author: Lane, J. A. D. Labrecque, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ALLEN L. ANDERSON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey-Appellate Division
    Argued December 7, 1971
    Decided December 27, 1971.

      Before Judges Kilkenny, Labrecque and Lane.

      Mr. Arthur Penn, First Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, Attorney; Mr. Penn, of counsel and on the brief).

      Mr. Gerard J. Di Nicola, Salem County Prosecutor, submitted a brief on behalf of respondent but did not appear at the oral argument.
   The opinion of the court was delivered by

Lane, J. A. D.

Defendant appeals from a judgment of conviction of armed robbery. He was sentenced to the New Jersey State Prison for a minimum of 12 years and a maximum of 15 years for violation of N. J. S. A. 2A:41-1 and to a consecutive term of a minimum of 8 years and a maximum of 10 years for violation of N. J. S. A. 2A:151 — 5. Both sentences were made consecutive to a term that was being served by defendant in the Federal Penitentiary in Atlanta, Georgia.

Separate indictments were handed down by the grand jury against defendant, John Clyde Carr, Jr. and Dorian Mitchell Nichols charging each of them in the same language with a robbery while armed “from the person of Daniel D’Alonzo money of the Beneficial Finance to the amount and value of $505” on December 5, 1968 in the Township of Pennsville. The indictment against defendant was filed June 19, 1969.

At the time of the indictment and for some time before defendant was in the custody of federal authorities in Atlanta, Georgia.

On June 16, July 25, August 13, August 22 and August 28, 1969 letters were received from defendant requesting a speedy trial. On August 15 an application for the assignment of counsel was sent to defendant which was returned completed on August 25. On August 29 an attorney was designated by the office of the Public Defender to represent Anderson. On November 24 it was brought to that attorney’s attention that he had also been designated to represent Dorian Nichols, who had indicated that he was going to plead guilty. Since that would create a conflict, X., Esq., was on December 4, 1969 designated by the office of the Public Defender as defendant’s trial counsel. On the following day X. filed his appearance and wrote defendant advising him that the trial was scheduled for January 12, 1970 and asking him to forward “any and all information that you may have in reference to this case.” X. first interviewed Anderson on January 12, 1970, the day of the trial.

At the opening of the trial the prosecutor moved to consolidate the trial of the indictments against Anderson and Carr. At that time X. objected, stating that “I did not know of the involvement of — the alleged involvement of Mr. Carr or anyone else.” He further advised the court that it was only within the last 20 minutes that he had seen the prosecutor’s file.

Immediately thereafter and after the court had sent for the jury, X. said “I have just been advised by my client that he has never entered a plea to this indictment.” When the indictment was read, X. stated that defendant did not wish to enter a plea on the grounds “that he has been deprived of his constitutional rights by his not being advised to the right to make a plea prior to this time. He was represented by counsel through the Public Defender’s office in Camden. Counsel never advised him of the fact that he had a right for a pretrial discovery, that he had the right to the Grand Jury minutes, he was never brought up here for a plea to the indictment and so forth.” Thereupon the court entered a plea of not guilty and immediately proceeded with the trial. No motion for an adjournment of the trial was made.

Daniel D’Alonzo testified that on December 5, 1968 at approximately 6:55 p.m. Carr entered the office of Beneficial Finance Company seeking a loan, giving a false name. Shortly after D’Alonzo began to interview Carr, a man entered the office and handed D’Alonzo a handwritten note stating that this was a hold-up, to put all the money in a brown paper bag and not to be difficult. The man was armed with a shotgun. Following a hearing on the admissibility of an in-court identification, D’Alonzo identified defendant as being the man who came into the office and demanded the money.

The State called as a witness Dorian Nichols, who was then in custody on another armed robbery charge. He had pleaded guilty to the December 5, 1968 robbery the day before he testified. He said that he with defendant and Carr had gone in Carr’s automobile to Pennsville for the purpose of carrying out a hold-up. Defendant had a sawed-off shotgun in his possession. They decided upon the loan company. After stopping the automobile Carr went into the loan company first. Thereafter Anderson entered. The money was divided three ways at the home of Anderson’s sister. He was shown the note that D’Alonzo had been handed and said he had seen that note in the automobile. In fact, he had given Anderson the paper on which to write the note. He admitted that Anderson had a picture of himself and Nichols’ wife. He denied that when he saw the picture he said that some day he was going to get Anderson. He admitted, however, that he did say that when he, Nichols, was arrested for this robbery.

Lt. Earl Minnor testified that a note and a paper bag which the robber had brought to the Beneficial Finance Company office to hold the money were turned over to the Federal Bureau of Investigation for fingerprints. He had in court with him two reports from the FBI. One report said that the note contained seven latent fingerprints, none of which were similar to Anderson’s. A second report said that one of the latent fingerprints was Nichols’. He had failed to bring to court with him a report of the FBI of a comparison of Anderson’s handwriting with the handwriting on the note.

Lt. Minnor testified concerning an oral statement made by Carr on March 14, 1969 shortly after his arrest based upon specific questions put to him. In that statement Carr said that he had no business with Beneficial Finance Company but had been there on two occasions. On the first occasion he used his correct name. Carr refused to say whether he had used his correct name on the second occasion. On both occasions there was somebody in his automobile with him, but he would not say who. Carr refused to say whether any of the other persons in his automobile had also entered Beneficial Finance. He said that he knew Anderson, hut he would not say whether Anderson was in the automobile on December 5, 1968. He said that he knew Nichols. At that point in the statement Carr refused to answer any further questions. X. made no objection to the admission of this statement nor any request for instructions to the jury as to its use.

Neither defendant nor Carr introduced any evidence.

Defendant argues that (1) the in-court identification by D’Alonzo was improper because it was based on a prior illegal out-of-court identification: (a) defendant was denied the right to assistance of counsel at the time of the pretrial identification confrontation, (b) the pretrial identification procedures denied defendant the right to due process, (2) defendant was denied his constitutional right to confrontation of witnesses because an out-of-court statement by a co-defendant was admitted on the State’s case without effective deletion of all references to defendant (not raised below), and (3) defendant, who had first seen his trial attorney the day of the trial, should not have been forced to go to trial and the action of the trial court in making him do so denied him the effective assistance of counsel.

I

A

At the voir dire hearing before the in-court identification it was developed that on the night of the robbery D’Alonzo was unable to identify a photograph of Anderson from 25 to 30 photographs which were shown to him. Shortly thereafter Anderson’s photograph alone was again shown to D’Alonzo. At that time he said that the photograph resembled the robber, but he was not able to make a positive identification from the photograph. On June 19, 1969 the investigating officer took D’Alonzo to the federal court in the Post Office Building in Camden for the specific purpose of seeing Anderson who was there for a plea. D’Alonzo testified that in the courtroom there were 10 to 15 defendants sitting in the jury box, some of whom were Blacks (Anderson is a Black) and some of whom were approximately the same height as Anderson. D’Alonzo said he recognized Anderson as the robber as soon as he saw him sitting in the jury box before such time as Anderson’s name was called in the courtroom. Notwithstanding, D’Alonzo was still in the courtroom when Anderson was called to appear before the judge and plead.

At the conclusion of the voir dire hearing the trial judge ruled:

I find that the identification procedure was not so suggestive as to give rise to a likelihood of an irreparable mis-identifieation. I find that with respect to the identification in the courtroom without having the defendant pointed out specifically and having been in company with a group of others that there was no suggestive — there was no undue suggestability with respect to the identification as was testified to. Your motion is denied.

No evidence of the out-of-court identification was introduced on the State’s case. It did, however, come out on cross-examination.

Defendant argues that under United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), he was entitled to the assistance of counsel at the time of the pretrial identification.

The applicability of Wade to pre-indictment situations has not been finally determined by our Supreme Court. See State v. Mustacchio, 57 N. J. 265, 269-270 (1970); State v. Matlack, 49 N. J. 491, 499, n. 1, cert. den. 389 U. S. 1009, 88 S. Ct. 572, 19 L. Ed. 2d 606 (1967).

In State v Edge, 57 N. J. 580 (1971), the Supreme Court reversed a judgment of the Appellate Division on the grounds that the defendants had not objected to the identification testimony at the trial and that there was not plain error. In doing so, the court indicated that the application of Wade was not to depend solely on whether the identification was pre-indictment or post-indictment. Justice Jacobs said in dictum:

* *’ * The situation differed sharply from Wade since here the pretrial identifications occurred within a day or two after the event while the investigation was still intensely under way and well in advance of any indictment or retention or assignment of counsel. * * * [at 586; emphasis added]

This court has held that counsel is required at a preindictment identification where defendant is under arrest and the police know he has an attorney. State v. Wilbely, 112 N. J. Super. 216, 219 (App. Div. 1970).

In other pre-indictment situations this court has held counsel was not required. See State v. Moore, 111 N. J. Super. 528 (App. Div.), certif. den. 57 N. J. 210 (1970) (pre-indictment identification one day after the crime during investigatory phase, before defendant had been arrested or taken into custody); State v. Thomas, 107 N. J. Super. 128 (App. Div. 1969) (an identification occurring 90 minutes after the crime, shortly after defendant was in custody, similar to an on-the-seene identification); State v. Satterfield, 103 N. J. Super. 291 (App. Div. 1968) (an. on-the-scene identification).

Regardless of the distinction between pre-indictment and post-indictment identifications, where the out-of-court identification occurs during the investigatory phase before defendant is arrested or in custody, generally counsel is not required. State v. Ruggiero, 115 N. J. Super. 258, 261 (App. Div. 1971); State v. Moore, supra, 111 N. J. Super. at 532. Cf. State v. Royster, 57 N. J. 472, 480-482 (1971).

Under these cases we conclude that the critical factor is-whether the identification was part of the investigation or whether it is part of the State’s preparation for trial, after defendant has become the firm suspect.

The testimony of the police officer during the voir dire hearing indicated that the police had already focused on defendant as the suspect of the robbery. A photograph of defendant was included in the photographs shown D’Alonzo the night of the robbery. Shortly after that he was shown a single photograph of defendant. Six months after the-robbery D’Alonzo was taken to the federal court in Camden to make a “positive identification” of defendant. When Lt. Minnor asked D’Alonzo to come to the federal court, Minnor said something to D’Alonzo to the effect, “We think Allen Anderson did it, do you want to come up and see if this is the fellow ?” On March 14, three months earlier, Lt. Minnor had specifically questioned Carr about Anderson. The conclusion is inescapable that at the time of the identification at the federal court the police were past the investigating stage.

Under United States v. Wade, supra, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149, defendant was entitled to the assistance of counsel when he was exhibited to D’Alonzo for identification more than six months after the crime at a time when he was the firm suspect. This was a “critical confrontation.” Id. at 227, 87 S. Ct. 1926.

The fact that the out-of-court identification occurred when defendant was being arraigned in the federal court is irrelevant. In fact, it rendered defendant incapable of attacking the identification at all because he, not being aware it was taking place, would have no reason to recall the circumstances of the identification. Additionally, he had no opportunity to observe the identifying witness and the police at the time of the identification. The important fact is that defendant, the primary suspect, in custody although of another authority, was not even aware that an out-of-court identification was taking place. The kernel of the holding in United States v. Wade, supra, can be grasped from:

Insofar as the accused’s conviction may rest on a courtroom identification in fact the fruit of a suspect pretrial identification tohich the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him. [388 U. S. at 235, 87 S. Ct. at 1937; emphasis added]

That defendant was not under indictment at the time of the out-of-eourt identification is of no significance. The indietment was filed June 19 and the identification was made on June 19. One wonders whether the identification in fact preceded the State’s presentation of the ease to the grand jury.

Defendant was denied counsel at a time the United States Supreme Court has mandated that he was entitled to counsel under the Sixth Amendment. The identification of defendant by D’Alonzo was not harmless error. It was inadmissible unless it was based upon a source independent of the out-of-court identification.

Evidence of the out-of-court identification was not adduced as part of the State’s case. As a matter of trial tactics it was brought out by defendant on the cross-examination of the State’s witnesses. In view of the ruling of the trial court, the State was not afforded an opportunity to prove clearly and convincingly that the in-court identification was based on an independent source, an exception to the Wade rule. United States v. Wade, supra, 388 U. S. at 240-241, 87 S. Ct. 1926; Gilbert v. California, 388 U. S. 263, 272, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967). Such an opportunity should have been afforded. If the State proves clearly and convincingly that D’Alonzo’s in-court identification was based upon the observations which he made of defendant at the time of the robbery, his in-eourt identification is admissible notwithstanding the out-of-court identification.

B

In view of the fact that we have held above that the in-court identification will not be allowed unless the State proves clearly and convincingly that it is based on a source independent of the out-of-court identification, we need not consider defendant’s argument that the pretrial identification was so unduly suggestive as to deny him his right to due process.

II

Defendant argues that the testimony of the police officer as to co-defendant Carr’s statement without deletion of references to defendant denied him his constitutional right to confrontation.

In a joint trial of two defendants, an extrajudicial confession of one defendant is inadmissible against the other. The admission of one defendant’s confession in such a trial has the potentiality for prejudice to a co-defendant implicated by that confession. State v. Young, 46 N. J. 152, 156 (1965); State v. Blanchard, 44 N. J. 195, 198 (1965); State v. Tassiello, 39 N. J. 282, 296 (1963). If such a confession is offered in evidence, there must be an effective deletion of all references to any co-defendant. State v. Young, supra, 46 N. J. at 159. Effective deletion has been defined in Young to mean “the elimination of not only direct and indirect identification of codefendants but of any statements that could be damaging to the codefendants once their identity is otherwise established.” [46 N. J. at 159]. See also State v. Barnett, 53 N. J. 559, 564-565 (1969); State v. Broxton, 49 N. J. 373, 377 (1967); R. 3:15-2(a). Cf. Bruton v. United States, 391 U. S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). This rule applies to oral as well as written statements. State v. Gardner, 54 N. J. 37, 42 (1969).

The purpose of the rule is to prevent the substantial risk that the jury may look to the incriminating, inculpating extrajudicial statements in determining a co-defendant’s guilt, thus effectively denying defendant’s Sixth Amendment right to confrontation of witnesses. Cf. Bruton v. United States, supra, 391 U. S. at 126, 88 S. Ct. 1620. The issue then is whether the reference in defendant Carr’s statement was such a reference to defendant as to incriminate or damage him, requiring deletion. Clearly, direct reference to defendant by name in a statement detailing the criminal activity is such a reference. See State v. Young, supra, 46 N. J. 152.

The identity of defendant had been “otherwise established” as being one of the culprits. Both D’Alonzo and Nichols had testified that Carr and Anderson were involved in the crime. Under State v. Young, supra, 46 N. J. 152, the references in Carr’s statement to “somebody” and “other persons” in the automobile and to knowing Anderson should have been deleted.

Additionally, at no time was the jury instructed, that the statement was admissible against Carr only. No request for such a charge was made by X.

Ill

Finally, defendant argues that he was denied effective assistance of counsel because he was forced to trial on the day he had first conferred with counsel.

Adequacy of representation can only be decided by an evaluation of the services rendered. A defendant is entitled to a standard of adequacy of legal services equal to the exercise of normal customary skill and knowledge. United States ex rel. Kent v. Maroney, 435 F. 2d 1020, 1022 (3 Cir. 1970); United States ex rel. Green v. Rundle, 434 F. 2d 1112, 1113 (3 Cir. 1970); Moore v. United States, 432 F. 2d 730, 735, 736 (3 Cir. 1970).

The issue of effective assistance of counsel when counsel first interviews defendant immediately before the trial is closely related to the issue of untimely appointment of counsel. Both suggest error because of the inability of counsel to prepare effectively. Late appointment of counsel is not per se prejudicial. Moore v. United States, supra, 432 F. 2d at 735. Cf. Chambers v. Maroney, 399 U. S. 42, 54, 90 S. Ct. 1975, 1982-1983, 26 L. Ed. 2d 419, 430 (1970). See United States v. Restaino, 405 F. 2d 628 (3 Cir. 1968), cert. den. 394 U. S. 904, 89 S. Ct. 1012, 22 L. Ed. 2d 216 (1969). Contra: Stokes v. Peyton, 437 F. 2d 131, 136 (4 Cir. 1970); Twiford v. Peyton, 372 F. 2d 670, 673 (4 Cir. 1967).

Our review of the record convinces us that regardless of the time of appointment X. was totally unprepared to represent defendant on this indictment. Erom the record we conclude that he had done nothing towards preparing a defense except to enter his appearance and write a letter to defendant who was incarcerated in Georgia. While no criticism can attach to his failure to interview defendant while he was thus confined, there was nothing to prevent X. from taking other steps towards preparing a defense. Normal customary skill and knowledge would have led X. to examine the prosecutor’s file immediately. Had he done so, he would have become aware of the other indictments; he would have moved to obtain all EBI reports including the report of comparison of Anderson’s handwriting with the demand note (in summation X. told the jury, “I didn’t know these [the EBI reports] existed.”); he would have interviewed Nichols and developed more fully the bias and prejudice of Nichols against defendant that was touched upon at the trial; he would have examined the grand jury minutes for whatever they might have disclosed; he would have obtained the 20 or 30 photographs that were shown to D’Alonzo. D’Alonzo testified that the photograph of defendant shown to him did not in fact resemble defendant. That photograph was never produced at the trial. It is apparent that there was a lack of communication between X. and the Public Defender’s office, or he would have known that not only Anderson but also Carr and Nichols had been indicted for this robbery and that Anderson had not been arraigned, facts which he admitted to the Court he did not know. Additionally, although he had not seen the defendant until the day the case was called for trial, he never made an application for an adjournment.

Defendant was entitled to the effective assistance of competent counsel. He cannot be left to the mercies of incompetent counsel. It is one of our functions to assure that attorneys representing defendants in criminal cases maintain proper standards of professional performance. McMann v. Richardson, 397 U. S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970).

In State v. Ercolino, 65 N. J. Super. 20 (App. Div. 1961), we said:

The right of an accused in a criminal case “to have the assistance of counsel in his defense” is granted by our Constitution, N. J. Const. (1947), Art. I, par. 10. When counsel is assigned at the request of a defendant he becomes bound to fully and faithfully serve the interests of his client within the boundaries of professional ethics. His duties include not only the extremely important matter of satisfying himself that the defendant understands the nature of the charge laid against him, and the consequences of a plea of guilty, but also of fully acquainting himself with the nature of the charge and the facts of the ease so that he may informedly advise the defendant concerning the same, [at 27-28]

See also Moore v. United States, supra, 432 F. 2d at 735; Hollingshead v. Wainwright, 423 F. 2d 1059, 1060 (5 Cir. 1970).

Considering all of tlie sequelae of X.’s failure to prepare, defendant was grievously prejudiced. Cf. Biruk v. Wilson, 50 N. J. 253, 262 (1967); State v. Orecchio, 16 N. J. 125, 129 (1954) ; State v. Zwillman, 112 N. J. Super. 6, 22 (App. Div. 1970), certif. den. 57 N. J. 603 (1971).

Here trial counsel so far departed from the standards of professional performance as to make defendant’s trial a farce and a mockery of justice. Cf. State v. Edge, 57 N. J. 580, 593 (1971).

We are not concerned in this case with trial tactics of defense counsel, nor are we concerned with the faulty preparation for trial. Prom the record the only conclusion to be made is that here there was no preparation for trial. It makes no difference if the lack of preparation resulted from instructions to X. from the Public Defender. Defendant did not receive adequate assistance of counsel. Caraway v. Beto, 421 F. 2d 636, 637-638 (5 Cir. 1970).

The judgment of conviction is reversed. The matter is remanded for a new trial.

Labrecque, J. A. D.

(concurring in result). While I am wholly in accord with the conclusion that this conviction must be reversed, I find myself unable to agree that United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), required that counsel be present at the time of defendant’s pretrial identification by D’Alonzo. In the absence of an affirmative holding to that effect by our Supreme Court, I am not clear that Wade has applicability to a pre-arrest and pre-indictment situation such as the one we have here. Wholly aside, I would hold that D’Alonzo’s out-of-eourt identification took place during the investigatory phase of the case. See State v. Ruggiero, 115 N. J. Super. 258, 261 (App. Div. 1971); State v. Moore, 111 N. J. Super. 528, 532 (App. Div. 1970), certif. den. 57 N. J. 210 (1970). The fact that the investigation may have “focused” on defendant as a suspect did not convert an otherwise investigatory viewing into something which it was not. In actuality the investigation was still under way. D’Alonzo had been shown a photograph of defendant shortly after the robbery but had declined to make a positive identification, saying only that “it appeared to be the man.” Hot until he observed defendant in person was he able to make a positive identification. His hesitancy in making it is explainable by his testimony that when the photograph was again shown to him after he had identified defendant in federal court, it “still” did not resemble defendant. Thus it would appear that the investigation was not completed and there was nothing on which to base an indictment until after he had picked defendant out of a group of 10 to 15 federal prisoners as the holdup man. The fact that they were prisoners being held by another jurisdiction on other charges was irrelevant — the result would have been no different had they been members of a baseball team or a Sunday School class. Since the case was still in the investigatory stage, counsel’s presence was not a prerequisite to a valid identification. Compare State v. Wilbely, 112 N. J. Super. 216 (App. Div. 1970), where defendant was under arrest and the police knew that he was represented by counsel.

I would also hold that the procedure surrounding D’Alonzo’s identification of defendant was not unfair under the standards laid down in Stovall v. Denno, 388 U. S. 293, 302, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). Such a claim is to be evaluated in the light of the totality of the surrounding circumstances. Coleman v. Alabama, 399 U. S. 1, 4, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970); State v. Matlack, 49 N. J. 491, 498 (1967), cert. den. 389 U. S. 1009, 88 S. Ct. 572, 19 L. Ed. 2d 606 (1967). On review of the trial court’s finding we are required to determine from the entire evidence whether it could have reasonably concluded that defendant’s identification by D’Alonzo was not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. State v. Mars, 107 N. J. Super. 36, 39-40 (App. Div. 1969), certif. den. 55 N. J. 319 (1970). There was substantial credible evidence here to support the trial court’s finding, and I am convinced that defendant was not thereby denied due process. State v. Johnson, 42 N. J. 146 (1964).

In all other respects I concur in the conclusions of the majority.


source: Caselaw Access Project

author: Carton, J. A. D.

license: Public Domain

text:
    JOSEPH FELICETTA, SR. AND JOSEPH FELICETTA, JR., PLAINTIFFS-APPELLANTS, v. COMMERCIAL UNION INSURANCE COMPANY, ET AL., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 15, 1971
    Decided December 10, 1971.

      Before Judges Sullivan, Leonard and Carton.

      Mr. Osie M. Sitter argued the cause for appellants (Messrs. Sitter and Sitter, attorneys).

      Mr. Thomas M. Guiney argued the cause for respondents (Mr. Louis Buprecht on the brief; Messrs. DeYoe, DeYoe & Guiney, attorneys).
   The opinion of the court was delivered by

Carton, J. A. D.

Plaintiff-insureds appeal the propriety of the trial court’s disallowance of counsel fees. The issue was raised on motion in plaintiffs’ declaratory judgment action brought to determine the validity of disclaimers of liability under three automobile insurance policies. Specifically involved was the question whether a 1967 Pontiac GTO, registered in the name of plaintiff Joseph Pelicetta, Sr. and operated by his son, Joseph Pelicetta, Jr., was covered by liability insurance when it was involved in a serious automobile accident on October 33, 1967.

Defendant Commercial Union Insurance Company had issued two of the insurance policies to Pelicetta, Sr.: (1) a family combination automobile policy on a 1960 Pord station wagon, and (3) a preferred risk reduced premium policy on the Pontiac. The latter policy was issued a few hours before the accident and listed Pelicetta, Sr. as the sole operator. Twelve days before the accident another insurance carrier, Nationwide Mutual Insurance Company, had issued to Pelicetta, Jr. an assigned risk policy on the 1960 Pord station wagon. Pelicetta, Sr. had that month transferred title to the Pord to his son Pelicetta, Jr.

Both companies denied coverage under the policies and refused to defend plaintiffs in the actions brought against them by the persons injured. Plaintiffs therefore retained counsel, who defended the actions.

The trial court found in favor of both defendants in the declaratory judgment action on all three policies. This court reversed in an unreported opinion, holding that coverage existed under the family policy. Thereupon plaintiffs moved to assess fees in their favor against Commercial for the services rendered in the defense of the personal injury actions against them, and also for counsel fees in connection with the declaratory judgment action. The trial court, by order dated January 4, 1971, allowed fees for services rendered in defense of the personal injury actions but refused to make an allowance on the declaratory 'judgment action. The trial judge also indicated that even if he had the power to award a counsel fee, he would have declined to do so under the circumstances of this case. The present appeal is from that action.

At the time the trial court decided the question of counsel fees there existed no statute or rule of court specifically authorizing the making of an allowance in such a case. Therefore the trial court’s determination would appear to be correct in view of the Supreme Court’s decision in Gerhardt v. Continental Insurance Cos., 48 N. J. 291 (1966).

Plaintiffs argue, however, that whether or not Gerhardt is controlling, they are entitled to the allowance of fees in this case by virtue of the amendment to R. 4:42-9, adopted six months after the decision of the trial court. That amended rule, which became effective September 13, 1971, provides in pertinent part as follows:

4:42-9. Counsel Fees
(а) Actions In Which Fee Is Allowable. No fee for legal services shall be allowed in the taxed costs or otherwise, except
(б) In an action upon a liability or indemnity policy of insurance, in favor of a successful claimant.
■'C- # sfc

Plaintiffs’ thesis is that the amendment should be given retrospective effect because the rule, being procedural in nature, should be applied in eases which antedate its promulgation. In support of this proposition, they rely upon Feuchtbaum v. Constantini, 59 N. J. 167, 172 (1971), where the court, in speaking of another rule (R. 4:4-4(i)), noted that “The rule is purely procedural. Procedural statutes and rules of court are given retrospective application if vested rights are not thereby disturbed.” In view of our conclusion on the merits of the application, we deem it unnecessary to decide whether a change in the rules permitting the allowance of counsel fees constitutes such a disturbance of vested rights as to preclude the retrospective application of this amendment. Nor do we deem it necessary to decide whether this court should give retrospective application to a rule which did not exist when the trial court made its otherwise correct decision. See State v. Otis Elevator Co., 12 N. J. 1 (1953).

Without the rule the court lacked authority to award counsel fees. Gerhardt v. Continental Insurance Cos., supra. The amended rule now confers the power to do so. However, it does not mandate the allowance of counsel fees in every action upon a liability insurance policy, irrespective of the circumstances. We interpret the amendment to authorize an allowance in a proper case but to repose in the trial court a discretion as to when and under what circumstances an allowance would be proper. Sarner v. Sarner, 38 N. J. 463 (1963), quoting Liberty Title & Trust Co. v. Plews, 6 N. J. 38 (1950).

One purpose of the amendment to the rule permitting an allowance in a case of this kind was to discourage groundless disclaimers by assessing against the insurers expenses incurred by their assureds in enforcing coverage. That purpose would not be served by making an award to assureds whose deceitful conduct contributed in a substantial measure to the insurance company’s action.

We observe that throughout the trial court argument on the application for fees plaintiffs’ counsel accused defendant of bad faith and urged the making of an award as an appropriate sanction and protection against such bad faith. Defendant contended that if there was bad faith in this case, it arose from plaintiffs’ conduct. Judge Trautwein’s comments on these opposing contentions are pertinent:

* * * I don’t know whether it is necessary or not but I have looked over this matter quite carefully and I suppose the record should show this, that this is not the type of case where an exception should be made of the prevailing rule that there will be no counsel fees in declaratory judgment actions. I don’t find from an examination of the file that there has been a demonstration of bad faith or some kind of reprehensible conduct. On the contrary, I find myself quite in agreement with Mr. Guiney [counsel for defendant-respondent] as to his analysis of that faith and misrepresentation and I think any careful examination of that file will corroborate what Mr. Guiney has suggested and what I find.

When this court determined the coverage question under the various policies we concluded that (1) Eelicetta, Sr. had a sufficient ownership in the Pontiac, involved in the accident, as to require that protection be extended to him under the family policy, and (2) such protection was not lost by reason of a policy provision excluding coverage of replacement vehicles. We held that coverage existed despite the company’s claim that the insured, in later applying for the Cunypae policy, “was engaged in a scheme to procure maximum protection at a minimum charge by concealing his son’s ownership and operation of the Pontiac.” With respect to that policy — issued by defendant Commercial to Felicetta, Sr. only a few hours before the accident — we concluded that “the credible evidence fully supports the trial court’s finding that Felicetta Sr.’s application for the Cunypae policy contained material misrepresentations upon which Commercial relied and but for which the policy would not have issued.” The assigned risk policy covering Felicetta, Jr.’s operation of the Ford provided that coverage did not extend “to any [other] automobile owned by or furnished for regular use of the named insured.” We affirmed the judgment in favor of Nationwide on the ground that the evidence fully supported the findings of the trial court that “the Pontiac was at least furnished for the regular use of Felicetta, Jr. at the time of the accident.”

In this case, while the record revealed evidence reflecting seriously on the probity of the assureds’ conduct in procuring the various insurance policies, we concluded that such circumstances could not serve to deprive the assureds of the legal rights they had contracted for under one of those policies. It does not follow, as the assureds maintain, that such circumstances bear no relevance to their further claim to a counsel fee. In pressing such a claim, assureds seek more than the mere vindication of their strict legal rights. They invoke the exercise of a judicial discretion in which considerations of an equitable character are weighed. Therefore, the trial court, in this exercise of discretion, properly took cognizance of the assureds’ course of conduct with respect to the procurement of the policies and its effect in contributing substantially to tbe necessity for the litigation on the three policies.

Our consideration of the entire record, including the detailed findings and written opinion of the trial court in the original declaratory judgment action, and particularly that court’s findings with reference to the misrepresentation and the conduct of the insureds, satisfies us that the disallowance of counsel fees to plaintiffs was a proper exercise of discretion grounded on sound equitable principles.

Affirmed.


author: Kolovsky, J. A. D.

text:
    CAST OPTICS CORPORATION, PLAINTIFF-RESPONDENT, CROSS-APPELLANT, v. TEXTILE WORKERS UNION OF AMERICA (AFL-CIO), DEFENDANT-APPELLANT, CROSS-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 27, 1971
    Decided December 23, 1971.

      Before Judges Lewis, Kolovsky and Halperk.

      Mr. Sidney Beitman argued the cause for defendant (Messrs. Xapelsohn, Lerner, Leuohter & Beitman, attorneys).

      Mr. Jerry N. Friedland argued the cause for plaintiff (Messrs. Barr, Xaplus, Cohen & Friedland, attorneys).
   The opinion of the court was delivered by

Kolovsky, J. A. D.

In this action growing out of a labor dispute the court by its order of August 11, 1969 granted defendant union’s motion for dismissal of the complaint and dissolved "the temporary injunction [t] heretofore issued.”

Defendant thereafter sought an allowance of costs and counsel fees. Its application was denied by order entered November 3, 1969; hence this appeal.

It is now settled law that [R. 4:53-7] incorporates the counsel fees provisions of section 53 [N. J. S. A. 2A :15-53] of the Anti-Injunction Act into the court rules thereby providing for another category of cases in which allowance of counsel fees is authorized pursuant to [R. 4:42-9]. Westinghouse Electric Corp. v. Local No. 449, 23 N. J. 170 (1957).
This ease holds that in cases falling within the overall scope of the Anti-Injunction Act and meeting the intendment of the requisites specified in section 53 thereof, i. e., the injunctive relief preliminarily granted is subsequently denied or the order granting such relief is thereafter reversed on appeal, such determination being on the merits, the allowance of both costs and counsel fees is mandatory and not merely discretionary. [U. S. Pipe, etc. v. United Steelworkers of America, 37 N. J. 343, 356 (1962) ]

The trial court ruled that its dismissal of the complaint and dissolution of the injunction was a determination on the merits and not one “merely reflecting a procedural defect.” Nevertheless, it denied defendant’s application for counsel fees because it concluded, for the reasons to be discussed later in this opinion, that the injunction which was dissolved — that appearing in the order of July 31, 1969 — was not a “court mandated restraining order or injunction” whose dissolution would entitle defendant to an award of counsel fees under N. J. S. A. 2A:15-53.

Defendant challenges the propriety of the latter ruling and contends that it should have been allowed the counsel fees requested, $3000. Plaintiff acknowledges the reasonableness of the amount applied for but argues that the denial of any allowance was proper, not only for the reason given by the court but also because, contrary to what the court ruled, the dismissal of the complaint did not result from a determination on the merits. (Plaintiff’s notice of cross-appeal was filed only because it assumed, erroneously, that it was necessary for it to cross-appeal to preserve its latter contention. Appeals are taken only from adverse orders; here the order entered was in plaintiff’s favor.)

Since “each case must be considered in its own peculiar setting,” United States Pipe, supra, 37 N. J. at 363, we turn to a consideration of the facts of this case.

Plaintiff’s employees were members of defendant union. The terms and conditions of their employment were provided for in a collective bargaining agreement whose term ran from November 7, 1966 to November 7, 1969. On or about June 30, 1969 the employees struck, allegedly because plaintiff had committed breaches of the agreement.

On July 30, 1969 plaintiff filed a complaint with supporting affidavits in the Chancery Division, charging defendant and its members with illegal mass picketing, intimidation of employees who desired to enter plaintiff’s plant, and sundry abusive and violent acts and conduct. Prayed for was an injunction restraining the picketing and the alleged unlawful conduct.

An order to show cause issued on the filing of the complaint, returnable the next day, July 31, ordering the union and its members to show cause why they should not be restrained in accordance with the prayers of the complaint.

On July 31 defendant appeared through counsel and submitted an affidavit denying the charges of unlawful conduct and asserting that strikebreakers employed by plaintiff not only had threatened employees who were picketing but also had committed acts of violence. Further, the affidavit detailed a number of respects in which plaintiff had allegedly breached its obligations under the collective bargaining agreement.

No testimony was taken on the return day of the order to show cause. Instead, after lengthy conferences between counsel and the Chancery Division judge, the order of July 31, 1969 was entered. That order, signed by the judge and “consented to as to form and entry” by the attorneys for plaintiff and defendant, recited that the court had “considered the Complaint, Affidavits annexed thereto, an Affidavit submitted on behalf of defendant, and presentation of counsel thereon”; that it appeared that each party had filed charges with the National Labor Eelations Board alleging commission of unfair labor practices by the other but that the Board had not yet indicated whether it would accept jurisdiction; that both parties, by their affidavits, had alleged “serious and unlawful acts, including claims of violent conduct, against the other,” and that the “court has decided to attempt preservation of a proper status quo pending an opportunity for further consideration of the matter.”

Then followed the court’s order. The injunctive provisions appear in paragraph 3; the other paragraphs adjourned the return day of the order to show cause until August 8, 1969, granted permission to the parties to move on 12 hours’ notice to modify the order, and preserved the right of the parties to have a hearing, to address motions to the pleadings and proceedings and to serve and file additional affidavits and exhibits not later than two days prior to the adjourned return date.

Paragraph 3 of the order reads as follows:

Meanwhile, and until the further Order of this Court:
(a) Neither the defendant Local 656, T.W.U.A. (AFL-CIO), nor any of its members, associates, agents, or persons acting on its behalf or in combination with Local 658 shall engage in picketing at plaintiff’s manufacturing premises (at or in the vicinity of 244 and 215 So. Newman St., Hackensack, New Jersey) except with not more than 8 pickets at any one time, at the plant’s main entrance and not more than 5 pickets at any other plant entrance at any one time, and the arrangement of the pickets shall not be such as to block ingress and egress;
(b) Said picketing, referred to above by defendant, and any other activity shall be peaceful, without threats, intimidation or coercion or attempt thereat;
(c) There shall be no trespass on premises of the plaintiff, excepting insofar as picketing may be conducted on sidewalks, driveways or like areas generally available for passage and repassago;
(d) The prohibiting above set forth against violent or non-peaceful conduct, threats, intimidation, and coercion, or attempt thereat, is hereby equally directed toward, and shall fully apply to the plaintiff, its officers, agents, supervisory and other employees, and persons acting in its behalf or in combination with plaintiff.

All further proceedings in this matter were before another judge of the Chancery Division. At the hearing on August 8, 1969 he first considered defendant’s motion to dismiss the complaint and to dissolve the restraints because of plaintiff’s alleged breaches of the collective bargaining agreement. Defendant contended that such breaches constituted a failure by plaintiff to comply with “an obligation imposed by law” and hence a bar to the injunctive relief sought because N. J. S. A. 2A :15-54 provides:

No restraining order or injunctive relief shall be granted to any plaintiff who has failed to comply with any obligation imposed by law which is involved in the labor dispute in question, or who has failed to make every reasonable effort to settle such dispute either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration.

Defendant’s affidavit proof of plaintiff’s breaches of the collective bargaining agreement was uncontradicted. Plaintiff elected not to offer any evidence with respect thereto although the hearing was continued by the court from August 8 to August 11 to afford it an opportunity to do so.

In his oral opinion following argument on the latter date, the judge found that plaintiff had breached provisions of the collective bargaining agreement which required it to make payments to the employees’ insurance program, to check-off union dues, to permit union representatives to have access to the plant, to recognize defendant union as the bargaining agent for its employees, and to follow stipulated grievance procedures. The judge also noted that there was no evidence that the employer had made an “effort to settle the dispute either by negotiation or with the aid of any available governmental machinery, mediation, or voluntary arbitration.”

On the basis of his findings the judge concluded that N. J. S. A. 2A:15-54 mandated that the complaint be dismissed and “the temporary injunction [t] heretofore issued” be dissolved. The order entered on August 11, 1969 provided, however, that the dismissal and dissolution be

* * * all without prejudice to the plaintiff’s right to again apply to the Court for such relief as may be just and proper when it has effected compliance with the provisions of R. S. [sic] 2A:15-54.

Plaintiff did not appeal from the order of dismissal of August 11, 1969 nor did it exercise the granted right to file a new complaint if it first complied with the provisions of N. J. S. A. 2A:15-54. Indeed it does not now argue that the court erred in dismissing the complaint.

It does contend, however, that the dismissal was not on the merits because the court did not reach or decide the question, of the truth of plaintiff’s charges that defendant and its members had engaged in unlawful conduct.

Plaintiff misconceives the scope of the requirement that the denial of the injunction sought by a plaintiff be on the merits. That requirement relates to a determination on the merits of plaintiff’s right to an injunction, not to a determination of whether wrongful acts of the defendant might entitle plaintiff to some other form of relief.

“An injunction is an extraordinary equitable remedy utilized primarily to forbid and prevent irreparable injury. It must be administered with sound discretion and always upon the considerations of justice, equity, and morality evolved by the given case.” Canda Realty Co. v. Carteret, 136 N. J. Eq. 550, 556 (Ch. 1945)
No court of equity will exercise its power to grant injunctive relief merely upon a showing that the party proceeded against is committing or is intending to commit an unlawful or an improper act. [N. J. State Bar Ass’n v. Northern N. J. Mortgage Associates, 22 N. J. 184, 194 (1956)]

Further,

There are certain fundamental principles or maxims which lie at the basis pf equity jurisprudence and govern the court in the granting or withholding of relief. Important among these is the one which relates to the fairness or good conduct of the party invoking the court’s aid, and which requires a denial of relief to a suitor who is himself guilty of misconduct in respect to the matter in controversy, and who does not come into court with “clean hands.” [42 Am Jur 2d, Injunctions, § 35 at 772-773]

It is this settled equitable principle that the Legislature, by enacting N. J. S. A. 2A:15-54, has applied to the area of labor disputes. Indeed, the identical provision of the Norris-LaGuardia Act (29 U. S. C. A. § 108), the progenitor of the New Jersey statute, has been characterized as the “clean hands provision” of that Act. Brotherhood of R. T., etc. v. Toledo, P. & W. R. R., 321 U. S. 50, 60, 64 S. Ct. 413, 418, 88 L. Ed. 534 (1944); Long Island Railroad Company v. System Federation No. 156, 368 F. 2d 50, 53 (2 Cir. 1966).

A determination that a plaintiff is not entitled to an injunction because he did not come into court with clean hands is a determination on the merits. Van Name v. Federal Deposit Ins. Corp., 130 N. J. Eq. 433, 445 (Ch. 1941), aff’d 132 N. J. Eq. 302 (E. & A. 1942).

So, too, is a determination, as here, that plaintiff-employer is not entitled to an injunction against alleged unlawful acts of its employees because it has failed to comply with N. J. S. A. 2A:15-54. Compliance with that provision is a “statutory prerequisite,” United States Pipe, etc. v. United Steelworkers of America, supra, 37 N. J. at 362, to the grant of an injunction.

The statute requires that the court be satisfied before granting an employer an injunction not only that defendant has committed the unlawful acts which the employer seeks to enjoin but also that the employer has not “failed to comply with any obligation imposed by law which is involved in the labor dispute in question.” N. J. S. A. 2A:15-54. If the proofs show that the employer has failed to comply with those obligations, then one of the essential elements required to be shown to entitle plaintiff to the injunctive relief sought is missing and an injunction cannot be granted. A determination that such element is missing is a decision on the merits, not a determination that a procedural defect exists in the pleadings or procedure.

The situation presented here is analogous to that existing in Westinghouse Elec. Corp. v. Local No. 449, etc., 23 N. J. 170 (1957). There the plaintiff-employer sought to enjoin defendants from illegal picketing. Defendants obtained an order permitting them to depose plaintiff’s president and other officers for the purpose of showing that they had failed to make prior reasonable efforts to settle the labor dispute as required by N. J. S. A. 2A:15-54. Rather than submit their officers to depositions, plaintiff took a voluntary dismissal. The Supreme Court ruled that allowance of counsel fees to defendants was mandated by N. J. S. A. 2A:15-53.

In denying defendant’s application for counsel fees the court, after referring to N. J. S. A. 2A:15-53 and the Westinghouse Electric and United States Pipe and Foundry Co. cases cited above, said:

These cases demonstrate clearly that there must be some type of court mandated restraining order or injunction which is thereafter dissolved before the defendant would be entitled to court costs and counsel fees under R. S. [sic] 2A:15-53.
There was no such court mandated preliminary restraint or injunction imposed in the instant case. A dose examination of its history demonstrates this. The prohibitions were directed against both parties, the preamble set the tone of the order by the use of the phrase “the court has decided to attempt preservation of the proper status quo pending opportunity for further consideration of the matter . . . the prohibitions were effective for a period of nine (9) days rather than the five (5) day maximum provided by R. S. 2A:15-53, there was no taking of oral testimony or findings of fact required by the statute nor was there a requirement in the order for the filing of a bond or undertaking in favor of the person or persons restrained. This coupled with the legend “Consented to as to form and entry” above the signature of all counsel fly in the face of defendant’s contentions that this order was anything but a consent typo of order. I cannot infer anything but that the Court’s signing the order intended it to be a consent type of order. Hence, the statutory prerequisite to an award of counsel fees and court costs; namely that there be an initial restraint which is later dissolved, is not present. The motion of defendant is therefore denied.

We cannot concur in the quoted interpretation of the effect and consequences of the order of July 31, 1969. That order was entered only after defendant had been brought into court by the order to show cause which plaintiff had obtained. Defendant was required to retain counsel to defend itself. The fact is that the July 31 order did grant injunctive relief against defendant and its members — injunctive relief which remained in effect until the restraints were dissolved by the order of August 11, 1969. The order was an order of the court. Had defendant or its members wilfully violated any of the restraints contained therein, they would have subjected themselves to prosecution for contempt of court.

It is of no legal significance that the grant of injunctive relief against defendant was accomplished, not by an order entered after the taking of testimony but by a consent order entered by the court following negotiations between the court and counsel for the respective parties and what was tantamount to a waiver of the statutory provisions for taking of testimony and finding of facts by the court. Although entered by consent, the order had the same force and effect as would an identical order entered after the taking of testimony and the making of findings of fact. Public Service Elec. and Gas Co. v. Waldroup, 38 N. J. Super. 419, 425-426 (App. Div. 1955); Macfadden v. Macfadden, 49 N. J. Super. 356, 362 (App. Div. 1958), certif. den. 27 N. J. 155 (1958); Fidelity Union Trust Co. v. Union Cemetery Ass’n, 136 N. J. Eq. 15, 25 (Ch. 1944).

There is no validity in the suggestion that the order of July 31, 1969 should be deemed in effect a contract rather than "a court mandated restraining order or injunction.” Spencer v. Fairclough, 137 N. J. L. 379, 382-383 (E. & A. 1948).

Apposite is what the United States Supreme Court said in United States v. Swift & Co., 286 U. S. 106, 115, 52 S. Ct. 460, 462, 76 L. Ed. 999 (1932) :

We reject the argument * * * that a decree entered upon consent is to be treated as a contract and not as a judicial act.

and what a later federal court ruled in reliance thereon:

A consent decree, although based upon an agreement of the parties rather than a finding of facts by the court, is not a mere authentication or recording of that agreement. It is a judicial act (United States v. Swift & Co., 286 U. S. 106, 115, 52 S. Ct. 460, 76 L. Ed. 999) * * *. [United States v. Radio Corporation of America, 46 F. Supp. 654, 655 (D. Del. 1942) ]

The order under appeal is reversed and the cause remanded to the trial court to grant defendant’s application for a counsel fee of $3000.


author: Labrecque, J. A. D.

text:
    JOYCE BUCHANAN, JESSIE RAMSEUR, NANCY FULLER, ELIZABETH WILLIAMS, VIVIAN SIMMONS, BEATRICE GREEN, ETHEL BANKS AND MARION KIDD, ALL INDIVIDUALLY, ON BEHALF OF THEIR MINOR CHILDREN, AND ON BEHALF OF ALL SIMILARLY SITUATED PERSONS, PLAINTIFFS-RESPONDENTS, v. ESSEX COUNTY WELFARE BOARD AND PHILIP K. LAZARO, DIRECTOR OF THE ESSEX COUNTY WELFARE DEPARTMENT, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued October 19, 1971
    Decided December 28, 1971.

      Before Judges Kilkenny, Labeboque and Lane.

      Mr. Ronald Reichstein argued the cause for defendants-appellants (Mr. Joseph E. Cohen, attorney).

      Mr. Michael C. Parks, on behalf of the Newark-Essex Joint Law Beform Project, argued the cause for plaintiffs-respondents.
   The opinion of the court was delivered by

Labrecque, J. A. D.

Defendants Essex County Welfare Board (Board) and Philip K. Lazaro, its Director, appeal from a judgment of the Law Division, dated March 19, 1971, which held that recipients of assistance from the Board under the Aid to Families with Dependent Children (AFDC) program who were also obligees under court orders for support were entitled to be offered the opportunity to be placed on a full-payment basis whenever the court-ordered support payments were delinquent by five business days in a single payment period.

The facts with which we are concerned are set forth in the reported opinion of: the Law Division, 113 N. J. Super. 99, and need not be repeated in detail. Briefly summarized, the Board is a county agency charged with responsibility for the administration of financial assistance and other services to needy dependent children and their parents or relatives under the federally funded AEDC program. N. J. S. A. 44:10-2. Plaintiffs herein are recipients of welfare benefits under the AEDC program and brought suit as a class for a declaratory judgment holding invalid certain procedures followed by the Board in the administration of the program. The challenged procedures applied only to recipients of aid under the program who were also obligees under judicial support orders against legally responsible relatives — most often, deserting fathers. In general, such court orders were based up on nonsupport complaints filed by welfare recipients pursuant to instructions from the Board.

Payments under such orders would be required to be made by the responsible relative either directly to the obligees or through the county probation department. In either case it was the Board’s practice in making payments to welfare recipients under the program to deduct, at the beginning of each (monthly) payment period, the full amount of any court-ordered pa3rments of support to become due during that month from the total sum to which the welfare recipient would otherwise be entitled. Thereafter, if the support payment or any part thereof failed to come through or became in default, upon proof to that effect a supplemental assistance check would be issued to make up the difference.

The court below found that in this process the length of time between the start of a payment period and receipt of a supplementary support payment varied from case to case, depending upon at what point in time the welfare client’s economic deprivation became so acute as to compel action. It further found that delays were entailed in attempts to report delinquencies either b3^ telephone or personal visits to burdened caseworkers, who were not always available and whose efforts to return such calls were at times frustrated by the recipient’s lack of telephone service. Eurther, after the report was received, time-consuming verifying procedures were required to be completed b3^ the Board before payment would be authorized. It found that the cumulative effect of these various delays was that three or four weeks could sometimes pass before the needed supplemental assistance check was issued. Exemption from the foregoing delays required that the court-ordered payments be found to be “habitually” delinquent, in which case the welfare client would be placed on the “full payment process” and would thereafter receive the full grant at the beginning of each payment period. Here plaintiffs’ challenge is directed to the standards utilized by the Board in determining when a welfare recipient was to be placed on “full payment.”

Under the Board’s standard, delinquencies were deemed “habitual” where (1) payments had been delinquent in whole or in substantial part for three consecutive months, or (2) payments had been delinquent in whole or substantial part in eight of the preceding 12 months, or (3) supplemental assistance cheeks had been issued by reason of substantial delinquencies for four of the preceding six months. Plaintiffs maintained below that they should be allowed the full amount of their welfare grant at the beginning of each month, without deduction of the amount ordered to be paid for support by the legally responsible relatives. The Board contended that the withholding practice was lawful and not inconsistent with local and congressional intent as expressed in state and federal legislation and administrative regulations promulgated thereunder.

The class selected for welfare assistance under the AFDC program is “the dependent child,” as defined in 42 U. S. C. A. § 606(a). The program is financed largely by the Federal Government on a matching fund basis and is administered by the states. King v. Smith, 392 U. S. 309, 316, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968). States desirous of taking part in the program are required to submit an AFDG plan for the approval of the Secretary of Health, Education and Welfare. Id. The state plan must conform with several requirements of the Social Security Act and with rules and regulations promulgated by the Secretary of Health, Education and Welfare. Id. at 317, 88 S. Ct. 2128; 42 U. S. C. A. § 602. One of the statutory requirements is that “aid to families with dependent children * * * shall be furnished with reasonable promptness to all eligible individuals.” 42 U. S. C. A. § 602(a) (10); (emphasis added.) See also N. J. S. A. 44:10-3(b).

Each state is permitted considerable latitude in determining its own standard of need as a condition for eligibility under the program. King v. Smith, supra, 392 U. S. at 318, 88 S. Ct. at 2128. New Jersey, by administrative regulations promulgated under N. J. S. A. 44:10-1(c) (3), fixes the standard for an adequate minimal level of living as “a money amount which is sufficient to finance the purchase of those goods and services which are essential for physical health and safety.” Categorical Assistance Budget Manual § 102 (the Budget Manual). Thus the condition of eligibility is that the applicant be “destitute, without funds or assets.” Goldberg v. Kelly, 397 U. S. 254, 261, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970).

In determining the amount of benefits to be paid to the welfare applicant under the program, the Budget Manual, prepared by the Division of Welfare, Department of Institutions and Agencies, is used by the Board’s caseworkers. Section 402.61 thereof provides that consideration is to be given to resources to be derived by the applicant from relatives and friends in determining the extent of need and assistance required. However, § 501.3 directs that “only the amount of support * * * actually being received by the client shall be considered as an available resource.”

In administering the foregoing, and kindred regulations contained in the Federal Handbook of Public Assistance Administration (see 42 U. S. C. A. § 1302) and the Manual of Administration prepared by the Bureau of Assistance of the Department of Institutions and Agencies, the Board has been applying the formula hereinabove referred to. It is defended on the ground that it is in conformity with § 2320.2(b) of the Manual of Administration which provides :

A report that the relative has failed to comply with the Court Order shall he investigated by the county welfare board without delay. If substantiated, the following policy and procedures shall be observed.
>:< * a, a: # a< * *
"When there is evidence that a relative is habitually making irregular payments, or payments in amounts less than ordered, the county welfare board shall:
1) As of the first day of the next regular payment period adjust the grant to correct any current deficit by the irregular or insufficient payment of the Order; and
2) Immediately offer the client the opportunity to have the regular continuing grant adjusted to jirovide the full amount of assistance (to which the client is entitled without regard to the Order of Support) under an arrangement whereby any support payments thereafter, if received directly by the client, will be forwarded to the county welfare board, or, if paid through the Probation Department, will be handled as follows: * *' *.

The Board concedes that § 2954.3(a) of the same manual permits it to make a full assistance grant where support payments ordered to be made to the Probation Department are assigned to the Board. It contended below that the Essex County Juvenile and Domestic Relations Court, in which many such support orders were entered, had not in the past substituted it as beneficiary of such orders in a sufficient number of cases to permit it to pay full benefits as a matter of policy.

The court below found that the challenged practice contravened governing policies, forcing recipients under the AEDC program to go month after month waiting for support payments which might never arrive, and then to make frantic applications for supplemental assistance as household funds dwindled. It found that the practice violated the applicable regulatory requirement that the Board, rather than the welfare recipient, be made to bear the burden of investigating the support obligors’ willingness (ability) to make payment. It noted that the procedure followed had been twice cited as an irregularity by the State Director of Public Welfare.

Having thus struck down the test being applied by the Board, the court proceeded to enact its own test to the effect that the nonavailability of support payments as an actual resource in calculating benefits due was to be satisfactorily established upon the occurrence of a single default thereunder during any one payment period — specifically, that recipients were to be placed on a “full payment” basis when support order payments became delinquent five days in any one payment period.

We are in accord with the conclusion of the court below that the challenged procedures contravened governing policies and violated regulatory requirements, and thus should not be permitted to stand. However, upon the court’s determination that the challenged regulations and procedures of the Board did not pass legal muster, an order setting them aside should have been entered, with a proviso affording the Board a reasonable time in which to enact new regulations and procedures which would meet the deficiencies pointed out by the court. Courts are not free to enact their own version of ordinances or regulations, the enactment of which are committed by law to municipal bodies or agencies. The function of the court is, essentially, to pass upon the legality of the challenged regulation and, in the event of illegality, to point out its deficiencies. Where, for example, an ordinance, or a regulation of a local board of health is set aside, the court does not substitute a new one of its own. The enactment of substitute legislation should be left to the legislative discretion of the municipal body or agency which is charged by law with that duty and presumably possesses expertise in the field.

At the conclusion of the ®ral argument the court expressed concern in the foregoing regard and inquired as to whether, since the entry of judgment below, the Board had considered a revision of its procedures to bring them more into conformity with the legislative intent and the implementing Eederal and State rules and regulations. Thereafter, on October 27, 1971, defendant submitted to the court and the plaintiffs a proposed revised “delinquent court order procedure” which provided, in pertinent part, as follows:

Definitions:
Delinquency is defined as a situation in which the payer fails to make a payment, or makes a payment in an amount less than that ordered, or fails to make the payment by the time specified in the Court Order.
Habitual delinquency is defined as meeting one of the following conditions :
1. Court ordered payments are delinquent, as defined above, for three continuous weeks.
2. There is an aggregate delinquency in four of eight continuous weeks.
Procedures:
For the single or occasional delinquency, the caseworker shall prepare the order for an additional grant within 24-48 hours of notification by client. Check will be issued to he received by client promptly but in no event more than five working days of notification.
For habitual delinquency, as defined above, the Welfare Board will invoke the “full-payment process” under which the Welfare Board makes a regular monthly payment to the client for full needs, while Court Ordered payments are made through the Probation Department to the Welfare Board.
To institute this procedure, the Welfare Board requests client to execute an “Authorization to Remit Support Payments to County Welfare Board”, copy of which is appended.

Wo note that a memorandum of the Administrative Director of the Courts, dated April 21, 1967 and addressed to judges of the Juvenile and Domestic Relations Conrt and chief probation officers, after pointing out the difficulty entailed in gearing welfare payments to support orders, suggested that:

One way in which the situation can be met is to have the probation departments forward support payments directly to the welfare agency under a waiver executed by the beneficiary. Under this plan the assistance grant can ho made and maintained according to the determined needs of the family and the monies received under the court order are treated as a refund of assistance paid.
There seems to be no legal barrier to the adoption of this system in New Jersey since an assignment can be made under N. J. S. A. 44:10-4(a) authorizing the payment of collections of support orders directly from a probation department to a county welfare board. A sample form for such an assignment is attached herewith.
You may be interested to know that the plan outlined above is recommended by the Bureau of Family Services of the Welfare Administration, United States Department of Health, Education and Welfare. Effective July 1, 1967, the Federal agency is requiring that the public assistance program guarantee regular payment of full budget allowances to beneficiary families without diminution based on a presumption that court-ordered support will be available.

A form authorizing the remittance of support payments to county welfare boards was promulgated for use in such cases and is the one referred to in the proposed revision. On April 9, 1968 a supplemental memorandum from the Administrative Director to chief probation officers directed that the procedure above referred to be applied to payments of alimony and support ordered in the Chancery Division.

While ordinarily we would not pass upon the proposed new procedures in advance of their enactment, we have concluded, in view of the public interest involved, the nature and purpose of the action and the long time which has intervened since its institution, that we should do so here. With this end in view, counsel for plaintiffs was invited to submit a letter memorandum directed to the proposed new procedure. He did so on November 9, 1971. The Board filed an answering memorandum on November 17, and plaintiffs’ counsel filed a reply memorandum on December 2.

Upon consideration of the memoranda filed we are of the opinion that the proposed definition of delinquency as a situation in which the obligor under a court order fails to make a payment, makes a payment less than the amount specified in the order, or fails to make the payment by the time specified in the order, is consistent with and reasonably conforms to the aims and objectives of the AEDC program and of the statutes and regulations, both federal and state, pertaining thereto. We reach the same conclusion with reference to the definition of habitual delinquency as embracing situations when (1) court order payments are delinquent (as defined above) for three continuous weeks, ox (2) where there is an aggregate delinquency in four of eight continuous weeks. We hold likewise as to the procedures which would provide that (1) in the case of a single or occasional delinquency the caseworker shall prepare the order for an additional grant within 24 to 48 hours of notification by tbe client, and that the check in payment thereof be issued so as to be received by the client promptly, and in no event more than five working days after notification, and (2) in a case where habitual delinquency as defined above is established, payees shall be entitled to be placed upon a “full payment” basis promptly, payments under the full payment process to begin by the next regular (monthly) payment day. The foregoing shall apply whether the order for payment of support has been entered in the Juvenile and Domestic Relations Court or in the Chancery Division, and whether payments under the court order have been required to be made to the probation department (as appears to be the situation in most cases) or directly to the welfare client. In connection therewith the welfare client shall, upon request by the Board, execute an “authorization to remit support payments to the Board” in a form substantially similar to that annexed to the proposed revision.

The conclusions of the Law Division, implicit in the judgment below, which hold that the challenged practices and procedures of the Board contravene governing policies and violate regulatory requirements, are affirmed. So much of said judgment as purports to set up practices and procedures to be followed by the Board, specifically the provision requiring welfare recipients to be placed on a full-payment basis once a payment under a support order becomes delinquent in any one payment period, is reversed and set aside. The Board should be allowed a period of 45 days during which to enact such revisions of its procedures as it deems necessary.

Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.

No costs.