author: Wick, J. S. C.

text:
    LEONARD KATZ AND NANCY KATZ, PLAINTIFFS, v. BOARD OF TRUSTEES OF GLOUCESTER COUNTY COLLEGE AND WILLIAM L. APETZ, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided February 29, 1972.

      Mr. William 8. Greenberg for plaintiffs (Messrs. 8terns & Greenberg, attorneys).

      Mr. Martin F. Caulfield for defendants. (Messrs. Ilannold, Caulfield & Zamal, attorneys).
   Wick, J. S. C.

This case is the result of a decision of the Gloucester County College Board of Trustees not to renew the teaching contract of plaintiff Leonard Katz for a fourth year, the granting of which would have carried plaintiff into tenured status under New Jersey law. N. J. 8. A. 18A:60-1 el seq. Suit has been instituted against the board and President William L. Apetz in his official capacity seeking the reinstatement of Katz as a member of the faculty with tenure and such other relief as may be just and equitable. It is alleged that defendants’ determination violated the plaintiff’s rights under the First, Fifth and Fourteenth Amendments to the Hnited States Constitution, and more particularly his rights of association “without fear of penalty or reprisal” conferred by Article I, paragraph 19 of the New Jersey Constitution, as implemented by N. J. 8. A. 34:13A-1 ei seq. Defendant board is further charged with violation of N. J. 8. A. 18A:64A-12(f) and 18A:64A-13. Plaintiff has abandoned the third count of his complaint seeking damages for his wife’s nervous condition allegedly attributable to defendants. Defendants deny the allegations of the complaint.

Plaintiff joined the Gloucester County College faculty in September 1968. He taught various courses in the Social Sciences Department for three years, progressing in rank from lecturer to instructor. During this period he organized and became first president of the Gloucester County College Eaculty Association; he remained an active member thereafter, serving in various capacities, including salary negotiator for the faculty. He was also elected to the presidency of the Association of New Jersey County College Eaculties. His extracurricular involvement included coaching the cross country team, advising the student government, chaperoning various student functions, and counseling (on an unofficial basis) students hopeful of continuing their education beyond the county college’s two-jrear program.

Voluminous testimony has been adduced from numerous witnesses regarding Katz’ abilities as a teacher. Several of his former students and Dr. Leonard Krivy, a former administrator at the college, found him knowledgeable and even inspiring; various administrative personnel expressed some dissatisfaction with his techniques; the board of trustees had little or no first-hand knowledge.

At a public meeting on January 25, 1971, following an executive session of the board, it was announced that Katz would not be awarded a contract for the academic year 1971-1972, his tenure year. N. J. 8. A. 18A:60-2. The board had discussed the matter on at least two occasions before making its announcement. The decision was made on the recommendation of President Apetz, who had consulted with Dean of Instruction Joseph V. Summers and plaintiff’s departmental chairman, Michael D. Lindner. Both of these latter two individuals had personally observed and evaluated plaintiff’s classroom abilities during 1970. In the six months preceding the board’s decision several meetings between the administration and plaintiff had been held, at which certain suggestions for improving his effectiveness as a teacher were discussed.

No reason was given Katz for the board’s determination; no hearing was afforded him to face his accusers. At trial it was testified that in addition to teaching ability, the administration had expressed to plaintiff its concern regarding his attire, tardiness, absences and parking habits.

Prior to trial two motions were made by defendants. The first was to dismiss the complaint for failure to state a cause of action and failure to exhaust administrative remedies. By letter opinion of March 15, 1971 we denied the motion in view of the possible constitutional issues involved.

Subsequently, on July 9, 1971, the court granted defendants’ motion for a protective order, whereby the scope of plaintiff’s discovery was limited to the extent that he could not ask the board members or other college personnel questions regarding the reason (s) for his nonretention. Further, and relatedly, plaintiff was denied any access to the executive sessions of the Board insofar as they pertained to his non-retention.

We are asked today to determine whether, as plaintiff alleges and has sought to prove, the nonretention of Katz, a nontenured college instructor at a state institution, violated his rights under the United States Constitution, the New Jersey Constitution, or statutes implementing the latter.

It can no longer be maintained that teachers "shed their constitutional rights to freedom of speech at the schoolhouse gate.” Tinker v. Des Moines Independent Community School District, 393 U. S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969). Their exercise of First Amendment rights will generally not warrant their dismissal. Keyishian v. Board of Regents, 385 U. S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967); Pickering v. Board of Education, 391 U. S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968); McLaughlin v. Tilendis, 398 F. 2d 287 (7 Cir. 1968). Furthermore, in the absence of some illegal intent, a person’s right to join or form a union is protected by the First Amendment. Thomas v. Collins, 323 U. S. 516, 65 S. Ct. 315, 89 L. Ed. 430 (1944). The protection afforded has been held to be unaffected by the presence or absence of tenure. McLaughlin v. Tilendis, supra; Johnson v. Branch, 364 F. 2d 177 (4 Cir. 1966), cert. den. 385 U. S. 1003, 87 S. Ct. 706, 17 L. Ed. 2d 542 (1967); Bomar v. Keyes, 162 F. 2d 136 .(2 Cir. 1947), cert. den. 332 U. S. 825, 68 S. Ct. 166, 92 L. Ed. 400 (1947).

Shelton v. Tucker, 364 U. S. 479, 81 8. Ct. 247, 5 L. Ed. 2d 231 (1960), is clear authority for the proposition that teachers enjoy the right of free association, and that the unjustified interference therewith violates the due process clause of the Fourteenth Amendment. Our own Supreme Court has recently stated, in Burlington Cty. Evergreen Park Mental Hospital v. Cooper, 56 N. J. 579 (1970), a case involving the termination of a public hospital employee, that

Denial of permanent status to an employee solely because she had engaged in her constitutional or statutory right to join or to persuade other employees to join a union clearly would be arbitrary and illegal conduct by an employer, [at 583]

See also, Zimmerman v. Board of Education, Newark, 38 N. J. 65 (1962), cert. den. 371 U. S. 956, 83 S. Ct. 508, 9 L. Ed. 2d 502 (1963). Implementing Article I, paragraph 19 of the New Jersey Constitution, N. J. S. A. 34.13A-5.3 provides in part: There can be no question but that plaintiff, an employee of a state educational institution, comes within the meaning of the cited enactment. Porcelli v. Titus, 108 N. J. Super. 301 (App. Div. 1969), cert. den. 55 N. J. 310 (1970). Thus, under the United States Constitution, the New Jersey Constitution, New Jersey statute and judicial decisions, a public school teacher’s nonretention based solely on the exercise of lawful union activity or other First Amendment rights would be unlawful state action.

Except as hereinafter provided, [exceptions irrelevant], public employees shall have, and shall be protected in the exercise of, the right, freely and without fear of penalty or reprisal, to form, join or assist any employee organization or to refrain from any such activity; * * *.

While the law may be simply stated, its application to the instant controversy is more difficult. We have heard numerous witnesses testify; in our deliberation since trial we have carefully reviewed the record to find substantiation for plaintiff’s claim. We are unable, however, to find any concrete evidence in the proofs to support a determination that Katz’ termination was a “penalty” or “reprisal” resulting from his faculty association activity, or that his substantive constitutional rights were in any way infringed. True, he was very vocal in his faculty association positions; it is through individuals such as Katz that teachers today enjoy rights only dreamed of a few decades ago. His role as faculty leader and, more particularly, salary negotiator may well have generated some friction with members of the board of trustees. But we cannot find, invoking any standard of culpability, that his activism caused his nonretention or that the board was motivated by the vindictive spirit ascribed to them by plaintiff. As against plaintiff’s claim, we have heard the testimony of Lindner, plaintiff’s departmental chairman, and Dean Summers, both of whom observed and evaluated plaintiff in class. Both stated that, in their opinion, Katz was deficient in certain areas as a teacher. This was related to Katz and generated several conferences aimed at his self-improvement. We have no doubt that the situation, known by Dr. Apetz, was made known to the board for their deliberation. Nor can the court question the judgment of plaintiff’s superiors; these men are highly trained educators and education administrators. It is not the function of this court to question their judgment, to become a super administrator, in the absence of a far greater prima facie showing of neglect on their part.

What has been said heretofore poses a more troublesome issue: assuming the existence of certain constitutional rights, the exercise of which will not justify a teacher’s termination, is a nontenured teacher entitled to a statement of reasons and/or a hearing before he may be lawfully dismissed. Zimmerman v. Board of Education, Newark, 38 N. J. 65 (1962), cert. den. 371 U. S. 956, 83 S. Ct. 508, 9 L. Ed. 2d 502 (1963), exhaustively cited by defendants for the negative of this proposition, states

And except to the extent of constitutional or statutory limitations, there is no legal duty on the part of a board to re-employ a teacher at the end of a contract term, [at 75]

It is fairly clear that Zimmerman did not decide the issue posed. In that, case the reasons for dismissal were given. Chief Justice Weintraub’s concurring opinion demonstrates the point:

The Legislature intended wide latitude in the employing authority to determine fitness for permanent employment. It is clear that public employment may not be refused upon a basis which would violate any express statutory or constitutional policy. A simple example would be discrimination for race or religion. But I am not sure such specific limitations are the only restraints. If the employing agency, for an absurd example, thought blonds were intrinsically too frivolous for permanent employment, a court would find it difficult to withhold its hand.
But if we may inquire into ‘unreasonableness,,’ it would seem to follow that there must be a ‘reason,’ i. e. ‘clause’ for refusal to continue the teacher into a tenure status. That course has its difficulties. It would not mean the court would not recognize a wide range of ‘reasons’ or would lightly disagree with the employer’s finding that the ‘reason’ in fact existed. But it would follow that upon demand the teacher would be entitled to a statement of the grounds, with the right to a hearing and to a review as to whether the grounds are arbitrary in nature or devoid of factual support. * * * Such individual inquiries could involve some practical problems in the administration of a school system.
I think the question might well be left for another day, since here the reason was given and I cannot say it is arbitrary in nature or unfounded in fact, [at 80]

There is no allegation that plaintiff “demanded” an explanation ; we are not sure, however, that this would be crucial to the existence of the right. If such right does exist, then this court was clearly in error with regard to the protective order that issued on defendants1 motion.

In the recent case of Donaldson v. Board of Education, North Wildwood, 115 N. J. Super. 228 (App. Div. 1971), the court held that a nontenured teacher has no right to a statement of reasons for the nonrenewal of his contract or a hearing before the board, subject to the constitutional guarantee against discrimination. In so holding it was stated (at 228) that "Zimmerman v. Board of Education, Newark, 38 N. J. 65 (1962), is dispositive of this issue,” and that a teacher has no right to reemployment. In view of our discussion above, we respectfully submit that Zimmerman is not proper authority for the holding, nor is the statement that plaintiff had no right to reemployment dispositive, i. e., none will claim that the fact that a nontenured teacher has no right to reemployment will justify a dismissal because he happens to be black.

The precise issue has not yet been resolved by either our Supreme Court or the United States Supreme Court. The various Circuit Courts that have considered the issue are widely split. Some cases have extended what we will term “procedural due process” to nontenured teachers in all cases of dismissal, while others say that no such right exists. There are variations in between. See, as illustrative of the various views, Roth v. Board of Regents of State Colleges, 446 F. 2d 806 (7th Cir. 1971); Orr v. Trinter, 444 F. 2d 128 (6 Cir. 1971), (appeal pending); Drown v. Portsmouth School District, 435 F. 2d 1182 (1 Cir. 1970); Jones v. Hopper, 410 F. 2d 1323 (10 Cir. 1969), cert. den. 397 U. S. 991, 90 S. Ct. 1111, 25 L. Ed. 2d 399 (1970); Thaw v. Board of Public Instruction, 432 F. 2d 98 (5 Cir. 1970); Sindermann v. Perry, 430 F. 2d 939 (5 Cir. 1970), cert, granted 403 U. S. 917, 91 S. Ct. 2226, 29 L. Ed. 2d 694 (1971); Freeman v. Gould Special School District, 405 F. 2d 1153 (8 Cir. 1969), cert. den. 396 U. S. 843, 90 S. Ct. 61, 24 L. Ed. 2d 93 (1969); Bomar v. Keyes, 162 F. 2d 136 (2 Cir. 1947), cert. den. 332 U. S. 825, 68 S. Ct. 166, 92 L. Ed. 400 (1947).

Perhaps the most notable of those eases expanding the rights of nontenured teachers is Both v. Board of Regents of State Colleges, supra, a situation closely analogous to that presented herein. Essentially, it held that a nontenured teacher may not be terminated wtihout being accorded a statement of reasons and a hearing. In so ruling great emphasis was placed upon Cafeteria and Restaurant Workers Union, Local 473 v. McElroy, 367 U. S. 886, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1961), which involved the denial of access to a naval installation to a short-order cook who had worked there. The result was the loss of her job. The court held that the governmental action was lawful and that, under the circumstances, a statement of grounds for exclusion and a hearing were not constitutionally mandated. The method of decision is particularly important: First, the court recognized that plaintiff’s due process argument could not be neutralized by the fact that she had no constitutional right to be there initially. However, the court noted that in every case of government impairment of private interests, due process does not require a trial-type hearing and that there must be a degree of flexibility here. And it stated, further, that

* * * consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by government action. [367 U. S. at 895, 81 S. Ct. at 1748]

Applying this balancing formula, the court held that plaintiff’s interest in this specific job, as distinguished from loss of her profession, was outweighed by the governmental interest as proprietor in administering the internal affairs of the base.

In Roth, and in a number of other recent cases, this same mode of analysis has been applied, but the balance has been struck in favor of the teacher, i. e., the private interest. In so doing it has been concluded that a teacher who is not retained loses more than just a specific job; he loses opportunity to pursue his profession effectively and professional esteem. The governmental interest, it is stated, in totally free and independent action with respect to the employment of nontenured teachers is less important. Accordingly, it was held that due process required a hearing and statement of reasons. In the same breath the Roth court conceded that the tenure system had a rational basis that would not be disturbed by its decision.

We agree that the balancing process used in Cafeteria Workers is perhaps the proper approach; we disagree with the result reached in Roth. We fail to understand how the tenure system, which is the legislatively enacted policy of New Jersey and which was approved inferentially in Shelton v. Tucker, supra, can long co-exist alongside the procedures promulgated in Roth.

Under N. J. S. A. 18A:60 — 1 a teacher or professor at a New Jersey educational instilution shall, after serving for a specified period of time, be “under tenure during good behavior and efficiency.” No such person shall be dismissed “except for inefficiency, incapacity, conduct unbecoming a teacher, or other just cause,” N. J. S. A. 18A:60-2, and then only after being afforded a hearing and written statement of charges pursuant to N. J. S. A. 18A:6-10 et seq. To hold that plaintiff, a nontenured teacher, is entitled to a statement of reasons and a hearing is, in our opinion, tantamount to the abolition of a central feature of the tenure system, i. e. non-tenure status. Chief Judge Duffy, in his dissenting opinion on the appeal in Roth, supra, well expressed our concern:

The tenure system, which has been carefully worked out throughout the years, has, at its root, the requirement that a tenured professor can only be dismissed for ‘cause’. The assessment of whether, in fact, cause exists has traditionally included the affording of certain procedural safeguards, such as those now before us. On the other hand, non-tenured personnel has traditionally not been accorded these same protections, and they have known that this was so when they took their jobs. The majority opinion purports not to disturb that carefully worked out distinction, yet, in my view, such will be the end result.

The majority in Both believe that their holding will not upset the tenure system — there would just be a wider spectrum of allowable reasons available for the nonretention of nontenured teachers than for tenured teachers. See District Court opinion in Roth, 310 E. Supp. 972, 978-979 (D. O. E. D. Wis., 1970) . While the idea possesses a simplistic attractiveness, in my view it is unwise, unworkable, costly, and against our public policy. Generally speaking, a board of education or board of trustees is just not equipped to make the type of hairline distinctions necessitated. And what would the end result be? Either the grounds for dismissal of tenured teachers would be relaxed to the detriment of the tenured person, or the nontenured teacher would effectively become tenured de facto. Neither result would reflect our legislatively enacted policy; both would obfuscate the tenure-nontenure dichotomy as presently understood in New Jersey. In our view, the State’s interest in preserving a meaningful tenure system presupposes a freedom of selection in choosing nontenured teachers that outweighs the private interest.

Our conclusion is strengthened by the analogous recent decision of Dunbar v. Kelly, 114 N. J. Super. 450 (App. Div. 1971) , which involved the nonretention of a New Jersey state trooper. State policemen are appointed by the Superintendent for two year terms. In words similar to tenure law applicable to teachers, N. J. S. A. 53 :1 — 8.1 provides:

Any member of the department of state police who has or shall hereafter serve continuously as such member for a period of five years shall thereafter continue in such membership during good behavior. [Emphasis added]

N. J. 8. A. 53:1-8 provides that no officer shall be removed without a preference of charges and a hearing. In Dunbar, the plaintiff trooper was not reappointed after his fourth year of service, i. e., the end of the second contract. He contended that he was entitled to know the reason why and to be granted a hearing. The court found that “non-reappointment” was not “removal” under N. J. 8. A. 53 :l-8, and that to grant plaintiff’s request would effectively extend tenure status to him. In so holding, the court said:

Tbe reasons for failing to reappoint at the end of such periods are irrelevant, since we find that the Legislature has granted complete discretion in the Superintendent to determine a trooper’s suitability for permanent employment, [at 453]

Similarly, we believe that, subject to constitutional and statutory limitations, the board of trustees had complete discretion not to renew Katz’ contract.

In plaintiff’s supplemental trial memorandum it is submitted that, aside from the fact that no reasons were actually given, the testimony adduced at trial failed to disclose any reasonable basis upon which his termination could have been justified. In view of Dunbar, we must find that whether actual reasons were given or “possible” reasons shown to exist, these are two sides of the same coin and in either case irrelevant. To require the board to refute plaintiff’s proofs of his teaching ability is to require it to give reasons, a requirement which would unduly restrict its discretionary function.

There can be no question that the nonretention of a teacher may jeopardize his professional existence; this is indeed unfortunate. Rut is this really any different from the case involving the state policeman? We think not, and by implication at least, the Appellate Division in Dunbar did not feel the loss was so great that due process would require a statement of reasons and a hearing.

The failure to give reasons and a hearing for the refusal to rehire is not arbitrary or unlawful action. Inherent in our legislatively enacted tenure policy is the existence of a probationary period during which the board will have a chance to evaluate a teacher with no commitment to reemploy him. “The Board is not a legal tribunal. It is an employer, and when it decides to hire or not to hire a particular teacher, it is acting “as proprietor, to manage the internal operation’ of the public schools. * * Orr v. Trinter, 444 F. 2d 128, 135 (6 Cir. 1971), citing Cafeteria and Restaurant Workers Union, Local No. 473 v. McElroy, supra, 367 U. S. at 896, 81 S. Ct. 1743. Traditionally, the discretion of the local board has been unfettered; nor has the nontenured teacher expected anything to the contrary. Today, what was a short while ago a seller’s market in teaching talent has become a buyer’s market; no doubt our educational institutions will take this opportunity to upgrade their faculties by replacement and substitution of faculty for better qualified personnel. The end result is, of course, that increasingly large numbers of nontenured teachers will not have their contracts renewed year after year. To require such dismissals to be subject to procedures for tenured teachers would be costly and against the public policy of New Jersey. It would effectively amend our tenure law by judicial fiat. We will not take this step. Until our Supreme Court or the Supreme Court of the United States determines otherwise, we hold that it is the prerogative of a board of trustees to discontinue the employment of a nontenured teacher at the end of his teaching contract with or without reason.

The fourth count of the complaint alleges that defendants failed to fulfill their obligations as trustees under N. J. 8. A. 18A:64A-12(f) and 18A:64A-13, by whose terms the trustees are charged with the appointment of teaching faculty. It is claimed that defendants were ignorant of plaintiff’s teaching record, a knowledge of which was requisite to the proper performance of their duty. We fail to find any merit to this allegation. There is in evidence the fact that the board was briefed by Dr. Apetz on several occasions with regard to Katz. To demand that the board members must of their own make an in-depth investigation or possess first-hand knowledge would impose upon them an intolerable burden. We feel that the trustees acted properly in their considerable reliance upon the president of the college.

A judgment will be submitted in accordance with the opinion expressed herein in favor of all the defendants, without costs.


source: Caselaw Access Project

author: Consodine, J. C. C.

license: Public Domain

text:
    EMIL JOHN SPECK, PLAINTIFF, v. LILLIAN O. SPECK, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided February 28, 1972.

      Mr. David Jerchower for plaintiff (Messrs. Jerchower and Fruchter, attorneys).
   Consodine, J. C. C.

(temporarily assigned). Plaintiff seeks divorce on the ground of separation. N. J. 8. 2A :34r-% (d). The ease is uneontested.

By way of corroboration as to an essential of that provision — -that the parties have lived separate and apart in different habitations for at least 18 or more consecutive months ■ — -plaintiff offers the testimony of a neighbor who has never met and never seen defendant.

Corroboration, as we knew it prior to L. 1971, c. 212, is equally necessary to the grounds of divorce created by that amendment.

In Bolmer v. Edsall, 90 N. J. Eq. 299 (Ch. 1919) Chancellor Walker stated:

* * * There are three essentially requisite things in a divorce suit necessary to be corroborated * * * First, marriage; second, residence; and, third, cause of action, [at 305]
i-< :¡: sj; # $ s¡? $
On this subject of corroboration, especially as it relates to the cause of action in this ease, it may be helpful to observe that corroboration, in order that a divorce may be decreed, need not be testimony given by another or other witnesses to all of the same identical facts to the minutest particulars, but only such facts and circumstances as will make the testimony believable * * *. And corroboration need not be the testimony of witnesses; it may be furnished by surrounding circumstances adequately established * * *. [at 311]

See also 12 N. J. Prac. § 2271 at 446, Orens v. Orens, 88 N. J. Eq. 29 (Ch. 1917) ; Budrick v. Budrick, 6 N. J. Super. 247, 249 (App. Div. 1950); Streader v. Streader, 18 N. J. Super. 433 (App. Div. 1952); Gilbert v. Gilbert, 24 N. J. Super. 473, 481 (Ch. Div. 1953).

Necessarily corroborating testimony here would be opinion predicated on a knowledge of surrounding circumstances.

In the instant case the corroborating witness offered only what the plaintiff had told her. That is not corroborating testimony of this cause of action.

* * * in this posture (plaintiff) may have liberty to take further testimony, or may dismiss this [complaint] without prejudice, as he may be advised. [Bolmer v. Edsall, supra, 90 N. J. Eq. at 312]


text:
    WALTER A. QUINN, PLAINTIFF, v. BESSIE M. QUINN, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided March 6, 1972.

      Mr. Herman Kapp for plaintiff (Messrs. Kapp and Finlcel, attorneys).

      Mr. Gary N. Slcoloff for defendant (Messrs. Slcoloff and Wolfe, attorneys).
   Consodine, J. C. C.

(temporarily assigned). A motion made prior to trial to strike a counterclaim in separation to a complaint on the same ground was renewed at trial. The import of the motion was that since defendant had admitted the allegations of the complaint, she was thus dis-entitled to participate in a dual divorce under N. J. S. A. 2A :34-7.

Plaintiff argues that the pertinent provision of the statute is surplusage because N. J. S. A. 2A:3-t-23, as amended, makes alimony available to either party without regard to fault.

An inference of excess and useless verbiage in a legislative enactment should not be easily entertained by a court. Foy v. Dayco, 82 N. J. Super. 8 (App. Div. 1964); Board of Education, Hackensack v. Hackensack, 63 N. J. Super. 560 (App. Div. 1960).

The rationale of the recent amendments to the Divorce Act {L. 1971, G. 212) is to terminate dead marriages regardless of fault or lack of fault.

* * * The object is to put an end to a situation of the parties which is barren of good, capable of evil, and probably irremediable by any other means. [Barrington v. Barrington, 206 Ala. 102, 194, 89 So. 512, 513 (Sup Ct. 1921).]

The consensus of legal scholars is that termination of dead marriages should be effected by nonfault proceedings, and that the dual decree is more in keeping with the modern view that the inquisitory rather than the adversary process should be employed in divorce proceedings. See Rose, “Non-Fault Divorce in Ohio,” 31 Ohio State L. J. 52 (1910); “Trends i n Divorce Reform: Mitigation of the Fault Concept,” 19 Drake L. R. 139 (1969); Goddard, “Proposal for Divorce upon Petition and Without Fault ” 43 Cal. St. Bar J. 90 (1968); Young, “Separately and Apart,” 5 Australian Lawyer 145 (1964); N. J. Divorce Study Commission Report (May 11, 1910), 5-6.

Note might also be made of the social stigma which seems to attach to the one “against” whom a divorce is rendered and the fact that employment applications, for example, often call for information in this regard. [Annotation 13 A. L. R. 3d 1364, 1367.]

While New Jersey has not abandoned the adversary process, it would seem that in a nonfault case the awarding of a dual decree is desirable to neutralize its adversary character to the ultimate degree, as well as to minimize each spouse’s notion that he or she was victor or wrongdoer.

The trial judge’s traditionally broad discretion in matrimonial eases is recognized in New Jersey. X v. Y, 103 N. J. Super. 218 (Ch. Div. 1968); Wells v. Wells, 41 N. J. 594 (1964); Shore v. Shore, 11 N. J. 23 (1953) ; Strong v. Strong, 138 N. J. Eq. 302 (E. & A. 1946) ; 10 N. J. Practice (Herr-Lodge, Marriage, Divorce & Separation), § 634 at 528-529 (1963). That discretion has already produced a dual decree by this court based on the 18-month separation ground in Indiero v. Indiero, 116 N. J. Super. 193 (Ch. Div. 1911).

On the proof by both parties let there be entered a dual judgment of divorce. Plaintiff’s motion for a summary judgment dismissing the counterclaim is denied. My colleague, Judge Hartman, before whom the pretrial motion was made, concurs in this opinion.


author: Stamler, J. S. C.

text:
    LARANCE VALENT AND JOAN VALENT, GUARDIAN AND NATURAL PARENTS OF ANTHONY VALENT, AMY VALENT, AND COLEEN VALENT, PLAINTIFFS, v. THE NEW JERSEY STATE BOARD OF EDUCATION, NEW JERSEY STATE DEPARTMENT OF EDUCATION, ET ALS., MORRIS COUNTY SUPERINTENDENT OF SCHOOLS, ET ALS., AND PARSIPPANY-TROY HILLS BOARD OF EDUCATION MEMBERS, ET ALS., DEFENDANTS.
    Superior Court of New Jersey-Chancery Division
    Decided March 8, 1972.

      Mr. Frank A. Paglianite, attorney for plaintiffs.

      Mr. Gordon J. Golum, Deputy Attorney General, for defendants, N. J. State Board of Education, N. J. Department of Education, Carl Marburger, Commissioner of Education, members of the State Board of Education and Leslie Y. Rear, Morris County Superintendent of Schools (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney) .

      Mr. Allen W. Bead for defendants Parsippany-Troy Hills Board of Education, George Oldham, Superintendent, John Sheehy, Assistant Superintendent, and individual members of the Parsippany-Troy Hills Board of Education (Messrs. Schench, Price, Smith & King, attorneys).
   Stamler, J. S. C.

Defendants had moved for a dismissal of the complaint on the grounds that the exhaustion of remedies doctrine applied. The motion was denied. The opinion appears at 114 N. J. Super. 63 (Ch. Div. 1971).

After trial had been concluded on January 25, 1972, decision was reserved.

On February 23, 1972 the Supreme Court of New Jersey entered an order in Preston v. Board of Education, Westfield, (Docket 0-272). Preston involved substantially the same issues as did the case at bar. The trial court in Preston had dismissed the complaint for failure of exhaustion of administrative remedies. The Appellate Division reversed and remanded for trial. The Supremo Court granted certification and after oral argument reversed the Appellate Division and affirmed the judgment of the Trial Court.

The action of the Supreme Court overrules what had been decided in Valent.

This court is, of course, obliged to comply with pronouncements of our Supreme Court. See Reinauer Really Corp. v. Paramus, 34 N. J. 406, 415 (1961).

Judgment in favor of defendants and against plaintiffs will be entered dismissing the complaint without prejudice to the prompt prosecution of administrative remedies. No costs.


author: Per Curiam.

text:
    ARLINGTON ASSOCIATES, A NEW JERSEY PARTNERSHIP AND ARLINGTON SHOPPING PLAZA, INC., A NEW JERSEY CORPORATION, PLAINTIFFS-APPELLANTS, v. TOWNSHIP COUNCIL OF THE TOWNSHIP OF PARSIPPANY-TROY HILLS ET AL. DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued January 31, 1972
    Decided March 3, 1972.

      Before Judges Coneobd, Matthews and Eeitz.

      Mr. II. Lee Sarolcin argued the cause for appellants (Messrs. Lasser, Lasser, Sarolcin and Ilochman, attorneys; Messrs. Shepard A. Guryan and Michael D. Boiwin, on the brief).

      Mr. Philip B. Gluclcsman argued the cause for plaintiffs-respondents (Messrs. Gluclcsman and Weitzman, attorneys).

      Mr. Robert O. Garofalo argued the cause for defendants-respondents (Messrs. Ryan, Foster & Garofalo, attorneys).

      Mr. David Simon appeared for defendant-respondent The Planning Board of the Township of Parsippany-Troy Hills.
   Per Curiam.

This is an appeal from the entry of summary judgment in the Law Division, Morris County, in three actions which were consolidated prior to trial. All three actions involve the attempts of plaintiff Arlington Associates to construct a shopping center on property owned by it in defendant township on State Highway 46. The trial judge found that no genuine issue as to material facts existed with respect to the validity of section 401.9 of the township’s zoning ordinance, the validity of the planning board’s approval of plaintiff’s site plan, and the right of citizens to appeal the approval of the site plan by defendant planning board.

We reverse the summary judgment and remand for a plenary trial, with the following observations:

(1) We find no statutory or other basis for the appeal to the governing body from an approval of a site plan by a planning board. The provisions of W. J. 8. A. 40:55-1.19 relate to subdivisions and are intended to apply only to subdivision matters. This conclusion was established in Kotlarich v. Mayor, etc., Ramsey, 51 N. J. Super. 520, 531 (App. Div. 1958).

(2) We conclude that section 401.6 of the township zoning ordinance is in no matter applicable to the situation presented in this case; that section of the ordinance deals with driveways which give access directly onto a public street. That situation is not presented here.

(3) The majority vote of a quorum of a planning board is sufficient íot action by a planning board. It is not necessary that a member of a planning board be present at •every session of the board at which a particular matter is considered in order for that member to be eligible to vote on that matter, unless it is shown that testimony was taken at a hearing at which a voting member was not present, and that testimony was not transcribed for consideration by the absent member. Other evidence, such as maps and written exhibits, may be reviewed by an absent member prior to a •vote being taken. We do not find McAlpine v. Garfield Water Com’n, 135 N. J. L. 497 (E. & A. 1947), or Highpoint, Inc. v. Bloomfield Planning Board, 80 N. J. Super. 570 (Law Div. 1963), rev’d 87 N. J. Super. 58 (App. Div. 1964) apposite. Me Alpine involved testimony and Highpoini involved the vote of several new members of a planning board just elected. The proper rule is that all board members need only be sufficiently informed of all matters before the board prior to a decision so as to insure an intelligently advised vote. See Taub v. Pirnie, 3 N. Y. 2d 188, 165 N. Y. S. 2d 1, 144 N. E. 2d 3 (Ct. App. 1957). On remand thé voté of any member of the planning board in this matter should be examined in light of the principles just enunciated.

(4) We find .the record before us completely deficient for purposes of determining the validity or applicability of the newly adopted section 401.9 of the township zoning ordinance. We have grave doubt, based on what is before us presently, as to the inclusion of “local streets” within the provisions of this section. We have difficulty in justifying the general prohibition of access to a property by a back or side street simply because the property fronts on a “primary arterial road.” This question should be explored at the plenary hearing.

We find no merit to the other points raised on this appeal.

The judgment is reversed and the matter remanded for a plenary trial. ISTo costs.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. HARRY KOCH, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 20, 1971
    Decided March 9, 1972.

      Before Judges Cohfoed, Matthews and Feitz.

      Mr. Gerald P. Boswell, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney; Ms. Benee Bivhis, Assistant Deputy Public Defender, of counsel).

      Mrs. Joyce E. Munhacsi, Assistant Prosecutor, argued the cause for respondent (Mr. John 8. Kuhlthau, Middlesex County Prosecutor, attorney; Mr. Michael B. Perle, Deputy Attorney General, on the brief).
   The opinion of the court was delivered by

Conford, P. J. A. D.

In this appeal from denial of post-conviction relief we find potential merit in only one of the appellant’s contentions — that his conviction in May 1967 fox armed robbery was unconstitutionally flawed by the introduction into evidence by tbe State on his cross-examination of two prior convictions of defendant in South Carolina, one for highway robbery and the other for escape. He is entitled to a new trial if he had no counsel and did not waive counsel on the occasion of such convictions. (The State also confronted defendant with a third prior conviction — for manslaughter — but defendant has admitted he had counsel in that matter.) We And ourselves constrained to conclude that if defendant was uncounseled in the prior convictions, invalidation of the instant conviction is mandated by the clear implication of United States v. Tucker, 404 U. S.-, 92 S. Ct. 589, 30 L. Ed. 2d 592 (U. S. Sup. Ct., Jan. 11, 1972), coupled with the holding and rationale of Burgett v. Texas, 389 U. S. 109, 114, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967), both decided subsequent to defendant’s present conviction. We have had and have considered supplemental briefs from the parties in relation to the effect of Tucker.

Defendant was tried and convicted before a jury in May 1967 on an indictment for armed robbery. The principal witness for the State, Mrs. Morris, identified defendant at a pretrial confrontation and in court as one of two men who robbed her in her home. Defendant testified in denial of his complicity in the crime, and gave an alibi, with purported support of two witnesses. On cross-examination, he admitted prior convictions in South Carolina for escape and for highway robbery, the latter in 1949 when he was 17 (as well as the aforesaid manslaughter conviction in 1951). -There were defense objections, but not on the ground of lack of counsel at the time of the prior convictions. In accordance with our settled law, the trial judge instructed the jury that the prior convictions could be considered by them to weigh against defendant’s credibility. N. J. 8. 2A:81-12.

In sentencing defendant to 10 to 13 years imprisonment, the trial judge alluded to defendant’s record and said that “crime evidently is a way of life with you” and that defendant was a “hardened criminal.”

On direct appeal to this court defendant argued error on the ground, among others, that he was uncounseled at the time of the prior convictions and that the BurgeU case, supra (decided November 13, 1967), mandated a reversal. We affirmed the conviction on October 4, 1968. As to the point here under consideration we said (in an unpublished opinion) :

2. The contention of error in admission of prior convictions to affect credibility, insofar as based on the recent decision of the United States Supreme Court in Burgett v. Texas, [389 U. S. 109, 88 S. Ct. 2581, 19 L. Ed. 2d 339 (1967), is not available on the record of this appeal as that record fails to show defendant was not represented on the earlier conviction, or, if unrepresented, that he had failed to waive counsel. IVe therefore need not inquire whether the reach of the Burgett case extends to use of prior convictions (without counsel) only to affect credibility, or whether the doctrine of that ease is retroactive.
Our disposition of this appeal is without prejudice to any post-conviction proceeding- the defendant may bring.

Our Supreme Court denied certification February 13, 1969, 53 N. J. 348, and the United States Supreme Court denied certiorari June 9, 1969, 395 U. S. 949, 89 S. Ct. 2030, 23 L. Ed. 2d 469.

Thereafter defendant instituted this proceeding for post-conviction relief, the petition containing a sworn verification by him that prior convictions were used against him at his trial in which convictions he was “without assistance of counsel and counsel was not waived.”

At the post-conviction hearing counsel for defendant offered to have him testify that he was without counsel at either the highway robbery or escape prosecutions. The State represented to the court that its own investigation of the South Carolina court records failed to reveal any information which would permit it to controvert the defendant’s representations as to absence of counsel. Thereupon the court declined the proffer of testimony, saying: “For the record, * * * I assume that defendant was [sic] in court here and will testify that he did not have counsel at either one of those convictions.” Therefore, the judge noted later in the proceedings, the “requirement of some evidence [was] moot.” After argument the court declined post-conviction relief essentially on the grounds that defendant should have made his objection to the invalidity of the prior convictions at his trial and that in any event BurgcLi was either not applicable or not retroactive in effect.

The State’s interest in the integrity of the instant conviction should have dissuaded the trial court from stipulating the truth of defendant’s representations as to absence of counsel without requiring him to testify to that effect, as he offered to do. Moreover, the stipulation did not expressly cover waiver of counsel, which could have been readily settled by having defendant interrogated as to whether he was advised of his right to counsel and that counsel would be provided for him if he was indigent. Despite the fact that the certified copies of the judgments of the escape and highway robbery convictions, apparently used at the trial and presently submitted to us, are silent as to representation; that waiver of counsel is not presumable from a “silent record,” Carnley v. Cochran, 369 U. 8. 506, 512, 82 S. Ct. 884, 8 L. Ed. 2d 70 (1962), and that courts “indulge every reasonable presumption against waiver of constitutional rights,” id. at 514, 82 S. Ct. at 889; Johnson v. Zerbst, 304 U. S. 458, 464-465, 58 S. Ct. 1019, 82 L. Ed. 1461 (1937), we deem the proper course of justice to require a remand for testimony and findings on the questions of presence of counsel and waiver. The remainder of this opinion proceeds on the assumption that absence of counsel and non-waiver thereof will be established on the remand, within the evidentiary principles just alluded to. If not, the conviction will be affirmed.

I. The reach of Burgett to impeachment of credibility.

Burgett took the position that a Texas repetitive-offender type statute could not be activated to enhance punishment where the prior convictions sought to be used for that purpose had been obtained without defendant’s representation by counsel, or waiver thereof, in violation of Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). Even though, after the prior convictions were laid before the jury, the trial court instructed the jury to disregard them and did not permit enhancement of penalty, the Supreme Court reversed, holding the admission of the prior convictions was “inherently prejudicial.” 389 U. S., at 115, 88 S. Ct. 258 at 262. The court said that “ft]o permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guill or enhance punishment for another offense * * * is to erode the principle of that case.” (Emphasis ours).

In Tucker, supra, the court was confronted with a situation wherein the defendant had been tried in a federal district court in 1953 for armed bank robbery. Three prior convictions were adduced by the Government to impeach defendant’s credibility on cross-examination. Moreover, considerable emphasis was placed on the convictions by the sentencing judge in imposing a maximum 25-year sentence. Defendant filed a motion collaterally attacking the conviction 16 years later, claiming he had not been represented by counsel in the criminal proceedings culminating in the convictions used to impeach his credibility — and that the use of such convictions therefore tainted the subject conviction. The district judge agreed with the contention of error (see 404 U. S. at 445, 92 S. Ct. at 591, 30 L. Ed. 2d at 595), but found it harmless beyond a reasonable doubt because of the overwhelming evidence of defendant’s guilt at the trial of the armed bank robbery case. On appeal the Court of Appeals for the Ninth Circuit agreed with the district court on the point of harmless error (and, by clear implication, on the error in the use of the prior convictions at trial), but remanded for resentencing on the ground of reasonable probability that the consideration at sentencing of the defective prior convictions had led the trial judge to impose a heavier sentence than otherwise he would have. Tucker v. United States., 431 F. 2d 1292 (1970).

The United States Supreme Court explicitly agreed with the result and rationale of the Ninth Circuit, and affirmed. To us it is inescapable that the court agreed with the conclusion of both the district court and the court of appeals that the use of the prior convictions to impeach credibility would have invalidated the subject conviction, within the-rationale of Burgett, even though asserted in post-conviction proceedings 16 years later, had it not been for the neutralizing factor of harmless error beyond a reasonable doubt. •

The courts of California anticipated Burgett in relation to use of uncounseled prior convictions to enhance punishment under an habitual offender statute, in In re Woods, 64 Cal. 2d 3, 48 Cal. Rptr. 689, 409 P. 2d 913 (Sup. Ct. 1966); and, in relation to impeachment of a defendant’s credibility, they anticipated the implication of Tucker, supra, in People v. Coffey, 67 Cal. 2d 204, 60 Cal. Rptr. 457, 430 P. 2d 15 (Sup. Ct. 1967); and see In re Dabney, 71 Cal. 2d 1, 76 Cal. Rptr. 636, 452 P. 2d 924 (Sup. Ct. 1969). It has also been assumed by other courts, prior to Tucker, that the rationale of Burgett extends to impeachment situa-tions. Johnson v. State, 9 Md. App. 166, 263 A. 2d 232 (Ct. Sp. App. 1970); Subilosky v. Commonwealth, 265 N. E. 2d 80 (Mass. Sup. Jud. Ct. 1970); Gilday v. Scafati, 428 F. 2d 1027 (1 Cir. 1970) ; cf. Tucker v. Craven, 421 F. 2d 139 (9 Cir. 1970).

We are of the view, which the clear implication of the opinion of the Supreme Court in Tucker fortifies, that the use of defendant’s uncounseled prior convictions to attack his credibility at the instant trial impaired his rights under the Sixth and Fourteenth Amendments. Undoubtedly, the prior convictions were used “to support guilt,” within the formulation of Burgett,, since their potential disparagement of defendant’s credibility as a witness went to the issue of Ms guilt or innocence of the crime charged against him.

II. Retroactivity of Burgett

This question has two facets, which are somewhat interrelated. The first is whether defendant could invoke Burgett in the present post-conviction proceedings, within the intent of R. 3:22 regulating post-conviction relief. The second is whether general principles of retroactivity of newly adjudicated federal constitutional rights are compatible with the allowance of the instant attack. As noted, the second question was expressly left open in our affirmance of the conviction on direct appeal.

R. 3:22-3 provides that post-conviction relief is not a substitute for direct appeal. Defendant did not offend this rule, for he tried to raise the Burgett point on appeal. R. 3 :22-4 provides that “any ground for relief not raised * * * in the proceedings resulting in the conviction * * * is barred from assertion in a proceeding under this rule unless * * * the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or * * * denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.”

The ruling of the post-conviction court that defendant should have proven his lack of representation in the prior convictions at the time of trial of the instant case is manifestly unsound since Burgett had not then been decided nor had an equivalent determination been made by any New Jersey court. He did raise the point at Ms first subsequent judicial opportunity —■ the direct appeal.

The State now urges that the Burgett principle had been enunciated, prior to the instant trial, in Greer v. Beto, 384 U. S. 269, 86 S. Ct. 1477, 16 L. Ed. 2d 526 (1966), so that defendant should have known of the incompetence of the prior convictions at the trial herein. We disagree. Greer is a short, uninformative per curiam, obviously intelligible only to the court itself and the parties in the case. Defendant cannot be faulted for not having invoked it at his trial. We conclude that nothing in R. 3 :22 precludes the instant post-conviction attack.

We further conclude that the rule of retroactivit3r here appropriate is that applied in this kind of situation by the California Supreme Court in In re Dabney, supra (71 Cal. 2d 1, 76 Cal. Rptr. 636, 452 P. 2d 924). That court selected its previous decision in In re Woods, supra, as sufficiently adumbrating the constitutional inefficacy in later criminal proceedings of uncounseled prior convictions, so as to warrant limiting the availability of the rule to subject criminal convictions not yet final3 at the date of the decision in Woods. (76 Cal. Rptr. 636, 452 P. 2d 924). This is the same rule of retroactivity as the Supreme Court has applied in relation to illegal searches, Linkletter v. Walker, 381 U. S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965), and to improper comments by a prosecutor upon a defendant’s failure to testify, Tehan v. United States ex rel. Shott, 382 U. S. 406, 86 S. Ct. 459, 15 L. Ed. 2d 453 (1966). Compare the more restrictive rules of retroactivity applied in Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967) (requirement of counsel at a lineup identification), and in Johnson v. New Jersey, 384 U. S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966) (as to the Miranda and Escobedo rules).

Erom the procedural history of Tucker, supra, and the opinions of the court of appeals and the Supreme Court in that case, it is possible to argue full retroactivity in relation both to use of prior convictions to impeach and to affect sentencing discretion.4 Apparently also holding for full retro-activity is Gilday v. Scafati, supra. The involvement of Gideon v. Wainwright, 'supra, which is fully retroactive, in the genesis of Burgett, also argues for full retroactivity. At least that factor, added to the consideration that use of the invalid prior convictions plainly implicates the “integrity of the fact-finding process,” see Linkletter v. Walker, supra, 381 U. S. at 639, 85 S. Ct. at 1743, and Johnson v. New Jersey, supra, 384 U. S. at 728, 86 S. Ct. 1772, 1778 and “the clear danger of convicting the innocent,” ibid, strongly bespeaks the choice here of no more restrictive rule of retro-activity than that applied in Linkletter and Tehan, both supra.

3“]Tinal,” meaning upon expiration of time to file direct review proceedings. 76 Cal. Rptr. at 642, 452 P. 2d at 930.
4Full retroactivity is applied when the invalid prior conviction is used to enhance punishment under an habitual offender statute. Oswald v. Crouse, 420 F. 2d 373 (10 Cir. 1969) ; Losieau v. Sigler, 406 F. 2d 795 (8 Cir. 1969) ; Williams v. Coiner, 392 F. 2d 210 (4 Cir. 1968).

Wo are fully persuaded of the justice of applying here the stated intermediate rule of retroactivity by the discussion by the Supreme Court of California in Dabney, 'supra, of the three criteria reiterated in Stovall, supra, 388 U. S. at 297, 87 S. Ct. at 1970, “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.”

In choosing the intermediate standard the California court said:

(a) Purpose of the Woods-Goffey Rules
One purpose of the Woods-Coffey rule is to prevent erosion of Gideon itself by protecting the accused from suffering anew from the initial deprivation of his Sixth Amendment right. (Burgett v. Texas, supra, 389 U. S. 109, 115. 116, 88 S. Ct. 258, 19 L. Ed. 2d 319.) But the exclusion of invalid priors is also aimed at protecting the fairness of the second trial. The requirement of counsel established by Gideon v. Wainwright, supra, 372 U. S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, receives full retroactive effect because ‘[t]he basic purpose of a trial is the determination of truth, and it is self-evident that to deny a lawyer’s help through the technical intricacies of a criminal trial * * * is to impede that purpose and to infect a criminal proceeding with the clear danger of convicting the innocent.’ (Tehan v. United States ex rel. Shott (1966) 382 U. S. 406, 416, 86 S. Ct. 459, 465, 15 L. Ed. 2d 453). To the extent that such an infected prior conviction contributes to a later conviction, the danger threatens that the second proceeding as well as the first, on which it relied, will produce the conviction of an innocent man. Our inquiry does not stop here, however; we must also weigh the application to the present proceeding of the two other factors mentioned in Stovall.
(b) Reliance on Pre-Woods Standards
A limited retroactivity approach in the instant case is supported by those other Stovall considerations. Before Woods, prosecutors, in order to impeach defendants testifying on their own behalf, often introduced at trial prior convictions, some of which were invalid under Gideon. In reliance on our position before Woods, prosecutors, as well as defendants and courts, did not attempt to ascertain the constitutional validity of those priors. (Compare Tehan v. United States ex rel. Shott, supra, 382 U. S. 406, 410-413, 86 S. Ct. 459; Johnson v. New Jersey (1966) 384 U. S. 719, 731, 86 S. Ct. 1772, 16 L. Ed. 2d 882.) Unlimited retroactivity here would compel the courts to hold hearings as to the validity of priors in many cases not covered by the Woods retroactivity with regard to priors used for sentencing purposes. (Compare Linkletter v. Walker, supra, 381 U. S. 618, 637, 85 S. Ct. 1731, 14 L. Ed. 2d 601.)
(c) Administration, of Justice
Most significantly, unlimited retroactivity in the instant case would impose grave burdens on the administration of criminal justice. It would result in ‘the reconsideration of 'countless cases that were correctly decided under the law in force at the time of trial; in many such eases witnesses and evidence would no longer be available. Many hardened and dangerous criminals would glean the greatest profit from unlimited retroactivity; they serve lengthy sentences imposed long ago; their eases thus offer the least likelihood of successful retrial. To require a general release of prisoners of undoubted guilt would be to cripple the orderly administration of the criminal laws.” (In re Lopez (1965) 62 Cal. 2d 368, 381, 42 Cal. Rptr. 188, 198, 398 P. 2d 380, 390; see Johnson v. New Jersey, supra, 384 U. S. 719, 731, 86 S. Ct. 1772, 16 L. Ed. 2d 882; Tehan v. United States ex rel. Shott, supra, 382 U. S. 406, 419, 86 S. Ct. 459, 15 L. Ed. 2d 453.) Although most California prior convictions probably would remain valid, since this state has long required counsel in felony prosecutions, a very significant fraction of the prior convictions introduced in California prosecutions were obtained in other jurisdictions which did not so anticipate Gideon.
Accordingly, we restrict retroactivity to those cases which became final after our decision in Woods. Such limited retroactivity will involve only a small number of cases; in those cases which must be retried the 'evidence will still be fresh. (Compare Tehan v. United States ex rel. Shott, supra, 382 U. S. 406, 409 fn. 3, 86 S. Ct. 459; Linkletter v. Walker, supra, 381 U. S. 618, 639, 85 S. Ct. 1731; In re Gaines (1965) 63 Cal. 2d 234, 45 Cal. Rptr. 865, 404 P. 2d 473; In re Lopez, supra, 62 Cal. 2d 368, 42 Cal. Rptr. 1S8, 398 P. 2d 380.) Although in Stovall v. Denno, supra, 388 U. S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199, and Johnson v. New Jersey, supra, 384 U. S. 719, 86 S. Ct. 1772, the Supreme Court applied a more restrictive form of retroactivity, those cases may be distinguished from the instant issne. They dealt, not with the establishment of a new guarantee or with a new limitation on the impact of a prior constitutional violation, but with prophylactic rules to protect suspects from possible violations of already recognized rights. [76 Cal. Rntr. at 640, 452 P. 2d at 928-929]

We approve and adopt the foregoing rationale as essentially onr own, although recognizing that no fully consistent reconciliation of the opinions of the United States Supreme Court on retroactivity of new constitutional doctrine is possible. We therefore hold that the Burgeti-Tucker rule is available to any defendant whose conviction was not final (time for all direct review not having expired) on November 13, 1967, the date of the Burgeti decision.

Koch’s conviction not having become final on direct review until after the enunciation of Burgett, he is entitled to its benefit in this post-conviction proceeding.

III. Harmless Error Beyond a Reasonable Doubt

It remains to be considered whether use of the offensive prior convictions can be overlooked as harmless error beyond a reasonable doubt, as did the several courts in the Tucker case in relation to the illegal use of the prior convictions to impair defendant’s credibility at trial. See Chapman v. California, 386 U. S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). The State argues for the affirmative of that proposition, adding that defendant’s credibility was already somewhat impeached, and nnexceptionably, by the prior conviction for manslaughter.

As to the latter observation, we cannot feel beyond a reasonable doubt that the potential impact on defendant’s credibility of three prior convictions was not substantially gxeater than of one of them alone, especially when one of the invalid ones was for highway robbery and the instant charge was armed robbery.

Eor can we conclude that the evidence against defendant here, aside from the prior convictions, was so overwhelming against him that it is beyond any reasonable doubt that the invalid convictions played no part in the verdict of guilt. The issue at trial was basically a contest of credibility between the victim of the robbery, who identified him as one of the culprits, and defendant himself, who testified he was elsewhere. We cannot be at all sure that the invalid prior convictions, particularly the one for highway robbery, did not play a substantial part in the jury’s deliberations. We must therefore reject the argument of harmless error.

IV

In his supplemental brief filed after rendition of the Supreme Court decision in Tuclcer, defendant takes advantage of the direct holding there — that the taldng into consideration by the sentencing judge of Tucker’s prior uncounseled convictions in exercising his discretion as to the quantum of sentence, was unconstitutional — by attacking the sentence here, for the first time, on the same ground. We need not pass upon the availability of that contention now, since, if the prior convictions are found on remand to have been uncounseled (and without wavier), the sentence will be vacated along with the conviction. In such event, and a new conviction of defendant upon retrial, it will of course be improper under Tuclcer for the sentencing court to give any consideration to the uneounseled convictions in fixing sentence.

Reversed and remanded for futher proceedings in accordance with this opinion. The remand should be executed and the findings and record thereof returned to this court within 45 days of the filing of this opinion. We retain jurisdiction to enter final judgment in the appeal.

      The other contention, as to improper identification procedures, is without merit.

      As explained hereinafter, there must be a remand to establish' the facts of nonrepresentation and absence of waiver.

      Where the Dabney opinion refers to “Woods” or “Woods-Coffey,” tlie reader should transpose, for our purposes, “Burgett.”

      However, defendants tried subsequent to November 13, 1967 presumably would be barred, under R. 3 :22-4, from later raising Burgett-Tuclcer if no objection was made at trial on that ground.


text:
    BOARD OF EDUCATION OF THE CITY OF UNION CITY, IN THE COUNTY OF HUDSON, A BODY CORPORATE, OF THE STATE OF NEW JERSEY AND JOSEPH D. LUGOSCH, JR., PLAINTIFFS-APPELLANTS, v. THE CITY OF UNION CITY, IN THE COUNTY OF HUDSON, A BODY CORPORATE AND POLITIC, OF THE STATE OF NEW JERSEY, HARRY M. CALANDRILLO, JR., WILLIAM J. MEEHAN, JAMES E. LAGOMARSINO, PAUL J. LOMBARDO, AND FRANK X. CLARK, INDIVIDUALLY AND ACTING AS AN INVESTIGATING COMMITTEE TO EXAMINE ANY AND ALL OFFICIALS, OFFICERS AND EMPLOYEES OF THE CITY OF UNION CITY IN RELATION TO THE DISCHARGE OF HIS OR THEIR OFFICIAL DUTIES OR CONDUCT, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted March 7, 1972
    Decided March 16, 1972.
    Before Judges Labeecqub, Kolovsky and Allcobn.

      Mr. Nicholas O. Montenegro for appellants.

      Mr. Victor P. Mullica for respondents.
   Per Curiam.

The judgment of the Law Division is affirmed substantially for the reasons set forth in the reported: opinion of Judge Larner, 112 N. J. Super. 498. See Board of Trustees of Free Public Library v. Union City, 112 N. J, Super. 484 (Law Div. 1970), affd 116 N. J. Super. 186 (App. Div. 1971).


author: Allcorn, J. S. C.

text:
    IN THE MATTER OF PATTIE B. TROTT, A MENTAL INCOMPETENT.
    Superior Court of New Jersey Chancery Division
    Decided March 2, 1972.

      Mr. John Ferguson, attorney for plaintiffs.

      Mr. George Warren, guardian ad litem, pro se.

   Allcorn, J. S. C.

The present proceeding has been brought by American National Bank & Trust of New Jersey, the guardian of this incompetent, jointly with her sole apparent next of kin and heirs at law. It seeks the authority of the court to permit the guardian currently to transfer assets of a value of $100,000 from the principal of the incompetent’s estate to the individual plaintiffs by outright gift. In addition, -authorization is sought to permit the guardian to make gifts of $3,000 to each of the individual plaintiffs for the year 1971 and for each subsequent year during the lifetime of the incompetent. A guardian ad liiem was appointed to represent the interests of the incompetent in this proceeding.

According to the pleadings and the evidence adduced at the hearing, the incompetent is presently 85 years of age and is suffering from a condition which is such that the likelihood •of her being restored to competency is extremely remote. She is being cared for in a private nursing home, where the annual cost of her maintenance approximates $10,000. Deference to the Table of Life Expentancy (Appendix I of the Rules Governing the Courts (1969)) indicates that the incompetent has a present life expectancy of 4.71 years.

It further appears that, as of December 31, 1971, the corpus of the estate of the incompetent had a market value in excess of $700,000 and was producing an annual income in the neighborhood of $18,500. Gerrit A. Klop, a vice-president and trust officer of the guardian, testified that by reason of the nature of the securities in which the estate was invested and the type of securities which the guardian contemplated would be transferred to the donees in consummation of the proposed gift of $100,000, the transfer would result in a reduction of income estimated to be only $1,500 annually, at present rates. It was his further opinion that the assets remaining and the income therefrom would be more than adequate to meet amply all conceivable needs of the incompetent until her death.

Mrs. Trott was adjudicated an incompetent by the Essex County Court by order dated April 30, 1971. The most recent will executed by her prior to the onset of her mental incapacity is dated June 24, 1964. Although there also has been found among her papers a codicil dated September 18, 1967, which purports to be a codicil to a will “bearing date the 18th day of September, 1967,” it would effect no change in the ultimate distribution of her estate, even if valid.

By the terms of the will of June 24, 1964, the incompetent’s entire estate is left outright — one-half to plaintiffs Andrew S. Brazwell III and Walter S. Brazwell (grandchildren of the incompetent), and one-half to the incompetent’s daughter, Laura B. Martin. Mrs. Martin has since died and is survived by her two children, plaintiffs Alexander Martin and Pat tie Armesto. Hence, inasmuch as the incompetent has no living descendants other than the four individual plaintiffs (and their descendants), only plaintiffs and their descendants can have any interest in the incompetent’s estate at her death, N. J. 8. A. 3A:3-13 and 14 — barring the remote and highly unlikely possibility that the incompetent is survived by none of her grandchildren and their descendants.

Concededly, the principal if not the sole reason for this application is the possible saving of death taxes. Klop estimated that were the proposed gift of $100,000 to be authorized and consummated, the resultant savings on death taxes might amount to as much as $20,000. Thus, the application poses two issues: (1) does the court have the power to authorize a guardian to make a gift of a part of the estate of an incompetent for the purpose of minimizing death taxes, and (2) if so, should such power be exercised under the circumstances here present?

Generally speaking, the powers and authority of the guardian of an incompetent with respect to the administration of the estate of the incompetent are found in N. J. S. A. 3A:6-36. That statute charges the guardian to take possession of the incompetent’s “real and personal property and see to it that no waste or destruction of his real property is done * * * and [to] apply his personal property and the rents and profits of his real property so as properly to support the * * * incompetent.” Within specific and circumscribed limits the court is empowered by statute to authorize the use of the incompetent’s assets for the maintenance and support of the incompetent’s “household, family, spouse, child or children,” N. J. S. A. 3Á :20-3, 5, 6 and 10; and where the income of the incompetent’s estate is more than sufficient for the proper support of “himself, his household, family, spouse, child or children,” the court may also authorize the use of not more than two-thirds of any surplus income for the support or education of the “parents, brothers or sisters” of the incompetent “who are without adequate means of support and dependent on the bounty of others.” N. J. S. A. 3A :20-4; In re Groebe, 49 N. J. Super. 111 (Ch. Div. 1958).

Although a review of the applicable statutes discloses no express authority for the guardian of an incompetent to dispose of a portion of the incompetent’s estate in the manner here proposed, the power to grant such authorization in a proper case inheres in a court of chancery by virtue of its position as protector and general guardian of all persons under disability. Under the doctrine of parens patriae the court, as representative of the sovereign, may intervene in the management and administration of an incompetent’s estate in a given case for the benefit of the incompetent or of his estate. See Johnson v. State, 18 N. J. 422, 430 (1955); State v. Perricone, 37 N. J. 463 (1962); East Paterson v. Karkus, 136 N. J. Eq. 286, 288 (Ch. 1945).

The precise issue here presented has been considered by the courts of a limited number of other jurisdictions. Of them, all but one have reached the conclusion that the court possesses the inherent power to so authorize the guardian and, given the appropriate circumstances, the court will exercise such power. The conclusion is founded upon the thesis that, in the management of the estate of the incompetent, “the guardian should be authorized to act as a reasonable and prudent man would act [in the management of his own estate] under the same circumstances, unless there is evidence of any settled intention of the incompetent, formed while sane, to the contrary.” In re Guardianship of Christiansen, 248 Cal. App. 2d 398, 56 Cal. Rptr. 505, 521 (D. Ct. App. 1967). Cf. Potter v. Berry, 53 N. J. Eq. 151 (E. & A. 1895).

As succinctly stated by the California court:

It is concluded that the courts of this state, in probate proceedings for the administration of the estates of insane or incompetent persons, have power and authority to determine whether to authorize transfers of the property of the incompetent for the purpose of avoiding unnecessary estate or inheritance taxes or expenses of administration, and to authorize such action where it appears from all the circumstances that the ward, if sane, as a reasonably prudent man, would so plan his estate, there being no substantial evidence of a contrary intent. [56 Gal. Reptr. at 522-523]

Accord: In re DuPont, 41 Del. Ch. 300, 194 A. 2d 309 (Ch. 1963) ; In re Morris, 281 A. 2d 156 (N. H. Sup. Ct. 1971); In re Carson, 39 Misc. 2d 544, 241 N. Y. 8. 2d 288 (Sup. Ct. 1962); In re Groff Estate, 38 Pa. Dist. & Co. R. 2d 556 (1965). Cf. In re Johnson, 111 N. J. Eq. 268 (Ch. 1932) ; In re Brice’s Guardianship, 233 Iowa 183, 8 N. W. 2d 576 (Sup. Ct. 1943); In re Buckley’s Estate, 330 Mich. 102, 47 N. 17. 2d 33 (Sup. Ct. 1951); In re Trusteeship of Kenan, 262 N. C. 627, 138 S. E. 2d 547 (Sup. Ct. 1964). Contra: In re Neal, 406 S. W. 2d 496 (Tex. Civ. App. 1966).

In still another jurisdiction (Massachusetts) legislation has been adopted specifically empowering the court to authorize a guardian “to apply such funds as are not required for the ward’s own maintenance and support towards the establishment of an estate plan for the purpose of minimizing current or prospective state or federal income, estate and inheritance taxes in the ward’s estate or for gifts to such charities, relatives and friends as would be likely recipients of donations from the ward.” (Mass. Slat. 1969, c. 422).

In a case brought pursuant to that statute, in which an incompetent’s guardian sought authority to make gifts out of the incompetent’s property consisting of $33,000 to the guardian herself (she being the only child of the incompetent) and $3,000 each to the two daughters and four granddaughters of the guardian, the Supreme Judicial Court of Massachusetts upheld the constitutional validity of the statute. Strange v. Powers, 260 N. E. 2d 704 (1970). The court found, further, that even though the statute contained no express authority therefor, the guardian herself properly could be the recipient of a gift. After a review of various of the decisions in other jurisdictions, the court stated:

We agree with the modern trend of cases both in. England and in the United States. There is no reason why an individual, simply because he happens to be a ward, should be deprived of the privilege of making an intelligent commonsense decision in the area of estate planning, and in that way forced into favoring the taxing authorities over the best interests of his estate. * * * [at 709]

See also, Annotation, “Power to make charitable gifts from estate of incompetent,” 99 A. L. R. 2d 946 (1965) ; Annotation, “Power of court or guardian to make noncharitable gifts or allowances out of funds of incompetent ward,” 24 A. L. R. 3d 863, § 16 at 901 (1969).

The reasoning and the conclusion of the majority are most persuasive and compelling, logically and legally. This court is in complete accord with both, and subscribes to the rule as stated by the California District Court of Appeals in Christiansen, set forth above.

The remaining issue — i. e., whether the court should exercise its power in this ease so as to grant to the guardian the authority to make the gifts proposed — likewise must be answered in the affirmative. The factual situation here more than satisfies each of the qualifying criteria: (1) the mental and physical condition of the incompetent are such that the possibility of her restoration to competencj'' is virtually nonexistent; (2) the assets of the estate of the incompetent remaining after the consummation of the proposed gifts are such that, in the light of her life expectancy and her present condition of health, they are more than adequate to meet all of her needs in the style and comfort in which she now is (and since the onset of her ineompetency has been) maintained, giving due consideration to all normal contingencies; (3) the donees constitute the natural objects of the bounty of the incompetent by any standard — not only do they compose her sole existing primary descendants, but at this moment, if they survive, they are in fact the only beneficiaries who will share under her will (two of them having been specifically designated, and the other two succeeding to the interest of their deceased mother, the designated beneficiary of the remaining one-half) ;x (4) the transfer will benefit and advantage the estate of the incompetent by a reduction of death taxes; (5) there is no substantial evidence that the incompetent, as a reasonably prudent person, would, if competent, not make the gifts proposed in order to effectuate a saving of death taxes.

lln passing it should be noted that the court recognizes that the persons who constitute the beneficiaries of the incompetent’s estate at the time of her death may well not be the same as those who today are the beneficiaries apparent, depending upon whether the latter survive the incompetent; and, consequently, that any distribution of the incompetent’s assets such as is currently proposed may result in a devolution of said assets different from that which will occur on the death of the incompetent.
The sole person in interest here is the incompetent. The exclusive concern of the court in this proceeding is the benefit and advantage of the incompetent and her estate. And if, as here, the court concludes that the incompetent, as a reasonably prudent competent person, would have made the gifts proposed in order to minimize death taxes, the remote, contingent expectation of the substitutionary beneficiaries cannot be permitted to frustrate this reasonably probable act of the incompetent. Just as the expectancy of any possible or probable beneficiary of a competent person is subject to complete or partial defeat as the result of the act of that person during his lifetime, so here. Cf. R. 4:26-3, and Tentative Draft Comment thereon; In re Trusteeship of Kenan, 262 N. C. 627, 138 S. E. 2d 547, 554 (Sup. Ct. 1964). Compare, 3 Restatement, Property, “Future Interests,” § 315 (1940).

Accordingly, the guardian is authorized to transfer currently to each of the four individual plaintiffs out of the assets of the estate of the incompetent, the sum of $25.000. In addition, approval is hereby given to transfer to each of said plaintiffs of the sum of $3,000 for the year 1971 (heretofore transferred); the sum of $3,000 during the year 1972; and the sum of $3,000 during the year 1973 —• provided the incompetent is still living at the time of the respective transfers and the annual individual gift tax exemption under federal law is not reduced below $3,000 annually, per individual donee. Jurisdiction will be retained so that the guardian may apply for authority to make additional gifts for the year 1974 and succeeding years should the incompetent survive and should circumstances then extant warrant the making of such application.

      Compare the criteria as set forth in chapter 422 of Massachusetts Statutes of 1969:
      The conservator or guardian in his application shall briefly outline the proposed' estate plan, what it may accomplish and the likely tax savings to accrue. The plan may include gifts of the ward’s personal property or real estate, but transfers of real estate shall be subject to the requirements of chapter two hundred two. Gifts may he for the benefit of prospective legatees, devisees or heirs apparent of the ward or may be made to individuals or charities in which the ward is believed to have an interest. The conservator or guardian shall also indicate in the application that any planned disposition is consistent with the intentions of the ward insofar as they can be ascertained, and if the ward’s intentions cannot be ascertained, the ward will be presumed to favor reduction in the incidence of the various forms of taxation and the partial distribution if his estate as herein provided. The conservator or guardian shall not, however, be required to include as a beneficiary any person whom he has reason to believe would be excluded by the ward.


author: Lane, J. S. C.

text:
    WICKATUNK VILLAGE, INC., A BODY CORPORATE OF THE STATE OF NEW JERSEY, PLAINTIFF, v. TOWNSHIP OF MARLBORO, DEFENDANT. THE TOWNSHIP OF MARLBORO, IN THE COUNTY OF MONMOUTH, A MUNICIPAL CORPORATION OF NEW JERSEY, PLAINTIFF, v. WICKATUNK VILLAGE, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT.
    Superior Court of New Jersey Law Division Superior Court of New Jersey Chancery Division
    Decided March 1, 1972.

      Mr. John Warren for Wickatunk Village, Inc. (Messrs. Parsons, Ganzona, Blair & Warren, attorneys).

      Mr. Herbert B. Bierman for the Township of Marlboro.
   Lane, J. S. C.

These matters have been consolidated and are before the court on final hearing.

Wickatunk Village, Inc., in its complaint in lieu of prerogative writs, challenges the validity of a statutory denial under N. J. 8. A. 40:55-39.1 of a variance recommended by the board of adjustment under N. J. 8. A. 40:55-39(d) to construct and operate a tertiary sewerage treatment plant in a residential zone. In the Chancery Division action Marlboro seeks an injunction to prohibit the use of the treatment plant and for an order to move the plant.

Testimony was taken before the board of adjustment on the application for a variance. Wickatunk Village, Inc. is the owner of premises consisting of 43.5 acres located in an R-3 residential zone. It operates a mobile home trailer park on a 15-acre portion of the premises by virtue of a judgment of this court in Docket No. C-1641-57 (P.W.) adjudging the use of the 15 acres for mobile homes to be a nonconforming use.

At some time before April 15, 1970 Wickatunk constructed the tertiary sewerage treatment plant outside the 15-acre mobile home portion of the premises at a cost of approximately $60,000. The plant replaced septic tanks which had not been operating properly and through which raw sewerage had flowed into a stream known as Bailey’s Brook. No building permit or variance was obtained. It is perfectly obvious that the municipal officials were fully aware of the construction while it was going on. The plant was inspected and approved by the executive officer of the township’s Division of Health. Although the complaint in the Chancery Division action was filed April 15, 1970, on April 30, 1970 the Marlboro Township Municipal Utilities Authority adopted a resolution approving plans for the sewerage plant.

During the construction the township administrator visited the site, and other officials were aware of the construction. To move the sewerage plant would cost $30,000 and take six weeks, during which all 104 families in the trailer park would have to move out.

The board of adjustment adopted a resolution recommending to the governing body that a variance be granted.

The sewerage treatment plant as constructed was approved by the Division of Environmental Quality, New Jersey Department of Environmental Protection; by the New Jersey Department of Health and by the Division of Health of the township. After making basic findings of fact, the board of adjustment found that Wickatunk had shown special reasons for the grant of the variance under N. J. 8. A. 40:55-39(d) and had satisfied the negative criteria of the statute.

The governing body failed to take action on the recommendation, which resulted in a statutory denial under N. J. 8. A. 40:55-39.1.

Wickatunk argues that where there is a statutory denial under N. J. 8. A. 40 :5o — 39.1, such denial should not be accorded the usual presumption of validity of action by municipal bodies. It argues that the only presumption that this court should consider is that of the validity of the board of adjustment’s recommendation which should only be interfered with upon a showing that it was arbitrary, capricious or unreasonable. From this position Wickatunk Village contends that since there was no proof that the recommendation of the board of adjustment was arbitrary, capricious or unreasonable, the court should order the governing body to approve the application for a variance.

No case has been found construing N. J. 8. A. 40:55-39.1 or discussing the scope of the court’s review of a denial under that statute.

Wiekatunk’s argument does not take into consideration that upon an application for a variance pursuant to N. J. S. A. 40:55-39(d) the board of adjustment only has power to recommend. Morion v. Mayor, etc. Clark Tp., 102 N. J. Super. 84, 90 (Law Div. 1968), aff’d o. b. 108 N. J. Super. 74 (App. Div. 1969). Such recommendation is not reviewable until the governing body takes action. Rogoff v. Tufariello, 106 N. J. Super. 303, 309 (App. Div.), eertif. den. 54 N. J. 583 (1969). Where the municipal governing body acts on a variance recommendation, its action is presumed correct. Kramer v. Bd. of Adjust., Sea Girt, 45 N. J. 268, 285 (1965). Since under N. J. 8. A. 40:55-39.1 the effect of inaction is the same as though the governing body had acted and denied by resolution, the statutory denial must as well be presumed valid. Cf. Griggs v. Zoning Bd. of Adjustment, Princeton, 75 N. J. Super. 438, 444 (App. Div. 1962); Miller v. Boonton Tp. Bd. of Adjustment, 67 N. J. Super. 460, 469-471 (App. Div. 1961).

Where there is a statutory denial pursuant to N. J. S. A. 40:55-39.1, the court’s scope of review is the same as when it reviews any other action by the governing body denying a variance. Therefore, the issue is not whether the recommendation of the board of adjustment is unreasonable, but whether the denial by the governing body is unreasonable. The presumption which attaches is that of validity of the governing body’s statutory denial.

The township argues that the record before the board of adjustment fails to show “special reasons” for granting the variance. N. J. S. A. 40:55 — 39(d) authorizes the grant of a use variance upon an affirmative finding of “special reasons” in a particular case, together with negative findings that the variance will not be a substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance. DeSimone v. Greater Englewood Housing Corp. No. 1, 56 N. J. 428, 440 (1970); Kohl v. Mayor, etc. Fair Lawn, 50 N. J. 268, 276 (1967); Kunzler v. Hoffman, 48 N. J. 277, 284 (1966); Andrews v. Ocean Tp. Board of Adjustment, 30 N. J. 245, 249 (1959).

It is not necessary to show that a particular premises cannot be feasibly used for a permitted use or that other hardship exists. “Special reasons” is a flexible concept. Broadly speaking, it may be defined by the purposes of zoning set forth in N. J. S. A. 40:55-32:

* * * to lessen congestion in the streets; secure safety from fire, flood, panic and other dangers; promote health, morals or the general welfare; provide adequate light and air; prevent the overcrowding of land or buildings; avoid undue concentration of population. * * *

DeSimone v. Greater Englewood Housing Corp. No. 1, supra, 56 N. J. at 440; Kohl v. Mayor, etc., Fair Lawn, supra, 50 N. J. at 276; Kunzler v. Hoffman, supra, 48 N. J. at 284: Andrews v. Ocean Tp. Board of Adjustment, supra? 30 N. J. at 251.

While no definition of “special reasons” has been attempted beyond the reference to N. J. 8. A. 40 :55-32, the lack of precise formula does not mean that local governing bodies have been given unlimited discretion in finding “special reasons” for the grant of variances. Otherwise, variances conld be awarded indiscriminately merely because they do not offend the negative criteria of the statute. Kohl v. Mayor, etc., Fair Lawn, supra, 50 N. J. at 276.

Adequate “special reasons” are any which, taken as a whole, are founded affirmatively in the zoning objectives set forth in N. J. S. A. 40:55-32. Bern v. Fair Lawn, 65 N. J. Super. 435, 446 (App. Div. 1961). In passing on this issue, the court must look at the entire picture and consider the reasons in their aggregate. It is not controlling that one or more of the reasons standing alone would not be legally sufficient. Kramer v. Bd. of Adjust., Sea Girt, supra, 45 N. J. at 287; Ward v. Scott, 16 N. J. 16, 21 (1954).

Plaintiff argues that the sewerage plant is needed in order to treat adequately and dispose of the effluent produced by the mobile homes. This is in essence the “general welfare”5' standard.

Generally, “special reasons” variances granted for “general welfare” have involved certain uses of institutional dimensions. Bonsall v. Mendham Tp., 116 N. J. Super. 337,, 344 (App. Div.) certif. den. 59 N. J. 529 (1971). Usually such uses have “inherently” served the public good. Kohl v. Mayor, etc. Fair Lawn, supra, 50 N. J. at 279. They have included parochial schools, Andrews v. Ocean Tp. Board of Adjustment, supra, 30 N. J. at 245, and Black v. Montclair, 34 N. J. 105 (1961); a hospital for the emotionally disturbed, Kunzler v. Hoffman, supra, 48 N. J. at 277; a private school, Burton v. Montclair, 40 N. J. 1 (1963); seeing-eye dog kennels, Bonsall v. Mendham Tp., supra, 116 N. J. Super, at 337. Where the use is uot of the type which has been held inherently to serve the public good, there must be a finding that the general welfare is served because the use is peculiarly fitted to the particular location for which the variance is sought. Kohl v. Mayor, etc. Fair Lawn, supra, 50 N. J. at 279-280.

Wickatunk’s proposed use is that of a tertiary sewerage treatment plant. The system has been duly approved by the appropriate state and municipal officials. Its construction was, and its operation is, supervised by the State Department of Environmental Protection. It has been approved by that department. It replaces a septic tank system which was pumping raw sewerage into a stream. The tertiary sewerage system pumps effluent into the stream providing “95% oxygen demand on the organic loading.” There can be no doubt that, in view of crucial problems being caused by poorly treated sewerage and in view of the need for an efficient sewerage system to serve the mobile homes, Wickatunk’s proposed use is per se beneficial to the general welfare. Wiekatunk has clearly presented “special reasons” for a variance.

There remains to consider whether Wickatunk’s proofs satisfy the negative criteria so that a contrary finding would be arbitrary. There was sufficient competent evidence to support a finding that the proposed use would not be detrimental to the public good. Mr. Sackowitz, executive officer of Marlboro’s Division of Health, testified that the plant was operating satisfactorily. He testified that from the public health standpoint, it would be better for the mobile home park site to utilize a tertiary sewerage plant. A reasonable inference is that the public good will' not be harmed. The record before the board of adjustment adequately establishes that the zone plan and zoning ordinance will not be substantially impaired by the granting of the variance.

The denial by the governing body of the variance was arbitrary, capricious and unreasonable and will be set aside. Judgment will be entered directing the governing body to grant approval of the variance applied for. It follows that the Chancery Division action will be dismissed.