text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. THOMAS EARL KENNEDY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 27, 1975
    Decided July 29, 1975.

      Before Judges Matthews, Fritz and Botter.

      Mr. Forrest R. Goodrum, designated counsel, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Damon R. Sedita, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   The opinion of the court was delivered by

Botter, J. A. D.

Defendant appeals from a conviction in a jury trial for forcible rape (N. J. S. A. 2A:138-1) and robbery (N. J. S. A. 2A:141-1) while armed (N. J. S. A. 2A:151-5). He was sentenced to State Prison for a term of seven to ten years on the rape conviction, with a consecutive term of two to three years for robbery and a concurrent term of one to three years for being armed while committing the robbery. On this appeal defendant contends that various rulings during the trial, as well as unfair comment by the prosecutor, warrant a new trial.

The victim, Mrs. S. P., testified that on December 19, 1971, at 5:30 p.m., a month after getting married, she was on a street corner waiting for a bus when defendant confronted. her with a handgun. Defendant demanded money and she gave him five dollars. Defendant then ordered her to accompany him to a vacant garage where she submitted to sexual intercourse. Fearing for her safety, S. P. flattered defendant. She said she was enjoying herself. He said his name was James. He asked to see her again. She agreed and a meeting was arranged for the next day. As S. P. was late for work, defendant took her there by cab. He paid the fare with the five dollar bill he had taken from S. P. and gave her the change.

S. P. worked a night shift at the Newark Post Office. She testified that upon entering the post office she told a security officer that she had just been raped and robbed. A call was made to her husband. She was taken to the nurse’s office and later to a hospital where the police interviewed her. She described her assailant to the police and said that he identified himself as James.

The next day S. P. met several detectives and they accompanied her to the meeting place previously arranged between S. P. and defendant. When defendant arrived S. P. gave a signal, identified defendant, and he was arrested. Defendant was given Miranda warnings (Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1603, 16 L. fid. 3d 694 (1966)) and was transported to police headquarters. On cross-examination S. P. denied that she had ever before seen or known defendant. Other evidence by the State was offered to corroborate S. .P.’s conduct after arriving at the post office and to show that she was upset and wept shortly after reporting the incident, and that her clothing was soiled.

Evidence was then offered for the defense tending to prove that defendant did not possess a gun on the day in question and that S. P. lived in defendant’s neighborhood and had been seen with defendant and at defendant’s house on several occasions in 1969 during S. P.’s last year in high school. S. P. was then recalled in rebuttal to disprove the description of her 1969 hair style given by defendant’s witnesses. Through S. P. the State introduced a high school yearbook containing pictures of her, and other photographs were introduced to show how she wore her hair in 1969. The State also recalled a detective who had arrested defendant and transported him to headquarters. The witness testified that defendant at that time denied commiting rape and said he “didn’t know the girl.”

Defendant then took the stand. He testified that he had had sexual relations with S. P. on a number of occasions in 1969 at his home. He also testified that: he had a chance encounter with S. P. on December 19, 1971; she made overtures to him; they started to embrace on the street corner ; thej searched for a place where they could have privacy; they found a garage with an open door where they had sexual relations; they agreed to meet again; a short while later defendant took her to the attic of his mother’s house where they again had intercourse; S. P. tried to persuade him to take up with her again but he refused because he was then married; she became angry and threatened retaliation and, finally, he went to meet her the next day at the behest of a friend so that he could give his friend the opportunity of taking up with her. It was at this meeting that defendant was arrested. Defendant denied having a gun, denied raping and robbing S. P. and denied taking her to work in a cab. He admitted using various names in connection with his religion, such as Thomas 27X, John 27X, Ali 27X, Salim 27X, Sabu 27X and others, but not the name James. He also testified that because he was frightened he told the police he did not know S. P. Other evidence was elicited that tended to impair his credibility and his defense.

This factual background is sufficient for the issues raised on this appeal. Defendant’s first contention is that the trial judge committed reversible error in admitting the declaration made in the police car that he did not know S. P. Defendant contends that the statement was hearsay and was not admissible under Evid. R. 63(10) as a declaration against interest. Defendant contends that the erroneous admission of this statement, which undermined the defense offered through his witnesses, was unduly prejudicial since it compelled him to take the stand in rebuttal, with obvious disadvantage. Cf. Harrison v. United States, 392 U. S. 219, 88 S. Ct. 2008, 20 L. Ed. 2d 1047 (1968). Since wa conclude that the testimony was properly admitted, we have no occasion to consider the issue of prejudice. We note in passing that the accumulation of properly admitted evidence threatening conviction of a defendant always tends to move him to shed his shield against self-incrimination and testify, but no violation of constitutional rights results from rules of evidence having this effect. Barnes v. United, States, 412 U. S. 837, 93 S. Ct. 2357, 37 L. Ed. 2d 380 (1973).

The trial judge admitted this evidence, in rebuttal only, as a declaration against defendant’s interest at the time it was made, purportedly in compliance with Evid. R. 63(10). Defendant asserted then, and asserts now, that an admission of a party opponent can be put in evidence against that party only in a civil case as an exception to the hearsay rule provided by Evid. R. 63(7), and not in a criminal case, unless it qualifies as a declaration against interest. Defendant further contends that defendant’s statement denying that he knew or raped the complainant was exculpatory and was not a statement which “so far subjected him to * * * criminal liability * * * that a reasonable man in his position ■would not have made the statement unless he believed it to be true * * Evid. B. 63(10).

“A statement made by a person who is a party to a civil action is admissible against him in that action.”

The unfortunate failure to draft and adopt an acceptable proposal for Evid. R. 63 (6) to govern admissions of a defendant in criminal cases has caused unforeseen difficulty. Undoubtedly, the adoption of Evid. R. 63(7), applicable to civil cases only, has given the impression to some that extrajudicial statements of a defendant in a criminal ease are not admissible unless they qualify as declarations against interest under Evid. R. 63(10). This fallacious view is encouraged by the coincidence that "most statements used as admissions do happen to state facts against interest,” and accordingly, some have been "misled by this casual feature and treated admissions in general as obnoxious to the hearsay rule, and therefore as entering only under the exception to that rule for declarations against interest.” 4 Wigmore, Evidence (Chadbourn rev. 1972), § 1049 at 9. See Supplemental Report of N. J. Sup. Ct. Comm. on Criminal Practice, 98 N. J. L. J. 435 (1975) (proposing amendments to Evid. R. 63(7) and Evid. R. 8(3) to cure the absence of an admissions rule for criminal eases); cf. State v. Thompson, 59 N. J. 396, 408-410 (1971); State v. Mayberry, 52 N. J. 413, 422 (1968), cert. den. 393 U. S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969); State v. Kuske, 109 N. J. Super. 575, 588 (App. Div. 1970).

The view that the declaration against interest rule is not coincident with and was not intended as a surrogate for the rule on admissions of a party, and should not be so employed, has been stated by Professor Alexander Brooks (Supplemental Report, supra) who had served as the reporter for the Supreme Court Committee which revised the rules of evidence (Report of N. J. Sup. Ct. Comm, on Evidence (1963), at 6). Simply put, not all statements of a party are against their interest when made, although they may later prove to be so. Obviously, the original proposals for Rule 63(6), dealing with statements of an accused in a criminal proceeding, and Rule 63(7), dealing with statements by a party or his representative in a civil action, exhibit an intention to distinguish extrajudicial statements of parties from extrajudicial statements of non-parties governed by Rule 63(10).

The basic issue is whether an ordinary, out-of-court statement of a defendant, considered hearsay when offered to prove the truth of the matter asserted (Evid. R. 63), is admissible against him if it was not against his penal or pecuniary interest when made. We assume, of course, the absence of privilege or any other exclusionary factor, such as involuntariness. The argument advanced is that the adoption of Evid. R. 63(7), limited to civil cases, and the failure to adopt the proposed Rule 63(6), applicable to criminal cases, reflects an intention to preclude the admission of noninculpatory statements of a defendant.

There are cogent reasons for rejecting this contention. The new rules of evidence were a codification of, and, to some extent, a liberalization of pre-existing New Jersey law. Prior to their adoption there was no question that a criminal defendant’s out-of-court declarations were admissible against him, although it had been held that, upon request, instructions to the jury should be given to consider and weigh such evidence with caution because of “inherent weaknesses in this character of testimony.” State v. Kociolek, 23 N. J. 400, 421 (1957). “Statements made out of court by a party-opponent are universally deemed admissible, when offered against him.” 4 Wigmore, Evidence, supra, § 1048 at 2. One reason advanced for this exception to the hearsay rule is that the party who has made the out-of-court statement cannot complain of his inability to confront and cross-examine the declarant, since he himself is the declarant. 4 Wigmore, Evidence, supra, § 1048 at 4; Morgan, Basic Problems of Evidence (1962), at 266; McCormick, Evidence (2 ed. 1972), § 262 at 629.

It seems incomprehensible that this universally accepted rule of evidence would be abrogated without an explicit statement of intention to do so. When a similar argument was made, that Evid. B. 20 was adopted without an exception for the fresh complaint doctrine, our Supreme Court rejected the argument, saying that the doctrine, “traditionally” applied in rape and morals cases, was not ineon-sistent with Evid. R. 20, since it allowed proof “to meet in advance” a charge of recent fabrication. State v. Tirone, 64 N. J. 222, 226-227 (1974).

The failure to adopt proposed Buie 63(6) was due to uncertainty in codifying the constitutional exclusionary rules (Miranda v. Arizona, supra; Escobedo v. Illinois, 378 U. S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964)) which were in apparent stages of development. State v. Magee, 52 N. J. 352, 371 (1968), cert. den. 393 U. S. 1097, 89 S. Ct. 891, 21 L. Ed. 2d 789 (1969). See Supplemental Report, supra. The entire comment accompanying proposed Buie 63(6) concerns the voluntariness of “confessions and admissions” obtained by threats or during an illegal detention. Report of N. J. Sup. Ct. Comm. on Evidence, supra at 157-161. We have found no record of any recommendation to abolish the established rule governing admissions of a party-opponent in criminal eases. In fact, prior attempts to revise and codify the law of evidence in New Jersey preserved the rule. Report of the Comm, on the Revision of the Law of Evidence to the N. J. Sup. Ct. (1958), Rule 63(6) at 132-134; Report of the Comm’n to Study the Improvement of the Law of Evidence, Including Uniform Rules of Evidence Proposed by It to the Senate and General Assembly of the State of New Jersey (1956), Rule 63(6) at 57 ; see Uniform Rules of Evidence (1953), Rule 63(6) at 201.

It would violate the spirit of the new rules of evidence, expressed in Evid. R. 5 ("The adoption of these rules shall not bar the growth and development of the law of evidence in accordance with fundamental principles to the end that the truth may be fairly ascertained”), to hold such evidence inadmissible. Slate v. Hampton, 61 N. J. 250, 271 (1972). Accordingly, we hold that the common law rule continues in effect, namely, that extrajudicial declarations of a defendant are admissible against him in a criminal proceeding, subject' to other exclusionary rules such as those which exist to protect privileged statements and constitutional rights. This merely continues in effect what is a matter of common knowledge, and part of the Miranda warnings, namely, that anything an accused says may be used against him. This court, in State v. Kuske, supra, acknowledged the continuation of this rule when it held that letters written by a defendant should have been admitted when offered on the State’s ease since they were "competent as admissions or admissions against interest.” 109 N. J. Super, at 588. Evid. R. 63(10) was cited as authority for the introduction of the letters as admissions against interest, but the court had to rely on § 113 of McCormick, Evidence (1954) as authority for tho introduction of the letters as mere admissions.

Defendant raises other points on this appeal which we find also lacking in merit. Those include the contention that two color photographs were introduced without producing the photographer to testify that the photographs were not retouched. (Black and white photographs of S. P. were introduced without objection.) A photographer need not be produced if a witness can testify that the photograph accurately depicts the subject as it appeared at a relevant time. Kellem v. Akers Motor Lines, Inc., 133 N. J. L. 1, (E. & A. 1945); Haring v. Banks, 7 N. J. Misc. 605, 607, 146 A. 675, 676 (Sup. Ct. 1929), aff’d o. b. 106 N. J. L. 569 (E. & A. 1930); see Garafola v. Rosecliff Realty Co., Inc., 24 N. J. Super. 28, 42 (App. Div. 1952); but of. Balian v. General Motors, 121 N. J. Super. 118, 125 (App. Div. 1972), certif. den. 62 N. J. 195 (1973) (as to the requisites for authentication of motion pictures). Although the witness was not asked if the photographs accurately depicted her appearance at the time they were taken, her testimony implied as much, and this failing was not the reason given for the objection. The photographs were offered primarily to show that S. P.’s hair style was not a red “Afro” as described by a defense witness. As for their color, we find that their admissibility' was within the discretion of the trial judge and that no reversible error occurred, particularly since ,S. P. testified in detail, on cross-examination, as to her hair color. State v. Macon, 57 N. J. 325, 340 (1971).

Defendant also complains of the trial judge’s response to a question from the jury during their deliberations. The jury asked what the testimony showed as to the time S. P. arrived at the post office on December 19, 1971. After reviewing the evidence with counsel, the trial judge indicated how he would answer the question. No objection was voiced before and no exception was taken after the judge’s instrue-tions. Now. on appeal, it is urged that there was other evidence on the issue which the judge omitted. However, the trial judge instructed the jurors to rely on their own recollection despite his review of the significant testimony. We see no error here.

Lastly, defendant contends that improper comment by the prosecutor denied him a fair trial. We agree that the prosecutor’s reference in summation to defendant’s affirmation rather than his taking the oath was reprehensible. See Hong Sai Chee v. Long Island R. Co., 328 F. 2d 711 (2 Cir. 1964). Fortunately, the trial judge immediately interrupted the prosecutor and stated:

THE COURT: No, Mr. Prosecutor, that is an. improper remark and the Jury will disregard it. This man has a perfect constitutional right to take an affirmation as opposed to an oath and you are not to remark on that again.

We share the view expressed by our highest court that such conduct deserves harsh censure. State v. Spano, 64 N. J. 566, 568-569 (1974). The seriousness of the wrong may be understood in the light of defendant’s contention that the comment was an insidious appeal to religious prejudice. (Defendant contends this was also evidenced by previous interrogation on the subject of defendant’s membership in a Mosque and his ube of "X” as a nickname; but these questions were relevant to the identification of defendant which S. P. gave to the police.) Nevertheless, the prompt intervention by the trial judge, his rebuke of the prosecutor and his curative instruction to the jury were sufficient to protect defendant’s right to a fair trial in this ease. See State v. DiPaglia, 64 N. J. 288, 296-297 (1974); State v. Bogen, 13 N. J. 137, 141-142 (1953).

Defendant criticizes other comments by the prosecutor in summation, criticism that was shared by the trial judge in one instance when he sustained defendant’s objection. In that instance the prosecutor immediately apologized for attempting to use the high school year book for a purpose beyond that for which it was introduced. See State v. Bogen, supra. Complaint is also made of the prosecutor’s reference to the common experience that stories passed from person to person tend to be inaccurate and to his suggestion that one defense witness was “supposed” to suggest an alibi. The former remark was an acceptable reference to a matter of common knowledge, and the latter did not present an impermissible inference from the evidence. See State v. Perry, 128 N. J. Super. 188, 191 (App. Div. 1973), aff’d 65 N. J. 4.5 (1974). We also find no merit, and some distortion, in defendant’s complaint about the factual references made by the prosecutor to testimony given by two post office employees. In any case, not every misstatement of evidence justifies reversal, particularly when the judge’s charge, as here, instructs the jury that comment of counsel and the court on the evidence is not binding and that the jurors should rely on their own recollection. See State v. Knight, 63 N. J. 187, 193 (1973).

Defendant complains of the prosecutor’s reference to an absent witness, the friend whom defendant said he intended to introduce to S. P. No objection was made to the comment, and we find no plain error. R. 2:10-2; State v. Macon, supra, 57 N. J. at 336. Therefore, we need not consider whether comment on the absence of a witness is improper if a request for an adverse inference charge has not first been made and ruled upon favorably. See State v. Clawans, 38 N. J. 162, 170-172 (1962); cf. Biruk v. Wilson, 50 N. J. 253, 259-261 (1967).

The judgment of conviction is affirmed.

Fritz, J. A. D.

(concurring). I am in accord with the majority determination to affirm, but 1 cannot concur in the holding of that opinion that insofar as the hearsay exclusion is concerned, any relevant statement made by a defendant in a criminal action is admissible. The persuasiveness of the presentation by the majority is most compelling and seductive, especially in its appeal to reason and to that prime mover of the judicial system, the search for the truth. But to succumb to its blandishments is, I respectfully submit, a usurpation of the rule-making function not at all justified by Evid. R. 5 or any other intermediate appellate court prerogative known to me. Were it to be done by the Supreme Court (as I devoutly hope it might be because I am indeed totally satisfied with the rationality of the reasons advanced for not including such declarations within the exclusionary rule), it could be understood as being authored in any event by those whose duties include a pure promulgation of such rules.

I doubt the statement of the majority that prior to the adoption of the new rules of evidence "there was no question that a criminal defendant’s out-of-court declarations were admissible against him” (emphasis supplied). State v. Kociolek, 23 N. J. 400, 421 (1957) does not stand for the proposition: there it was "admissions” — presumably against interest — which were involved, and the majority and I agree that historically these have always been an admissible exception to the exclusionary hearsay rule.

Be this as it may, I am one who holds to that which the majority describes as the "fallacious view” that "the adoption of Evid. B. 63(7), limited to civil eases, and the failure to adopt the proposed Rule 63(6), applicable to criminal cases,” together with the promulgation of Evid. B. 63(10), does indeed reflect inescapably "an intention to preclude the admission of non-inculpatory statements of a defendant.”

Nonetheless, I would not reverse for at least two reasons. First, defendant’s guilt is so abundantly apparent I have no difficulty at all concluding that beyond any reasonable doubt this error held no potential for an unjust result and was therefore harmless. State v. Macon, 57 N. J. 325 (1971). Additionally in this respect, it cannot be said to have denied defendant fairness in his trial, and therefore we should not permit “[t]he question as to what is the truth [to become] lost in critical scrutiny of proceedings at a trial in order to determine whether the technical rules of evidence were or were not observed.” State v. Doto, 16 N. J. 397, 405 (1954), cert. den. 349 U. S. 912, 75 S. Ct. 601, 99 L. Ed. 1247 (1955).

Second, we might well justify the impugned hearsay as a statement against the interest of defendant declarant (Dvid. B. 63(10)) on the assumption that when he made it he had the knowledge which was later articulated in his testimony, which knowledge contradicted the hearsay statement thereby making it one against his interest. Eor myself, I am so totally convinced of the harmlessness of any error that I need not go that far.

I, too, would affirm.

        Evid. R. 63(10) provides:
      “A statement is admissible if at tbe time it was made it was so far contrary to tbe declarant’s pecuniary or proprietary interest or so far subjected him to a civil or criminal liability or so far rendered invalid a claim by him against another or created such a risk of making him an object of hatred, ridicule or social disapproval in the community that a reasonable man in his position would not have made the statement unless he believed it to be true, except that such a statement is not admissible against a defendant other than the declarant in a criminal prosecution.”

        Erid. R. 63(7) provides:

        Rule 63(6), as proposed, read:
      "In a criminal proceeding [as against the accused,] a previous statement [by him] relative to the offense charged made against himself by the defendant on trial, if, and only if, the defendant was promptly arraigned within the time required by law, and if [the judge finds that] the [accused] defendant when making the statement was conscious and was capable of understanding what he said and did, and that he was not induced to make the statement (a) under compulsion or by infliction or threats of infliction of suffering upon him or another, or by prolonged interrogation under such circumstances as to render the statement involuntary, or (b) by threats or promises concerning action to be taken by a public official [with reference to the crime,] likely to cause the [accused] defendant to make such a statement falsely [, and made by a person whom the accused reasonably believed to have the power of authority to execute the same] ; Report of the N. J. Sup. Ct. Comm. on Evidence (1963), at 157. The italics indicate material added to and the brackets indicate material deleted from Rule 63(6) of the Uniform Rules of Evidence. Id. at 6.”

      The last clause of Evid. R. 63(10), which was added to this rule as part of the revision of the proposed evidence prior to adoption, shows some confusion in fulfilling this intention. Evid. R. 63(10) was revised prior to adoption to exclude such statements when offered against a defendant in a criminal case unless the statement was made by the defendant himself. It is poorly written as: “except that such a statement is not admissible against a defendant other than the declarant in a criminal prosecution.” Cf. Rule 63(10) ; Report of N. J. Sup. Ct. Comm. on Evidence (1963), at 168.

        Rule 506 of the Model Code of Evidence, promulgated by the American Law Institute in 1942, continued the common law rule that a “hearsay statement is admissible against the declarant * * * [who] is a party to the action * * Rule 801 of the Federal Rules of Evidence provides that an admission by a party-opponent which is offered against him is not hearsay. The rule applies to criminal and civil proceedings. Fed. R. Evid. 1101(b).
      In United States v. Matlock, 415 U. S. 164, 172, 94 S. Ct. 988, 994, 39 L. Ed. 2d 242, 250 (1974), citing both Wigmore and McCormick as authority, the court held that a defendant’s “own out-of-court admissions would surmount all objections based on the hearsay rule.”

      There it was said :
      “It is common knowledge that Jiseobedo was the subject of much discussion in newspapers, law reviews, periodicals and on television and radio. But more significantly, this Court in 1965 pointed to the widespread belief in academic and other circles *' * that the Supreme Court * * * [would] in due course eliminate all confessions by unrepresented suspects in custody. [Citation omitted]. Although such a drastic innovation was not adopted, nevertheless the trend toward more protective measures to assure the voluntariness of confessions had become so apparent that the per se rule of exclusion could reasonably have been anticipated prior to its crystallization in Miranda. Moreover, long prior to Miranda our Court had declared that failure of the police to advise a suspect of his right to counsel is one of the factors to be considered on the issue of voluntariness of a confession.” 52 N. J. at 371.

      The committee received correspondence on the history of the failure to adopt Mule 63(6) from Professor Brooks who stated:
      “Because the U. S. Supreme Court at that time was evolving new rulings relating to the admissibility of involuntary statements (Escobedo & Miranda were yet to be decided), the New Jersey Supreme Court decided that it would be unwise at that time to adopt a rule dealing with involuntary statements. Proposed Buie 63(6) was deleted, but without an awareness that its deletion inadvertently resulted in the deletion of a rule providing for the admissibility of admissions in criminal cases without reference to the voluntariness issue.” 98 N. J. L. J. 435.

      The Commission was established by Joint Resolution No. 15, (1955) of the Senate and General Assembly of New Jersey.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    TOWNSHIP OF HANOVER, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; TOWNSHIP OF MORRIS, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; BOROUGH OF FLORHAM PARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; A. STEWART DUNFORD; THOMAS E. KENNEY; MARTIN B. MONROE; JOSEPH ELSMAN; JOHN E. FLAHERTY; NORMAN S. WEINBERGER, PLAINTIFFS-APPELLANTS, v. THE TOWN OF MORRISTOWN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND THE MORRISTOWN AIRPORT COMMISSION, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey-Appellate Division
    Argued February 18, 1975
    Decided July 30, 1975.

      Before Judges Michels, Morgan and Milmed.

      Mr. Harry L. Sears argued the cause for appellants (Messrs. Young & Sears, attorneys; Mr. Christopher H. Falcon on the brief).

      Mr. Edward F. Broderick, Jr., argued the causa for respondents (Messrs. Broderick & Grabber, attorneys).

      Mr. Walter F. Waldau argued the cause for amici curiae National Business Aircraft Association and Air Transport Association of America (Messrs. Stryker, Tams <& Dill, attorneys; Mr. John J. Rizzo on the brief).
   Per Curiam.

Plaintiffs appeal from a judgment in the Chancery Division which vacated the following paragraphs of its prior judgment in this action:

C. Having determined from the evidence that the wind rose patterns at the Morristown Airport indicate that the prevailing winds favor the utilization of Runway 5-23 approximately ninety percent of the time, it is directed that after the completion of the extension of said runway, that the preferential runway at Morristown shall be 5-23. This runway shall be utilized as the preferential one by all jet aircraft landing and taking off at Morristown, except as follows:
(1) When the cross wind component on 5-23 is found to be in excess of twenty (20) knots;
(2) When an emergency landing or take-off situation exists;
(3) When the use of Runway 12-30 shall be requested and or directed by the Airport Tower personnel in the interests of flight safety. Furthermore, such preferential runway program when initiated shall be under the direction and guidance of F.A.A. control tower personnel and enforced by the management of Morristown Airport.
❖ * sje * ¡I' >'r * :¡:
I. Oral argument having been heard from counsel and a proffer of proof having been made by counsel for defendants on the subject of restricting jet aircraft at Morristown Airport during certain hours and good cause being shown therefore, the Court directs that jet aircraft will be prohibited from take-offs or landings each day between the hours of 9:00 P.M. until 7 :00 A.M. and on Sundays, except during the hours of 1:00 P.M. until 3:00 P.M., unless an emergency exists, or the interests of flight safety require the utilization of the airport under the guidance and direction of the F.A.A. tower personnel.

Plaintiffs instituted this action in 1969 to enjoin the planned alteration and extension of facilities at the Morris-town Municipal Airport and to curtail the use and operation of the airport. The airport is located entirely within boundaries of the Township of Hanover and is owned by the Town of Morristown and operated by Morristown Airport Commission. Plaintiffs claimed, among other things, that the improvement of the Morristown Municipal Airport would violate the zoning ordinance of the Township of Hanover and that the projected use of the airport as a result of the improvements, particularly by jet-powered aircraft, would create noise and other hazards detrimental to the health, safety and welfare of the residents of the plaintiff municipalities. Judge Stamler in the Chancery Division refused to enjoin the planned alterations and extension of the facilities and permitted defendants to extend and resurface the runway designated at “5-23” and to increase the weight-bearing capacity of that runway as well as the other runway designated “12-30” and to carry out the other phases of the planned improvement of the airport. However, Judge Stamler further held that Runway 5-23, when completed, would be, with certain exceptions, the preferential runway at Morristown Municipal Airport for all jet aircraft and limited the hours that jet aircraft could land and take off. See Hanover Tp. v. Morristown 108 N. J. Super. 461 (App. Div. 1969).

The Chancery Division retained jurisdiction of the action, declaring its judgment to be “experimental in nature” and reserving to the parties the right to apply on notice for modification of or relief from any of the provisions set forth in paragraphs (C) through (I). Approximately 2% years after entry of the judgment defendants moved before the Chancery Division for relief from the provisions of paragraphs (C) and (I). Judge Brown in the Chancery Division, relying upon the recent United States Supreme Court decision in Burbank v. Lockheed Air Terminal, 411 U. S. 624, 93 S. Ct. 1854, 36 L. Ed. 2d 547 (1973), held that the regulation of aircraft noise was preempted by the Federal Government and vacated paragraphs (C) and (I) of the prior judgment. Plaintiffs appeal.

In Burbank v. Lockheed Air Terminal, supra, the United States Supreme Court found that the pervasive nature of federal regulation of aircraft noise preempted the field. The case arose when the City of Burbank adopted an ordinance which made it unlawful for (1) a jet aircraft to take off from the Hollywood Burbank Airport between 11 a.m. of one day and 7 a.m. of the next day, and (2) the operator of that airport to allow such aircraft to take off from the airport during that period. The operator of the airport and Pacific Southwest Airlines sought to enjoin its enforcement. The District Court declared the ordinance unconstitutional holding that it violated both the Supremacy Clause and the Commerce Clause. The Court of Appeals affirmed on the basis of the Supremacy Clause, finding the field of aircraft noise regulation preempted and the ordinance in conflict with runway preference orders issued by the E. A. A. Chief of Airport Traffic Control at the Hollywood-Burbank Airport. The United States Supreme Court affirmed the judgment, Justice Douglas stating:

Our prior cases on pre-emption are not precise guide-lines in the present controversy, for each case turns on the peculiarities and special features of the federal regulatory scheme in question. Cf. Hines v. Davidowitz, 312 U. S. 52, 61 S. Ct. 399, 85 D. Ed. 581; Huron Portland Cement Co. v. Detroit, 362 U. S. 440, 80 S. Ct. 813, 4 L. Ed. 2d 852, 78 ALR 2d 1294. Control of noise is of course deep seated in the police power of the States. Yet the pervasive control vested in EPA and in EAA under the 1972 Act seems to us to leave no room for local curfews or other local controls. What the ultimate remedy may he for aircraft noise which plagues many communities and tens of thousands of people is not known. The procedures under the 1972 Act are under way. In addition, the Administrator has imposed a variety of regulations relating to takeoff and landing procedures and runway preferences. The Federal Aviation Act requires a delicate balance between safety and efficiency, 49 USO § 1348(a) [49 USCS § 1348(a)], and the protection of persons on the ground. 49 USC § 1348(c) [49 USCS § 1348(c)], Any regulations adopted by the Administrator to control noise pollution must be consistent with the “highest degree of safety.” 49 USC § 1431(d) (3) [49 USCS § 1431(d) (3)]. The interdependence of these factors requires a uniform and exclusive system of federal regulation if the congressional objectives underlying the Federal Aviation Act are to be fulfilled.
If we were to uphold the Burbank ordinance and a significant number of municipalities followed suit, it is obvious that fractionalized control of the timing of takeoffs and landings would severely limit the flexibility of the FAA in controlling air traffic flow. The difficulties of scheduling flights to avoid congestion and the concomitant decrease in safety would be compounded. In 1960 the FAA rejected a proposed restriction on jet operations at the Los Angeles airport between 10 p.m. and 7 a.m. because such restrictions could “create critically serious problems to all air transportation patterns.” 25 Fed. Reg. 1764-1765. The complete FAA statement said:
“The proposed restriction on the use of the airport by jet aircraft between the hours of 10 p.m. and 7 a.m. under certain surface wind conditions has also been reevaluated and this provision has been omitted from the rule. The practice of prohibiting the use of various airports during certain specific hours could create critically serious problems to all air transportation patterns. The network of airports throughout the United States and the constant availability of these airports are essential to the maintenance of a sound air transportation system. The continuing growth of public acceptance of aviation as a major force in passenger transportation and the increasingly significant role of commercial aviation in the nation’s economy are accomplishments which cannot be inhibited if the best interest of the public is to be served. It was concluded therefore that the extent of relief from the noise problem which this provision might have achieved would not have compensated the degree of restriction it would have imposed on domestic and foreign
Air Commerce.”
This decision, announced in 1960, remains peculiarly within the competence of the FAA, supplemented now by the input of the EPA. "We are not at liberty to diffuse the powers given by Congress to FAA and EPA by letting the States or municipalities in on the planning. If that change is to be made, Congress alone must do it. [Id., 411 U. S. at 638-640, 93 S. Ct. at 1862, 36 L. Ed. 2d, 556-557.]

• Thereafter in Tillage of Bensemille v. City of Chicago, 16 III. App. 3d 733, 306 N. E. 2d 562 (1973), the Appellate Court of Illinois, applying the Burbanlc decision, dismissed a suit by several municipalities which sought to enjoin the City of Chicago from expanding its facilities at O’Hare International Airport on the ground that by adding to the number and lengths of runways and supporting facilities the use of the airport would be intensified and the noise and air pollution increased, thereby creating a danger to the physical and mental health of the residents of the adjoining municipalities. The court stated:

While that ease involved only aircraft noise and did not include air pollution, we conclude that this is a distinction without a difference and that this decision controls our disposition of the instant case.
As a result, we conclude that the United States, under the Supremacy and Commerce clauses of the Constitution, has, through the Federal Aviation Act, as now supplemented by the Noise Control Act of 1972 and the regulations issued thereunder, so occupied the regulation of aircraft noise and air pollution as to pre-empt any state or local action in that field. * * * [306 IV. B. 2d at 566]

Similarly, we hold that the control and regulation of aircraft noise has been preempted by the Federal Government and that the Chancery Division infringed on the federal power when it imposed the restrictions on the use of the airport set forth in paragraphs (C) and (I) of its 1970 judgment. Those paragraphs were therefore properly vacated by Judge Brown. Cf. United States v. City of New Haven, 496 F. 2d 452, 454 (2 Cir. 1974), cert. den. 419 U. S. 958 (1974). See also, Virginians For Dulles v. Volpe, 344 F. Supp. 573, 577 (E. D. Va. 1972).

Furthermore, we find no merit in plaintiffs’ claim that the vacation of the restrictions on the use of the airport contained in paragraphs (C) and (I) deprived them of their remedy for the alleged wrong resulting from the intolerable noise produced by the increased use of the airport without due process. Although the Federal Government has preempted the field of aircraft noise, neither plaintiff municipalities nor the individual plaintiffs are without remedies. Both can take appropriate action before the Environmental Protection Agency and the Administrator of the Federal Aeronautical Act, and the individual plaintiffs, as landowners, may in a proper case have actions at law against the Morristown Airport Commission as the operator of the airport on the theory of inverse condemnation. See Griggs v. Allegheny County, 369 U. S. 84, 82 S. Ct. 531, 7 L. Ed. 2d 585, 588-589 (1962); Village of Bensenville v. City of Chicago, supra, 306 N. E. 2d at 566.

Accordingly, the judgment in the Chancery Division vacating paragraphs (C) and (I) of its 1970 judgment is affirmed.


author: Kimmelman, J. S. C.

text:
    NEW JERSEY STATE CHAMBER OF COMMERCE, ET AL, PLAINTIFFS, v. NEW JERSEY ELECTION LAW ENFORCEMENT COMMISSION, ET AL, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided July 1, 1975.

      Messrs. Wilentz, Goldman & Spitzer for plaintiffs (Mr. Robert N. Wilentz, appearing).
    Mr. Edward J. Farrell for defendant New Jersey Election Law Enforcement Commission.
    Mr. William F. Hyland, Esq., Attorney General of New Jersey (Mr. Richard M. Conley, Deputy Attorney General appearing).
    Messrs. Fuerst & Singer, attorneys for defendant-inter-venor Common Cause (Kenneth J. Guido, Jr. and Mr. William S. Singer, appearing).
   Kimmelman, J. S. C.

The constitutionality of certain disclosure and reporting requirements of the New Jersey Campaign Contributions and Expenditures Reporting Act, L. 1973, c. 83, § 1 et seq., effective April 24, 1973, N. J. S. A. 19:44A-1 et seq., which are imposed upon those who would seek to influence or otherwise affect the legislative process are here under attack. While admitting a valid state interest in the need or desirability for legislators to know the identity of those who would influence them and the amounts of money thereby spent, plaintiffs, numbering among them the State Chamber of Commerce, major trade associations, commercial and labor organizations and other civic groups, nevertheless contend that such provisions are unconstitutional because of facial overbreadth and infringement upon the right of free speech.

Apart from the dollar limitations imposed upon spending by candidates for public office and the disclosure and reporting requirements imposed upon them and upon state, county and municipal committees of recognized political parties, the act further requires that any group of “two or more persons acting jointly, or any corporation, partnership, or any other incorporated or unincorporated association * * * which seeks to influence the content, introduction, passage or defeat of legislation” (such group being defined and hereinafter referred to as a “political information organization”), N. J. S. A. 19:44A-3(g), to appoint a treasurer and designate a depository (bank) before receiving any contribution or expending any money to influence the legislative process, N. J. S. A. 19 :44A-13; to receive and expend funds only “through the duly appointed treasurer” N. J. S. A. 19:44A-14; to make and file with the Election Law Enforcement Commission “a full report * * * of all moneys * * * contributed to it and all expenditures made * * * by it” to seek to influence the legislative process, N. J. S. A. 19:44A-8, 16, and also to “file with the Election Law Enforcement Commission not later than March 1 of each year, an annual report of all moneys * * * contributed to it and all expenditures * * * by it, whether or not such expenditures were made * * * to seek to influence” the legislative process. N. J. S. A. 19:44A-8. (All emphases provided).

The act in similar fashion regulates “political committees,” defined as “any two or more persons acting jointly, or any corporation, partnership or other incorporated or unincorporated association which is organized to, or does, aid or promote the nomination, election or defeat of any candidate or candidates for public office, or which is organized to, or does aid or promote the passage or defeat of a public question in any election.” N. J. S. A. 19:44A-3(i), N. J. S. A. 19:44A-10. Political information organizations and political committees under the legislative scheme have overlapping definitions, except with respect to influencing the legislative process, which is confined to the former. Compare § 3(g) with § 3(i).

Individual persons, not acting in concert with any other person or group, may expend personally from their own funds a sum not to exceed $100 exclusive of traveling expenses, to support or defeat a candidate or to aid the passage or defeat of a public question, N. J. S. A. 19 :44A — 11, or to provide political information on any candidate or public question, or to seek to influence the legislative process. N. J. S. A. 19:44A-14. Expenditures by individuals above the $100 level require reporting to the Election Law Enforcement Commission. Groups of two or more persons acting together are neither allowed the $100 leeway nor the traveling expense exclusion but must comply with the act before engaging in political activity requiring the expenditure of money.

Nowhere in the act is there contained any threshold level of contributions to be received or expenditures to be made by a political information organization or political committee before there is triggered into effect the requirements to appoint a treasurer and a depository, to receive and expend only through such agencies and to report in detail to the Election Law Enforcement Commission. To those groups the act applies immediately. The only significant monetary exemption is the permission to exclude from the disclosure reports the names of those contributors whose contributions did not exceed $100 during the reporting period, although the aggregate amount of such $100 or lesser contributions must be reported. N. J. S. A. 19:44A-8.

Thus, it would appear from the express statutory wording that any corporation, any partnership and any association of two or more persons who spend as little as $1 to provide political information (press releases, pamphlets, newsletters, advertisements, flyers, etc., N. J. S. A. 19 :44A-3(h)), about candidates or any public question, or make any similarly slight and insignificant expenditure for travel, postage stamps, stationery, telephone charges and the like in an attempt to arouse public support or in direct contact with legislators to influence the content, introduction, passage or defeat of legislation, are subject to regulation by the act. As noted, individuals, acting alone, who engage in the identical activity but spend $100 or less are completely exempted. In addition, these groups of two or more persons must, with respect to contributions received by them and presumably with respect to their own funds, put the same in the hands of their designated treasurer who, in turn, must run the same through their designated bank depository before spending the funds on political activity. N. J. S. A. 19:44A-15. Noncompiiance with the requirements of the act may result in the assessment of substantial penalties. N. J. S. A. 19 :44A — 22.

Subsequent to the commencement of this litigation the Election Law Enforcement Commission adopted regulations exempting political information organizations and political committees from the reporting and other requirements of the act if the total amount of their expenditures did not exceed $100 during the applicable calendar year or election period. N. J. A. C. 19:25-1.7, 4.7, 12.1; 6 N. J. R. 371 et seq. (September 25, 1974). On behalf of defendants it is urged that the adoption of these regulations is within the permissible regulatory scope of the Election Law Enforcement Commission, to implement the provisions of the act. N. J. S. A. 19:44A — 6(b). On the other hand, plaintiffs claim that the alleged constitutional infirmities inherent in the act cannot be cured by regulations which clearly contravene the act by purporting to limit the direct and explicit statutory wording contained in § 8, which requires the reporting of all contributions received and all expenditures made. Upon an appeal taken as of right pursuant to B. 2 :2 — 3 (a) to review the validity of these regulations promulgated by the Election Law Enforcement Commission, the Appellate Division, by order dated January 8, 1975, remanded plaintiffs’ appeal to this court for consideration of tbe validity of the regulations in the context of the overall challenge to the constitutionality of the act.

The manifest objective of the New Jersey Campaign and Expenditures Reporting Act is to identify and attempt to regulate the significant flow of substantial wealth aimed at affecting the outcome of elections, public questions and the legislative process. No one doubts that money is a prime lubricant of the machinery of politics., Eor too many years the financial aspect of politics has been shrouded either in a veil of secrecy or a fog of confusion. The average voter is aware of the tremendous cost involved in running even a modest campaign for elective office; however, he cannot help but wonder where the money comes from and more importantly . . . why it comes. So, too, the legislator is entitled to know much the same information with respect to the motivating forces behind the legislative bills coming before him. See the Legislative Activities Disclosure Act, L. 1964, c. 207, N. J. S. A. 52:13C-1 et seq. Surely an informed electorate as well as an informed legislature constitute the essence of a democratic society. Hence the public policy behind the enactment of the act.

The identity of the source of these funds and the recipients of the same when expended, including the regulatory controls to insure accurate reporting thereof, necessarily involves an incidental effect and burden upon the unfettered freedom of political expression guaranteed by both the First Amendment to the U. S. Constitution and N. J. Const. (1947), Art. 1, par. 18, which provides:

Tbe people have tbe right to freely assemble together, to consult for the common good, to make known their opinions to their representatives, and to petition for the redress of grievances.

While there appears no intent, express or implied, in the act to control the content of speech, the broad sweep of the act’s application would necessarily precondition the right of groups to incur expenditures for political expression ox spend money in order to disseminate their views (written words) unless and until the group first appointed a treasurer, designated a hank depository and filed notice of the same with the Ejection Law Enforcement Commission. N. J. S. A. 19:44A-10; N. J. S. A. 19 :44A-13.

Thus, the issue for decision in this case involves a balancing of competing interests between the First Amendment rights of citizens to freely band together, in corporate form or otherwise, and express their political views concerning candidates, public questions and the content, introduction, passage or defeat of legislation, with the countervailing legislative objectives behind the New Jersey Campaign Contributions and Expenditures Reporting Act. Of course, these legislative objectives do not forbid such right of expression. The point is whether the legislative mechanics designed to obtain these goals will tend to deteT, stifle, chill or otherwise obstruct and impair such guaranteed rights to a degree which is constitutionally impermissible. In this perspective it is the duty of the courts to determine which of these two conflicting interest demands the greater protection under the particular circumstances presented. N. A. A. C. P. v. Alabama, 357 U. S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958); Gibson v. Florida Investigation Committee, 372 U. S. 539, 83 S. Ct. 889, 9 L. Ed. 2d 929 (1963); United States v. O’Brien, 391 U. S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968); Younger v. Harris, 401 U. S. 37, 91 S. Ct. 746, 27 L. Ed. 669 (1971); Broadrick v. Oklahoma, 413 U. S. 601, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973); Anderson v. Sills, 56 N. J. 210, 226-227 (1970).

Although facial overbreadth challenges to the constitutionality of a statute might properly be regarded as involving purely a consideration of applicable legal principles, the lack of any factual trial record was thought in Anderson v. Sills, supra at 215 to be inadequate and improper for a de-cisión on the merits by a reviewing court. Accordingly, testimony and voluminous exhibits were received and reviewed by this court.

Several experienced state legislators, past and present, related their views as to the operation of the act. Their concern was not at all with well-organized and adequately financed public information organizations and political committees, such as the New Jersey State Chamber of Commerce for whom the act might not have a substantial deterrent effect. Rather, they were concerned with the so-called single issue groups or ad hoc committees which spontaneously spring up to voice their special interest on specific bills before the Legislature. These less organized groups, often just husband and wife or neighborhood teams, constitute a very typical vehicle for political expression throughout the country and New Jersey. In fact, informal political cooperation is a most distinctive characteristic of the American public. Group action is at the heart of the political process. In contrast to the well-organized lobbyist-type group, these less organized political groups probably never heard of the New Jersey Campaign Contributions and Expenditures Reporting Act and could not understand that their activities, because they worked in groups of two or more, were covered.

For example, the well-meaning groups who charter a bus and descend upon the state capitol to campaign for or against abortion laws, or for a state income tax, or for aid to parochial schools, or the state employees who assemble in a group carrying placards for higher wages, or the motor i cycle group seeking permission to travel on the Garden State Parkway, all of whom incur expenditures in varying amounts to voice their opinions on these subjects, are unknowing violators of the act. They all have failed to appoint a treasurer, they have failed to designate a bank depository, they have failed to notify the Election Law Enforcement Commission of their spontaneous association to meet what seems to them to be a pressing public issue, and they have incurred expenditures before complying with the act as aforesaid, thereby subjecting themselves to substantial civil penalties. Ear from being a parade of horribles envisioned by defendants, the court finds these modes of political expression most characteristic of New Jersey political life.

The testimony uniformly conveyed the view based upon practical political experience over the years that these typical single-issue, less organized groups, upon learning that the act applied to them, would undoubtedly be inhibited or discouraged from engaging in the activity described. Some groups would have difficulty in finding one of their number to serve as treasurer, or even to find one competent to accept that statutory responsibility, and would therefore simply become disgusted and give up the contemplated activity because it would be too much trouble to comply. As one legislator put it, he welcomed hearing from all groups but was afraid that the reporting requirements of the act would have some deterrence on their activity. He doubted whether any of the ad hoc single-issue groups kept any kind of records sufficient to comply with the act. From the myriad of reporting forms utilized by the Election Law Enforcement Commission, it would appear that compliance with the paper work alone would impose a substantial if not onerous burden on these smaller groups.

As an initial proposition, plaintiffs here, while voicing great inconvenience with having to operate under the act, do not claim to have been “chilled” or silenced to any noticeable degree, and therefore some question has been raised as to their standing to sue. Our courts have effectively disposed of that argument in Anderson v. Sills, supra, as follows:

We do not require that injury shall be experienced as a condition for suit, !!" * * and there is good reason to permit the strong to speak for the weak or the timid in First Amendment matters, [at 220]

Recently, in Broadrick v. Oklahoma, supra, the United States Supreme Court said:

It has long been recognized that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society * * *. As a corollary, the Court has altered its traditional rules of standing to permit — in the First Amendment area — ‘attacks on overly broad statutes with no requirements that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite specificity.’ Dombrowski v. Pfister, 380 U. S. [479], 486, 85 S. Ct. [1116], 1121, 14 L. Ed. 2d 22 (1965). Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the Court to refrain from constitutionally protected speech or expression. [413 U. S. at 611-612, 93 S. Ct. at 2915-2916]

With respect to the “balancing test” to be undertaken on an assertion of facial overbreadth, Broadrick declared:

Such claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate ‘only spoken words.’ Gooding v. Wilson, 405 U. S. 518, 520, 92 S. Ct. 1103, 31 L. Ed. 2d 408 (1972). See Cohen v. California, 403 U. S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971) ; Street v. New York, 394 U. S. 576, 89 S. Ct. 1354, 22 L. Ed. 2d 572 (1969) ; Brandenburg v. Ohio, 395 U. S. 444, 89 S. Ct. 1827, 23 L. Ed. 430 (1969) ; Chaplinsky v. New Hampshire, 315 U. S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942). In such cases, it has been the judgment of this Court that the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes. Overbreadth attacks have also been allowed where the Court thought rights of association were ensnared in statutes which, by their broad sweep, might result in burdening innocent associations. See Keyishian v. Board of Regents, 385 U. S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967) ; United States v. Robel, 389 U. S. 258, 88 S. Ct. 419, 19 L. Ed. 2d 508 (1967) ; Aptheker v. Secretary of State, 378 U. S. 500, 84 S. Ct. 1659, 12 L. Ed. 2d 992 (1964) ; Shelton v. Tucker, [364 U. S. 479, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960)]. Facial overbreadth claims have also been entertained where statutes, by their terms, purport to regulate the time, place and manner of expressive or communicative conduct (citations omitted), and where such conduct has required official approval of the laws that delegated standardless discretionary power to local functionaries, resulting in virtually unreviewable prior restraints on First Amendment rights, (citations omitted). [413 U. S. at 612-613, 93 S. Ct. at 2916, (emphasis supplied) ]

Finally, the Broadridk court indicated that the consequence of an overbroad statute is either a limiting construction or partial invalidation by saying:

The consequence of our departure from traditional rules of standing [namely, allowing persons to assert the constitutional rights of third persons when dealing with statutes whose effect fell within the locus of the First Amendment] in the First Amendment area is that any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute, [at 613, 93 S. Ct. at 2916]

The good which the act proposes to accomplish must be weighed against the danger which it generates in restraining our citizens from fully expressing their political views. That danger cannot be tolerated, for it threatens the very structure upon which our form of government rests. The act’s defect, therefore, lies not in its goal but in the over-breadth employed to achieve it. There can be little doubt that the purification of the legislative process and the daylight which the act seeks to focus upon the flow of money used to affect the legislative process will have a serious dampening effect upon the outflow of spontaneous expression from the typical single-issue, unstructured political group. The factual evidence outlined above, even though conjectural to a degree, indicates as much. Upon close analysis of the act, the state interest pales and becomes quite incompatible with the exercise of First Amendment rights.

For one thing, individuals are freely allowed to expend up to $100, with an unlimited travel exclusion, when engaging in activity described within the purview of political information organizations and political committees. Yet, once that same individual combines with his spouse or neighbor to do the very same thing he is forbidden to do so under pain of civil penalty unless first a treasurer and bank depository are appointed and notice thereof filed, all funds must first be run through the bank before being spent, and a later report of all contributions and all expenditures must be filed which must list even those expenditures made for entirely legitimate business purposes unrelated to the political process. That the act would freely allow less than $100 political activity on the part of individuals while denying the same freedom to groups of two or more points to a clear clash with the time-honored democratic process of group action. No rational basis for this distinction between one person and two persons as being related to any compelling state interest can be made to appear. Contrary to the provisions of N. J. Const. (1947), Art. I, par. 18, the operation of the act would clearly impede people from freely assembling and from freely making known their opinions to their representatives. In fact, spontaneity of expression by any group would effectively be squelched. The act has preconditioned these rights and hence has made them much less than “free.”

The regulations adopted by the Election Law Enforcement Commission during the pendency of this litigation would place political information organizations and political committees on a par with individuals who do not spend more than $100. Unfortunately, these regulations contradict the plain terms of the act and are out of harmony with it. The act subjects political information organizations and political committees to compliance with respect to all contributions and alt expenditures, N. J. S. A. 19:44A-8, 16, and not merely with respect to the second $100 thereof. An administrative regulation may not narrow or restrict the scope of an otherwise specific and clearly worded statute. Abelson’s Inc. v. N. J. Bd. of Optometrists, 5 N. J. 412 (1950). These regulations purport to do just that and hence are void.

Judicial surgery, sometimes permissible when statutory language is susceptible to flexion, may not be performed here to save the political information organization and political committee provisions of the New Jersey Campaign Contributions and Expenditures Reporting Act from constitutional excision. See Borough of Collingswood v. Ringgold, 66 N. J. 350, 357 (1975) ; United States v. Harriss, 347 U. S. 612, 74 S. Ct. 808, 98 L. Ed. 989 (1954). The act is too precisely worded to enable this court to insert into its terms a judicial definition of what should be regarded as a significant flow of money sufficient in amount to influence the legislative process, or to judicially establish a threshold amount which must be reached before the reporting requirements are triggered. In addition, some funds should be able to be spent immediately on seemingly urgent political activity without having to first clear the same through a special bank account. Moreover, much may be said to differentiate between the typical single-issue, unstructured political group which springs into being at any time and at all times, and recedes with the same facility, from the well-organized and well-financed special interest groups. Involved, however, is a legislative function beyond the expertise of this court. The creative power to fashion legislation or alter the structure of government is denied to the judiciary. Reilly v. Ozzard, 33 N. J. 529, 553 (1960).

Elimination of all provisions in the Campaign Contributions and Expenditures Eeporting Act relating to political information organizations and political committees and confining the act to the object expressed in its title, see N. J. Const. (1947) Art. IV, § 7, el. 4, will leave intact those provisions relating to candidates, limitations on amounts spent for public office and political party committees. The severability section, N. J. S. A. 19:44A-25, will be given full effect.


author: Kentz, J. S. C.

text:
    TEAMSTERS LOCAL UNION #11 AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AN UNINCORPORATED ASSOCIATION, AND FRANK DODGE, JR., PLAINTIFFS, v. GEORGE ABAD AND ABCD TRUST, PARTNERS T/A GENERAL GROCERY WAREHOUSE CO., AND GENERAL GROCERY WAREHOUSE CO., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided July 22, 1975.

      Mr. Scott E. Tanne for plaintiffs (Messrs. Schneider, Solomon & Aronson, attorneys).

      Mr. Edward J. Gilhooly for defendant (Messrs. Yauch, Peterpaul & Ciarle, attorneys).
   Kentz, J. S. C.

Plaintiffs Teamsters Local Union No. 11 (Union) and Frank Dodge, Jr. (Dodge) have filed a complaint and an order to show cause seeking the vacation of an arbitration award pursuant to N. J. S. A. 2A:24-8. Defendant George Abad, t/a General Grocery Warehouse Co. (Abad), has filed a motion seeking dismissal of the complaint and a counterclaim seeking confirmation of the award.

The significant facts are not disputed. An arbitration award dated January 8, 1975 sustained the discharge of Dodge by his employer Abad. Admittedly, there was compliance by the parties to the existing collective bargaining agreement requirements. On September 24, 1974 Dodge was discharged on the grounds of a poor productivity record. John Wade and Salvatore TrimboE (Trimboli) testified on behalf of Abad at the arbitration hearing on December 11, 1974. The arbitrator issued his opinion on January 8, 1975, stating that “it was the clear thrust of the credible testimony that the grievant was not pulling his weight and that his work productivity was unsatisfactory.”

On January 24, 1975 TrimboE was discharged by Abad. In an affidavit signed on April 2, 1975 TrimboE states that as warehouse manager for Abad he was told in August 1974 by Abad that “We have to start building a case against Frank Dodge. He is making too many waves for the company and nothing more than, a troublemaker. We have to find reasons to fire him.” TrimboE went on to state that he started to gather data from the production record of Dodge but found that about half of the daily production sheets were missing. TrimboE stated that he testified at the arbitration hearing knowing these records were missing. TrimboE produced a chart which indicated the production records of several employees, including Dodge, for a period of several months. This chart was introduced and represented to be a continuing record when, in fact, a number of the records were missing which was not so indicated on the chart.

Abad by affidavit denies he told TrimboE to “build a case against Prank Dodge.” It should be noted that Abad does not deny the fact that certain production records were not produced nor is there a denial that the chart omitted to note the fact that there were missing records.

N. J. S. A. 2A:2A-8 sets forth the circumstances under which an award may be vacated and in pertinent part reads:

The court shall vacate the award in any of the following cases:
a. Where the award was procured by corruption, fraud or undue means;
b. Where there was either evidence partiality or corruption in the arbitrators, or any thereof;
AVhen an award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators.

Plaintiffs contend that although subsection (b) of N. J. 8. A. 2A:2A-8 is not applicable herein, it must be read in conjunction with subsection (a) thereof. Plaintiffs assert that subsection (b) provides for vacation of an award in the event of corruption on the part of the arbitrator. Subsection (a) also speaks in terms of corruption and plaintiffs contend that this should be interpreted to mean corruption on the part of the parties to the arbitration. Plaintiffs therefore allege that corruption and fraud on behalf of Abad in knowingly submitting incomplete production records warrants a vacation of the award pursuant to subsection (a) of N. J. S. A. 2A:24-8.

Abad also contends that subsection (a) is the only applicable provision. Abad alleges that “undue means” is inapplicable for the reason that no mistake in the application of a legal rule or mistaken fact is apparent. See Anco Products Corp. v. T. V. Products Corp., 23 N. J. Super. 116, 125 (App. Div. 1952); Held v. Comfort Bus Line, Inc., 136 N. J. L. 640, 641 (Sup. Ct. 1948). This court agrees. The award does not on its face mistakenly apply either a legal rule or any of the facts presented. The award will not be vacated upon the ground that it was procured by “undue means.”

There remain for consideration the categories of “corruption” or “fraud” under N. J. 8. A. 2A:24-8(a).

Abad, in alleging that no fraud was present, addresses the issue in terms of purported perjury on the part of Trimboli and urges this court to apply a stricter standard than that applied in the granting of a new trial after a verdict. See Stoll’s Adm’r v. Price, 21 N. J. L. 32 (Sup. Ct. 1847), aff’d 22 N. J. L. 578 (E. & A. 1849).

The standard applied where there is an allegation of perjury or fraud upon the court is stated as:

Clear, convincing and satisfactory evidence to have been, not false merely, but to have been wilfully and purposely falsely given, and to have been material to the issue tried and not merely cumulative but probably to have controlled the result. [Shammas v. Shammas, 9 N. J. 321, 380 (1952) ]

Two eases cited by Abad as supporting this strict standard, Newark Stereotypers Union No. 18 v. Newark Morning Ledger Co., 397 F. 2d 594 (3 Cir. 1968), cert. den. 393 U. S. 954, 89 S. Ct. 378, 21 L. Ed. 2d 365 (1968); and Karppinen v. Karl Kiefer Machine Co., 187 F. 2d 32 (2 Cir. 1951), both proceed into an inquiry of the facts and merits of the case in concluding that the evidence as a whole supported the arbitration award. Such inquiries into the facts and merits appear to be in contradiction of the general rule that a court should not esamina the merits of the facts presented to the arbitrator. See Stoll’s Adm’r, supra.

A dilemma thus faces this court in that the court is satisfied that production records were indeed withheld. The above-quoted language of Shammas would seem to require this court to view the omitted production records and decide whether these were material to the issue and having a controlling effect on the result. However, the rule set forth in Stoll’s Adm’r constrains this court in its inquiry into the facts and merits of the case.

The solution to this dilemma is to view the remaining category under N. J. S. A. 2A:24-8(a), namely, “corruption.” Plaintiffs initially contend that this term refers to corruption on the part of one of the parties in view of the language in subsection (b) referring to corruption on the part of the arbitrator. A reading of the two subsections does lead to a conclusion that subsection (a) refers to corruption on the part of one of the parties to the arbitration procedure.

Plaintiffs further argue that the intentional withholding of certain production records constitutes corruption as set forth in subsection (a), thus warranting the vacation of the award. Unfortunately, the case law of New Jersey fails to provide guidelines on what constitutes corruption. The cases often talk of fraud and corruption concurrently but fail to define or provide guidelines for corruption. See Held, supra; Bell v. Price, 21 N. J. L. 32 (Sup. Ct. 1847); Atkinson v. Townley, 1 N. J. L. 388 (Sup. Ct. 1795).

Black’s Law Dictionary (4 ed. 1968) defines corruption as:

Illegality; a vicious and fraudulent intention to evade tbe prohibitions of the law ; something against or forbidden by law; moral turpitude or exactly opposite of honesty involving intentional disregard of law from improper motives.
An act done with an intent to give some advantage inconsistent with official duty and the rights of others.

This court is satisfied that there was an apparent conscious withholding of a portion of the employee’s production records. The affidavit by Abad does not deny such a fact. These records were clearly pertinent to the material issues of the case. Willful concealment of relevant records by a party to arbitration serves only to tear away at the very arbitration process which the defendant herein contends should be favored and followed by this court. In my view such action clearly falls within the definition of corruption as the term is used in N. J. S. A. 2A:24-8(a).

Undoubtedly, arbitration is encouraged by the courts. Anco and Held, supra. However, this conduct constitutes corruption per se and should not be condoned. To allow a party to misrepresent a production chart as being complete when in fact certain records were withheld would be approving corruption as a part of the arbitration process. Therefore, this award is vacated.

N. J. S. A. 2A:24-8 makes provision for a rehearing by an arbitrator within the discretion of the court when an award has been vacated, provided that the time for the making of the award has not expired under the terms of the collective bargaining agreement. Although it appears that the collective bargaining agreement here is silent with respect to the time within which it is required that an award be made, nevertheless it is my view under the circumstances of this case that the sound exercise of discretion requires that Dodge be reinstated to his employment. See LaStella v. Garcia, 128 N. J. Super. 173 (App. Div. 1974); Held, supra.

In view of this holding that the award was procured by corruption it is unnecessary for this court to decide the fraud issue.


author: Heine, J. S. C.

text:
    CITY OF CAMDEN, A MUNICIPAL CORPORATION, PLAINTIFF, v. JUANITA DICKS, DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided July 2, 1975.

      Mr. Martin F. McKernan, Jr., for plaintiff.

      Mr. Joseph A. Carmen for defendant.
   Heine, J. S. C.

This action raises the question whether it is ultra vires for a city to agree to pay its employee upon retirement 50% of her accumulated sick time.

The City of Camden entered into a collective bargaining agreement with Council Ho. 10, New Jersey Civil Service Association, acting in behalf of the supervisory personnel of the city, which, among other terms and conditions of employment, provided as follows:

Upon retirement from service to the City of Camden * * * the employee shall receive fifty percent (50%) of his accumulated sick time as additional severance pay said payment not to exceed $12,000.00.

Following the adoption of the agreement the city paid defendant upon her retirement the sum of $4,614.52 for her percentage of accumulated sick time.

Later, the city determined that it had no power or authority to so contract; that such a provision constituted an ultra vires act on its part, and it brought this suit to recover the money paid.

While the defense of ultra vires is available to a municipal corporation, Spoerl v. Pennsauken Tp., 14 N. J. 186, 189 (1954), the defense has its limitations. In Summer Cottager’s Ass’n of Cape May v. Cape May, 19 N. J. 493 (1955), it was pointed out that

There is a distinction between an act utterly beyond the jurisdiction of a municipal corporation and the irregular exercise of a basic power under the legislative grant in matters not in themselves jurisdictional. The former are ultra vires in the primary sense and void; the latter, ultra vires only in a secondary sense which does not preclude ratification or the application of the doctrine of estoppel in the interest of equity and essential justice, [at 504]

Our courts have already recognized the “strong recent trend towards the application of equitable principles of estoppel against public bodies where the interests of justice, morality and common fairness clearly dictate that course.” Gruber v. Raritan Tp., Mayor & Tp. Comm., 39 N. J. 1, 13 (1962); Hill v. Eatontown Bd. of Adjust., 122 N. J. Super. 156, 164 (App. Div. 1972).

The city urges that it had no authority to enter into the agreement concerning accumulated sick leave time. Maywood, Ed. Ass’n. Inc. v. Maywood Bd. of Ed., 131 N. J. Super. 551 (Ch. Div. 1974), dealt with a similar contention as it applied to a board of education.

N. J. 8. A. 40:69A-29 provides,

Each municipality governed by an optional form of government * 31 *■ shall, subject to the provisions of this act or other general laws, have full power to:
(a) organize and regulate its internal affairs, and to establish, alter and abolish offices, positions and employments and to define the functions, powers and duties thereof and fix their term, tenure and compensation.

Camden operates under Mayor-Council Plan B 40 :69A-49 et seq.

The city is further controlled by the provisions of the Civil Service Act, N. J. S. A. 11:19 — 1 et seq. Under N. J. S. A. 11:24A-3 every employee is entitled to sick leave with pay of 15 days every year after the first year, and the amount of such leave not taken shall accumulate to the employee’s credit from year to year.

Neither of the above statutes prohibits the city from making payment for unused sick leave, but the city argues that since there is no express authority in either of the statutes to compensate retiring employees by way of percentage of unused accumulated sick leave time, that to contract as it did constituted an ultra vires act.

Municipalities operating under the Faulkner Act, N. J. 8. A. 40:69A-1 et seq., have ample authority under N. J. 8: A. 40:69A-29 to fix compensation of its employees. This statutory grant of authority is broad enough to include payment for unused sick leave in the form of additional compensation upon retirement.

Additional authority is contained in the Employer-Employee Relations Act, N. J. 8. A. 34-.13A-5.3. Compensation to be paid public employees is surely included in terms and conditions of employment authorized to be negotiated. Englewood Bd. of Ed. v. Englewood Teachers, 64 N. J. 1, 6-7 (1973).

The city employer receives benefits from such an agreement. It induces competent and efficient workers to enter public service, encourages employees to stay in public service and deters absenteeism for trifling ailments. Maywood, supra; Teachers Ass’n, Central H. S. D. No. 3 v. Board of Ed., etc., 34 A. D. 2d 351, 312 N. Y. S. 2d 252, 256-257 (App. Div. 1970); Providence Teachers Union v. School Committee, 108 R. I. 444, 276 A. 2d 762 (Sup. Ct. 1971); cf. Quinlan v. City of Cambridge, 320 Mass. 124, 68 N. E. 2d 11 (Sup. Jud. Ct. 1946); City of Orange v. Chance, 325 S. W. 2d 838 (Tex. Civ. App. 1959).

The Legislature in no place has withdrawn from a municipality the power to pay for unused sick leave. In the absence of express restriction against bargaining for that term of an employment contract between an employer and its employees, the authority to provide for such payment resides in the municipality under the broad powers and duties delegated by the statutes. Were it otherwise a municipality would not be able to bargain collectively and to make agreements concerning terms of employment with its employees unless specific statutory authority for each provision of the agreement existed. Such a narrow and inflexible construction would virtually destroy the bargaining powers which public policy has installed in the field of public employment and throttle the ability of a municipality to meet the changing needs of employer-employee relations. Teachers Ass’n, Cent. II. S. D. No. 3 v. Board of Ed., etc., supra. Such a construction would undermine the laudable purposes of New Jersey Employer-Employee Relations Act, N. J. S. A. 34:13A-1 et seq.

It is further argued that the absence of such express authority should be interpreted as an implied prohibition against such agreement or payment. In support of this argument it is pointed out that with regard to state employees the Legislature has provided for payment for unused sick leave time (N. J. 8. A. 11:14-9), while no such provision is made for municipal employees. The argument continues that the doctrine of expressio wvius esi exclusio alterius requires a holding that it was the legislative intent to withhold the like treatment for municipal employees as for state employees.

The doctrine of expressio unius esi exclusio alterius has been said to be

* * * a mere aid to interpretation. * * * it usually serves to describe a result rather than to assist in reaching it. The final question is whether in a given context an express provision with respect to a portion of an area reveals by implication a decision wtih respect to the remainder. The issue is one of intention. The answer resides in the common sense of the situation. [ Reilly v. Ozzard, 38 N. J. 529, 539 (1960)]

Maywood Ed. Ass’n. v. Maywood Bd. of Ed., supra; 2A Sutherland, Statutory Construction (4 ed. Sands 1973), § 47.24 at 127.

In Maywood the court held that the action of the Legislature, N. J. S. A. 11:14r-9, in providing mandatory supplemental compensation to retiring state employees for their unused sick leave without taking any action concerning payment for unused sick leave time with respect to any other class of public employees, cannot, in itself, be interpreted as evidencing a legislative intent to prohibit payment for unused sick leave to nonstate employees. The court held that

A more reasonable interpretation of its action is that as to other public employees such payments were and continue to be committed to the discretion of the public employers within their existing statutory authority to compensate their employees.

This court fully agrees with the holding in Maywood.

The city emphasizes its contention by pointing out that a bill was introduced in the Assembly 1974 session (Assembly Bill No. 653) intending to supplement the Civil Service Act (Revised Statutes Title 11) so as to permit counties, municipalities and school districts to make supplemental compensation to its employees for unused accumulated sick leave. The statement accompanying the bill states

Although P. L. 1973, c. 130 entitles retiring State employees to supplemental compensation for unused accumulated sick leave, there is no authority under current law for counties, municipalities and school districts to provide similar benefits to their employees. * * *

The bill has not yet passed the Assembly. So, of course, it is far from becoming law. Such a bill is no more than an attempt to amend existing legislation. It may be that the Legislature did not nor will not act further in the matter because it may have considered that the law did in fact include the purposes of the proposed amendment, or the bill is objectionable for other reasons, and so there was no need to act further in the matter. Hilton Acres v. Klein, 64 N. J. Super, 281, 294 (App. Div. 1960), mod. 35 N. J. 570 (1961); Moore v. Bd. of Freeholders, 39 N. J. 26, 30 (1962); 2A Sutherland, Op. Cit., § 48.18 at 224.

Judgment for defendant. Uo costs.


text:
    GRETA CHAPPELL, INDIVIDUALLY AND AS GUARDIAN OF MURIEL CHAPPELL, AN INFANT, LLOYD S. KELLING AND HELEN T. KELLING, INDIVIDUALLY AND AS GUARDIANS OF STEPHEN KELLING, AN INFANT, ROGER MAZZELLA INDIVIDUALLY AND AS GUARDIAN OF JOYCE MAZZELLA AN INFANT, JERSEY CITY EDUCATION ASSOCIATION, A NON-PROFIT CORPORATION OF THE STATE OF NEW JERSEY, HILLSIDE EDUCATION ASSOCIATION, A NON-PROFIT CORPORATION OF THE STATE OF NEW JERSEY, AND PLAINFIELD EDUCATION ASSOCIATION, A NON-PROFIT CORPORATION OF THE STATE OF NEW JERSEY, AND FLORY NATICCHIA, APPELLANTS, v. COMMISSIONER OF EDUCATION OF NEW JERSEY AND THE NEW JERSEY STATE BOARD OF EDUCATION, RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued June 16, 1975
    Decided July 31, 1975.

      Before Judges Michels, Morgan and Milmed.

      Mr. Emil Oxfeld, argued the cause for the appellants (Messrs. Rothbard, Harris & Oxfeld, attorneys).

      Ms. Mary Ann Burgess, Deputy Attorney General, argued the cause for the respondents (Mr. William F. Hyland, Attorney General of New Jersey, attorney).
   Per Curiam.

This is an appeal from a decision of the State Board of Education dated April 3, 1974 affirming a decision of the Acting Commissioner of Education filed November 2, 1973 which upheld the validity, usefulness and reliability of the statewide achievement tests in reading and mathematics administered to 4th and 12th grade public school students on November 14 and 15, 1972.

Appellants are (1) parents of children attending public schools, and (2) representatives of teacher groups. They had initially commenced an action in the Chancery Division seeking to enjoin the dissemination of the results of the statewide tests. In their complaint in that action they expressed, among other things, concern “with the educational problems in areas where there has been racial unrest, polarization and charges of neglect and indifference to the school system.” They contended that the release of the results of the state-wide testing would “cause further division and polarization in the communities.” They charged that there was “no valid compelling interest to justify the invasion of their constitutional and statutory rights as well as their right of privacy * * *.” The trial judge dismissed the complaint and at the same time enjoined the Commissioner from distributing or publishing the results of the statewide testing program for a period of ten days, the restraint being conditioned upon the plaintiffs’ (appellants’) “filing a proceeding” within that ten-day period with the Commissioner of Education seeking a review of the Commissioner’s action in proposing to distribute and disseminating the results of the tests.”

Appellants filed their petition of appeal with the Commissioner of Education in which they sought to have the Commissioner desist from disseminating the results of the November 14 and 15, 1972 tests. In that petition they expressed, among other things, “fear that dissemination of the results of the November 14th and 15th tests as presently planned by the defendant [Commissioner] will violate their constitutional, statutory and common-law rights, will cause polarization within the school communities, racial conflict, degrading stigmatization, illegal tracking classifications, interference with the right to an equal free public education, the right to earn a livelihood, deny them due process, subject them to unfair accountability proceedings, invade their right of privacy, and delay and defeat the education goals allegedly sought to be achieved by and through these tests.” Following a hearing on the merits before a hearing examiner, the Assistant Commissioner of Education reviewed the record, including the hearing examiner’s report and the exceptions filed thereto, made his findings and conclusions and directed the release of the test results in accordance with rules promulgated by the State Board of Education N. J. A. O. 6:39-l, et seg. The Commissioner found that the Educational Assessment Program (E.A.P.) was “an important component of the content of an educational program.” He noted that the tests “have been found to be valid, useful and reliable, and that the hearing examiner recommends the raw scores derived therefrom to be released forthwith.” The Commissioner accepted that recommendation and directed “that all raw scores of the E.A.P. tests with respect to school, district, county and state level be released for district review on Nov. 20, 1973.” He further directed “that the release date of Nov. 20, 1973, he followed with public release sixty (60) days thereafter, pursuant to the rules of the State Board of Education. (N. J. A. G. 6:39-1 ei seg.).” By successive applications thereafter, appellants applied for a stay of the release of the results of the tests: to the State Board of Education, to this court, to the State Supreme Court, and to the Supremo Court of the United States. They were unsuccessful in their efforts to stay the dissemination of the test results. On April 3, 1974, the State Board of Education affirmed the November 2, 1973 decision of the Commissioner of Education for the reasons expressed therein.

It appears that tests have also been administered in 1973 and 1974 and that although individual pupil scores were not reported for the 1972 testing program, such scores have been reported for both 1973 and 1974 in accordance with N. J. A. G. 6:39-1.2(a) which provides that:

* * * individual student data shall be released only to a pupil, his parent or legal guardian, and school personnel and school officials deemed appropriate by the Commissioner.

On this appeal appellants contend that:

(1) The test results should not be disseminated in the manner proposed by the State Department of Education;
(2) The dissemination of the test results and the so-called “interpretive material” are not made valid by the New Jersey Right-to-Know Law (L. 1963, c. 73; N. J. S.. A. 47:1A-1) ; and
(3) The procedure herein proposed by the State Department of Education violates the New Jersey Employer-Employees Act (N. J. S. A. 34:13A-1).

We find no merit in the first and third of these contentions and no relevant force in the second of the contentions. Appellants argue that “If the State had indeed followed the course of treating these tests as a pilot program, without making such a big to-do about a public release, and the results had been restricted for analysis by educational authorities alone, there would certainly be no objection to the program.” However, an integral part of the testing program is the meaningful dissemination of the testing results. Such dissemination is governed by N. J. A. O. 6:39-1.2. We are in accord with the statement contained in the brief submitted by the Attorney General, i. e., that these regulations “assure that the test results are accompanied by interpretive data to lessen the possibility of public misinformation which might flow from the indiscriminate and haphazard release of raw, uninterpreted tests results”; and that they “also protect from public release individual student data thereby safeguarding the privacy of those taking the tests in question.” The record before us strongly suggests that information provided by these “interpreted” reports will be helpful to state and local school personnel and to the public in the allocation of educational resources; in shaping educational goals; in focusing on the improvement of basic skills; and in shedding light on the functioning of the public schools.

Dissemination of the test results and interpretive materials approved by the Commissioner in accordance with N. J. A. C. 6:39-1.2 does not depend for its validity upon L. 1963, c. 73, N. J. S. A. 47:1A-1 et seq. Statutory authority for the administration of the statewide tests which are the subject of this appeal can he found in N. J. S. A. 18A:4 — 24, which provides that:

The commissioner shall, by direction or with the approval of the state board, whenever it is deemed to be advisable so to do, inquire into and ascertain the thoroughness and efficiency of operation of any of the schools of the public school system of the state and of any grades therein by such means, tests and examinations as to him seem propex-, and he shall report to the state board the results of such inquiries and such other information with regard thereto as the state board may require or as he shall deem proper, but nothing in this section shall affect the right of each district to prescribe its own rules for promotion.

See also, Robinson v. Cahill, 118 N. J. Super. 223, 247 (Law Div. 1972), mod. and aif’d as mod, 62 N. J. 473 (1973) cert. den. 414 U. S. 976, 94 S. Ct. 292, 38 L. Ed. 2d 219 (1973). These tests were part of the Educational Assessment Program of the State Department of Education developed to continue the work of the “Our Schools” project Initiated by the Department for three principal purposes:

(1) to determine statewide goals for the educational system in New Jersey;
(2) to assess the status of education in New Jersey relative to these goals; and
(3) to recommend projects and programs which will bring New Jersey education closer to these goals.

N. J. A. C. 6:39-1.2, governing the dissemination of the testing results, is grounded in ample statutory authority. N. J. S. A. 18A :4-10, 18A:4-15, 18A:4-16, 18A:4-23, 18A:4-24.

There is, accordingly, no question but that the actions of the Commissioner and the State Board of Education were within their statutory authority. The decision of the administrative agency is thus

* * * entitled to a presumption of correctness and will not be upset unless there is an affirmative showing that such decision was arbitrary, capricious or unreasonable. :h *' * [Thomas v. Bd. of Ed. of Morris Tp., 89 N. J. Super. 327, 332 (App. Div. 1965), aff’d 46 N. J. 581 (1966)]

See also, Quinlan v. North Bergen Tp. Bd. of Ed., 73 N. J. Super. 40, 46-47 (App. Div. 1962).

Erom our review of the record in this case we are satisfied that no such showing has been made.- The actions of the State Board and Commissioner are entirely reasonable. The Commissioner’s findings and conclusions are “supported by substantial credible evidence on the whole record, allowing for agency expertise and evaluation of the credibility of witnesses.” Parkview Village Ass’n v. Collingswood, 62 N. J. 21, 34 (1972). See also, Quinlan v. North Bergen Tp. Bd. of Ed. supra. We discern no reason or justification for disturbing them. State v. Johnson, 42 N. J. 146, 162 (1964).

Although the “New Jersey Employer-Employee Relations Act,” N. J. S. A. 34:13A-1 et seq. (L. 1968, c. 303), provides for negotiation of terms and conditions of public employment, N. J. S. A. 34:13A-5.3, the public employer (here the state educational authorities) must retain and be permitted to fully exercise the essential management responsibilities vested in it by law. As pointed out by the court in Dunellen Bd. of Ed. v. Dunellen Ed. Ass’n, 64 N. J. 17 (1973) :

Surely the Legislature, in adopting the very general terms of L. 1968, o. 303, did not contemplate that the local boards of education would or could abdicate their management responsibilities for the local educational policies or that the State educational authorities would or could abdicate their management responsibilities for the State educational policies, [at 25]

Here, the initiation, and dissemination of the results, of a testing program are clearly matters of fundamental educational policy.

The decision of the State Board of Education is affirmed.