author: Matthews, J. S. C.

text:
    DENISE ANDERSON, WILLIAM ANDERSON, ROBERT W. CASTLE, ARLENE LATKO, JOEL MYRON, ADRIAN TENHOR AND JERSEY CITY BRANCH OF NAACP, INDIVIDUALLY AND ON BEHALF OF THOSE PERSONS AND ORGANIZATIONS SIMILARLY SITUATED, PLAINTIFFS, v. ARTHUR J. SILLS, ATTORNEY GENERAL OF NEW JERSEY, STEVEN NESTOR, POLICE CHIEF OF JERSEY CITY, GEORGE N. BONELLI, SHERIFF OF HUDSON COUNTY AND GEORGE WHELAN, POLICE DIRECTOR OF JERSEY CITY, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AND AS REPRESENTATIVES OF THE CLASS OF POLICE CHIEFS, COUNTY SHERIFFS, MUNICIPAL, COUNTY AND STATE LAW ENFORCEMENT OFFICIALS OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Clianeery Division
    July 30, 1969.

      Mr. Morris Stern for plaintiffs (Mr. Morris Stern, Mr. L. Walter Finch, Mrs. Muriel Finch, Mr. Frank Askin and Mr. Arthur D’ltalia on the brief; Mr. Stephen M. Nagler, Mr. Melvin Wulf and Mrs. Eleanor Norton of American Civil Liberties Union, of counsel).

      Mr. Joseph A. Hof man, Eirst Assistant Attorney General, for defendant Arthur J. Sills (Mr. Stephen Skillman, Deputy Attorney General, on the brief; Mr. Arthur J. Sills, Attorney General, attorney).

      Mr. James F. Ryan, Corporation Counsel of Jersey City, for defendants Steven Nestor and George Whelan.

      Mr. Daniel F. Gilmore, Assistant County Counsel for Hudson County, for defendant George N. Bonelli (Mr. William F. Kelly, Jr., Hudson County Counsel, attorney).
   Matthews, J. S. C.

Plaintiffs are adult citizens and a civil rights organization of Hudson County. They have instituted this action seeking a declaratory judgment that the use of a reporting system by local and county officials to gather and compile information relating to potential and actual civil disorders violates the United States Constitution. They also seek injunctive relief against the continuance of such reporting system and for the termination thereof.

On or about April 23, 1968 defendant Attorney General Sills distributed a memorandum entitled “Civil Disorders_ the Role of Local, County and State Government” to municipal and county officials within New Jersey. A letter accompanying the memorandum, signed by the Attorney General, indicated that it was being distributed pursuant to a conference held between Governor Hughes and the mayors of various municipalities of the State on April 16, 1968.

The memorandum deals with many aspects of the problem of civil disorder, including methods of advance planning, mutual assistance between municipalities, summoning assistance from State Police and National Guard, legal steps to be taken in proclaiming an emergency, and the control of false rumors which may escalate a civil disorder.

Plaintiffs here seek review of and relief from only a small segment of the 43-page memorandum. The matter at issue is contained in a portion of the memorandum, printed on page 19 thereof, which is entitled “Potential Problems” and which reads as follows:

“Our State Police have been working closely with local police in various communities throughout the State in a continuing effort to keep abreast of potential civil disorder problems. In that respect, therefore, we are already familiar generally with basic problems in these communities. However, these problems change and we should never become over confident to the end that we lose sight of the cause, as well as the effect of civil disturbances. The State Police Central Security Unit has distributed Security Summary Reports (Form 421) and Security Incident Reports (Form 420) (see Appendix G-) to each police department. It is necessary that these reports be used routinely to inform the State Police of the situation in your community. We urge you to see that this vital intelligence is communicated to this central bureau for evaluation and dissemination.”

Forms 420 and 421, mentioned in the memorandum, along with instructions for their preparation, are reproduced as Appendices A and B, respectively, to this opinion.

Form 420, the Security Incident Report Form, refers in paragraph 9 to a civil disturbance, riot, rally, protest, demonstration, march and confrontation as being illustrative of incidents which are urged to be reported. Paragraphs 4 through 6 indicate that anticipated incidents, incidents still in progress and completed incidents all fall within the scope of the reporting system. The report is designed to determine the names of organizations or groups involved, leaders, the type of organization and the nature of the incident. It also requests the reporting authority to identify the source of information concerning the incident. Form 421, the Security Summary Report, is designed to obtain information concerning individuals who may be connected with potential civil disorder problems. Various information is solicited concerning the subject of Form 421 report and also the sources of information.

Generally, plaintiffs submit that the intelligence system urged by the Attorney General is so broad and sweeping that any gathering or event could qualify for a write-up, entry of a report into central State files, evaluation and dissemination. Broadly, they urge that this system, considering its scope, can only have a deferring effect on the exercise of First Amendment rights not only by them but also by all citizens.

This matter is presently before the court on a motion by the Attorney General to dismiss the complaint as failing to state a cause of action. Plaintiffs have answered this motion by moving for summary judgment. Ooneededly, there are no relevant issues of fact which must be determined by the court.

The first issue raised by the Attorney General on his motion is that the complaint does not allege facts indicating that any of the plaintiffs has been aggrieved by the intelligence reporting system challenged herein. Since it is contended that none of the plaintiffs has demonstrated or indicated that they have been aggrieved in any way by the intelligence reporting system, their standing to press the constitutional claims made in the complaint are challenged. The Attorney General further alleges that the failure to allege facts which would confer standing on any of the plaintiffs represents something more than a mere technical defect in pleading; he questions whether anyone would genuinely be deterred from exercising First Amendment rights because of the knowledge of the existence of the State Police intelligence system; he urges that the vital role that this intelligence system plays in the affairs of the State should require this court to adhere strictly to the doctrine of standing and only entertain an action by someone who can particularize the manner in which he has been harmed.

I believe that the Attorney General has oversimplified the problem. This is an action for declaratory judgment under N. J. S. 2A :16-50 et seq. Decisions of our courts have indicated that one need not wait until he has been found to violate the law before seeking judicial relief as to the applicability of statutes. See State v. Baird, 50 N. J. 376 (1967); Sanitary Vendors, Inc. v. Byrne, 40 N. J. 157 (1963); Lucky Calendar Co. v. Cohen, 19 N. J. 399 (1955). In the area of constitutional litigation the United States Supreme Court has in recent decisions shown a marked relaxation of standards of justiciability where governmental action inhibits the exercise of First Amendment rights. See, e. g., Dombrowski v. Pfister, 380 U. S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965); Lamont v. Postmaster General, 381 U. S. 301, 85 S. Ct. 1493, 14 L. Ed. 2d 398 (1965); and, further, see the decision of a three-judge federal court in Straut v. Calissi, 293 F. Supp. 1339 (D. N. J. 1968). Compare Golden v. Zwickler, 394 U. S. 103, 89 S. Ct. 956, 22 L. Ed. 2d 113 (1969).

In Straut v. Calissi, three members of a peace movement sought a declaration of unconstitutionality of a dormant sedition statute (N. J. S. 2A :148-22) which had been cited in a speech by defendant county prosecutor as a potential weapon against “peaceniks.” None of the plaintiffs was personally threatened with prosecution. Judge Forman, in writing the opinion of the court, stated:

“The importance of the constitutional right here being asserted, however, overrides the substantiality or insubstantiality of the threats in this case. * * Where, as here, suit is brought by plaintiffs whose activities apparently fall within the statute’s broad inhibitions, federal jurisdiction exists.” (at pp. 1342-1343; emphasis added)

This court observes that plaintiff Anderson has been involved in a “sit-in” at St. Peter’s College, Jersey . City, and that she was a defendant in litigation subsequently instituted by the college in this court. Plaintiff Castle is well-known throughout Hudson County for his civil rights activities, and the court takes notice of such activities.

Under the federal cases the concepts of standing in First Amendment cases have had the effect of constituting individual litigants gwasi-attorneys general for large classes of citizens whose rights might otherwise be oppressed. I have no difficulty in accepting the standing of plaintiffs to maintain this action. The question of standing as posed, however, is related to the substantive question as to whether the State Police intelligence gathering system results in a denial of constitutional rights. The answer to this question must be resolved by turning to plaintiffs’ motion for summary judgment.

The State urges that the public purpose of the State Police intelligence gathering system is apparent from an examination of the memorandum in'which it is presented. The Attorney General points out that in the last four years one civil disorder after another has occurred in cities of the United States; hundreds of citizens have been killed and hundreds of millions of dollars in property have been destroyed. It is pointed out that in the summer of 1967, serious civil disorders broke out in this State in Newark and Plainfield, and that less serious disorders broke out in many other cities. Following the trouble occurring in the summer of 1967, Governor Hughes and President Johnson both appointed select commissions to study the causes of the disorders and to make recommendations. Both commissions submitted reports calling for massive programs to deal with the root problems of unrest in the black ghettos in big cities. The reports also recommended that careful planning bo conducted, first, to prevent the outbreak of future disorders and, second, to minimize the effect of disorders as they occur. The Attorney General further informs us that the President’s Commission specifically directed its attention to the role of police intelligence in preventing civil disorders, and quotes from a supplement to the Commission’s report:

“Intelligence •—■ Tlie absence of accurate information both before and during a disorder has created special control problems for police. Police departments must develop means to obtain adequate intelligence for planning purposes, as well as on-the-seene information for use in police operations during a disorder.
An intelligence unit staffed with full-time personnel should be established to gather, evaluate, analyze, and disseminate information on potential as well as actual civil disorders. It should provide police administrators and commanders with reliable information essential for assessment and decision-making. It should use undercover police personnel and informants but it should also draw on community leaders, agencies, and organizations in the ghetto.” Report of the National Advisory Commission on Civil Disorders, at p. 487 (1968).

The inference to be drawn is that the State Police intelligence reporting system was created, if not in compliance with the Commission’s Eeport, at least by following its suggestion.

This court is not unmindful of the concern of the Governor, the Legislature and the Attorney General over the danger to life and property presented by the advent of civil disorders and riots. Neither is it unaware of the obligation cast upon the Executive and Legislative Branches of the State Government to protect the life and property of •all the citizens of the State. It may be conceded that the objects of the actions of the Attorney General taken here are well within the established police power of the State. However, when a state official, in exercising his powers, comes in conflict with those individual liberties protected by the Bill of Eights, it is the delicate and difficult task of the courts to determine whether the resulting restriction on freedom can be tolerated. See Schneider v. New Jersey, 308 U. S. 147, 161, 60 S. Ct. 146, 84 L. Ed. 155 (1939).

Form 421, the Security Summary Eeport, requests local police or law enforcement officials to include basic personal data on the subject of the report, such as date and place of birth, marital status, name of spouse, age, race, physical description, occupation and employer, motor vehicle record, as well as names and addresses of associates, and a narrative which should include, according to instructions, among other items, citizenship, habits or traits, places frequented, financial status, and past activities, findings and/or observations. There is no indication or inference to be drawn that the purpose of the Attorney General in obtaining such information is to stop people from expressing political views. Clearly, his aim is to prevent civil disorders and apprehend perpetrators thereof. The civil disorders memorandum prepared by the Attorney General makes it apparent that he believes there is a relationship between individuals and organizations who engage in protest demonstrations, and the civil disorders which are the object of his concern. He does not, however, in any manner, make clear in the memorandum how the gathering of the data called for in Form 421 will be helpful in preventing civil disorders. It may very well be that some protestors and their activities have had some relationship to some unlawful occurrences, but what can be the effect of the knowledge of the existence of such an intelligence gathering system upon those of our fellow citizens who have the desire and the right to demonstrate both physically and vocally in a lawful manner their opposition to governmental policy or political activity ?

Over the past decade the Supreme Court of the United States has significantly developed the content and meaning of First Amendment rights and the availability of remedies for infringement thereof. If any case is to be singled out as being a landmark in this development it is Dombrowski v. Pfister, 380 U. S. 479, 85 S. Ct. 1116, 14 L. 2d. 2d 22 (1965). There, threatened state criminal proceedings were enjoined, despite the traditional federal abstention doctrine and the burden of proof required to obtain injunctive relief. The court found that as long as the statute under which the criminal proceedings were threatened existed, the threat of prosecutions of protected areas of expression was a real and substantial one. It found that even the prospect of ultimate failure of such prosecutions did not serve to dispel their chilling effect on protected expression.

In Lamont v. Postmaster General, 381 U. S. 301, 85 S. Ct. 1493, 14 L. Ed. 2d 398 (1965), the court struck down a governmental scheme which required addressees of foreign communist propaganda to return a reply card if they wanted such material delivered by the Post Office Department. In doing so, the court made it clear that it was not the minimal burden of returning the card that was at fault, but that this requirement was “almost certain to have a deterrent effect, especially as respects those who have sensitive positions.” (At p. 307, 85 S. Ct., at p. 1496) To the same effect is NAACP v. Button, 371 U. S. 415, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963), which found the challenged Yirginia regulation invalid because its mere existence might deter the exercise of delicate and valuable First Amendment rights.

The constitutional doctrine which is found as a common thread in the cases just cited rests on the premise that First Amendment rights are of transcendental value to all society and not merely to those exercising their rights. Dombrowski v. Pfister, supra. Thus, the injury to be remedied is considered not only personal but also as one affecting society as well. Such injury must be measured by the impact the given inhibitory regulation, law, or official act may have on those who will not complain because of the chilling effect that even that action might have on their otherwise absolute right to do so. Of course, whether a given regulation, law or official act will have a chilling effect on the First Amendment rights of an individual probably cannot be proved in any objective, measurable manner in any given case. Accordingly, I believe that the constitutional doctrine requires that we consider any burden placed upon First Amendment rights that might reasonably be expected to interfere or to prevent their exercise as constituting an impermissible infringement on those rights. See Dombrowski v. Pfister, And Lamont v. Postmaster General, supra.

It is apparent, therefore, that where First Amendment rights are involved, mere judicial recognition of the legitimacy of govermental goals in controlling unprotected and illegal conduct cannot be sufficient to support any given regulation, law or official act. Nor should it be the task of the judiciary to balance governmental need against First Amendment rights when the regulation, law or official act goes beyond areas reasonably necessary to reach the permissible governmental goal, and thereby inhibits the rights of persons who otherwise would not be affected by more narrow efforts on the part of the government to control unlawful conduct. See United States v. Robel, 389 U. S. 258, 266, 88 S. Ct. 419, 19 L. Ed. 2d 508 (1967). Robel involved a federal statute making it a crime for communists to work in designated defense plants, once they had knowledge that they were members of an organization designated as communistic by the Subversive Activities Control Board. In holding the statute unconstitutional, the court recognized that the purpose of the statute involved a legitimate governmental interest in protecting against sabotage in defense facilities; nevertheless, the court said:

“* * * It is not our function to examine the validity of that congressional judgment. Neither is it our function to determine whether an industrial security screening program exhausts the possible alternatives to the statute under review. We are concerned solely with determining whether the statute before us has exceeded the bounds imposed by the Constitution when First Amendment rights are at stake. The task of writing legislation which will stay within those bounds has been committed to Congress. Our decision today simply recognizes that, when legitimate legislative concerns are expressed in a statute which imposes a substantial burden on protected First Amendment activities, Congress must achieve its goal by means which have a ‘less drastic’ impact on the continued vitality of First Amendment freedoms. * * * The Constitution and the basic position of First Amendment rights in our democratic fabric demand nothing less.” (At pp. 267-268, 88 S. Ct. at 425)

In Robel the court refused to balance the obviously legitimate governmental interest against First Amendment rights. Instead, it confined its analysis to whether Congress had adopted constitutional means in achieving its concededly legitimate legislative goal. Consequently, the court held only that the congressional power and individual rights be accommodated by legislation drawn more narrowly to avoid the conflict. 389 U. S., at p. 268, 88 S. Ct. 419.

The related constitutional concepts of vagueness and over-breadth have been established in many decisions of the United States Supreme Court. Pertinent citations, in addition to Robel, include Schneider v. Smith, 390 U. S. 17, 88 S. Ct. 682, 19 L. Ed. 2d 799 (1968); Keyishian v. Board of Regents of New York, 385 U. S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967); Elfbrandt v. Russell, 384 U. S. 11, 86 S. Ct. 1238, 16 L. Ed. 2d 321 (1966); Lamont v. Postmaster General, and Dombrowski v. Pfister, supra. Consideration should also be given to the decisions of the three-judge panels in Straut v. Calissi, supra, and Heilberg v. Fixa, 236 F. Supp. 405 (N. D. Cal. 1964).

I find that the directive in question, and Forms 420 and 421 as used therewith, are violative of the First Amendment of the United States Constitution in that they overreach in their attempt to achieve what is probably a legitimate governmental goal. At the risk of oversimplification, it is not too difficult to imagine the reluctance of an individual to participate in any kind of protected conduct which seeks publicly to express a particular or unpopular political or social view because of the fact that by doing so he might now have a record, or because his wife, his family or his employer might also be included in the data bank created by the State through the forms in question. While it might be argued that the directive, and the forms accompanying it, relate only to mass type action conduct, and not to anyone who expresses a radical, political or social opinion — or that the directive and its forms are not concerned with the content of expression, but rather with the preservation of public order and, therefore, only an indirect infringement of speech — such arguments are refuted by the all encompassing nature of the content of the two forms in question. The Security Summary Report (Form 421) in not restricted to something that a law enforcement officer would normally consider an improper incident. The form is related to people and not to activities, and the probability that it will be interpreted by some as requesting investigations of political troublemakers is too apparent. What, for example, is to prevent a report being rendered on one who opposes an existing political regime in a city, county or the state. In addition, insofar as the procedures would inhibit freedom of association, they are clearly impermissible. See NAACP v. Alabama, 357 U. S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958); NAACP v. Button, 371 U. S. 415, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963). The exercise of power which deters individuals from exercising First Amendment rights is denied to government. Freedman v. Maryland, 380 U. S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965); Garrison v. Louisiana, 379 U. S. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964); Lamont v. Postmaster General, supra.

I conclude that plaintiffs’ complaint, that they do not want to be investigated and the subject of central surveillance as potential problems, bears merit. The far-reaching nature of the forms in question, together with the apparent lack of standards for the use thereof, indicates strongly that plaintiffs and others may well be subjected to abuse as a result of this intelligence system. The secret files that would be maintained as a result of this intelligence gathering system are inherently dangerous and by their very existence tend to restrict those who would advocate, within the protected areas, social and political change. Accordingly, I determine that a judgment should be entered declaring that the completion, maintenance and distribution of Forms 420 and 421, under the directive aforementioned, is violative of the First Amendment to the Constitution of the United States. Further, that the Attorney General be directed to issue a communication rescinding the directive aforementioned and the use of Forms 420 and 421 thereunder. Finally, that the Attorney General produce and destroy all forms and files connected therewith, and any other information concerning the activities of plaintiffs and others similarly situated, collected under the directive aforementioned, except where such information will be used to charge persons with specifically defined criminal conduct.

No costs to any party.

APPENDIX A

INSTEUCTIONS POE PEEPAEING THE SECUEITY INCIDENT EEPOET, SP POEM 420, AND CONTINUATION PAGE, SP POEM 420 A.

The numbers on the Security Incident Eeport, SP Porm 420 and continuation page, SP Porm 420A, have been inserted to simplify filling out the report. They correspond with the following numbers and titles:

1. DEPAETMENT OE AGENCY—Enter Department or Agency reporting.

2. CASE NUMBEE—Type Case Number, if applicable.

3. EEPEEENCE NUMBEE—Leave Blank.

4. ANTICIPATED INCIDENT—Check box if reporting an anticipated incident.

5. INCIDENT IN PEOGEESS—If reporting on an incident still in progress, check box.

6. INCIDENT COMPLETED—Check box if reporting an incident that has occurred.

7. DATE OE DATES—Enter date of incident. Use numbers for month, day and year. If incident is anticipated, include expected date. In reporting incident spanning several days, list date started and date ended.

EXAMPLE: 8-4^68 to 8-7-68

8. TIME—If the exact time of the incident is known, type the time. Use “am" and “pm”. In reporting incident covering several hours, list time started and time completed.

EXAMPLE: 10:00 a.m. to 2:00 p.m.

9. TYPE OE INCIDENT—Enter the type of incident.

EXAMPLES: Civil disturbance, riot, rally, protest, demonstration, march, confrontation, etc.

10. LOCATION—Type the location of the incident. If business or residence, the number and name of street, road, lane or avenue. If open area, give approximate distance to a known geopraphic location.

11. REASON OR PURPOSE OE INCIDENT—Enter reason for incident or alleged purpose.

12. NUMBER OE PARTICIPANTS—List estimated or announced number of participants or anticipated participants.

13. ORGANIZATIONS AND/OR GROUPS INVOLVED ■—Give full names and addresses of organizations and/or groups involved. If more space is needed, use Narrative.

14. LEADERS—Enter names, addresses and titles, if any, of leaders of organizations and/or groups involved. Include nicknames, aliases, and other identifying data.

15. EVALUATION OE SOURCE—Evaluate the source by checking the box which most nearly describes the informant:

Completely Reliable

Fairly Reliable

Unreliable

Reliability Unknown

16. EVALUATION OE INFORMATION—Evaluate in- ■ formation by cheeking the box which most nearly describes the contents:

Confirmed by Other Source

Possibly True

Improbable Cannot be Judged

17. NARRATIVE

a. Information previously included elsewhere on this report need not be repeated in the Narrative.

b. If an organization and/or group is involved in the incident reported, include type and how involved.

EXAMPLES OP TYPES: Left wing, Right

wing, Civil Rights, Militant, Nationalistic, Pacifist, Religious, Black Power, Eu Klux Elan, Extremist, etc.

EXAMPLES OP HOW INVOLVED: Sponsor,

co-sponsor, supporter, assembled group, etc.

c. Use this section to furnish additional information.

d. If additional space is required, use Continuation Page, SP Form 420A.

18. REPORTING DATE—Type date this report was prepared using numbers for month, day and year.

19. NAME—Type rank and name in block. (Sign above block)

20. BADGE NUMBER—Type badge number in block, if any.

21. PAGE OP PAGES—May be filled in with ball point pen when report is completed.

APPENDIX B

INSTRUCTIONS FOR PREPARING THE SECURITY SUMMARY REPORT, SP FORM 431.

The numbers on the Security Summary report, SP Form 431, have been inserted to simplify filling out the report. They correspond with the following numbers and titles:

1. DEPARTMENT OR AGENCY—Department or agency reporting

2. CASE NUMBER—Type Case Number, if applicable.

3. REFERENCE NUMBER—Leave blank.

4. NAME—Type full name of person investigated. Include aliases and nicknames.

5. ADDRESS—Enter complete address of person investigated, include phone number.

6. DATE OE BIRTH—Type in date of birth of person investigated. Use numbers for month, day and year.

7. PLACE OE BIRTH—Enter city and state or country of birth. Use accepted abbreviations.

8. MARITAL STATUS—Self-explanatory.

9. SPOUSES EULL NAME—Type full name of spouse?. If wife, include maiden name or names by any other marriages.

10. AGE—Enter age of person at time of investigation. Use numbers.

11. SEX-—-Type sex. Use M for male and E for female.

12. RACE—Enter race of person investigated. Use the following guide:

W for White

N for Negro

I for Indian (American)

C for Chinese

J for Japanese

0 for Other

13. HEIGHT—Use numbers.

EXAMPLE: 5-10

14. WEIGHT—Use numbers.

EXAMPLES: 165

15. HAIE—Self-explanatory.

16. EYES-—-Self-explanatory.

17. COMPLEXION—Self-explanatory.

18. OCCUPATION—Enter current occupation.

19. EMPLOYEE/BUSINESS—Type in name of employer. If self-employed, enter name and nature of business.

20. EMPLOYEE’S ADDEESS—Enter address of employer or business, include phone number.

21. OTHEE DESCEIPTIYE INEOEMATION—List sears, marks, tattoos, physical deformities and/or defects.

22. AEEEST EECOED—Enter yes or no.

23. SBI NUMBEE—Type S.B.I. number, if available.

24. EBI NUMBEE—Type E.B.I. number, if available.

25. OTHEE NUMBEES—Enter your department or agency, other police or out of state bureau numbers, if available.

26. MY EECOED—Enter yes or no.

27. DEIYEES LICENSE NUMBEE—Type full driver license number.

28. STATE—Enter name of state issuing driver license.

29. SOCIAL SECUEITY NUMBEE—Type Social Security Number, if available.

30. ASSOCIATES—Enter names and addresses of associates, include aliases and nicknames. List additional associates in Narrative.

31. YEHICLE INEOEMATION—Enter information on vehicles registered to or used by subject. List additional vehicles in Narrative.

33. EVALUATION OF SOURCE—Evaluate the source by cheeking the box which most nearly describes the informant :

Completely Reliable Fairly Reliable Unreliable

Reliability Unknown

33. EVALUATION OF INFORMATION—Evaluate information by checking the box which most nearly describes the contents:

Confirmed by Other Source Possibly True Improbable Cannot be Judged

34. NARRATIVE

a. Report on the categories listed in Block 33 which are essential to complete information.

b. Information previously included elsewhere on this report need not be repeated in the Narrative.

c. Use this section to furnish additional information.

d. If additional space is required, use Continuation Page, SP Form 430A

35. REPORTING DATE—Type date this report was prepared using number for month, day and year.

36. NAME—Type rank and name in block. (Sign all copies above block.)

37. BADGE NUMBER—Type badge number in block, if any.

38. PAGE OF PAGES—May be filled in with ball point pen when report is completed.


source: Caselaw Access Project

author: Fritz, J. S. C.

license: Public Domain

text:
    IN THE MATTER OF THE PETITION OF WALTER C. KEOGH-DWYER, CANDIDATE FOR GENERAL ASSEMBLY OF THE FIFTEENTH DISTRICT.
    Superior Court of New Jersey Law Division
    Decided August 6, 1969.

      Mr. Walter 0. Keogh-Dwyer pro se.

      Mr. Wesley L. Lance, attorney for respondent Walter E. Eoran.

      Mr. Emanuel A. Honiq, attorney for respondent Robert E. Littell.
   Fritz, J. S. C.

In the Republican primary election of June 3, 1969 Douglas Gimson, Robert Littell and Walter 0. KeoghDwyer each sought one of the two Republican nominations for member of the General Assembly from the Fifteenth Assembly District. Each appeared on the primary ballot be virtue of regular, proper and timely petitions filed on or before the fortieth day next preceding the day of the primary election, pursuant to N. J. S. A. 19:23-14. The Fifteenth Assembly District is constituted by the counties of Hunterdon, Sussex and Warren, and its two assemblymen are elected at large from the district.

Gimson, whose residence was in Hunterdon County, and Littell, whose residence is in Sussex County, the incumbent assemblymen, were bracketed pursuant to N. J. S. A. 19 :14-12. Gimson polled 11,477 votes, Littell 11,266, and KeoghDwyer 4,870. The latter is a Sussex County resident.

The petition herein was filed by Keogh-Dwyer, presumably under the warrant of N. J. S. A. 19:29-l(b). The petition asserts, as is the fact, that Gimson died on May 15, 1969, 19 days before the primary election. The petitioner seeks a declaration of nullity as to Gimson’s nomination, and a determination that Keogh-Dwyer is a “lawful nominee.”

Following the election the Republican State Committee on June 30, 1969 filed with the Secretary of State, ostensibly pursuant to N. J. S. A. 19:13-20, a statement of selection appointing Republican Walter E. Foran to fill the vacancy in the nomination for the general election produced by virtue of Gimson’s death.

The foregoing facts are the subject of no significant dispute.

While statutory regulation may make the fact irrelevant (see N. J. S. A. 19 :23—12), it does not appear that any effort was made by anyone between the time of Gimson’s death and the primary election to remove his name from the ballot or to replace it with the name of any other candidate. Additionally, it is likely that a large portion of the electorate was well aware of Gimson’s death prior to the primary, and it is more probable than not that many, if not most, of those casting a vote for him did it fully cognizant of the fact he was dead. Gimson was an incumbent assemblyman; it can be reasonably inferred he was politically active in his district. Beyond this, it is evident from the proof that letters were addressed to many of the electorate in Hunterdon and Sussex Counties, at least, advising the voters of Gimson’s death and urging that they vote for him, thereby creating a vacancy which might be filled by party committee selection of a Hunterdon County resident.

Succinctly stated, the novel question thus presented is what situation results when a candidate for party nomination dies prior to the primary election but at a time too late to substitute another in his place, and such candidate polls enough votes to nominate him for the office. Stated in other terms, the inquiry is whether in such circumstances a vacancy results or whether the purported nomination is null and void. This distinction between a vacancy and a void nomination is significant because the Legislature has provided clear, certain and different remedies in each of these cases. If a vacancy exists, a party committee certificate shall fill it. N. J. S. A. 19:13-20. If the nomination is void, the candidate receiving the next highest number of votes shall succeed to the nomination. N. J. S. A. 19:3-10. The provisions of N. J. S. A. 19:3-25, and especially the first paragraph thereof declaring an office to be vacant if a nomination or election has been declared null and void, do not intrude upon this rationale, or else there would be an insoluble conflict between N. J. S. A. 19 :3—10 and 19 :13-20. It is to be noted that the latter statute speaks of a “vacancy, however created.”

Determinations of the issue in other jurisdictions suggest a collateral inquiry: what is the effect of votes knowingly cast for a dead candidate, with respect to the result of the election as regards other candidates? See Annotation, 133 A. L. B. 319.

The answer must be derived from intendment of the Legislature as expressed in the election statutes, limited only by constitutional considerations. Lynch v. Borough of Edgewater, 8 N. J. 279 (1951); Abrams v. Dept. of Civil Service of N. J., 70 N. J. Super. 559 (App. Div. 1961). As is said in Sharrock v. Borough of Keansburg, 15 N. J. Super. 11 (App. Div. 1951) :

The processes of public elections in this country are not of common law origin. Except for the express requirements of the constitutional security they are the creatures of statutory law. Therefore the courts refrain from an indulgence in any judicial action that refashions legislation regulating and facilitating the conduct of elections and which is calculated to secure the right of suffrage and the free expression of the choice of the voter, (at p. 16)

Guidelines for this search are found in the catechism of statutory construction set forth in Fiscella v. Nullon, 22 N. J. Super. 367 (App. Div. 1952) :

“* * * In considering the legislative intendment, the statutory words are to be given their common usage. Ford Motor Co. v. N. J. Dept. of Labor and Industry, 5 N. J. 494, 503 (1950). And, if the legislative intendment is clear and unambiguous, the court will not * * indulge in a presumption, arising from extrinsic evidence, that the Legislature intended something other than what it actually expressed.’ Bass v. Allen Home Improvement Co., 8 N. J. 219 (1951). ‘A construction that will render any part of a statute inoperative, superfluous or meaningless, is to be avoided. 2 Sutherland Statutory Construction (3d ed.), sec. 4705, p. 339.’ Hoffman v. Hock, 8 N. J. 397, 406, 407 (1952). In the construction of a statute, it must be so construed as a whole with reference to the system of which it is a part. Conflicting provisions ought to be reconciled in accord with the general intent. Maritime Petroleum Corp. v. Jersey City, 1 N. J. 287, 298 (1949).”

Applying these principles to the task at hand, legislative intent is clear in one respect beyond any need for construction: interrelated, integrated and precise statutes demonstrate that, with a single exception not applicable to the General Assembly, after 34 days prior to any election the ballot is immutable. N. J. S. A. 19 :13-19, 19:13-20, 19 :13-21, 19:23-12, 19:23-14 (note three-day exception in certain events and in certain offices, specifically excluding the General Assembly, per N. J. S. A. 19:23-13), and 19:27-11. Deletions, additions and substitutions are not possible.

It is also of some moment that the death of a candidate or nominee is considered in specific terms only in three statutes. N. J. S. A. 19 :23-12 provides for the certification of a substitute candidate by a committee on vacancies nominated by the signers of the petition naming the original, and dead or resigned, candidate. This statute applies only to certain offices, including the General Assembly. A correlative statute, N. J. S. A. 19 :23-13, is applicable to offices other than those included in N. J. S. A. 19:23-12; consequently, it excludes the General Assembly, and provides for a new petition. Even here the time for the new petition is limited to cases of death or declination occurring within three days of the last day for filing the original petition. N. J. S. A. 19:13-18, appearing in an article concerning vacancies, deals with death of nominees.

Nowhere do the statutes deal in specific terms with procedure in the event of the death of a candidate between the last day on which his name can be put on or taken ofi a ballot and the day of the election.

Accordingly, the legislative intent must be derived from the election statutes reasonably to be considered in pari materia. Pritel v. Burris, 94 N. J. Super. 485, 490 (App. Div. 1967). But it must be from those statutes, and not from a refashioning judicial action. Sharrock v. Borough of Keansburg, supra.

Petitioner here insists that in such a situation the expression of the will of the electorate in nominating a dead man must be treated as a nullity. He concedes that no particular statute says so, but argues, as a matter of rationality, that otherwise the nomination is of one not in being, not capable of legal residence and, as a matter of fact, even disqualified to vote. He urges that the incapbility of such a nominee to comply with such pre- and post-election requirements as campaign fund statements (N. J. S. A. 19:44—1 and 19:44-2) is a demonstration of legislative intent that the candidate must be alive at the time of the election. In this latter regard we note in passing that the statutes dealing with campaign fund reports do not require a report by the candidate but permit (and require) reports by the campaign manager.

The argument is not without at least superficial persuasiveness. But while reason may be a comely handmaiden of intelligent legislation, other considerations may not properly be ignored.

The Legislature has chosen to deal, in a separate article, with circumstances which shall cause the results of an election to be null and void. N. J. S. A. 19 :3—7 et seq. It has immediately thereafter declared the effects and sanctions in such event. N. J. S. A. 19 :3-10 et seq. Having thus considered, memorialized and penalized certain conditions throught to be sufficiently culpable to warrant a declaration of nullity, the Legislature has, in our view, expressed an intent thus to limit those occurrences sufficient to nullify an election. While we recognize that such an invocation of the maxim expressio unius est exclusio alterius is, “[A]t best * * * only an aid towards construction, always to be used with ‘great caution.’ Gangemi v. Berry, 25 N. J. 1, 11 (1957),” Esso Standard Oil Co. v. Holderman, 75 N. J. Super. 455, 471 (App. Div. 1962), affirmed 39 N. J. 355 (1963), we believe its aid here, not to reach an end or achieve a result but to ascertain intent, is entirely appropriate. Support in this direction is to be found from an examination of N. J. S. A. 19 :3-9, where even conduct forbidden under certain circumstances is to be forgiven under others. It is apparent that the Legislature recognized the harsh result in the voiding of an election and intended it to eventuate only in the case of an “offense” proscribed and not justified.

We conclude, then, that when a candidate dies after the time limited for replacing his name on the primary ballot, but before the election, and that candidate polls sufficient votes for nomination, his nomination is not null and void, but rather creates a vacancy. This being so, it follows that such vacancy is to be filled in the manner prescribed by N. J. S. A. 19 :13-20, as was here done.

This conclusion is consistent with the majority rule from other jurisdictions. As set forth in Annotation, “Elections— Dead or Disqualified Candidate,” 133 A. L. R. 319:

“The general rule is that votes east for a deceased, disqualified, or ineligible person, although ineffective to elect such person to office, are not to be treated as void or thrown away, but are to be counted in determining the result of the election as regards the other candidates.” (at p. 320)

This majority rule has found acceptance in New Jersey in analogous cases. McCarthy v. Reichenstein, 50 N. J. Super. 501 (App. Div. 1958) ; Haack v. Ranieri, 83 N. J. Super. 526 (Law Div. 1964).

We believe the rule to be sound. A simple hypothesis will demonstrate the catastrophic potentialities of a contrary holding. Suppose, for instance, that an incumbent was so highly regarded that no one chose to run in opposition except some ne’er-do-well incompetent. Should the rule be otherwise, and should death overtake the incumbent within 34 days of the election, the mere accident of death, bearing no relation to the will of the majority or the weal of the State, would serve to elect one not wanted and not qualified to serve. We cannot conceive that the Legislature intended the possibility of such result.

Some jurisdictions which have refused to adopt the majority rule have done so, in part at least, on the theory that properly a vote is a vote for the candidate and not a vote against another. See, for instance, State ex rel. Wolff v. Geurkind, 111 Mont. 417, 109 P. 2d 1094, 133 A. L. R. 304 (Sup. Ct. 1941), where it is said,

“* * * Casting a ballot at such an election is an affirmative act, not a negative one. You vote for some person, and though your great interest may be to defeat some candidate, that purpose can be accomplished only by voting for some person in opposition to the one you may want to defeat.” (at 109 P. 2d 1098)

Regardless oí the semantics of constitutions assuring the electorate the right to vote for some one, our statutes demonstrate a legislative intendment that defeat, in a primary at least, is something in addition to not winning, and that candidates whom voters do not want to nominate must respond to this expressed will of the electorate by shouldering certain disabilities. See N. J. S. A. 19:13-4, which prescribes the form and contents of a petition for general election, and which declares that “No such petition shall undertake to nominate any candidate who has accepted the nomination for the primary for such position.” Or, as pointed out in Sadloch v. Allan, 25 N. J. 118 (1957), compare the mutually exclusive statutory paths whereby a candidate for office may choose to run for office by party nomination or by petition for general election, but not both. We adhere to the firm conviction that our election statutes invest the electorate at a primary election with the privilege and the obligation not only of nominating a candidate they want to represent the party in the general election but also of rejecting a candidate they do not want.

Even were this theory of the negative vote not valid, the result, in our view, should be the same. It can as easily be said that votes for a dead man are affirmative votes for the then unknown choice of the appropriate informed party committee under N. J. S. A. 19 :13-20, in preference to a live candidate named on the ballot. They are, in effect, votes to create a vacancy in preference to voting for a named candidate. Accord: Derringe v. Donovan, 308 Pa. 469, 162 A. 439 (Sup. Ct. 1932); In re Primary Election Held in Lackawanna County, 345 Pa. 228, 27 A. 2d 189 (Sup. Ct. 1942). See Shroyer v. Thomas, 368 Pa. 70, 81 A. 2d 435 (Sup. Ct. 1951), cited with approval in McCarthy v. Reichen stein, supra, 50 N. J. Super., at p. 505. In this manner the electorate has a choice, even though it may be on one hand for a candidate then unknown by name. To accept the petitioner's thesis would be to deprive the electorate of any choice in the primary upon the death of a candidate within 34 days of the election.

This by itself serves to rebut any reason for the so-called “English rule” or minority rule, that votes cast for a deceased, disqualified or ineligible person are to be treated as void and thrown away, and are not to be counted in determining the result of the election as regards the other candidates, where they were cast by voters who had knowledge of the death or disqualification. 133 A. L. R. 341. It would seem that the greater the knowledge, the more advised the vote, and the more sound the expression of the popular will. Election laws are to be liberally construed so as to effectuate their purpose and not so as to deprive voters of their franchise or render an election void for technical reasons. Kilmurray v. Gilfert, 10 N. J. 435, 440 (1952).

There shall be a judgment dismissing the petition, and declaring Walter E. Eoran entitled to a certificate of nomination. It is our opinion that in cases such as this one, where the election law is in many respects uncertain and the challenge is made in good faith and intelligently pursued, costs should not be assessed against the contestant-petitioner, but rather be left to the discretion of the court as they are in the event of any result other than dismissal of the petition. However, we regard the direction of N. J. S. A. 19 :29—14 as mandatory, and the judgment shall include costs against the petitioner-contestant.


author: Yancey, J. C. C.

text:
    THE STATE OF NEW JERSEY (SOUTH ORANGE), PLAINTIFF, v. CURT SIEGMEISTER, DEFENDANT.
    Essex County Court Law Division
    Decided July 10, 1969.

      Mr. Benjamin A. Stanziale, Assistant Prosecutor, for the State (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).

      Mr. Norman E. Scull attorney for defendant.
   Yancey, J. C. C.

This is an appeal, pursuant to R. R. 3:10-1 et seq., from a decision of the South Orange Municipal Court, adjudging defendant guilty of having violated N. J. S. A. 39:4-50. N. J. S. A. 39:4-50 provides the following:

“A person who operates a motor vehicle while under the influence of intoxicating liquor or a narcotic or habit producing drug * * * shall be subject, for a first offense, to a fine of not less than two hundred nor more than five hundred dollars, or imprisonment for a term of not less than thirty days nor more than three months, or both, in the discretion of the magistrate, and shall forthwith forfeit his right to operate a motor vehicle over the highways of this State for a period of two years from the date of his conviction. * * *”

The facts of this case arise out of an incident which occurred on October 10, 1968. At the hearing Officer James Russell of the South Orange Police Department testified that on the evening of October 10 he observed defendant’s car parked at a right angle to the curb, with part of the car protruding into traffic. Upon further investigation Officer Bussell observed that defendant’s pupils were dilated and that he staggered as he walked. At police headquarters Officer Bussell further noted that defendant’s speech was slurred and that he exhibited a general lack of physical coordination. However, the officer failed to detect any odor of alcohol emanating from defendant.

Next to testify was Dr. Rupert S. Hughes, who was summoned to police headquarters that same evening. Dr. Hughes testified that he performed a physical and neurological examination of defendant. Among the observations of Dr. Hughes were the following: defendant was noisy and confused, his clothing disheveled, his pupils dilated, he staggered when walking, he was slow to respond to directions, and his face and skin were pale. Based upon this examination Dr. Hughes concluded that the defendant was under the influence of an “intoxicating substance” and “not fit to operate an automobile.” Asked to define the term intoxicating substance, Dr. Hughes stated that this would include drugs as well as alcohol. However, Dr. Hughes did not indicate the substance which had produced defendant’s condition, other than to say that he detected no odor of alcohol on defendant.

Defendant testified that he had consumed no alcohol during the course of the evening. As for drugs, he said that he regularly took a drug known as meprobamate, which his physician prescribed. Defendant stated that he took approximately 600 milligrams of this drug every four hours, and that it had been prescribed as a result of his recent contraction of hepatitis.

Dr. Hughes explained that meprobamate is the chemical name for “Miltown” and “Equanil,” which are tranquilizers. When questioned about the nature of this drug, Dr. Hughes indicated that it was not a narcotic, and that in his experience it could not be considered as a habit-forming drug, although some medical literature referred to such drugs as potentially habit forming.

The burden of proof required to establish the guilt of a defendant in a prosecution under N. J. S. A. 39 :4-50 was concisely stated in State v. Ingram, 67 N. J. Super. 21 (App. Div. 1961) :

“A prosecution under N. J. S. A. 39:4r-50 is a quasi-criminal proceeding. * * * Therefore the State has the burden of establishing the guilt of the defendant beyond a reasonable doubt.” (at p. 37)

At the hearing the thrust of the State’s evidence demonstrated that defendant was under the influence of some intoxicating substance at the time of his arrest. This conclusion is based upon the observations of Officer Russell and Dr. Hughes as to defendant’s physical appearance and reactions.

However, the language of N. J. S. A. 39:4-50 is quite specific in its stipulation of the elements of the offense. The statute requires that the intoxicating substance influencing a defendant’s behavior be either an intoxicating liquor, or a narcotic drug, or a habit-forming drug.

The significance of the failure of the State to prove that defendant was under the influence of a narcotic or habit-forming drug is seen in the testimony of Dr. Hughes. When questioned about the drug meprobamate which defendant admitted taking, Dr. Hughes stated that this drug was not a narcotic and that he did not find it to be habit-forming. Of an even greater salience was Dr. Hughes’ affirmative response to the following question: “Are there any drugs outside of narcotics or habit-forming drugs which could produce symptoms we saw in this gentleman that night?”

The testimony of Dr. Hughes can only lead to the conclusion that there is a category of drugs which are neither narcotic nor habit-forming. Therefore, all drugs cannot be subsumed under the statutory language of N. J. S. A. 39 :4-50. Since all drugs are not included in the statute, the State cannot merely show that a defendant is under the influence of some drug. Eather, the State must demonstrate that the drug used by defendant is a narcotic or habit-forming drug. Having failed to prove all elements of the offense, the State has not carried its burden of proof and the conviction of defendant is reversed.

The State argues that the proof that defendant was under the influence of some drug is sufficient to find guilt. As a basis for this assertion the State relies upon the case of People v. Fair, 254 Cal. App. 2d 890, 62 Cal. Rptr. 632 (Ct. App. 1967), in which a California court ruled that an automobile operator is intoxicated when under the influence of a non-narcotic drug as well as a narcotic drug or alcohol.

However, the wording of the California statute in Fair was much less specific than N. J. S. A. 39 :4-50. Section 367(d) of the California Penal Code provides:

“Any person operating or driving an automobile, motorcycle, or other motor vehicle who becomes, or is intoxicated while so engaged in operating or driving such automobile * * * shall be guilty of a misdemeanor.”

The court in Fair had a much greater leeway in interpreting the meaning of the word “intoxicated” to include a nonnarcotic drug as well as narcotic drugs. Furthermore, the decision in Fair was dictated by the fact that the statute had been enacted in 1911, at a time when the use and knowledge of drugs were less prevalent in the society. On the other hand, the language of N. J. S. A. 39 :4-50 limits the intoxicating substances included within the statute to alcohol, narcotic drugs, and habit-forming drugs.

A further indication that not all drugs are included in N. J. S. A. 39:4r-50 is the fact that other New Jersey statutes deal with such drugs. For example, the term “narcotic” is defined in N. J. S. A. 24:18-2. As for nonnarcotic drugs, they are covered in such statutes as N. J. S. 2A: 170—77.8, which concerns barbiturates and prescription drugs. Since the entire panoply of drugs is covered in various statutes, the New Jersey Legislature was evidently cognizant of the existence of such drugs and would have worded N. J. S. A. 39:4-50 with a sufficient specificity to include all such drugs, if that were its intention.

It is not an unknown concept for the courts to require that the State prove that a drug used by a defendant is within the statutory categories. Thus, in State v. Campisi 23 N. J. 513 (1957), the court held that in a prosecution under N. J. S. 2A :170-8, it was insufficient to simply demonstrate that defendant had used any narcotic drug. Eather, the State had to demonstrate that defendant had used a narcotic drug as defined in N. J. S. A. 24:18-2. By the same token, in order to prove guilt under N. J. S. A. 39 :4-50, the State could not just show that the defendant was under the influence of any drug. Instead, the State must prove that the drug influencing the behavior of the defendant was a narcotic or a habit-forming drug.

Eor the above reasons, the defendant is found to be not guilty.


author: Polow, J. J. & D. E. C.

text:
    STATE OF NEW JERSEY IN THE INTEREST OF H. C.
    Juvenile and Domestic Relations Court Morris County
    June 17, 1969.

      Mr. Charles M. Egan, Jr., Morris County Proscutor, for the State.

      Mr. Edward F. Broderick, Jr., for the juvenile.

      Mrs. Marcia B. Bichman, Deputy Public Defender (Mr. Stanley C. Van Ness, Public Defender, attorney), amicus curiae.

   Polow, J. J. & D. E. C.

On November 29, 1968 the bodies of two young girls, six and seven years of age, were found lying in the woods behind the homes on Chestnut Terrace in Eockaway Township. Both had been severely beaten with blunt objects which had crushed their skulls. There were knife wounds in the body of one. The next day, H. C., a 15-year-old juvenile was apprehended and charged with delinquency for the killing of the two girls.

The factual testimony taken at the original hearing on February 19, 1969 makes it clear beyond question that H. C. did in fact strike the blows which resulted in the girls’ deaths. The proofs included State Police laboratory analyses of blood samples from the accused boy’s clothing and from the girls, and the statement of the juvenile to the police (taken with consent of his father under circumstances assuring voluntariness and truthfulness). The juvenile admitted striking the blows and described the circumstances in his statement. The circumstances were related by the juvenile in greater detail to defense psychiatrists, who included those details in their testimony. After committing the acts the boy had left the girls lying where they had fallen in the woods, went home, spoke to his mother in a normal manner, removed his blood-stained clothing, ate with the family, watched T-V and went to bed. His parents noted nothing unusual.

Since the factual evidence was substantially uncontested, most of the hearing consisted of testimony by three psychiatrists, one produced by the State and two by the defense. All are preeminent in their field and their testimony is substantially consistent.

Dr. Henry A. Davidson, called by the prosecutor, had examined the boy at the Morris County Youth Center. The examination was in the form of an interview for about an hour and a quarter. There was no discussion concerning the offense charged since the boy indicated he had been instructed not to say anything about it. In other respects, the boy was cooperative.

Dr. Davidson concluded that H. C. is a schizophrenic. He described the juvenile as “curiously apathetic considering the predicament he knew he was in.” With no plans for the future and no hobbies he seemed to Dr. Davidson to be alienated from others his age and to display a curious lack of emotional interest in his predicament. He also displayed a feeling that he has enemies and that there are unfriendly forces around him. Dr. Davidson noted no hallucinations but described the general pattern as that of early schizophrenia.

With regard to the ability to know and understand fully the nature and consequences of his actions, Dr. Davidson concluded that the boy had such ability in the “simple rational sense” as distinguished from the capacity to “grasp, appraise, to evaluate, to appreciate.” With regard to the latter, Dr. Davidson found H. C.’s ability to control his actions, to prevent acting upon impulse and to appreciate consequences, to be impaired.

During cross-examination Dr. Davidson testified that of five categories of mental disease, including psychosis, psychoneurosis, behavioral disorder, psychosomatic disorder and mental retardation, psychosis is furthest from the center. He also classified schizophrenia as a psychosis.

Drs. Irving Markowitz and Alvin Friedland testified for the defense. They had examined the boy together on December 18, 1968 at the Morris County Youth Center. Both concluded that H. C. suffered from schizophrenia.

Dr. Markowitz testified that the boy was cooperative during the examination but extermely withdrawn, displaying an “almost pathological absence of any awareness of what we may do for him or do with him.” However, he responded to questions freely and discussed the killings. He explained that after going into the woods to cool off by swinging on vines he was interrupted by the two young girls. According to Dr. Markowitz, H. C. reacted as if the girls were the kind of enemies he saw around him in his daily life. He once had beaten up a young boy and as a result of this, according to H. C., friends of the boy constantly picked on him and called him obscene names. He dwelt on this and became preoccupied with it. He described noises in his head and said he heard voices which he associated with his enemies. These voices to some extent compelled him to hit these two young girls.

Dr. Markowitz concluded that II. C. has many of the classic symptoms of schizophrenia. He felt that the juvenile would fit the category of paranoid schizophrenia because of his suspiciousness, his constant alertness to injury, the wariness with which he moves about and his constant preoccupation with avoiding ridicule and with staying away from possible enemies. However, since he considers paranoid schizophrenia generally as an adult classification, Dr. Markowitz stated that H. C. would more properly fall within the sociopathic schizophrenia classification. He gave the view that H. G. suffered from chronic schizophrenia, a condition already of some duration and likely to continue.

Dr. Markowitz did find evidence of hallucinations in the juvenile’s mention of noises in his head and of hearing the voices of his enemies. According to this psychiatrist, H. C. is not capable of trying to fabricate this information, for he seemed not only unconcerned about self-incrimination but in fact pathologically unconcerned.

In Dr. Markowitz’s opinion, H. C. was not capable either of differentiating right from wrong or of knowing the nature and quality of his acts. He stated that the prognosis is poor and that the likelihood of bringing H. C. back to reality is remote. On cross-examination, the doctor indicated that the boy does understand the proceedings and the nature of the charge, although not the enormity of it. He also noted that very few institutions exist which would treat a youngster of this kind.

Dr. Eriedland, whose practice in psychiatry primarily deals with children and adolescents, concluded that the juvenile had impaired concepts of himself in relationship with others. He recognized some intellectual memory disturbances, secondary psychopathological memory disturbances and signs of a perceptual disorder involving auditory hallucinations. The boy was apathetic, flat, tense and would occasionally shudder, the last indicating some nervous system disfunctions.

Dr. Friedland recalled how the boy described the afternoon of the killings. At three o’clock he went into the woods to check his vines. He used the vines to swing on in order to cool himself off because he came home overheated. He carried a knife to cut the vines and he would tie them up where they were safe from other children. On this particular day some vines had been untied and hung down. He was annoyed that someone had tampered with them when he saw the girls. He thought they were laughing at him. He was always concerned about people laughing at him. Ho also felt that the girls were calling him obscene names. He became very upset, picked up a rock and hit the girls. He did not demonstrate remorse at any time during the interview.

Dr. Priedland’s specific diagnosis was adolescent schizophrenia, paranoid type. To the basic inquiry concerning whether H. C. was capable of knowing right from wrong, the doctor responded that under stress the boy lost his ability to regulate and control his instinctive drives and to handle his anxieties. He gave his prognosis as poor.

The prosecutor and defense counsel agreed to an inpatient diagnostic evaluation of the boy at Menlo Park prior to a decision on adjudication. Accordingly, the boy was committed for a period not to exceed 90 days for this purpose, and the hearing adjourned until after completion of the evalution. Counsel were instructed to file briefs on the legal questions involved in the case and the public defender was invited to appear amicus curiae. Menlo Park’s findings, made available to both sides, are not inconsistent with the testimony of the throe psychiatrists. The “Diagnostic Synthesis” and “Eecommendation” in the report from Menlo contain the following statements of particular significance to this court:

“DIAGNOSTIC SYNTHESIS:
It is quite obvious that the alleged murders were committed under the influence of voices in a state of dissociation and unrealistic thinking * * *.
* * * Tile boy’s schizophrenia is definite and he should be considered psychotic and in need of psychiatric attention.” “RECOMMENDATION:
In essence, he belongs in a mental hospital, but since their resources of treatment are limited and patients are at times discharged prematurely, correctional placement seems to be the only alternative. The staff recommends the Youth Reception and Correction Center, Yardville.”

The basic question before the court concerns the effect of the psychiatric testimony and the Menlo evaluation upon the adjudicatory phase of the proceeding in the first instance, and upon the dispositionary phase if there is an adjudication of delinquency.

Counsel for the defense urges that the juvenile now before the court was laboring under such a defect of reason from a disease of the mind as not to know the nature and quality of the act he was doing and therefore was insane under the M’Naghten rule. He further contends that insanity is a defense to a charge of delinquency, a contention with which both the prosecutor and the public defender agree.

I

Although insanity is a term applied with different meanings for different purposes, it has achieved a specific definition as a defense to prosecution for commission of a crime. Tor that purpose it must be proved that the accused, at the time of committing the act, was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, he did not know what he was doing was wrong. State v. Lucas, 30 N. J. 37 (1959); Aponte v. State, 30 N. J. 441, 450 (1959). This rule is familiarly known as the M’Naghten rule, first adopted in New Jersey in 1846 in State v. Spencer, 21 N. J. L. 196 (O. & T. 1846), and reiterated periodically thereafter on numerous occasions. See State v. Lucas, supra, 30 N. J., at p. 68.

The psychiatric evidence lends strong support to the defense contention that the requirements of the M’Naghten rule have been met. Though the prosecutor argues to the contrary, I am satisified that such evidence in the trial of an adult charged with an indictable offense would support the factual conclusion that the accused, at the time of the act, suffered from such a disease of the mind as would be a complete defense to the adult criminal charge under M’Naghten .

11

The issue, then, is whether and to what extent the defense of insanity under the M’Naghten rule applies in the juvenile court. I find that it does not bar an adjudication of delinquency. (On the other hand, I also find that such insanity does bar the imposition of penal sanctions and I so hold for the reasons stated in III below.)

There is no reported decision in New Jersey which deals with the question. As defense counsel points out, however, the decision of the United States Supreme Court in In re Gault, 387 U. S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), does require that constitutional safeguards of a criminal trial be applied to juvenile court proceedings in a matter of this seriousness. In this connection, New Jersey has held, since Gault, that the criminal court rules concerning suppression of evidence apply in a juvenile proceeding. State v. Lowry, 95 N. J. Super. 307 (Law Div. 1967) ; State in the Interest of L. B., 99 N. J. Super. 589 (Juv. & D. R. Ct. 1968). Our Supreme Court, even prior to Gault, had set aside convictions in a juvenile homicide case which were based upon confessions obtained under circumstances not measuring up to “the essentials of due process and fair treatment.” State in the Interest of Carlo, 48 N. J. 224 (1966).

Furthermore, a juvenile 16 years of age or older, accused of a criminal type of offense, may not be transferred to criminal court jurisdiction, even where authorized by law, without the benefit of counsel at a special waiver hearing. Kent v. United States, 383 U. S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966); see also State v. Tuddles, 38 N. J. 565 (1962). Even within the juvenile process itself, in any case where the consequence may be commitment to an institution and curtailment of a juvenile’s liberty, the juvenile is entitled to: (1) adequate notice, in advance, of the nature of the charge; (2) the advice of counsel as to both the preparation and presentation of the defense; (3) the privilege against self-incrimination, and (4) the right to confront his accusers. In re Gault, supra. And though we have no direct ruling on the applicability of Miranda to juvenile proceedings, our Supreme Court has held that confessions obtained under circumstances which are unfair or unreasonable or are the product of fear of fatigue should not be used against a juvenile accused. State in the Interest of Carlo, 48 N. J. 224 (1966).

The thrust of recent decisions is toward protection of the juvenile, in areas where penal sanctions may be imposed, in a manner similar to the protection afforded adults in criminal proceedings. The policy basis of those rulings registers concern that espousal of and reliance on the parens patriae doctrine could, in individual situations, result in arbitrary action lacking fundamental fairness through which the power of the State is brought to bear upon an individual with the consequence of incarceration. As I see it, the objective is not to question the philosophy of juvenile jurisdiction or to hamper the rehabilitative and protective action of the juvenile court. Rather, it is to insure that juveniles receive fair treatment and are not handled as second-class citizens, under the guise of social benevolence. Thus, the courts have sought to insure that a juvenile is afforded certain of the procedural safeguards inherent in due process and available to adults, such as counsel, adequate notice and the like. Similarly, the courts have sought to protect a juvenile from state action bearing upon the question of whether an offense has been committed and of whether its detection and proof was fairly accomplished without invasion of individual rights. This area includes matters such as entrapment, coerced confessions, search and seizure, and wire tapping. All of these procedural and substantive matters properly bear upon the adjudicative phase of juvenile proceedings.

The “defense” of insanity does not fall within those areas of constitutional concern over individual rights. It is a special type of defense which concedes that an act has been committed, properly detected and properly established. This is certainly the case here. The accused juvenile, 15 years of age, did perform the physical acts which resulted in the violent deaths of two children. Moreover, the propriety of the methods used in detecting and proving these facts are not questioned.

The defense of insanity, then, as applied in adult proceedings, reflects a social policy that offenders lacking mental capacity in law to commit a criminal act for which penal consequences —■ including death or life imprisonment — could otherwise be imposed, should not be held legally, morally or socially accountable for their acts. The focus is thus not upon the commission of the act itself but upon the penal consequences of it.

The intent, policy and purpose of WNaghtm, as it bears upon the issue posed here, succinctly frames the difference between criminal and juvenile proceedings and emphasizes the purpose and effect of an adjudication in juvenile court. An adjudication of juvenile delinquency is not completely the same as a conviction, a finding of guilt, in criminal proceedings. Both determinations must be arrived at fairly upon proper proof. But conviction on an indictment brings the deterrent and punitive, as well as the rehabilitative aspects of criminal process, into play.

An adjudicication on a juvenile complaint triggers the authority of the juvenile court to utilize the powers it has consistent with the proclaimed protective and rehabilitative interests of the tribunal. After adjudication N. J. 8. 2A :4-37 authorizes the use of broad powers to provide for treatment and rehabilitation of juvenile offenders. Unlike the adult criminal courts, the juvenile court may make use of any public or private facility or institution appropriate and available under the circumstances. This includes private residential school placement, public or private mental hospitals, public and private institutions, and facilities for the training of the mentally retarded and the emotionally and physically handicapped. If anti-social acts are committed by children as a result of emotional disturbances, mental retardation or deficiency, or defect of reason due to mental disease, the court is charged by statute with providing the proper treatment, rehabilitative measures or therapy. This cannot be accomplished without first determining that the jurisdictional basis for judicial intervention exists — that is, that the offense was committed.

The adjudicatory phase, fairly undertaken, is thus the touchstone of the whole juvenile process. Absent adjudication, the court cannot act to exercise its parens palriae role to aid a juvenile offender. The inquiry is and must be, “Was the act committed?” To hold insanity applicable as a defense to adjudication would handcuff the court, ran contrary to the basic theory of juvenile proceedings, and not be in the best interests of the juvenile himself.

Counsel for the juvenile calls attention to the-decision of the Wisconsin Supreme Court upholding insanity as a defense to a charge of juvenile delinquency. In re Winburn, 32 Wis. 2d 152, 145 N. W. 2d 178 (1966). That court reasoned that irrespective of the good intentions of the juvenile court, its procedures “smack” of “crime and punishment”; some juveniles are removed from the community because they may harm fellow citizens, and juveniles fear incarceration and punishment, not rehabilitation. Also^ juvenile delinquency is a term of opprobrium and therefore penal in nature. Presumably, reasons that court, the consequences of juvenile delinquency are serious enough to warrant the same “protection” offered to adult offenders, including the absolute defense of insanity. The fact that the state sought to prove delinquency “in the face of a strong defense of insanity” hardly “squares with the original benevolent, parens patriae, concept of the juvenile law,” according to the court in Wisconsin, which declared Winburn insane and committed him to a state hospital.

I do not find the Winburn rationale applicable to proceedings in this court under the Juvenile Court Act of this State. In my view, if an adjudication of delinquency, even in the face of proof of insanity, could lead to treatment and other rehabilitative measures, the result would, in the opinion of this court, promote the best interests of the juvenile and favorably reflect the fundamental concept of the juvenile court.

Ill

This is not to suggest that an “insanity defense” has no bearing in juvenile proceedings. Indeed, the discussion leads logically to the conclusion that it must impose a limitation upon the dispositionary aspect of juvenile matters. Again, the ruling is simply that insanity is no defense to adjudication. But I also hold that a juvenile who has been adjudicated delinquent based upon an anti-social act committed while insane under the M’Naghten rule cannot be subjected to penal sanctions. Applying the concept of Gault to this situation can lead to no other conclusion. If an adult may avoid penal sanctions — i. e,., incarceration in prison or reformatory because of mental disease — a child with the same affliction cannot be treated more harshly because he is a juvenile. This accords with the purpose and effect of Gault and with the social policy inherent in the original philosophy of the juvenile court movement; it promotes and protects the juvenile’s best interests, and it permits the juvenile court to function as intended. Under such an approach juvenile authorities are in a position to provide for the child not the “worst of both worlds,” as feared by the U. S. Supreme Court in Kent v. United States, 383 U. S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966), but some of the best of both worlds — from the one “the protection accorded adults” in that it a child is legally insane under M’Naghten no penal sanctions may be imposed; at the same time, from the other he may receive “the solicitous care and regenerative treatment postulated for children” in the exercise of the court’s authority to use any available treatment and rehabilitative facilities for a juvenile “offender.”

IY

Turning, then, to the disposition of the instant case, psychiatric testimony, particularly that of the defense psychiatrists, as well as the Menlo Park report, compel the conclusion that a residential treatment facility is essential for H. C.

Dr. Markowitz referred to the need for “a long term continuing psychotherapeutic and residential process.” Dr. Friedland concurred in this need.

This court is often called upon to provide the use of public facilities for care and treatment of juvenile delinquents, and has used and may use in this case such private resources as may be attainable through the use of any available public and private funds. The express provisions of the statute and the general philosphy of Juvenile Court Act in this State impose this as a mandatory obligation upon this court.

I have requested the prosecutor and counsel for the juvenile for assistance in the effort to explore all available public and private residential treatment facilities to which the juvenile may be committed. I have also instructed the Juvenile Division of the Morris County Probation Department to conduct an independent investigation. They will report to the court on any recommendations submitted and on the institutions mentioned by the psychiatrists at the original hearing, as well as the availability of funds for private placement should such a facility be available and appropriate.

The juvenile will be adjudicated delinquent. Pending review of the probation report and the availability of other proper facilities, he will be committed to Greystone Park State Hospital for psychiatric treatment. Jurisdiction is expressly retained, and the juvenile may not be discharged except by order of this court. Periodic reports will he required from the hospital concerning the boy’s condition. The court, on its own motion or upon application of counsel or the boy’s parents, will review the matter and consider any other placement or other disposition if, as and when circumstances may dictate.

       The boy’s ability to participate in the proceedings has not been questioned, and the testimony supports the conclusion that he understands both the charge and the nature of the proceedings at least sufficiently well to permit him to comprehend his position and consult intelligently with counsel in the preparation of his defense. This accords with the test applied by our criminal courts for the ability to stand trial. State v. Coleman, 46 N. J. 16, 40 (1965). Furthermore the ability to stand trial may exist notwithstanding the fact that as here, the boy unquestionably still suffers from such a mental disorder as to require institutionalization, at least for the present and immediate future.
      “It is well recognized that an accused may have a mental disorder but may nevertheless understand his position and be able to assist fully in his own defense * * *” State v. Coleman, supra, 46 N. J., at p. 40.

        Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed 2d 694 (1966).

       In this context, it might be suggested that “capacity,” mental or otherwise, is not an issue in juvenile proceedings because the Legislature has deemed children of the age of 15 or younger “incapable” of committing a crime. State v. Monahan, 15 N. J. 34 (1954; N. J. S. 2A :85-4. From a technical standpoint, the argument would be accurate.. But, in reality, it has but specious appeal and begs the question. The constitutional posture of recent decisions looks beyond declarations to practical and legal effects and consequences. If insanity under M’THaghten could lead to exculpation for an adult but fail to foreclose penal incarceration for a juvenile, a substantial injustice to individual rights and liberty would result.

       This section of the Juvenile Court Act provides the alternatives for disposition. Although an adjudication of delinquency is not expressly mentioned as a prerequisite to the authority provided the court, no other interpretation is acceptable. Any attempt to invoke the power of the court to impose the statutory dispositions enumerated in this section “for proper cause,” short of an adjudication of delinquency, would violate the constitutional guaranty of individual freedom, due process and fundamental fairness. And the words “juvenile offender” in the title of the section must have been intended to apply to adjudicated delinquents.

      . There is no statutory authority in New Jersey for commitment to a mental hospital except under the civil commitment procedure, unless there has been an adjudication of delinquency. N. J. S. 2A: 163-3, which authorizes commitment of an adult acquitted by reason of insanity, applies only to indictable offenses and is not applicable in juvenile causes.

        Winburn is concerned about the “social stigma” an adjudication of delinquency carries with it: “This court can take judicial notice that in common parlance ‘juvenile delinquent’ is a term of opprobrium and it is not society’s accolade bestowed on the successfully rehabilitated.” The Wisconsin juvenile court had dismissed the petition, declared the juvenile “insane” and committed him to the state hospital. We question whether Winburn was in reality less stigmatized by the label “insane” which the court placed upon him then he would have been as a juvenile delinquent.

       Menlo Park’s recommendation of a Yardville commitment because patients are at times discharged prematurely by mental hospitals must be rejected for the reasons stated in III above and because such commitment would, in any event, not be in II. C.’s interests.


author: Confobd, S. J. A. D.

text:
    BOARD OF EXAMINERS OF ELECTRICAL CONTRACTORS, PLAINTIFF-RESPONDENT, v. S. T. PETERSON & CO., INC., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 27, 1969—
    Decided August 19, 1969.

      Before Judges Confobd, Kilkenny and Leonaed.

      Mr. Richard J. Casey argued the cause for appellant.

      Mr. Douglas J. Harper, Deputy Attorney General, argued the cause for respondent (Mr. Arthur J. Sills, Attorney General of New Jersey, attorney; Mr. Elias Abelson, Deputy Attorney General, of counsel).
   The opinion of the court was delivered by

Confobd, S. J. A. D.

Defendant was held liable in the Middlesex County District Court for a statutory penalty for failure to obtain a state business permit required of persons or firms engaged in the business of electrical contracting, pursuant to N. J. S. A. 45 :5A-9 (one of the sections of the Electrical Contractors Licensing Act of 1963).

According to the Statement of Pacts settled by the trial court, to which no objection has been raised, defendant corporation is a general building contractor which in 1966 was engaged to do plant maintenance work, including electrical work, by Shell Chemical Company. Defendant obtains, directly from the union, journeymen electricians to do electrical work of various kinds called for under the plant maintenance agreement. Defendant does no new electrical construction but does do electrical work involving “upkeep and calibration of machines and instruments and installation, replacement, removal and rerouting of electric power lines.” Both “repair and preventive maintenance work on production machines” is performed by defendant’s electricians.

Defendant argues, first, that it is not an electrical contractor within the meaning of the statute, but does not clearly explain why. It says that the electrical work it does is merely “incidental” to the general plant maintenance contract. However, this is irrelevant. If the contract does involve engaging in the business of electrical work, as defined by the act, N. J. S. A. 45:5A-2(d), as here it clearly does, under the trial findings, defendant is subject to the act whether the electrical work is a minor or major part of the contract. Our decision in Sands v. Board of Examiners of Electrical Contractors, 90 N. J. Super. 83 (App. Div. 1966), affirmed 54 N. J. 484 (decided July 17, 1969), does not support defendant’s position.

Next, defendant contends that most of its electrical work is exempted by specific provisions of the act. Eor example, “[mjinor repair work such as the replacement of lamps and fuses,” N. J. S. A. 45:5A-18 (a); “connection of portable electrical appliances to suitable permanently installed receptacles” (18(b)); “[t]he testing, servicing or repair of electrical equipment or apparatus” (18(c)). Clearly, under the trial court’s findings of fact, a good deal of the electrical work done by defendant would be exempt under one or another of the provisions quoted, especially “testing, servicing or repair” of equipment. But not all of it. The trial court findings also include, as noted above, electrical work of a general maintenance character and also “installation, replacement, removal and rerouting of electric power lines.” There is no exemption for these kinds of work, and their performance, insofar as not affirmatively shown by this record to fall within any of the specific statutory exemptions, justifies the conclusion below of comprehension of defendant by the statute and liability for the penalty for failure to secure the required permit.

Defendant also argues for exemption under section 18 (k), which exempts electrical work consisting of:

“[r]epair, manufacturing and maintenance work on premises occupied by a firm or corporation, and installation work on existing buildings occupied by a firm or corporation and performed by a regular employee wbo is a qualified journeymen electrician.”

The argument is that insofar as repair and maintenance work is concerned, the electrician employees need not be employees of the occupier of the premises in order for the exemption to apply, but need be such only in relation to “installation work.” Since, however, some installation work is done here, as noted above (installation of lines), and the electricians are not employees of Shell, the interpretation of (k) advanced by defendant would not save it from penalty. However, we do not accept that interpretation as valid, although the provision is concededly poorly drawn, ambiguous, and superficially supportive of the asserted construction. On the basis of the sense of the provision as a whole and in light of its apparent, intended purpose, we concur with the Supreme Court’s recent characterization of the substantive import of this particular exemption provision, in Independent Electricians and Electrical Contractors’ Ass’n, etc. v. New Jersey Board of Examiners of Electrical Contractors, 54 N. J. 466, at 480 (decided July 17, 1969) as exempting “electrical repair, manufacturing, maintenance and installation on premises occupied by a firm or corporation and performed by a regular employee who is a qualified journeyman electrician” (emphasis ours). We thus conclude that in order for exemption (k) to apply, the working electrician on any of the kinds of work mentioned must be an employee of the occupying firm or corporation.

Eor the foregoing reasons exemption (k) does not aid defendant’s cause.

Finally, defendant argues that it is unconstitutionally discriminated against by the distinction made by exemption (k) if it is not held to come within it. The circumstance of the employees being employed by defendant rather than by Shell is argued to constitute an unreasonable distinction, for exemption purposes, viewed from the standpoint of the safety objective of the legislation. However, the Supreme Court seems to have had this very argument in mind in pronouncing the exemption in question free from constitutional objection in the Independent Electricians and Electrical Contractors’ Ass’n case, cited above (54 N. J., at 481).

Judgment affirmed.

       We note, however, that the Supreme Court apparently had no occasion expressly to pass upon the constructional argument hero advanced by defendant.


author: Per Curiam.

text:
    JAMES FLORIO, BY HIS GUARDIAN AD LITEM ANGELO FLORIO, AND ANGELO FLORIO, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, v. VIRGINIA GALANAKIS AND CLAIRE GALANAKIS, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted June 20, 1969
    Decided August 19, 1969.

      Before Judges Conford, Kilkenny and Leonard.

      Mr. Vincent J. Jennings, attorney for plaintiffs Elorio.

      Messrs. Campbell, Mangini, Foley, Lee & Murphy, attorneys for defendants Galanakis (Mr. Stephen J. Foley, on the brief).

      Messrs. Beussille, Cornwell, Mausner & Carotenuto, attorneys for plaintiff Carotenuto.

      Messrs. Carton, Nary, Witt & Arvanitis, attorneys for defendant Elorio.

      Messrs. Pearlman & Krumholz, attorneys for plaintiff LoBello.
   Per Curiam.

We herewith grant leave to appeal and decide the merits of the substantial issue involved — plaintiff Elorio’s right to appeal an adverse jury verdict — on the motion papers and supplemental briefs, having notified the parties of our intention possibly to do so, and having afforded them ample opportunity to file supplemental briefs on that issue. Cf. R. 2:11—2 (effective September 8, 1969).

James Plorio, Claire Galanakis, Joseph LoBello and Diane Carotenuto, all minors, were occupants of an automobile which went out of control on April 1, 1967, resulting in death to Carotenuto and personal injury to the others. The car was owned by Galanakis’ mother. Plorio and Galanakis were in the front seats, but the identity of the driver was disputed. The others were in the back seats.

Three civil actions were instituted, two in the Superior Court: (a) by Plorio’s guardian against Galanakis, for her negligence, and (b) by Carotenuto’s administrator against Plorio, or, in the alternative, against Galanakis, for negligence and willful misconduct. The third action, in the Monmouth County Court, was brought by LoBello’s guardian against Galanakis for her negligence.

The three actions were ordered consolidated and came on for trial in December 1968. The eases were tried in the first instance on the issue of liability only, the principal dispute being as to who was the driver of the car at the time of the accident. We are told that Plorio and LoBello testified it was Galanakis and that Galanakis testified she could not remember. The trial court’s minutes reflect return of a jury’s verdict on December 19, 1968 in plaintiff Plorio’s action of no cause for action; in plaintiff LoBello’s action of no cause for action; in plaintiff Carotenuto’s action of no cause for action as to defendant Galanakis and of liability as to defendant Plorio. No specific entry of judgment was made on any of the verdicts by either the court clerk or the trial judge. But see R. R. 4:59 (somewhat recast in B. 4:47).

Subsequently motions for new trial and for judgment notwithstanding the verdict were made by Plorio and LoBello but were denied. These do not affect the issue herein decided.

On March 28, 1969 there came on for hearing in the Superior Court, Law Division, a motion by Plorio as plaintiff (he had been represented by insurance counsel as defendant) for the formal entry of judgment on the verdict against him so that he might appeal therefrom. He conceived that this was necessary since there was not yet any judgment of record and, in any event, there had been no final judgment on all issues as to all parties (the issue of damages in the Carotenuto action was not determined by the jury verdict), thereby precluding the subsistence of a final judgment appealable as of right without leave. Petersen v. Falzarano, 6 N. J. 447, 453 (1951); Hudson v. Hudson, 36 N. J. 549, 552-553 (1962).

It appears that at the time the motion was argued there had been agreement on settlement of the Carotenuto action, but a formal stipulation of dismissal of that action (with prejudice) was not signed until May 7, 1969 or entered until May 20, 1969. Thus the damages phase of the consolidated action, as to the Carotenuto claim, was still technically pending when the motion for entry of judgment was argued as well as when the order of denial thereof was signed (April 14, 1969) and filed (April 15, 1969).

The trial court accepted the argument in opposition offered on behalf of Galanakis that the adverse jury verdict on December 19, 1968 constituted an appealable final judgment and that Elorio’s motion for entry of judgment was but a stratagem to extend his time to appeal, already allegedly expired. The motion was denied. There followed the present motion in this court for leave to appeal the order of denial. R. R. 2:2-3 (a).

The trial court’s reasoning was not well-founded. There was no final judgment against Elorio as plaintiff, appealable as of right, on the mere entry of the jury verdict in the minutes. We pass any questions related to the technical absence of entry of judgment by the clerk, pursuant to B. B. 4:59. Even if judgment of no cause of action had been entered on the docket against Elorio as plaintiff, this would not have constituted a final judgment, appealable by him as of right, since there was not a final judgment on all issues and as to all parties, the issue of damages in the Carotenuto action still being open. See the Petersen and Hudson cases, cited above. Although the three actions were originally instituted as separate actions, their consolidation by the court fused them into a single action. R. R. 4:43-1 (e) (substantially continued by R. 4:38-1 (e)); 2 Schnitzer and, Wildstein, New Jersey Rules Service, p. 1506; cf. Ettin v. Ava Truck Leasing, Inc., 53 N. J. 463, 477 (1969). Consequently the general rule as to finality of judgments, for purposes of appeal as of right, was here applicable. Schnitzer & Wildstein, ubi cit.

It is argued on behalf of Galanakis that the rule as just expounded works unsoundly toward the protraction of litigation, and that the policy against piecemeal appeals, underlying the rule, is not pertinent in this setting, all questions as to liability between the parties having been determined by the jury verdict. However, some flexibility in this regard is afforded by R. R. 4:55-2, which permits the trial court in its discretion to render a final determination of one of a number of claims involved in an action appealable forthwith by making an express determination that there is no just reason for delay in entering final judgment in respect thereto. Galanakis did not seek relief against delay in instituting appeal of the jury verdict on the Elorio claim under that rule, as she probably might have. (R. R. 4:55-2 is substantially continued by R. 4:42-2).

Had formal dismissal of the Carotenuto complaint (pursuant to the settlement) been docketed by the time of the action of the trial court under appeal, it would then have been appropriate for the court to have directed formal entry of judgment under R. R. 4:59, so as to have the record unambiguously reflect finality of determination of the consolidated action in respect of all parties and all issues. Since such dismissal is now recorded, sound administration and the interests of justice in this particular case call for entry of such final judgment by the trial court forthwith, whereupon plaintiff Elorio’s right of appeal without need for leave of court will accrue.

Reversed and remanded to the Law Division for entry of final judgment in conformance with this opinion. No costs. Galanakis’ cross-motion to dismiss Elorio’s motion for leave to appeal is denied, without costs.