author: Michels, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. THOMAS CONNERS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued July 9, 1974
    Decided July 26, 1974.

      Before Judges Fritz, Lyhch and Michels.

      Mr. Paul J. Feldman argued the cause for appellant (Mr. Charles Frankel, attorney).

      Mr. John T. Mullaney, Jr., Assistant Monmouth County Prosecutor, argued the cause for respondent (Mr. James M. Coleman, Jr., Monmouth County Prosecutor, attorney).

      Mr. Steven Leonard Strelitz, Deputy Attorney General, argued the cause for amicus curiae State of New Jersey, Department of Law and Public Safety, Division of Criminal Justice (Mr. William F. Hyland, Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Michels, J. A. D.

Defendant was found guilty in the Municipal Court of Manalapan Township of driving while under the influence of intoxicating liquor, in violation of N. J. S. A. 39:4A50(a). His driver’s license was suspended for two years and a $200 fine was imposed. He appealed to the Monmouth County Court and after a trial de novo on the record below was again found guilty and the same sentence was imposed. Judgment was stayed pending the outcome of an appeal to this court.

Defendant contends that his conviction should be reversed because (1) the County Court erred in that its finding of intoxication was based on a chart contained in the New Jersey State Police Drinking Driving Enforcement Guide, which was not in evidence; (2) the State did not prove that defendant was guilty beyond a reasonable doubt of driving while under the influence of intoxicating liquor, in violation of N. J. S. A. 39:A-50a; (3) defendant’s Fourteenth Amendment right to due process was violated by the Manalapan Township police officers; and (4) the County Court erred in vacating its order of September 4, 1973, adjudging defendant guilty of operating a motor vehicle while his ability to do so was impaired by consumption of alcohol, in violation of N. J. 8. A. 39:4-50(b). The State contends on its cross-appeal that the County Court erred in ruling that the insp 'ction certificates for the Breathalyzer instrument were not properly admissible to prove that the instrument was in proper working order, without testimony and cross-examination of the State Police coordinator who tested the instrument.

I

It is fundamental that the findings of fact of a trial court must be based on evidence present in the record, Stuyvesant Ins. Co. v. Sussex Fire Ins. Co., 90 F. 2d 281, 283 (3 Cir. 1937), cert. den. 302 U. S. 742, 58 S. Ct. 144, 82 L. Ed. 573 (1937); Dudley Co. v. Aron, 106 N. J. L. 100, 103-104 (E. & A. 1929), or on matters judicially noticed in proper fashion. Evid. R. 9-12. While it appears from the record that the chart contained in the New Jersey State Police Drinking Driving Enforcement Guide (March 1968) was not in evidence or properly made the subject of judicial notice, and for. that reason should not have been considered or referred to by the County Court judge in his written opinion, we are convinced that defendant was not prejudiced in any regard by the reference thereto. At the outset, we are satisfied that there was more than enough evidence in the record to find defendant guilty of driving while under the influence of intoxicating liquor without considering the chart referred to above. As a matter of fact, on the motion for an order to vacate the judgment, the County Court judge commented that he still would have found defendant guilty without regard to the chart. More importantly, however, the County Court judge actually only referred to the chart “as one source of meaningful information” in articulating his finding of defendant’s guilt of driving while “under the influence” of intoxicating liquor, in violation of N. J. S. A. 39:4-50(a).

II

Defendant's argument that the finding of guilt of driving while under the influence of intoxicating liquor, in violation of N. J. S. A. 39:4-50(a), was against the weight of the evidence is entirely without merit. Careful review of the record below satisfies us that there was sufficient credible evidence to support the conviction. See State v. Johnson, 42 N. J. 146, 161-162 (1964).

III

Defendant’s argument that his Fourteenth Amendment right to due process was violated by the conduct of the Manalapan Township police in insisting on obtaining fingerprints and mug shots of him, contrary to N. J. S. A. 53:1-15, and in refusing to permit cash bail to be posted for ln'm because of his refusal to submit to their booking procedures, is also without merit. Preliminarily, we point out, however, that the Manalapan Township police had no right to fingerprint and take mug shots of defendant since he was not arrested for an indictable offense. See Oberg v. Dept. of Law & Public Safety, 41 N. J. Super. 256 (J. & D. R. Ct. 1956). N. J. S. A. 53:1-15 provides in pertinent part:

* * * (Xjaw enforcement agencies and officers, shall immediately upon the arrest of any person for an indictable offense, or of any person believed to be wanted for an indictable offense, or believed to be an habitual criminal, «’ * ■r take the fingerprints of such person according to the fingerprint system of identification established by the Superintendent of State Police and on the forms prescribed, and forward without delay two copies or more of the same, together with photographs and such other descriptions as may be required and with a history of the offense committed, to the State Bureau of Identification.

A proceeding for a violation of N. J. S. A. 39:4-50 is si-criminal in nature. State v. Hunter, 4 N. J. Super. 531, 537 (App. Div. 1949). Drunken driving is not a crime. State v. Cusick, 110 N. J. Super. 149, 151 (App. Div. 1970).

However, the unwarranted fingerprinting of defendant and the refusal of the police to permit the cash bail to be posted for defendant, while clearly arrogant police conduct, do not rise to the level of “conduct that shocks the conscience,” which was condemned by the United States Supreme Court in Rochin v. California, 342 U. S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1951), contrary to defendant’s assertion. In Bochin the court held that the forcible opening of defendant’s mouth and the forcible extraction of the contents of his stomach in order to obtain narcotics evidence which was used to obtain his conviction violated the Due Process Clause of the Fourteenth Amendment as “methods too close to the rack and the screw to permit of constitutional differentiation.” Defendant apparently overlooked the more recent case of Schmerber v. California, 384 U. S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), wherein the Supreme Court held that the taking of a blood sample from the defendant after his arrest for drunken driving, by a physician at the direction of a police officer, despite the defendant’s refusal to consent thereto, and the admission into evidence at trial of the results of the blood test, did not violate the defendant’s right to due process of law under the Fourteenth Amendment.

Here, no claim of physical force or violence of the kind condemned by the Supreme Court in Bochin is made by defendant. His claim of conduct which “shocks the conscience” is without merit. Defendant arrived at police headquarters at some time between 5:40 p.m., when he was released from the hospital, and 5:50 p.m., when he was read the Breathalyzer refusal form and he refused to submit to the test. Some time after 6:08 p.m., when defendant’s wife arrived at headquarters and was denied the opportunity to post bail for defendant, defendant acquiesced to submit to the testing, the first test being taken at 7:06 p.m., and the second at 7:22 p.m. While it is clear that the police officers improperly coerced defendant into submitting to the tests, the lack of physical force or violence and the relatively short period of time which transpired, operate to preclude a finding of that degree of misconduct which “shocks the conscience” proscribed by the court in Rochin.

Furthermore, since the results of the Breathalyzer tests were not received in evidence by the County Court below and did not form the basis for defendant’s conviction, defendant could not have been prejudiced by the conduct of the M'analapan police in any event.

IV

Defendant finally contends that the County Court erred in vacating its order of September 4, 1973, adjudging him guilty of impaired driving, in violation of N. J. S. A. 39:4-50(b). The County Court judge had signed the order of September 4, 1973 by mistake.

R. 1:13-1 provides:

Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight and omission may at any time be corrected by the court on its own initiative or on the motion of any party, on such notice and terms as the court directs, notwithstanding the pendency of an appeal.

In 49 C. J. S. Judgments § 243 at 456 (1947), it is stated:

A judgment may properly be amended so as to make it conform to the verdict, findings, or decision where by mistake or inadvertence it has been entered in terms differing therefrom. * s’ *

It is well established that a court has the power to control its own judgments. Welser v. Welser, 54 N. J. Super. 555, 563-564 (App. Div. 1959); Locker v. Locker, 111 N. J. Eq. 123, 125 (Ch. 1932). It has been held that a court has the power to amend a record which misstates the real verdict, Hansen v. DeVita, 76 N. J. L. 330, 332 (Sup. Ct. 1908); Terminal Cab Co. v. Mikolasy, 128 N. J. L. 275, 277 (Sup. Ct. 1942), ox- a judgment which misstates the court’s opinion, Delker v. Freeholders of Atlantic, 90 N. J. L. 473, 475 (E. & A. 1917). It is clear that a judicial error in entering a jxxdgment caused by mistake can be corrected by the court at any time. King v. Ruckman, 22 N. J. Eq. 551 (E. & A. 1871); Locker v. Locker, supra. It was stated in King v. Ruckman:

I have no doubt that this court has the power at any time to amend its judgment, if it is erroneous by reason of the mis-entry of the clerk, or by reason of any other mistake; or that such judgment may be set aside and treated as a nullity, if it has been procured by fraud, or is the result of misapprehension, [at 554]

Defendant’s reliance on State v. Laird, 25 N. J. 298 (1957), is misplaced. In Laird our Supreme Court held that while at common law the record of the court in criminal cases was subject to amendment at any time during the term, including revision of the sentence, a new and different sentence increasing the punishment after the execution of the defendant’s sentence had begun could not be imposed by the court. Here, the facts establish beyond question that the County Court judge had not yet rendered his decision at the time he inadvertently signed the final judgment prepared and sent to him by the prosecutor’s office. All counsel were aware that the decision of the County Court was still pending. The County Court judge did not knowingly sign the order of September 4, 1973 and clearly had no intention to do so. In fact, the judge in his reported opinion specifically stated, “Defendant is to present himself to the Court for imposition of sentence forthwith.” 125 N. J. Super. at 513. Obviously this error on the part of the County Court judge in signing the final judgment should have been corrected, as it was, and we hold that the court below had the power to do so. See State v. Matlack, 49 N. J. 491, 501-502 (1967), cert. den. 389 U. S. 1009, 88 S. Ct. 572, 19 L. Ed. 2d 606 (1967).

V

The State contends that the County Court erred in holding that the inspection certificates of the Breathalyzer instrument were inadmissible without testimony and cross-examination of the State Police coordinator who tested the machine. We agree that the trial court erred in that regard and to that extent overrule that portion of the holding of the County Court below. State v. McGeary, 129 N. J. Super. 219 (App. Div. 1974). However, we affirm the trial court's ruling that the inspection certificates were inadmissible in evidence on the ground that the record reveals that the State failed to authenticate the inspection certificates in any manner, as provided by Evid. R. 67, and failed to lay any foundation qualifying the inspection certificates as business records under Evid. R. 63(13). See State v. McGeary, supra. Furthermore, while we expressly held in State v. McGeary, supra, that such inspection certificates are admissible as reports of a public official by virtue of Evid. R. 63(15), we cannot find that the trial judge abused his discretion here in excluding the inspection certificates, since it appears that the intention of the State to offer them in evidence was not made known to defendant in sufficient time in order to provide him with a fair opportunity to prepare to meet them, as required by Evid. R. 64.

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


source: Caselaw Access Project

author: Lucchi, J . D. C.,

license: Public Domain

text:
    IN THE MATTER OF J. S. & C.
    Superior Court of New Jersey Chancery Division
    Decided July 26, 1974.

      Mr. Richard L. Amster for plaintiff.

      Mr. Seymour Wishman for Defendant and Ms. Marilyn Haft for the American Civil Liberties Union.
   Lucchi, J . D. C.,

Temporarily Assigned. The controversy presented to the court by this case concerns the extent of visitation rights of a divorced parent who is homosexual. On July 27, 1971 a pendente lite order was entered granting custody of the three children of the marriage to the mother. The father was granted certain rights of visitation, including a three-week summer vacation, alternate three-day holidays, a week during Easter and Christmas and alternate weekends of the year.

A judgment of divorce was entered March 21, 1973 in favor of the wife without contest, on grounds of extreme cruelty. The judgment directed that custody of the three children be retained by the mother. At that time, as the result of the involved conflict over the extent of the father’s visitation, the court ordered that a separate hearing on this matter would be conducted at a later date. In preparation for the hearing it was ordered that a Probation Department investigation and report would be conducted, along with an examination of the children by a mutually agreed upon psychiatrist. It was further ordered that, pending the receipt of the Probation Department and psychiatrist’s reports, the father should continue to have the right of visitation, including overnight with the younger two children on every weekend. Visitation with the oldest child was limited to Sundays every other weekend, and overnight visits were eliminated until further order of the court. The father was additionally restricted from having any male overnight guests other than members of his lawful family when the younger two children stayed overnight, and he was ordered not to permit any of his children to be exposed to or take part in any activities or publicity concerning the homosexual civil rights movement.

Plaintiff mother seeks to limit visitation rights so as to exclude overnight stays with the father. The basis for her request is the belief that the homosexual environment to which the father exposes the children is deleterious and not in their best interest. The father contends the Constitution prohibits restriction of parental rights on the basis of homosexuality. In addition, he offered expert testimony to rebut allegations of the mother that exposure to a homosexual parent or the. parent’s homosexual friends and their way of life is detrimental to children generally and his children specifically.

More than six days of testimony was heard from expert and fact witnesses. I make the following findings of fact necessary to decide this case: The mother and father were married in 1960. Three minor children, two boys and a girl, were born of the marriage. The parents separated around the time of the pendente lite order in July oí 1971. The father is an avowed and publicly known homosexual. He associates with other homosexuals and is presently living with a homosexual lover. During the visits with the father, the children associate with the father’s homosexual lover and acquaintances.

The central issues presented in this ease are:

(1) Whether the parental rights of visitation should be restricted on the basis that the father is a homosexual;
(2) Whether the granting of visitation rights to this homosexual father will serve the best interest of the children, and
(3) Whether the visitation rights of his homosexual father should be restricted.

The parental rights of a homosexual, like those of a heterosexual, are constitutionally protected. Fundamental rights of parents may not be denied, limited or restricted on the basis of sexual orientation, per se. The right of a parent, including a homosexual parent, to the companionship and care of his or her child, insofar as it is for the best interest of the child is a fundamental right protected by the First, Ninth and Fourteenth Amendments to the United States Constitution. That right may not be restricted without a showing that the parent’s activities may tend to impair the emotional or physical health of the child. As stated In re N, 96 N. J. Super. 416 (App. Div. 1967): (1923); Pierce v. Society of the Sisters, 268 U. S. 510, 534-535, 45 S. Ct. 571, 69 L. Ed. 1070, 1078 (1925); Prince v. Commonwealth of Massachusetts, 321 U. S. 158, 166, 64 S. Ct. 438, 88 L. Ed. 645, 652, rehearing denied 321 U. S. 804, 64 S. Ct. 784, 88 L. Ed. 1090 (1944); Lacker v. Venus, 177 Wis. 558, 188 N. W. 613, 617, 24 A. L. R. 403, 408-410 (Sup. Ct. 1922). The Amendment is also construed to protect the right of a natural parent to procedural due process when the custody or adoption of its child is being litigated. See May v. Anderson, 345 U. S. 528, 533-534, 73 S. Ct. 840, 97 L. Ed. 1221, 1226-1227 (1953); Armstrong v. Manzo, 380 U. S. 545, 550-551, 85 S. Ct. 1187, 14 L. Ed. 2d 62, 66 (1965).

The right of a natural parent to its child must be included with the bundle of rights associated with marriage, establishing a home and rearing children; as such, it should be viewed as “so rooted in the tradition and conscience of our people as to he ranked as fundamental.” Snyder v. Massachusetts, 291 U. S. 97, 105, 54 S. Ct. 330, 332, 78 L. Ed. 674, 677, 90 A. L. R. 575, 579 (1934), approvingly quoted in Griswold v. Commonwealth of Connecticut, 381 U. S. 479, 487, 85 S. Ct. 1678, 14 L. Ed. 2d 510, 517 (1965) (Goldberg, J. concurring). Note also Id., 381 U. S., at pp. 495-496, 85 S. Ct. at pp. 1687-1688, 14 L. Ed. 2d, at p. 522. The Fourteenth Amendment’s concept of substantive due process protects the parent-child relationship from unwarranted governmental intrusion. See Meyer v. State of Nebraska, 262 U. S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042, 1045

In 1923 the Supreme Court, in Meyer v. Nebraska, 262 U. S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 cited supra, upheld the right of parents to have their children taught the German language. Although the court observed that the liberty guaranteed by the Fourteenth Amendment had never been defined with exactness, it determined that “[w]ithout doubt, it denotes * * * the right of the individual * * * to marry, establish a home and bring up children.” (At 399, 43 S. Ct. at 626).

In Skinner v. Oklahoma, 316 U. S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942), the court invalidated a state statute providing for the sterilization of habitual criminals and emphasized the fundamental nature of the constitutionally protected rights to marry and to procreate. In May v. Anderson, 345 U. S. 528, 73 S. Ct. 840, 97 L. Ed. 1221, cited supra, the court denied full faith and credit to an ex parte Wisconsin custody decree and held that a parent’s “immediate right to the care, custody, management and companionship of * * * minor children” is one of the most precious of personal liberties. (At 533, 73 S. Ct. at 843). And in Griswold v. Connecticut, 381 U. S. 479, 85 S. Ct 1678, 14 L. Ed. 2d 510, cited supra, the court, invalidating a statute which criminalized the use of contraceptives by married couples, reaffirmed that the sanctity of a man’s home and the privacies of life is a right so fundamental that it is safeguarded both by the right of privacy inherent in the First Amendment and by the Ninth Amendment to the United States Constitution. (At 487, 85 S. Ct. at 1678). See also, Eisenstadt v. Baird, 405 U. S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972).

More recently, the Supreme Court has explained the scope and nature of family freedoms with greater elaboration. In Stanley v. Illinois, 405 U. S. 645, 92 S. Ct. 208, 31 L. Ed. 2d 551 (1972), the court declared unconstitutional Illinois’ dependency and neglect statute which deprived unmarried fathers of the care and custody of their natural children on the death of the mother:

The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed “essential,” “basic civil rights of man,” and “rights far more precious than inoperty rights.” It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment, [at 651, 92 S. Ct. at 1212; citations omitted]

In Roe v. Wade, 410 U. S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), the court analyzed the protection afforded parental rights by the emerging constitutional right of privacy. Past decisions, the court notes,

* * make it dear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ are included in this guarantee of personal privacy. They also made it clear that the right has some extension to activities relating to marriage, procreation, contraception, family relationships, and child rearing and education, [at 152, 93 S. Ct. at 726; citations omitted]

Restriction of full contact between a father and child interferes with family relationships and impedes the father’s right to participate in his children’s rearing and education.

The courts of New Jersey have expressed a policy encouraging protection of family relationships by favoring full visitation rights in order “to insure that [the children] shall not only retain the love of both parents hut shall at all times and constantly he ‘deeply imbued with love and respect for both parents.’ ” Smith v. Smith, 85 N. J. Super. 462, 469 (J. D. R. Ct. 1964); Jackson v. Jackson, 13 N. J. Super. 144 (App. Div. 1951).

The court thus concludes that the fact that one of the parents is a homosexual does not per se provide sufficient basis for a deprivation of visitation rights.

Although a deprivation of the parent’s visitation rights due solely to homosexuality would be unjustified discrimination, this fact does not prevent or relieve a court from the duty of closely examining any claim where it is alleged that exposure to a specific homosexual parent may have a detrimental effect on a child.

Three expert witnesses, Dr. John Money and Dr. Richard Green for defendant, and Dr. Richard Gardner for plaintiff, all recognized authorities in their fields, testified in the areas of child psychiatry, sexual development and homosexuality.

The first question broached by these experts was whether exposure to the father’s homosexuality might be deleterious to the children. They all agreed that homosexuality was not per se a mental disorder and that a balanced exposure would not be harmful to the children. All concluded that the children have a close, loving and respectful relationship with their father. Dr. Gardner stated, “I am strongly advising that there be visitation. I feel that it would be very detrimental to both him and his children were there not to be visitation.” They agreed that the father had been a good parent. Dr. Gardner stated, “The fact that they were so healthy indicated that he [the father] was providing a healthy atmosphere for thorn and had done so at least in the past to provide them with a stable personality.”

In my interview with the children I found them to be well adjusted and anxious to continue their relationship with their father. I conclude that granting visitation rights to the father will serve the best interests of the children.

A second and more difficult problem concerns the court. Whether the defendant father’s visitation rights should be restricted and if so to what extent.

The defendant father has cited Wisconsin v. Yoder, 406 U. S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972), in support of his position that the parent-child relationship is primary to the State’s view of the child’s welfare and the exercise of its parens palriae. authority. He contends that as a parent his right to raise his children in a particular manner may not be limited by the State in the absence of a demonstration that the parent 'had impaired the safety or physical or mental health of the children. Yoder involves a conflict between the free exercise of religion by the Amish and a state requirement that all children attend at least one year of secondary education. The Supreme Court’s decision was based on the parents’ rights to the free exercise of religion combined with their right to control the religious upbringing of their children and the absence of any evidence that the exercise of such freedom would result in detriment "[to] the welfare of the child and society as a whole” (emphasis added). In addition the court stated, "the power of the parent, even when linked to a free exercise [of religion] claim, may be subject to limitation * * * if it appears that parental decisions will jeopardize the health or safety of the child.” This decision clearly recognizes that a parent’s right to raise his child as he sees flt is secondary to the State’s power to ensure the health and welfare of the child.

Although parents possess various rights such as custody and visitation these rights will fall in the face of evidence that their exercise will result in emotional or physical harm to a child or will be detrimental to the child’s welfare.

The decisional law of this State, insofar as the custody and visitation of infants are concerned, supports without exception the proposition that the paramount consideration of the courts is for the "safety, happiness, physical, mental and moral welfare of the child.” Fantony v. Fantony, 21 N. J. 525, 536 (1956); In Re Mrs. M., 74 N. J. Super. 178, 183 (App. Div. 1962); cf. N. J. S. A. 9:2-4. The leading case in the State touching upon visitation and overnight custody rights is Fiore v. Fiore, 49 N. J. Super. 219 (App. Div. 1958); certif. den. 28 N. J. 59 (1958). The lower court in 'that ease ordered an abatement of support because the mother was interfering with the rights of the father to visitation and overnight custody. In reversing the lower court’s order, the court held:

The welfare of the child is the primary, paramount and controlling consideration in determining- the question of visitation and custody of a minor child. The legal rights and claims of either parent and the wishes and personal desires of said parent must yield, if opposed to what the court, in the discharge of its duty, regards the welfare of the child to be.

It is clear that the court may impose a limitation of defendant’s visitation rights if it determines that it will serve the best interest of the children.

The mother’s request for a severe limitation of defendant’s visitation rights is based on her position that defendant’s total involvement with and dedication to furthering homosexuality has created an environment exposure to which in anything more than a minimal amount would be harmful to the children.

The extent of defendant’s involvement in homosexuality, homosexuals and with various movements furthering the cause of homosexuality is uncontradicted. He has been a leader of the Gay Activists Alliance and is currently employed as a Director of the National Gay Task Force at a net salary of $89.78 a week. In the past defendant has earned a substantial income which was utilized to help support the children. He has now decided to forego this income in favor of the gay rights movement.

Since his - separation from plaintiff, defendant has had several homosexual lovers. He presently lives with a male lover in a building occupied almost entirely by homosexuals. A business undertaking in which he is currently involved is owned primarily by homosexuals.

Defendant has involved the children in his attempts to further homosexuality. They have accompanied him on protest marches, at rallies and were filmed with him for a television show which discussed homosexuality. They have been present with him at “The Firehouse”, a meeting hall for homosexuals, where one witness has testified he observed men, “fondling each other, necking and petting.” They have slept overnight at defendant’s apartment while he slept with a male lover. The evidence and testimony also indicates that pornographic periodicals with a homosexual orientation are available to the children at defendant’s residence. Both my interview with the children and the testimony at the hearing indicated that homosexuality and gay rights are a common if not the most common topic of conversation when the children are with defendant.

The extent of the influence of the father over S and C was made evident to the court by children’s drawings offered by defendant as exhibits D12a and b and c. D12a portrays a figure holding two signs which say, “Gay is proud” and “Join us ! ! !” D12c portrays a dog dressed to resemble a policeman stating, “Hey you, get out of here,” to figures holding signs which say, “We want equal rights ! !” These pictures present themes which would not occur to children of this age without prodding and indoctrination by an adult.

My interview with S, an 11-year-old girl, and C, an 8-year-old boy, elicited no aversion on their part to visiting with defendant. Neither appeared disturbed by their father’s activities: however, they expressed their wishes not to be involved in the gay movement. They did not have a grasp of what homosexuality or gay rights involved and were chiefly interested in continuing to enjoy their father’s company. J, a 12-year-old boy, stated that he is unhappy when his father is with a male friend and he does not wish to stay overnight. He also indicated that he does not want to participate in gay activities.

Although the experts agreed there was very little chance that exposure to a homosexual environment would alter the children’s sexual orientation and at the present time they are well adjusted, Dr. Gardner indicated that the milieu that produced three healthy children was the milieu that existed prior to the separation. He was convinced that defendant’s involvement in the gay movement had become an obsessive preoccupation and that the children’s exposure to the concentrated and unidirectional environment this produced should be limited.

Dr. Gardner stated: “I believe he [defendant] is different with regard to the amount of activity that he is involved in, that it goes beyond the bedroom, that his political activities appear to be a significant involvement in his life which go way above and beyond the actual homosexual involvement.” Dr. Gardner did not feel that defendant’s preoccupation was “realistically changeable” and that controls had to be structured, “so that in any area that you can physically and in a concrete way remove exposure to .any potential homosexual experience, that will be good preventive psychiatry as I see it.” He felt strongly that there should be visitation but that there- should be a change in those things in the environment “that can lessen the exposure to homosexuality.”

Additionally, Dr. Gardner stated, “the total environment to which the father exposed the children could impede healthy sexual development in the future.” Specifically, he contended that, “the father’s milieu could engender homosexual fantasies causing confusion and anxiety which would in turn affect the children’s sexual development.” He asserted, “it is possible that these children upon reaching puberty would be subject to either overt or covert homosexual seduction which would detrimentally influence their sexual development.”

In response to a question concerning the limitations on visitation which, should be imposed Dr. Gardner replied, “my recommendation would be that there not be any overnight visitation for any of the three children, both weekends and during summers.”

Dr. Money and Dr. Green do not concur with Dr. Gardner’s conclusion regarding the possible ill effects on the children which continued unlimited exposure to the homosexually oriented milieu in which defendant has submerged himself might cause. Nevertheless, it is clear to the court from the overall tenor of the testimony from all three experts that any pronouncements by them in this area must contain a relatively high percentage of speculation. As recently as December 1973, when the Board of Trustees of the American Psychiatric Association reclassified homosexuality from a mental disorder to a sexual disorientation, they were met with strong opposition from among the members. The inability of psychiatrists to reach any degree of unanimity even as to a basic definition or classification of homosexuality is strong evidence of the diverse and myriad analyses which would erupt were the controversy presently before this court presented to the Association.

The lack of understanding and controversy which surrounds homosexuality, together with the immutable effects which are engendered by the parent-child relationship, demands that the court he most hesitant in allowing any unnecessary exposure of a child to an environment which may be deleterious.

Defendant has asserted that addicts and people convicted of violent crimes do not lose their visitation rights unless there is a showing that the parent will physically harm the children or not provide for them. He requests that at least the same standards be applied to him. I agree that the same standards should he applied to defendant in determining the extent of visitation but the factors which enter into consideration must be more inclusive than the threat of mere physical harm. We are dealing in the present case with a most sensitive issue which holds the possibility of inflicting severe mental anguish and detriment on three innocent children. All the efforts of this court are directed toward preventing this from occurring.

Where a hank robber is allowed full visitation rights, as defendant has hypothesized, surely the exercise of these rights whether expressed or implicit is restricted to exclude his exposing the child to any aspects of this most unaceeptible line of endeavor. Similarly, a homosexual who openly advocates violations of the New Jersey statutes forbidding sodomy, N. J. S. A. 2A:143-1 and related statutes, may also be restricted.

Based on the testimony given, the evidence received and my interviews with J, S and C, I conclude that allowing defendant to continue unrestricted visitation would not be in the best interest of the children and that a reasonable limitation will not in any way hinder the continuance and furtherance of the sound parent-child relationships which exist between defendant and J, S and O.

In accordance with the above I direct that defendant be afforded visitation with J, S and C on alternate Sundays from 10 a.m. to 7 p.m., on Christmas, Easter and Thanksgiving from 3 p.m to 7 p.m., and three weeks during the summer at an address other than his present Spring Street residence.

During such periods of visitation the defendant shall:

1) not cohabit or sleep with any individual other than a lawful spouse,
2) not take the children or allow them to be taken to “The Firehouse,” and
3) not involve the children in any homosexual related activities or publicity.
4) not be in the presence of his lover.


author: Kimmelman, J. S. C.

text:
    JOHN KARAFA, PLAINTIFF, v. NEW JERSEY STATE LOTTERY COMMISSION, RALPH F. BATCH, DIRECTOR, DIVISION OF THE STATE LOTTERY, AND WILLIAM T. CAHILL, GOVERNOR, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided July 31, 1974.

      Mr. Irving Ostrow, attorney for plaintiff.

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for defendants (Mr. Michael F. Goldman, Deputy Attorney General appearing).
   Kimmelman, J. S. C.

This lawsuit was instituted when the New Jersey State Lottery Commission refused to honor plaintiff’s claim that he was the $50,000 winner of the June 24, 1971 weekly lottery drawing. Unfortunately, plaintiff was unable to produce the winning lottery ticket. The Lottery Commission now moves to dismiss the complaint for failure to state a claim upon which relief can be granted, and, accordingly, the following factual allegations may be accepted as true for the purpose of the motion:

1. Prior to June 24, 1971 plaintiff purchased from Theodore McKeown, owner of the Edgar Diner, Linden, New Jersey, who was a lottery ticket sales agent, a strip of ten tickets for the weekly drawing to be held on June 24, 1971.

2. On said date the $50,000 winning ticket number was announced as 965321.

3. The next day plaintiff went to the diner in the morning and asked a waitress to cheek his string of tickets because he couldn’t see the numbers clearly without his glasses. She examined the tickets and let out a joyous shout, exclaiming: “You’ve won $50,000.” She detached the winning ticket, gave it to plaintiff and he verified the fact that it was the winning number, 965321. Six or seven persons, including the owner, were in the diner at that time, all witness to the event.

4. Later in the day plaintiff brought the ticket home to his mother and asked her to hold it for safekeeping until he could get some tax advice as to how to claim and report the winnings.

5. On July 3, 1971 it was reported in the Blimbeih Daily Journal that plaintiff had won the top prize at the June 24, 1971 drawing after purchasing the ticket at the Edgar Diner. 6. Some time later it was discovered that plaintiff’s mother had inadvertently thrown away the winning ticket along with an accumulated batch of old worthless tickets.

7. On August 31,1971 the executive director of the Lottery Commission rejected plaintiff’s claim without physical production of the winning ticket.

8. The records of the Lottery Commission indicate that ticket number 965321, worth $50,000, is still outstanding.

Although plaintiff’s lamentable predicament evokes much sympathy, there is a lack of legal precedent to support his contention that the Lottery Commission must honor his claim. Because this is a case of first impression a review of the organic and legislative provisions is in order.

N. J. Const. (1947), Art. IV, § VII, par. 2, prohibited gambling of any kind from being authorized by the Legislature unless the specific kind had first been submitted to the people and approved by a majority vote at a statewide general referendum. In 1969 that clause of the Constitution was amended by the addition of the following language:

It shall be lawful for the Legislature to authorize the conduct of State lotteries restricted to the selling of rights to participate therein and the awarding of prizes by drawings when the entire net proceeds of any such lottery shall be for State institutions, State aid for education.

This amendment to Art. IV, § VII, par. 2 was implemented by the Legislature by the enactment of the State Lottery Law, L. 1970, c. 13, § 1 et seq., N. J. S. A. 5:9-1 et seq., effective Eebruary 16, 1970. Generally, there was established within the Department of Treasury a State Lottery Commission with power “to promulgate such rules and regulations governing the establishment and operation of a State Lottery as it deems necessary and desirable in order that the mandate of the people expressed in their approval of the amendment to * * * the Constitution * * * may be fully implemented.” N. J. S. A. 5:9-7. It was further provided that

[Sluch rules and regulations may include, but shall not be limited to, the following:
(Í5) The manner of payment of prizes to the holders of winning tickets or shares.
(12) Such other matters necessary or desirable for the efficient and economical operation and administration of the lottery and for the convenience of the purchasers of tickets or shares and the holders of winning tickets or shares. [AT. J. S. A. 5:9-7]

Pursuant to its legislative mandate the Lottery Commission has promulgated regulations covering the procedures and safeguards that must be followed in order to claim a prize. See N. J. A. C. 17:21-4.1 et seq. These regulations, being substantive in nature, have the force and effect of law. Hackensack v. Rubinstein, 37 N. J. 39, 45 (1962); Rutgers Council v. N. J. Bd. Higher Education, 126 N. J. Super. 53, 63 (App. Div. 1973). N. J. A. C. 17:21-4.2 provides, among other things that

The claimant is required to fill out a claim form which is obtained from the claim center and present the completed form together with the “winning” ticket to any claim center; provided, however, that the Director may, in his discretion, authorize the cash redemption of certain prizes upon presentation and proper validation of a ivinning ticket at certain designated locations. [N. J. A. C. 17:21-4.2(a) ; emphasis supplied]

Where cash redemption is not authorized, the claim center must:

* * * forward the ivinning ticket and a copy of the claim form to the State Lottery for validation.
Upon validation by the State Lottery, a check will be forwarded to the claimant in payment of the amount due. [N. J. A. C. 17:21-4.4(b) and (c)]

On the basis of statutory construction alone, it would appear that the Legislature was of a mind to restrict the payment of prizes to “holders of winning tickets,” i. e., physical holders of winning tickets. That phrase was used carefully in both subparagraphs (5) and (12) of N. J. S. A. 5:9-7 in authorizing the Lottery Commission to promulgate appropriate regulations. There is no reason to ascribe to the phrase used a broad or liberal interpretation so as to include (a) one who was a holder of a winning ticket or (b) one who is entitled to he but is not presently a holder of a winning ticket. The State Lottery Law is in no sense remedial legislation designed to cure or correct a specific social ill. On the contrary, while the State Lottery Law was designed to provide a recreational outlet for those so inclined, its main purpose is to provide revenue for state institutions and for state aid to education. It provides for a form of gambling as an exception to the general constitutional prohibition and hence neither its provisions nor words may be extended beyond their normal and common meaning and usage. In that context a court may not employ great liberality in statutory construction in order to reach wihat to it may seem a socially desirable result from the viewpoint of the individual involved. Cf. State v. Meinken, 10 N. J. 348, 352 (1952); Boise Cascade Home & Land Corp. v. Division of the N. J. Real Estate Comm’n, 121 N. J. Super. 228, 240 (Ch. Div. 1972), and Carianni v. Schwenker, 38 N. J. Super. 350, 361 (App. Div. 1955). By restricting payment of prize money to “holders of winning tickets” the clear legislative purpose was to keep the administrative machinery geared for the payment of winnings as simple and as efficient as possible. That machinery was not to become bogged down in the resolution of claims, conflicting or otherwise, in the event of misplaced, lost or destroyed tickets. The procedure simply calls for the production of the winning ticket. Unless that is done, payment cannot be made. Responsibility for nonproduction of tickets is not assumed by the State but left to remain with those whose fault, neglect, carelessness or other inadvertence caused the loss.

Anticipating the foregoing interpretation of the State Lottery Law now adopted by the court, plaintiff seeks to invoke the classic equitable remedy of establishing a lost document and declaring him to be its holder. Farber v. Plainfield Trust Co., 136 N. J. Eq. 183 (Ch. 1945); Moore v. Durnam, 63 N. J. Eq. 96 (Ch. 1902), aff’d 69 N. J. Eq. 828 (E. & A. 1905). The principle is succinctly set forth in 52 Am. Jur. 2d, Lost and Destroyed Instruments, § 2 at 116:

It is a well-recognized principle that the accidental or unintentional loss or destruction of a written instrument does not, as a general rule, change or impair the obligation of the parties thereto; rights in real or personal property, or to a debt, evidenced by the instrument are not ordinarily lost. This is because the writing itself does not give the right of which it is evidence. Although the loss or destruction of the instrument may impair the owner’s evidence of the right he claims thereunder, he may still enforce the right and to that end may maintain an appropriate action to recover on the obligation. In many instances, it may be desirable nor necessary to have the instrument re-executed or restored, and if this is not done by the voluntary act of the party, resort may be had to a court empowered to grant such relief.

Unfortunately, a lost lottery ticket may not be established by judicial declaration. Unlike a contract, bond, note or other instrument which merely serve as evidence of an underlying obligation which does not change or become impaired upon loss or destruction of the written evidence, a winning lottery ticket by virtue of legislative fiat limiting payment to holders is itself the obligation and debt. Without its surrender the debt or obligation remains until extinguished by the expiration of the time period within which to make claim. N. J. A. C. 17:21-7.1.

Courts of equity may not assume a free rein to dispense their distinctive brand of justice as the equities of a case would seem to demand. Often misunderstood and generally underapplied is the maxim which requires equity to follow the law. “Undoubtedly, equity follows the law more circumspectly in the interpretation and application of statute law than otherwise.” Giberson v. First National Bank of Spring Lake, 100 N. J. Eq. 502, 507 (Ch. 1927). In Camden Trust Co. v. Handle, 132 N. J. Eq. 97 (E. & A. 1942), the court said:

Equity follows the law. While it will provide means of enforcement not to be had at law, it is bound to regard the rights of the parties as established at law unless a countervailing equity calls for relief. The maxim is applicable to the interpretation of statutes and as well to matters of public policy, [at 108]

And in Natovitz v. Bay Head Realty Co., 142 N. J. Eq. 456 (E. & A. 1948), the rule was likewise restated:

There is also a maxim that equity follows the law; and equity and courts of law alike are bound by legislative regulation of the rights of the parties, not to mention the obligation of the contract, [at 464]

This court is bound by the maxim and thus must follow the legislative mandate and may not establish by judicial declaration the lost ticket.

The result now reached by the court is neither novel nor illogical. It is analogous to the requirement under the Uniform Commercial Code that to be considered the “holder” of an instrument, one must be in possession of it. See N. J. S. A. 12A:1-201 (20); O. P. Ganjo, Inc. v. Tri-Urban Realty Co., Inc., 108 N. J. Super. 517, 522 (Law Div. 1969).

The result also finds support in eases dealing with the subject of pari-mutuel betting which uniformly deny recovery to winning players who lose their tickets. Carr v. State, 15 App. Div. 2d 709, 223 N. Y. S. 2d 229 (App. Div. 1962), app. dism. 371 U. S. 14, 83 S. Ct. 44, 9 L. Ed. 2d 49 (1963); Mills v. Roosevelt Raceway Inc., 59 Misc. 2d 938, 300 N. Y. S. 2d 995 (D. Ct. 1969), rev’d on ground that fault was attributable to defendant’s agent, 66 Misc. 2d 251, 320 N. Y. S. 2d 766 (App. Div. 1970); Epps v. Yonkers Raceway Inc., 21 App. Div. 2d 798, 250 N. Y. S. 2d 751 (App. Div. 1964); Hochberg v. New York City Off-Track Betting Corp., 74 Misc. 2d 471, 343 N. Y. S. 2d 651 (Sup. Ct. 1973), aff’d 43 A. D. 2d 910, 352 N. Y. S. 2d 423 (App. Div. 1974). In Carr, supra, the Supreme Court of New York cited and relied upon statutory language strikingly similar to the New Jersey State Lottery Law, e. g., “presentation of winning tickets” “winning patrons,” “holders of winning tickets therein, provided such tickets be presented for payment,” “[disposition of unpaid money due on account of parimutuel tickets not presented.” That court also construed the relevant statutes strictly as being in derogation of the strong policy against gambling expressed in the New York Constitution.

Accordingly, the position of the Lottery Commission is well taken and plaintiff’s complaint will be dismissed for failure to slate a claim upon which relief can be granted. Costs will not be allowed.


author: Greenberg, J. S. C.

text:
    VAN NESS INDUSTRIES, INC., PLAINTIFF, v. CLAREMONT PAINTING & DECORATING CO., DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided August 2, 1974.

      Mr. Elias Schneider for plaintiff (Messrs. Schneider and Spivak, attorneys).

      Mr. Robert C. Pollock, Jr. for defendant.
   Greenberg, J. S. C.

In this action plaintiff challenges the validity of chapter 33 of Title 2A of the Revised Statutes authorizing nonjudicial distraints for rent, thus raising serious questions of procedural due process of law. See Sniadach v. Family Finance Corp., 395 U. S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969); D. H. Overmyer Co. v. Frick Co., 405 U. S. 174, 92 S. Ct. 775, 31 L. Ed. 2d 124 (1972); Fuentes v. Shevin, 407 U. S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556, reh. den. 409 U. S. 902, 93 S. Ct. 177, 34 L. Ed. 2d 165 (1972).

Plaintiff has brought this case against its landlord alleging water damage to its personal property situate in an office premises in Madison Township rented to plaintiff by defendant’s predecessor in title. Plaintiff claims that defendant failed on demand either to correct the condition or compensate plaintiff for its loss. As a result of defendant’s failure plaintiff withheld rent, an action precipitating a distress by defendant, which plaintiff alleges to be unlawful by reason of excessiveness and to constitute a constructive eviction. Plaintiff further alleges that notwithstanding the distraint it has moved the goods distrained upon to another premises and that defendant threatens to seize the goods at the new location, thereby irreparably harming plaintiff. Plaintiff finally alleges that the distress constituted unlawful self-help violative of procedural due process of law, and that by reason of the distress plaintiff may not sell his goods so that its dominion over them has been diminished.

Defendant has filed a general denial of all allegations of the complaint, admitting only that plaintiff was in fact a tenant in the Madison Township premises and that it now owns them. Defendant also alleges as a separate defense that it “acted with legal justification and probable cause based upon the then existing circumstances.”

Plaintiff now moves for partial summary judgment, “asking for a declaration that the distraint procedures as authorized by statute or by common law are unconstitutional.” This application is supported as to the facts.by an affidavit of Allen Hinkes, plaintiff's president, submitted with a prior application for a temporary restraining order. The affidavit sets forth that a distraint was in fact taken at the old location and that defendant threatens a seizure of the items at the new location. There being no contrary affidavits submitted, these allegations are taken as true for purposes of this motion. R. 4:46-2; R. 4:46-5. It should also be noted that while this court has restrained defendant from talcing possession of the property “pending the final hearing in this cause or until the further order of this court,” the constitutional argument is not moot since the restraint does not free plaintiff of disposing of the propert3r without concern of liability in damages. N. J. SW. A. 2A:33-21; N. J. S. A. 2A:33-16.

Distress is a common law right of the landlord, now regulated by statute, N. J. S. A. 2A:33-1 et seq., to seize a tenant’s goods and chattels in a nonjudicial proceeding to satisfy an arrears of rent. N. J. S. A. 2A:33-6. The procedure was described in Commercial Credit Co. v. Vineis, 98 N. J. L. 376 (Sup. Ct. 1923), as arising “out of the early feudal conception of self-help, and stands the sole surviving relic in modern statutory law of the absolutism incident to the ancient feudal doctrine governing land tenures.” Id. at 378. There is no requirement for a prior hearing or notice before a distraint is made. Ordinarily the landlord designates a bailiff to act for him. The bailiff advises the tenant that his goods have been distrained, and posts a notice of distress at the premises. Colfax Manor Gardens, Inc. v. Allied Van Lines, Inc., 61 N. J. Super. 549 (App. Div. 1960). The tenant may then commence an action within ten days to recover the goods. N. J. S. A. 2A:33-9. If he fails to do so, the goods are then appraised and sold at public sale. N. J. S. A. 2A:33-9 and N. J. S. A. 2A:33-10. Thus, a judicial intervention or hearing is not a prerequisite to either the distraint or the sale although the tenant may seek to invalidate the proceeding either by way of a challenge to the right of the landlord to distrain or to the procedure followed. Further, a tenant may in an after-the-fact action seek damages for an unlawful distraint. N. J. S. A. 2A:33-17 and N. J. S. A. 2A:33—19.

Prior to the enactment of chapter 228 of the Laws of 1971, amending N. J. S. A. 2A:33-1, goods and chattels on any premises (subject, perhaps, to exceptions not relevant to this opinion, such as goods and chattels on a premises occupied by entities exempt from levy) were subject to distraint. By that section distraints were forbidden for money owed on a lease or other agreements for the occupation of real property used solely as a residence of the tenant. See Zankman v. Tireno Towers, 121 N. J. Super. 346 (Cty. D. Ct. 1972).

In Sniadach v. Family Finance Corp., supra, the Supreme Court of the United States invalidated a Wisconsin statute which permitted an ex parte prejudgment wage garnishment. The court laid great stress on the nature of the property being seized (wages), and noted that such a taking may impose tremendous hardship on wage earners with families to support. 395 U. S at 340, 89 S. Ct. 1820. Thus, the statute violated the guarantee of procedural due process. In D. H. Overmyer Co. v. Frick Co., supra, the court sustained an Ohio statute authorizing a cognovit, or confession-of-judgment provision, in a note providing for the entry of a judgment without notice upon default. The court stressed that it dealt with a “corporate-property-right ease,” 405 U. S. at 185, 92 S. Ct. 775, and that the corporation had i(voluntarily, intelligently and knowingly waived the rights it otherwise possessed to prejudgment notice and hearing, and that it did so with full awareness of the legal consequences.” Id. at 187, 92 S. Ct. at 783. In Fuentes v. Shevin, supra, the court, in a consumer situation, invalidated Florida and Pennsylvania statutes which authorized ex parte seizure by a creditor of personal possessions without hearing merely by the posting of a bond. The court held that, absent an extraordinary situation, a hearing is required before property is taken and that a subsequent hearing and a right to damages is not an adequate remedy, nor is the posting of a bond a sufficient protection or a “substitute for an informed evaluation by a neutral official.” 407 U. S. at 83, 92 S. Ct. at 1996. The court further ruled that even a short deprivation of property violates the 14th Amendment. The fact that title to the goods under the conditional sales contract was in the creditor did not validate the taking since the possessory interest was entitled to protection. The Court also held that due process protects goods that are not necessities and that the debtors had not waived their constitutional rights hy agreeing that the creditors could repossess the property.

It is apparent that a landlord distraining in New Jersey is constitutionally prima facie in a less favorable position than the creditors whose ex parte seizure rights were abrogated in Fuentes, for he need not post a bond to distrain nor does he have a property interest in the goods and chattels. Further, it is hardly likely that a lease would provide for a distraint against specifically enumerated items.

As a result of the recognition of procedural due process in the repossession and distraint fields, courts have invalidated state statutes in these areas in the following cases: Gross v. Fox, 349 F. Supp. 1164 (E. D. Pa. 1972); MacQueen v. Lambert, 348 F. Supp. 1334 (M. D. Fla. 1972); Holt v. Brown, 336 F. Supp. 2 (W. D. Ky 1971); Klim v. Jones, 315 F. Supp. 109 (N. D. Cal. 1970); Collins v. Viceroy Hotel Corp., 338 F. Supp. 390 (N. D. Ill. 1972); Gibbs v. Titelman, 369 F. Supp. 38 (E. D. Pa. 1973). See also, Fuentes v. Shevin, supra, 407 U. S. at 72, 92 S. Ct. at 1990, 32 L. Ed. 2d n. 5 at 565, collecting cases.

It thus follows that this court must grant plaintiff’s motion because the statute is facially unconstitutional, unless a valid distinction may be drawn between residential and commercial property or unless a distraint is deemed not to involve “state action.”

The Supreme Court of New Jersey has recognized the distinction between residential and commercial properties in landlord-tenant relationships. Thus, the covenant of habitability is implied in residential but not business leases. Marini v. Ireland, 56 N. J. 130 (1970); Berzito v. Gambino, 63 N. J. 460 (1973). Similarly, the court in Ellsworth Dobbs, Inc. v. Johnson, 50 N. J. 528 (1967), while generally invalidating brokerage agreements obligating the seller for a commission regardless of the fault of a nonsettling buyer, permitted such agreements upon a showing of equality of bargaining position. Presumably such a situation would more likely arise in the commercial than the residential field. Id. at 555-556. Thus, it might be argued that a knowledgeable tenant in his lease could eliminate his landlord’s distress rights and therefore the court should infer in the absence of such a stipulation that distress is merely a portion of the contract. However, such a position cannot be sustained consistent with the requirements of procedural due process in view of Fuentes v. Shevin, supra, which, at least within the classification of consumer goods, refused to distinguish necessities from other types of chattels, 407 U. S. at 88, 92 S. Ct. 1983 and D. H. Overmyer v. Frick Co., supra, which held that the procedural due process could not be inferentially waived. 405 U. S. at 187, 92 S. Ct. 775. Thus, since the right of distress exists as a matter of law in every nonresidential lease in New Jersey, absent contrary agreement it may not be held that tenants in a narrowly circumscribed group have voluntarily, intelligently and knowingly waived their rights to a pre-distress notice and hearing.

A second possible distinction toward upholding the distress statute ‘has its genesis in the concept that procedural due process of law governs public not private action. In Messenger v. Sandy Motors, Inc., 121 N. J. Super. 1 (Ch. Div. 1972), the court sustained N. J. S. A. 12A:9-503 providing for self-help repossession of secured collateral. But Messenger is distinguishable in that the right to repossession arose pursuant to the agreement between the parties and thus was a creature more of contract than law. The right of distraint inheres in the landlord-tenant relationship and may be characterized s being imposed by the State both as to substantive right and procedure. Consequently, the process of distraint is hardly voluntary private conduct beyond the 14th Amendment. Although under the statute the initial action, the distraint itself, may be taken privately, if the tenant fails to proceed to seek to dissolve the distraint within ten days, the goods and chattels are inventoried and appraised with the assistance of public officers. N. J. S. A. 2A:33-9. See also, N. J. S. A. 2A:33-13. In the event of a surplus upon sale of the articles the proceeds are deposited with the sheriff or constable for the benefit of the tenant. N. J. S. A. 2A:33-10. Thus, Messenger is further distinguishable in that chapter 9 of the Uniform Commercial Code does not provide equivalent procedures for public involvement in the disposition of collateral. See N. J. S. A. 12A:9-501 to 507. The procedural requirements of a New Jersey distraint reflect active or direct state action since a public official acts in concert or on behalf of an individual in performing the act. See Gibbs v. Titelman, 369 F. Supp. 38, 47 (E. D. Pa. 1973); Compare James v. Pinnix, 495 F. 2d 206 (5 Cir. 1974), with Hall v. Garson, 430 F. 2d 430 (5 Cir. 1970); Santiago v. McElroy, 319 F. Supp. 284 (E. D. Pa. 1970).

It is true that Sniadach v. Family Finance Corp., supra; D. H. Overmyer Co. v. Frick Co., supra, and Fuentes v. Shevin, supra, all involved more direct state action since they dealt with judicial proceedings within the state court system. Nevertheless, the matter is one of degree and the state involvement in imposing as a matter of law the right of distraint and in involving its officers in the procedure is not permissible.

It consequently follows that insofar as chapter 33 of Title 2A authorizes distress for rents by landlords, the chapter is unconstitutional, and since the common law substantive right of distraint is governed by invalid procedural methods it may not be exercised in New Jersey. However, the procedure under N. J. S. A. 2A-.33-5 is not deemed affected by this ruling. Further, this court expresses no opinion as to the validity of prior distraints since intervening vested rights may be involved. See Oxford Consumer Discount Co. v. Stefanelli, 104 N. J. Super. 512 (App. Div. 1969), aff’d 55 N. J. 489 (1970).

For the foregoing reasons the motion for partial summary judgment is granted.

      The appointment of constables is provided for. by N. J. S. A. 40A :9-120 through 127. See also In re Burroughs, 125 N. J. Super.
        221 (App. Div. 3973). The sheriff is a constitutional officer. N. J. Const. (1947), Art. VII, § II, par. 2.


author: Joelson, A. J. S. C.

text:
    MARIE B. SCOTT, PLAINTIFF, v. ABE RICHSTEIN, DEFENDANT.
    Superior Court oí New Jersey Law Division
    Decided July 3, 1974.

      Mr. Barry Knopf for plaintiff (Messrs. Cohn and Lift-land, attorneys, Mr. Peter S. Pearlman on the brief).

      Mr. Edward M. Gurry for defendant (Messrs. Gurry and Conlan, attorneys; Mr. Thomas P. McHugh on the brief).
   Joelson, A. J. S. C.

This is a motion brought by defendant to dismiss a complaint by reason of R. 4:28 — 3(b).

Plaintiff and her husband were involved in an automobile accident with defendant. The husband, who was a passenger in a car driven by his wife, brought suit for pexsonal injuries against defendant. During the pendency of that action he died, and his wife ultimately settled the case as executrix of her husband’s estate. Thereafter, she brought this action seeking damages for her own personal injuries allegedly resulting from the accident.

Defendant contends that plaintiff’s action is barred by R. 4:28-3(b) which provides:

All claims by spouses for physical injury and consortium losses resulting from the same course of negligent conduct of others shall be joined in a single action and shall be deemed to have been waived
if not so joined unless the court, for good cause shown, otherwise orders.

A cursory reading of R. 4:28-3(b) without reference to its judicial history would justify the construction placed upon it by defendant. However, it is the opinion of the court that the rule does not bar this cause of action.

Central to a discussion of this issue is Ekalo v. Constructive Service Corp. of America, 46 N. J. 82 (1965). That ease established the right of a wife to sue for loss of consortium, and the opinion states:

In recognizing a wife’s claim for loss of consortium, we may, of course, condition it upon joinder with her husband’s claim; in any event, our rule-making powers are clearly comprehensive enough to support a new rule requirement that all claims by husbands and wives for physical injuries and consortium losses resulting from negligent conduct by others must be joined so that they may be tried before a single jury or before a single judge if a jury be waived.

Subsequent to the decision in Ekalo, R. 4:28-3(b) was adopted. Echoing as it does the very language of ETcalo quoted above, the rule must be regarded as an implementation of the decision, which was limited to the desirability of joining an action for loss of consortium by one spouse with the personal injury action of the other spouse.

In these times when the individual rights of both parties to a marriage are being increasingly recognized, it would be sailing against the current to construe the rule so as to require each spouse who sustained personal injuries in an accident to retain the same attorney in order to bring a single action. However, since an action for loss of consortium is entirely derivative from the other spouse’s personal injury action, there is more logic in requiring such actions to be brought jointly under a single complaint.

As a practical matter, most separate actions by spouses for personal injuries will very likely be consolidated for trial under R. 4:38-1, which provides for consolidation where common questions of law or fact are involved. There is no good reason to add to court backlogs by trying such cases separately. However, it is • the opinion of the court that R. 4:28-3(b) does not command their being joined in a single complaint filed by a single attorney.

Court records disclose that plaintiff’s counsel in this ease was the same counsel who settled the claim of the husband’s estate. The court does not know whether counsel was aware at the time of such settlement that the wife claimed injuries for which it was intended that she would institute suit subsequently. It should be mentioned, however, that any concealment of such information from defendant’s counsel would be regrettable practice which would fall short of the fair and open dealing which attorneys should have the right to ezpect from one another.

The motion will be denied.


author: Gelman, J. S. C.

text:
    BERGEN COUNTY SEWER AUTHORITY, PLAINTIFF, v. HACKENSACK MEADOWLANDS DEVELOPMENT COMMISSION, DEFENDANT.
    Superior Court of New Jersey Law Division
    July 12, 1974.

      Mr. Albert Gross, attorney for plaintiff (Messrs. Gross, Demetrakis & Donohue, attorneys).

      Mr. Marie L. First, Deputy Attorney General, for defendant (Mr. William F. Hyland, Attorney General, attorney).
   Gelman, J. S. C.

The narrow issue presented on this motion for injunctive relief is whether the Hackensack Meadowlands Development Commission (Commission) has jurisdiction to regulate construction of an addition to a sewage plant owned and operated by the Bergen County Sewer Authority (Authority).

The Authority was established as a public corporation shortly after the enactment of N. J. S. A. 40:36A-1 et seq. in 1946. Its history and purposes are described in reported decisions and need not be elaborated upon here. See Little Ferry v. Bergen County Sewer Auth., 9 N. J. 536 (1952); Bergen Cty. Sewer Auth. v. Little Ferry, 7 N. J. Super. 213 (App. Div. 1950). Suffice it to note for present purposes that it owns 155 acres located within the Hackensack Meadowlands District, and since 1951 it has operated on part of its property a sanitary sewage treatment plant presently serving 43 Bergen County municipalities. The Authority has commenced construction of an addition to its plant at an estimated cost of $53,000,000. Prior thereto it submitted to and obtained approval of plans for the addition from the Department of Environmental Protection as well as federal agencies.

The Commission is also a public corporation established pursuant to legislation (N. J. S. A. 13:17-1 et seq.) whose purposes and functions have been judicially noted. See Meadowlands Reg. Redevelopment Agency v. State, 112 N. J. Super. 89 (Ch. Div. 1970), aff'd 63 N. J. 35 (1973). On November 8, 1972 the Commission adopted a master plan for the Hackensack Meadowlands District. The lands owned by the Authority were zoned partly in a “public utilities” zone (which permits sewage treatment plants) and partly in a “park and recreation” zone. The existing Authority treatment plant as well as the lands upon which the addition is being constructed are in the public utilities zone.

Prior to commencement of construction of the addition the Commission advised the Authority that Commission approval would bo required. On April 26, 1974 the Authority submitted plans to the Commission “without prejudice” to any claim the Authority might have that the Commission lacked jurisdiction over the Authority. After this action was commenced by the Authority the Commission issued the Authority a building permit and zoning certificate authorizing the latter to proceed with the construction subject to certain conditions. Construction activities are now underway, but the Authority has failed to comply with the conditions attached to the permit and the Commission seeks injunctive relief against the alleged violations.

This action was originally commenced by the Authority for declaratory relief that (1) it was not subject to the Commission’s land use and building regulations, and (2) the Commission’s master plan is invalid insofar as it has designated a portion of the Authority’s lands for park and recreation use. The latter issue is not before the court at this time and disposition thereof will be reserved for hearing at a later date. However, it is now imperative that the first issue be decided in view of the inability of these two public bodies to reach an accommodation of what they deem to be their respective interests.

In establishing the Commission the Legislature declared that the lands comprising the Hackensack Meadowlands District require

* * special protection from air and water pollution and special arrangements for the provision of facilities for the disposal of solid waste; that the necessity to consider the ecological factors constituting the environment of the meadowlands and the need to preserve the delicate balance of nature must be recognized to avoid any artificially imposed development that would adversely affect not only this area but the entire State * * * [N. J. S. A. 13:17-1]

To assure the coordinated development of the district, the Legislature delegated to the Commission extensive powers designed to transcend traditional municipal and county lines and home rule powers. To that end the Commission was empowered to prepare, adopt and implement a master plan “for the physical development of all lands lying within the district.” N. J. S. A. 13:17-6(i) (emphasis added). Land within the district owned by the Authority was not exempted from the master plan; indeed, no land within the district was exempted from the reach of the master plan to be formulated by the Commission.

Moreover, the Commission was authorized, among other things, to include in the master plan provisions for “* * * utilities, sewerage and other like matters * * N. J. 8. A. 13:17-11 (a) (2). To resolve the issue of the Commission’s superior and paramount zoning authority within the district, the Legislature directed that “[n]o municipality shall enact or enforce any code which is inconsistent with the code contained in the master plan insofar as such code applies to property within the district.” N. J. 8. A. 13: 17-11(b).

By way of implementing the zoning and planning powers of the Commission, the Legislature directed that:

(a) No building or structure may be constructed or altered within the area shown on the master plan unless the commission shall first issue a permit approving the plans and specifications for the proposed construction or alteration as being in conformity with the master plan. No permit may be issued without a certificate from the chief engineer or equivalent official of the commission that the proposed construction or alteration meets the engineering standards adopted by the commission. [N. J. S. A. 13:17-12 (a)]

Insofar as public projects or facilities are concerned, the Legislature further directed that:

(b) Whenever the commission shall have adopted a master plan or any portion thereof, the governing body of any constituent municipality or affected county, or any agency or instrumentality thereof, before taking action necessitating the expenditure of any public funds incidental to the location, character, or extent of one or more projects of said municipality or affected county, or any agency or instrumentality thereof, shall refer action involving such specific project to the commission for review and approval, and shall not act thereon unless the commission has indicated its approval by a majority vote of said commission within 45 days of reference to the commission or by the failure of the commission to disapprove by a majority vote of said commission within said 45 days. [N. J. S. A. 13:17-12(b)]

The sweep of the foregoing statutory language and its all-inclusive reach with respect to the territorial and subject matter jurisdiction of the Commission compel the conclusion that the Authority was not granted any exemption from compliance with the mandates of the Hackensack Meadowlands Act. The presence of the Authority within the meadowland district was known to the Legislature when the 1968 act was debated and passed. Had the Legislature intended to carve out an exception for the Authority it could readily have done so by explicit language. The judiciary cannot supply an exception where the Legislature has not granted one. See N. J. State Policemen's Benevolent Ass’n of New Jersey, Inc. v. Morristown, 65 N. J. 160, 164 (1974).

While the Authority may be an independent public corporation (see N. J. S. A. 40:36A-20) it is clearly an “agency or instrumentality” of Bergen County within the meaning of N. J. S. A. 13:17-12(b), having been established by the county’s board of freeholders to carry out a delegated public purpose for the benefit of Bergen County municipalities. N. J. S. A. 40:36A-1; Little Ferry v. Bergen Bounty Sewer Auth., 9 N. J. 536, 542 (1952); cf. St. Louis Housing Auth. v. City of St. Louis, 361 Mo. 1170, 239 S. W. 2d 289, 294-295 (Mo. Sup. Ct. 1951).

Having determined that the Commission has regulatory jurisdiction over the Authority it follows that the latter must comply with the terms and conditions of the building permit and zoning certificate issued by the Commission. An injunction will therefore issue against any further construction by the Authority in violation of the conditions imposed by the Commission.


author: Miller, J. C. C.,

text:
    GENORA PATTERSON, PLAINTIFF, v. GARTH PATTERSON, DEFENDANT.
    Superior Court of New Jersey Law Division
    July 12, 1974.

      Mr. Angelo J. Falciani for plaintiff (Messrs. Faloiani and DiMuzio, attorneys).

      Mr. William P. Doherty, Jr., for defendant.
   Miller, J. C. C.,

Temporarily Assigned. This is a personal injury action brought by Genora Patterson aginst her husband Garth Patterson. On cross-motions for summary judgment the decision must involve the responsibility for injuries to a spouse caused by an accident which occurred during the marriage at the family domicile and not involving ihe operator of a motor vehicle.

The Pattersons, who operated a horse farm named Gen-Gar Stables as a partnership, carried a liability insurance policy which limited coverage to the named insured by excluding liability arising outside their business activities. On August 15, 1971, while the Pattersons were preparing for a cookout, Garth flung aside a can containing a flammable substance which had been accidentally ignited by the fire. The can struck his wife, Genora, and caused severe injuries. His insurance carrier has declined coverage since the accident did not arise out of the conduct of the partnership’s business. Before the accident the parties had experienced domestic discord and plaintiff filed a complaint for divorce which is still pending.

Defendant contends that the suit is barred by the common law doctrine of interspousal immunity. Plaintiff asserts that the necessity for this doctrine has been eliminated and that the Supreme Court has effectively discarded the doctrine of interspousal immunity in Immer v. Risko, 56 N. J. 482 (1970).

• The doctrine of interspousal immunity has its roots in the common law concept of unity of interest between spouses. This fictitious concept was altered by the enactment of New Jersey’s Married Persons’ Act, N. J. S. A. 37:2-1 et seq., which granted a woman her rights and a separate legal identity. This statute was originally construed as freezing the common law doctrine into our statutory law. Koplik v. C. P. Trucking Corp., 27 N. J. 1 (1958). However, the court later revised this decision, holding that N. J. S. A. 37:2-5 served “solely to incapacitate or disable a wife from suing her tortfeasor mate during the existence of the reasons which underlie the common law doctrine.” (Emphasis supplied). Long v. Landy, 35 N. J. 44, 50 (1961). Thereafter the court held that Long had undercut the Koplik theory so that the doctrine of interspousal immunity should only apply where the reasons for its existence continue. Immer v. Risko, supra 56 N. J. at 487.

In Immer, where the passenger-wife sued the driver-husband to recover for injuries sustained in an automobile accident, the court analyzed the reasons for the doctrine and concluded that there was no necessity for the continued application of the doctrine. However, the court’s decision was expressly limited to automobile negligence cases. Id. at 485. Three reasons were listed for interspousal immunity: (1) the common law unity concept of husband and wife, which has been rejected as a metaphysical concept that was “artificial and technical,” Long v. Landy, supra 35 N. J. at 50; (2) the disruptive effect upon the harmony of the family, and (3) the possibility of fraudulent and collusive litigation. The court reasoned that marital disharmony would not result or that difficulties would not worsen due to such suits, especially when an insurance carrier is generally present. As for the fraudulent lawsuits, the court indicated that it believed that the judicial system was capable of distinguishing between real and collusive actions.

Nevertheless, there are some fundamental differences between automobile negligence actions and the type of actions which are represented by the instant suit. Unlike the Immer class of cases there is a distinct lack of insurance coverage in nonautomobile negligence suits. Generally, homeowner’s policies, as is illustrated by the present case, excluded such liability from their coverage. The absence of insurance protection can only have a detrimental effect upon the marital relationship, and the court need only to look as far as the Pattersons’ divorce action as evidence of such disharmony.

As for fraudulent and collusive claims, the likelihood of fraudulent suits would be much greater. Unlike automobile negligence actions where there is definite physical evidence and generally impartial witnesses, these actions would generally be within the household where such evidence will be lacking and more subject to fabrication.

Moreover, this court is aware of the need for a sanctuary from the pressures and tensions of our modern world. Man must have a haven •— some place where he can relax and lower his guard; some place where he is not held to an objective standard of reasonableness. It is to be hoped the reasonably prudent man will not treat his wife with the same aloof standard of conduct he, hopefully, accords his neighbor. Sanctuary has been one of the prime functions of the home in our society, and to require individuals to conform to a high degree of care in the privacy of their own homes would vitiate the reason for its existence.

This court finds that there are substantial reasons for the continued existence and application of the interspousal immunity doctrine. The Supreme Court’s decision in Immer is expressly restricted to automobile negligence actions. There being no genuine issue to any material fact, this action is ripe for disposition by summary judgment. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N. J. 67 (1955). Since the nonautomobile accident occurred while the litigants were married, plaintiff’s action is barred by the common law doctrine of interspousal immunity. Plaintiff’s motion for summary judgment is denied; defendant’s motion for summary judgment is granted.