author: Schwabtz, L., J. D. C.,

text:
    PLANNING BOARD OF THE TOWNSHIP OF WEST MILFORD, HENRY R. SPINNLER JR., ROGER LAPOINTE, ROGER DOUGHERTY, EDWARD NOVACK, HARRY FOX AND GEORGE SMITH, PLAINTIFFS, v. TOWNSHIP COUNCIL OF THE TOWNSHIP OF WEST MILFORD, CHARLES DE LADE, MAYOR; ROBERT L. LITTLE, COUNCILMAN, EDWARD GOLA, COUNCILMAN, JOHN ANDRESAN, COUNCILMAN, AND PETER F. ROAN, TOWNSHIP MANAGER, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided March 5, 1973.

      Messrs. Orbe and Nugent, attorneys for plaintiffs (Mr. John F. Darcy, on the brief).

      Messrs. Wallisch and Wallisch, attorneys for defendants (Mr. Louis Wallisch, Jr., on the brief).
   Schwabtz, L., J. D. C.,

Temporarily Assigned. This is an action in lieu of prerogative writs brought by the Planning Board of West Milford and its members in their individual capacity, challenging an ordinance adopted by the township council empowering the municipal manager to appoint the attorney for the planning board.

The parties have stipulated that the planning board was duly constituted by virtue of N. J. 8. A. 40:55-l.l et seq. and the ordinances of the township.

Since 1969 the municipality has been governed by the Council-Manager Plan D of the Optional Municipal Charter Law, known as the Faulkner Act, under Article 12 of N. J. 8. A. 40:69A-109 et seq., implemented by an ordinance adopted pursuant thereto establishing an administrative code.

Although the code did not provide for the office of attorney for the planning board, nor did any other ordinance so provide, nevertheless the board appointed its own counsel and compensated him from funds appropriated for such purpose by the governing body.

On October 11, 1972 the planning board appointed Terence P. Corcoran as its attorney and notified the council of such appointment. The board was advised by the council on October 16, 1972 that such appointment was without authority.

On November 3, 1972 the township council adopted an ordinance as an amendment to the administrative code creating the office of attorney for the planning board, delineating the duties of the office and providing that “he shall be appointed by the Township Manager and shall hold office during his pleasure.”

Before reviewing the issue of whether the authority to appoint the attorney for the board resides in or may be delegated to the township manager in accordance with N. J. S. A. 40:69A-109 ei seq., or whether such power resides in the planning board itself, it would be well to consider the necessity of adopting an ordinance for this purpose in the first place.

N. J. S. A. 40:55-1.5 (L. 1953, c. 433, § 5) provides:

The planning board shall elect a chairman from the members of Class IV and create and fill such other offices as it may determine. It may employ experts and a staff, and pay for their services and for such other expenses as may be necessary and proper, not exceeding in all, exclusive of gifts, the amount appropriated by the governing body for its use. [Emphasis added]

The object of the statute was similar to N. J. S. A. 40:55-36.2 in which, by L. 1955, c. 126, § 2, the board adjustment was authorized to “employ” an attorney, and by L. 1965, c. 215, § 2 which authorized it to “appoint” an attorney.

The use in the statute of the terms “create,” “fill such other offices” and “employ experts and a staff” does not connote mandatory direction in the legislative intention. The office of planning board attorney is not legislative in origin, as is the office of tax assessor, for instance, which does not depend upon a municipal ordinance for its creation. See Ream v. Kuhlman, 112 N. J. Super. 175, 191 (App. Div. 1970).

In Wagner v. Lodi, 56 N. J. Super. 204 (App. Div. 1959), the court held that even though the statute read “Tlie municipal council shall appoint * * * an attorney” (emphasis added), this language did not create the office of municipal attorney. See also Jersey City v. Dept. of Civil Service, 7 N. J. 509, 522 (1951). Cf. Tatty v. Board of Education, Hoboken 10 N. J. 69, 71 (1952). The court in Wagner concluded that since the office of borough attorney had not been created by ordinance, “such office is non-existent in the Borough of Lodi, and there is no office to which respondent may claim tenure.”

Unless when required by statute, “we do not perceive in these provisions a legislative direction for the appointment * * * even though the post be deemed unnecessary. The need is a matter for the discretion of the local authority. We find in the cited act no suggestion of a legislative determination of the need without regard to local conditions.” Handlon v. Belleville, 4 N. J. 99, 108 (1950).

Tomko v. Vissers, 21 N. J. 226, 237-238 (1956), was not an expression by the Supreme Court that a board of adjustment had the power to create the office of attorney. The decision merely illustrated that the board had the “statutory equipment” to discharge in a proper manner its responsibility to pass upon applications for variances when if stated that the board “may employ an attorney and clerical personnel to fulfill its function.”

The language in the Planning Act had a similar legal effect with respect to the powers of the planning board.

The particular use of the words “create * * * offices” in the statute should not be interpreted as vesting in the planning board the self-executing and exclusive power to establish new offices.

The Home Rule Act (N. J. S. A. 40:48-1) provides in part:

The governing body of every municipality may make, amend, repeal and enforce ordinances to:
3. Prescribe and define, except as otherwise provided by law, the duties and terms of office or employment, of all officers and employees; and to provide for the employment and compensation of such officials and employees, in addition to those provided for by statute, as may be deemed necessary for the efficient conduct of the affairs of the municipality; [Emphasis added]
^ s'*

In Nolan v. Witkowski, 56 N. J. Super. 480 (App. Div. 1959), the court cited with approval the reference to N. J. S. A. 40:48-1 in Davaillon v. Elizabeth, 121 N. J. L. 380, 381 (Sup. Ct. 1938) :

The legislatuz-e has decreed that this delegated power to create municipal offices and positions, and to prescribe the compensation and the duties appertaining thereto, involving as it does an increase of the financial burden of local government, shall be exercised only by ordinance. [56 N. J. Super, at 495]

Except for statutory officers, it is established that the adoption of an ordinance creating an office is a sine qua non to the appointment of an officer by the governing body. Handlon v. Belleville, Jersey City v. Dept. of Civil Service, Wagner v. Lodi, all supra. The planning board, being a gwasi-judicial or administrative body, lacks the authority to adopt ordinances. Under N. J. S. A. 40:55-1.5 it would be authorized to appoint its officers after the creation of the offices by the ordinance of the governing body.

An attorney whose skills are regularly utilized in advising a planning hoard holds an “office.” See Jersey City v. Dept. of Civil Service, 7 N. J. 509, 524-525 (1951); Wagner v. Lodi, 56 N. J. Super. 204, 206 (App. Div. 1959), cert. den. 30 N. J. 599 (1959); O’Connor v. Union City, 117 N. J. Super. 575, 578 (Law Div. 1971); Fredericks v. Board of Health, 82 N. J. L. 200 (Sup. Ct. 1912). Compare Kovalycsik v. Garfield, 58 N. J. Super. 229, 236-237 (App. Div. 1959).

N. J. S. A. 40:48-1 and N. J. S. A. 40 :55-1.5 are in pari materia and must be construed together so as to effectuate the legislative policy. The rule that without a de jure office there can be no de jure officer (Jersey City v. Dept. of Civil Service, supra) applies here. Therefore, the adoption by the governing body of an ordinance creating the office of attorney for the planning board was essential no matter which agency made the appointment.

Even if a salary ordinance was adopted by the governing body in compliance with N. J. S. A. 40 :46-23, or if funds for legal representation were provided in the budget, these acts could not by implication create the office or validate an appointment to an office not created by an ordinance. Weaver v. North Bergen Tp., 10 N. J. Super. 96 (App. Div. 1950).

Before entering upon a consideration of the appointive power of a municipal manager under the Optional Municipal Charter Law vis-á-vis the appointive power of the quasi-judicial planning board, it is necessary to fully understand the role which the Legislature intended the board to play in our municipal governmental structure when it adopted the Planning Act in 1930 and when the statute was amended in 1948, substantially amended in 1953 and amended since, investing the board with considerable powers.

The planning board may adopt and amend a master plan for the present and future development of the community. N. J. S. A. 40 :55—1.10, 40 :55-l.ll.

Thereafter, public agencies shall refer for review and recommendation to the planning board their proposals to expend funds for municipal projects and their proposals for the adoption of an official map and amendments thereto. N. J. S. A. 40 :55—1.13, 40 :55-1.35.

The governing body may refer to it other matters, including approval of site plans over which other municipal agencies have no power of review (Arlington Ass’n v. Tp. Coun. Parsippany-Troy Hills, 118 N. J. Super. 418, 420 (App. Div. 1973)), and, when requested, prepare reports bearng upon applications for variance. N. J. S. A. 40:55-1.13.

The governing body may empower the planning board to approve or recommend approval of subdivision applications, provisions for improvements therein, including plans for new streets and reservation of areas for schools and parks. N. J. S. A. 40 ¡55-1.14 et seq.

The statute provides for restraint of alienation of real property before subdivision is approved by the planning board. N. J. 8. A. 40:55-1.23.

The board shall make a determination as to blighted areas, subject to governing body approval. N. J. 8. A. 40: 55-21.1 et seq.

A condition precedent for adoption of zoning ordinances or amendments by the governing body is reference of the proposal to the planning board. N. J. 8. A. 40:55-33 and 35.

In fulfilling these weighty responsibilities, this guasi-judicial agency must apply principles of due process of law in terms of notice, receipt of evidence and recordation thereof, and arrive at a decision based upon factual findings and expressing the reasons for its determination. N. J. 8. A. 40:55—1.1 et seq.

In Handlon v. Belleville, 4 N. J. 99 (1950), Justice Heher analogized the authority of courts of general jurisdiction to administrative tribunals with quasi -judicial powers. The function of such administrative agencies “partakes of the judicial,” even though its exercise is styled “gwasi-judicial.”

In Dolan v. DeCapua, 16 N. J. 599, 613 (1954), the opinion of the court was that the statutory scheme was to keep the quasi-judicial board of adjustment so independent of the governing body that the municipal attorney might be precluded from advising it.

In Lynch v. Hillsdale, 136 N. J. L. 129 (Sup. Ct. 1947), aff’d 137 N. J. L. 280 (E. & A. 1948), Rogoff v. Tufariello, 106 N. J. Super. 303 (App. Div. 1969), and Kurowski v. Bd. of Adjustment, Bayonne, 11 N. J. Super. 433 (App. Div. 1951), the gwasi-judieial board of adjustment was described as a statutory creation for the effectuation of legislative policy, rather than being the agent of the local governing body.

Matters committed to the glassi-judicial board of adjustment by statute, and the exercise of its power, may not be circumscribed, altered or extended by the municipal governing body. Saddle River Country Day School v. Saddle River, 51 N. J. Super. 589 (App. Div. 1958), aff'd 29 N. J. 468 (1959).

Beference to the board of adjustment in this opinion is pertinent, because a planning board, in many areas, particularly when passing upon an application for subdivision, is acting in a grosi-judicial capacity in the same way as a hoard of adjustment under N. J. S. A. 40 :55-39. Kotlarich v. Ramsey, 51 N. J. Super. 520, 540-542 (App. Div. 1958).

Even when engaged in proceedings that are legislative in character (blighted area determinations) rather than judicial, there is no doubt that the statute contemplates independent action and determination on the part of the planning board, to the extent that the city solicitor, an agent of the governing body, should not participate in such hearings. Wilson v. Long Branch, 27 N. J. 360, 396 (1958).

The judicial nature of gmm-judicial agencies was further recognized when the New Jersey Supreme Court advised a governing body, which was sitting as a quasi-judicial agency, to apply the New Jersey Court Rules (1969) in considering the timeliness of appeals. Princeton Res. Lands v. Princeton Tp. Plan. Bd., 112 N. J. Super. 467, 471. (App. Div. 1970).

This, then, is the character of the planning board, which the Legislature intended to be a gmsi-judicial, independent and, to some extent, an autonomous board.

The court does not find that the issue is whether conflict of interest taints the attorney appointee of a municipal manager to a quasi-judicial board. The basic issue is whether the independence of the board shall be maintained. Such independence of judgment required by an agency exercising gwisi-judicial functions is aptly described in 4 Cooley, Taxation, § 1621, at 3239 (4th ed. 1929) with respect to lax assessors and applies to this case with equal vigor:

They who are intrusted to judge ought to be free from vexation, that they may determine without fear; the law requires courage in a judge, and therefore provides security for the support of that courage. * * * And this principle of protection is not limited in its application to the judges of courts, but extends to all officers who have duties to perform which in their nature are judicial, and which are to be performed according to the dictates of their judgment.

This court has demonstrated that except as may be enunciated in a particular form of municipal government statute, after the office is created by ordinance of the governing body, the planning board alone may appoint its attorney by virtue of N. J. S. A. 40:55-1.5 and in view of the autonomy in which the board functions.

Does this rule prevail in municipalities which have adopted theEaulkner Act? “Judicial resolution of such matters must be guided by only one principle: legislative intent.” Clifton v. Zweir, 36 N. J. 309, 322 (1962).

Article 12 of the Faulkner Act, N. J. S. A. 40 :69A-109 et seq., “Council-Manager Plan D,” by which West Milford is governed, provides in substance that a municipality adopting such form of government shall be governed by its provisions together with those of Article 2, N. J. S. A. 40:69A-26 to 30, dealing with incorporation and powers; sections 9-6 through 9-18 of Article 9, N. J. S. A. 40 :69A-86 to 98, dealing with council and manager; Article 17, N. J. S. A. 40: 69A-150 to 210, containing “Additional Provisions Common to Optional Plans.”

By the terms of N. J. S. A. 40:69A-26 such municipality is governed by “all applicable provisions of general law.” N. J. S. A. 40 :69A-28 defines general law to mean “any law or provision of law, not inconsistent with this act, heretofore or hereafter enacted which is by its terms applicable or available to all municipalities,” plus certain enumerated laws not germane to this matter.

The Legislature has not stated with specificity in the Faulkner Act (1950) who shall appoint attorneys for respective boards, and the issue to be determined is whether in this respect the provision of the Planning Act, N. J. S. A. 40:55-1.5 (1953), is a general law “not inconsistent” with the Faulkner Act.

The municipal manager derives his power to appoint under N. J. 8. A. 40:69A-95, which in relevant part provides:

The municipal manager shall:

(a) be the chief executive and administrative official of the municipality ; * * *
Si' >[< * * s¡.' $ $ $
(c) appoint and remove a deputy manager if one be authorized by the council, all department heads and all other officers, subordinates, and assistants for whose selection or removal no other method is provided in this article (§§ 40:69A-81 to 98) * * *. [Emphasis added]

This section should be considered in conjunction with the language of N. J. S. A. 40:69A-88 and 89. The former reads:

All powers of the municipality and the determination of all matters of policy shall be vested in the municipal council, except as otherwise provided by this act (§§ 40:69A-1 to 210) or by general law. * * [Emphasis added]

The latter states:

The municipal council shall appoint a municipal manager and a municipal clerk. Both of such offices may be held by the same person. The council may provide for the manner of appointment of a municipal attorney, any7 planning board, zoning board of adjustment or personnel board in the municipality, and may create commissions and other bodies with advisory powers. * * * [Emphasis added]

It is significant that under the Faulkner Act the municipal council may appoint a planning board and board of adjustment, which are gwasi-policy-making agencies, while the manager’s appointive powers are in a distinctly separate area, that of general administration. Ream v. Kuhlman, 112 N. J. Super. 175, 184 (App. Div. 1970).

The present case is distinguishable from the effect of the Faulkner Act upon the appointment of officers of a municipal parking authority (Brdw’y Nat., etc., Bayonne v. Parking Auth., Bayonne, 40 N. J. 227 (1963)), and a municipal utilities authority (Jordan v. Zidel, 40 N. J. 244 (1963)), since each of these agencies was an alter ego of the municipality in the fulfillment of essential municipal functions, and it would not be conducive to good government to have commissioners who were unfriendly and not in political rapport with other municipal agencies. Certainly, this standard would offend the judicially functioning climate of the independent planning board.

This case is distinguishable from Myers v. Cedar Grove Tp., 36 N. J. 51 (1961), where the court decided that since nowhere in the Eaulkner Act was the board of health specifically excepted from the broad authority of the manager to appoint officers, under the liberal construction of grants of power in favor of the municipality, N. J. S. A. 40:69A-30, the Legislature intended to permit the local government to abolish the independent board of health, leaving appointment of health officials to the manager. “N. J. S. A. 26-1.1 [26:1—1] and N. J. S. A. 26:3—1 provide that such body need not be an autonomous board of health.”

This court need not decide whether this result would be reached with respect to officers of planning boards in municipalities governed by charter or manager forms of government which do not specifically except or exclude such quasi-judicial agencies from manager appointment.

However, under the form of government adopted by West Milford, the planning board was specifically referred to in N. J. S. A. 40:69A-89 and is a method “provided in this article.” Not only is the “method” provided but the court, in Ream v. Kuhlman, supra, at 185, stated that this section “requires” the appointment by the council, rather than the manager, of members of fi¿m-judicial and policy-making agencies like the planning board. Also see Mentus v. Irvington, 79 N. J. Super. 465 (Law Div. 1963).

• The court in Townsend v. Pequannock Tp., 47 N. J. Super. 294, 301 (Law Div. 1957), said the meaning of “manner of appointment” by the council of members of the planning board “is not clear.” Yet it was satisfied that the boards mentioned in N. J. S. A. 40:69A-89, i. e., planning board and board of adjustment, are not in the “administrative” field and not under the direction of the manager. Similarly, the legal advisors to the respective quasi-judicial and policy-making boards act under the sole direction of these agencies rather than under the control of the manager, unless the court determines that the manager may “remove” them by virtue of N. J. S. A. 40 :69A-95(c).

The catch-all paragraph of N. J. 8. A. 40:69A~95 is meaningful here:

The municipal manager shall be responsible to the council for carrying out all policies established by it and for the proper administration of all affairs of the municipality within the jurisdiction of the council.

Policies and judgments of the planning board are not established by the council and major functions of the planning board are not “affairs of the municipality within the jurisdiction of the council.” Once members of this board are appointed, they are clothed with independence of judgment.

This independence is such that although the Faulkner Act, N. J. S. A. 40:69A-184, permits the voters to “propose any ordinance and may adopt or reject the same at the polls, such power being known as the initiative,” this would not apply to zoning ordinances because it would interfere with planning board functions under N. J. S. A. 40:55-35. In adopting the Faulkner Act the Legislature did not intend to disregard the planning board’s self-sufficiency. Smith v. Livingston Tp., 106 N. J. Super. 444 (Ch. Div. 1969).

In determining the source of appointment of the members of the board of adjustment in a municipality governed under another Faulkner Act form of government, the court in Mentus v. Irvington, supra, 79 N. J. Super. at 477, said the reason why the Legislature found it necessary to specifically provide in N. J. S. A. 40 :69A-89 for the appointment of the members of the board of adjustment by the governing body was to avoid the interpretation of the broad language of N. J. S. A. 40:69A-95 as abolishing the appointive provisions in the Zoning Act. The same doubtlessly applies to the Planning Act.

The New Jersey Commission on Municipal Government which prepared the report on the proposed Eaulkner Act in 1949 concluded that such gwasi-independent boards created and governed by general law, like planning and zoning boards, should be continued “in those fields in which boards or commissions are essential to carry out particular functions or discharge special trusts.” Final Report at 13, 43.

The plainest proof of the continuing concern and interest of the Legislature that the planning board remain independent in its choice of officers and employees was the reenactment of N. J. 8. A. 40:55-1.5 in 1953, providing for appointment by the planning board of its officers (original enactment in 1930 as R. 8. 40:55-4), three years after the adoption of the Eaulkner Act.

The Legislature is presumed to be familiar with its own enactments and the judicial decisions relating to them, and to have passed or preserved cognate laws with the intention that they be construed to serve a useful and consistent purpose. Wright v. South Orange, 79 N. J. Super. 96, 102 (App. Div. 1903). The courts have the duty of reconciling them so as to give effect to both expressions of the lawmakers’ will. State v. Federanko, 26 N. J. 119 (1958). So a reasonable conclusion may be drawn that the design was to invest the manager with appointive powers as far as administrative officers of the municipality are concerned and yet to give efficacy to the hands of giiasi-judicial bodies so that they might fulfill their impartial functions without dilution by appointees of other municipal agents.

The court is satisfied that N. J. S. A. 40:55-1.5 is not inconsistent with the provisions of the Council-Manager Plan D of the Optional Municipal Charter Law, and that in enacting the latter the Legislature did not by implication repeal the statute specifically empowering the planning board to appoint its officers. Therefore, the provision in the ordinance authorizing the appointment and removal of the planning board attorney by the municipal manager is ultra vires.

What effect does this have upon the balance of the ordinance creating the office? Where the provisions of an ordinance are separable, the invalidity of one of its separable parts will not invalidate the entire ordinance. Adams Newark Theatre Co. v. Newark, 22 N. J. 472, aff’d 354 U. S. 931, 77 S. Ct. 1395, 1 L. Ed. 2d 1533 (1956).

In order that an invalid provision of an ordinance may be deemed severable, there must be both legislative intent that it be severable and the remaining provisions must be functionally self-sufficient or contain the essentials of a complete enactment. Swimming River Golf & Country Club v. New Shrewsbury, 30 N. J. 132, 137 (1959); Gilman v. Newark, 73 N. J. Super. 562, 601 (Law Div. 1962).

The invalid provision of this ordinance and the valid provisions are not dependent upon each other, not interwoven so that the valid cannot stand alone, and the excision of the tainted feature will not impair the general purpose of the ordinance to create the office. Angermeier v. Sea Girt, 27 N. J. 298, 311 (1958); Affiliated Distillers Brands Corp. v. Sills, 56 N. J. 251 (1970).

Therefore, the ordinance is effective to establish the office of attorney for the planning board and, as heretofore indicated, the planning board is empowered to appoint the occupant of the office.


source: Caselaw Access Project

author: Moose, J. S. C.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WILLIAM R. HIBBS, III, DEFENDANT-APPELLANT.
    Mercer County Court
    Decided September 27, 1972.

      Mr. Bruce M. Schmgger, Mercer County Prosecutor, attorney for the State (Mr. Gerald A. Hughes, Assistant Prosecutor, appearing), on behalf of the State of New Jersey.

      Messrs. Dietrich, Mancino & Allen, attorneys for defendant (Mr. Charles P. Allen, appearing).

      Mr. Joseph Hof man, appearing on behalf of New Jersey Bell Telephone Co.
   Moose, J. S. C.

Defendant was convicted in the Ewing Township Municipal Court for a violation of the provisions of N. J. S. A. 2A:170-29(3) in that he had made obscene telephone calls to two women on various dates. The conviction was affirmed on appeal to the County Court, and an appeal was subsequently taken and argued before the Appellate Division on December 14, 1971 and decided January 14, 1972, 123 N. J. Super. 108. In the Appellate Division’s decision the matter was remanded back to the County Court for the purposes as stated in the decision.

Since this is the first instance in which the reliability of such equipment has been subjected to court scrutiny, and in view of its probable future importance in detecting criminals, we remand to the Oounty Court for further testimony by the State and defendant solely on the issue of the reliability of the tracing equipment.

The initial hearing for the purpose of taking testimony was conducted on February 28 and 29, 1972. At that hearing witnesses were presented on behalf of the State; however, by agreement between counsel, cross-examination was postponed until a subsequent date and after a transcript of the State’s witnesses had been prepared and defense attorney would have an opportunity to discuss that testimony with his expert witnesses. The transcript in the matter was finally forwarded to the court on June 19, 1972. The earliest convenient date for all parties and witnesses for the hearing to continue was August 1, 1972. The hearing was conducted on that date and on August 2, at which time cross-examination was concluded and expert witnesses on behalf of the defendant were presented and subjected to cross-examination by the State. A transcrpit of the proceedings of August 1 and 2 has been ordered; however, the same has not been completed to date.

The State called as witnesses Robert H. Galbraith, Security Manager, N. J. Bell Telephone Co., and Mr. Douglas M. Harlow, a member of the technical staff in the Station and Studies Department of' the Bell Telephone Laboratories, located in Holmdel, N. J. Both of these men were well qualified in the telephone communications field with extensive practical experience in the telephone industry.

The telephone system in New Jersey is basically divided into central offices which take care of specifically designated areas and all telephone service in that specific area uses the one central office for making connections from one caller to another. The central office is usually identified by the first three digits of a telephone number, such as 292-4636 or 892-2965. In the case before the court we are dealing with central office 882, which encompasses parts of Trenton and Ewing Township, central office 298, Bordentown, N. J., and central office 393, Trenton. These three central offices have two different types of equipment. Central office 882 and central office 298, the Ewing and Bordentonwn offices, have equipment that is known as No. 5 Crossbar, this name being derived from the type of switch used in the specific central office. It is a device that has 20 paths out of it. horizontally and 20 paths out of it vertically and where the horizontal paths and the vertical paths cross you get the crossbar because to operate the contacts that make the telephone connection there is a bar. The number 5 merely means it is the fifth design using a crossbar switch for a local central office. At the present time in the N. J. Bell system they use only the No. 1 crossbar and the No. 5 crossbar. Numbers 2, 3 and 4 were never used in the system, but were experimental in nature. The central office 393, Trenton, is more commonly known as an E. S. S. office, meaning electronic switching system. This type of installation performs the same services as that of a No. 5 crossbar office, that is, the purpose of the E. S. S. system is to connect telephone subscribers with their calling number. The E. S. S. system can be compared to a large computer and it is a completely solid state electronic system, whereas the No. 5 crossbar is electro-mechanical. The E. S. S. system is basically two units in one, that is, the operating unit is constantly being monitored by a memory bank, so that in the event of major trouble, the system can switch over to the monitoring unit without any delay. This system also has what is known as a diagnostic test which indicates that when the machine has a few seconds it will routine itself automatically. Of course, being a computer type system, there is a teletype machine used to talk to the computer, and the teletype machine is capable of answering the various questions put to it.

Both of these systems perform basically the same function. When a telephone subscriber dials a number the equipment in the central office, whether it be a number 5 crossbar or an E. S. S. office, picks up that number, identifies the various numbers dialed, and if the number dialed is within the same central office, it automatically connects the caller with the calling number, the connection is made and the called number’s phone begins to ring. This, of course, happens within a matter of seconds, the equipment in the central offices being capable of identifying and connecting called numbers within extremely short periods of time, all automatically. In the event that the subscriber is dialing a number not within his own central office area, the subscriber’s central office identifies the central office number that the subscriber had dialed, and through a system of trunk lines that connect the various central offices the called number is directed to the central office in which the called number is located. That central office then again goes through the process of identifying the numbers and making the connection within that office so that the telephone connection is made and the phone begins to ring.

In the construction and design of the No. 5 crossbar system the telephone company has developed what is known as a trouble recorder, which is a piece of equipment that does what it says, that is, it records trouble, and it records this trouble on IBM-type cards which, when properly read, indicate to the telephone personnel where the trouble is within the particular system. This equipment is designed to indicate to the maintenance men within the central office when there is trouble on a particular line, or when a particular number is out of order. The system is also used to verify when new phones are installed, that is, when the maintenance men within the central office make a new connection for a new subscriber and make the manual connections of the specific telephone line within the central office, the personnel can dial that number and the trouble recorder would indicate whether the proper manual line connections have been made or not. The IBM card prints out the telephone number of the phone from which the call is made and also prints out the number that was dialed, and when properly connected, the IBM card would verify that the proper connections have been made and the new subscriber’s phone can be placed in service.

The N. J. Bell System being aware that this information could be obtained from the trouble recorder, modified this piece of equipment and used it for line identification in their annoyance call program, this program having been put in effect in 1965. The telephone company had for sometime prior to that date been concerned with doing something about its subscriber’s complaints regarding annoyance calls, and the annoyance call program instituted in 1965 was a result of its various studies and ideas. What is basically done in the annoyance call program is that when a subscriber makes a complaint relative to an annoyance call, a detector circuit is placed on the subscriber’s telephone line in the central office. Such a detector does not in any way interfere wtih the making or receiving of telephone calls and it in no way monitors any of the telephone calls made or received. The detector’s circuit is connected with the trouble recorder so that every time the subscriber receives a telephone call a card is printed indicating the number making the call to the subscriber if both numbers are within the one central office. If the calling number is outside of the subscriber’s central office, the print-out card will indicate the central office number from which that call was made. Of course, in this type of program the subscriber who has made the complaints is requested to maintain a log of the calls received and the time they were received, so that if an annoyance call is received, the subscriber will have the time and the date and can relay that information to the telephone company which, in turn, would locate the card indicating the call that was made at that time and thus have the information as to the number or central office making the call.

As was indicated, if the complaining subscriber and the annoyance caller are located within the same central office, the job of tracing the call is relatively simple since both numbers would appear on the print-out card. Of course, the telephone company, using its own information, would be able to determine the specific location of that annoyance caller. In the event that the annoyance caller is using a phone that is located in another central office, then it requires the additional assistance of the second central office to again put a detector circuit on the trunk line so that the trouble recorder in the second central office would record all calls going to the complaining subscriber’s central office. And again, using the log kept by the complaining subscriber, the time that the annoyance call was made can be checked with the card, and the number from which the annoyance call was made would be on the second central office’s card. The second central office would then take the additional step of placing a detector circuit on the phone number indicated ■within that office, so that if another annoyance call was made from that specific number to the complaining subscriber both central offices would have the information on their recorded cards indicating the telephone number making the call and the number which was dialed, and with such a match the annoyance call has been traced.

Such a system requires a number of annoyance calls in order to obtain a line verification match. You, of course, would have the initial call to the subscriber on which the complaint is made. A second call would have to be made after the detector circuit had been installed on the subscriber’s line, and if both numbers are within the same central office this is all the verification that is necessary, except that in some instances a detector circuit could be placed on the phone from which the annoyance calls are being made and upon the next annoyance call being made there would be a card punched out for both the call being made by the annoyance caller and a card punched out when the connection was made with the complainnig subscriber’s number. In the event that the annoyance call was made from another central office, then a third call would have to be made after the detector circuit had been connected to the trunk line at the second central office, and on this third call there would be a verification made. However, this could be taken one step further and a detector circuit attached to the phone of the annoyance caller, and if a fourth call was made there would be a card printed in both central offices indicating the call made by the annoyance caller and the call received by the complaining subscriber.

As was indicated, the above examples deal with Number 5 Crossbar central offices, and when dealing with an E. S. S. central office the line verification match is simplified because of the sophistication of the equipment being used. In the E. S. S. office the teletype machine tells the computer the number that is to be verified and the computer then prints out the information when the annoyance call is made. As with the crossbar central office, if the annoying caller and the complaining subscriber are located within the same E. S. S. central office, one call would be sufficient to make a verification. However, a second verification could be made by indicating to the computer a check on the annoyance caller’s phone, and if a second call is made, the full information would be printed out on the teletype. If the calls are from two separate central offices, whether they be two E. S. S. offices or an E. S. S. office and a Crossbar office, the same procedure can he followed that is outlined above and verification of the calls are made through the print-out card or the teletype machine.

The witnesses for the State testified in great detail regarding the operations of their annoyance call program and the accuracy of such a program as would be indicated by the use of the same equipment in their trouble recording operations. S-6 was introdnced into evidence which gives a general outline of the problems encountered in the operation of the telephone system and the percentage of those problems arising through equipment failures, etc. Using these figures as a basis, the witnesses indicated that the possibility of error in the verification of annoyance calls is minute and the probability of error nonexistent. Both witnesses accordingly testified that in their opinion the system was accurate and reliable in the detection of annoyance calls and the verification of the phone number from which the calls are being made to the complaining subscriber’s number.

At the hearing held on August 1 and 3 defense counsel was given the opportunity of cross-examination of plaintiff’s witnesses. He also presented witnesses on defendant’s behalf. Michael Rappaport, a statistician with the Opinion Research Corporation, testified. Ho indicated that he had been employed by the Bell Telephone Laboratories for a period of ten years and further, had worked with the computers at the Bell Lab for study purposes and was familiar with the No. o Crossbar system. Rappaport’s testimony basically was to the effect that he did not find that the information contained on exhibit S-6 was complete enough to make an accurate determination as to error within the system. However, he did testify that the annoyance call program was reliable, but he doubted its reliability on only one phone call, and he further indicated that there was always a possibility of error. The courts, of course, do not deal in possibilities but in probabilities. The court is of the opinion that Rappaport’s testimony in essence agreed with that of the state’s witnesses in that he indicated the verification system was reliable and that the equipment used was reliable.

The defense also called Louis Lavine, Assistant Director of Analytical Studies and Services at the Educational Testing Service, where he had been employed for a period of four years. The basis of his testimony was that all systems, no matter how thoroughly designed, such as the E. S. S. system, had some design error. However, in his experience with the Philco company he found that he observed errors in their computer-type machines only on rare occasions, and he indicated that heat, moisture and electrical interference could possibly affect the accuracy of a computer-type system such as E. S. S. Lavine's testimony was of a more general nature and did not deal with specifics in that he had never observed a No. 5 Crossbar system in operation. Nor had he observed an E. S. S. system or know what an E. S. S. system was composed of. He indicated that the basis of his testimony was given as a result of his review of the transcripts of the proceedings of February 28 and 29. However, he did indicate that from his experience it was his opinion that most computers were reliable.

The State called a rebuttal witness, Richard Haenni, who is employed by the Bell Telephone Company as a central office maintenance supervisor. He testified as to the methods by which the telephone company controls the heat and moisture in its central offices and also deals with the problem of electrical interference. This testimony was such that the court finds that as the system is constructed and maintained, the accuracy of the verification of annoyance calls is not affected by heat, moisture or electrical interference.

The court has considered the testimony offered by the various witnesses. It has also taken into consideration the fact that the court, together with the attorneys, made an on-site inspection of the No. 5 Crossbar central office 882, Trenton and Ewing, and also the E. S. S. central office 393, Trenton, where actual tests were made and recording cards printed when the court made specific telephone calls to lines upon which a detector circuit had been placed. The cards, when read, indicated the number from which the court was calling and the number that was dialed, as well as the time the call was placed. The same test was made in the E. S. S. office and an additional test was made by dialing a number from the E. S. S. office to the No. o Crossbar central office in Ewing Township, and a similar verification was made on that test. The court therefore finds that the tracing equipment used by the N. J. Bell Telephone Company, more accurately described as line verification match, as used in the annoyance call program of the company, is reliable and accurate and that the probability of error in such verification is, for the court’s purposes, nonexistent.


author: Per Curiam.

text:
    SOL DAVIDOW, PLAINTIFF-APPELLANT, v. BOARD OF ADJUSTMENT OF THE TOWNSHIP OF SOUTH BRUNSWICK, BUILDING INSPECTOR OF THE TOWNSHIP OF SOUTH BRUNSWICK, AND THE TOWNSHIP OF SOUTH BRUNSWICK, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued January 8, 1973
    Decided March 15, 1973.

      Before Judges Cartoy, Mintz and Cbahay.

      Mr. Seymour Gelzer argued the cause for plaintiff-appellant (Messrs. I aria & Gelzer, attorneys.)

      Mr. Andre W. Gruber argued the cause for the defendants-respondents (Messrs. Seifert, Frisch & Gruber, attorneys.)
   Per Curiam.

Plaintiff filed a complaint in lieu of prerogative writs challenging (1) the constitutionality of a portion of the South Brunswick Township (township) zoning ordinance, and (2) the denial by the board of adjustment (board) of a special exception permit to construct a motel, restaurant and cocktail complex.

The Law Division upheld the validity of the ordinance and affirmed the board’s action in denying the special exception variance.

Plaintiff holds options to purchase a seven-acre tract at the southwest corner of Route 1 and Ridge Road in the township. It has a frontage of 510 feet along the southbound side of Route 1. Across Ridge Road from the involved property and on the same side of Route 1 is situated an existing motel. Route 1 is a four-lane highway with a center divider.

Section 401 of the ordinance recites various district regulations. The tract in question is in an LI-3 district (light industrial zone). Permitted uses are offices, light industry and scientific or research laboratories. The challenged portion of the ordinance allows in addition to the stated uses, subject to Board approval under N. J. S. A. 40:55-39(b), motels and restaurants provided that they be at intervals of not less than 5,000 feet from the same use along one side of a highway. Thus, by the terms of the ordinance plaintiff was precluded from seeking a (b) type permit under N. J. 8. A. 40:55-39 and instead applied for a “special exception” variance under N. J. 8. A. 40:55-39(d). After a hearing, the application was denied. The board found that plaintiff applicant had not demonstrated any special reasons for the motel complex use at the site. The decision was based in part on the grounds that there existed a motel across Ridge Road from the involved property on the same side of Route 1 and that the zoning ordinance permitted motels provided they were not within 5,000 feet of similar establishments.

The action in lieu of prerogative writs ensued, attacking the constitutionality of the 5,000-foot limitation and the denial of the variance. In Harvard Ent., Inc. v. Board of Adjustment of Madison Tp., 56 N. J. 362 (1970), a similar attack was directed against proximity regulations involving gasoline stations. There the rulings upholding such regulations as enunciated in Schmidt v. Board of Adjustment, Newark, 9 N. J. 405 (1952), and Socony Mobil Oil Co. v. Ocean Tp., 56 N. J. Super. 310 (Law Div. 1959), aff'd 59 N. J. Super. 4 (App. Div. 1960), were not disturbed. The court in Harvard noted that it had not hesitated in the past to reconsider policies in the light oí changed circumstances but felt that the record there did not warrant a departure from Schmidt and So cony.

In this matter plaintiff produced before the board a number of witnesses, some of whom addressed themselves to the 5,000-foot restriction.

The township’s own planner, Elwood Jarmer, a licensed planner for the State of New Jersey, testified that he saw no problem in varying from the 5,000-foot separation requirements: “* * * the only comment I can make regarding that [5,000-foot requirement] is that I have not recommended that regulation as a proper planning control on motels. * * * I don’t feel it’s a proper planning control on motels.” As planning consultant for the township planning board and the township he had recommended a change in the challenged requirement.

Nicholas T. Kehayas, a planning consultant, testified that the 5,000-foot requirement was arbitrary and he knew of no studies or reasons to fix distances between motels.

Henry Ney, a registered professional engineer whose principal practice was in traffic and transportation, testified both before the board in support of the variance and before the trial court in the attack on the constitutionality of the ordinance. From a traffic standpoint he was of the opinion that there was no basis for restricting distances between motel uses. He felt that such spacing requirements would have validity in comprehensive zoning in certain types of manufacturing uses which, where concentrated, might cause pollution problems. Insofar as motel uses were concerned, he stated there were no health or safety hazards. In his opinion there was no basis in comprehensive zoning for establishing minimum distances on one side of a street between motels.

Louis H. Budd, the planning and zoning officer for East Brunswick Township, testified before the trial court that there was no rationale in the minimum distance requirement and that the effect of the requirement was to limit the number of motels, thereby effectively restricting competition.

Fo proofs were submitted by the board or the township in support of the ordinance.

The judicial role in reviewing a zoning ordinance is tightly circumscribed and the ordinance enjoys a strong presumption in favor of its validity which continues unless overcome by clear showing that it is arbitrary and unreasonable. Harvard Ent., Inc., supra. Zoning, like every exercise of the police power, must be grounded by a rule of reason. The constitutional principle of equal protection requires that the exercise of the power be reasonable and not arbitrary and that the means selected for the implementation of a policy bear a real and substantial relation to that end. Restraints on the use of property must be reasonable and not unduly discriminatory. Katobimar Realty Co. v. Webster, 20 N. J. 114 (1955), and Schmidt v. Board of Adjustment, Newark, 9 N. J. 405 (1952).

The essence of zoning is territorial division according to the character of the lands and structures and their peculiar suitability for particular uses. The restrictions must be general and uniform in the particular district. Arbitrary discrimination violates constitutional equal protection concepts. Schmidt, supra.

We find no rational basis for the 5,000-foot requirement nor that it in any way attempts to achieve the stated purpose of comprehensive zoning. N. J. S. A. 40 :55-32.

Section 401 insofar as it requires intervals of not less than 5,000 feet between motels and restaurants on the same side of the highway is invalid, being unduly discriminatory and arbitrary.

Reversed.


author: Miftz, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. GABRIEL CATTANEO, DEFENDANT-APPELLANT.
    Superior Court of New Jersey-Appellate Division
    Argued January 22, 1973
    Decided March 21, 1973.

      Before Judges Cabton, Mintz and Hoen.

      Mr. Seymour Margulies argued the cause for appellant (Mr. Howard M. Stroger, on the brief).

      Mr. Edwin H. Stern, First Assistant Prosecutor, and Mr. Edward 0. Megill, Assistant Prosecutor, argued the cause for respondent (Mr. Geoffrey GaulJcin, Prosecutor of Hudson County, attorney).
   The opinion of the court was delivered by

Miftz, J. A. D.

Defendant was tried to a jury on a four count-indictment in which he was charged in the first two counts with perjury, in violation of N. J. S. A. 2A:131-1, and in the third and fourth counts with false swearing, in violation of N. J. S. A. 2A:131-4. At all relevant times in question defendant was Acting Chief of Detectives in the Hudson County Sheriff’s Office and then Chief Inspector in that Bureau.

The indictments resulted from defendant’s testimony on September 23, 1971 before the grand jury which was inquiring into certain allegations concerning the purchase of tickets by sheriff’s officers in Hudson County to the Democratic Party annual dinner. The first count essentially charged that defendant committed perjury when he testified that to his knowledge within the last ten years it never cost more than $100 for one ticket to that dinner; that in the past four years it never cost any individual more than $100 to receive one ticket, and that he never received more than $100 for an individual ticket from any member of his staff.

In the second count defendant was charged with perjury when he testified before the grand jury that the 3 % contribution in Hudson County did not apply to tickets that he distributed; that everyone he spoke to gave willingly; that he had no first hand experience with the 3 % contribution tradition, and that he did not ever remember receiving 3% of any employee’s salary for a ticket.

The third count charged defendant with false swearing in violation of N. J. S. A. 2A:131-4, based upon the same testimony before the grand jury referred to in the first count. The fourth count charged defendant with false swearing based on the same testimony mentioned in the second count.

The jury found defendant not guilty on the first count; guilty of perjury as alleged in the second count, guilty of false swearing under the third count, and failed to return a verdict on the fourth count. The court thereupon entered a dismissal as to the fourth count. In summary, defendant was convicted of perjury concerning his testimony respecting the 3% contribution of an employee’s salary for the purchase of a ticket, and false swearing with respect to his testimony that he never received more than $100 for the sale of a ticket.

Defendant was sentenced from one year to 18 months on the second count and fined $2,000, plus costs of trial. On the third count defendant received the same custodial sentenee, to be served concurrently with that imposed on the second count.

On appeal defendant raises several contentions. Initially he argues that the court erred in denying his motion to dismiss the indictment, and that the counts in the indictment charging him with false swearing should have been dismissed as plain error. N. J. S. A. 2A :81--17.2a2 provides that any public employee testifying before a grand jury is immune from prosecution in a subsequent criminal proceeding based upon his grand jury testimony or the evidence derived therefrom. The only stated exception is perjury; there is no immunity from prosecution for that offense. Defendant contends, among other things, that (a) under the cited statute he was immune from prosecution for anything other than perjury; (b) he was the “target” of the grand jury proceeding and the prosecutor was accordingly obligated to advise him of his Fifth Amendment rights, and (c) he had a right to counsel when testifying before the grand jury.

Prior to testifying defendant signed a waiver of immunity, which he now contends was not voluntary and therefore ineffectual.

The motion to dismiss the indictment was made prior to the empanelling of a jury. The trial judge, in denying the motion, referred to the colloquy preceding the execution of the waiver and concluded that defendant fully understood the contents of the waiver of immunity, and further stated that if defendant was the “target” of the grand jury proceeding, his testimony could not be used against him in connection with the substantive offense under investigation, but he would not be immune from a prosecution for perjury or false swearing within the purview of N. J. S. A. 2A:81—17.2al el seq.

We note that defendant was employed in the Sheriff’s Office for about 17 years and during the relevant period in question held a superior position. We are satisfied that the record supports the finding that the waiver was fully understood and voluntarily made by defendant. Hence we need not reach the question whether immunity is granted for the lesser offense of false swearing, although not specifically mentioned in N. J. 8. A. 2A :81-17.2a2.

Defendant next argues that since he was the “target” of the grand jury proceeding, the prosecutor was obligated to advise him of his Eifth Amendment rights. It is clear that if it is “unmistakable” that the grand jury was actually conducting an investigation directed against the witness, there is a duty to advise him of his privilege against self incrimination. State v. Fary, 19 N. J. 431 (1955). However, this duty does not arise unless the proceeding is merely a “ruse” by which it is sought to induce the witness to unwittingly give evidence against himself. Fary, supra, 19 N. J. at 438. State v. Grundy, 136 N. J. L. 96, 98 (Sup. Ct. 1947). Eurther, it is the burden of the witness to show that such a “ruse” existed, and any doubt is resolved in favor of the validity of the indictment. Fary, supra, 19 N. J. at 438. In the case at bar, there was no showing that the real purpose of the grand jury proceeding was to obtain incriminating statements that could be used in a planned prosecution of defendant for a substantive offense, or that the proceeding was other than a general inquiry, as recited in the indictment. Moreover, we find that the grand jury proceeding was a general inquiry. Einally, even if defendant was a “target” and therefore was entitled to be advised of his privilege against self incrimination, the failure to so advise does not preclude prosecution for perjury or false swearing. State v. Falco, 60 N. J. 570, 585 (1972); State v. Williams, 59 N. J. 493, 500 (1971).

Defendant’s argument that he had a right to counsel is also without merit. That a constitutional right to counsel does not arise when a person testifies at a grand jury proceeding, such as was conducted here, is well-settled. Kirby v. Illinois, 406 U. S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972). In re Groban, 352 U. S. 330, 77 S. Ct. 510, 1 L. Ed. 2d 376 (1957). United States v. Morado, 454 F. 2d 167 (5 Cir. 1972). United States v. DiMichele, 375 F. 2d 959 (3 Cir.), cert. den. 389 U. S. 838, 88 S. Ct. 54, 19 L. Ed. 2d 100 (1967). State v. Williams, 59 N. J 493, 501-502 (1971).

Defendant argues that the trial court committed reversible error by failing to charge the jury that corroboration was necessary to sustain a conviction for perjury. It is clear that if the State produces a single witness to establish the falsity of the defendant’s statement, there must be corroboration of that witness’ testimony to sustain a conviction for perjury. State v. Bulach, 10 N. J. Super. 107, 110 (App. Div. 1950); State v. Taylor, 5 N. J. 474 (1950). However, the corroboration may be circumstantial in nature. The rationale behind the rule is that a defendant should not be convicted for perjury on the sole basis of his word being pitted against one other person’s word, i. e., “oath against oath.” 7 Wigmore on Evidence (3d ed. 1940), §§ 2040, 2041. However, this is not the circumstance in this case.

The State produced seven witnesses at trial who were employees of the Hudson County Sheriff’s Office during the period in question. Each testified that at various times he paid defendant sums substantially greater than $100 for a single ticket. Five of the seven also testified to the effect that the sum paid was or was supposed to be 3% of their salaries. It was clear from their testimony that defendant was aware of the sums paid. Several of the witnesses testified that defendant told them the amounts to be paid; another testified that defendant had a sheet of paper with a list of names on it and the amounts to be paid.

The evidence was overwhelming that defendant lied when he testified that he never received more than $100 for one ticket and that the 3% rule never applied to tickets he distributed. There were five, not one, witnesses testifying in direct refutation of defendant’s statement that the 3% rule never applied to tickets that he distributed.

It may be argued that corroboration still should have been charged since the jury conceivably may have believed only one of the witnesses. Although the trial judge did not use the term “corroboration” in his charge or explain the concept of corroboration as set forth in State v. Bulach, 10 N. J. Super. 107, 111 (1950), we note that he instructed the jury to determine the guilt or innocence from “the whole complex of all the testimony,” stressed the factor of credibility and then told them to decide whether the State had proved defendant’s guilt beyond a reasonable doubt. There was no request to charge the necessity for finding corroboration in order to convict for perjury, as in Weiler v. United States America, 323 U. S. 606, 65 S. Ct. 548, 89 L. Ed. 495 (1944), and no objection taken to the failure of the trial judge to instruct the jury in this respect. Actually defense counsel at the conclusion of the charge, in the course of making certain objections thereto, stated to the trial judge, “You certainly were explicit on the elements of proof, and I appreciate that.” It ill behooves defendant to now urge plain error in the trial court’s failure to charge the jury on corroboration.

Under the circumstances of this case, we are satisfied that the error, if any, did not produce an unjust result. State v. Macon, 57 N. J. 325 (1971).

Defendant further contends that the trial judge erred in submitting the entire grand jury testimony to the jury for its consideration in its determination as to whether defendant lied, thereby allowing a finding of guilt based upon the grand jury testimony not alleged to be false in the indictment. However, the trial court especially told the jury that its use of the transcript was limited to the issues of falsity of the subject sets of questions. This was proper. State v. Doto, 16 N. J. 397, 404 (1954).

We have considered defendant’s contention that the sentence is manifestly excessive. The trial judge noted defendant’s health problem, the rights of the public, and indicated that deterrence was a factor to be considered. We do not find any abuse of discretion committed by the trial judge in connection with the sentence.

We have considered the remaining points urged by defendant and find them to be devoid of merit.

Affirmed.


author: Pee CuBiAjyr.

text:
    PATIENTS: RONALD BUSH, DOROTHY CHASE, ROBERT HYDE, EDWARD MC DONOUGH, HARRIET ROBISON, LAWRENCE SCHEFFER, SAMUEL WILDER AND MARLENE WYNN, INDIVIDUALLY AND ON BEHALF OF ALL, OTHER PERSONS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS, v. ARNOLD M. KALLEN, M. D., INDIVIDUALLY AND AS SUPERINTENDENT AND MEDICAL DIRECTOR, ESSEX COUNTY HOSPITAL CENTER, AND THE ESSEX COUNTY BOARD OF CHOSEN FREEHOLDERS, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted March 20, 1973
    Decided March 23, 1973.

      Before Judges Collester, Leonard and Halpern.

      Mr. Benjamin S. Laves, Essex County Legal Services Corp., attorney for appellants; Mr. Barry Benefield, RTewark-Essex Joint Law Reform Project, attorney for appellants. •

      Mr. Francis Patríele McQuade, Essex County Counsel, attorney for respondent (Mr. Joseph G. Glavin, Jr., of counsel).
   Pee CuBiAjyr.

Plaintiffs, eight patients at the Essex County Hospital Center, appeal from a judgment dismissing their complaint wherein they sought to compel defendants to permit their counsel to inspect and copy their medical records.

Plaintiffs, except for Wilder, who is temporarily committed, are involuntarily committed to the Center by final judicial orders. The Center is a mental hospital and defendant Arnold M. Kallen, M. D. is its superintendent and chief executive officer. Plaintiffs Bush, Chase, Hyde, Robison and Scheffer gave written authorization to their counsel or his authorized representative to inspect and copy their medical records in connection with legal problems related to their present commitment and the care they were receiving. Such representatives were prevented from so doing by Kallen. Likewise, he prohibited them from visiting the other three plaintiffs in order to obtain their signatures to the necessary authorizations. Kallen stated that these records were confidential and that he would not permit inspection and copying of these records by counsel unless the Essex County Counsel authorized the release thereof and he (Kallen) personally determined that each patient was mentally competent to sign the necessary authorization.

N. J. 8. A. 30 :4— 24.3 which mandates that the records of a patient in an institution such as the one here involved “shall be kept confidential and shall not be disclosed by any person,” by its very terms creates exceptions, one being when the patient himself consents to such disclosure. Further, the statute also provides that the provision for confidentiality shall not preclude disclosure,

upon proper inquiry, of information as to a patient’s current medical condition to any relative or friend or to the patient’s personal physician or attorney if it appears that the information is to be used directly or indirectly for the benefit of the patient.

Kallen’s position that he can delay compliance with the above statute until he determines that the patient was mentally competent to sign the authorization is in violation of the rights of the patients as provided in N. J. 8. A. 30: 4r~2é.2. A subsection thereof provides that “[E]or the purpose of a patient’s exercising his civil rights there shall be no presumption of his ineompetency or unsoundness of mind merely becaue of his admission to a mental hospital.”

Upon the record, it appears that the information sought “is to be used directly or indirectly for the benefit of the patient.” Under all these circumstances, we conclude that the representatives of plaintiffs’ attorney are entitled to inspect and copy the complete medical records of all plaintiffs who have signed or who hereafter sign the necessary authorizations. Thus, this portion of the judgment entered by the trial court is reversed.

However, we agree with the trial judge’s determination that a class action is not here appropriate and, thus, we affirm his denial of plaintiffs’ motion to be allowed to so proceed.

Reversed in part, affirmed in part and remanded to the trial court for the entry of a judgment in accordance herewith.


author: Eurman, J. S. C.

text:
    FREDERICK D. KING, FREDERICK F. RICHARDSON, CO-EXECUTORS OF THE ESTATE OF ROBERT S. HERBERT, JR., DECEASED, PLAINTIFFS, v. RICHARD SMITH, ROBERT SMITH, STILSTON SMITH, THE ESTATE OF JOAN S. BALLER, CAROLE BALLER AND WARREN O’CONNELL, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided February 20, 1973.

      Mr. William F. McClosTcey, Jr. and Mr. Henry A. Hill, Jr. for plaintiffs (Messrs. Mason, Griffin, Moore and Pierson, attorneys).

      Mr. Bernard A. Kutiner for defendants Richard Smith, Robert Smith and Stilston Smith.

      Mr. Samuel C. Inglese for defendants Estate of Joan S. Bailer and Carole Bailer (Messrs. Moss and Inglese, attorneys).

      Mr. Gordon C. Strauss for defendant Warren O’Connell (Messrs. McCarthy, Bacsilc and Hicks, attorneys).
   Eurman, J. S. C.

The issues in this action by the co-executors of the will of decedent Robert S. Herbert, Jr. are whether Warren O’Connell, an attesting witness to the will but not to either of two codicils which republished the will, may benefit under the will, and whether Joan Bailer, an attesting witness to the first codicil but not to the will or the second codicil, may benefit under the will and the second codicil. No published New Jersey opinion is in point.

N. J. S. A. 3A:3-6 provides:

No person who has attested a will shall be incompetent to testify concerning the execution thereof by reason of his being a beneficiary thereunder; but whether or not he testifies, as to him and those claiming under him, any beneficial devise, legacy, estate, interest, gift or appointment of or affecting real or personal property, except a charge on real property for the payment of a debt, shall be void.

A will includes any codicil as a single testamentary disposition. N. J. S. A. 3A:1—1; In re Sapery, 28 N. J. 599 (1959). A codicil republishes a will unless it revokes it expressly or by necessary implication because of an irreconcilable inconsistency. Kennedy v. Mockler, 38 N. J. Super. 35 (App. Div. 1955); Creech v. McVaugh, 140 N. J. Eq. 272, 276 (Ch. 1947); 5 N. J. Practice (Clapp, Wills and Administration), § 200 at 322 (1962). Republication is viewed as a useful and flexible instrument for effectuating the testator’s intent. In re Hardyman, 159 L. T. 177 (Ch. 1925); Atkinson, Wills (2d ed. 1953), § 91, at 472; Evans, “Testamentary Republication,” 40 Harv. L. Rev. 71, 99 (1926). In a will construction the effectuation of the testator’s intent is the cornerstone. In re Thompson, 53 N. J. 276, 299 (1969); In re Conway, 50 N. J. 525, 527 (1967) ; Watson v. Brower, 24 N. J. 210, 215 (1957).

N. J. S. A. 3A :3-6 is derived from 25 Geo. II, c. 6, 1752. The statutory intent is to circumvent perjury and undue influence. La Croix v. Senecal, 140 Conn. 311, 99 A. 2d 115, 119 (Sup. Ct. 1953); Tolman v. Reeve, 393 Ill. 272, 65 N. E. 2d 815 (Sup. Ct. 1946); In re Hunt’s Estate, 122 N. Y. S. 2d 765, 767 (Sur. Ct. 1953).

Joan Bailer was not an attesting witness to an instrument which provided a legacy to her, except in the sense that the first codicil republished the will as a single testamentary disposition. The threat of perjury or undue influence thus appears inapposite. To void her legacy would be an artificial and technical result, contrary to preferable English and American authorities. In re Trotter, 1 Ch. 764 (Ch. 1899); Tempest v. Tempest, 2 K. & J. 635, 69 Eng. Rep. 937 (Ch. 1856); Gurney v. Gurney, 3 Drew 208, 61 Eng. Rep. 882 (Ch. 1855); Lougee v. Wilkie, 209 Mass. 184, 95 N. E. 221 (Sup. Jud. Ct. 1911); Atkinson, Wills (2d ed. 1953), § 91 at 468; 2 Bowe-Parker: Page on Wills (rev. ed. 1960), § 19.91 at 192. The bequests to Joan Bailer in the will and second codicil are sustained.

Warren O’Connell, on the other hand, was an attesting witness to the will which provided a stock option in his favor. The attack against his legacy concentrates on the statutory wording that such legacies are “void” and the general authority of Rippel v. King, 126 N. J. Eq. 297 (Ch. 1939); aff’d. 128 N. J. Eq. 179 (E. & A. 1940), that a codicil does not revive a lapsed legacy.

Nevertheless, English authorities construing their parallel statute, which uses the terminology “utterly null and void,” have upheld bequests to an attesting witness or her husband in wills which were republished by codicils witnessed by other witnesses. Anderson v. Anderson, L. R. 13 Eq. 381 (Ch. 1872); In re Trotter, supra.

In Anderson, supra at 387, the Vice Chancellor reasoned:

That in the execution and attestation of the codicil in question all the requisites of the statute were complied with is clear. None of the evils which the statute intended to prevent can arise; and it would be as much beyond the provisions and the contemplation of the statute, as it would be opposed to good sense and reason, to hold that the codicil, duly executed and attested, had not the effect of republishing the will, and making it a new and original disposition by the testatrix in January, 1869, of the estate which she had dealt with by the will of December, 1868. To hold otherwise would be to hold that any error in a will, once duly executed, could not be corrected but by an entirely new will, for which proposition there is no authority. It cannot be said that the testatrix could not have made a new will if she had been so minded. Suppose that, by the codicil, she had said, “I am aware that my will is so erroneously attested as that my son’s legacy will he forfeited, and to prevent that I execute this codicil, and do thereby confirm my will.” There can be no doubt that she was competent to do this up to the latest moment of her life. I am of opinion that she has done this by the duly executed codicil; that the whole contents of the previously existing will were incorporated in the codicil; and, therefore, that Plaintiff’s bill must be dismissed.

Judge Clapp in his treatise, Wills and Administration, § ol, at 4S> (pocket snpp. 1971), comments:

The doctrine of republieation has been invoked in order to save the legacy given to a person who was a legatee under the will, but not to work a forfeiture in a case where the legatee is not a witness to the instrument under which he receives the legacy.

The bequest to Warren O’Connell in the will ol decedent Eobert S. Herbert, Jr. is also sustained.