelstein, Attorneys).

      Mr. Geoffrey S. Cramer argued the cause for defendant, Township Committee of the Township of Howell (Messrs. Campbell, Mangini, Foley, Lee & Murphy, Attorneys).

      Mr. Harold G. Cohen argued the cause for defendants, Amerada Hess Corporation and Irvin Holland and Eileen Holland, his wife (Messrs. Wilentz, Goldman & Spitzer, Attorneys).
   Lane, J. S. C.

In this action in lieu of prerogative writs plaintiff successfully challenged the Board of Adjustment’s grant of an N. J. S. A. 40 :55-39(c) variance and the Township Committee’s grant of a special permit for the enlargement of a gasoline station. The matter is now before the court on motion by plaintiff to include in the taxed costs the expenses of the transcript of the proceedings before the Board of Adjustment in the amount of $317.25.

Normally, costs are allowed as of course to a prevailing party. R. 4:42-8(a). However, their allowance is discretionary. The same rule was followed in certiorari cases before 1948. Taggart v. Altman, 131 N. J. L. 29 (Sup. Ct. 1943). In determining what costs may be allowed in the absence of specific authorization by rule of court, there must be statutory authority. U. S. Pipe, etc. v. United Steelworkers of America, 37 N. J. 343, 355 (1962); Finch, Pruyn & Co., Inc. v. Martinelli, 108 N. J. Super. 156, 159 (Ch. Div. 1969).

In an analogous situation N. J. S. A. 22A:2-3 provides for the costs of transcripts in appeals before the Supreme Court. Those provisions are extended to appeals in the Appellate Division by N. J. S. A. 22A :2-5. R. 2 :ll-5 provides that in the absence of an order the cost of the transcript on appeal shall be taxed in favor of the prevailing party.

The policy established by our Supreme Court is that each litigant should bear his own expenses in prosecuting and defending his individual interest. Sunset Beach Amusement Corp. v. Belk, 33 N. J. 162, 167 (1960). This court has been unable to find a reported ease in which the costs of a transcript of hearings before a municipal body for use in an action in lieu of prerogative writs have been included in the prevailing party’s bill of costs. The clerk of the court has advised that orders directing the taxation of the expenses of transcripts have been entered, but that there is no established pattern within the Law Division.

Plaintiff in this case is an interested citizen whose property was close enough to the property in question to give him standing to challenge the decisions of the board and governing body. His challenge had the effect of insuring the correct enforcement of the Township Zoning Ordinance. In this sense, his suit is one brought on behalf of all the citizens of the Township, who will benefit from the correct application of local zoning regulations. See Schultzs v. Wilson, 54 N. J. Super. 309, 319 (App. Div.), certif. den. 29 N. J. 511 (1959). The costs of bringing an action in lieu of prerogative writs to challenge a zoning decision is considerable, particularly because transcripts of hearings before public bodies are necessary since the court’s decision must be based on the record below. It is important that citizens should feel able to bring such actions where they believe that their representatives are not carrying out their duties correctly or effectively and should not be discouraged from doing so by the possibility of large costs. For these reasons, the cost of the transcript ($317.25) will be included in the taxed costs so that plaintiff is not in effect penalized for taking the initiative in acting for his community.