text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. SAMUEL LEE CLARK, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 10, 1974
    Decided April 23, 1974.

      Before Judges Halpekn, Matthews and Bischoee.

      Mr. Edward Carl Broege, Designated Attorney, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Howard Allen Cohen, Deputy Attorney General, argued the cause for respondent (Mr. William E. Hyland, Attorney General of New Jersey, attorney; Mr. George F. Kugler, Jr., former Attorney General of New Jersey).
   Per Curiam.

Defendant Samuel L. Clark appeals from a conviction of second-degree murder and the imposition of a 24-25-year consecutive sentence.

Defendant was indicted for the April 27, 1971 murder of one Eobert Sayles. The first trial of the indictment terminated in a mistrial when the jury failed to agree on a verdict. A second trial, before a different judge and a jury, resulted in a verdict of guilty of second-degree murder. A motion for a new trial was denied. Subsequently, defendant was sentenced to 24 to 25 years in State Prison, to be served consecutively to sentences of 30 years for rape and a consecutive 5-7-year term for robbery, then being served.

While this appeal was pending the State petitioned the Supreme Court for certification, but its application was denied.

At the time of Sayles’ death he and defendant were inmates at Trenton State Prison, then confined to ward one of the prison hospital. Sayles’ death was discovered at 7:02 a.m. on April 27, 1971. The cause of death was determined by the deputy county medical examiner to have been asphyxia due to suffocation by ligature or strangulation. Time of death was estimated between 1 and 4 a.m. The State produced testimony from which the jury could find that Sayles’ assailant was a ward one patient, and that the strangulation did not occur in bed.

Ward one is a large, rectangular room with screened and barred windows at each end. Entrance is gained through a sliding, metal grill gate which is padlocked during the night. The guard on duty possesses the only key. The ward contains 12 beds. A bathroom area, containing an enclosed toilet and a curtained tub, faces beds 11 and 12.

On the night of April 26-27, 1971 ward one was locked between midnight and 5 :30 a.m. The night nnrse made her final evening rounds at midnight. The deceased spoke to her at this time. After the nurse left the ward the correction officer immediately locked the gate. Although the nurse returned at 1 a.m. to order defendant and inmate Pryor to bed, she did not reenter the ward. According to the correction officer the gate remained closed until 5 :30 A.M. when morning medication was administered. At this time both the correction officer and nurse noticed that Sayles was in his bed in the left corner of the room. He was completely covered, and no movement was detected. He was in the same position when he was found dead at 7a.m. He was dressed in a white prison-issue pajama top and yellow "civilian” pajama bottoms. The pajama bottoms were streaked with dirt and pulled below the hip bone. The pajama legs were not crumpled, as normally occurs during sleep.

On April 26-27, 1971 seven inmates were confined to ward one. Libertat Nieves was assigned bed 3; William Puller, bed 6; Arthur Daniels, bed 7; William Miles, bed 8; defendant Samuel Clark, bed 9; Leon Pryor, bed 11, and Eobert Sayles, bed 12. Several of the patients, including Miles, Fuller and Daniels, were confined to bed. Nieves was described as one who shunned the companionship of others. Pryor was hospitalized for treatment of a post-duodenal ulcer and was administered sleep inducing medication. Defendant was receiving treatment for a recurrent knee injury but was not confined to bed.

Daniels and Pryor testified that they socialized with Sayles and defendant, sometimes playing baseball with a sponge wrapped tightly in belts of the hospital-issue terry robes and with defendant’s cane. They last played that game during the evening of April 26. The following morning defendant’s terry cloth belt, used the previous evening to wrap the sponge, was missing.

Pryor admitted a single homosexual encounter with the deceased. Daniels testified that defendant constantly harassed Sayles by slapping him, prodding him with a cane and repeated arguments. Although Daniels said that he believed the harassment to be in jest, he testified that it was difficult for him to distinguish Clark’s teasing and anger. Pryor testified to a knife-wielding argument between Sayles and defendant early in the evening of April 26.

The investigation of Sayles’ death commenced the morning of April 27. Since Sayles was a known passive homosexual, examinations of the six remaining inmates of the ward for traces of recent homosexual activity were conducted. These tests were inconclusive. Police interviews of each patient were also inconclusive initially; each inmate maintained that he had neither seen nor heard anything unusual. Defendant admitted that he awoke after 1 a.m. to use the bathroom but claimed that he returned immediately to his bed. However, after Pryor’s second interview he admitted that he possessed information relevant to the crime.

At the second trial Pryor testified that he went to sleep after 1 a.m. but was awakened by defendant calling Sayles’ name. Defendant urged Sayles to come to him, whereupon Sayles got out of bed and followed defendant into the bathroom. He then heard the two go through the shower curtain and heard the toilet door lock. He said that he dozed but awoke to the sound of scuffling and gasping lasting for about a minute. Although he dozed again, Pryor said he awoke to see defendant drawing the bed covers up to Sayles’ forehead. He testified that defendant then removed a wire from Sayles’ radio and reentered the toilet. Soon thereafter Pryor heard the toilet flushing for what seemed a long while and then saw defendant emerge from the toilet area and walk to his bed. (An engineer subsequently testified that the prison plumbing system would allow items to be flushed down the toilet.) Throughout this sequence of events Pryor said he was lying on his stomach with his head turned to the left facing Sayles’ bed. The bed to which Pryor was assigned faced the bathroom area. Pryor testified that the events which he observed and related did not appear unusual since he had observed Clark and Sayles enter tbe bathroom together on several occasions.

During direct examination the assistant prosecutor explored with Pryor his motivation for finally revealing his observations of defendant and decedent. It was during this questioning that Pryor blurted out the fact that he had been given a polygraph examination. This testimony is the central issue of this appeal:

Q When did you decide to tell the police what you saw?
A After the lie detector test.
Q What time did you give them a statement?
A About five o’clock in the evening.
Q Was there anything unusual about the way they took the statement from you? Let me ask you. Who took the statement from you, do you remember?
A Well, I was given a lie detector test by Officer Toth, something like that, and I was in the room alone with him, so he was asking me the questions, and like, you know, they just didn’t fit in right with my answers. So then after I found out, you know, like I couldn’t fool them or trick them, nothing like that there, that’s when I told him X would tell them what I know. Then he called Detective Kelly of the State Police.

After exploring the circumstances surrounding Pryor’s final statement and at the close of direct examination the defense moved for a mistrial. The trial judge reserved decision on the motion pending cross-examination. However, he directed both parties to refrain from referring to subsequent polygraph examinations in questioning, and from referring to the test in summations. On cross-examination Pryor essentially reaffirmed his testimony given at the first trial; that is, he was finally moved to disclose his knowledge when informed that he was a suspect, and when urged to do so by fellow inmates. At the close of Pryor’s testimony a renewed motion for a mistrial was denied.

Defendant was convicted of second-degree murder. His motion for a new trial was predicated on the issue raised here, i. e„, Pryor’s reference to the lie-detector test.

As a general rule, the results of polygraph tests, whether favorable or unfavorable to the accused, are uniformly held inadmissible. A necessary corollary to this rule prohibits reference to the accused’s refusal or offer to submit to a polygraph test. State v. Driver, 38 N. J. 255, 261 (1962). Similarly, indirect inference of the result is condemned. State v. Arnwine, 67 N. J. Super. 483, 495 (App. Div. 1961). See also, State v. LaRocca, 81 N. J. Super. 40, 46-47 (App. Div. 1963). Moreover, results of a polygraph test administered to a witness-accomplice who was aware of the defendant’s guilt at the time of the test and implicates defendant upon notification of failure of the test is likewise inadmissible. State v. Parsons, 83 N. J. Super. 430 (App. Div. 1964). The results are not only inadmissible but also will necessitate a reversal if admitted. Driver, above, 38 N. J. at 262; Arnwine, above, 67 N. J. Super, at 498-499; Parsons, above, 83 N. J. Super, at 436.

The traditional reason for rejecting testimony referring to polygraph testing, as first enunciated in Frye v. United States, 54 App. D. C. 46, 293 F. 1013 (1923), is the lack of scientific acceptance as a reliable and accurate means of ascertaining truth or deception. See Driver, above, 38 N. J. at 261. While certain exceptions to the rule of inadmissibility have developed, the recent opinion in State v. McDavitt, 62 N. J. 36, 44 (1972), recognizes the tenacious character of this conclusion. The recent Report of Supreme Court Committee on Criminal Procedure on Polygraph Tests, 96 N. J. L. J. 525, 541 (1973), notes that judicial opinions themselves are generally unreliable measures of the reliability of polygraph tests. The committee calls for a thorough reexamination of prior case law to discard anachronistic standards and to establish fresh criteria commensurate with current knowledge. Although the majority report concludes that the test has attained general scientific acceptance, it opts to continue the exclusionary rule for “substantial reasons of policy.” 96 N. J. L. J. at 542.

Since a direct or indirect reference to the polygraph results invokes the rule, each incident of testimonial reference raises some dispute whether the reference has conveyed the prohibited information. In Arnwine, an incest prosecution, this court found that the polygraph examiner’s testimony as to defendant’s admission, "If Sandra said I did this, I probably did it,” upon notification of the test result, constituted an indirect reference of the result. Arnwine, 67 N. J. Super. at 498-499. The inference from the witness’ testimony that he changed his testimony after "the lie detector test showed that I had been — .” was held to be “little if anything short of unequivocal to the effect that the polygraph test he took disclosed that he had been tying when he first told the police that the defendant was not with him when the crimes were committed.” Parsons, 83 N. J. Super, at 435-436. Unquestionably, here, Pryor’s testimony conveyed the inference that his previous statements to the authorities had been less than truthful.

Defendant urges that State v. Parsons is dispositive; the State contends that the case is distinguishable. In Parsons this court found it immaterial that the test was administered to a witness rather than to defendant:

It matters not that the damaging evidence was elicited by means of disclosure of the result of a lie-detector test administered to a witness rather than to the defendant, where the witness is one who when he took the test knew whether the defendant was guilty or not. The prejudicial effect is logically identical. Nor does it matter that the disclosure is by indirection rather than directly. * * * [83 N. J. Super, at 436; emphasis added]

All of our decisions reveal a concern that an unreliable or highly suggestive mechanical device will prejudicially bolster testimony or admissions of persons in a unique position to know the truth —• the accused, an accomplice, or an eyewitness.

The State also argues that any error in allowing mention of Pryor’s lie-detector examination is harmless error; however, as noted, Parsons indicates that the plain error rule is not applicable in this context, and we cannot conclude that the reference here was harmless beyond a reasonable doubt.

The disclosure of the administration of the polygraph test occurred in the course of the State’s effort to fortify Pryor’s testimony during direct in anticipation of cross-examination. Generally, credibility cannot be rehabilitated until attacked. Parsons, 83 N. J. Super, at 437. The State’s reliance on State v. Holley, 34 N. J. 9 (1961), is misplaced. In Holley the State was anticipating defendant’s plea of self-defense rather than engaging in premature bolstering of a state witness. However, unlike Parsons, this case does not involve an intentional or planned attempt by the prosecution to elicit the existence and results of a polygraph examination. It appears that both counsel apparently expected a repetition of Pryor’s testimony at the first trial. This distinction^ however, we find to be of no relevance here.

While we do not accept defendant’s argument that conviction at the second trial demonstrates that the reference to Pryor’s polygraph examination was patently prejudicial, we agree that its capacity to prejudice the jury was significant, since Pryor was the only witness to testify about events proximate to Sayles’ death. While a review of the evidence adduced by the State at trial reveals a well-developed, albeit circumstantial, case of defendant’s guilt, that ease relied heavily on Pryor’s credibility and we do not believe that justice will be served by speculating on the effect the polygraph reference had on the jury’s evaluation of his testimony.

Reversed and remanded for a new trial.


source: Caselaw Access Project

author: Lora, J. A. D.

license: Public Domain

text:
    IN THE MATTER OF THE ESTATE OF BASIL CIRI, DECEASED.
    Superior Court of New Jersey Appellate Division
    Argued April 10, 1974
    Decided April 25, 1974.

      Before Judges Caeton, Loea and Seidman.

      Mr. Jesse Moskowitz argued the cause for appellants (Mr. William E. Andersen of counsel and on the brief).

      Mr. John B. Armstrong argued the cause for respondent (Messrs. Kirkman, Mulligan, Bel and Armstrong, attorneys).
   The opinion of the court was delivered by

Lora, J. A. D.

This is an appeal from an order of the Atlantic County Court, Probate Division, denying the application of Albanian residuary legatees under the will of Basil Ciri to compel payment to them of their distributive shares.

Ciri, a native of Albania, died testate a resident of Atlantic City on November 10, 1964, naming his brother and two sisters, residing in Albania, residuary legatees.

The will provided that since it was possible that restrictions on property rights enforced by the government of the country in which the beneficiaries were living might prevent their free enjoyment of the bequests, the executor and two other named individuals were to constitute a committee to decide in their complete discretion when and what amounts the principal and income were to be distributed, with leave to apply to the courts of New Jersey for directions if in doubt as to such free enjoyment.

Pursuant to the foregoing, appellant-beneficiaries have received intermittent payments, totalling some $2,200 per beneficiary. In 1912, on the return of an order to show cause why the trustee’s (The First National Bank of South Jersey) intermediate account should not be approved, the beneficiaries’ attorneys-in-fact requested immediate distribution of the balance of the estate.

At the hearing a former Albanian lawyer and judge, now resident in Maryland and who was last in Albania in 1948, but who had kept abreast of developments therein, testified that the Albanian Constitution guaranteed the enjoyment of private property and the right of inheritance; that private property could not be taken without due process of law; that money sent there from the United States would not be confiscated; and that if for any reason, political or otherwise, a person would not be permitted to receive such funds, the money would be returned to the sender; that there are no Albanian inheritance taxes, and that in any event it was advisable to disburse large amounts over $50,000 in installments of not more than $10,000. He further testified the funds could be used to buy or build a house, go into a small business, for furniture, for vacations and for everyday living.

One of the committee of three, who was in Albania in 1966, testified that the beneficiaries were advanced in years; that decedent’s brother was not capable of receiving or managing his estate duo to lack of education; that the decedent’s wish was that the money remain here, draw interest and be used to care for his brother and sisters. The funds, he said, would be safer here. However, he did not meet decedent’s family when in Albania.

The trial judge found that the beneficiaries received limited benefits from the monies sent them, not in the sense that the government confiscated any part of the funds, but “limited in the sense as to the use that can be made of same”; that economic and social conditions existing in Albania restricted the “free enjoyment” of such monies. He referred to N. J. S. A. 3A:25-10 in addition to the will as authority for retaining trust proceeds where it appeared that the beneficiary would not have the benefit or use or control of the money. He further found that the decedent’s fear was not that the funds would not come to them for their use, but how they could use the funds. As a consequence thereof, plaintiffs’ application for distribution was denied.

Thereafter, the beneficiaries sent letters to the trustee bank requesting their full distributive shares. In June 1973 the attorneys-in-fact again moved for distribution but the trial judge, after hearing, concluded that no facts were adduced which would indicate there had been any change in the situation in Albania which would give the beneficiaries the “free enjoyment” of the monies. The application was denied. This appeal was taken from the adverse judgment entered. At oral argument it was indicated the total trust corpus is now approximately $17,000 to $18,000.

Appellants contend that since the trial judge found the beneficiaries had the benefit or use or control of estate funds, it was error to deny immediate distribution because they allegedly did not have “full enjoyment” thereof; that it was error not to hold that the trustee committee abused its discretion in refusing to distribute the residue of the estate, and that the decision to deny immediate distribution of the assets of the estate constituted an impermissible intrusion by the court into the field of foreign affairs, entrusted by the Constitution solely to the President and the Congress.

The primary issue for determination is whether “free enjoyment” as set forth in decedent’s will is legally distinguishable from “benefit, use or control” as provided in N. J. S. A. 3A :25-10.

There is no doubt decedent sought to ensure that his beneficiaries would not be deprived of the free enjoyment of their bequests by “restrictions on property rights enforced by the government [of Albania].” The trial judge.found no such restrictions but construed the provision to include economic and social conditions which might make it difficult for the beneficiaries to spend the money because of a scarcity of consumer goods or of items they desired to buy.

The trial judge relied in part upon N. J. S. A. 3A :25-10 which authorizes the deposit in court of a legacy where it appears the beneficiary would not have the benefit or use or control of the money or other property due him, to be paid out only by order of the court. However, as noted in In re Kish, 52 N. J. 454, 459 (1968), the purpose of the statute, as set forth in the statement attached to the bill at the time of its introduction, is to authorize such deposits in cases where the transmission or payment to a person in a foreign country might be circumvented by confiscation in whole or in part.

The statute was held to be valid only where transmittal or delivery is prohibited by our Federal Government or where it is clear that receipt or use is forbidden or made impossible by the laws of the beneficiary’s country. It was further held, on the basis of Zschernig v. Miller, 389 U. S. 429, 88 S. Ct. 664, 19 L. Ed. 2d 683 (1968), reh. den. 390 U. S. 974 (1968), 88 S. Ct. 1018, 19 L. Ed. 2d 1196 that state courts may not become involved in matters of the practical administration of foreign laws, not prohibitory or confiscatory on their face, nor predicate a decision on comparison of political, social or economic systems. Kish, 52 N. J. at 466.

Moreover, a reading of decedent’s will furnishes no basis for the trial judge’s conclusion that the “free enjoyment” of which decedent spoke is to be distinguished and differentiated from the concept of benefit, use and control as set forth in N. J. S. A. 3A:25-10. Paragraph Second of the will provides in pertinent paid:

Any distribution or distributions shall be completely within their discretion. If because of their doubt as to such free enjoyment any portion of the principal and interest is not paid and there is no probability that such can be paid because of the restrictions or because of the death of any of the parties the committee shall apply to the courts of New Jersey for directions as to the disposition of the assets as may be provided by the laws of New Jersey.

It is clear the decedent contemplated a possible lump sum payment of trust corpus and that when he spoke of “free enjoyment” he did not mean the economically unfettered enjoyment the trial judge read into the will, but •rather legal restrictions imposed, by the Albanian government which would prevent the beneficiaries’ use, benefit and control of the monies. While the trustees have “complete” discretion, that discretion must be related to the purposes of the will.

Persuasive authority for such construction and the equating of “free enjoyment” with icbenefit, use or control” is found in In re Kosek, 31 N. Y. 2d 475, 341 N. Y. S. 2d 593, 294 N. E. 2d 188 (Ct. App. 1973), where testator provided that a trust for Czechoslovakian beneficiaries should terminate if they either did not reside in a communist-dominated county or they had “arrived in a country” in which they might “fully and freely enjoy” the benefits of testator’s property.

The respondent in Koseh contended that the “full and free enjoyment” envisioned by the New York testator imposed a more stringent requirement for the transfer of the trust principal than the statutory requisite of “benefit, use or control.” In ruling that the trust terms had been met and lump sum distribution should accordingly be made, the court held:

Nor do we find merit in the respondent’s further semantic argument that “full and free enjoyment” (par. Fifth of will) means something other, and more strict, than “benefit, use or control” (par. Eighth of will). In our judgment, and it is confirmed by analysis of the pertinent paragraphs, those terms, as used by the testator, are synonymous. As the Surrogate observed, “a reading of the entire will” makes it clear that, “when the testator was talking about full and free enjoyment of the fund he meant use, benefit and control.” We would merely add that, if a person has the “benefit, use and control” of property, he generally has its “enjoyment,” and the content of the latter concept is not enlarged by addition of the adjectives “full and free.” [341 N. Y. S. 2d at 598, 294 N. E. 2d at 192]

Assuming, arguendo, that inquiry by the probate court is not limited to a determination as to whether transmission or delivery of funds is prohibited by the Federal Government or whether receipt or use is forbidden or made impossible by the law of the beneficiary’s country, Kish, 52 N. J. at 466, we nevertheless can not agree with the trial judge that limited availability and range of consumer goods in Albania is such an impediment to the beneficiaries as to constitute a denial of “free enjoyment” of the trust corpus.

Reversed and remanded for entry of a judgment of distribution and for further proceedings consistent with this opinion.


author: Meanor, J. A. D.

text:
    NEW JERSEY SHORE BUILDERS ASSOCIATION, A NONPROFIT CORPORATION OF NEW JERSEY, PLAINTIFF-APPELLANT, v. TOWNSHIP OF OCEAN IN THE COUNTY OF OCEAN, A MUNICIPAL CORPORATION OF NEW JERSEY, AND TOWNSHIP COMMITTEE OF THE TOWNSHIP OF OCEAN, A PUBLIC BODY CORPORATE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 1, 1974
    Decided April 29, 1974.

      Before Judges Coneoed, Handled and Meanok.

      Mr. Francis John Badach argued the cause for appellant (Messrs. Giordano & Halleran, attorneys).

      Mr. Franklin H. Berry, Jr. aTgued the cause for respondents (Messrs. Berry, Summerill, Rinde & Berry, attorneys).
   The opinion of the court .was delivered by

Meanor, J. A. D.

On December 13, 1973 the Township of Ocean adopted an ordinance which had the effect of suspending for six months or until June 13, 1974 the approval by its planning board of any major subdivisions or site plans for industrial development. Plaintiff, an association of builders active in the area, challenged the validity of this ordinance and appeals from an adverse summary judgment.

The existence of municipal power to enact a reasonable moratorium on certain uses while preparing and studying a new zoning ordinance is not open to question. Monmouth Lumber Co. v. Ocean Tp., 9 N. J. 64, 74 (1952); Deal Gardens, Inc. v. Loch Arbour Bd. of Trustees, 48 N. J. 492, 499 (1967) and cases therein cited, especially Campana v. Clark Tp., 82 N. J. Super. 392 (Law Div. 1964). Cf. Cappture Realty Corp. v. Elmwood Park Bd. of Adj., 126 N. J. Super. 200 (Law Div. 1973).

Plaintiff argues that these cases involved “interim” or “stop-gap” zoning and not a moratorium. While this is true, we believe that the distinction is without legal difference. It is clear that the purpose of interim zoning, as approved by our courts, is to halt development in certain uses temporarily until enactment of a new comprehensive' zoning ordinance. That is precisely the purpose of the enactment challenged here and the power to promulgate such a temporary measure is “within the intent and purpose of the statutes relating to planning.” Monmouth Lumber Co. v. Ocean Tp., supra, 9 N. J. at 75.

Alternatively, plaintiff urges that under the circumstances the ordinance in question is arbitrary and unreasonable. We are asked to so hold as a matter of law or at least remand the matter for trial of the issue. The ordinance is, of course, presumed to be valid and plaintiff has the burden of proving otherwise. Reisdorf v. Mayor, etc., Mountainside, 114 N. J. Super. 562 (App. Div. 1971).

The record reveals that defendant township is composed of approximately 20 square miles and a population of 2,222 according to the 1970 census. In 1971 and 1972, 401 new lots were created by major subdivision, and in the first nine months of 1973 approximately 63 building permits had been issued. In October 1973 the municipality adopted a new master plan and is currently studying a proposed draft of a new zoning ordinance. It is estimated that the population of the township will double in the ensuing decade.

Under these circumstances the six-month moratorium on large scale residential and all industrial development is valid and plaintiff has failed to present prima fade proofs to the contrary. However, we refer to the admonitions- set forth in Deal Gardens, Inc. v. Loch Arbour Bd. of Trustees, supra, 48 N. J. at 500, and add that any issues concerning the maximum length of time a moratorium such as this shall be permitted are not before us. In particular, we are expressing no opinion as to the validity of an extension of the present ordinance after its expiration June 13, 1974.

We add that questions surrounding moratorium ordinances appear to be recurring ones and, therefore, the limits and standards applicable to such enactments are more appropriate for legislative action than- the slow development that necessarily must accompany definition on a ease by case basis.

Affirmed.


author: Per Curiam.

text:
    BOROUGH OF PARAMUS, N. J., PLAINTIFF-APPELLANT, v. MARTIN PAINT STORES, INC., DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued February 11, 1974
    Submitted for Determination April 9, 1974
    Decided April 30, 1974.

      .Before Judges Collestek, Lynch and Michels.

      Mr. Marvin Olick argued for appellant (Messrs. Gruen, Sorkow & Sorkow, attorneys).

      Mr. Martin A. Spritzer argued for respondent.
   Per Curiam.

The Borough of Paramus appeals from a judgment of the Bergen County Court which reversed the Municipal Court conviction of defendant, Martin Paint Stores, Inc., for violation of the Borough’s ordinance which prohibited “wordly employment or business” on certain holidays. By an opinion reported at 121 N. J. Super. 595 (Cty. Ct. 1972), County Court Judge Gelman held that the subject matter of the ordinance was preempted by N. J. S. A. 36 :1-2 and was therefore void.

On the merits we would affirm substantially for the reasons stated by Judge Gelman in his cited opinion. We wish to state, however, that we conclude that the judgment or acquittal in the County Court is not appealable. State v. Fiore, 69 N. J. Super. 122 (App. Div. 1961), certif. den. 36 N. J. 142 (1961). Appellant argues that B. 3:10-3 and the “Tentative Draft Comment” thereon supports its right to appeal. We conclude that if it were the intent to reverse the holding in Fiore and related cases, the rules would have been amended to explicitly say so. They have not been so amended. The appeal is therefore dismissed.


author: Crahay, J. A. D.

text:
    THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOSEPH DALONGES, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Remanded to Appellate Division October 16, 1973
    Argued December 19, 1973
    Last Supplemental Brief filed December 20, 1973
    Decided April 17, 1974.

      Before Judges Leonard, Allcorn and Crahay.

      Mr. Edward P. Hannigan, Assistant Deputy Public Defender, argued the cause for appellant. (Mr. Stanley O. Van Ness, Public Defender, attorney).

      Mr. Edwin H. Stern, Acting Prosecutor, argued the cause for respondent, The State of New Jersey.

      Mr. Joseph P. Maloney, Deputy Attorney General, argued the cause for respondent, Department of Law and Public Safety.
   Crahay, J. A. D.

Defendant originally appealed from a denial of post-conviction relief which essentially challenged his continued incarceration in New Jersey State Prison as a parole violator.

The appeal projected basically two issues: (1) that he was entitled to have further proceedings before the trial court to test the accuracy of a Menlo Park Diagnostic Center report employed at the time of his sentencing as a sex offender in 1958, and (2) that he could not continue to be held under his original commitment since at the time he was found to be in violation of parole he was not suffering from any sexual aberration or disorder and did not require further custodial treatment and supervision as a sex offender.

As to the first issue, we held in an unreported opinion that the trial judge’s findings on the hearing for post-conviction relief were supported by the record. We noted further that the record reflected that experienced and competent defense counsel not only did not challenge the Diagnostic Center report at the time of sentencing but rather affirmatively concurred in its findings. Accordingly, we concluded on the record here that State v. Horne, 56 N. J. 372 (1970), did not mandate an attack on the diagnostic report 13 years after its submission.

We then proceeded to dismiss the appeal on the remaining issue as being moot, having ascertained that on June 19, 1973 — the date of the original argument — defendant had been admitted to bail and was to be reparoled on June 26, 1973.

Defendant’s subsequent petition for certification was granted by the Supreme Court, the dismissal of the appeal set aside and the cause remanded to the Appellate Division for a meritorious disposition. The issue presently addressed to us is a consideration of the manner of treatment of alleged parole violations by persons sentenced under the Sex Offender Act (N. J. S. A. 2A:164 — 3 et seq.), and specifically, as here where there is no finding that the offender continues to suffer from any mental disorder grounded in sexual aberration warranting continued custodial supervision and treatment.

The legal issue presented on this record is a narrow one and it, and some tangential considerations, have been thoroughly and ably briefed by the parties several times in the course of this appeal. We chronicle the essential and undisputed facts.

On May 20, 1957, in a two-count indictment, defendant, then 28 years of age, was charged in the first count with the carnal abuse of a 15-year-old girl contrary to N. J. S. A. 2A.138-1, and in the second count with assault with intent to commit carnal abuse. On November 25, 1957 defendant pleaded non vult to the first count of the indictment.

By virtue of N. J. S. A. 2A :164-3, 5 and 6, defendant was committed to the Diagnostic Center and, following an examination in January 1958, was found to be within the purview of the act and he was sentenced as a sex offender to an indeterminate term at the New Jersey State Hospital.

In June 1962 defendant was paroled. Attached to his certificate of parole — and executed by defendant — were the standard terms and conditions then generally employed by the State Parole Board. No special conditions were included, notwithstanding the nature of defendant’s offense or the reasons for his incarceration.

In January. 1967 the Parole Board declared defendant to be “delinquent on parole,” having violated conditions 4(a) and 4(g) (5) of the stated conditions of his parole. Those conditions required him to “obey all laws and public ordinances” (4(a)) and to “obtain permission from his parole supervisor before leaving the State of your approved residence” (4(g) (5)). The gravamina of the breaches were that (1) defendant had been convicted of attempted petit larceny in the State of New York on January 16, 1967, and (2) that he had failed to gain his parole supervisor’s permission before' leaving New Jersey, Defendant’s parole was formally revoked on August 24, 1967, the reasons assigned being identical to those recited in the “declaration of delinquency.”

During the next 3^2 years, defendant remained in New York and resisted extradition to New Jersey. During that time he was convicted of four other petit larceny offenses. (For each offense he served short custodial terms in the State of New York.) In October 1970 defendant elected to waive his right to contest extradition and was returned to the State Prison at Rahway.

A report of the Special Classification Review Board, dated December 16, 1970, noted that defendant had pleaded guilty to violating parole and included a finding by the Diagnostic Center that “we do not feel that the inmate has any type of sexual problem at the present time.” (emphasis added) The Board recommended that defendant be transferred to the Trenton State Hospital. At his request he was transferred to the general prison population in New Jersey State Prison in December 1971.

Defendant, pro se, petitioned for post-conviction relief on February 25, 1971. The first two grounds thereof were essentially that he was denied due process and equal protection of the law in not having the opportunity to refute allegedly inaccurate information in the Diagnostic Center’s report. This was the Some issue which was decided adversely to defendant and affirmed by us in our original opinion. (In the most recent brief filed with us, defendant assumes — as do we — that the Some question is no longer in issue.)

The third point of defendant’s petition for post-conviction relief was that “petitioner’s present commitment in New Jersey State Prison is illegal, unconstitutional and void.” The petition did not specify the bases for the purported illegality of the recommitment but the transcript of the hearing on the petition alluded to defendant’s complaint that he had been “piek[ed] up on a charge unrelated to a sex offense * * The trial court questioned its jurisdiction to review this grievance on post-conviction relief and properly noted that the action of the Parole Board was reviewable on direct appeal to the Appellate Division. Beckworth v. N. J. State Parole Bd., 62 N. J. 348 (1973).

In any event, we now treat of the defendant’s crystallized proposition that —■

* * «■ tiie State Parole Board may not revoke the parole of a special sex offender by reason of his commission of a non-sexual offense at all.

We find this thesis overly broad and not within the contemplation of the governing legislation or decisional authorities. We are, however, satisfied that when dealing with purported parole violations, the Legislature did not intend that a sex offender be automatically returned to a custodial situation. A review of the act .allows a reasonable inference that it must appear that the offenses or breaches of parole conditions were of a character warranting a finding that because of some continuing sexual aberrations or disorders the offender. was incapable of making an acceptable social adjustment in society. Or conversely, that at the time of the alleged violation, his mental condition was such that his treatment as a sex offender mandated continued custodial supervision.

We need not here detail the legislative and decisional history of the New Jersey Sex Offender Act which was succinctly recounted by Justice Jacobs in State v. Lee, 60 N. J. 53 (1972). It is enough to say that the legislative plan is to afford persons determined to be sexual offenders specialized treatment for their mental and physical aberrations. In furtherance of that scheme courts are required to place such persons on probation with special conditions for treatment, or commit them to custodial situations for treatment. When released from custody they are subject to parole supervision. If institutional commitment is ordered, it may not be for a period of time greater than that provided by law. for the crime “for which the person was convicted”. N. J. S. A. 2A:164-5 and 6. All decisional authority is to the end that specialized treatment of the offender is the polestar. State v. Lee, supra.; State v. Wingler, 25 N. J. 161 (1957); State v. Morales, 120 N. J. Super. 197 (App. Div. 1972), certif. den. 62 N. J. 77 (1972); State v. Mickschutz, 101 N. J. Super. 315 (App. Div. 1968).

In Michschutz Judge Gaulkin reminded us that

The philosophy of the Sex Offender Act is that those who come within it require treatment, not punishment . . . The purpose of the Act is cure of a defendant. That is the prime justification for the •provision of the act that, regardless of the circumstances of the offense or the willingness of the victim, a defendant is subject to confinement until he is “capable of making an acceptable social adjustment in the community,” * * ®. [at 320]

As noted, we cannot subscribe to defendant’s argument that the State Parole Board, having determined that there was a violation of parole, may not revoke parole of a special sex offender by reason of his commission of a “nonsexual offense.” Committing a criminal offense or other breaches of parole conditions — which ostensibly are nonsexual in character — may nonetheless be a basis for a determination that treatment of the offender’s underlying condition or other sexually related aberration requires further institutional maintenance or an alteration in the conditions of parole. State v. Lucas, 30 N. J. 37 (1959); State v. Morales, supra. Such determinations reside in the expertise of the authorities making them and will be disturbed judicially only on a clear showing of error. Ex Parte Kader, 334 Mich. 339, 54 N. W. 2d 607 (Sup. Ct. 1952). Compare State v. Garter, 64 N. J. 382 (decided March 6, 1974).

In Ex Parte Kader, supra., defendant had been committed as a criminal sexual psychopath and was thereafter paroled. While on parole he was convicted of simple larceny. It was held that the Director of Mental Health was within his statutory authority in revoking parole and reconfining defendant for further treatment. The Court stated:

If a person exhibits abnormal sexual behavior while on parole, he lias breached an implied condition of his parole. What constitutes such behavior is primarily a matter for medical determination.
If Kader had been merely convicted of simple larceny, this fact of itself might be an insufficient basis for rehospitalization. However, where the circumstances of the theft for which he was convicted, plus his previous conviction for indecency indicate abnormal sexual behavior and a medical decision follows, we cannot say that the director's determination was an abuse of his discretion. [54 N. AY. 2d at 609]

In the instant matter, unlike Ex parte Kader, the determination made by the Diagnostic Center in no way reflects that the defendant’s parole violations evinced conditions which coupled with his original conviction, warranted further treatment in a custodial situation. As noted earlier, the totality of the finding by the Diagnostic Center on December 16, 1970 was that it did not feel that the inmate had any type of sexual problem at that time. Accordingly, in our view, the record was empty of any statutory warrant for maintaining him in custody for treatment since no treatment was meaningfully bespoken. We are satisfied that justice required, and the Legislature intended, that defendant be paroled following the finding here, and that it was the obligation of the Special Classification Review Board to so recommend. State v. Mickschutz, supra, at 320. We do not by this holding mean to delimit any of the statutory authority in the Parole Board to amend, amplify or enlarge upon the conditions and terms of parole aimed at governing supervision of defendant on continued parole. N. J. S. A. 2A :164-8.

In summary, then, we hold that the parole of a sex offender cannot properly be revoked unless the reason for revocation is based at least in part upon the finding by the Parole Board and based upon a determination by the Diagnostic Center founded on adequate medical reasons, that defendant’s violation of parole reflects emotional or behavioral problems as a sex offender and evidences that he is incapable of making any acceptable social adjustment in the community because of such problems and in fact requires further specialized treatment as mandated by N. J. S. A. 2A:164-5. While not involved here, we note that prior to such a determination defendant is, of course, entitled to the due process requirements, as enunciated in Morrissey v. Brewer, 408 U. S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). See also, Puchalski v. N. J. State Parole Board, 55 N. J. 113 (1969), cert. den. 398 U. S. 938, 90 S. Ct. 1841, 26 L. Ed. 2d 270 (1970).

On this record, then, we find that the Parole Board, having cited defendant as a parole violator, erred in not reparoling him following the Diagnostic Center’s findings, which lacked a clear recommendation for continued specialized treatment, in custody, as a sex offender. The matter is remanded to the State Parole Board with directions to amend its records accordingly.

Remanded.

      The pertinent finding therein was that — “there was a compulsive element in his present offense, and therefore it would seem advisable to commit Mm to a mental hospital under the provisions of the New Jersey Sex Law.”

      It was suggested in earlier briefs that where there is a parole violation, grounded in an offense not involving any sexual aberration or recommendation for continued custodial supervision and treatment, that defendant be remanded to the trial court for the imposition of a minimum and maximum sentence. All parties now agree —• and correctly — that such a device has no legal warrant once a defendant has been adjudicated a special sexual offender under the act. Compare State v. Wingler, infra.

      Tke Attorney General, in his last brief addressed to us, advises that the position of the State Parole Board as of November 19, 1973 was that it should exercise its parole revocation authority in a manner so as to limit it to cases where the offense or other noncriminal behavior while on parole demonstrates a return to the emotional and behavioral problems which originally resulted in the parole’s conviction as a sex offender. Whether such conduct does, in fact, relate to his original sexual commitment, is to be determined by the Bienio Park Diagnostic Center by examination and Parole Board revocation hearing procedures. This procedure was not in effect at the time of defendant’s return as a parole violator in 1970 but is rather a “new policy” which has been developed as a result of the Board’s ■“study of the problem.”


text:
    KATHLEEN M. PIETRUNTI, RESPONDENT-APPELLANT, v. BOARD OF EDUCATION OF BRICK TOWNSHIP, PETITIONER-APPELLEE.
    Superior Court of New Jersey Appellate Division
    Argued January 29, 1974
    Decided April 23, 1974.

      Before Judges IIalpehst, Matthews and Bischoee.

      Mr. Emil Oxfeld argued the cause for appellant (Messrs. Bothbard, Harris & Oxfeld, attorneys).

      Mr. Martin B. Anton argued the cause for appellee (Messrs. Anton and Ward, attorneys; Mr. Donald H. Ward, on the brief).

      Mr. Gordon J. Golum, Deputy Attorney General argued the cause for the State Board of Education (Mr. William, F. Hyland, Attorney General of New Jersey, attorney; Mr. George F. Kugler, Jr., former Attorney General of New Jersey, and Mr. Stephen Shillman, First Assistant Attorney General, of counsel).

      Mr. Thomas P. Cook argued the cause for New Jersey School Boards Association and New Jersey Association of School Administrators, amici curiae (Messrs. Cook and Knipe, attorneys).
   Per Curiam.

This is an appeal from a decision of the Commissioner of Education, affirmed by the State Board of Education, dismissing appellant, a tenured teacher, from her employment with the Brick Township Board of Education, effective on the date of her suspension by the local board of education on September 8, 1971. Appellant also appealed from the determination of the State Board of Education which reversed the decision of the Commissioner granting her compensation at her regular salary retroactively to the date of her suspension, under the provisions of N. J. S. A. 18A:6-14, as amended by L. 1971, c: 435, § 2, effective February 10, 1972.

Appellant became a member of the faculty in the Brick Township School District as a business education teacher in the high school in 1966. Her career was uneventful until 1970, when she became a member of the grievance committee of the Brick Township Education Association. During that period she apparently had some difficulties in her relationships with the superintendent of schools. Appellant became president of the Education Association in April of 1971. The record shows that as of that date the local board of education had been dilatory in obligations to bargain collectively with the association and had refused to meet with the association for a period of 83 days. Efforts were then ongoing to negotiate a new bargaining agreement since the current agreement expired bn June 30, 1971. Negotiations subsequently resumed, however, and a new agreement was successfully negotiated prior to the opening of the new school term in September 1971.

During the latter part of August 1971 appellant was invited by the school district administration, as the president of the Brick Township Education Association, to be one of the speakers at an orientation meeting to be held on September 1, 1971. A speech was given, and that speech, as delivered, generated the principal charges made against appellant bjr the local board of education. The undisputed evidence discloses that appellant used the occasion of the orientation meeting to speak against the school administration in general and against the superintendent of schools in particular. Bather than insert excerpts from the speech throughout this opinion, we have attached hereto, as an appendix, the speech delivered in its entirety.

As a result of the speech appellant was charged in ten written charges with conduct unbecoming a teacher, insubordination and conduct subversive of the discipline and morale of the school system. Her references to the dismissal of two nontenured teachers (Charge 1), the suspension of a fellow teacher (Charge 2), the removal of three books from the English curriculum (Charge 4), the lack of black teachers, and the characterization of the superintendent of schools as a villain (Charge 5) were alleged by the local board as conduct unbecoming a teacher. Her reference to the dismissal of the two nontenured teachers (Charge 1) was alleged as an instance of insubordination to the office of superintendent of schools. Her references to the suspension of the fellow teacher (Charge 2), the claimed involvement of the superintendent of schools in local politics (Charge 3), the removal of books and the dearth of black faculty (Charge 4), her description of the school system as a “snakepit for young teachers” (Charge 6), her suggestion to nontenured teachers to refrain from any criticism until they have tenure (Charge 7), and her description of the district’s hiring practices as a “callous economic gesture” (Charge 8) were alleged as instances of conduct subversive of the discipline and morale of the school system.

As a result of these charges appellant was suspended from her teaching duties on September 7, 1971, effective September 8, 1971. On the same date she gave a public apology for her orientation meeting speech of September 1, distributing copies of the speech to all who were present to hear her apology. After her suspension ten additional charges were preferred. In these charges appellant’s actions as a tenured teacher and president of the Brick Township Education Association were alleged to represent an attitude of insubordination which foments disrespect for the office of superintendent and usurpation of administrative functions. A directive claimed to have been issued by appellant to the faculty urging them to refuse to comply with an administrative request to file letters with respect to individual teacher’s intentions for the succeeding year; her public expression of concern that administrative vacancies existed; her suggestion that the faculty file letters of intent in language suggested by her; her letter questioning the dismissal of a nontenured teacher, authorship of a bulletin regarding this teacher and a letter directed to parents of students on the subject; and an association directive dealing with teachers’ duties, were all cited for bases for this charge. (Charge 9 was found by the hearing officer to constitute a legal summation rather than a charge, thus requiring no defense.) The release of a news bulletin calling for arbitration of the nonrenewal of the contracts of two nontenured teachers (Charge 11), the purported misrepresentation of the presence of the president of the board of education at a meeting between the superintendent and association representatives (Charge 12), the purported misrepresentation of the cancellation of a meeting requested by the New Jersey Education Association with the administration (Charge 13), and the reference to the superintendent of schools as “Carmen” rather than “Stephen” (Charge 14), were alleged in support of claimed insubordinate and vindictive conduct subversive of the discipline and morale of the school system. A disagreement over the insufficiency of a lesson plan and a reply of “shove it” to an observation by the subject supervisor that she was late for class (Charge 15) were alleged as instances of insubordination, refusal to accept administrative authority and conduct unbecoming a teacher. The claimed insincere apology for the September 1 speech made on September 7, 1971 (Charge 16) and an alleged statement of purpose to rid the school system of the superintendent (Charge 17) were alleged as indicia of a philosophy incompatible with the school system. The uttering of various “unladylike and unfeminine” remarks in places of public accommodation, such as, “elementary teachers have elementary minds,” “C. Serpent Raeiti,” (referring to the superintendent, C. Stephen Raeiti), “This paper is so poor it is not good enough to wipe my ass,” “You son-of-a bitch, you did that on purpose,” “Ding Dong Bell,” “bald headed mental midget” and “bald-headed bastard,” the latter three statements referring to board president, William Bell, were alleged as subversive of the discipline and morale of the school district (Charge 18). A bulletin critical of another teacher which was claimed to have been “enforced and/or condoned” by appellant was alleged as subversive and unbecoming conduct (Charge 19). Finally, a remark to another teacher in the course of a reprimand was alleged as an instance of interference with supervisory duties. (Charge 20).

Hearings before a hearing officer designated by the Commissioner of Education began on January 17, 1972 and con-eluded on April 12, 1972. There was no dispute in the testimony adduced over the fact that the language complained of in the first eight charges was uttered by appellant. The hearing officer determined the question of fact to be whether the statements uttered and complained of were' true in fact, and whether the orientation meeting was the proper forum for these remarks.

The hearing officer filed a detailed report with the Com- . missioner. Eor the purposes of this opinion, we find it necessary to give a brief summary of his conclusions. As to Charge 1 he found that there was no basis for appellant’s statement that the two teachers were “fired,” although this may be the common understanding and the practical effect of the action of the board of education on persons who may not be versed in the technical ramifications of school law. As to Charge 2, he made no specific findings of fact with respect to the core of the charge per se, finding solely that the subject of the incident was inappropriately raised by appellant. In reaching this conclusion the hearing officer makes the suggestion that the local board of education may have been culpable itself in handling the subject matter which was referred to by appellant. Charge 3, which related to alleged local political activity by the superintendent, was left by the hearing officer to the Commissioner’s judgment as to whether the minor instances of political encounter found to have been indulged in by the superintendent were such as to be deleterious to his role as educational leader. He also left for the determination of the Commissioner whether appellant’s inclusion of such allegations represented conduct unbecoming to a teacher in the public schools.

The hearing officer saw fit to break Charge 4 down into three subcharges: the first, that appellant attempted to usurp the authority of the board when she charged that it arbitrarily yanked books from the English curriculum; the second, the innuendo raised by appellant that the administration had a racist hiring policy; and the third, that the superintendent violated confidences of the grievance procedure. The first subeharge was found to be without merit, and the hearing officer found that no evidence was presented at the hearing which confirmed even an inferred premise of racial discrimination by the board. As to the third subcharge, the hearing officer left the determination as to whether the orientation day ceremony was a proper forum for its expression, suggesting also that the Commissioner determine whether the pertinent part of appellant’s speech was factually based in truth or in her belief. The hearing officer concluded that the assumptions and inference drawn by the local board in Charge 5 were unwarranted and that it was unjustifiable to conclude that appellant’s use of the word “villain” was to be given its full Shakespearian connotation. Charge 6 was sustained, leaving to the Commissioner the question of the propriety of the words used as a part of the speech. Charge 7, which dealt with advice to nontenured teachers, was found by the hearing officer not to require a finding of fact but a value judgment by the Commissioner. The hearing officer found little factual support for Charge 8, which charged the respondent with seriously interfering with the administration of the school system, pointing out that there was no concrete evidence of any kind that the orientation day speech ever served as an “interference” per se with the school administration, or that new teachers resigned their positions because of it.

The hearing officer also reviewed the additional charges served on appellant subsequent to her suspension. He found that the activities of appellant were in fact as alleged in Charge 10, but the effect on the school district was left to the judgment of the Commissioner. Charge 11 was withdrawn by the board. The hearing officer found that in fact the president of the local board was an intruder in a meeting between the superintendent and the association and, therefore, recommended a dismissal of Charge 12.

The claim that the superintendent of schools dozed in court during proceedings, and the reference to him in a letter as “Carmen” were found to be of such minor consequence that they need not be considered by the Commissioner as substantial evidence against appellant. Charge 15, which related to her relations with her subject supervisor, were ordered dismissed by the award of an arbitrator after the hearings, and the hearing officer’s report thereon. The fact of the arbitrator’s award and its contents were forwarded to the State Board of Education before it reviewed the Commissioner’s determination. Because of the award, the State Board eliminated Charge 15 from consideration of the charges against appellant. We have not considered this charge in our review.

Charge 16, which alleged that the apology for the orientation day speech was insincere, was recommended to be dismissed. The hearing officer found in Charge 17 that appellant probably did say words to the effect that the superintendent has “got to go” in private conversation with the assistant superintendent of schools. He recommended, however, that all other inferences and facets of this charge be dismissed. In Charge 18 the hearing officer properly made no finding that the words attributed to appellant were “unfeminine” or “unladylike.” He did find that appellant used the expressions “son-of-a-bitch” and “bald headed mental midget.” Charge 19, which related to criticism of a fellow teacher, was recommended as dismissed for want of real evidence. The final charge, which dealt with the interference with the performance of a teacher’s duty, was found to be undisputed since the supervisor involved admitted he had no authority to direct the teacher involved to perform the task assigned. The hearing officer left any final conclusion with the Commissioner.

The Commissioner, for the greater part, accepted the hearing officer’s report. He found that the evidence sustained several charges against appellant which were of a sufficiently serious nature so as to warrant her dismissal. With certain specific exceptions, which he noted in his decision, he sustained the charges of the local board relating to the orientation day speech. He also upheld, with certain exceptions, the charge that the speech contained untruths and distortions, and found that it constituted a derogatory personal indictment of the superintendent of schools which had been presented in the wrong forum and was patently unfair to him.

Certain of the charges unrelated to the orientation day subject were also sustained by the Commissioner. In this group of charges he determined Charges 10A, IOC, and 18D to be the most serious. The first of these charged that appellant, as president of the Education Association, had directed tenured teachers not to sign letters of intent which sought information as to whether those teachers plan to return to the school district for the fall semester. Charge IOC was related to Charge 10A since it charged that the letter in question interfered with the administrative rights and duties of the superintendent of schools. In sustaining these two charges the Commissioner found that appellant was guilty of insubordination and that her action, if followed by a majority of the tenured teachers, could have crippled the effective operation of the school district. Charge 18D involved the incident in which appellant called another teacher a son-of-a-bitch in the presence of students. The Commissioner reviewed a claim of provocation and found this incident to be evidence of conduct unbecoming a teacher.

It was the Commissioner’s conclusion that the orientation day speech, standing alone, warranted appellant’s dismissal from the Brick Township School District. It was the Commissioner’s opinion that the constitutional obligation of local boards of education to provide a thorough and sufficient system of public education could not he carried ont in an atmosphere of turmoil and conflict between school officials and employees. He stated:

When such an atmosphere clearly exists, as herein, and when the atmosphere was created by a teacher acting in a premeditated and calculated manner (the speech, p-1) the Commissioner believes that the tenure rights of the teacher are forfeit to the needs of the district as a whole for a cooperative effort in the education of children. It is this effort of local boards of education, the representatives of the people through the electoral process, and of school administrators, entrusted by the boards with duties of school management, which, in the Commissioner’s judgment, must be supported.

The Commissioner determined that the appellant should be dismissed from her employment with the Brick Township School System, effective on her date of suspension by the Board of Education on September 8, 1971.

Following the Commissioner’s determination an appeal was filed with the State Board of Education and on April 4, 1973 that body affirmed the Commissioner’s decision dismissing appellant. The decision of the State Board of Education also reversed that portion of the Commissioner’s decision which granted appellant full pay retroactive to the 121st day after her suspension, as noted above.

Before discussing the substantive matters before us on this appeal, a procedural point must he dealt with. Appellant claims that the Commissioner violated provisions of the Administrative Procedure Act, N. J. S. A. 52:14B-1 et seq., by not affording the parties an opportunity to object to the report of the hearing officer before he issued his decision. See N. J. S. A. 52:14B-10(c). Unquestionably, the failure to provide this opportunity was erroneous and not in accordance with the provisions of the Administrative Procedure Act. Winston v. So. Plainfield Bd. Ed., 125 N. J. Super. 131, 138 (App. Div. 1973). The right to object to a hearing officer’s report made by one for the use of another who was entrusted with final decision making, who must rely in part, at least, upon that report, has long been embedded in our jurisprudence. See Mazza v. Cavicchia, 15 N. J. 498, 523— 524 (1954). We have recently held in Winston, above, that this axiom of administrative due process is applicable before the Commissioner of Education. In answering this argument the Attorney General informs us that after our decision in Winston was handed down, he advised appellant, through counsel, that his office would be agreeable to a remand of these proceedings to the Commissioner for the purposes of allowing the parties to file exceptions to the hearing officer’s report. This offer was declined by counsel for appellant. The Attorney General now contends that the refusal constitutes a waiver of the objection to the procedure employed by the Commissioner in this case. Under the circumstances existing, i. e., the lengthy hearings and the period of time elapsing between the filing of charges and the action of the State Board of Education, we see no point in becoming involved in a procedural predicament. We have elected to consider the arguments raised by appellant and the other parties on appeal as objections to the hearing officer’s report, and have undertaken to review the entire record and that report in light of the arguments raised. We adopt this procedure in this case because of the public nature of the question involved and the desire of all parties to bring an early termination to these proceedings. We trust that in the future the Commissioner will observe the provisions of N. J. S. A. 52 :14B-1 et seq.

It is our conclusion that the fact of delivery of the orientation day speech by appellant, considering its content, was sufficient in itself to warrant her dismissal from employment by the school district of Brick Township. And while we affirm the decision of the State Board of Education insofar as it affirmed the allegations of the Commissioner, we find that the sustaining of the additional charges by the Commissioner and the State Board serve to strengthen the basic conclusion that appellant’s irresponsible conduct on September 1, 1971 rendered her unfit to continue as a faculty member of the Brick Township School System.

Throughout appellant’s arguments for reversal two basic misconceptions exist. The first, that the local board of education could not prove that any action by her had any significant effect on the school system in that not a single teacher gave up teaching as a result of any action taken by her, not a single person was induced not to apply for a teaching position in the system as a result of any action taken by her, and not a single student was in any way influenced by any action taken by her. The second is that the conduct complained of must be considered in the context of a struggle by her seeking adjustment of the conduct of “Boards of Education, Superintendents of Schools and other administrative personnel” to the role which the collective bargaining agents of their teachers have by law been authorized and obligated to assume. We believe both of these basic assumptions exhibit a misconception of the role of a teacher in a school district and the role of a teacher as a negotiator for collective bargaining rights for school district employees. In any event, the issue before us is the conduct of appellant as an individual employee of the Brick Township School District.

Appellant’s first main argument is that the Commissioner overlooked the relationship between Brick Township Board of Education and the Brick Township Education Association of which appellant was president prior to the orientation day exercises. She contends that the speech which she delivered at those exercises was nothing more than a “culmination of frustration and provocation caused by the failure of the Board and Superintendent to live up to their legal responsibilities.” Examples of this failure are said to be demonstrated by the administration permitting 83 days to elapse without any attempts at collective bargaining with the Education Association. Assuming, for the sake of argument, that these allegations are true, and we observe that the evidence does point to a certain amount of truculence to negotiate on the part of the board, we cannot conclude that the situation gave the right to appellant to resort to abusive rhetoric contained in the orientation day speech. We cannot conceive of any legitimate excuse for such unprofessional conduct. Appellant’s attempt to cloud the issue by urging that she was legally bound as president of the association to represent its “rank and file” vigorously and with good faith is a non sequiiur. Labor negotiations are not the subject matter of these proceedings.

The fact that appellant was the president of the education association did not give her leave or power to resort to the remarks which she did. Puentes v. Bd. of Education of Union Free School District No. 21 of Town of Bethpage, 24 N. Y. 2d 996, 302 N. Y. S. 2d 824, 826, 250 N. E. 2d 232, 233, motion for reargument dismissed 25 N. Y. 2d 930, 305 N. Y. S. 2d 148, 252 N. E. 2d 628 (Ct. App. 1969).

Indeed, it should be fairly apparent that efficient leadership would eschew a public attack such as that contained in the complained of speech. If in fact the administration of the school district improperly conducted its relationships with the teachers’ association in the area of collective bargaining, that fact in itself cannot be held to justify improper conduct by the teachers or their representatives. A civilized society expects one who believes himself wronged to resort to legal channels in seeking redress, and not to resort to trial by battle. It is in this connection that we should also observe that the question of the truth or falsity of the claims made in the speech by appellant are not in reality the issue before us; rather, we are concerned with the timing and the reckless, intemperate nature of the deliverance.

One final observation should be made with respect to the orienlation speech and the charges arising out of it. The hearing examiner found that Charge 16 was unproven and, therefore, required no defense. That charge related to the apology purportedly made by appellant on September 7, 1971 for her orientation speech. The board charged that the apology was insincere, basing its claim on subsequent remarks of appellant, as well as the fact that she caused copies of the speech to be distributed at the time her apology was delivered. While the Commissioner never explicitly indicated that he accepted the recommendation of the hearing officer that Charge 16 be dismissed, we deem this to be irrelevant in review ot our conclusion that the speech as composed should never have been delivered at the orientation meeting or in public at any other time. It is our opinion that any apology under the circumstances could not have served to rectify the situation created solely by appellant by her exercise of poor judgment in making the speech in the first place.

Appellant’s next argument is that she never usurped any essential function of the board of education. This argument relates to the matters described in Charges 10A and IOC. It will be recalled that the superintendent of schools had circulated .a questionnaire to the tenured faculty seeking to learn their individual intentions with respect to returning to employment in the ensuing year. Appellant sent a notice to those faculty members urging them not to comply with the superintendent’s request because the faculty should not do anything that would make the board’s job any easier. The Commissioner found this act of appellant’s to have been potentially disruptive of the school district. Appellant now argues in effect that it was beyond the power of the Commissioner to sustain these charges since the superintendent is nowhere given “legal warrant” for the action which he took in soliciting information with respect to teacher return. It is argued that there is no specific statutory authority for this sort of procedure. The argument is clearly frivolous. As a matter of common sense and prudence, a superintendent would take such action to find out just how many teachers he would have in the coming year and how many new teachers he would have to seek to fill vacancies that will be created. The authority to circulate such a questionnaire is implicit in the duties of the office of superintendent. On the other hand, appellant had absolutely no right as an individual teacher, or as a self-styled labor leader, to adopt the obstructionist attitude that she did in encouraging the faculty not to respond. We agree with the Commissioner that her irresponsible act was potentially dangerous to the entire school district. That nothing came of her attempts is irrelevant; although we find it significant that the faculty evidenced their maturity by ignoring appellant’s suggestion.

Appellant also contends that the Commissioner, by his determinations, invalidly thrusts upon her a duty and burden for which there is no basis in law. This argument arises out of the Commissioner’s conclusion in which he states:

* * * The proofs herein provide little reason to believe that respondent has, in the past, or could in the future, be seriously interested in aiding the Brick Township Board to provide the “thorough and efficient” school system required by Constitutional prescription.

This conclusion is questioned principally because, it is argued, the Commissioner gives no authority, either statutory or case law, for this requirement. It is claimed that the Commissioner has concocted some kind of duty which is new and novel and which woirld raise grave constitutional questions if upheld. We see no constitutional difficulty with the Commissioner’s conclusion, which, incidentally, appellant argues out of context. The answer is pure and simple: a teacher is something more than a classroom automaton. A teacher is a professional who has by education and training obviously dedicated himself or herself to the education of youth. A teacher is expected to exhibit loyalty to the district in which he or she is employed and to cooperate with the administration in seeking the educational goal. Appellant would relegate a teacher to a “rank and file” member of an organization who seeks some communal goal of self-aggrandizement. It is the individuality each teacher brings to the educational scheme that contributes to educational success; that individuality, however, must be sublimated to the educational goal. A teacher is expected to show a reasonable respect for the authority of his or her employer and to maintain a civility commensurate with his or her professional status. All of this we find to be implicit in the Commissioner’s quoted conclusion. Appellant’s resort to billingsgate, and other questionable conduct found by the Commissioner, tends to show that she has failed to meet even the minimum professional standards expected of her. We do not suggest that any teacher may not legally or constitutionally believe that a board of education or a superintendent of schools is not carrying out their functions properly, and may not speak out publicly with respect to such belief, or resort to political activities to defeat the members of such a board of education. These are rights which need not be emphasized since they are inherent in our democratic process. Indeed, the failure to exercise such rights, on proper occasion, might well constitute unprofessional conduct. What we do suggest is that the exercise of these rights be accomplished professionally.

Appellant’s final argument dealing with the Commissioner’s findings is that they deprive her of her constitutional rights and liberties. The argument is premised on the observation that “it is commonplace that teachers do not forfeit their constitutional rights merely because they are teachers.” We agree. But we observe at the outset of this discussion that neither the constitutional right of a teacher to speak freely on public issues nor the statutory right of school employees to bargain collectively for their own welfare will override the basic obligation of an employee to the employer. Free speech and collective bargaining rights do not endow a teacher, as a school district employee, with a license to vilify superiors publicly. The employer-employee relationship restrains the right of the employee to the extent reasonably necessary to retain that harmony and loyalty which is necessary to the efficient and successful operation of the educational system. Breen v. Larson College, 137 Conn. 153, 75 A. 3d 39 (Sup. Ct. Err. 1950); cf. Marchitto v. Central R. Co. of N. J., 9 N. J. 456 (1952).

In advancing her constitutional argument appellant relies chiefly on Pickering v Board of Education, 391 U. S. 563, 88 S. Ct. 1731, 30 L. Ed. 2d 811 (1968). In Pickering the teacher had written a letter to the editor of a local newspaper criticizing the manner in which his board of education and superintendent of schools had handled past proposals to raise new revenue from the public for defendant school system. Essentially, the letter complained that too much money was being sought for the athletic program, and not enough money for teachers’ salaries. The letter also charged the superintendent of schools with attempting to prevent teachers in the district from imposing or criticizing the proposed bond issue. The teacher also charged that the board of education was “trying to push tax supported athletics down our throats,” and that certain actions of the superintendent created a climate of “totalitarianism” in which teachers lived at the high school.

The Supreme Court held that the letter did not justify the teacher’s dismissal, and that its contents and publication were protected by the Eirst Amendment. The court observed:

At the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.

In concluding that the balance there rested on the side of the teacher, the court noted, among other things, that the issues discussed in the letter were matters of public importance and concern, and that the public interest in having free debate on such matters permitted the teacher to make statements thereon — even if false •— so long as the false statements wore not made knowingly or recklessly (see New York Times Co. v. Sullivan, 376 U. S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964)), or the matters were so within the teacher’s presumed knowledge of school affairs that his statements would produce a harmful impact on the public. In reaching its determination the court also made another significant observation:

The statements are in no way directed towards any person with whom appellant would normally be in contact in the course of his daily work as a teacher. Thus no question of maintaining either discipline by immediate superiors or harmony among co-workers is presented here. [391 U. S. at 569-570, 88 S. Ct. at 1735]

Pickering is clearly distinguishable from the instant controversy. There the letter confined itself to public issues and did not contain insulting and vituperative language, or an attack on the character of superiors. Unquestionably, as we have noted before, appellant had the right to speak out publicly' on such matters of public interest as the policy of the board of education with respect to textbooks, the hiring practices with respect to black teachers and the lack of due process accorded to nontenured teachers. We find, however, that appellant chose to ignore those issues as a matter of public concern and distorted them into a vehicle to bring scorn and abuse on the school administration in general and the superintendent of schools in particular. In doing so she forfeited her claim to First Amendment protection. See Duke v. North Texas State University, 469 F. 2d 829 (5 Cir. 1972), cert. den. 412 U. S. 932, 93 S. Ct. 2760, 37 L. Ed. 2d 160 (1973).

We also reject appellant’s argument that our affirmance of the determination of the Commissioner and the decision of the State Board of Education with respect to the charges made against her will serve to “chill” the association rights of teachers as well as the rights of teachers freely to speak and assemble. An aggressive, contentious and, perhaps, controversial teacher working 'within the structure of a school district as a faculty member and/or as an education association representative may confidently look to the First Amendment as a protective shield for his or her activities; however, an intemperate, venomous employee, be he or she a teacher or otherwise, cannot claim constitutional protection when he or she attacks his or her superiors in public in brawling terms for no purpose discernable other than to satisfy some personal need.

Our review of the entire record satisfies us that the findings of fact made by the hearing officer and adopted by the Commissioner of Education are supported by substantial evidence. We also find that the conclusion drawn by the Commissioner, based on the record and the hearing officer’s report find substantial support in that record.

Appellant was suspended from her employment effective on September 8, 1971.' On February 10, 1972, L. 1971, c. 435, § 2, became effective. That statute, now embodied in N. J. S. A. 18A:6-14, provides that if the determination of charges pending against any employee of a board of education is not made by the Commissioner within 120 calendar days after certification of the charges, then such person shall be paid beginning on the 121st day until such determination is made.

The Commissioner determined that N. J. S. A. 18A :6-14, as amended, applied retroactively and ordered that appellant be paid her full salary from the 121st day following her suspension until the date of his determination. The State Board of Education reversed in a five to four vote, concluding that the statute should not be given retroactive effect. We agree that the Commissioner’s determination was correct and reverse the finding of the State Board in this respect. See the recent opinion of this court in In re Tenure Hearing of Grossman, 127 N. J. Super. 13 (App. Div. 1974).

We affirm the decision of the State Board of Education, filed April 4, 1973, insofar as it affirms the decision of the Commissioner of Education of July 19, 1972, dismissing appellant from her employment with the Brick Township school system. The decision of the State Board, insofar as it reverses the decision of the Commissioner to grant appellant compensation at her regular salary pursuant to the provisions oí N. J. S. A. 18A :6-14, as amended, and directing that appellant be paid at her full salary, in accordance with the statute, by the Brick Township Board of Education from a date commencing 121 days after her suspension until July 19, 1972, the date of the decision of the Commissioner of Education, is reversed.

APPENDIX

EXHIBIT “A“

PRESIDENT’S ADDRESS

ORIENTATION NEW STAFF

September 1, 1971

On behalf of the Brick Township Education Association I welcome you to the Brick Township School District. I look forward to your membership into the BTEA — for today more than ever we need the collective and organized strength of teachers in facing the many challenges here in Brick Township and indeed in the state of New Jersey.

At this point, I would like to divert for a moment to invite all of you to be guests of the BTEA Executive Board at a . cocktail party — planned specifically for you — at the KNIGHTS OF COLUMBUS BUILDING . . . tomorrow . . . between 3 and 6 p.m. Our president-elect, Jim McCabe, will distribute directions at the end of this session. Please . . . attend.

As you are undoubtedly aware, we have had serious problems here in Brick this past year. Fortunately some have been resolved, regrettably others have not.

OUR PROLONGED and often bitter contract negotiations with the Brick Township Board of Education have resulted in a contract settlement. It is a contract governing many of your terms and conditions of employment. Within the coming weeks we shall have copies available for you. It is our full intention that the contract be fully honored by Board and administration alike.

OUR PROGRESS as they relate to the negotiations of a contract have been resolved — at least until contract negotiations re-open 18 months from now — a word now about our resolved problems.

THE EEGOED clearly shows that this Association has no faith in the school’s administration — more specifically no faith in the superintendent of schools.

FOEGIVE ME if the forum of the traditional Orientation Day would appear HOT to lend itself to a discussion of these matters. But what must be said will be said.

WHY DOES THIS Association not have faith in the Superintendent of Schools? Let me tell you a few stories.

1. Last year two fine young teachers with excellent records were recommended for rehiring by their principals and their supervisors. They were dynamic, well-liked, personable and extremely competent men. Without warning, without explanation, this man fired them. The lower courts have said that his action was legal but there is a higher court that would term the action despicable — the court of justice, reason and compassion.

2. AHOTHEE STOEY — earlier last year an TSnglish teacher made a speech at Atlantic City criticizing what has throughout the State become known as the “BEICK BOOK BUEHIHG”; as a result this teacher was subjected to some of the most inhuman treatment ever perpetrated by a Board of Education, resulting in her suspension and the first strike in New Jersey on the issue of Academic Freedom. Through it all, the man that just spoke to you remained conspicuously silent.

3. I WAHT TO TELL YOU another story — a third story. There were two elections in Brick Township last year —■ one for Mayor and one for the Board of Education. Despite all good sense and good reason, this man became intimately embroiled in these political campaigns — destroying whatever distance and objectivity he might have been able to maintain as the so-called chief teacher in the district.

4. AHOTHEE STOEY — the year before last three books were arbitrarily yanked from the English curriculum — arbitrarily by the Board of Education. Books, incidentally, all written from the black point of view. This man not only remained silent throughout the controversary [sic], he admits that the blame is his alone. In passing, perhaps yon might ask him someday how many black teachers have been hired to work in Brick Township, and if they applied would the}1, be seriously considered.

I could tell you stories about this man violating the confidence of the Grievance Procedure. I could tell you a story about him digging into a man’s past to threaten his professional life — I could go on and on with story after story but I think you get the point. The man who just spoke to 3rou fits Hamlet’s description of his uncle . . . that he does smile and smile and smile and yet remain a villain.

BRICK TOWjSFSHIP is a snaJcepit for young teachers and and I would just give you one bit of advice — for the next three years dig a professional hole and hide under it — don’t budge, don’t move, say “yes sir” to everyone and wait and watch and remember that in New Jersey there are very good tenure laws . . : your time‘will come. And our only defense has been and ever'will be a strong professional association and I can only urge everyone of you to please, for your sake and for ours, become members of the united teaching profession. There are more teachers than there are superintendents.

THE RECORD SHOWS that we will fight for the teachers, but until there is more enlightened courts, our fighting will affect no fire. We can’t win . . . yet we will go to the ends of the world for'you but probably fall off the edge for you because you can’t be saved ... SO HIDE.

IE YOU HAVE BEEN reading the paper or attending Board meetings you know that I have been fighting' against you — some of you — those of y0u not fully certificated . . . but you are here now, you are brand new teachers — most of you — and you are not aware that you have become economic pawns. Erom my own personal experience, it takes a year or two to find yourself in this business. Two or three brand new teachers in a district can be'absorbed . . . but not 70 or 80% of them, some of whom áre not properly certificated. This hiring practice is eating at the core of the principle of certification, and I term this whole procedure a callous economic gesture.

BUT NOV YOU ARE HERE — we’re behind you . . . we will support you, but we want you to know our position. WE’RE BEING HONEST. We believe now that you are here you will blend in with the rest of the staff. We’ll SUPPORT YOU ALL THE WAY —

THE BETA WILL PROVIDE for the involvement of teachers in educational policy, will provide for due process fox its non-tenured teachers, will promote the welfare and provide for the protection of all its members, Carmen Raciti not withstanding.

PLEASE JOIN WITH US IN THAT ENDEAVOR. Thank you.

(Emphasis appellant’s)


text:
    ESPEDITO LA STELLA AND JOHN CAFONE, PLAINTIFFS-RESPONDENTS, v. GARCIA ESTATES, INC., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 4, 1974
    Decided April 29, 1974.

      Before Judges Conboed, Handler and Meanor.

      Mr. Roland R. Formidoni argued the cause for appellant (Messrs. McLaughlin, Abbotts & Cooper, attorneys).

      Mr. Robert W. O’Hagan argued the cause for plaintiffs-respondents (Messrs. Stout, O’Hagan & Hertz, attorneys).
   The opinion of the court was delivered by

Meanor, J. A. D.

Plaintiffs are tenants of premises owned by defendant upon which a golf course is located. In 1971 plaintiffs sought to exercise the option to renew contained in the lease. Defendant refused to renew on various grounds, and thereafter plaintiffs brought this action to compel renewal. Defendant counterclaimed for possession and also for an order requiring the parties to submit their dispute to arbitration as required by the following clause contained in the lease:

Any dispute arising under this lease shall be settled by arbitration. The Landlord and Tenant shall each choose an arbitrator, and the two arbitrators thus chosen shall select a third arbitrator. The findings and award of the three arbitrators thus chosen shall be final and binding on the parties hereto.

Arbitration was ordered by the court pursuant to the above clause. The arbitrators were not unanimous in their views, finding by a vote of two to one in favor of plaintiffs. The court confirmed the award reached by majority vote. This was error. Unless otherwise agreed by the parties in the terms of the submission to arbitration, there must be an unanimous conclusion by the arbitrators as a prerequisite to judicial confirmation of their award. Factors, Inc. v. Salkind, 5 N. J. 485, 492 (1950). That case involved an arbitration clause essentially the same as the one here. Under these circumstances the judgment confirming the award must be reversed.

It is obvious that the arbitrators in this case have reached an impasse and that there is no possibility of unanimity. This leads to the question of the course to be taken on the remand — a point upon which there is little authority, since it appears in most cases that provision is made in the terms of the submission for a solution in the event the arbitrators fail to be unanimous. See, e. g., the terms of the submission in McKeeby v. Arthur, 7 N. J. 174, 177 (1951).

The analogous authority suggests that where an award is vacated because of lack of unanimity, the court, where such action is not precluded by the terms of the arbitration agreement, may in its discretion direct a rehearing by the same or different arbitrators, or may accept the controversy for judicial resolution. N. J. S. A. 2A :24 — 8 provides in pertinent part:

The court shall vacate the award in any of the following cases:
$# ****** * *
d. Where the arbitrators exceeded or so imperfectly executed their powers that a mutual, final and definite award upon the subject matter submitted was not made.
When 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.

The agreement here contains no time within which the award was to be made. If the essence of the arbitration agreement is that the award be made by a specified date and it is not forthcoming, the agreement to arbitrate will not be enforced and the parties will be left to their judicial remedies. Goerke Kirch Co. v. Goerke Kirch Holding Co., 118 N. J. Eq. 1 (E. & A. 1935); Goerke Kirch Holding Co. v. Union Cty. Circuit Ct., 14 N. J. Misc. 624, 185 A. 375 (Sup. Ct. 1934), aff’d sub. nom. Goerke Kirch Holding Co. v. Goerke Kirch Co., 116 N. J. L. 427 (E. & A. 1936). Also, an arbitration agreement may be waived and upon waiver judicial remedies will be available. McKeeby v. Arthur, supra.

In Public Utility Workers v. Public Service Co., 35 N. J. Super. 414 (App. Div. 1955), certif. den. 19 N. J. 333 (1955), as part of the settlement of a strike it was agreed that a single issue would be arbitrated in accord with the rules of the State Board of Mediation, one of which required decision within 30 days of the close of hearings. This rule was violated and the court vacated the award under N. J. S. A. 2A:24-8(d). Holding that the time specified for the decision was not of the essence of the arbitration agreement, this court ordered resubmission to arbitration under the last paragraph of N. J. S. A. 2A:24 — 8.

In Ench Equipment Corp. v. Enkay Foods, Inc., 43 N. J. Super. 500 (App. Div. 1957), the arbitrators resigned before reaching a decision. Defendant moved to compel arbitration and plaintiff moved to vacate a prior order compelling arbitration. The trial court granted plaintiff’s motion, which had the effect of leaving the parties to their judicial remedies. In reversing, this court pointed out that it was of no moment that the terms of the submission made no provision for resubmission to arbitration in the event the arbitrators failed to make an award. It was held that where arbitrators resign, the court has power to require the matter to be submitted to new arbitrators. Although N. J. S. A. 2A:24-8 was not applicable in Ench since no award had been made, the court’s discussion makes it evident that the discretionary power provided by that statute to require a resubmission to arbitration includes the authority to compel the appointment of new arbitrators. 43 N. J. Super, at 504.

Accordingly, it appears to be the general rule that where arbitration fails, if the terms of the submission do not preclude it, a court may, in its discretion, either order the matter resubmitted to arbitration, which includes the poweT to require the appointment of new arbitrators, or may decline to order resubmission, thus leaving the parties to judicial resolution of the dispute.

Under the circumstances here, we prefer to leave the exercise of this discretion to the trial court, which shall decide on remand whether to order a resubmission before new arbitrators, or whether to accept the controversy as pleaded and decide it judicially.

Reversed and remanded for proceedings not inconsistent with this opinion.