source: Caselaw Access Project

author: Gtuliano, A. J. S. 0.

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text:
    THE STATE OF NEW JERSEY, PLAINTIFF, v. JOHN WILLIAM SMITH, ET AL., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided June 28, 1968.

      Mr. Andrew F. Zazeali, Jr., Assistant Prosecutor for plaintiff, State of New Jersey (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).

      Mr. Harris David and Mr. Marie Gasarch for defendants (Mr. Oliver Lofton, Director, Newark Legal Services Project, attorney).
   Gtuliano, A. J. S. 0.

This is a consolidated motion to dismiss 98 indictments returned by the 15th and 16th Grand Juries of the September 1966 term sitting during the May 1967 session.

On September 29, 1967 defendant John William Smith filed with the court a motion to dismiss two indictments returned against him by the Essex County grand jury. Each indictment charged him with assault and battery upon a police officer, contrary to the provisions of N. J. 8. 2A :90-4. Thereafter, approximately 94 other defendants filed similar motions to dismiss the indictments returned against them by an Essex County grand jury. All the aforesaid indictments involved defendants arrested during the civil disturbance which occurred in Newark, New Jersey, during the month of July 1967. Since all the motions in question involve common questions of law and fact, this court ordered that this matter be consolidated for purposes of argument, presentation and findings. A stipulation to this effect was signed by all defense attorneys and filed with the court on October 10, 1967.

In order that there would be no delay in the disposition of these indictments, the court ordered at the first hearing that all indictments returned against defendants would proceed to trial. Since the filing of this motion, the indictments returned against defendant John William Smith have been disposed of by trial. A jury returned a verdict of guilty on indictment 2678-66 and were in disagreement on indictment 2679-66. Of the remaining indictments, 71 were dismissed on motion of the Essex County Prosecutor, and most of the defendants in this group were charged with a lesser offense under the Disorderly Persons Act. In addition, 16 defendants were tried, convicted and sentenced, 6 were tried and found not guilty, and 1 failed to appear in court and a bench warrant was issued for his arrest. The remaining indictments have not been disposed of at this time.

This motion presents basically four issues concerning (1) the loyalty oath of grand and petit jurors; (2) the lack of a transcript of the grand jury proceedings; (3) the conduct of the grand jury in deliberating and voting on the indictments in question, and (4) the composition and selection of grand and petit juries. Each issue is discussed in detail under its appropriate heading.

THE OATH OP THE GRAND AND PETIT JURORS

The grand jurors who indicted defendants were required to take an oath pursuant to N. J. S. 2A :73-3. This oath provided in pertinent part as follows:

“* * * you do not believe in, advocate or advise the use of force, or violence, or other unlawful or unconstitutional means, to overthrow or make any change in the government established in the United States or in this State; and that you are not a member of or affiliated with any organization, association, party, group or combination of persons, which so approves, advocates, or advises the use of such means * *

Petit jurors are required to take a similar oath as provided in N. J. 3. 2A :69-l.l

Defendants contend that this oath is violative of the Fifth and Fourteenth Amendments to the United States Constitution because it requires neither specific intent to subvert or active membership in subversive groups. Furthermore, they contend that the requirement of this oath causes an unconstitutional exclusion from jury service of those persons who believe in the unlawful overthrow of our government or persons who are inactive members of a subversive organization. Defendants have submitted other arguments in support of this contention, but this court finds them without merit in law and fact. In particular, defendants contend that the oath denies them the right to be indicted by a grand jury which is’ constituted in accordance with the Fourteenth Amendment to the Constitution of the United States. The "due process” clause does not require the states to adopt the grand jury system. Lem Woon v. State of Oregon, 229 U. S. 586, 33 S. Ct. 783, 57 L. Ed. 1340 (1912). Furthermore, a state may abolish grand juries without violating the Fourteenth Amendment. Hurtado v. People of State of California, 110 U. S. 516, 4 S. Ct. 111, 292, 28 L. Ed. 232 (1883). A fortiori, a state has considerable latitude in the type of grand jury system it may establish.

In addition, defendants contend in their moving papers that the oath created “an effect of instilling in the minds and consciences of the grand jurors * * * a disregard of the Constitution of the United States.” How this “effect” resulted was not explained to the court. Finally, defendants argue that the oath, coupled with the court’s charge to the grand jury and certain alleged inflammatory statements by public officials, prejudiced them. As to this argument defendants failed to show how they were prejudiced and did not support this position with accurate authority. Therefore, these contentions were not considered by the court.

On oral argument of this matter counsel stipulated that no defendant is a member of the class of persons allegedly excluded by the oath, i. e., persons who believe in the unlawful overthrow of our government or persons who are inactive members of a subversive organization. In addition, there was no evidence presented to this court that any member of the grand jury which indicted defendants refused to take the required oath and was thereby excluded from jury service. These facts present the question of whether defendants have standing to challenge the constitutionality of the oaths. Defendants’ position is that they have standing to challenge the oath because of its chilling effect on the First Amendment rights of free speech, press, assembly and belief. Thus, they contend they do not have to show prejudice because the oath results in an illegal discrimination and exclusion.

Under the present state of the law as espoused by the United States Supreme Court, a federal court has “never entertained a defendant’s objection to exclusions from the jury except when he was a member of the excluded class.” Fay v. People of State of New York, 332 U. S. 261, 287, 67 S. Ct. 1613, 1627, 91 L. Ed. 2043 (1947); Rawlins v. State of Georgia, 201 U. S. 638, 26 S. Ct. 560, 50 L. Ed. 899 (1906). The apparent rationale for this rule is that if a defendant is a member of the excluded class, the danger of prejudice is great enough for a court to hold that the exclusion is unconstitutional without a showing of actual prejudice. However, if a defendant is not a member of the excluded group, the danger of prejudice is not great. Therefore, before the court will hold the exclusion unconstitutional as to a defendant, it must find that he was actually prejudiced thereby.

This doctrine of standing has been followed in several states. See State v. Lea, 228 La. 724, 84 So. 2d 169, 170 (Sup. Ct. 1955); People v. White, 43 Cal. 2d 740, 278 P. 2d 9, 17 (Sup. GC. 1954), certiorari denied 350 U. S. 875, 76 S. Ct. 120, 100 L. Ed. 774 (1956); Griffin v. State, 183 Ga. 775, 190 S. E. 2 (Sup. Ct. 1937); Haraway v. State, 203 Ark. 912, 159 S. W. 2d 733 (Sup. Ct. 1942), certiorari denied 317 U. S. 648, 63 S. Ct. 42, 87 L. Ed. 521 (1942); State v. Koritz, 227 N. C. 552, 43 S. E. 2d 77 (Sup Ct. 1947), certiorari denied 332 U. S. 768, 68 S. Ct. 80, 92 L. Ed. 354 (1947); State v. Jones, 5 Terry 372, 44 Del. 372, 57 A. 2d 109, 113 (Del. O. & T. 1947); Commonwealth v. Duca, 312 Pa. 101, 165 A. 825 (Sup. Ct. 1933); State v. Clifton, 247 La. 495, 172 So. 2d 657 (Sup. Ct. 1965). Likewise, this doctrine is the procedural law of Now Jersey. State v. James, 96 N. J. L. 132, 144 (E. & A. 1921). See also State v. Lee, 74 N. J. L. 852 (E. & A. 1905), affirmed 207 U. S. 67, 28 S. Ct. 22, 52 L. Ed. 106 (1907). The James case involved a situation in which women were allegedly excluded from the jury panel by the jury commissioners. The Court of Errors and Appeals held that defendant could not raise the question that the exclusion of women from jury duty violated the Fourteenth Amendment to the United States Constitution because he was not a member of the alleged excluded class. Likewise, in the case at bar defendants cannot raise the question of exclusion because none of them is a member of the excluded class.

On the other hand, defendants contend they need not show actual prejudice by the application of the law or that they are members of the allegedly excluded class, and rely on Thiel v. Southern Pacific Co., 328 U. S. 217, 66 S. Ct. 984, 90 L. Ed. 1181 (1946), and Ballard v. United States, 329 U. S. 187, 67 S. Ct. 261, 91 L. Ed. 181 (1946). In both these decisions the United States Supreme Court acted in the exercise of its power of supervision over the administration of justice in the federal courts. The question of standing in a state court is to be determined by state law. In addition, defendants rely heavily on the case of State v. Madison, 240 Md. 265, 213 A. 2d 880 (1965), wherein the Maryland Supreme Court held that the selection of a grand jury from persons who were required to show their belief in the existence of God was violative of the Federal Constitution. Although the defendant in Madison was not a member of the excluded class, i. e., he was a believer in a Supreme Being, the Maryland court maintained that he still had standing to challenge the aforesaid requirement for jury duty. This court finds that Madison on this procedural point is not binding in the present case and concludes that defendants herein are required to show prejudice before the oaths in question are declared invalid and unconstitutional.

Since defendants have failed to show prejudice and in view of the above-cited eases this court concludes that defendants do not have standing to challenge the constitutionality of N. J. S. 2A :73-3 and N. J. S. 2A :69—1.1.

Assuming, arguendo, that defendants do have standing to challenge those statutes, this court is still constrained to find them constitutional for the following reasons:

Loyalty oaths have long been the subject of litigation. Within the past few years this interest was renewed by the United States Supreme Court regarding loyalty oaths required of teachers. See Keyishian v. Board of Regents of University of State of New York, 385 U. S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967); Whitehill v. Elkins, 389 U. S. 54, 88 S. Ct. 184, 19 L. Ed. 2d 228 (1967); Elfbrandt v. Russell, 384 U. S. 11, 86 S. Ct. 1238, 16 L. Ed. 2d 321 (1966); Baggett v. Bullitt, 377 U. S. 360, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964). Eeyishian dealt with an oath almost identical to the oath required of grand and petit jurors in the case at bar. The United States Supreme Court held that the oath as applied to teachers was unconstitutionally vague and violative of the First Amendment to the United States Constitution. It is apparent that the court gave special consideration to the “sensitivity” of a teacher’s position in the academic community. The court, through Mr. Justice Brennan, said:

“Our nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” (385 U. S., at p. 603, 87 S. Ct., at p. 683)

See also Sweezy v. State of New Hampshire, 354 U. S. 234, 77 S. Ct. 1203, 1 L. Ed. 2d 1311 (1957).

Therefore, this Court must consider whether jurors are also to be given this special consideration. In doing so the court must weigh the State’s interest in having loyal jurors against First Amendment rights.

Juries, in particular grand juries, have always been considered an arm of the court; they perform a quasi-judicial function in our present judicial structure. In re Jeck, 26 N. J. Super. 514 (App. Div. 1953). As provided in R. R. 3 :3-l et seq., it is the specific function of the grand jury to find and return an indictment or presentment in open court to the assignment judge. In so doing the grand jury must accept the law as it is written; otherwise the criminal laws would be virtually unenforceable. Likewise, the petit jury must accept the law as it is charged to them by the trial judge; otherwise their findings would be inconsistent and chaotic. Therefore, in order for the jury system to function, jurors themselves must be loyal to the government and the laws which it promulgates.

When considering the above it becomes apparent that the real interest of the State is in its right to self-preservation. For if the jury fails to function properly and condones criminal acts, anarchy and lawlessness are sure to result and the jury system itself would be destroyed. This court therefore finds that the State’s interest of self-preservation necessitates a limitation on First Amendment freedoms in this particular area of our governmental structure. Limitations on First Amendment Freedoms have been deemed lawful and necessary in similar situations where the State’s interest was declared supreme. See, for example, American Communications Ass’n v. Dowds, 339 U. S. 382, 70 S. Ct. 674, 94 L. Ed. 925 (1950); Konigsberg v. State Bar of California, 366 U. S. 36, 81 S. Ct. 997, 6 L. Ed. 2d 105 (1961); In re Application of Marvin, 97 N. J. Super. 62 (App. Div. 1967). Therefore, if this issue were properly presented, this court would conclude that the oath required of grand and petit jurors is constitutional and not an unreasonable restriction of First Amendment freedoms.

TRANSCRIPT OF THE GRAND JURY PROCEEDINGS

There was no stenographic record made of the grand jury proceedings which resulted in the indictment of defendants. Movants contend that the failure to make a stenographic record or otherwise record these proceedings has deprived defendants of their rights contemplated by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. They are unable to cite law in support of this contention.

The present state of the law in the federal courts is that “There is no constitutional requirement that grand jury proceedings be transcribed.” United States v. Cianchetti, 315 F. 2d 584, 591 (2 Cir. 1963). See also United States v. Hensley, 374 F. 2d 341 (6 Cir. 1967); McCaffrey v. United States, 372 F. 2d 482 (10 Cir. 1967). The attendance of a stenographer at a grand jury proceeding in the federal courts is permissive rather than mandatory. United States v. Borys, 169 F. Supp. 366, 368 (D. Alaska 1959); United States v. Rosen, 259 F. Supp. 942 (S. D. N. Y. 1966).

The law of this State is in accord with the above-cited cases. The presence of a stenographer and the recording of testimony adduced before the grand jury is clearly of a permissive nature. State v. DiModica, 40 N. J. 404, 412 (1963). Although R. R. 3 :3-6 now provides otherwise, this court is compelled to hold that the failure to provide a stenographic record of the grand jury proceedings did not violate any of the constitutional rights of defendants.

THE GRAND JURY PROCEEDINGS

The third major contention of defendants involves alleged misconduct on the part of the 15th and 16th Grand juries and the Court, allegedly resulting in a denial of their rights as guaranteed to them under the Fifth and Fourteenth Amendments to the United States Constitution and N. J. Const. (1947), Art. I, Par. 8, and in violation of N. J. S. 2A :73-3 which sets forth the oath and duties of the grand jurors. More specifically, defendants contend they were denied the right to an indictment by an impartial grand jury because (1) the grand jury was prejudiced against defendants by the adverse publicity surrounding the Newark civil disturbance; (2) the charge by the court to the grand jury was biased against defendants; (3) the grand jury spent insufficient time deliberating on each indictment, and (4) the court failed to inquire of grand jurors regarding the possibility of their being prejudiced against defendants.

There is no doubt that the Newark civil disturbance and the similar outbreaks of lawlessness which occurred throughout the country during the summer of 1967 received nationwide publicity. Likewise, there is no question that certain public officials made statements condemning the numerous criminal activities which occurred spontaneously at that time. Thus, the question presented is whether this publicity so adversely affected the grand juries which indicted defendants that it caused a violation of due process-of law.

In support of this contention that the grand jury was prejudiced against them by the publicity surrounding the Newark disturbances, defendants cite numerous cases regarding a fair trial and free press. These cases are not applicable to the case at bar because they concern themselves with the trial of the case and not the indictment process itself. Furthermore, this line of cases condemns as unconstitutional those situations wherein the trial itself was conducted in a “carnival atmosphere”, thereby creating the probability of prejudice abhorent to due process of law. Sheppard v. Maxwell, 384 U. S. 333, 358, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966). See also Rideau v. State of Louisiana, 373 U. S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963); Turner v. State of Louisiana, 379 U. S. 466, 85 S. Ct. 546, 13 L. Ed. 2d 424 (1965); Estes v. State of Texas, 381 U. S. 532, 85 S. Ct. 1628, 14 L. Ed. 2d 543 (1965).

The proceedings of the grand jury are presumed valid unless proof is submitted to the court which rebuts this, presumption. State v. Graziani, 60 N. J. Super. 1 (App. Div. 1959), affirmed 31 N. J. 538 (1960). In the case at bar there has been no indication to the court that the grand jury proceedings in question were not conducted in the usual solemn manner. Likewise, there has been no evidence presented to the court that any indictment involved herein was the result of bias, prejudice or malice as was condemned in the case of State v. Borg, 9 N. J. Misc. 59 (Sup. Ct. 1931). On the contrary, the news media merely reported the Newark civil disturbances as accurately as possible under the circumstances. The fact of news publicity alone cannot be said to have created such a “probability of prejudice” that the grand jury proceedings should be deemed “inherently lacking in due process.” See Estes v. State of Texas, supra, 381 U. S., at pp. 542-543, 85 S. Ct. 1628. The court therefore finds that defendants were in no way prejudiced by the publicity surrounding the Newark Civil disturbance.

Defendants further contend that the language of the charge by the court to the 15th and 16th grand juries was biased, against defendants. This contention is not supported by any accurate authority. Those portions of the charge claimed objectionable are as follows:

“The Court has requested that you appear before it this morning to be charged and instructed relative to the many killings, serious injuries inflicted upon individuals, the burning and destruction of personal property, the plundering and looting of business establishments and general lawless and riotous conduct by many individuals * * *. There is no doubt that certain guarantees and protections cloak all citizens under the Federal and State Constitutions, but these constitutional rights were never meant to be shields for acts of criminality. They were never intended to be licenses for burning, shooting, looting, plundering and murder. * * *
Certain events have taken place in the City of Newark which demand your immediate attention and consideration. I do not have to remind you of the complete disregard for law and order that has been hovering over this municipality. Facts which have come to the attention of the Court indicate a pattern of lawlessness which cannot be permitted to go unnoticed by those charged with the administration of justice * * *”

It is well established in our system of jurisprudence that the grand jury performs a two-fold function. It acts as a sword so that those who are suspect of wrongdoing may be properly brought to trial, and as a shield to protect the people from arbitrary prosecution. State v. Sibilia, 88 N. J. Super. 546, 550 (Cty. Ct. 1965). In conformance therewith the court charged each grand jury that it was the duty of the grand jury to return an indictment in each instance where the State had presented a prima facie case with “due process as the beacon.” Likewise, the court charged that where the State failed to present a prima facie case it was equally the grand jury’s duty not to indict. The court further charged that

“Xou should without fear or favor, prejudice or symphathy examine the evidence presented to you in each case and determine whether or not it merits your returning an indictment against the accused.”

When this charge is considered in its totality, this court concludes it did not prejudice defendants, for the charge was in no way whatsoever directed as an attack at any individual or class of persons. The charge merely pointed out that certain acts of lawlessness had occurred in Essex County and as a result thereof each grand jury was summoned to investigate the matter and act in accordance with their oaths.

Defendants further contend that the 15th and 16th grand juries spent insufficient time deliberating on each case presented to them before returning an indictment, thereby resulting in a violation of the grand jurors’ oath as set forth in N. J. S. 2A :73-3. This argument is unfounded in fact and law. The 15th grand jury heard cases resulting from the Newark civil disturbances for a period of nine full days. Out of the 386 cases presented to them by the Essex County Prosecutor’s Office, 331 true bills were returned to the assignment judge and 55 no bills were found. The 16th Grand Jury heard similar cases for a period of seven full days. Out of the 267 cases presented to this grand jury, 225 true bills were returned to the assignment judge and 42 no bills were found. In every case where an indictment was returned, one or more witnesses appeared and testified before the grand jxiry. Furthermore, there was sufficient evidence presented to this court to indicate that the grand juries deliberated and voted accordingly on each and every case presented to them. Although cases were presented to those grand juries by the prosecutor’s office with dispatch, there was no evidence in the record to indicate any unlawful practice or procedure. This court therefore concludes that the 15th and 16th grand juries spent sufficient time deliberating and voting on each case presented to them.

After these indictments were returned, many were dismissed by the court on the prosecutor’s motion after an amended or new complaint was filed charging the accused with a lesser offense under the Disorderly Persons Act. This procedure is commonly referred to as “downgrading” an indictment. It is employed by the prosecutor only after he has considered the circumstances of the offense charged, the status of the defendant, and whether the best interests of justice will be served by charging the accused with the lesser offense. If the facts warrant, the charge is downgraded. In the past this procedure has proved an effective device for disposing of criminal cases as well as protecting the accused and society. However, it is defendants’ contention that the use of this procedure in the instant case was an indicia of misconduct on the part of the 15th and 16th grand juries. This court does not agree with this argument, for the sole question presented in downgrading an offense is whether, after considering the facts of the particular case, the best interests of justice will be served by charging the accused with a lesser offense. Downgrading an offense does not depend upon the weight of the evidence. Therefore, the mere fact that several cases were “downgraded” does not permit this court to infer that in those cases there was insufficient evidence before a grand jury to indict the accused.

Under the present state of the law, grand jury proceedings are generally considered secret. State v. DiModica, 40 N. J. 404 (1963). The reasons for grand jury secrecy were aptly stated in the case of United States v. Rose, 215 F. 2d 617, 628-629 (3 Cir. 1954):

“(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.”
(Quoted in State v. DiModica, supra, 40 N. J., at pp. 409-410, and State v. Clement, 40 N. J. 139-143 (1963))

This veil of secrecy may be lifted when the Court is satisfied under the circumstances of a particular case that the policy of secrecy should be subordinate to the search for the whole truth. State v. Farmer, 48 N. J. 145, 152 (1966).

Since defendants charged the grand juries with serious misconduct, the Court permitted defendants to inquire as to whether there was some legal evidence before each grand jury to support a return of the indictments in question and whether each grand jury spent sufficient time deliberating on each case. This is permissible under the law. See State v. Donovan, 129 N. J. L. 478, 483 (Sup. Ct. 1943). However, this court refused to allow defendants to inquire as to the competency and adequacy of evidence before the grand jury. This is not required by the Fifth Amendment to the United States Constitution. Costello v. United States, 350 U. S. 359, 363, 76 S. Ct. 406, 100 L. Ed. 397 (1956). Furthermore, to hold otherwise would create undue delay in the trial of criminal cases because the court would have to conduct a preliminary hearing in each case to determine the competency and adequacy of the evidence before the grand jury. As indicated heretofore, there was legal evidence presented to the grand jury in each case where an indictment was returned to the court. Therefore, this court concludes that there was no misconduct on the part of the 15th and 16th grand juries.

Defendants’ final contention on this point is that the court was in error for failing to inquire of each grand juror regarding the possibility of prejudice against defendants or members of their class. This argument presents the question whether the court has the duty and responsibility to make such an extensive inquiry of prospective grand jurors. There is no case law or statute which imposes this duty upon the court. At present it is sufficient that the court instruct grand jurors to decide each case on the merits and “without fear or favor, prejudice or sympathy, examine the evidence presented * * * in each case and determine whether or not it merits your returning an indictment against the accused.” In addition, grand jurors are required to take an oath pursuant to N. J. S. 2A :73-3, which provides in pertinent part:

“* * * that you shall diligently inquire * * * that you shall present no one through envy, hatred or malice; neither shall you leave anyone unpresented for fear, favor or affection, for reward, gain or the hope thereof * * *”

In view of the above procedures this court concludes that the charge, coupled with the required oath, is sufficient to preclude the possibility of prejudice on the part of the grand jury. The court therefore is under no obligation to question grand jurors regarding the possibility of their being prejudiced against a prospective- defendant or class of defendants.

THE COMPOSITION OE THE GRAND AND PETIT JURIES

The defendants5 final contention is that the grand and petit juries were improperly and unconstitutionally impaneled. In particular, defendants claim that the procedure employed by the Essex County jury commissioners in the selection of grand and petit jurors resulted in a systematic and deliberate exclusion of Negroes, women, residents of the City of Newark, and persons of lower economic status. Defendants submit that this alleged discrimination deprived them of their rights to an indictment constitutionally found and to trial by jury in accordance with the Fifth and Fourteenth Amendments to the Constitution of the United States and N. J. Const. (1947), Art. I, par. 8. Due to the gravity of this claim, the court conducted an extensive hearing commencing October 9, 1967 to determine the veracity of the above claims. The hearing was concluded on March 22, 1968 upon the filing of supplemental briefs requested by the court.

The New Jersey Legislature has entrusted the jury commissioners of each county with the task of obtaining grand and petit jurors with a view to the “just distribution of jury service among those persons qualified therefor in the various wards and municipalities of the county.” N. J. S. 2A :70-l. The jury commissioners are guided by N. J. S. 2A :69-l, which provides the qualifications for jury service, and N. J. 8. 2A :69-3, which sets forth exemptions from jury service. Jury commissioners are given discretion in the selection of jurors and the courts will not substitute their own formula for that chosen by the jury commissioners in the absence of proof of “bad motive.” State v. Biehl, 135 N. J. L. 368, 370 (Sup. Ct. 1947); State v. Grundy, 136 N. J. L. 96 (Sup. Ct. 1947); State v. Stewart, 2 N. J. Super. 15, 31 (App. Div. 1949).

It is a well established principle of our jurisprudence that juries, as instruments of public justice, be truly representative of the community. Smith v. State of Texas, 311 U. S. 138, 130, 61 S. Ct. 164, 85 L. Ed. 84 (1940); Glassner v. United States, 315 U. S. 60, 85, 63 S. Ct. 457, 86 L. Ed. 680 (1941); State v. Stewart, supra, 2 N. J. Super., at p. 36. Therefore, a deliberate and systematic exclusion from jury service of Negroes or any other qualified class of persons constitutes a deprivation of equal protection under the Fourteenth Amendment to the Constitution of the United States. Strauder v. State of West Virginia, 100 U. S. 303, 35 L. Ed. 664 (1880); Neal v. State of Delaware, 103 U. S. 370, 36 L. Ed. 567 (1880); Rogers v. State of Alabama, 193 U. S. 336, 34 S. Ct. 357, 48 L. Ed. 417 (1903); Patton v. State of Mississippi, 333 U. S. 463, 68 S. Ct. 184, 93 L. Ed. 76 (1947). However, this principle cannot be taken to mean that an accused is entitled to have one or more persons of his race or class on the jury panel, for it is equally well settled that the accused only has a right to a jury selected without discrimination or bias towards any particular race or class. No defendant has the right to have a jury composed in whole, in part, or in proportion to any specific racial, economic or geographical group. Virginia v. Rives, 100 U. S. 313, 35 L. Ed. 667 (1880).

All jury discrimination cases present a question of fact. In the case at bar this court must determine whether the jury commissioners, through their practices and procedure in selecting jurors, deliberately and systematically excluded Negroes, women, residents of the City of Newark and persons of lower economic status. There is a presumption in favor of the validity of the indictment and panel. The defendant who asserts that there has been discrimination in the selection of the jury panel has the burden of proving it. Marlin v. State of Texas, 200 U. S. 316, 26 S. Ct. 338, 50 L. Ed. 497 (1905); Akins v. State of Texas, 325 U. S. 398, 65 S. Ct. 1276, 89 L. Ed. 1692 (1944). Once the movant establishes a prima facie ease of discrimination, i. e., a significant disparity between those qualified for jury service and those of the group actually on the jury lists, the burden of proof shifts to the prosecution to explain this disparity. Whitus v. Georgia, 385 U. S. 545, 550, 87 S. Ct. 643, 17 L. Ed. 2d 599 (1967). However, the indictments should not be dismissed except on the clearest and plainest grounds. Cf. State v. Chandler, 98 N. J. Super. 241, 245 (Cty. Ct. 1967).

' This court must now examine the practices and procedures employed by the Essex County jury commissioners and their staff in obtaining grand and petit jurors. Since the procedure of selecting grand and petit jurors differ, they shall be dealt with separately.

Names of prospective grand jurors are obtained by the jury commissioners, who solicit such names from various civic organizations, churches, labor unions, phone books and various other organizations including the National Association for the Advancement of Colored People. This system is commonly referred to as the “key-man” system. Although this system is somewhat outmoded, this court has found no case declaring it to be unconstitutional per se. After these names are supplied to the jury commissioners they are turned over to their staff who, in turn, send an objective questionnaire to the prospective grand jurors. Form, see B. B. 1:29-2. The questionnaire requests answers to certain questions regarding the prospective juror’s background in order that it may be determined whether he is qualified pursuant to N. J. 8. 2.4:6 9-1, or exempt from jury service pursuant to N. J. 8. 2A :69-2. After the staff, under the supervision of the jury commissioners, makes this determination, the names are placed on the master list. Generally the names supplied by the jury commissioners prove insufficient. In such instances members of the staff, at the direction of the jury commissioners, go to the superintendent of elections office and obtain additional names from the Voter registration list or take names not used in prior lists. Generally, names taken from the voter registration list in this instance are persons residing in Newark. There is no marking to indicate race, color, creed or ethnic background on either the questionnaire, master list, or voter registration list. The grand jury master list usually contains approximately 300 names. The final selection of who will serve on the grand jury is done by drawing 50 of the 300 names from a roll box in open court in the presence of a judge.

Names of prospective petit jurors are taken solely from the voter registration lists of Essex County. The voters’ names are on addressograph plates in the office of the superintendent of elections for Essex County. Each plate contains the name, address, district and ward of each registered voter, and the plates are arranged on trays by ward and district, street number first and then alphabetically by name. The voter registration printed lists are made up from the addressograph plates and are arranged in the same manner as the plates. Since 1966 the staff, at the direction of the jury commissioners, has prepared petit jury lists by selecting names in a given alphabet range from the addressograph plates. Eor example, in 1967-1968 the jury commissioners’ staff authorized the use of the letters M to E in preparing the petit jury panels. The staff went through the plates and sought the names beginning with those letters. They then placed each name on a standard questionnaire and a blank card; If a large family of registered voters appeared on the plates, only two names would be chosen without regard to sex. The questionnaire was then mailed to the prospective juror after the staff checked the name against the city directory to determine if the prospective juror had an excludable occupation. If so, the questionnaire was not mailed. The blank cards were retained by the staff as a record indicating to whom questionnaires were sent. Prior to 1966 the printed voter registration list rather than the addressograph plates were employed for this purpose.

Approximately 35,000 questionnaires are mailed out to prospective petit jurors in the various wards and municipalities of the county at the beginning of each year. The number of questionnaires mailed annually varies in accordance with the needs of the court for petit jurors. Out of this total number, approximately 3,000 questionnaires are returned “Address Unknown”, and an additional 15% of the total number mailed receive no response. The majority of these questionnaires returned “Address Unknown”, or those which receive no response are addressed to Newark residents. Questionnaires which are returned are reviewed by the staff with the approval of the jury commissioners. Those persons who do not qualify or are exempt from jury service are not placed on the list. The names of those persons who do qualify are placed on IBM cards and then into a computer which, sorts and shuffles the cards at the request of and in the presence of the court and jury commissioners and produces the names of persons selected as jurors.

The procedure heretofore discussed is unlike any procedure condemned as unconstitutional by our federal courts. For example, in Whitus v. Georgia, supra, prospective jurors’ names were chosen from a tax digest on which a “C” was placed after every Negro name. In addition, there was a significant disparity between the percentage of Negroes on the tax digest (27.1%) and that on the grand jmry venire (9.1%) and the petit jury venire (7.8%) which strongly pointed to a conclusion of discrimination. Likewise, in Avery v. Georgia, 345 U. S. 559, 73 S. Ct. 891, 97 L. Ed. 1244 (1953), not only was the source of prospective jurors’ names maintained on a racially segregated basis, but also the names of prospective Negro jurors were placed in the jury box on yellow colored tickets. In both the aforesaid eases, it was primarily the procedure employed in selecting jurors that pointed to the conclusion of discrimination. See also Arnold v. North Carolina, 376 U. S. 773, 84 S. Ct. 1032, 12 L. Ed. 2d 77 (1964); Norris v. State of Alabama, 294 U. S. 587, 55 S. Ct. 579, 79 L. Ed. 1074 (1935).

There are several other cases in which a long and continued absence of Negroes on the jury lists brought the court to a conclusion of discrimination. See, for example, Pierre v. State of Louisiana, 306 U. S. 354, 59 S. Ct. 536, 83 L. Ed. 757 (1939); Patton v. State of Mississippi, supra. The case at bar differs from both of these situations. Theré was no direct evidence presented to the Court which indicated that the jury commissioners or their staff deliberately and systematically excluded Negroes from the jury panels. Likewise there was no marking as to race, color or ethnic background on the source from which names were obtained, i. e., the voter registration lists, addressograph plates of registered voters, printed list of registered voters or master list. The only questionable practice is the cckey-man” system, which involved the partial selection of grand jurors from community sources by the jury commissioners. However, even in this instance there was no indication of discrimination for the names were solicited by the - jury commissioners from varied sources, including Negro and labor organizations. Likewise, the names so supplied to the commissioners were not earmarked by race or otherwise. In addition, there has been no continued absence of Negroes on our grand and petit juries. On the contrary, there was ample testimony in the case at bar that there has always been Negro representation on the grand jury panels. In fact, there were three Negroes on the 15th grand jury and one Negro on the 16th. This court therefore concludes that the practices and procedures employed by the jury commissioners in the selection of grand and petit jurors is not violative of the Federal Constitution nor does such procedure point to a conclusion of discrimination towards any race or class of individuals.

Since there is nothing unconstitutional about the jury selection procedure per se, the next question presented is-whether there is such significant under-representation on the jury lists of Negroes, women, residents of the City of Newark and persons of lower economic status as would strongly point to a conclusion of discrimination. If so, there is the further question whether such under-representation establishes a prima facie case of discrimination, thereby rebutting the presumption of validity of the jury panels and shifting the burden of proof to the prosecution to explain the disparity. See Whitus v. Georgia, supra, 385 U. S., at p. 550, 87 S. Ct. 643.

During the hearing heretofore mentioned, the composition of the grand and petit juries was determined by the use of statistics and what is commonly called a “random sample technique.” For the purpose of determining the composition of the grand jury, this court considered the four past grand jury master lists, i. e., from May 1966 to May 1967. The lists totalled 1,200 names and defendants used a sample of 300 names to determine race, sex, residence and occupational background of the jury panels. The sample indicated that of the names on the grand jury master list, 25.0% were female (21.8% by actual count), 26.7% were residents of Newark (26.9% by actual count), and 6% were Negro (by sample only). The average occupational breakdown on the aforesaid grand jury lists was approximately 39% professional, 16% manager, 9% clerical, 9% sales, 2% craftman, 2% operative, 2% household, 1.5% laborer, .5% unemployed, 7.5% housewife, 11% retired, and .5% self-employed. The largest classification was “professional” and included over 100 professions or occupations.

According to the population statistics furnished by defendants, the breakdown of the Essex County population between the age of 21 and 74 years indicates that 52.2% are female, 41.7% of the county population reside in Newark, and 17% of the county population are Negro.

The occupational breakdown of the Essex County labor force is as follows: professional 11.55%, manager 8.20%, clerical 16.47%, sales 7.41%, craftman 11.56%, operative 20.19%, household 9.93%, laborer 4.03%, unemployed 2.51%, housewife (not considered in labor force), retired (not considered in labor force), and self-employed 8.15%. There were no statistics introduced in evidence to indicate the number of persons qualified for jury service in any of the aforesaid classifications. For example, there was no evidence to indicate the number of persons classified in “craftman” who were eligible or qualified for jury service. There was no evidence presented to indicate to this court the percentage of those persons in each class who were not qualified for jury service or were exempt from it. In addition, there were no statistics presented to the court to indicate the percentage of persons in each class who were or were not registered to vote in the County of Essex. There is a probable inference that the composition of the grand jury panels was a result of the legitimate application of statutory standards of qualifications and exemptions. Thus, if this court were to find discrimination in the case at bar based solely on the aforesaid statistics, that conclusion would be founded on mere conjecture and speculation. Furthermore, to expect the jury commissioners to provide a perfectly balanced jury list would be to impose an Herculean task upon them. This court therefore concludes that there is insufficient evidence to support a prima facie case of discrimination in the selection of the grand jury panels.

Additional evidence was introduced to indicate the probability of observing the present composition of the grand jury. For example, defendants’ statistician testified that assuming Negroes between the ages of 21 and 74 years comprise 17% of the Essex County population, the probability of observing 6% or less Negroes on a given grand jury list is less than one in a million. The same statistician also testified that he would expect to find on a grand jury master list of 300 names, 12.7% to 21.3% Negroes 95% of the time. The court is not impressed with these statistics because defendants’ statistician admittedly did not consider all of the qualifications for jury service or exemptions from jury service. Namely, defendants’ statistician did not consider the percentage of Negroes, women, residents of Newark and persons of lower economic status between the ages of 21 and 74 years who were disqualified from jury service because they were: (1) not a resident of this State for at least two years; or (2) not a resident of Essex County; or (3) convicted of a crime, or (4) not able to read, write and understand the English language; or (5) they had a mental or physical disability which would prevent them from properly serving as jurors. N. J. 8. 2A :69-l. Likewise, defendants’ statistician did not consider the percentage of persons in each of the aforesaid groups who would be exempt from jury service by virtue of the fact that they were: (1) a member or employee of a police force or fire department, or (2) a member of the state or federal military forces, or (3) employed as a school teacher, or (4) entrusted with the care and custody of a minor child and jury service would interfere with the care required of such child. N. J. 8. 2A :69-2. These factors would significantly decrease the number of qualified persons in each of the aforesaid groups. Therefore, since the validity of these statistics is so tenuous, this court finds them inconsequential on this motion. The application of mathematical techniques in the proof of facts of a criminal case should be approached with caution and restraint. See People v. Collins, 66 Cal. Rptr. 497, 438 P. 2d 33 (Cal. Sup. Ct. 1968); but see “The Application of Statistical Decision Theory to the Jury Discrimination Cases,” Harv. L. Rev. 338.

This court now turns to the composition of the petit jury. It has considered the four petit jury master lists for May 1966 to May 1967 consisting of approximately 18,000 names, Since the voter registration lists are the source for the petit jury lists, it is incumbent upon this court to know the composition of those lists. If a particular group of persons fails to register to vote, it is not the result of discrimination that the particular group is not represented on the jury panels. The evidence indicates that in 1967 53.9% of the voters registered in Essex County were women and 33.3% of all voters residents of Newark. There was no evidence introduced to indicate the number of Negroes registered to vote in this county or the number of registered voters in each of the occupational classifications heretofore discussed in the selection of the grand jury.

A review of the record indicates that out of all the questionnaires mailed for the 1966 lists, 26.3% were sent to women, and for the 1967 lists, 26.1% were sent to women. The resulting average of women on the four petit jury lists was 22.7%. The apparent cause of this disparity is two-fold. First of all, N. J. S. 2A :69~2 (g) provides that

“Any person who has the actual physical care and custody of a minor child and who gives written notice to the jury commissioners of the county of his residence that jury service would interfere with the care required for such child shall be exempt * *

Naturally, many more women than men fall into this category of exemption, thereby explaining the imbalance. Furthermore, where a family’s name appears on the voter registration lists, the jury commissioners’ staff would only choose one or two members of that family to serve on jury duty. In many instances the male name was chosen to alleviate the burden of service on women entrusted with the care of minor children. Although a disparity resulted by use of the aforesaid procedure, this court cannot dismiss the indictments on this ground in the absence of showing that the jury commissioners were arbitrary or deliberate in their exclusion of women from the jury lists, or that their action was probably harmful to defendants’ substantive rights. Butler v. State, 229 N. E. 2d 471 (Ind. Sup. Ct. 1967).

N. J. S. 2A :70-l provides in pertinent part that the jury commissioners are to prepare grand and petit jury lists with a due regard to “the just distribution of jury service among those persons qualified therefor in the various wards and municipalities of such county.” In compliance therewith the jury commissioners sent questionnaires for jury service to residents of everjr municipality in the county. Of the total questionnaires sent to prepare the 1966 petit jury lists, 28.2% were sent to Newark residents. Of the total questionnáries sent to prepare the 1967 petit jury lists, 31.2% were sent to Newark residents. The approximate percentage of Essex County Voters residing in Newark in 1966 was 34.7% and in 1967 was 33.3%. This leaves a 2.1% disparity in the 1967 mailing and a 6.5% disparity in the 1966 mailing. It must be noted that the voter registration list also includes persons not qualified for jury service because they are over 74 years of age and persons exempt from jury service because of their occupation. The court therefore finds this disparity insufficient to infer discrimination.

Additional evidence was introduced which indicates that the petit jury master lists contained an average of approximately 20.3% residents of Newark after mailing. Defendants contend this under-representation is the result of using the voter registration lists as a source of names since the percentage of Newark residents registered to vote is less than the percentage of Newark residents in the general population. The court finds this argument without merit. Those who fail to register to vote in this county eliminate themselves from jury service. See: Hearings before the Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary United States Senate, 19th Cong., 1st. Sess. 43 (1967). Eecently the Federal Government passed into law the Jury Selection and Service Act of 1968, 28 U. S. C. A. § 1861 et seq. This federal statute approves the use of the voter registration lists as the source of names for jury service and indicates it is the most effective means of obtaining juries which reflect a fair cross-section of the community. This court agrees with the policy expressed in the federal statute and holds that the use of the voter registration lists as a source of names for jury service is a valid method of preparing jury lists, even though qualified members of a particular class of persons are under-represented on the voter registration lists.

This court now turns to the question of the alleged disparity between the number of Negroes qualified for jury service and those actually on the petit jury master lists. A sample from the petit jury master lists of May 1966 to May 1967 was taken by selecting every 16th name and then personally interviewing the juror to determine his or her race. The sample totalled 299 names out of a universe on the four lists of approximately 18,000 names. The result of this sample showed 8.36% to be Negro. There was no evidence introduced to the court which indicates the number of qualified Negroes registered to vote in Essex County. Therefore, this court is without sufficient evidence to determine if a significant disparity exists between the number of Negroes qualified for jury service and the number of Negroes who actually served on the petit jury. As indicated heretofore, Negroes comprise 17% of the general population of Essex County between the ages of 21 to 74 years. When comparing this figure of 17% with the result of the sample (8.36%), one finds a disparity of 8.64%. This court cannot conclude that this disparity is the result of a systematic and deliberate exclusion of Negroes. There is the strong probability that this segment of the Negro population is not qualified for jury service, or is exempt from jury service, or has simply failed to register to vote. This court therefore concludes that defendants have failed to establish a prima facie case of jury discrimination against Negroes in the case at bar.

The aforesaid reasoning applies equally to the question of whether there is a significant disparity between the percentage of persons of lower economic status qualified for jury service and persons of that group who actually serve on jury duty. Again, defendants failed to introduce in evidence statistics which indicate the percentage of persons of lower economic status who are qualified for jury service or who are registered to vote in this county. Therefore this court con-eludes that the defendants’ statistics do not prove a policy or “formal method” of total and systematic exclusion of persons of lower economic status. See Fay v. People of State of New York, 332 U. S. 261, 67 S. Ct. 1613, 91 L. Ed. 2043 (1947). In addition, the case at bar differs materially from Labat v. Bennett, 365 F. 2d 698 (5 Cir. 1966), cited with emphasis by defendants. In Labat the Court found that there was a policy of “systematic total exclusion of daily wage earners as a class.” (at p. 721). In the instant case there was significant representation of persons of lower economic status on the petit jury master lists. Therefore, this Court finds that defendants have failed to show a systematic or deliberate exclusion of persons of lower economic status from petit jury service.

In conclusion, defendants’ motions to dismiss the indictments herein are denied.

       Questionnaires are mailed a year in advance to preparing tlie petit jury master lists for a particular term of court. Following is a schedule of the 1965 and 1966 total mailings, which names were used to compose the 1966 and 1987 petit jury master lists:
      1965 for 1966 1966 for 1967

        Municipality Male Female Total Male Female Total

      Belleville ....... 685 193 878 1141 283 1424
      Bloomfield..... 881 396 1277 1536 644 2180
      Caldwell ........ 226 110 336 268 125 393
      Cedar Grove ...... 399 68 467 457 114 571
      East Orange ... . 1530 522 2052 2249 852 3101
      Essex Fells .... 102 77 179 135 89 224
      Fairfield........ 134 20 154 201 29 230
      Glen Ridge .... 227 140 367 352 184 536

        Irvington ......... 1427 422 1849 2132 421 2553
      Livingston ..... 927 132 1059 850 399 1249
      Maplewood ... . 888 354 1242 989 396 1385
      Millburn ....... 657 254 911 864 264 1128
      Montclair......... 717 400 1117 927 442 1369
      Newark ........ 5163 1625 6788 8728 2887 11615
      North Caldwell . . . 156 47 203 194 44 238
      Nutley ........ 755 254 1009 935 354 1289
      Orange ......... 575 190 765 1236 474 1710
      Roseland ........ 113 68 181 171 50 221
      South Orange 507 301 808 610 338 948
      Verona ........... 528 169 697 614 159 773
      West Caldwell 308 114 422 421 133 554
      West Orange 906 379 1285 1406 603 2009

       See footnote 1, supra.

       The total number of registered voters in Essex County for 1967 was 402,536. Newark had 133,964 registered voters, whereas the total number of registered voters in the suburbs was 268,572. Thus, suburban registered voters outnumber Newark voters by approximately a 2 toT ratio. (It is also interesting to note that the Central Ward of Newark had the least amount of registered voters when compared to the other wards in the city).


author: Mehler, J. S. C.

text:
    ARTHUR A. PELOSO AND MARILYN PELOSO, PLAINTIFFS, v. HARTFORD FIRE INSURANCE COMPANY, A CONNECTICUT CORPORATION, AND SOPHIE STEIN SCHILLER, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided July 10, 1968.

      Mr. Eugene D. MolinarOj for the plaintiffs.

      Mr. William B. McGuire, for defendant, Hartford Eire Insurance Company (Messrs. Bum, Biunno & Tomplcins, attorneys).
   Mehler, J. S. C.

This is a motion for summary judgment by Hartford Eire Insurance Company (herein defendant) against plaintiffs on the ground that this action was not commenced within the time limitation provided in a fire insurance contract which is the subject of this suit. The material facts are not in dispute. In support of its.motion, defendant relies on the pleadings, answers to interrogatories of plaintiff Arthur A. Peloso and an affidavit of defendant’s counsel. Plaintiffs have filed no affidavits or other proofs in opposition.

Defendant insured plaintiffs’ premises, which were damaged by fire on September 12 and 13, 1965. At the time of the fire, the premises were mortgaged to the defendant Schiller, who was named as a co-insured in the insurance policy. Plaintiffs gave prompt notice of the fire and resultant damage to defendant, which then advised them that it intended to investigate the claim, following which notice would be given of its decision. Between November 1965 and March 1966, plaintiffs were informed by defendant, in response to inquiries made by them with regard to their claim, that it was being investigated. In February, plaintiffs’ counsel informed defendant in writing that unless the claim was immediately adjusted, suit would be commenced. In response, plaintiffs were notified to submit to depositions, as required by the policy, which they did in April. When in May plaintiffs’ attorney called defendant’s counsel to ascertain the status of the claim, he was told that defendant would be advised to reject the claim, and it was suggested that plaintiffs start suit on the policy. Early in June Mr. Peloso, stating that he was no longer represented by counsel, called William P. McGuire, Esq., a member of the law firm representing defendant, and was told by him that the company was denying liability. When Mr. Peloso requested Mr. McGuire to put this in writing he did so by letter dated June 15, 1966, in which he said that pursuant to reports furnished by him to defendant, “liability has been declined insofar as the loss of September 12-13, 1965 is concerned. Please be guided accordingly”. In July, defendant’s position was reaffirmed by Mr. McGuire in telephone talks with Mr. Peloso. The latter ended their final conversation on July 21 by stating he would sue, and was told in turn that this would be the appropriate course to take. At no time did defendant furnish plaintiffs with a blank form of proof of loss or demand or receive a proof of loss from them.

Plaintiffs did nothing further about their claim until March 10, 1967, when they instituted this action to recover for their loss. The complaint was filed some eighteen months after the date of the fire and approximately nine months after plaintiffs had received Mr. McGuire’s letter. By way of separate defense in its answer and now by this motion, defendant claims that the action is barred by virtue of the following provision of the insurance contract, the terms of which are expressly required by N. J. 8. A. 17 :36-5.20 which was enacted in 1954:

“No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after the inception of the loss.”

Plaintiffs resist the motion on two grounds. They contend that under the circumstances present here, they were unable to bring suit until June 16, 1966, the date on which they received Mr. McGuire’s letter declining liability, that their cause of action did not therefore accrue on the date of the fire, and that they are within time, since they started this action within twelve months of receipt of the letter. They also argue that even if the above-quoted provision of the policy required that they start suit within twelve months from the date of the fire, recovery should not be barred because defendant either waived its rights under this provision or should be estopped by its conduct from presenting this defense.

Courts in many jurisdictions have held that the words “inception of the loss” mean the occurrence of the casualty or event insured against, and that the prescribed period within which suit thereon may be brought is measured from the date of the damaging event, rather than from the date of the denial of liability or from sixty days after the fire when the company could first be liable for payment under loss payable provisions. See Sager Glove Corporation v. Aetna Insurance Company, 317 F. 2d 439 (7 Cir., 1963); General Insurance Co. v. Lee Chocolate Co., 97 Ga. App. 588, 103 S. E. 2d 632 (Ct. of App., 1958); Olsen Enterprises, Inc. v. Citizens Insurance Company of New Jersey, 255 Iowa 141, 121 N. W. 2d 510 (Sup. Ct., 1963); Ramsey v. Home Insurance Company, 203 Va. 502, 125 S. E. 2d 201, 95 A. L. R. 2d 1019 (Sup. Ct., 1962); Proc v. Home Insurance Company, 17 N. Y. 2d 239, 270 N. Y. S. 2d 412, 217 N. E. 2d 136 (Ct. of App., 1966); Margulies v. Quaker City Fire & Marine Ins. Co.., 276 App. Div. 695, 97 N. Y. S. 2d 100 (App. Div., 1950); Boyd v. Bankers & Shippers Insurance Company, 245 N. C. 503, 96 S. E. 2d 703 (Sup. Ct., 1957); Naghton v. Maryland Casualty Company, 47 Ill. App. 2d 74, 197 N. E. 2d 489 (Ct. of App., 1964). Although we have not been cited to or found any reported opinion of any court of our state in which the precise words of the quoted provision of the policy have been construed after debate, it was recently said in Warren v. The Employers’ Fire Insurance Company, Boston, Mass., 100 N. J. Super. 464 (App. Div., 1968), that the quoted clause “was unambiguous” and “required” that suit for the loss there claimed “be instituted within 12 months thereafter”. In Sherwood Jewelers- Newark, Inc. v. Philadelphia National Insurance Co., 102 F. Supp. 103 (D. C. N. J., 1952), which involved a policy-written before N. J. 8. A. 17:36—5.20 was enacted, the court rejected the contention that the period of limitations began to run on the date the company declined liability and held that the action was barred since it was “not commenced within twelve months after the date of the occurrence which [gave] rise to the loss”, as provided in the policy.

Plaintiffs contend that where no form of proof of loss is furnished by the company or proof of loss is not demanded by it, the twelve-month period runs from the denial of liability by the insurance company, rather than from the date of the fire. They argue that the quoted provision provides that no action for the recovery of any loss is sustainable unless all the requirements of the policy shall have been complied with. Among these, they say is the obligation imposed upon them by the statute (N. J. 8. A. 17:36—5.20) and policy to render a proof of loss to the company within sixty days after the loss unless the company extends the time. They also point to the provision that the company is not liable to pay until sixty days after proof of loss is received by it. The provisions relied upon read as follows

“The insured shall give immediate written notice to this Company of any loss * * * ; and within sixty days after the loss, unless such time is extended in writing by this Company, the insured shall render to this Company a proof of loss; * * *.
“The amount of loss for which this Company may be liable shall be payable sixty days after proof of loss, as herein provided, is received by this Company and ascertainment of the loss is made either by agreement between the insured and this Company expressed in writing or by the filing with this Company of an award as herein provided.”

In support of their position that where no form of proof of loss is furnished or proof is demanded the twelve-month period runs from the denial of liability by the insurance company, plaintiffs rely heavily upon Phoenix Insurance Company v. Brown, 381 S. W. 2d 573 (Ct. of App. Tenn., 1964), certiorari denied by the Tennessee Supreme Court. (See 381 S. W. 2d 573.) There, as here, the policy required that a proof of loss be filed 'within sixty days after the loss, that the loss be payable sixty days after proof of loss is received, and that no action on the policy shall be brought unless all requirements of the policy have been met and unless suit is begun within twelve months after the date of the loss. The fire occurred in September, 1961. No form of proof of loss was ever furnished by the company and no proof was filed by the insured. The company neither denied nor admitted liability for five months, at the end of which time it denied liability. Suit was begun sixteen months after the fire. In holding that the action was not barred, the court said:

“We think there is applicable here the following statement in Hill v. Home Ins. Co., 22 Tenn. App. 635, 641, 125 S. W. 2d 189, 192:
“ ‘A provision limiting suit or action on the policy to “twelve months next after the date of loss” means twelve months “after the cause of action accrues”. * * *
“ ‘The policy here in question contained provisions for notice and proof of loss to be furnished by the insured to the insurer within sixty days from the date of the loss, which, in effect, afforded the insurer immunity from suit for such period of sixty days, and thereby postponed the accrual of the cause of action accordingly.
“ ‘But defendant’s absolute and unconditional denial of liability on the policy, in its letter to complainant of date February 12, 1934, was a waiver by defendant of the provision of the policy which afforded it immunity from suit for sixty days after the loss, and complainant’s right to sue accrued when liability was thus denied by defendant.’ ”

The court then continued:

“As we have seen, defendant failed either to admit or deny liability until at least five months after the fire occurred. No formal proof of loss was ever demanded or furnished. Denial of liability terminated defendant’s immunity from suit and on that date the right to sue accrued (citing case). Until that time plaintiffs could not know whether proof would be demanded. Suit was brought well within twelve months thereafter.
“It should be pointed out that the Company is not attempting to defeat recovery because proof of loss was not furnished within 60 days after the fire occurred or thereafter.
“In addition to the foregoing, under the terms of the policy above copied, the Company had sixty days after ‘ascertainment of the loss’ either by agreement or arbitration award filed with the Company within which to pay the loss. The loss was never so ascertained and it follows that the right of action did not accrue until the denial of liability by letter to Elsie Brown.” (at pp. 574^575)

Several other courts have held that the phrase “inception of the loss” means the time when a cause of action has accrued to the insured, rather than the date of the casualty. In Finkelstein v. American Ins. Co. of Newark, N. J., 222 La. 516, 62 So. 2d 820 (Sup. Ct., 1952), where the policy contained provisions identical with those in the instant case, the court, after referring to a statement in 29 Am. Jur., Insurance, § 1397, that there is a sharp conflict in the cases on the question when the time begins to run, held that the twelvemonth period commenced when the cause of action accrued. It did so after pointing out that the insured was required to render a very detailed proof of loss within sixty days after its occurrence and that the insurance company was immune from suit until sixty days after ascertainment of the loss either by agreement or by award made by appraisers. It reasoned that an insurance company which benefits by the provisions relating to the filing of a proof of loss and the ascertainment of the loss should not be given the further advantage of successfully invoking a literal compliance with the twelve-month clause of the policy. To like effect, see O’Neal v. The American Equitable Assurance Company of New York, 162 So. 2d 384 (Ct. of App., 1964), writ refused 246 La. 366, 164 So. 2d 357.

Plaintiffs say, as did the courts in Finkelsiein and O’Neal, that the provision in issue not only prescribes a twelve-month limitation period, but also prohibits suit unless all policy requirements shall have been complied with. They contend that one such requirement is the furnishing by defendant of a form of proof of loss after receipt of notice of the loss. They contend that defendant’s failure to supply the form prevented plaintiffs from filing their proof of loss and consequently from filing an action on their claim until liability was denied in June, 1966. Plaintiffs’ argument is based on an erroneous assumption and also overlooks a statute which renders the cases on which they rely clearly distinguishable from the case under consideration.

The polic3r, and the statute which prescribes its terms, do not obligate defendant to furnish a claimant with a form of proof of loss. They set forth in detail the information which is required to be submitted by the insured and the manner in which it is to be furnished and verified. No particular form is prescribed. Furthermore, unlike as in Tennessee and Louisiana, the furnishing of a proof of loss is not a condition precedent to the maintenance of an action in this state unless the insurance company demands one in writing. N. J. 8. A. 17:36—6 provides as follows:

“The failure of any person, insured against loss or damage by fire in any insurance company doing business under the authority of the department, to furnish proofs of loss shall not be considered a waiver of any rights accruing under the policy of insurance, and shall not debar the person so holding insurance from a recovery under the policy or the collection of the sum which should be paid thereunder, unless after the loss sixty days’ notice, in writing, that the company desires the proofs of loss is furnished the insured.
“This section shall not be varied, altered, contradicted or affected by any agreement or contract, but shall remain in full force and effect notwithstanding any provision in any contract of insurance or other agreement to the contrary.”

In Margulies v. Quaker City Fire & Marine Ins. Co., supra, 276 App. Div. 695, 97 N. Y. S. 2d 100, 102, 103, the court held that a similar provision in a New York statute had “for its purpose the protection of the insured from the consequences of his oversight or neglect in complying with one of the conditions precedent to a recovery under the policy, namely, his failure to file proofs of loss within sixty days after the loss or damage insured against”. In Guilekas v. Excelsior Insurance Company, 53 Misc. 2d 223, 278 N. Y. S. 2d 567 (Sup. Ct., 1967), the court granted the insurance company’s motion for summary judgment, and in upholding its position that the tender of proofs of loss has nothing whatsoever to do with measuring the period of limitations, said:

“The commencement of an action on the policy must T>e within the stated twelve month period whether proofs of loss are furnished and filed or not (Skylark Enterprises, Inc. v. American Central Insurance Co., 13 A. D. 2d 707, 214 N. Y. S. 2d 68; Dubins v. Boston Insurance Company, 26 A. D. 2d 863, 274 N. Y. S. 2d 122), unless substantive waiver or estoppel, as opposed to a simple failure to require proofs of loss per se, is established (Proc v. Home Insurance Company, 17 N. Y. 2d 239, 245, 270 N. Y. S. 2d 412, 416, 217 N. E. 2d 136, supra).” (at p. 568)

The better reasoning, supported by the weight of authority, compels the conclusion, and this court therefore holds, that under a proper construction of the policy provision in issue, the twelve-month period within which this action should have been brought is to be measured from the date of the fire and that this suit, having been begun some eighteen months later, is barred unless defendant has waived the benefit of the limitation provision or is estopped from asserting it as a defense.

Plaintiffs contend in their brief that defendant’s failure to demand a proof of loss constituted a waiver of the twelvemonth provision of the policy; that they relied on the company’s action, not knowing what it was going to do until they received its letter denying liability, and that by reason of the waiver, defendant should be estopped from relying on the limitation provision.

An insurer may waive the provisions of its policy or be estopped by its conduct from asserting defenses which otherwise would be available to it. Warren v. The Employers’ Fire Insurance Company, Boston, Mass., supra. Although plaintiffs have used the words “estoppel” and “waiver” interchangeably in their briefs and during oral argument, the terms are not synonymous. By waiver is meant the voluntary intentional relinquishment of a known right. Warren, supra. Estoppel, as distinguished from waiver, rests “upon the principle that where anyone has done an act, or made a statement, which it would be a fraud on his part to controvert or impair, because the other party has acted upon it in the belief that what was done or said was true, conscience and honest dealing require that he not be permitted to repudiate his act or gainsay his statement”. Freeman v. Conover, 95 N. J. L. 89, 93 (E. & A., 1920). See also Bowler v. Fidelity & Casualty Company of New York, 99 N. J. Super. 184 (App. Div. 1968).

Plaintiffs have submitted no proofs which support their contentions that defendant should be precluded by waiver or estoppel from relying on the limitation provision. There is no proof that defendant did or said anything between the time of the fire and the company’s denial of liability which induced or could reasonably have induced plaintiffs to believe that they were going to be paid and should therefore defer suit, or which prevented them from starting suit within time. They rely principally on Fredericks v. The Farmers Reliance Insurance Company of New Jersey, 80 N. J. Super. 599 (App. Div. 1963). That case is distinguishable, for there the insurance company wrongfully withheld a copy of the policy from the insured, which prevented him from learning of the limitation provision of the policy. Accordingly, defendant is not estopped from relying on the limitation provision as a defense. Nor is there any evidence that defendant voluntarily and intentionally waived any of its rights under the provision. Those rights were asserted at defendant’s first opportunity, that is, when it filed its answer. Failure to demand a proof of loss does not constitute a waiver.

In Fotochrome, Inc. v. American Insurance Company, 26 A. D. 2d 634, 212 N. Y. S. 2d 446 (App. Div. 1966), defendant moved for summary judgment on the ground that an action on a burglary policy was not commenced until almost fifteen months after the event. Plaintiff claimed that there was a triable issue of fact as to whether the one-year requirement for commencing an action had been waived and whether by its conduct defendant was estopped from asserting the time limitation as a defense. In support of its position, plaintiff contended that the claim was not processed in accordance with the conditions of the policy in that no sworn proof of loss was furnished by plaintiff or demanded by defendant; that he was examined under oath; that defendant had never rejected the claim and its adjuster had stated on numerous occasions, the last of which was ten days before the twelve-month limitation period expired, that the claim was being investigated and that no decision had as yet been made with respect thereto. In reversing an order which denied the motion for summary judgment, the court said:

“We are of tlxe opinion that the facts stated are insufficient to raise a triable issue as to waiver of the limitation provision. There is no indication that plaintiff was misled or lulled into inactivity by the defendant’s conduct. It therefore follows that defendant was not estopped from raising the limitation provision as a defense.” (at p. 448)

Plaintiffs make one further assertion. Although they have submitted no proofs of any kind, there are vague references in their brief to negotiations between Schiller, their mortgagee, and defendant’s agent to pay the loss to the mortgagee if she would assign her mortgage to defendant. There is no contention that this misled the plaintiffs in any way. Mere negotiations, even between the insurer and the insured, without more, cannot form the basis for an estoppel, for if they did, they would chill and frustrate settlement efforts. Even if negotiations between defendant and Schiller had occurred, there is no evidence that anything was said or done by defendant or on its behalf which induced or could reasonably have induced plaintiffs to defer suit beyond September 12, 1966. Plaintiffs were on notice on June 16, 1966, when they received defendant’s letter, that it was declining liability. Three months still remained within which to sue, yet plaintiffs, without showing why suit was not or could not'have been instituted within that period, did: not file its complaint until approximately nine months after the letter was received.

In the light of the facts, it cannot be said that defendant voluntarily and intentionally relinquished its right under the limitations clause or that by its conduct it should be precluded from asserting the benefit of its provisions.

All of plaintiffs’ objections are without merit. Since there is no genuine issue as to any material fact and defendant is entitled to judgment as a matter of law, its motion for summary judgment as to plaintiffs is granted.


author: Heine, J. S. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. CARL WENOF, DEFENDANT.
    Camden County Court Law Division — Criminal
    Decided July 17, 1968.

      Mr. Victor Librizzi, Jr. Assistant Attorney General for the State of New Jersey (Mr. Arthur J. 8ills, Attorney General, attorney).

      Mr. Gerald E. Haughey for defendant.
   Heine, J. S. C.

(temporarily assigned). Defendant appeals his conviction of violating R. S: 39 :3—40, driving when his license had been suspended or revoked. The statute in pertinent part provides:

. “No person * * * whose driver’s license * * * has been suspended or revoked * * * shall personally - operate -a. motor vehicle 'during the period of * * * suspension, revocation, or prohibition. * * *
A person violating any provision of this section shall be fined not less than $200.00 nor more than $1,000.00, or be imprisoned in the county jail for not more than 6 months, or both.”

The facts are stipulated. On December 19, 1965 defendant was given a summons for speeding. He failed to appear or answer the summons. On May 20, 1966 the Director of the Division of Motor Vehicles sent him written notice of proposed suspension of his driving privileges for failure to satisfy the summons. The notice was sent by ordinary mail addressed to defendant’s address as listed by him in his application for driver’s license. The notice indicated that the suspension was to be effective June 10, 1966 unless written evidence was furnished the Division of Motor Vehicles that the court summons had been satisfied. Defendant did not respond to the notice, whereupon the Director on July 22, 1966 sent him by ordinary mail addressed to the same address an order that his driver’s license had been suspended. A copy of the order was sent to the local police department. The officer reported that he was unable to comply with the order to collect the driver’s license certificate because defendant had moved and left no forwarding address.

On February 15, 1966 defendant was given a summons for speeding. He failed to appear or answer the summons. On September 1, 1966 the Director sent defendant written notice of proposed suspension of his driving privileges for failure to satisfy the summons. This notice was sent by ordinary mail to the same address. The suspension was to be effective September 22, 1966 unless the summons was previously satisfied. Defendant did not respond to this notice, whereupon the Director on October 20, 1966 sent him by ordinary mail addressed to the same address an order that his driver’s license had been suspended. A copy of the order was sent to the local police department. On November 1, 1966 the local officer reported that he was unable to comply with the license collection order because the address proved to be a business address and defendant had moved therefrom some six months ago. He had left no forwarding address with the postal authorities.

On June 2, 1967, while the above suspensions were still in force and effect, defendant was apprehended a third time for speeding. He was given a summons. A subsequent routine check by the police revealed that defendant was driving while still on the revoked list. A summons was then issued for the instant violation. His license still showed the same address.

Defendant denies receipt of any of the above notices relating to his suspensions. It is admitted that the notices were mailed but not received. He consequently contends that his driving privilege was suspended without due process and, he is therefore not guilty of the charge.

Preliminarily, it might appear that the reason assigned for reversal of the conviction constitutes a collateral attack upon the determination of the Director of Motor Vehicles that could only be made by direct review by the Appellate Division under the provisions of B. B. 4:88-8. Normally, attempts to question or collaterally attack prior decisions of an administrative agency are rejected by the courts except on grounds that the agency lacked jurisdiction over the subject-matter or the person. Maguire v. Van Meter, 121 N. J. L. 150 (E. & A. 1938); Clay v. Civil Service Commission, 89 N. J. L. 194 (E. & A. 1916); Miske v. Habay, 1 N. J. 368 (1949); Handlon v. Belleville, 4 N. J. 99, 107 (1950); 2 Am. Jur. 2d 299, § 493; 30A Am. Jur. 794, § 881. Since the determination of whether there was due process in the revocation proceedings runs parallel to and is subsumed by answer to the question of whether the Director had jurisdiction over the person of defendant, this court elects to answer the question.

N. J. S. A. 39:5-30 provides in pertinent part as follows:

“Every registration certificate and every license certificate to drive motor vehicles may be suspended or revoked, and any person may be prohibited from obtaining a driver’s license or a registration certificate, and the reciprocity privilege of any nonresident may be suspended or revoked by the commissioner for a violation of any of the provisions of this Title or on any other reasonable grounds, after due notice in writing of such proposed suspension, revocation or prohibition and the ground thereof.”

The question to be answered here is what is “due notice in writing of such proposed suspension.” No attack is made upon the specificity of the grounds stated in the notice. Compare Bechler v. Parsekian, 36 N. J. 242 (1961); Cresse v. Parsekian, 81 N. J. Super. 536 (App. Div. 1963), affirmed 43 N. J. 326 (1964); State v. Martin, 75 N. J. Super. 413 (App. Div. (1962)). Eather, it is contended that “due notice” requires actual notice.

It is no longer arguable that a driver’s license or privilege may not be revoked without procedural due process. Bechler v. Parsekian, supra. Additionally, the court there stated the proposition that the Director has wide discretion in the procedures he may care to utilize, provided he act fairly. 36 N. J., at p. 255. But that is not to say that procedural due process can be satisfied only with actual service of the notice. “No fool-proof system of giving notice exists. Since perfection is unattainable, the best one can hope for is the creation of methods reasonably calculated to produce the desired result without imposing unrealistically heavy burdens on the party charged with the duty of notification.” Gellhorn and Byse, Administrative Law, 852 4th ed. (1960). There is always a risk that notice may not reach the intended person, but this is not the test for legal sufficiency. The test is, rather, whether the notice was reasonably calculated to reach the intended parties. State by Parsons v. Standard Oil Co., 5 N. J. 281, 305-6 (1950); Mullane v. Central Hanover B. & T. Co., 339 U. S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1949).

The statute here involved does not prescribe the method of giving due notice of the proposed suspension. It has been recognized that notice sent by ordinary mail will be received. Cf. Szczesny v. Vasquez, 71 N. J. Super. 347, 354 (App. Div. 1962). The notice in the within case was addressed to defendant at the address he specified as his. Sending the notice through ordinary mail was calculated to reach him and afford him the opportunity of resisting or avoiding the proposed suspension. Short of requiring delivery to addressee only, it would make no difference to the evading licensee whether the notice was sent by regular, registered or certified mail.

Actual receipt of the notice is not a prerequisite in the revocation proceeding. Cf. Pacific Discount Co. v. Jackson, 68 N. J. Super. 331, 334 (App. Div. 1961), reversed on other grounds, 37 N. J. 169, 171 (1962); Szczesny v. Vasquez, supra. If such requirement existed, the scoffiaw would have it in his power to thwart the revocation proceedings. The legislative intent runs to the contrary. Under penalty of fine a licensed operator is required to notify the Director in writing of a change in his residence within one week after the change is made. N. J. S. A. 39:3-36.

While it is conceded that defendant did not receive the mailed notices of the proposed revocation proceedings, this is not to say that he was totally unaware that such proceedings were in the making. The original summons issued to him on the occasions of the initial speeding violations contained the notice and warning, “For failure to appear in response to this summons or to pay the prescribed fine and costs, a warrant may be issued for your arrest and your driving privileges in New Jersey may be revoked.”

It would thus appear that defendant had notice that a revocation proceeding might be instituted if he chose to ignore the summons. He chose to do so. He compounded his choice by moving without leaving a forwarding address or informing the Director where he could be reached by mail. He should not now be heard to complain of lack of due process. He had it. Any breakdown in the scheme to inform him of the proposed action was of his own making.

Additionally, it is contended by defendant that one cannot be found guilty of an offense unless it was knowingly committed. In other words, defendant would have the court read into the statute a requirement that awould-be violator must intentionally drive while knowing he is on the revoked list in order to be guilty of violating B. S. 39 :3-40. It is not the province of this court to read into a statute that which the Legislature did not intend. Halstead v. State, 41 N. J. L. 552, 597 (E. & A. 1879); State v. Gibson, 92 N. J. Super. 397, 400 (App. Div. 1966). “[S]ince the crime is statutory the Legislature is free to require or omit guilty knowledge as an element thereof.” State v. DeMeo, 20 N. J. 1, 8 (1955).

There is no inference that may be culled from the statute which would imply that knowledge or intent is to be grafted onto this legislation. Neither is there any constitutional impediment to the enactment of a criminal statute in which mens rea is not an element. Morss v. Forbes, 24 N. J. 341, 358 (1957); State v. DeMeo, supra; Williams v. North Carolina, 325 U. S. 226, 238, 65 S. Ct. 1092, 89 L. Ed. 1577 (1944).

Furthermore, since defendant must have been aware that continued driving after disregard of several summons could result in adverse penal consequences, including loss of one’s driving privilege, his behavior was not inadvertent and essentially nonculpable. Cf. State v. Lobato, 7 N. J. 137, 148 (1951). On the contrary, defendant did not make “a Iona fide, diligent effort * * * to ascertain and abide by the law.” State v. DeMeo, 20 N. J., at p. 12.

Since it is stipulated that defendant personally operated his vehicle while his license was suspended or revoked, I find him guilty of the charge and impose a fine of $200.00 and costs.