author: Lane, J. S. C.

text:
    JAN EDELSTEIN, ON HER OWN BEHALF AS A REGISTERED VOTER AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, NAMELY REGISTERED VOTERS WHO WISH TO ENGAGE IN VOLUNTEER REGISTRATION EFFORTS IN CONJUNCTION WITH THE FORTHCOMING PRESIDENTIAL ELECTION, PLAINTIFF, v. ROBERT N. FERRELL, SUPERINTENDENT OF ELECTIONS AND COMMISSIONER OF REGISTRATION FOR THE COUNTY OF MONMOUTH IN THE STATE OF NEW JERSEY; THE BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF MONMOUTH, STATE OF NEW JERSEY; WILLIAM CAHILL, GOVERNOR OF THE STATE OF NEW JERSEY AND PAUL J. SHERWIN, SECRETARY OF STATE OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Argued September 15, 1972
    Decided September 19, 1972.

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

      Mr. G. Robert Wills,. Deputy Attorney General, argued the cause for defendants, Robert N. Ferrell, Superintendent of Elections and Commissioner of Registration for the County of Monmouth, William Cahill, Governor of the State of New Jersey and Paul J. Sherwin, Secretary of State of the State of New Jersey (Mr. George F. Kugler, Jr., Attorney General of the State of New Jersey, Attorney).

      Mrs. Julia, L. Ashbey argued the cause for defendant, The Board of Chosen Freeholders of the County of Monmouth (Messrs. Pillsbwy, Barnacle, Russell & Carton, Attorneys).
   Lane, J. S. C.

Upon the filing of the complaint on September 8, 1972, the court made a determination that the matter was emergent and ordered defendants to show cause on September 15, 1972 why an order should not be issued:

(a) Directing the defendant Robert N. Ferrell to conduct registration until October 10, 1972 and to adequately publicize the extended dates for registration;
(b) Directing the defendant to permit the plaintiff and other qualified volunteers to act as volunteer registrars, without pay, at high schools, colleges, business areas and other suitable places in the County of Monmouth;
(c) Such other relief as the Court may deem just and equitable.

The matter proceeded on September 15 based upon affidavits submitted on behalf of plaintiff and affidavits submitted on behalf of defendants. In effect, the matter was heard as a summary action. B. 4:67. No suggestion was made at the hearing that either party desired to offer oral testimony.

Plaintiff alleges that she is a registered voter residing in the City of Asbury Park, County of Monmouth, and that she is actively engaged in connection with a voter registration drive in Monmouth County. She purports to bring the action on her own behalf and “on behalf of others similarly situated, and on behalf of qualified unregistered voters.” Defendant Ferrell is the Superintendent of Elections and the Commissioner of Registration for Monmouth County having been appointed April 7, 1971. Defendant The Board of Chosen Freeholders is alleged to be obligated to provide the funds for the expense of elections. Defendant Cahill is the Governor of the State of New Jersey and is charged with being “generally responsible for executing the laws of the State of New Jersey.” Defendant Sherwin is the Secretary of State and is charged with the obligation of “enforcing the election laws of the State of New Jersey.”

On July 18, 1972 plaintiff wrote to Ferrell a short note stating in part:

In keeping with the President’s call for a non-partisan voter registration drive why not name all high schools and colleges in Monmouth County as places of voter registration and send qualified registrars to them at designated times convenient to the students and schools during the month of September.

She alleges that her “request” was denied by Ferrell who stated that there would be three regional registration drives within the county during the month of September. These drives are to be conducted by the League of Women Voters at the Monmouth Shopping Center on September 9, 1972, the Manasquan Circle Plaza on September 16, 1972 and the Manalapan Mall on September 23, 1972.

Plaintiff alleges that the action of Ferrell “is arbitrary, capricious, and is an unconstitutional limitation upon plaintiff’s attempt to increase participation in the electoral process, in violation of the First, Fourteenth, Fifteenth, and Twenty-Sixth Amendments to the United States Constitution, and will effectively deny the right of thousands of voters to participate in the coming election.”

Plaintiff further claims that Ferrell has caused an advertisement to be placed in the newspapers stating that the deadline for registration is September 28, 1972, which action is alleged to be in violation of the Voting Rights Act Amendments of 1970 (42 U. S. C., par. 1973aa-l(d)). That section provides:

For the purposes of this section, each State shall provide by law for the registration or other means of qualification of all duly qualified residents of such State who apply, not later than thirty days immediately prior to any presidential election, for registration or qualification to vote for the choice of electors for President and Vice President or for President and Vice President in such election; and each State shall provide by law for the casting of absentee ballots for the choice of electors for President and Vice President, or for President and Vice President, by all duly qualified residents of such State who may be absent from their election district or unit in such State on the day such election is held and who have applied therefor not later than seven days immediately prior to such election and have returned such ballots to the appropriate election official of such State not later than the time of closing of the polls in such State on the day of such election.

The complaint is supported by an affidavit of plaintiff which states in part:

It is an accepted fact that there are many first voters in the high schools and the colleges in Monmouth County who have not as yet registered and will not register unless the registration facility is brought to them at their schools. The same is true of the black and Spanish speaking communities who are reluctant to go cross town to City Hall to register. If the registration facility were brought to them in their areas greater of their numbers would be brought into the electoral process.

In addition to plaintiff’s affidavit there was submitted to the court an affidavit of the former Superintendent of Elections and Commissioner of Eegistration for Monmouth County. He avers that during his five years in office there had been mobile registration in Monmouth County. He refers specifically to three instances. The general allegation is made that “my experience also has shown that members of the black and Puerto Eican community are very fearful of entering public buildings for the purpose of registration.”

Defendant’s have submitted five affidavits in opposition to the relief requested. Eerrell sets forth that at the present time registration is more involved than heretofore, “in that the ratification of the 26th Amendment, Supreme Court decision on the ‘Worden Case’ [Thomas Worden, et al. v. Mercer County Board of Elections, 61 N. J. 325, decided by the New Jersey Supreme Court July 14, 1972] and the subsequent ruling by the Attorney General that Military personnel might vote within their municipal boundaries of their Military installation changed our methods considerably.”

Mr. Eerrell continues:

The above changes in what had been the normal methods of conducting this office necessitated a great deal of additional instruction to those involved as there were many changes in the law, Court cases, and opinions by the Attorney General, which affected what previously had been a routine job.

He points out that during the time he has been Commissioner of Eegistration he has caused to be held 7 off-premises registrations in 1971 and 19 off-premises registrations in 1972, 19 of which have been at high schools. He further points out that the municipal clerks in each of the 53 municipalities have designated evening hours for registration, all of which include at least September 28, and most of which also include September 26 and 27. In addition, clerks of each municipality have been encouraged to conduct off-premises registrations whenever they felt it was necessary. It is shown that at least 23 such registrations have been held. He concludes one affidavit stating:

In my opinion there is no need for any further additional outside registration conducted by my office as all clerks have allotted additional times for registration in their communities.

A second affidavit submitted by Mr. Eerrell sets forth in detail the work that must be performed by his office during the 40-day period before election day.

An affidavit is submitted by an election clerk in the office of the Superintendent of Elections and Commissioner of Registration. She states in part:

It has been my experience that persons taking registrations must be well trained and very careful and accurate, otherwise a registration may be made void through no fault of the person registering.
In the past, former Commissioners deputized District Election Board workers to register in their homes. We found the returned forms not completed in several instances, which resulted in our having to contact these people to receive the proper information to complete the forms, so that they would be placed in their correct voting district.
It is my opinion that unless the registrations are properly taken at the outset, much time is wasted by our office checking these out.

The affidavit of the First Vice President of the League of Women Voters of Monmouth County sets forth in detail the numerous off-premises registrations the League has conducted and concludes:

In my opinion and with my experience with the League of Women Voters there are possibly only two counties in New Jersey that might surpass what has been done in Monmouth County.
The League’s purpose is to promote political responsibility and educate citizens to active participation in their government, and in my opinion we have had full co-operation in working toward this purpose in Monmouth County.

Finally, an affidavit is submitted by the Chairman of the Monmouth County Board of Elections pointing out the numerous duties that the County Board must perform during the 40-day period before the election.

Defendants assert plaintiff has no standing to maintain the action.

In Bergen County v. Port of N. Y. Authority et al., 32 N. J. 303 (1960), the court dismissed the complaint stating:

* * * In essence, a plaintiff must have an interest in the subject matter in order to maintain a declaratory judgment action. This requirement reflects the wholesome general rule that litigation shall not be maintained by strangers to a controversy. Cf. New Jersey Turnpike Authority v. Parsons, 3 N. J. 235, 240 (1959); New Jersey Bankers Ass’n v. Van Riper, 1 N. J. 193, 196 (1948). The trial court could find no interest in the county either in its own right or as a representative of others. We agree. [32 N. J. at 307]

The latest discussion on the subject of standing by the Supreme Court is Crescent Park Tenants Assoc. v. Reatty Eg. Corp. of N. Y., 58 N. J. 98 (1971). There the court said:

Unlike the Federal Constitution, there is no express language in New Jersey’s Constitution which confines the exercise of our judicial power to actual cases and controversies. U. S. Const. art. III, § 2; N. J. Const. art. VI, § 1. Nevertheless we will not render advisory opinions or function in the abstract (New Jersey Turnpike Authority v. Parsons, 3 N. J. 235, 240 (1949)) nor will we entertain proceedings by plaintiffs who are “mere intermeddlers” (Baxter v. Baxter, 43 N. J. Eq. 82, 86 (Ch. 1887), aff’d, 44 N. J. Eq. 298 (E. & A. 1888)), or are merely interlopers or strangers to the dispute (Bergen County v. Port of New York Authority et al., 32 N. J. 303, 307, 318 (1960)). * * * [58 N. J. at 107]

Here plaintiff seeks to assert that a constitutional right of others is being breached because she claims that New Jersey is not allowing registration for the Presidential election up to 30 days before the election as required by the Voting Eights Act Amendments of 1970. In this respect she is incorrect. L. 1972, c. 30 provides for registration up to 30 days before a Presidential election. Voting in such eases will be permitted for the President and Vice President by the use of absentee ballot. The Voting Eights Act Amendments of 1970 require no more. Ferrell has stated that he will give notice through newspapers published in the county that registration to vote for the President and Vice President may be made through October 10.

Plaintiff apparently contends that because the Voting Rights Act Amendments of 1970 provide for registration up to 30 days before the Presidential election, it of necessity requires the State to allow registration for voting for all offices up to the same period.

Since plaintiff is a registered voter, none of her rights are being affected. It is well-settled that one who would raise the constitutional rights of a class must be a member of that class. E. g., Bailey v. Patterson, 369 U. S. 31, 33, 82 S. Ct. 549, 7 L. Ed. 2d 512 (1962); Barrows v. Jackson, 346 U. S. 249, 255, 73 S. Ct. 1031, 97 L. Ed. 1586 (1953); Bode v. Barrett, 344 U. S. 583, 586, 73 S. Ct. 468, 97 L. Ed. 567 (1953); Nelson v. So. Brunswick Planning Bd., 84 N. J. Super. 265, 276 (App. Div. 1964). Cf., Sierra Club v. Morton, 405 U. S. 727, 92 S. Ct. 1361, 1364, 31 L. Ed. 2d 636 (1972). R. 4:32-1 (a) specifically requires that to maintain a class action one must be a member of the class.

Likewise plaintiff has no standing to assert that Eerrell has abused his discretion in the refusal to allow plaintiff to act as a volunteer registrar. No authority has been cited that she or any other person has a right either by constitution or by statute to act as a volunteer registrar. Obviously, she cannot assert that she herself would not go to a municipal office or to the court house in Freehold to register. The general allegation made that certain citizens of the County are reluctant “to go to the municipal offices to register” would appear to be an insult to those citizens. There is nobody before this court who makes and personally substantiates that assertion. Not being directly affected by Ferrell's action, she may not challenge it. In re Atlantic City, 3 N. J. Super. 62, 63-64 (App. Div. 1949).

Even assuming that plaintiff did have standing, relief would not be granted. Essentially, plaintiff seeks relief by way of mandamus.

Mandamus is a coercive process that commands the performance of a specific ministerial act or duty, or compels the exercise of a discretionary function, but does not seek to interfere with or control the mode and manner of its exercise or to influence or direct a particular exercise. Switz v. Middletown Twp., 23 N. J. 580, 587 (1957); Finn v. Wayne Tp., 45 N. J. Super. 375, 380 (App. Div. 1957).

An order in the nature of mandamus is available only where there is a clear and definite right to the performance of a ministerial duty, in essence mandatory and final. Unless the particular duty is peremptory, the fair exercise of judgment and discretion is the province of the functioning authority. Switz v. Middletown Twp., supra, 23 N. J. at 588; Vacca v. Stika, 21 N. J. 471, 476 (1956); Finn v. Wayne Tp., 45 N. J. Super. 375, 380 (App. Div. 1957). If a statute imposes a command to act or the performance of a positive duty in compliance with defined certain standards, the matter is ministerial and mandamus would be available to compel obedience. Id.; Case v. Daniel C. McGuire, Inc., 53 N. J. Super. 494, 498 (Ch. Div. 1959).

N. J. S. A. 19:31-6 provides in part that the Commissioner of llegistration “shall receive the application for registration of all eligible voters who shall personally appear for registration during office hours at the office of the commissioner * * * or at such other place or places as may from time to time be designated by him * * * for registration.” A reading of the statute makes it clear that the choice of registration locations other than the office of the commissioner or the offices of municipal clerks (N. J. S. A. 19:31-7) is a discretionary act which defendant cannot be compelled to exercise as a plaintiff desires unless his discretion has been shown to be arbitrary, capricious or unreasonable.

As pointed out, defendant Ferrell has already exercised his discretionary authority in scheduling off-premises registration during 1972 on 19 different occasions. In addition, in a number of instances municipal clerks have held off-premises registration with the consent and assistance of the Commissioner.

The present rule as to discretionary actions was set forth by the Supreme Court in Richardson v. Caputo. 46 N. J. 3 (1965):

Discretion, of course, is never the plaything of office. Rather it imports responsibility, a duty to act with reason. True, it is not for a court to choose one of several reasonable courses, for that choice is precisely what the Legislature left to another, United Hunters Ass’n v. Adams, 36 N. J. 288 (1962), but if it clearly appears the course taken is not rooted in reason, the bounds of the delegated authority have been exceeded and it is the duty of the court to say so. [46 N. J. at 9]

The papers before the court show that Eerrell has exercised his discretion. He has scheduled registration in three centrally located shopping centers on three Saturdays in September. These registration services are in addition to that offered on a regular daily basis at his office and at the offices of the 53 municipal clerks in the County, all of whom have scheduled evening hours during the last week of the registration period.

All the plaintiff has shown is that she thinks Eerrell should have performed his statutory duty differently. Plaintiff suggests that registration of potential voters is a simple matter that can and should be done by anyone. The court cannot agree with that assertion. There is a responsibility npon the Commissioner of Registration to assure that only properly qualified persons be registered. In Worden et al. v. Mercer County Board of Elections, supra, 61 N. J. at p. 346, the court stated:

The State has of course an interest in preventing fraudulent voting but there has been no suggestion that the registration and criminal laws are not adequate in this connection * * *.

Plaintiff has failed to make it appear clearly that Eerrell’s action was not “rooted in reason.” There has been no showing that he has abused his discretion. To hold otherwise would be to substitute this court’s judgment for the judgment of a duly appointed official charged with making the decision. Such a judicial act would be improper. Richardson v. Caputo, supra, 46 N. J. at 9.

The complaint has been voluntarily dismissed as against the Board of Chosen Freeholders. There will be a judgment dismissing the complaint as to the remaining defendants, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    LEVITT AND SONS, INCORPORATED, A CORPORATION OF THE STATE OF DELAWARE AND AUTHORIZED TO DO BUSINESS IN THE STATE OF NEW JERSEY, PLAINTIFF, v. TOWNSHIP OF FREEHOLD, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND HAROLD H. SCHANK, TOWNSHIP CLERK OF THE TOWNSHIP OF FREEHOLD, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Argued September 22, 1972
    Decided September 22, 1972.

      Mr. Henry J. Soling argued the cause for plaintiff (Messrs. Baling, Moore, O'Mara & Qoogan, Attorneys).

      Mr. John A. Kaye argued the cause for defendants.
   Lane, J. S. C.

In this action in lieu of prerogative writ plaintiff seeks a judgment compelling defendant to approve tentatively plaintiff’s subdivision plat. The matter is before the court on plaintiff’s motion to proceed summarily pursuant to B. 4:67-l(b).

Plaintiff sought from the Planning Board a recommendation to the governing body of a tentative approval of a subdivision plat. After five hearings the Planning Board adopted a resolution recommending to the governing body that tentative approval be granted. Under the ordinance the Planning Board could only recommend. The recommendation was sent to the Township Committee shortly after June 21, 1972.

The matter was not placed on the agenda of the Township Committee’s regular meeting on July 10, 1972. The next meeting was held July 24, 1972. At that time the matter was removed from the agenda and put over to the meeting of August 1, 1972. On August 1, 1972 the Township Committee failed to act and the matter was carried to the August 15, 1972 meeting. At that meeting the application for tentative approval was tabled to be taken up at the meeting of September 11, 1972.

The complaint was filed August 23, 1972.

In opposition to the motion to proceed summarily, defendants have submitted an affidavit that the Township Committee failed to act because information had been presented to the Township Committee that homes constructed by plaintiff on another project within the Township had been completed in an unworkmanlike manner and that “the residents who have purchased the aforesaid homes are unhappy and are of the opinion that they have received an inferior product from that which they contracted to purchase.” It is clear from this affidavit that the Township Committee has failed to act on the application for tentative approval to force plaintiff to cure the alleged defects in the other subdivision.

Plaintiff seeks judgment in accordance with N. J. S. A. 40 :55—1.18 which provides in part:

Following favorable referral by tbe planning board where referral is required, the plat shall be submitted to the governing body for approval. The governing body shall take action under this section not later than the second regular meeting after the planning board submits the plat to the municipal clerk for transmission to the governing body, or within such further time as the applying party may agree to. Otherwise such plat shall be deemed to have been approved, and the certificate of the municipal clerk as to the date of the submission of the plat for approval by the governing body, and as to the failure of the governing body to act thereon not later than the second regular meeting or such further time as agreed to by the applying party, shall be issued on request of the owner or his agent and shall be sufficient, in lieu of the written indorsement or other evidence of approval herein required. If the governing body disapproves any plat, the findings and reasons for such action shall be stated upon the records of the governing body, and the applicant shall be given a copy.

It is clear from the record that the governing body failed to take action within the time specified in the statute. There is no genuine issue as to any material fact. Defendants suggest that there is an issue as to whether plaintiff is entitled to the approval because of its past performance in connection with other subdivisions. Poor past performance on subdivisions unconnected with the one under consideration by the governing body is not a valid reason for denying approval.

The function of municipal bodies in respect to approval of plats is administrative. “If the plat conforms to the requirements of the regulations, it must be approved.” 3 Rathlcopf, The Law of Zoning and Planning (3d ed. 1971 Cumulative Supp.), pp. 71-85.

In 3 Anderson, American Law of Zoning (1968), § 19.24, it is stated:

The power of a planning commission or other reviewing agency is derived from the state enabling act. Accordingly, a condition for approval may be imposed only if it is authorized by statute. Conditions must, of course, be reasonable in the context of the subdivision in issue, [at 443-444]

See Sussex Woodlands, Inc. v. Mayor and Council of Tp. of West Milford, 109 N. J. Super. 432, 434-438 (Law Div. 1970). Cf., J. D. Land Corp. v. Allen, 114 N. J. Super. 503, 508 (App. Div. 1971).

A municipality may not withhold approval for a subdivision plat even though it may have evidence that the builder has in the past done an inadequate job in the construction of homes. Subdivision control is not to be used for that purpose. The municipality has available to it other means of protecting its citizens. See N. J. Builders Ass’n v. Mayor E. Brunswick Tp., 60 N. J. 222 (1972).

There being no genuine issue as to any material fact and it appearing that plaintiff is entitled to the relief sought, there will be a judgment that the plat be deemed to have been tentatively approved and the certificate of the municipal clerk affixed to the plat as of the date of submission of it for tentative approval by the governing body, which shall be sufficient to evidence tentative approval in lieu of the written endorsement or other evidence of tentative approval required.


author: Feinberg, J. D. C.

text:
    MORRIS N. HINKES t/a LITTLE JOE’S TAVERN, PLAINTIFF, v. CITY OF NEWARK, A MUNICIPAL CORPORATION, DEFENDANT.
    District Court Essex County
    Decided September 27, 1972.

      Mr. Jacob M. Goldberg, for plaintiff.

      Mr. Melvin Simon, Assistant Corporation Counsel, for defendant {Mr. William, II. Walls, Corporation Counsel, attorney).
   Feinberg, J. D. C.

On August 7, 1972 this court entered judgment for plaintiff in the sum of $1,088.20 and costs for damages recoverable by plaintiff under N. J. S. A. 2A :48-1:

Liability of municipality or county; action
When, by reason of a mob or riot, any property, real or personal, is destroyed or injured, the municipality if it has a paid police force, in which the mob congregates or riot occurs, or, if not in such a municipality, the county in which such property is or was situate, shall be liable to the person whose property was so destroyed or injured for the damages sustained thereby, recoverable in an action by or in behalf cf such person.

This matter arises as a result of a motion by the plaintiff to add interest to the judgment in accordance with B. 4:42—11 (b) :

In tort actions, including products liability actions, the court shall include in the judgment interest at 6% per annum on the amount of the award from the date of the institution of the action or from a date 6 months after the date of the tort, whichever is later. * * *

The question before the court on this motion is whether plaintiff’s action is a “tort action” within the meaning of the above rule.

“Tort” has been defined as a “private or civil wrong or injury. A wrong independent of contract.” Black’s Law Dictionary (4th ed. 1951), at 1660.

Plaintiff’s assertion is in derogation of common law and must be strictly construed.

In A & B Auto Stores, etc. v. Newark, 106 N. J. Super. 491 (Law Div. 1969), aff’d 59 N. J. 5 (1971), the court held:

Upon the presentation of all the evidence, the court granted a motion for judgment as a matter of law in favor of the city on the negligence count, and concluded that the failure of a municipality to prevent crimes, control mobs, apprehend criminals or prevent damage to property or persons encompasses a governmental function in the conduct of which the city is immune from common law tort liability. * * [106 N. J. Super. at 494; citations omitted]

And again the court held:

It is, therefore, evident in this State that with regard to certain of its activities, a municipality should not be subject to tort liability regardless of how those activities are defined or labeled. * * * [At 496]

And, at 497, the court quoted from an opinion by Chief Justice Weintraub in Fitzgerald v. Palmer, 47 N. J. 106, 109 (1966):

A private entrepreneur may readily be held for negligent omissions within the chosen ambit of his activity. But the area within which government has the power to act for the public good is almost without limit, and the State has no duty to do everything that might be done. Bather there is a political discretion as to what ought to be done, as to priorities, and as to how much should be raised by taxes or borrowed to that end. If government does act, then, when it acts in a manner short of ordinary prudence, liability could be judged as in the ease of a private party. So if a road were constructed of a design imperiling the user, the issue of fault would present no novel problem. But whether a road should have four or six or eight lanes, or there should be dividers, or circles or jug-handles for turns, or traffic lights, or trafile policemen, or a speed limit of 50 or 60 miles per hour—such matters involve discretion and revenue and are committed to the judgment of the legislative and executive branches. As to such matters, the question is whether a judge or jury could review the policy or political decisions involved without in effect taking over the responsibility and power of those other branches.

And, at 498, the court quoted from Van Alstyne, “Governmental Tort Liability: A Decade of Change,” 1966 U. Ill. L. F. 919, 975 (1966):

The principal rationale of the new version articulates a felt need to prevent juries, or judges sitting as triers of fact, from passing judgment upon decisions made by public officials in areas of policy and discretion where, by law, fundamental responsibility for making such decisions lias been vested in them. It seems clear that the notion of fault has diminished relevance in this context. Wholly arbitrary and capricious governmental action is rare, indeed; and it is difficult to discern how a lay jury can decide rationally in the artificial environment of a civil trial, that a responsible public official or board acted negligently in making a particular discretionary decision which ultimately had tort consequences. Almost invariably, a reasonable man could have decided either way; the presence of discretion and judgment as elements in the decisional process necessarily implies choice between alternatives which are equally defensible as rational conclusions drawn from good faith evaluation of competing arguments and policies. Since a rational determination in this context is inconsistent with the fault concept which underlies most tort law, the “discretionary immunity” has strong appeal along traditional conceptual lines.

It is necessary to examine the intent of the Legislature concerning the question of interest, and in this respect the case of Lindsay v. Boles, 61 N. J. Super. 516 (1960), is of importance:

As Mr. Justice Heher said in Alexander v. N[ew] J[ersey] Power & Light Co., 21 N. J. 373, 378 (1956):
“[A] statute is to receive a reasonable construction, to serve the apparent legislative purpose. The inquiry in the final analysis is the true intention of the law; and, in the quest for the intention, the letter gives way to the rationale of the expression. The words used may be expanded or limited according to the manifest reason and obvious purpose of the law. The spirit of the legislative direction prevails over the literal sense of the terms. The particular words are to be made responsive to the essential principle of the law. * * * The will of the lawgiver is to be found, not by a mechanical use of particular words and phrases, according to their actual denotation, but by the exercise of reason and judgment in assessing the expression as a composite whole. The indubitable reason of the legislative terms in the aggregate is not to be sacrificed to scholastic strictness of definition or concept. Wright v. Vogt, 7 N. J. 1 (1951). It is not the meaning of isolated words, but the internal sense of the law, the spirit of the correlated symbols of expression, that we seek in the exposition of a statute. The intention emerges from the principle and policy of the act rather than the literal sense of particular terms, standing alone. Caputo v. Best Foods, Ine. 17 N. J. 259 (1955).” [At 521]

And again:

As Mr. Justice Heker said in Consolidated Police & Firemen’s Pension Fund Commission v. City of Passaic, 23 N. J. 645, at page 652 (1957):
“® * * ‘Interest’ is an ‘exaction for past due obligations and in essence is a penalty or in the nature of a penalty.’ * * * Interest does not inhere in a tax as a legal incident. * * * ‘Interest when allowed is in contemplation of law, damages for the illegal detention of a legitimate claim or indebtedness.’ * * * It is the ‘computation allowed by law, or fixed by the parties, for the use or forebearanee of money, or as damages for its detention, ***.>*** in equity, interest has been allowed ‘either by way of damages for the detention of a fund, or by way of profit earned or advantage attained.’ * * * Chancery considers the equities of the case. * * [at 524]

Consideration of these eases indicate the intent of the Legislature to make the taxpayers of the community responsible for damage to property of innocent owners resulting from a breakdown in law enforcement, but it would appear that it would be against public policy to extend the intent of the Legislature to punish such taxpayers by a further penalty in the guise of interest.

Motion is therefore denied.


author: Herbert, J. S. C.

text:
    JOHN MESSENGER, ON BEHALF OF HIMSELF AND ALL PERSONS SIMILARLY SITUATED, PLAINTIFF, v. SANDY MOTORS, INC., A DOMESTIC CORPORATION, PEOPLES TRUST OF NEW JERSEY a/k/a PEOPLES TRUST CO. OF BERGEN COUNTY, AND THE STATE OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided September 29, 1972.

      Mr. Saul M. Ferster for plaintiff Messenger (Union County Legal Services Corporation).

      Mr. Robert S. Fisher for defendants Sandy Motors, Inc. and Peoples Trust of New Jersey (Messrs. Winne & Banta, attorneys; Robert S. Fisher, of counsel).
   Herbert, J. S. C.

Plaintiff charges that section 9-503 of the Uniform Commercial Code (N. J. S. A. 12A:9-503) is unconstitutional. The section reads in part as follows:

Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured parly may proceed without judicial process if this can be done without breach of the peace or may proceed by action. * * *

On July 10, 1970 plaintiff bought a used automobile from defendant Sandy Motors, Inc. The price was $1,674.75. The cash paid was $674.75, and plaintiff agreed to pay the balance, plus interest and insurance charges, in 24 equal monthly installments of $52.01 each. The details of the transaction were set out in a written agreement signed by plaintiff, by defendant Sandy Motors and by plaintiff’s wife as co-obligor. A printed form furnished by defendant Peoples Trust Company of New Jersey was used, and immediately following the transaction between plaintiff and Sandy Motors, Inc. the latter assigned all of its rights to the Trust Company.

The agreement of July 10, 1970 provided that

Seller retains a purchase money Security Interest in the Vehicle and all accessions until Buyer fully performs hereunder.

On the reverse side of the one-sheet document a number of contract terms are to be found, including the following:

In the event of default by Buyer hereunder, (1) the entire unpaid balance of the Total of Payments shall, at the option of Holder, become immediately due and payable, and (2) Buyer, upon demand, shall deliver the vehicle to Holder, or Holder may, with or without legal process and with or without previous notice or demand for performance, enter any premises wherein the vehicle may be and take possession of the same, together with anything in the vehicle.

Though easily readable, this quotation as well as the entire reverse side of the agreement is in fine print. On the other side, where the signatures appear, there is a reference in relatively large capital letters to the terms printed on the back of the document.

When plaintiff’s payment for October, 1971 fell due it was not made on time. Prior to October 1971 plaintiff had been more than ten days late with 12 payments out of a total of 14, and for two short intervals he had been in arrears for two payments at once. This history of the account bears upon the reasons of defendant bank for the action it took when the October 1971 payment was not received, and it shows considerable tolerance in the treatment of defaults.

By November 9, 1971 the bank had not received plaintiff’s payment for October and had no word from him about that payment. It decided to demand possession of the car, was unable to reach plaintiff by telephone, and sent by ordinary mail to plaintiff at his residence a written demand which he says was not received by him. Having received no payment from plaintiff and having heard nothing from him by way of explanation of his delay, the bank instructed an agency to repossess the car. On November 17, 1971 the car was taken from a parking area behind the building in which plaintiff had his apartment. Repossession took place without judicial process and without any breach of the peace. In fact, the car was taken away from the parking place without any physical confrontation with anyone. Plaintiff first learned about what had happened from the Linden police, who had been notified immediately by the agent who acted for the bank.

On November 17, 1971, the date of repossession, the bank received through the mail from plaintiff the payment for October. At the time of the repossession the bank’s collection department was not yet aware that payment had arrived. The payment due on November 13, 1971 was not made at the same time and was delinquent by four days when the repossession took place.

Having taken possession of the ear, defendant Trust Company proposed to sell it (N. J. S. A. 12A:9-504) and so notified plaintiff. He then brought this action. Among other things, he sought an interlocutory injunction against the sale. An order to show cause containing a preliminary restraint was issued. That was followed by a negotiated arrangement between the parties by which plaintiff got the car back and the account was reinstated. In relation to the negotiations an order was entered on December 3, 1971, consented to by the attorneys and by plaintiff personally, which provided in part that claims for nominal damages on certain counts of the complaint would survive. Plaintiff now urges that section 503 of the Uniform Commercial Code, by authorizing a secured creditor to take possession of security without a judicial proceeding, is in conflict with the Due Process Clause of the Federal Constitution. He also argues violation of the Fourth Amendment and of Article I, paragraphs 1 and 7 of New Jersey’s Constitution. He says that his car was, therefore, taken unlawfully by the bank’s agents on November 17, 1971 and that he is entitled to damages— though only nominal—for the unlawful taking. Plaintiff initially named the State as a defendant, but later a consent judgment of dismissal was entered on application of the Attorney General.

It is quite common for secured creditors, after default, to repossess automobiles by the peaceful use of self-help. Rarely, however, have the questions presented here been litigated. Yet it now seems apparent that those questions are before long going to be placed before the United States Supreme Court. The federal court for the Southern District of California, in cases involving peaceful repossession of automobiles following default under installment purchase contracts, has held sections 9503 and 9504 of the California Commercial Code unconstitutional under the due process clause of the Fourteenth Amendment of the United States Constitution. Adams v. Egley-Posadas v. Star and Crescent Fed. Credit Union (two cases), 338 F. Supp. 614 (S. D. Cal. 1972). The federal court for the Northern District of California on similar facts has reached the opposite result. Oller v. Bank of America, 342 F. Supp. 21 (N. D. Cal. 1972). In McCormick v. First National Bank of Miami, 322 F. Supp. 604 (S. D. Fla. 1971), the court ruled that plaintiff, whose automobile had been peacefully repossessed, had not suffered any infringement of constitutional rights.

Section 9503 in California is- identical with N. J. S. A. 12A:9-503. Section 9504 is identical with N. J. S. A. 12A:9-504, which provides for disposition of the collateral after it has been repossessed.

Two main questions are presented: (a) Is there a sufficient element of state action involved to make the Fourteenth Amendment to the Federal Constitution applicable at all? And (b) If the Fourteenth Amendment does apply, has plaintiff been denied due process?

In Adams, supra, it was argued that no state action or action under color of state law could be shown; that the creditor had merely exercised a right of self-help given to him under the terms of a private contract. The court rejected this argument and held, in reliance upon Reitman v. Mulkey, 387 U. S. 369, 87 S. Ct. 1627, 18 L. Ed. 2d 830 (1967), that sections 503 and 504 of Article 9 of the Code represented sufficient involvement by the State of California to bring within the scope of the Eourtenth Amendment repossessions of the cars in question. In Reitman the United States Supreme Court was concerned, not with procedural due process, but with racial prejudice and the rental of apartments. California had adopted legislation prohibiting discrimination in the sale or rental of some types of real estate. Then in 1964 the voters adopted an amendment to the state constitution providing that the state, its subdivisions and its agencies, should not deny, limit or abridge, directly or indirectly, the right of any person to sell or rent, or decline to sell or rent, to such person or persons as he in his absolute discretion might choose. The effect of the constitutional amendment was to repeal the anti-discrimination statutes. The California Supreme Court held that the amendment to the state’s constitution was invalid under the Fourteenth Amendment (64 Cal. 2d 529, 50 Cal. Rptr. 881, 413 P. 2d 825 and 64 Cal. 2d 877, 50 Cal. Rptr. 903, 413 P. 2d 847), and the United States Supreme Court by a vote of 4 to 5 reached the same result.

In Oiler, supra, the court disagreed with Judge Nielsen’s holding in Adams that sections 9503 and 9504 of the Uniform Commercial Code represented sufficient involvement by the State of California to bring peaceful repossession of an automobile by self-help within the scope of the Fourteenth Amendment. To support the holding that taking possession of the automobile did not constitute an action under color of state law within the meaning of the Fourteenth Amendment, Oiler reasoned that Judge Nielsen’s reliance upon Reilman, a case of racial discrimination in housing, was misplaced.

McCormick, supra, was decided a year before Adams and Oiler and one of the grounds there for holding in favor of the secured creditor and against the car buyer was that section 9-503 of the Uniform Commercial Code was not so involved in a repossession, which had been contracted for by the parties, as to bring tile Fourteenth Amendment into the case.

Section 9-503 of the Code limits a creditor’s use of self-help to peaceful situations, but does it create or substantially contribute to the creation of the right of self-help? I think not. It appears to me that section 503 in its first sentence says that the secured party has the right to take possession on default even though the agreement is silent on the subject, but says in effect that where the parties have agreed about possession after default their agreement is to control. The agreement here is the creative thing and the first three words of section 503 (“Unless otherwise agreed”) merely make it clear that the statute does not bar the parties from making contracts as they see fit about possession after default.

Although it can be argued to the contrary that the enactment of section 9—503 either created the right to repossession under which defendant Trust Company acted, or so influenced the draftsman of the contract form signed by plaintiff that the repossession provisions would not have been inserted if section 9-503 had never been put on the statute books, my conclusion is that the existence of the section did not make the taking of the automobile on November 17, 1971 an action under color of state law, within the meaning of the Fourteenth Amendment to the Federal Constitution. It might be difficult to sustain this conclusion if self-help never had been legally recognized prior to the adoption of the Uniform Commercial Code. However, self-help has been known to the common law for centuries. 2 Pollack & Maitland, The History of English Law (2d ed. 1968), 574; 2 Blackstone, Commentaries on the Laws of England (with analysis by T. Cooley, 4th ed., 1899), 856-858. Even the use of force is permissible in some situations when chattels are being recaptured by self-help. 1 Restatement, Torts 2d, § 100-111 (1965). The long-established right of a mortgagee of real estate to take possession after default also may be mentioned. 19 N. J. Digest, Mortgages, § 191.

The District Court judgment of Adams, supra, is on appeal to the Court of Appeals for' the Ninth Circuit, and I have been furnished with some of the material filed in support of the appeal. Among other things, I have been given a copy of the brief amicus curiae filed by Professor Mentsehikoff on behalf of the permanent editorial board for the Uniform Commercial Code. Near the end of that brief it is said:

Section 9-503 simply recognizes this common knowledge of buyers on time that repossession follows default and makes unnecessary its statement in tlie contract. It cannot be that codifying a generally understood practice of ancient and honorable lineage and surrounding it with safeguards renders the practice unconstitutional.

I think this comment sound and although at this stage of the opinion I am considering only whether the Fourteenth Amendment is applicable at all, I adapt the words to this context by saying that codification of the practice of self-help recaption by the enactment of section 9-503 cannot so give that practice the color of state law as to take it out of the private area and make it subject to the Fourteenth Amendment.

If I am mistaken in concluding that the Fourteenth Amendment does not apply to this case, then plaintiff’s contention that he was denied due process is to be considered. The record here contains much information about the business of financing automobile purchases as that business is carried on by a number of representative lenders. In addition to calling officers of defendant Trust Company as witnesses, defendants’ attorney presented testimony through Thomas McLaren, regional manager of the General Motors Acceptance Corporation; Eoger O. Schembs, national manager of the Operations Analysis Office of Ford Motor Credit Company; Donald N. Craven, vice-president for the eastern United States, of Chrysler Credit Corporation; Eoger W. Shaver, vice-president in charge of installment loans for the First Trust and Deposit Company of Syracuse, New York; Eobert Allen, vice-president in charge of installment loans for First Jersey National Bank; Cyril F. Gill, an officer of Monmouth County National Bank, and Paul J. Meitzelfeld, vice-president in charge of installment loans for the First National Bank of Toledo, Ohio. The General Motors, Ford and Chrysler companies acquire sales contracts from automobile dealers. The banks, in general, make both direct loans to car buyers and, as in the present case, get contracts by assignment from automobile dealers. The witnesses described the practices of their respective employers in handling collections and repossessions. There is a substantial degree of uniformity. Once a loan has been made or contract acquired, the necessary data about it is made part of a computer system. The computer is then relied upon to get out bills in advance of due dates and get out a late notice a few days after a failure to pay on time. If the debtor does not respond to a computerized notice that his account is delinquent, then the usual practice is to try to reach him by telephone. Much effort is made to keep accounts alive by adjusting the payment schedule and otherwise. Repossession is treated as a last resort, and when the decision is made to repossess it is usual practice to mail to the debtor notice of intent to repossess before a professional agency is directed to try to pick up the car.

Schembs of Eord Motor Credit Company gave rather comprehensive statistics. Through 146 branches (three of them in New Jersey) his company had 977,000 accounts nationally and 21,400 in this State. The total money value of the New Jersey accounts ran to $40,300,000. In New Jersey for the past year the company had 562 repossessions, but 97 of the cars were ultimately redeemed, making the net figure 465. In the whole country for the same period the total of repossessions by the Eord company was 38,142. In New Jersey Eord’s ratio of repossessions to total open accounts for the year was 2.6% and approximately 4% on a nationwide basis.

Although the testimony of the witnesses shows that the fairly select group of lenders represented by them have a relatively low ratio of recaption cases to all loans, the number of cars repossessed in a year is large. The New Jersey Division of Motor Vehicles has certified that 14,192 notices of seizure were filed with it for the year 1970, and 13,489 for the year 1971. Appended to the brief of Professor Mentschikoff, already referred to, is an article by Robert W. Johnson, Professor of Industrial Administration at Purdue University, entitled “Denial of Self-Help Repossessions: An Economic Analysis.” Professor Johnson says that at the end of the first quarter of 1972 there was $38.8 billion of consumer installment credit outstanding in the United States that had been used to finance the purchase of automobiles, citing 58 Fed. Res. Bul. A-56 (June 1972). He goes on to examine in some detail available statistics from California, the state in which the transactions before the court in Adams, supra, took place. He says that eight banks and finance companies reported 49,600 automobile repossessions in California during 1971. At page 35 of his article he writes:

Although this figure does not represent all of the repossessions, it represents a substantial portion, since the major banks and finance companies make up the sample. Missing from the sample are repossessions by credit unions, personal property brokers, and automobile dealers * * * Repossessions by smaller banks and the few independent finance companies in California are also omitted.

Under practices which have prevailed up to now some automobiles have had to be retaken by replevin. However, all of the evidence before me and the material found in the Johnson article show that the percentage of replevin cases has been so small as to be an unimportant factor in reckoning the cost of changing over to a legally acceptable replevin system in all eases.

When considering costs, repossessions which the witnesses call “voluntary” may be of some importance. This term is used to indicate a situation in which the car buyer who is in default delivers the car to the hank or finance company or turns over his keys. Dor example, Shaver of the Hirst Trust and Deposit Company of Syracuse testified to over 11,000 outstanding car loans in 1971 and to a total of 235 repossessions, of which 120 were “voluntary.” It can be argued plausibly that if a hearing on notice should be made a requirement in each case, then delinquent car buyers will wait for the proceeding to be started and will not surrender the car voluntarily at some earlier stage; but no one can be sure about that.

The witnesses before me were firm in their opinions that changes in recaption procedure to meet the requirements of Adams, supra, would impose substantial additional costs of doing business. It was testified that under present practices the bank or finance company sustains losses in a large percentage of repossession cases. This indicates a limited possibility of passing along to a particular defaulting car buyer the direct costs of repossessing his automobile by a legal proceeding, and further indicates that much of the burden of doing business in the new way ultimately would be borne by all who buy cars on credit. Witnesses also expressed the view that the only practical way to minimize the costs of conforming with the Adams case would be to select credit risks with greater care, thus keeping down the number of replevin cases. Professor Johnson also points out other elements of cost which would bear on the situation: the cost to the public of a substantial volume of additional court cases, a longer time to get possession of a car after a contract goes into default, great car depreciation, and so on.

Among thousands of recaptions a year one can imagine there are some in which ear buyers get harsh treatment, but there is nothing before me to prove unfair tactics are in any degree usual. As for plaintiff, it has already been noted that a number of earlier defaults were tolerated before it was decided to take his car; and, although at the time of the taking he was out of work and depending largely upon unemployment compensation, he promptly obtained legal representation through the Union County Legal Services Corp. and with that help, in addition to bringing this action, was able to negotiate an arrangement for the prompt return of the automobile to him.

The finding in Adams, supra, of a lack of due process is based upon the conception that Sniadach v. Family Finance Corporation, 395 U. S. 337, 89 S. Ct. 1820, 23 L. 2d. 2d 349 (1969), controls and the principles there applied by the Supreme Court, while holding a garnishment statute of Wisconsin unconstitutional because it failed to provide for notice and a hearing as a prerequisite for withholding wages, are similarly applicable to the retaking of an automobile by a secured creditor after default. Among the comments about Sniadach in the Adams opinion are these:

Some courts have interpreted the decision narrowly, and have confined it to its own facts. See Brunswick Corporation v. J & P, Inc., 424 F. 2d 100 (10th Cir. 1970); Termplan, Inc. v. Superior Court, 105 Ariz. 270, 463 P. 2d 68 (1969); Michael’s Jewelers v. Handy, 6 Conn. Cir. 103, 266 A. 2d 904 (1970); Mills v. Bartlett, 265 A. 2d 39 (Del. Super. 1970).
However, the great weight of authority, both state and federal, has taken a broader approach, seeing in Sniadach not a special constitutional rule for wages, but a return of “the entire domain of prejudgment remedies to the long-standing procedural due process principle which dictates that except in extraordinary circumstances, an individual may not be deprived of his life, liberty, or property without notice and hearing.” Randone v. Appellate Dept., 5 Cal. 3d 536, 547, 96 Cal. Rptr. 709, 715, 488 P. 2d 13, 19 (1971). [338 F. Supp. at 618]

Since Adams the United States Supreme Court has decided Fuentes v. Shevin, 407 U. S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972), holding unconstitutional on due process grounds replevin statutes of Florida and Pennsylvania under which writs against household goods had been issued without prior notice of any proceeding and without an opportunity for the possessors of the goods to have a hearing before seizure. Since Adams the Supreme Court also has decided D. II. Overmeyer Co., Inc. v. Frick Co., 405 U. S. 174, 92 S. Ct. 775, 31 L. Ed. 2d 124 (1972), and there refused to hold invalid on constitutional grounds judgment on a cognovit note that had been obtained in Ohio by Frick against Overmyer without first giving notice and an opportunity to be heard. Taken together, Fuentes and Overmyer demonstrate that there is some flexibility in fashioning due process requirements to fit different situations. The cognovit note given to the Frick Company had been bargained for by businessmen and their attorneys. At the close of his opinion for the majority in Overmyer, Justice Blackmun wrote:

Some concluding comments are in order:

1. Our holding necessarily means that a cognovit clause is not, per se, violative of Fourteenth Amendment due process. Overmyer could prevail here only if the clause were constitutionally invalid. The facts of this case, as we observed above, are important, and those facts amply demonstrate that a cognovit provision may well serve a proper and useful purpose in the commercial world and at the same time not be vulnerable to constitutional attack.
2. Our holding, of course, is not controlling precedent for other facts of other cases. For example, where the contract is one of adhesion, where there is great disparity in bargaining power, and where the debtor receives nothing for the cognovit provision, other legal consequences may ensue. [405 U. S., at 187, 92 S. Ct., at 783, 31 L. Ed. 2d, at 135]

Both Overmyer and Fuentes dealt directly with the constitutional sufficiency of judicial proceedings in state courts; neither was a case of self-help. When the courts of a state are being used to enforce claims I think there is more reason for critical examination of what the state requires and more reason for demanding prior notice and hearing than there is in a case in which a creditor, without any assistance from the state’s courts or the state’s officers, seeks to enforce his rights to take possession of the security peaceably. Whether that view has merit or does not, I think paragraph 1 of the above quotation from Justice Blackmun’s opinion bears forcefully upon the type of case of which this one is an example.

It must be conceded, however, that if plaintiff’s car had been taken by replevin in November 1971, probably there would have been a violation of due process under Fuentes, supra. Prior to Fuentes New Jersey’s replevin practice was like that of Florida and Pennsylvania in its failure to require a hearing and notice before issuing a writ. This concession leads to the following question: If it is unconstitutional to take by replevin, without prior notice and hearing, household goods which are subject to section 9-503 of the Code from a buyer whose payments are delinquent, on what groitnds, if any, can a different result be reached if an automobile is the subject of the taking and peaceful self-help is the method? Differences between house furnishings and car are not significant; Justice Stewart’s opinion for the majority of four in Fuentes has clearly said no distinction is to be drawn because a citizen has been deprived of one type of property rather than another. (407 U. S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d, at 574-575). Keeping in mind that this portion of my opinion assumes that section 9-503 represents sufficient state action to bring the Fourteenth Amendment into play, then what significant differences are there between the replevin case and the self-help case ? There are several.

The contract Mrs. Fuentes had signed — a contract of adhesion — provided that upon default the seller of the goods might at its option “take back the merchandise”; and the contract signed by the Pennsylvania appellants in Fuentes provided that the seller “may retake” or “repossess” the merchandise in the event of default. Nothing was said in either contract about waiving notice of a hearing, and it appears that the documents did not contain any reference to a replevin action (407 U. S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d, at 578-579). The contract signed by Mr. and Mrs. Messenger, although it, too, was one of adhesion, provided that upon default the contract holder might “with or without legal process and with or without previous notice or demand” take possession of the car together with anything in it. Thus, the limitations on a contract of waiver which the court pointed to in Fuentes are not present here. Although Justice Stewart noted (407 U. S. at 95, 92 S. Ct. at 2002, 32 L. Ed. 2d, at 578) that the appellees in Fuentes had made no showing that the appellants “were actually aware or made aware of the significance of the fine print * * * relied upon as a waiver of constitutional rights,” I do not read his opinion as a determination that contract language spelling out — as does the wording before me — the right to retake without previous notice must be held invalid because any retaking in conformity with the contract wording would be violative of Fourteenth Amendment due process, in the absence of proof that the debtor who signed was actually aware of the provisions relating to retaking.

It may be that Mrs. Fuentes did no realize her failure to pay would bring an officer to her door armed with a writ of replevin which had been issued without any notice to her, but the position of one who buys a car on credit is significantly different. Thousands of cars are repossessed each year. It is difficult to believe the buying public is not well informed of the likelihood of repossession by the bank or finance company if installments are not paid. Plaintiff does not say that he lacked knowledge of such likelihood or that he was unaware of the express terms of his contract; the argument for him is that with or without knowledge of the consequences of default, he and those similarly situated are entitled by the Constitution to a hearing on notice before recaption. I think that argument must be rejected. A car buyer, having a wealth of experience all around him to draw upon and make him aware of the possibility of repossession, is not in a situation where he can properly claim that recaption of his car is a violation of his right to due process because, and only because, no prior hearing on notice to him took place.

Finally, the dissenting opinion of Justice White in Fuentes, an opinion in which the Chief Justice and Justice Blackmun concurred, contains comments which can be applied soundly to the present case:

Third: The Court’s rhetoric is seductive, but in end analysis, the result it reaches will have little impact and represents no more than ideological tinkering with state law. It would appear that creditors could withstand attack under today’s opinion simply by making clear in the controlling credit instruments that they may retake possession without a hearing, or, for that matter, without resort to judicial process at all. Alternatively, they need only give a few days’ notice of a hearing, take possession if hearing is waived or if there is default; and if hearing is necessary merely establish probable cause for asserting that default has occurred. It is very doubtful in my mind that such a hearing would in fact result in protections for the debtor substantially different from those the present laws provide. On the contrary, the availability of credit may well be diminished or, in any event, the expense of securing it increased.
None of this seems worth the candle to me. The procedure which the Court strikes down is not some barbaric hangover from bygone days. The respective rights of the parties in secured transactions have undergone the most intensive analysis in recent years. The Uniform Commercial Code, which now so pervasively governs the subject matter with which it deals, provides in Art 9, § 9-503, that:
Recent studies have suggested no changes in Art 9 in this respect. See Permanent Editorial Board for the Uniform Commercial Code, Review Committee for Article 9 of the Uniform Commercial Code, Final Report, § 9-503 (April 25, 1971). I am content to rest on the judgment of those who have wrestled with these problems so long and often and upon the judgment of the legislatures that have considered and so recently adopted provisions that contemplate precisely what has happened in these cases.

My conclusion is that if the Fourteenth Amendment has any application at all to this case, there has been no violation of the due process clause. As mentioned earlier, plaintiff also argues on the basis of various other constitutional grounds, both federal and state. It is my view that the only real question in this case is one of due process and that the references to other constitutional provisions have no merit.

Judgment will be entered for defendants against plaintiff.


author: Osborne, J. S. C.

text:
    LEIMPETER’S DISPOSAL SERVICE, INC., A NEW JERSEY CORPORATION; AND JOHN F. LEIMPETER, INDIVIDUALLY, PLAINTIFFS, v. MAYOR & COUNCIL OF THE BOROUGH OF CARTERET AND THE BOROUGH OF CARTERET, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided September 26, 1972.

      Mr. Peter J. Selesky for plaintiffs (Messrs. Selesky, Kolsky, & Epstein, attorneys).

      Mr. Edward J. Dolan for defendants.
   Osborne, J. S. C.

This is an action in lieu of prerogative writs challenging the validity of an ordinance amendment limiting use of the Borough of Carteret municipal disposal area.

Plaintiffs John Leimpeter and Leimpeter’s Disposal Service, Inc. (hereinafter referred to collectively as “Leimpeter”) are, respectively, the principal stockholder and operator of a solid waste collection business located in Carteret. Leimpeter holds an environmental protection number issued by the Bureau of Solid Waste Management, N. J. S. A. 13:1E-4, and is licensed by the Public Utilities Commission.

The amendment under consideration, ordinance 71-14, was adopted by the defendant borough council on September 21, 1971, effective October 4, 1971. It reads in pertinent part:

19-10 (b). No person or party engaged in the act, business or practice of a private scavenger, or transporter and disposer of garbage, refuse, trash or wastes, of any nature whatsoever having its origin in any commercial, mercantile, business or industrial operation or establishment situated in the Borough of Oarteret shall dump or dispose of same in any Borough of Carteret owned or operated municipal ground or refuse disposal area or landfill site.

Prior to the adoption of this amendment Leimpeter, as well as other solid waste collectors, had utilized the Carteret disposal site on a fee basis. Carteret had created a municipal disposal area in 1969 by ordinance 69-09, effective July 23, 1969.

It is clear from a reading of the amendment that proprietary waste collectors are no longer permitted to dispose of nonresidential waste originating in Carteret in the municipal area. However, the amendment does allow owners of such property to deposit their own refuse in the municipal facility. In effect, a Carteret mercantile, business or commercial establishment might purchase or lease a vehicle to transport its waste to the local site, hut under the amendment it cannot engage an independent contractor such as plaintiffs to perform the same service. Leimpeter alleges this distinction makes the amendment unreasonable, arbitrary and capricious, thereby denying plaintiffs the equal protection of the laws. Leimpeter also seeks damages to the extent of its added business expenses in transporting Carteret originated waste to a commercial disposal area outside the borough. Defendants contend that the amendment is a reasonable exercise of municipal police power. The borough counterclaims for fees allegedly owed it by Leimpeter under the prior 1969 ordinance.

At the hearing of this matter defendants moved to dismiss plaintiffs’ complaint on the ground that the action was not timely under B. 4:69-6(a), which reads as follows:

General Limitation. No action in lieu of prerogative writs shall be commenced later than 45 days after the accrual of the right to the review, hearing or relief claimed, except as provided by paragraph (b) of this rule.

Paragraph (b) lists a number of special time limitations inapplicable here.

The amendment in question took effect October 4, 1971, whereas plaintiffs’ complaint was not filed until March 23, 1972. Leimpeter was aware of the amendment soon after its adoption, for he filed a petition with the Public Utilities Commission on October 13, 1971 seeking to compel defendants to open the Carteret site to him. This petition was denied, the Commission apparently lacking jurisdiction of the matter since the Carteret area no longer imposed a fee, thus disqualifying it as a “public utility.” See N. J. S. A. 48:2-13; In re Borough of Glen Rock, 25 N. J. 241 (1957); Petition of South Lakewood Water Co., 115 N. J. Super. 352 (App. Div. 1971).

This action clearly was not brought within the general time limitation of R. 4:69-6. However, subsection (c) of this rule provides:

Enlargement. The court may enlarge the period of time provided in paragraph (a) or (b) of this rule where it is manifest that the interest of justice so requires.

The stringent time requirement for commencement of actions in lieu of prerogative writs has traditionally been relaxed when a constitutional question is raised. Schack v. Trimble, 28 N. J. 40 (1958); Oldfield v. Sloeco Homes, Inc., 26 N. J. 246 (1958); McKenna v. N. J. Highway Authority, 19 N. J. 270 (1955); Holloway v. Pennsauken Tp., 12 N. J. 371 (1953); Nelson v. South Brunswick Planning Bd., 84 N. J. Super. 265 (App. Div. 1964); Catalano v. Pemberton Tp. Bd. of Adjustment, 60 N. J. Super. 82 (App. Div. 1960).

Though the comment to subsection (c) speaks of a “substantial or novel” constitutional question, more recent cases construing the exception have permitted relaxation whenever a credible constitutional argument is advanced. See, e. g., Nelson v. South Brunswick Planning Bd., supra, 84 N. J. Super. at 275-276.

Plaintiffs’ allegations raise a valid equal protection question deserving discussion on its merits.

Defendants’ motion to dismiss is denied.

Carteret municipal officials testified that the amendment was adopted to protect the public health by preventing waste of non-Carteret origin from being deposited in the municipal disposal area. Under the 1969 ordinance the borough had found it impossible to detect the origin of solid waste, especially that collected by private scavengers such as Leimpeter who have customers in various municipalities. The State Department of Environmental Protection had often cited the borough for violations of the State Sanitary Code, culminating in May 1971 with the closing of the disposal area until it conformed with Code regulations.

As a result, the borough took remedial steps. It ceased operating the disposal facility as a proprietary enterprise in order to remove it from the jurisdiction of the Public Utilities Commission. N. J. S. A. 48:2-13, 48:13A-1 et seq. See Bergen County v. Department of Public Utilities, 117 N. J. Super. 304 (App. Div. 1971). (A nonproprietary municipal facility intended solely for local use, though not a “public utility” for P. U. C. jurisdictional purposes, is still subject to the provisions of N. J. S. A. 13:1E-1 et seq., the Solid Waste Management Act. This act vests the State Department of Environmental Protection with broad regulatory powers over solid waste management.) In this manner Carteret officials could limit access to the disposal site.

Secondly, the borough adopted the aforequoted amendment prohibiting use of the municipal facility by private solid waste collectors. This measure significantly diminished the quantity of waste entering the disposal area, thereby making it less burdensome to maintain the site in a sanitary fashion.

Testimony also revealed that Carteret spent approximately $90,000 to improve and upgrade the disposal facility. As a result of this expenditure and the adoption of the amendment in issue the borough has not been cited for Sanitary Code violations since October 4, 1971.

The safeguarding of public health is an essential governmental function within the police power of the State. West Caldwell v. Caldwell, 26 N. J. 9 (1958). As a result, municipalities have long been given the power to adopt legislation over the removal and disposal of waste in order to promote the public health, comfort and safety. Dover Tp. v. Witt, 7 N. J. Super. 259 (App. Div. 1950). Such regulation is presumed valid, N. J. Const. (1947), Art. IV, § VII, par. 11, and will be upset only when “palpably unreasonable.” Id. at 262. As to the wide latitude afforded municipalities in controlling waste disposal, see N. J. S. A. 40:66-1 et seq.

A municipal regulatory ordinance will be sustained whenever it bears a reasonable relation to the safeguarding of public health. Gilman v. Newark, 73 N. J. Super. 562 (Law Div. 1962); Marangi Bros. v. Bd. of Com’rs, Ridgewood, 33 N. J. Super. 294 (App. Div. 1955). Carteret has a valid interest in promoting good health by excluding non-Carteret waste from its disposal area, a limitation clearly within the municipal police power. Public Health Council v. Franklin Tp. Bd. of Health, 108 N. J. Super. 239 (App. Div. 1970). Because of the prior difficulties encountered by Carteret in effecting this legitimate end, it cannot be said that the means chosen was unreasonable.

Leimpeter’s contention that a private waste collector should be treated alike with a property owner is without merit. Different considerations govern municipal treatment of these distinct classes. A municipality may not favor individual residences over multi-family dwellings in providing garbage collection service. Teagen Co. v. Bergenfield, 119 N. J. Super. 212 (Law Div. 1972); Boulevard Apartments, Inc. v. Mayor, etc. of Lodi, 110 N. J. Super. 406 (App. Div. 1970). Yet, a municipality may determine the method of waste collection and disposal by contracting with one solid waste collector to the exclusion of all others. Marangi Bros. v. Bd. of Com’rs, Ridgewood, supra.

To a large extent, then, whether a waste disposal regulation unlawfully discriminates depends upon the class with which it deals. A municipality must treat its residents alike with respect to municipal waste collection, but it is nonetheless free to prohibit a given means of disposal to further the public health. If the Carteret amendment discriminates unfairly, it does so with respect to its own nonresidential establishments, which are now deprived of having plaintiffs collect their waste for disposal in the Carteret facility. But this question is not before the court, and cannot, of course, be raised by these plaintiffs. Nelson v. South Brunswick Planning Bd., supra, 84 N. J. Super. at 276.

Perhaps Carteret has not chosen the most judicious means of protecting the public health. However, considering the expansive police powers afforded municipalities in waste regulation, the amendment as adopted is valid as not palpably unreasonable.

It should also be observed that the amendment affects all private solid waste collectors, and not Leimpeter specifically. Persons situated alike shall be treated alike. Boulevard Apartments, Inc. v. Mayor, etc., of Lodi, supra, 110 N. J. Super. at 410-411.

Because the amendment’s validity is upheld, it is unnecessary to consider Leimpeter’s claim for damages. It might be noted, however, that no cause of action against a municipality can be grounded on the alleged invalidity of an official legislative determination, even if such legislation is subsequently declared invalid. Visidor Corp. v. Borough of Cliffside Park, 48 N. J. 214 (1966); Veling v. Borough of Ramsey, 94 N. J. Super. 459 (App. Div. 1967).

Defendant Borough of Carteret has counterclaimed for $6,340 allegedly owed it by Leimpeter for use of the disposal area between September 1, 1970 and July 1971. At that time the borough imposed a fee of five dollars for disposing of a small load of waste (up to five tons) at the site, and ten dollars for a large load (over five tons). The amount claimed was compiled from records kept in the regular course of Carteret municipal business. Leimpeter did not dispute the sum, but merely stated that the amount was not owed. No proof was offered as to this contention, and the borough is therefore entitled to recover $6,340 from plaintiffs.


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

text:
    SYBIL KAUFMAN, PLAINTIFF-RESPONDENT, v. JOSEPH PANNUCCIO a/k/a JOSEPH PAYNE, and JOSEPH RUSSO, DEFENDANTS-APPELLANTS, and THE CITY OF PASSAIC, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT. CITY OF PASSAIC, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH (PAYNE) PANNUCCIO, JOSEPH R. RUSSO AND DANIEL F. RYAN, DEFENDANTS-APPELLANTS. (APPEAL OF JOSEPH R. RUSSO)
    Superior Court of New Jersey Appellate Division
    Argued September 26, 1972
    Decided October 4, 1972.
    See also 121 N. J. Super. 32.

      Before Judges Labbecque, Kolovsky and Matthews.

      Mr. John W. Noonan argued the cause for appellant Joseph B. Busso (Messrs. Noonan & Flynn, attorneys).

      Mr. Joseph F. Scancarella argued the cause for respondent City of Passaic.

      Mr. Henry Ramer argued the cause for respondent Sybil Kaufman.
   The opinion of the court was delivered by

Labrecque, P. J. A. D.

On March 8, 1972 plaintiff Sybil Kaufman, a resident and taxpayer of the City of Passaic, filed a complaint in lieu of prerogative writs challenging the right of Joseph Pannuccio, a/k/a Joseph Payne, and Joseph B. Busso (Busso) to sit as members of the city council on the ground that their offices as eouncilmen were incompatible with other municipal offices held by them. At that time Pannuccio was an assistant tax assessor and Busso was a police lieutenant in the city police department.

The City of Passaic filed a second complaint, seeking a declaratory judgment as to the status of Pannuccio, Busso and another councilman, Daniel P. Eyan, who was employed by the board of education as a guidance counselor in the Passaic school system. The two actions were subsequently consolidated and, after hearing, the trial court, in a letter opinion, concluded that the positions held by each were incompatible and ordered each to make an election within 30 days as to which of the two offices he held would be vacated. Each was restrained from exercising his duties as a councilman until he had made his election.

Each of the eouncilmen appealed and, on separate motions, we stayed so much of the judgment as would have required them to elect within 30 days which office they would vacate. On our own motion the hearing of the appeals was accelerated. Pannuccio’s appeal was withdrawn prior to the accelerated hearing date, he having elected to retain his office as councilman.

The trial court held that Pannuccio and Russo were in a position where they, as members of the municipal council, had the power and authority to take official action affecting their status as city employees holding positions subject to the authority of the council, relying principally upon O’Connor v. Calandrillo, 117 N. J. Super. 586 (Law Div. 1971), and De Feo v. Smith, 17 N. J. 183 (1955). In doing so it noted the absence of any claim of bad faith, or any evidence thereof.

Russo raises but one point, that his position as a lieutenant in the Passaic Police Department was not incompatible with his holding office as a member of the council. We disagree, and affirm the judgment of the Law Division.

The City of Passaic is a municipal corporation operating under Council-Manager Plan C of the Faulkner Act. N. J. S. A. 40:69A-104 to 108. All powers of the municipality and the determination of matters of policy are, with few exceptions, vested in the elected municipal council. N. J. S. A. 40:69A-88. The municipal manager is the chief executive officer. N. J. S. A. 40:69A-95. He is required to prepare a budget, N. J. S. A. 40:69A-96, and to submit it to the council, which is charged with the duty of adopting a budget and appropriating the monies therefor, N. J. S. A. 40:69A-88. The council is also vested with the power to establish, alter and abolish offices, positions and appointments, to define the functions, powers and duties thereof and to fix their term, tenure and compensation. N. J. S. A. 40:69A-29, 30, 88, 90.

The common law doctrine of incompatibility has developed as a matter of sound public policy. State ex rel. Clawson v. Thompson, 20 N. J. L. 689 (Sup. Ct. 1846). It is calculated to insure that there be the appearance as well as the actuality of impartiality and undivided loyalty. Incompatibility is generally understood to mean a conflict or inconsistency in the functions of an office. It may be said to exist “where in the established governmental scheme one office is subordinate to another, or subject to its supervision or control, or the duties clash, inviting the incumbent to prefer one obligation to another.” Reilly v. Ozzard, 33 N. J. 529, 543 (1960). See also McDonough v. Roach, 35 N. J. 153, 155, 157 (1961); Jones v. MacDonald, 33 N. J. 132, 136 (1960); Ahto v. Weaver, 39 N. J. 418, 422-424 (1963); O’Connor v. Calandrillo, supra, 117 N. J. Super. at 589. If the duties of the two offices are such that when “placed in one person they might disserve the public interests, or if the respective offices might or will conflict even on rare occasions, it is sufficient to declare them legally incompatible.” De Feo v. Smith, supra, 17 N. J. at 189.

Where incompatibility has been shown to exist, it is no answer to say that, should there be a conflict in duty, an incumbent may omit to perform one of his incompatible roles. Jones v. MacDonald, supra, 33 N. J. at 138. And as was pointed out in the latter case:

Public policy demands that an office holder discharge his duties with undivided loyalty. The doctrine of incompatibility is intended to assure performance of that quality. Its applicability does not turn upon the integrity of the person concerned or his individual capacity to achieve impartiality, for inquiries of that kind would be too subtle to be rewarding. The doctrine applies inexorably if the offices come within it, no matter how worthy the officer's purpose or extraordinary his talent, (at 135)

Here we are clear that Itusso’s position as a lieutenant in the police department is incompatible with his position as a member of the municipal council. O’Connor v. Calandrillo, supra, 117 N. J. Super. at 590-591. As a member of the council he would be empowered and called upon to, pass upon matters involving salary, tenure and promotion of members of the police department, including himself. The fact that the council is required to deal with the administrative service of the city through the city manager, N. J. S. A. 40:69A-91, does not cure the incompatibility. Indeed, it may be noted that the manager is appointed by the council, N. J. S. A. 40:69A-89, and his tenure is at all times subject to termination by a majority of the council, N. J. S. A. 40:69A-93.

The judgment of the Law Division holding the offices held by Russo to be incompatible is affirmed, as is likewise that portion thereof permitting Russo to elect within 30 days which position he wishes to retain. McDonough v. Roach, supra, 35 N. J. at 159-160; O’Gonnor v. Calandrillo, supra, 117 N. J. Super. at 592-593. So that the business of the city will not be unduly impeded, we direct that the 30-day period shall begin to run upon the filing of this opinion.


text:
    SYBIL KAUFMAN, PLAINTIFF-RESPONDENT, v. JOSEPH PANNUCCIO a/k/a JOSEPH PAYNE, AND JOSEPH RUSSO, DEFENDANTS-APPELLANTS, AND THE CITY OF PASSAIC, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT. CITY OF PASSAIC, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH (PAYNE) PANNUCCIO, JOSEPH R. RUSSO AND DANIEL F. RYAN, DEFENDANTS-APPELLANTS. (APPEAL OF DANIEL F. RYAN)
    Superior Court of New Jersey Appellate Division
    Argued September 26, 1972
    Decided October 4, 1972.

      Before Judges Labrecque, Kolovsky and Matthews.

      Mr. Abraham L. Friedman argued the cause for appellant Daniel F. Ryan (Messrs. Rothbard, Harris & Oxfeld, attorneys; Mr. Emil Oxfeld, of counsel).

      Mr. Joseph F. Scancarella argued the cause for respondent City of Passaic.
   The opinion of the court was delivered by

Labrecque, P. J. A. D.

Defendant Daniel P. Ryan, a member of the Passaic municipal council, appeals from a judgment of the Law Division holding his position as a Guidance Counselor in the Passaic school system to be incompatible with that of councilman, and requiring him to elect, within 30 days, whether to serve his term as councilman or retain his position in the school system.

The facts leading up to the present controversy are fully detailed in the opinion filed simultaneously herewith involving the companion appeal of Joseph R. Russo, 121 N. J. Super. 27.

Ryan’s employer was the Board of Education of the City of Passaic. Passaic is a type II school district in which the members of the board of education are elected. N. J. S. A. 18A:12-11. There is no board of school estimate and the school budget is submitted annually to the legal voters of the district for their approval. N. J. S. A. 18A:22-32 and 33.

In holding Ryan’s positions to be incompatible the trial judge ruled that "the municipal council, of which Councilman Ryan is a member, has the opportunity and duty to pass upon matters concerning the salaries of employees of the Board of Education in the event of a rejection of the school budget by the voters.” This appears to be an oversimplification of the function to be performed by the council in the event that an item in the proposed budget of the board of education is not approved by a majority of the voters at the annual school election. In such case the governing body is required to consult with the board and thereafter determine and certify the amount which in its judgment is necessary to be appropriated for each item appearing in the budget. N. J. S. A. 18A-.22-37. Should it fail to do so the Commissioner of Education shall determine such amount. N. J. S. A. 18A:22-38. In no ease is the governing body vested with power to do more than certify the gross amount necessary to be appropriated for each item appearing in the budget. The allocation of such funds as may be certified remains a matter committed solely to the discretion of the board.

Counsel has cited no case, and we know of none, in which it has been held that one holding a position, such as the one here involved, in a municipal school system administered by an elected board of education, may not, on the ground of incompatibility, hold office simultaneously as a member of the governing body of the same municipality. Compare Jones et al. v. Kolbeck et al., 119 N. J. Super. 299 (App. Div. 1972).

The test here is incompatibility in the functions or duties of the office rather than a mere possibility of a conflict of interest. Jones, supra, at 301. Here even the possibility of conflict is so remote as to be in reality nonexistent.

While we conclude from the record that the judgment as to Eyan must be set aside, any doubt on this score is resolved by the signing into law by the Governor on September 7, 1972 of a supplement to Title 18A, Assembly Bill No. 1355, which reads:

1. No person employed by a public educational system or institution in a position which requires a certificate issued by the State Board of Examiners, or employed in a professional educational capacity by a school, college, or university which is either tax-supported or operated under contract with the State or on behalf of the State shall be disqualified by reason of such employment from holding any elective or appointive State, county or municipal office excepting as member of the board or body by which he is employed.
2. This act shall take effect immediately.

See Staudter v. Elter, 64 N. J. Super. 432, 436 (App. Div. 1960); Cranberry Lake Quarry Co. v. Johnson, 95 N. J. Super. 495, 516 (App. Div. 1967).

The judgment as to Eyan is accordingly reversed.


text:
    HENRY JORDAN AND EMILY JORDAN, PLAINTIFFS-RESPONDENTS, v. CITY OF NEWARK, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted October 2, 1972
    Decided October 18, 1972.

      Before Judges Fritz, Lynch and Demos.

      Mr. William H. Walls, attorney for appellant (Mr. William Rossmoore, on the brief).

      Mr. Mario V. Farco, attorney for respondents (Mr. John E. Hughes, on the brief).
   Pee Curiam.

In this personal injury, negligence, fall down action, defendant appeals from a jury verdict in favor of plaintiff. The wife’s claim was abandoned. Defendant seeks a new trial, asserting along with other grounds, that it was improperly deprived of a trial with a jury of 12.

Both parties had made timely demand for a jury of 12 pursuant to R. 1:8-2(b), effective September 13, 1971.

The rule provides:

A demand for a jury in a civil action is deemed to be a demand for a jury of 6 unless such demand expressely requests a jury of 12.

At trial time plaintiff consented to proceed with a jury of six while defendant pressed the demand for a jury of 12. The trial court refused to accede to the demand and ordered the trial to proceed with a jury of six.

The N. J. Const. (1947), Art. I, par. 9, provides in part:

The right of trial by jury shall remain inviolate * * *

The constitutional guarantee of jury trial has been interpreted to mean a jury of 12. State v. James, 96 N. J. L. 132, 136 (E. & A. 1921).

Under the circumstances herein, defendant’s right to a trial by a jury of 12 was improperly denied.

Defendant did not waive its right to a jury of 12 by participating in the trial pursuant to the court’s direction.

Reversed and remanded for a new trial.


author: Labrecque, P. J. A. D. Kolovsky, J. A. D.

text:
    SYLVIA McCLAIN, PLAINTIFF-APPELLANT, v. EUGENE JONES AND ROBERT PONCZEK, BY HIS GUARDIAN AD LITEM EVELYN SHACK, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted September 26, 1972
    Decided October 11, 1972.

      Before Judges Labrecque, Kolovsky and Matthews.

      Messrs. Brenner, New & Brenner, attorneys for appellant Sylvia McClain (Mr. Herbert New, of counsel and on the brief).

      Messrs. Rooney, Peduto & Rooney, attorneys for respondent Eugene Jones (Mr. Gustave A. Peduto, of counsel and on the brief).

      Respondent Robert Ponczek, by his guardian ad litem Evelyn Shack, filed no brief.
   The opinion of the court was delivered by

Labrecque, P. J. A. D.

Plaintiff Sylvia McClain appeals from a judgment in favor of defendant Eugene Jones based upon an order granting summary judgment.

Plaintiff sued for injuries sustained when she was struck by an automobile owned by Jones and driven by defendant Robert Ponczek. Considered in the light most favorable to plaintiff the facts are that Jones had parked his 1959 Cadillac in a shopping center parking lot in Jersey City at about 5 p.m. while he transacted some business in one of the stores. Some time thereafter Ponczek, who was 14 years old, noticed the car door unlocked. When he entered the car he found that, while the key had been removed from the ignition lock, the lock itself was in such a position that he was able to turn it by means of a screwdriver and get the car started. After taking his girl friend for a ride he parked the car overnight near his home. In doing so he turned the ignition switch “all the way off,” thus locking it.

When Ponczek sought to start the car the following morning he was unable to turn on the ignition through the use of the screwdriver. After a search with the aid of a flashlight he found a key under the front seat which fitted the ignition switch. He then started the motor and drove off with three companions. Later, in the afternoon, he drove the car onto the sidewalk, striking and severely injuring plaintiff.

The key was never produced. Immediately after the accident Ponczek told the police that he had left it in the ignition, but in his deposition he testified that he had taken it out of the ignition and did not recall what he had done with it.

In granting summary judgment the trial judge followed Saracco v. Lyttle, 11 N. J. Super. 254 (App. Div. 1951). Plaintiff argues that that case has since been overruled, in part at least, by Zinck v. Whelan, 120 N. J. Super. 432 (App. Div. 1972), which mandates a reversal.

In Zinck c. Whelan defendant-owner’s ear was left parked with the key in the ignition switch. Early on the following morning Whelan, a 17-year-old, found the key in the ignition and appropriated the car. Two days later, while the car was being driven by Whelan some 50 miles from the scene of the theft, he collided head-on with the plaintiffs. In that case, after a review of the authorities, it was noted:

A study of the authorities cited above makes it evident that basically the key to duty, negligence and proximate cause in the fact-pattern under review is the foreseeability vel non to a reasonable man of an unreasonably enhanced hazard, when a motor vehicle is left unlocked in a public place with key in the ignition, of both the theft or misappropriation of the vehicle and an ensuing mishandling of it by the taker with death, injury or destruction of property of others lawfully using the highways as the result. If there is such foreseeability, then, on principle, particularly in the light of the minimal social utility of the causative conduct of the possessor of the ear, a duty arises toward the members of the public using the highways, its breach is ngeligence, and the injury is the proximate result of the breach, or so a jury should be permitted to find in the generality of the cases. See, generally, Prosser, Torts (3d ed. 1964), 148, 149, 151, 173, 311 et seq.

It was also held:

Nothing slated hereinabove is intended to imply that a factfinder could not reasonably return a verdict for defendants in the present case or that the evidence in some comparable situations might not possibly justify even a judgment for defendant as a matter of law. Findings as to either negligence or proximate cause, whether by fact-finder or by the court as a matter of law, must depend on the entire circumstantial spectrum revealed by the proofs in a particular ease.

Whether considered from the standpoint of negligence or proximate canse, we are convinced that Zinclc v. Whelan does not apply and that the grant of summary judgment was proper. Here the key was not left in the ignition switch by the owner. At the most, he removed the key without making sure that the switch was in the locked position. Thus there was missing a prime essential to a finding of negligence on his part.

Even if it be assumed that failure to make certain that the ignition switch was in a fully locked position would afford a basis for a finding of negligence on the part of Jones, his neglect in this regard could hardly be found to be a proximate cause of the accident which occurred on the following day. In the interval Ponczek, whether designedly or not, had done what plaintiff contends Jones should have done — securely locked the ignition so that the car could not be started. Assuming, as we must, that Ponczek’s testimony as to the later finding of the key is the true version, we are not prepared to hold that a finding of negligence may be predicated upon the use by a thief of a key which the owner had concealed in the vehicle which was stolen. Compare Consiglio v. Ahern, 5 Conn. Cir. 304, 251 A. 2d 92 (Cir. Ct. App. Div. 1968).

The judgment of the Law Division is accordingly affirmed. No costs.

Kolovsky, J. A. D.

(concurring). I agree that we should affirm the order granting summary judgment to defendant Jones but do so only because, with all due deference to the views expressed by the members of the court who decided Zinck v. Whelan, 120 N. J. Super. 432 (App. Div. 1972), I do not agree with its holding and its ruling that Saracco v. Lyttle, 11 N. J. Super. 254 (App. Div. 1951), should be overruled. In my view the rule set forth in Saracco and the reasons given therefor are still valid.

I find no justification for changing the Saracco rule, particularly in a jurisdiction, such as New Jersey, which not only (1) does not make it a statutory offense to leave a key in the ignition — let alone providing as a penalty for so doing the imposition of liability for injuries caused by a thief who steals the car — but also (2) does not even impose liability on an automobile owner for injuries caused by the negligence of a person who operates the auto with the owner’s permission unless the operator was acting as the owner’s agent or on the owner’s business when the accident occurred (Harvey v. Craw, 110 N. J. Super. 68, 73 (App. Div. 1970), certif. den. 56 N. J. 479 (1970)), or unless the owner knew or ought reasonably to have known that the person in whose hands he had placed the auto was incompetent to operate it (Mead v. Wiley Methodist Episcopal Church, 4 N. J. 200, 206 (1950)) and (3) adheres to the rule that responsibility for an accident cannot attach to one unless his act or failure to act was a proximate cause of the injury.

If 1 were of the view that Zinck should be followed, then I would not agree that it was proper to grant summary judgment in the instant case. As I read Zinck, its rationale, which finds immaterial the absence of a regulation prohibiting the leaving of keys in the ignition, would require a holding in this case that it was for a jury to decide whether it was negligence for the owner to leave an ignition key in as obvious a hiding place as the area under the front seat. It may be noted that the statistics upon which Zinck relies,

* * * that of the over one million cars stolen nationally in 1966 24% were involved in accidents; that the accident rate for stolen ears is estimated to be approximately 200 times the normal accident rate; and that of the total ears stolen the key had been left in the car in 42.3% of the cases.

would afford no justification for not imposing liability in those cases in which the ability of the thief to steal the car results from the owner’s conduct in leaving the key in an unattended car elsewhere than in the ignition.

Eurther, if Zinck were to be followed, the issue of proximate cause in this case, in which the accident occurred on the day following the theft as contrasted with the 2y2 days involved in Zinck, would also be for the jury.