author: Lewis, J. A. D.

text:
    SECURITY ALUMINUM WINDOW MANUFACTURING CORP., PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, v. LEHMAN ASSOCIATES, INC., AND MARK M. GALE, DEFENDANTS-APPELLANTS AND CROSS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued November 3, 1969
    Decided January 6, 1970.

      Before Judges Goldmann, Lewis and Matthews.

      Mr. Melville J. Berlow argued the cause for appellants and cross-respondents.

      Mr. Michael A. Querques argued the cause for respondent and cross-appellant (Messrs. Querques, Isles and Weissbard, attorneys; Messrs. Harvey Weissbard and Daniel B. Isles, of counsel and on the brief).
   The opinion of the court was delivered by

Lewis, J. A. D.

Defendants Lehman Associates, Inc. (herein Lehman or broker) and Mark Gale (herein Gale or salesman) appeal from a judgment of the Chancery Division awarding $4950 in compensatory damages to plaintiff Security Aluminum Window Manufacturing Corporation (herein Security). Security cross-appeals, contending that the trial court erred in failing to award punitive damages against defendants.

In the fall of 1966 Security was in dire financial difficulties; bankruptcy seemed imminent. Stephen Azierski, president of the company, sought to alleviate the problem by either selling or leasing certain corporate property located on Mt. Pleasant Avenue in Newark. To that end an exclusive listing agreement, stating “The sale price shall be $65,000.00, or any other price which the undersigned agrees to accept,” was entered into with Lehman, a licensed real estate broker of the State of New Jersey. Negotiations were handled by Gale, Lehman’s agent and salesman.

In December of that year Gale informed Azierski that there was a tight market for industrial real estate in the Newark area and advised him of an offer of $25,000 from one Sam Minkowitz. Azierski rejected the offer because it was insufficient and would not cover outstanding corporate obligations.

Security had vacated the property and, while driving by one day during February 1967, Azierski noticed the salesman showing three men around the premises. Upon inquiry Gale told him that the men were in the “letter” business and he would contact Azierski if an offer were forthcoming. About the third week of February, one of the tenants in the building called Azierski and informed him that a Mr. Johnston had been on the premises introducing himself as the new owner. Azierski immediately called Gale and asked about Johnston and whether there had been any favorable developments. Gale replied in the negative and, with regard to Johnston, stated, “Oh, some kook, don’t even think about it.”

On March 1, 1967 Gale telephoned Azierski and told him that Minkowitz was losing interest in the property and, if he did not accept the offer, he might be unable to find a buyer. What Gale failed to inform Azierski, however, was that Minkowitz was a good friend of Gale’s of 40 years’ standing; that Mr. Johnston of the Johnston Letter Company had offered $44,000 for the property, which was rejected as insufficient, and that on February 28, 1967 Johnston increased his offer to $50,000 and tendered a deposit of $500.

Azierski, in a financial squeeze having just received service of process in a foreclosure proceeding, reluctantly agreed to accept Minkowitz’s offer of $25,000. Gale took an agreement of sale to Azierski’s home and the latter once more questioned the salesman as to whether Minkowitz might bid a little higher. When Gale responded “no,” Azierski signed the contract dated March 2, 1967.

Meanwhile Johnston, who was never informed by Gale as to the identity of the property owner, was disturbed about the delaying tactics of Gale. After conferring with counsel, Johnston concluded that there was “something fishy going on,” and he ascertained that Security was the owner of the property. Johnston then, about the middle of March, called Azierski to find out what was holding up the sale and, at that time, Azierski learned of the $50,000 offer that had been made in February.

Security expeditiously instituted proceedings in the Chancery Division against Lehman, Gale and Minkowitz seeking injunctive relief as well as compensatory and punitive damages. It also finalized negotiations with Johnston direct for a sale of the property at $44,000. By mutual agreement the purchase price was later reduced to $43,000 and title was closed in June 1967.

Defendants Lehman and Gale filed an answer and a counterclaim for commissions allegedly due as a result of the Minkowitz contract, commissions on any sale by Security to Johnston and for damages against Azierski for malicious interference with the proposed sale by Minkowitz to Johnston. In addition, Lehman and Gale sought a temporary restraining order precluding Minkowitz from canceling his agreement with Security. Ultimately, Security paid Minkowitz $1,000 for a cancelation of his contract and, by pretrial order, the action of plaintiff against Minkowitz was voluntarily dismissed with prejudice.

The trial court found and determined that plaintiff was entitled to compensatory damages and computed the amount thereof by taking the $6,000 difference between the Johnston offer of $50,000 and the contract price of $44,000 and subtracting therefrom $1,050, representing sundry repairs (to the boiler, sprinklers and plumbing system) required to be made by the seller according to the terms of the original offer. There is support in the record for this finding and conclusion, and it should not be disturbed. Plaintiff is entitled to compensation for every loss or injury directly or proximately resulting from defendants’ wrongful acts. “An injured person is entitled to be made whole.” Palusco v. Prince Macaroni, Inc., 50 N. J. 365, 368 (1967); cf. 525 Main Street Corp. v. Eagle Roofing Co., 34 N. J. 251, 254 (1961). See generally 22 Am. Jur. 2d, Damages, “IV. Measure and Elements of Compensatory Damages,” §45, at 71-72 (1965).

We proceed now to consider the plaintiffs claim for “punitive” damages, a term interchangeably known as “exemplary” damages. Generally, they have been awarded only “[w]here the defendant’s wrongdoing has been intentional and deliberate, and has the character of outrage frequently associated with crime.” See Prosser, Torts (3d ed. 1964), §2, at 9. A plaintiff is given these awards “over and above the full compensation for his injuries, for the purpose of punishing the defendant, of teaching him not to do it again, and of deterring others from following his example.” Ibid. See McCormick, Damages, §77, at 275 (1935).

This court in Winkler v. Hartford Acc. and Indem. Co., 66 N. J. Super. 22, 29 (App. Div.), certif. den. 34 N. J. 581 (1961), said that “[e]xemplary damages are allowed to punish the wrongdoer for a willful act and to vindicate the rights of a party in substitution for personal revenge, thus safeguarding the public peace.” Accord, LaBruno v. Lawrence, 64 N. J. Super. 570, 575 (App. Div. 1960), certif. den. 34 N. J. 323 (1961), where the grounds for punitive damages were summarized: “(1) actual malice, which is nothing more or less than intentional wrongdoing—an evil-minded act; or (2) an act accompanied by a wanton and wilful disregard of the rights of another.” See generally 22 Am. Jur. 2d Damages, §237, at 323 (1965); Prosser, Torts, supra. Also, Note, “Exemplary Damages in the Law of Torts,” 70 Harv. L. Rev. 517 (1957).

In Brown v. Coates, 102 U. S. App. D. C. 300, 253 F. 2d. 36, 67 A. L. R. 2d. 943 (D. C. Cir. 1958), homeowners sued a real estate broker to recover damages for alleged fraud. The Court of Appeals held that the evidence sustained the findings that the broker induced plaintiffs to enter into a contract for the exchange of their old house for a new one with the resultant effect that they received no money for the equity in their old house, and that the broker was guilty of a breach of trust. The judgment of $7059 compensatory damages and $7500 punitive damages was affirmed. Circuit Judge Burger (now Chief Justice of the United States Supreme Court), writing for the court, pointed out that the federal judiciary has repeatedly recognized the propriety of allowing punitive damages in a civil case as a punishment for, and as a deterrent of, various forms of wrongful behavior. The following language in his opinion is significantly applicable to the facts presently under review:

* * * types of behavior that courts have considered sufficiently “wrongful” so as to warrant the assessment of punitive damages, have varied greatly. Usually the defendants’ actions have been labeled “wilful,” or “malicious” or “reckless” or “wanton” or “outrageous.”
We need not adopt any single, particular formula in upholding an award of punitive damages against a faithless agent. *' * * [0]nce it has been shown that one trained and experienced holds himself out to the public as worthy to be trusted for hire to perform services for others, and those so invited do place their trust and confidence, and that trust is intentionally and consciously disregarded, and exploited for unwarranted gain, community protection, as well as that of the victim, warrants the imposition of punitive damages. * * * Punitive damages are particularly apt in such circumstances because they both punish the wrongdoer, and offer the wronged a greater incentive to bring derelicts to justice a process which can subject the victim to considerable expense and trouble [253 F. 2d, at 40]

See Annotation, “Eight of principal to recover punitive damages for agents’ or brokers’ breach of duty,” 67 A. L. R. 2d 952 (1959). Cf. Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400, 402, 88 S. Ct. 964, 19 L. Ed. 2d 1263 (1968).

A California case, Bate v. Marsteller, 232 Cal. App. 2d 605, 43 Cal. Rptr. 149 (D. Ct. App. 1965), involved a somewhat analogous situation. There plaintiifs-vendors were awarded compensatory damages of $14,000 together with punitive damages aggregating $20,000, assessed in various amounts against a licensed real estate broker and three of his agents. In an order denying a motion for a new trial, the trial court reduced the punitive damages to a total of $6,000, which reduction was accepted by plaintiffs. Defendants appealed. The proofs established that the broker knowingly misinformed the vendors, who listed their property for sale at $50,000 to $52,000, that the highest price obtainable was $37,000, and that the sellers were thereupon induced by misrepresentations to sign a sales agreement for the lesser amount. Neither the broker nor his agents disclosed that they were acquiring a joint interest in the property. They fraudulently failed to reveal the ultimate material facts concerning the sale. The appellate court affirmed. After noting that defendants’ conduct was unethical, the court stated that exemplary damages were properly awarded to discourage such actions and by way of punishment. It then cited authorities for the proposition that restitution alone would have little or no deterrent effect, for wrongdoers would run no risk of liability to their victims beyond that of returning what they wrongfully obtained. 43 Cal. Rptr., at 159.

The fiduciary responsibility of a broker, which extends to his salesmen, was emphasized by our Supreme Court in Ellsworth Dobbs, Inc. v. Johnson, 50 N. J. 528 (1967). He is required “to exercise fidelity, good faith and primary devotion to the interests of his principal. * * * [T]he rule which applies to trustees has been equally applied to the relation between the real estate broker and his principal. He must show perfect good faith and openness of dealing” (at 553). Note, “Ellsworth Dobbs, Inc. v. Johnson: A Reexamination of the Broker-Buyer-Seller Relationship in New Jersey,” 23 Rutgers L. Rev. 83, 86 (1968). As to the trend in courts of equity awarding punitive damages, especially where the same court administers both legal and equitable relief, see 22 Am. Jur. 2d, Damages, §239, p. 327 (1965); cf. Grillo v. Bd. of Realtors of Plainfield Area, 91 N. J. Super. 202, 232 (Ch. Div. 1966).

Here, the rationale of the trial judge in rejecting plaintiff’s claim for punitive damages can best be illustrated by quoting excerpts from his opinion:

* * * tlie mere fact that Lehman Associates had filed a counterclaim seeking its commissions and seeking aid in the courts should in no way be deemed a ratification of the unlawful or unauthorized act.
I find that no punitive damages will be awarded against Lehman Associates.
Punitive damages are claimed against Mr. Gale. * * * The Real Estate Board, as represented by counsel, has been notified of this transaction. And if I were to award punitive damages in this case it would or might influence the Real Estate Board’s determination of the propriety of Mr. Gale’s actiou, and I will undertake to do no such thing. * * * It [the Board] might take his livelihood away. I believe it would be unconscionable for me, under these circumstances, to award punitive damages * * *.

We do not regard such reasons, which are totally apart from the sufficiency of the evidence, as a sound legal premise for the disallowance of punitive damages.

It is well settled in this State and in the majority of jurisdictions that the award of punitive damages is discretionary and not a matter of right. Neigel v. Seaboard Finance Co., 68 N. J. Super. 542, 555 (App. Div. 1961). And see Prosser, Torts, supra.

Discretion, however, means legal discretion in the exercise of which the trial judge must take account of the applicable law and the particular circumstances of the case, to the end that a just result is reached. And, as declared in Master Auto Parts, Inc. v. M. & M. Shoes, Inc., 105 N. J. Super. 49, 53 (App. Div. 1969), “[i]f he goes wide of the mark, the appellate court has a duty to act.” See also Sokol v. Liebstein, 9 N. J. 93, 99 (1952); State v. Johnson, 67 N. J. Super. 414 (App. Div. 1961); Borough of Fanwood v. Rocco, 59 N. J. Super. 306 (App. Div.), aff’d 33 N. J. 404 (1960); Kavanaugh v. Quigley, 63 N. J. Super. 153 (App. Div. 1960). In Kavanaugh we observed that if the trial judge misconceives the applicable law or misapplies it to the factual complex, the exercise of his discretion in effect “lacks a foundation and becomes an arbitrary act, however conscientious may have been the judge in the performance of it.” Id., at 158.

The broker in the instant matter was relieved from punitive damages because the proofs did not establish an awareness of “each and every fact” involved in the challenged transactions of its salesman. The trial judge opined in substance that the pleadings should not be deemed a ratification of the alleged unlawful or unauthorized conduct of Gale. We disagree.

Exemplary damages may be recovered against an employer who specifically authorizes, participates in or ratifies a wrongful act of his employee. See Winkler v. Hartford Acc. & Indem. Co., supra; Restatement, Agency 2d, §217 C (1958). Ratification has been defined as “the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account, whereby the act, as to some or all persons, is given effect as if originally authorized by him.” Id., at §82. Section 97 of that work reads: Stated differently in Story, Agency (5th. ed. 1851), §139, at 163, it is a “sound and perfectly well-settled principle, that if a principal seeks to enforce a contract made by his agent, he is as much bound by any material misrepresentation made therein by the agent, as if made by himself. In Bleyer v. Veeder, 119 N. J. Eq. 398, 406 (Ch. 1936), it was held that “A principal claiming the benefit of his agent’s unauthorized act thereby ratifies that act and is bound by it.”

There is affirmance if the purported principal, with knowledge of the facts, in an action in which the third person or the purported agent is an adverse parly:
(a) brings suit to enforce promises which were part of the unauthorized transaction or to secure interests which were the fruit of such transaction and to which he would be entitled only if the act had been authorized ; or
(b) bases a defense upon the unauthorized transaction as though it tvere authorized ; or
(c) continues to maintain such suit or base such defense.

Here the broker not only attempted by its joint answer to defend the actions of Gale, which were specified in plaintiff’s complaint, but it also sought to benefit from the illegal transaction by counterclaiming for commissions due as a result of the alleged fraudulent sale to Minkowitz and also the ultimate sale to Johnston. Moreover, the broker claimed damages against plaintiff for malicious interference with the prospective sale from Minkowitz to Johnston. Additionally, although defendants state in their brief that they accept the ruling of the trial court dismissing the counterclaim, they argue that plaintiff suffered no compensatory damages and, in doing so, assert various adjustments and credits in their favor, including an item of $2500 for “commission.”

We hold that Lehman’s ratification of Gale’s misconduct was unequivocal and patent.

The trial judge, as indicated above, disallowed punitive damages against Gale on the theory that any disciplinary action by the Seal Estate Commission would be sufficient punishment and, if such damages were allowed, it might influence the decision of the Commission. The judiciary should not speculate on the outcome of a complaint addressed to the discretion of an administrative agency. Indeed, we were advised at oral argument that the Commission had not yet taken action upon the charges filed with it against defendants. In any event, a license revocation would not necessarily be a sufficient alternative. See Brown v. Coates, supra, 253 F. 2d, at 40, n.15.

In short, when exemplary damages are justified, they should not be withheld merely because a civil or criminal penalty has been or may be imposed. This point was made clear in Morris v. MacNab, 25 N. J. 271, 281 (1957), where it was argued that an award of exemplary damages for conduct of a defendant who had already been the subject of criminal conviction would subject him to “punishment twice for the same offense.” There it was noted that the courts throughout the country have generally rejected such a contention, citing Morris, “Punitive Damages in Tort Cases,” 44 Harv. L. Rev. 1173, 1196 (1931). See also McCormick, Damages, supra, §82, at 292.

Gale’s behavior was not only wrongful but it was willful and constituted a most reprehensible violation of his fiduciary trust. His conduct as revealed by the record makes applicable the long-since written words of Mr. Justice Story in The Amiable Nancy, 16 U. S. (3 Wheat.) 546, 558, 4 L. Ed. 456, 459 (1818), “this must be pronounced a case of gross and wanton outrage, without any just provocation or excuse.”

In the circumstances it is plain that punitive damages should be assessed against both defendants and, in the exercise of our original jurisdiction, we make such a finding and determination. R. 2:10—5.

Accordingly, the matter is remanded for a hearing to determine the amount of punitive damages to be awarded plaintiff, taking into consideration the character of defendants’ acts, the nature and extent of the harm to plaintiff, and the wealth of the respective defendants. 4 Restatement, Torts, §908, at 554 (1939). They may bear some reasonable proportion to the actual damages. McCormick, Damages, supra, “Manner of Determining Amount,” pp. 296-298. In all other respects the judgment of 'the trial court is affirmed.

       Some jurisdictions by decisional fiat, absent statutory provisions providing for punitive damages, have rejected such damages entirely. See e. g., Anderson v. Dalton, 40 Wash. 2d 894, 246 P. 2d 853, 35 A. L. R. 2d 302, 305 (Sup. Ct. 1952) ; City of Lowell v. Massachusetts Bonding & Ins. Co., 313 Mass. 257, 47 N. E. 2d 265, 272, 146 A. L. R. 750, 759 (Sup. Jud. Ct. 1948) : McCoy v. Arkansas Natural Gas Co., 175 La. 487, 143 So. 383, 85 A. L. R. 1147, 1152 (Sup. Ct.), cert. denied 287 U. S. 661, 53 S. Ct. 220, 77 L. Ed. 570 (1932) ; Hall v. Rice, 117 Neb. 813, 223 N. W. 4, 78 A. L. R. 1421, 1423 (Sup. Ct. 1929). Contrariwise, other states impose a duty on the court or jury to award punitive damages upon proof of requisite assertions. See e.g., Davenport v. Woodside Cotton Mills Co., 225 S. C. 52, 80 S. E. 2d 740, 744 (Sup. Ct. 1954) ; Wilcox v. Southern Ry Co., 91 S. C. 71, 74 S. E. 122, 125 (Sup. Ct. 1912) ; McAllister v. McAllister, 72 Colo. 28, 209 P. 788 (Sup. Ct. 1922). Connecticut is unique in that it allows punitive damages, but such amount may not exceed the amount of plaintiff’s litigation expenses less taxable costs. Doroszka v. Lavine, 111 Conn. 575, 150 A. 692, 693, 69 A. L. R. 1279, 1281 (Sup. Ct. Err. 1930).


source: Caselaw Access Project

author: Polow, J. J. D. R. C.

license: Public Domain

text:
    D., PLAINTIFF, v. D., DEFENDANT.
    Superior Court of New Jersey Chancery Division—Morris County
    Decided December 17, 1969.

      Mr. Edward J. Farrell appeared for plaintiff {Messrs. Farrell, Curtis, Carlin & Davidson, attorneys).

      Mr. Irving Youngelson appeared for defendant {Messrs. Youngelson & Youngelson, attorneys).
   Polow, J. J. D. R. C.

(temporarily assigned). In this divorce proceeding each party charges the other with extreme cruelty, each demand judgment dissolving the marriage and, of particular relevance on this motion, each seeks custody of their two children. In connection with his custody demand plaintiff husband moves before trial for leave to take the deposition of a physician and for an order directing the physician and Gfreystone Park State Hospital to produce for inspection and copying all medical records relating to defendant. Such evidence, reasons plaintiff, is indispensable to an adjudication of the fitness of defendant as a mother and therefore essential to a proper determination of the custody issue in the best interests of the children.

Defendant invokes- the patient-physician privilege and insists that by statute she has absolute protection against disclosure of medical information concerning her hospitalization. The parties have consented to an order requiring both to submit to a psychiatric evaluation by a phychiatrist appointed by the court in- connection with the ultimate determination of the custody issue.

Plaintiff argues that he is entitled to inquire into and inspect all available records and information concerning the commitment of his wife to Greystone Park State Hospital in August 1967; that such medical and psychiatric information has a direct bearing upon the custody issue, and that the patient-physician privilege is not applicable in these circumstances.

The patient-physician privilege was first created in New Jersey by enactment of N. J. S. A. 2A:84A-22.1 et seq., effective July 19, 1968. Although plaintiff concedes that there are no decisions in this State construing the effect of the statute in custody proceedings, he relies on a New York decision, People ex rel. Chitty v. Fitzgerald, 40 Misc. 2d 966, 244 N. Y. S. 2d 441 (Sup. Ct. 1963). The husband in Fitzgerald had been hospitalized for mental illness. The court concluded that “in the exercise of the court’s inherent power to do what is best to protect the welfare of the infant, the right of the petitioner to invoke the patient-physician privilege must yield to the paramount rights of the infant.” The hospital report was not made part of the record in that' proceeding but, instead, the judge himself examined the hospital record to determine its relevancy in the custody controversy.

I am convinced that the same procedure is appropriate here and should be the next step in the present dispute. The hospital record may be subpoenaed by plaintiff to be inspected by the court. In the event any portion of the record should be relied upon by the court in resolving the custody issue, the specific factors considered must be disclosed to the parties. The parties are entitled to know all of the elements which enter into a custody determination if they are to have a reasonable opportunity to contradict or rebut any portion thereof. See Callen v. Gill, 7 N. J. 312, 320 (1951). To this limited extent I find that there are fundamental policy considerations which dictate the need for flexibility in applying the technical rules of evidence in an effort to reach the proper result where the issue involves custody and the welfare of infant children.

Plaintiff, however, seeks more than just inspection of records by the court and argues that the patient-physician privilege is not available at all in commitment proceedings. He is, of course, absolutely correct, as expressly stated in the statute itself. But this is not a commitment proceeding and I do not read the statute to exempt from its provisions all records of hospitalization which result from commitment proceedings where there is an attempt to use such records in subsequent unrelated litigation. The statute provides that the privilege may not be invoked to prevent the introduction of a communication by patient to physician within an action to commit the patient to a mental hospital. It does not remove the hospital record itself from the operation of the statutory privilege, although the hospitalization may in fact have come about through commitment proceedings.

Since our courts have specifically held hospital records to be within the purview of the statutory privilege, Osterman v. Ehrenworth, 106 N. J. Super. 515 (Law Div. 1969), and Unick v. Kessler Memorial Hospital, 107 N. J. Super. 121 (Law Div. 1969), plaintiff’s application to inspect and copy the records at this time will be denied except to the limited extent outlined above.

Plaintiff also seeks an order permitting pretrial deposition of one of the committing physicians. Presumably, plaintiff would probe into the reasons for the commitment, the mental problem suffered by defendant and the relationship they may bear to the welfare of the children and the fitness of defendant as a parent.

Defendant opposes such an order and again relies on the patient-physician privilege provided by statute. Without considering the other difficult problems involved in eliciting expert testimony by deposition, cf. Myers v. St. Francis Hospital, 91 N. J. Super. 377 (App. Div. 1966), I am satisfied that the privilege is available to defendant in the present circumstances. I find no exception in the statute based upon the marital relationship between the parties nor based on the fact that the testimony sought concerns a prior mental hospital commitment.

The policy considerations do not differ in this context from those stated above in connection with hospital records. The court’s primary concern is the welfare of infant children, and the need to resolve this issue in their best interests may outweigh policy reasons for certain technical rules of evidence where the court in its discretion can find no acceptable alternative and where the information sought is indispensable to a proper determination of the custody issue. Accordingly, should the defending parent refuse to submit to psychiatric evaluation as required by the court, we would be unable to evaluate the fitness of that parent in terms of possible mental illness, although we know that there has been a recent commitment to a mental hospital. Under such circumstances, the court may well be compelled to conclude that there is no alternative to permitting discovery of medical evidence notwithstanding the privilege. • The privilege is intended for the protection of the patient herself — in this case, defendant. Schechet v. Kesten, 372 Mich. 346, 126 N. W. 2d 718 (Mich. Sup. Ct. 1964), State v. Sullivan, 60 Wash. 2d 214, 373 P. 2d 474 (Wash. Sup. Ct. 1962), 8 Wigmore, Evidence, § 2386 (McNaughton rev. 1961). Any interference with accomplishment of the purpose of the order of the court to obtain psychiatric information, by way of defendant’s failure to permit or cooperate with the proposed evaluation, could bar her right to invoke the statutory privilege, in order to protect the paramount interest of the court — the welfare of the infant children.

Hopefully, we are not here faced with that dilemma. Defendant has agreed to submit to a psychiatric evaluation and the court has been called upon to appoint the psychiatrist. It is the present mental and physical condition of the parties which is of primary concern, and this the proposed evaluation will, we trust, provide.

Plaintiff next argues that defendant, by instituting a malpractice suit recently against the same physician and others, based upon the commitment which he signed, has thereby effectively waived her privilege. Although the privilege in this State is so recent that we find no reported decisional authority, there is adequate support in other jurisdictions for the proposition that testimony elicited or provided by the patient concerning the confidential communication terminates the privilege. Munzer v. Swedish American Line, 35 F. Supp. 493 (S. D. N. Y. 1940); Chambers v. Tobin, 118 F. Supp. 555 (D. D. C. 1954); Ramey v. Mets, 3 Ohio App. 2d 329, 210 N. E. 2d 449 (Ohio Ct. App. 1964); see also 114 A. L. R. 798 (1938) and 21 A. L. R. 3d 912 (1968). The language of our statute, in any event, is clear and unequivocal in that the privilege is waived “if the judge finds that * * * a holder of the privilege has caused the physician * * * to testify in any action * * (N. J. S. A. 2A:84A-22.7). If, in fact, the suit filed by defendant against the doctor reaches a stage where testimony is obtained by her from the doctor, or given by her as the patient, the privilege will have been terminated at that time.

That stage has not yet been reached. There has been no such testimony as of this time. Should such a waiver in fact have been accomplished before trial, there would still be no absolute right to pretrial deposition of the physician. Although the newly enacted revision of the rules liberalizes discovery to some extent in matrimonial causes, R. 4:79-5 limits discovery as of right to interrogatories to parties. Other types of pretrial discovery are still available only with leave of court for good cause shown. See Ritt v. Ritt, 52 N. J. 177 (1968). Here again, I would consider defendant’s cooperation in the psychiatric evaluation ordered by the court as persuasive in determining the existence of “good cause.” If defendant shall fail or refuse to cooperate in the evaluation, “good cause” may well then be present to justify leave for further discovery. On the other hand, the kind of cooperation indicated here by defendant would substantially eliminate cause for further discovery in this area without, regard to the existence or nonexistence of the patient-physician privilege.

Eor the reasons stated,, plaintiff’s motion for discovery by way of production and copying of medical and hospital records and by way of deposing the physician will be denied, except that plaintiff may subpoena the hospital records for inspection by the court in accordance with this opinion.

I will appoint a psychiatrist to examine both parties and to provide a psychiatric evaluation to the court. An order may be submitted accordingly, which should also direct a custody investigation by the Morris County Probation Department pursuant to R. 4:79-8.


author: Lane, J. S. C.

text:
    FINCH, PRUYN & COMPANY, INC., A NEW YORK CORPORATION, PLAINTIFF, v. JOSEPH MARTINELLI, HELEN MARTINELLI, AND MONMOUTH COUNTY NATIONAL BANK, A NATIONAL BANKING ASSOCIATION, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Argued December 19, 1969
    Decided December 19, 1969.

      Mr. Gyrus J. Bloom attorney for the plaintiff.

      Mr. Robert Silver appeared for the defendant Joseph Martinelli (Messrs. Bilder, Silver & Lawrence, attorneys).

      Mr. John J. Pagano appeared for defendant Helen Martinelli.
   Lane, J. S. C.

This matter is before the Court on plaintiff’s notice of motion to settle the terms of the final judgment. The issue before the court is whether plaintiff is entitled to have taxed as part of its costs the expense of depositions taken during the course of the proceedings.

The complaint was filed September 21, 1967, seeking to recover on various notes dated May 15, 1967 given by defendant Joseph Martinelli to plaintiff and seeking to specifically enforce an agreement by Joseph Martinelli that he would execute and deliver to plaintiff a mortgage on all real estate owned by him. Ultimately, judgments were entered against Joseph Martinelli in the total amount of $20,000. No relief could be given to plaintiff on the specific performance count because it was found that on July 14, 1967 and August 18, 1967 Joseph Martinelli had conveyed to his wife, defendant Helen Martinelli, his interest in certain premises they held as tenants by the entirety, his only interest in real estate.

A fourth supplemental complaint was filed October 14, 1968 joining Helen Martinelli. This complaint sought a judgment setting aside the conveyances from Joseph Martinelli to Helen Martinelli. The matter came on for trial on November 12, 1969. At the conclusion of testimony the court rendered an oral opinion holding that the conveyances were fraudulent as against plaintiff and would be set aside.

The depositions involved and their expenses are as follows:

Feb. 7, 1968 Joseph Martinelli $116.00

Dee. 20, 1968 Joseph Martinelli,

Helen Martinelli and

Henry Sant’Ambrogio 182.50

Feb. 19, 1969 Robert Martinelli 69.59

Mar. 14, 1969 Robert Martinelli 69.59

April 16, 1969 Joseph Martinelli and

Helen Martinelli 87.25

Costs normally are allowed as of course to a prevailing party, R. 4:42-8 (a) ; however, their allowance is discretionary. In determining what costs may be allowed, in the absence of specific authorization by Supreme Court rule the court must find statutory authority. U. S. Pipe, etc. v. United Steelworkers of America, 37 N. J. 343, 355 (1962).

N. J. S. A. 22A:2-8 provides that a party is entitled to include in his bill for costs “his necessary disbursements,” including “The costs of taking depositions when taxable, by order of the court; * * *”

The policy established by our Supreme Court is that each litigant should bear his own expenses in prosecuting and defending his individual interest. Sunset Beach Amusement Corp. v. Belk, 33 N. J. 162, 167 (1960). This court has been unable to find any reported case since 1948 in which the expenses of depositions were ordered to be included in the prevailing party’s bill of costs. Our Supreme Court referred to such expenses in U. S. Pipe, etc. v. United Steelworkers of America, supra, where Justice Hall stated:

* * * Such costs comprise principally certain statutory allowances, amounts paid the clerk in fees, and various other specified disbursements of counsel including sheriff’s fees, witness fees, deposition expenses and printing costs. Allowance is controlled by court rule and is ordinarily discretionary with the court in the particular case. [37 N. J., at 355-356]

The clerk of the court has advised that orders directing the taxation of the expenses of depositions are not uncommon in this Division.

It would appear that the policy expressed in Sunset Beach Amusement Corp. v. Belk, supra, precludes the routine direction for taxation of the expenses of depositions in every case. N. J. S. A. 22A:2-8 must contemplate that in certain cases justice will require that the losing party bear the expense of depositions taken during the course of the proceedings.

Any depositions taken before the filing of the fourth supplemental complaint would fall in the category of expenses normally undertaken by litigants in the prosecution of their causes of action. The initial claims against Joseph Martinelli involved no fraud or other reprehensible conduct on his part. There were no extraordinary circumstances in the cause of action or in-the- conduct of the defense. There is no reason why the plaintiff should not bear the expense of the February 7, 1968 deposition.

Plaintiff, in obtaining judgments against Joseph Martinelli, bore not only the expense of the routine steps but also counsel fees. Justice requires that the expense of depositions incurred to set aside the fraudulent conveyances made to frustrate plaintiff’s opportunity to satisfy its claims should be borne by defendants where the depositions were necessary and were actually used at the trial. At the trial the depositions taken December 20, 1968 and April 16, 1969 were used. Such depositions were necessary. Accordingly, the -cost of those two depositions, totaling $269.75, will be included in the taxed bill of costs against both Joseph and Helen Martinelli. The other two depositions were not used at the trial nor were they helpful. The motion insofar as it relates to the other depositions will be denied.


author: Mountain, J. S. C.

text:
    PASSAIC COUNTY BAR ASSOCIATION, A NON-PROFIT MEMBERSHIP CORPORATION OF THE STATE OF NEW JERSEY, NEWTON M. ROEMER AND WILLIAM J. MARCHESE, PLAINTIFFS, v. RICHARD J. HUGHES, THE GOVERNOR OF THE STATE OF NEW JERSEY, AND FRANK X. McDERMOTT, THE PRESIDENT OF THE SENATE OF THE STATE OF NEW JERSEY, AND THE MEMBERS OF THE SENATE OF THE STATE OF NEW JERSEY ET AL., DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided December 22, 1969.

      Mr. Howard Stern appeared for plaintiffs (Messrs. Howard Stern, Bernard L. Albert, Joseph D. J. Gourley, Joseph Salerno, on the brief).

      Mr. William S. Greenberg, Assistant Counsel to the Governor, appeared for defendant Governor Hughes (Mr. Arthur J. Sills Attorney General, attorney; Messrs. Alan J. Karcher and William S. Greenberg, on the brief).

      Mr. Richard B. McGlynn argued the cause for the defendant members of the Senate (Messrs. McGlynn and McGlynn, attorneys; Mr. William E. McGlynn, of counsel).

      Mr. John Givens appeared for the New Jersey State Bar Association, amicus curiae (Messrs. Parsons, Gamona, Blair and Warren, attorneys).
   Mountain, J. S. C.

This suit has been brought by the Passaic County Bar Association, Newton M. Roemer, president of the Association and William J. Márchese, its immediate past president. Defendants are the Honorable Richard J. Hughes, Governor of the State of New Jersey, the Honorable Prank X. McDermott, President of the Senate of the State of New Jersey, and all other individual members of the Senate. The New Jersey State Bar Association appears as amicus curiae.

The Passaic County Bar Association is a nonprofit membership corporation, incorporated pursuant to Title 15 of the New Jersey Revised Statutes. It is composed of approximately 650 members, all of whom are attorneys of this State in good standing, practicing or residing in the County of Passaic. In summary, the complaint charges that there are a disproportionately large number of judicial vacancies in Passaic County: that these have existed for an unwarranted period of time; that as a result of the long continued failure to fill these vacancies the trial of civil law actions in the county has virtually ceased; that this condition is the result of improper inaction on the part of the Governor and the Senate; that plaintiffs have standing to bring this suit to correct this condition, and that the courts have the necessary competence to grant the relief sought.

The respective roles of the Governor and Senate in the nomination and appointment of members of the judiciary is set forth in .the State Constitution :

The Governor shall nominate and appoint, with the advice and consent of the Senate, the Chief Justice and Associate Justices of the Supreme Court, the Judges of the Superior Court, the Judges of the County Courts and the judges of the inferior courts with jurisdiction extending to more than one municipality. No nomination to such an office shall be sent to the Senate for confirmation until after seven days’ public notice by the Governor. [N. J. Const., Art. VI, § 6, par. 1],

The facts are not in dispute. A vacancy occurred in the office of judge of the Juvenile and Domestic Relations Court on April 28, 1967. On April 2, 1969 the Governor indicated his intention to nominate a successor to this office and thereafter delivered the nomination to the Senate on April 10, 1969. On June 28, 1967 an additional County Court judgeship for Passaic County was created by act of the Legislature. On April 2, 1969 the Governor indicated his intention to fill this position and on April 10 delivered the nomination to the Senate. On September 7, 1967 a judge of the Passaic County District Court died. On April 2, 1969 an intention to nominate- a successor was submitted 'by the Governor, as was the nomination itself on April 10. -No action has been taken by the Senate with respect to any of these three nominations.

On April 21, 1969 the Governor gave notice of his intention to nominate a resident of Passaic County to fill a prospective vacancy on the Superior Court. On April 28 the nomination was made. Senate confirmation followed on May 15. The nominee took office in September 1969 and is presently sitting in Passaic County.

On August 1, 1969 a judge of the Passaic County Court was mandatorily retired by reason of age. A like retirement with respect to a judge of the Superior Court now sitting in Passaic County will occur January 1, 1970. On July 30, 1969 the Governor gave public notice of his intention to nominate a judge of the Passaic County District Court to succeed the retiring County Court judge and of his further intention to fill the vacancy that would thus ensue on the county district court with a designated nominee. At the same time he expressed his intention to nominate a particular candidate to fill the anticipated Superior Court vacancy when that should occur. Nominations with respect to two of these proposals were submitted on August 6. No action has been taken by the Senate as to these nominations.

The court will judicially notice the fact that in November 1969 a further vacancy in the Passaic County Court bench occurred by reason of resignation and that this vacancy still exists.

Near the end of June 1969 the assignment judge of Passaic County, the Honorable John P. Crane, announced the suspension of the trial of civil cases in the Law Divisions of the Superior and County Courts due to the shortage of judges. The suspension became effective with the commencement of the September 1969 term of court and continues to date.

Plaintiffs contend that the suspension of the trial of civil law suits amounts to a breakdown in the mechanism of State Government; that as citizens, taxpayers and lawyers living and practicing in the county they have standing to seek to right this condition, and that the courts should afford the means.

As indicated above, there are presently no judicial vacancies with respect to which appropriate executive action has not been taken with the exception of a County Court vacancy which only came into being in November 1969 and which, for this reason, is not mentioned in the complaint. It is true, however, that the Legislature has neither confirmed nor rejected any of the nominees for the vacant positions that have been submitted by the Governor. Plaintiffs attribute this inaction to the practice of senatorial courtesy, of which more will be said below.

Plaintiffs ask the court, by way of relief, to compel the Executive and Legislative Branches of the State Government to act {mandamus), to order the Senate to cease and desist from the practice of senatorial courtesy (injunction), and to define the “advice and consent” clause quoted above, determine and declare the status of pending nominations and declare the practice of senatorial courtesy to be illegal and unconstitutional (declaratory judgment).

Initially, consideration must be given to the question of justiciability. Are the issues presented and the relief sought matters which are subject to judicial resolution, or do the issues, or any of them, present “political questions” to be deemed nonjusticiable in the light of the doctrine of the separation of powers? This doctrine is set forth in our State Constitution in the following language:

The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution. [N. J. Const., Art. III, par. 1],

There has never really developed either a judicial or academic consensus as to the theoretical bases upon which the political question doctrine rests nor as to its scope nor as to the kind of case that will surely provoke its application. For example, compare Finkelstein, “Judicial Self-Limitation,” 37 Harv. L. Rev. 338 (1924); Weston, “Political Questions,” 38 Harv. L. Rev. 296 (1925); Finkelstein, “Further Notes on Judicial Self-Limitation,” 39 Harv. L. Rev. 221 (1925); Scharpf, “Judicial Review and the Political Question: A Functional Analysis,” 75 Yale L. J. 517 (1966); Baker v. Carr, 369 U. S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); Powell v. McCormack, 395 U. S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969). It has been aptly described by Justice Brennan as “a function [of the doctrine] of the separation of powers.” Baker v. Carr, supra, 369 U. S., at 210, 82 S. Ct., at 706, 7 L. Ed. 2d at 682.

Underlying all discussion of the subject is a general recognition that our tripartite division of the powers of government, whether viewed at the national or state level, was intended to allocate to the political branches of government a competence, in certain areas at least, ill-defined as they may be, to reach ultimate decisions and to engage in practices that are not subject to judicial supervision or review. I am aware that proponents of the “classical theory” of judicial review may disagree with this statement as seeming to justify a privilege of self-abnegation on the part of the judiciary, the exercise of which may result in a failure to accept the obligation “to say what the law is” whenever the decision of a case requires it. This theory, which appears to impose upon the judiciary a duty of decision from which there is no escape, was adopted, it is said, by Chief Justice Marshall in Marbury v. Madison, 5 U. S. (Cranch) 137, 177-178, 2 L. Ed. 60 (1803), and is implicit, if not indeed explicit, in the doctrine of judicial review which that decision expounded. Scharpf, “Judicial Beview and the Political Question: A Functional Analysis,” supra, at 518. A protagonist of the classical theory, in referring to the political question doctrine, has said that “all the doctrine can defensibly imply is that the courts are called upon to judge whether the Constitution has committed to another agency of government the autonomous determination of the issue raised, a finding that itself requires an interpretation.” Wechsler, “Toward Neutral Principles of Constitutional Law,” 73 Harv. L. Rev. 1, 7-8 (1969). This appears to be the approach adopted by the Supreme Court in Powell v. McCormick, supra, where Chief Justice Warren observed that the court must interpret the Constitution and determine what power that document confers on the House of Bepresentatives before the court can determine to what extent the exercise of that power is subject to judicial review. 395 U. S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d, at 514. From the point of view of ultimate result, it seems no great matter whether, in cases of this sort, courts be said to exercise judicial self-restraint or, through the interpretive process, arrive at the conclusion that the matter rests wholly with a coordinate branch of government.

The majority opinion in Baker v. Carr, supra, with respect to the political question doctrine, merits notice at this point. There it is said that any case held to involve a political question — and which will therefore and for that reason be nonjusticiable — will clearly present at least one of the following formulations:

“a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” 369 U. S., at 217, 82 S. Ct., at 710, 7 L. Ed. 2d, at 686.

The court is here considering the political question doctrine in relation to the national government and the Federal Constitution. Admittedly, certain of the “formulations” are almost certainly directed to questions of foreign affairs, treaties and the like, with which a state government has no constitutional concern but which have very often provided the occasion for an invocation of this doctrine in the federal courts. Certain of the formulations, however, and especially the first two, seem immediately relevant to the problem we are considering at the state level.

It is necessary at this point to consider briefly the nature and history of the practice of senatorial courtesy which is really the principal target of the plaintiffs’ challenge. This practice, insofar as it relates to judicial appointments, maybe stated as follows: If a nomination to judicial office with respect to a particular county is displeasing to one or more of the senators from that county, then the other members of the Senate will take no action looking to the confirmation of the proposed nominee and this quite apart from the nominee’s qualifications or lack thereof.

Historically, the practice, in its present form at least, did not exist in New Jersey prior to the adoption of the Constitution of 1844 for the reason that prior to that time the Governor had no power of judicial appointment. The Constitution of 1776 placed this power in the Legislative Council and General Assembly, acting jointly. N. J. Const. (1776), Art. XII. Indeed the Governor himself was appointed in the same fashion, Art. VII, rather than by the electorate at large.

The Constitution of 1844 provided that all the principal judicial officers of the State should “be nominated by the governor, and appointed by him, with the advice and consent of the senate.” N. J. Const. (1844), Art. VII, § 2, par. 1. It will be seen that this language is substantially like that contained in the present Constitution of 1947 and quoted above. This mode of appointment and the language in which it was cast were directly adopted from the Eederal Constitution which provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint. * * * Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law * * U. S. Const. Art. II, § 2. A little more than half a century of federal experience lay unveiled before the members of the Constitutional Convention that met in Trenton in the spring of 1844, and unquestionably it was known and considered.

What had this experience been? In The Federalist (No. 66) Alexander Hamilton, in commenting upon the appointing power, had prophesied:

It will be the office of the President to Nominate, and with the advice and consent of the Senate to Appoint. There will, of course, be no exertion of Choice on the part of the Senate. They may defeat one choice of the Executive and oblige him to make another; but they cannot themselves Choose — they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their consent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one l’ejected. Thus it could hardly happen that the majority of the Senate would feel any other complacency toward the object of an appointment than such as the appearance of merit might inspire, and the proofs of the want of it destroy.

History has shown this prophecy to have been almost totally in error.

The first instance of senatorial courtesy occurred early in Washington’s first administration. The President nominated one Benjamin Eishbourn to the post of naval officer of the port of Savannah. Despite his “excellent qualifications the Senate rejected the nomination as a courtesy to the two senators from Georgia, who had a candidate of their own. The following day Washington withdrew the nomination of Eishbourn and yielded to the two Georgia senators by nominating the candidate they desired; * * Harris, The Advice and Consent of the Senate 40 (1953). This practice has continued, despite recurrent executive expostulation, until the present time. In general only two occasions have been deemed appropriate for the waiving of the practice of Senatorial courtesy: where the nominee is nationally recognized as exceptionally outstanding or where the Senator seeking to invoke the privilege is not in the good graces of his colleagues in the Senate, cf. Harris, supra, at 219.

Following the adoption of the Constitution of 1844 in New Jersey the practice quickly became common and has been more or less followed ever since. Just as has been true at the federal level, it has been constantly decried by the Executive. In 1941 Governor Edison said of senatorial confirmation in general and of senatorial courtesy in particular, “[a] governor of New Jersey is called upon to rely in his administration of the state offices upon numerous executives over whom he does not have this basic control [the appointing and removal power]. He is certain to find that some of these men on whom he must depend worked personally, perhaps even used their departments, to prevent his election.” Governor Edge is said to have held the same view but stressed that the practice was more pernicious with respect to county than to state-wide nominees.

In an address delivered before the Essex County Bar Association in April 1965 (and which has been filed as an appendix to plaintiffs’ brief) Governor Hughes took sharp issue with this practice. At that time there were unfilled vacancies in Essex County for which the Governor had proposed nominees. He described the increasing backlog of eases as a hardship to the citizens of the entire State that was directly attributable to “a tradition known as senatorial courtesy, which is certainly being grossly abused in New Jersey today.” The Governor added, “[i]t is bad enough that a Senator may say for no valid reason who shall not be a judge. It is inexcusable that a Senator should attempt to dictate who the judge shall be.” He described the rule as it actually operates.

Here is how it works — a vacancy occurs or a new judgeship is created. The Governor, after exhaustive consultation and careful eonsideration, sends to the Senate the name of the individual he deems most qualified by temperament and professional ability to occupy that judgeship. The nomination is referred to the Judiciary Committee for study and evaluation. The nominee’s home county Senator, who may or may not be a member of the committee, then announces that he will not move the appointment and thereby, under the tradition of senatorial courtesy, forecloses indefinitely any consideration by the committee on the merits of the nomination.

With this brief word as background, we return to the principal issued posed: may this practice, privilege, tradition — call it what you will — of senatorial courtesy be judicially examined and its constitutionality determined by this court, or is it immune from such scrutiny and judicial evaluation under the political question doctrine discussed above? In my opinion, as presented to this court in this case, the issue is nonjusticiable.

In Kligerman v. Lynch, 92 N. J. Super. 373 (Ch. Div. 1966) cert. den. 389 U. S. 822, 88 S. Ct. 49, 19 L. Ed. 2d 74 (1967), Judge Wick had occasion to consider this precise issue. He there observed:

Plaintiffs contend that rejection of qualified nominees for personal reasons is so arbitrary as to be incompatible with the power vested in the Senate, and that the framers of the Constitution never intended this check on the appointive power to supplant a properly exercised executive function.
While this court must agree with plaintiffs that the constitutional draftsmen never intended the advice and consent clause to be so used, it cannot agree that it has the power to rectify the situation, [at 3751

The decisiou of the court that the practice of senatorial courtesy presented a nonjusticiable issue was rested in large part upon a finding that it was not the intention of the framers of the Constitutions of 1844 and 1947 to invest the courts with power to supervise the Legislature’s internal procedures where these are not spelled out in the Constitution. With this I agree. Furthermore, there may be added, as additional grounds for reaching the same result, the first two of the “formulations” set forth by Justice Brennan in Baker v. Carr, supra, and quoted above. There is here “a textually demonstrable constitutional commitment of the issue” to the coordinate political branches of government. The Governor (Executive) is authorized to nominate and appoint. The Senate (Legislative) is to advise and, before the appointment may be finally made, to consent. Here is a clear commitment derived from the text of the Constitution itself. N. J. Const. (1947), Art. VI, § 6, par. 1. In Powell v. McCormack, supra, it was held that an internal matter (determination of membership) in a legislative body (House of Representatives) was reviewable by the court, but there the specific qualifications for membership were themselves set forth in the Constitution. In asserting and exercising its right to review, the court did no more than establish the exclusive nature of the particular qualifications for membership in the House that the Constitution enumerated. There are no similarly express constitutional directions as to the precise manner in which the Executive and Legislative Branches are to undertake their responsibility of making appointments. No standards to guide judicial action are supplied; in Powell they are explicit.

Thus, there is also “a lack of judicially, discoverable and manageable standards” for resolving the issue. How is a judicial inquiry to be undertaken to find out whether, in fact, inaction on the part of the Senate results from a deference to the tradition and practice of senatorial courtesy or from some other cause? Are senators to be interrogated as to the reasons and motivations for their actions or their inactions ?

Eor these various reasons the court concludes that whether the practice of senatorial courtesy is or is not constitutional, at least as the point arises here, it is a nonjustieiable issue which the court should not undertake to resolve. Whether the practice is to be longer sanctioned or finally condemned must be determined at the bar of public opinion.

Specific relief is also sought against the Governor. It must be denied for several reasons. In the first place, in the exercise of the appointing power the Executive Branch of the State Government is immune from judicial supervision to the same extent and for the same reasons as is the Legislative Branch. The reasons are set forth above and apply equally to each of the political branches of government in the exercise — or seeming nonexercise — of this constitutionally delegated authority. Secondly, the relief sought would require the court to issue a writ of mandamus or an order or judgment closely akin thereto. Such a judicial directive will not issue against the Chief Executive. In the third place, the issue is moot, or perhaps more accurately, no case or controversy is projected.

As to the question of mandamus, we do not need to look beyond a leading decision of our own courts. State v. Governor, 25 N. J. L. 331 (Sup. Ct. 1856). In that case William Gledhill claimed to have been elected surrogate of Passaic County and sought a writ of mandamus to compel Governor Price to issue his commission. The court denied the relief sought

* * * upon the broad ground that this court has no power to award a mandamus, either to compel the execution of any duty enjoined on the executive by the constitution, or to direct the manner of its performance. The exercise of such power would be an unwarrantable interference with the action of the executive within his appropriate sphere of duty. The constitution has divided the powers of government into distinct departments, and cautiously provided for their independent exericse. It has expressly forbidden any person belonging to, or constituting one of these departments, from exercising any of the powers properly belonging to either of the others, except as expressly provided in the constitution itself, [at 349-350].

Plaintiffs’ argument that the granting of the commission was merely a ministerial act and might therefore be ordered by the court was likewise rejected upon the ground that whether ministerial or discretionary, it was nontheless an executive act and as such beyond the reach of judicial supervision. We have before us a much stronger case for the denial of relief, an exercise of the appointing power being highly discretionary. More recent pronouncements to the same effect include Cole v. Corio, 105 N. J. L. 511, 513 (Sup. Ct. 1929); Prudential Ins. Co. of America v. Clifton, etc. Co., 109 N. J. Eq. 349, 350 (Ch. 1931); Driscoll v. Sakin, 121 N. J. L. 225 (Sup. Ct. 1938); Allan v. Durand, 137 N. J. L. 30 (Sup. Ct. 1948).

Finally, there is really no controversy as to this issue before the court. At the time the suit was started Governor Hughes had taken appropriate action with respect to all existing vacancies.

Plaintiffs project one further argument which should be considered. Art. V, § 1, par. 13 of our State Constitution authorizes, but does not require, the Governor to make an ad interim appointment to “fill any vacancy occurring in any office during a recess of the Legislature.” I withhold any determination as to whether there is or has been a “recess of the Legislature.” Suffice it to say that for reasons given above the court would in no event have the competence to direct the Executive to exercise the power of ad interim appointment conferred by this paragraph of the Constitution, assuming such recess to exist.

The argument seems to go further and to suggest that the nominations presently before the Senate are no longer viable. I cannot read this constitutional provision to support such a result.

The court has purposely refrained from passing upon the question as to whether plaintiffs do or do not have standing in respect of any of the particular issues raised, having preferred to treat the case in the manner set forth above.

Counsel may submit a form of judgment reflecting the conclusion reached.

       More than a century after Hamilton’s prophecy, ex-President Taft is quoted as having said that “[t]he appointing power is in effect in their (the Senators’) hands, subject only to a veto by the President.” 2 Haynes, The Senate of the United States 736 (1938).

       “The Senate * * * when loath openly to reject a nomination, has often taken no action upon it, or after long delay, has voted to postpone its consideration indefinitely. At least ten nominations to the Supreme Court have been blocked in this way.” 2 Haynes, The Senate of the United States 770 (1938).

        Mazur, Senatorial Confirmation Procedure in American State Governments 4 (1950), (Unpublished thesis, Library of University of California.)


author: Rosenberg, J. C. C.

text:
    NATHAN BERNSTEIN, AS A CITIZEN AND TAXPAYER OF THE BOROUGH OF POMPTON LAKES, PLAINTIFF, v. DONALD KROM AND THE MAYOR AND COUNCIL OF THE BOROUGH OF POMPTON LAKES, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Argued December 12, 1969
    Decided December 18, 1969.

      Mr. Nathan Bernstein appeared for plaintiff (Messrs. Slingland, Bernstein & Van Hartogh, attorneys).

      Mr. Lawrence Isenberg appeared for defendants (Messrs. Isenberg & Isenberg, attorneys).
   Rosenberg, J. C. C.

(temporarily assigned). Plaintiff has brought an action in lieu of prerogative writs to remove Donald Krom from the office for which he was appointed to fill the vacancy of Councilman William Schneider whose term would have terminated December 31, 1970.

Krom was elected as a councilman of the Borough of Pompton Lakes, New Jersey, for a term commencing January 1, 1966 and expiring December 31, 1968. He ran for reelection on November 5, 1968 and was defeated. On December 4, 1968 Councilman Schneider resigned as councilman, which resignation was duly accepted. His term, as stated, would have terminated December 31, 1970. On December 18, 1968 Krom resigned and his resignation was duly accepted. Thereafter Krom was appointed by the mayor and council of the borough to fill the vacancy created by Schneider. In the election held November 4, 1969, Krom was elected as councilman for a term of one year commencing January 1, 1970.

Plaintiff’s claim is that the appointment of Krom was invalid under N. J. S. A. 40:46-5, which reads as follows:

Members of governing body ineligible for certain offices.

No member of any governing body of any municipality shall, during the term for which he shall have been elected or appointed such member, be eligible for election or appointment to an office required to be filled by the governing body of which be is a member, unless such office is required by law to be filled by a member of such governing body; provided, nothing herein contained shall prohibit a councilman or alderman or commissioner or member of a township committee from resigning as councilman or alderman or commissioner or member of a township committee and being appointed to a position required to be filled by the governing body of a municipality during the time for which he was elected such councilman or alderman or commissioner or member of the township committee; provided, further, that said position shall have been in existence and continuously filled for 5 years or more prior to the passage of this act or was created by statute; provided, said position was not created during said term of office; and provided further, that the salary of said office shall not be increased during the term for which said councilman or alderman or commissioner or member of the township committee was elected. [Emphasis added]

Defendant concedes that plaintiff has standing to bring this action as a citizen and taxpayer and as an inhabitant of the municipality. Goff v. Hunt, 6 N. J. 600 (1951); N. J. S. A. 2A:66-6. The parties have agreed to the above-stated facts.

Normally the time in which an action in lieu of prerogative writs may be brought in a matter such as this is no later than 45 days after the accrual of the right to review or relief claimed. However, the court may enlarge the period of time provided in paragraph (a) of the rule where it is manifest that the interests of justice so require. B. 4:69-6 (a) (c). I have enlarged the period of time in the interest of public importance.

It is quite clear from the facts that the resignation of Krom had but one purpose, and that was to extend his term of office beyond December 31, 1968, and was in opposition to N. J. S. A. 40:46-o. Such appointment does not have the color of law.

In the case of Doughty v. Scull, N. J., 96 A. 564 (1915), our former Supreme Court held that where a member of the common council of a city resigned so that he might be appointed to fill a vacancy, the term of which would continue for two years longer than his own, his selection to fill the vacancy was void. 3 C. S. (1910), § 79, at 3478, prevented a member of a common council from resigning so that he might be appointed to fill a vacancy, the term of which was longer than his own. The statute provided that “no member of any * * * common council, * * * during the term for which he shall have been elected such member, [shall] be eligible for election or appointment to any office that is now or hereafter may be by law required to be filled by any such * * * council * * * of which he is such member.” That is precisely the situation before me now. The question, then, is whether the amendments to the statute cited above, incorporated in N. J. S. A. 40:46-5, must also be said to have overruled the holding in Doughty. For the following reasons I am satisfied that the statutory amendments have not had this effect.

Members of the governing body of a municipality have traditionally been classified as officers of the municipality. Rhyne, Municipal Law, § 8-2, at 117 (1957). Defendant urges that this court give a liberal construction to the use of the word “position” in N. J. S. A. 40:46-5, so that an “office” is included therein. It would then follow that the action which is in question would come within the enumerated exceptions set out in N. J. S. A. 40 :46-5. I find, however, that the courts of this State have distinguished “office” from “position.” See Kovalycsik v. Garfield, 58 N. J. Super. 229, 236 (App. Div. 1959), where Judge Conford indicated that “an ‘office’ presupposes employment which is governmental in character and duties certain and permanent; in a position the duties, while certain and permanent, may or may not be governmental (and are not assigned to it by any public law of this state)." See also, Stewart v. Freeholders of Hudson, 61 N. J. L. 117, 118 (Sup. Ct. 1897); Lewis v. Jersey City, 51 N. J. L. 240 (Sup. Ct. 1889). I further hold that even if the Legislature intended to include “office55 in the use of the word “position55 in N. J. S. A. 40:46-5, this intention must not be allowed to control on the facts of this case since, in construing a statute, a purpose to disregard sound public policy must not be attributed to the law-making power except upon the most cogent evidence. Jersey City Gaslight Co. v. Consumers’ Gas Co. of Jersey City, 40 N. J. Eq. 427, 430 (Ch. 1885). Such a sound public policy is present in this case. This court will not tolerate this sort of manipulation, which could conceivably allow a person to remain in public office for a long period of time without being subject to the public vote. This practice was condemned by our Supreme Court in 1915 in Doughty, supra, and is now condemned by this court in 1969.

I find the appointment of Donald Krom to the council of the Borough of Pompton Lakes invalid. In addition thereto, any actions taken by the mayor and council of the borough during Krom’s invalid holding of office are not affected for the reason that he was at least a de facto member of the council. Brinkerhoff v. Jersey City, 64 N. J. L. 225 (E. & A. 1900).


author: Beronio, J. C. C.

text:
    IN THE MATTER OF THE ESTATE OF JAMES MELLETT, DECEASED.
    Hudson County Court Probate Division
    Argued December 15, 1969
    Decided December 19, 1969.

      Mr. Edward B. Heyd appeared for plaintiffs (Messrs. Darling and Joles, attorneys).

      Mr. Cyril J. McCauley appeared for cross-plaintiffs (Messrs. Rinaldi, McCauley, Kauper & Cosgrove, attorneys).
   Beronio, J. C. C.

James Mellett died intestate on June 26, 1969, a resident of Jersey City, New Jersey. He was survived by three brothers, Martin and Daniel, residents of Ireland, and John, currently residing in Bath, New York, and by six children of a deceased sister.

On September 5, 1969 a complaint for letters of administration was filed in the surrogate’s court of Hudson County, New Jersey, by Helen Brown and Josephine DeGregory, nieces of decedent, together with renunciations of John Mellett, decedent’s brother, Jean Gailor, niece, Thomas Hathaway, nephew, Donald Hathaway, nephew, and Robert Hathaway, nephew, all said nieces and nephews being children of Margaret Mellett Hathaway, a deceased sister of said intestate. Said nieces and nephews are all residents of New York State.

On September 17, 1969 cross-plaintiff Cyril J. McCauley, filed a caveat with the surrogate’s court of Hudson County, as attorney in fact for Martin Mellett and Daniel Mellett, brothers of decedent, protesting against the grant of letters of administration to anyone claiming to have equal or prior rights to administration.

Cross-plaintiff Cyril J. McCauley, a resident of New Jersey, is the nominee of Martin and Daniel Mellett, residents of County Mayo, Ireland, by virtue of powers of attorney executed by them in favor of George W. Cornell, Esq., 225 Broadway, New York City, New York, with power of substitution, and by virtue of substituted powers of attorney executed by said George W. Cornell, Esq., in favor of cross-plaintiff Cyril J. McCauley.

On October 2, 1969, on application of cross-plaintiff Cyril J. McCauley, an order to show cause was issued directing plaintiffs Helen Brown and Josephine DeGregory to show cause why administration should not be granted to said cross-plaintiff.

The issue presented involved the claim to letters of administration by two parties, one the nominee of two brothers of the decedent, and the other two nieces of decedent.

The statute governing this situation is N. J. S. A. 3A:6-4 “Letters of Administration; to whom granted”:

If any person dies intesiate, adminislration of the personal estate of such intestate shall be granted to the surviving spouse of such intestate, if he or she will accept the same, and, if not, or if there be no such person, then to the next of kin of such intestate, or some of them, if they or any of them will accept the same, and, if none of them will accept the same, then to such other proper persons as will accept the same.

The first question to be decided is whether the recipient of a power of attorney from one who is entitled, under the statute, to apply for letters of administration is the nominee of those persons so entitled or is the representative of those persons and entitled to apply for the letters of administration in their name. The cases are clear on this point. When a person who has the right to apply for letters of administration, such as the next of kin, delegates that right to another by a power of attorney, the recipient of the power of attorney is the nominee of those next of kin and is still a stranger to the estate since he will receive nothing from its distribution. In re Tenneson’s Estate, 18 N. J. Misc. 245 (Orph. Ct. 1940); In re Hadfield’s Estate, 70 N. J. Super. 483 (Cty. Ct. 1961).

The next question to be determined is what is meant by the words “next of kin” as used in the statute. “The statutory mandate entitling next of kin to administer is limited to those next of kin who are distributees of the estate, for such is the true construction of the statutory words ‘next of kin/ ” In re Fisher’s Estate, 17 N. J. Super, 207, 209 (Cty. Ct. 1952). It is undisputed that plaintiffs, Helen Brown and Josephine DeGregory are to share in the estate. Cross-plaintiff raises the point that the words “next of kin” mean the nearest relations of decedent. This is not so.

At (he very least, the cases mentioned show that the meaning of “statutory distributees” is the meaning ordinarily and generally accorded to the words “next of kin” (without more), by the courts and the legal profession in this state. There are, of course, many other cases evidencing the same thing — among which may be mentioned, Cramer v. Sharp, 49 N. J. Eq. 558, 24 A. 962 (where the court mentions, as being next of kin of decedent, children and grandchildren) ; In re Carney’s Estate, 83 N. J. Eq. 615, 19 A. 598 (similarly as to a brother and children of deceased brother) ; Genung v. Best, 100 N. J. Eq. 250, 135 Atl. Rep. 514 (brothers and sisters and children of deceased brothers and sisters) ; In re Leach’s Estate (McCawley v. Foster) 112 N. J. Eq. 68 (decedent’s mother and his brothers and sisters) — and similar instances could be multiplied by paging through the reports. [Apgar v. Hoffman, 113 N. J. Eq. 233, 237 (Prerog., Ct., 1933)].

This case shows that the statutory meaning of “next of kin” is not merely the closest relatives of decedent but all his relatives entitled under the statute of descent and distribution to share in the estate. The factual situation in the cited case of Genung v. Best, supra, is closely related to our present situation.

The final question to be decided is whether the nominee of a next of kin closer in relation to decedent is to be preferred over a next of kin of a remoter degree of affinity who have personally applied for the letters of administration. The answer is in the negative. Cresse’s Case, 28 N. J. Eq. 236 (Prerog. Ct. 1877). In that case the mother of the decedent-intestate and two sisters of decedent both requested that their nominee be granted letter of administration. The court made it clear that the nominee of the mother would not be appointed if the sisters had requested that the letters of administration be granted to them personally.

There two other cases which show that the right to administration is personal and if any of the next of kin apply for letters of administration they will be preferred over a stranger unless there is some disqualifying objection.

If it shall be made to appear that it is the unanimous wish of those who are entitled to distributive shares in the estate of Joseph Wallace that Messrs. Lippincott, Heulings, and Roberts shall be appointed the administrators of the estate, I will appoint them * * * but if this desire is not unanimous, and some of the kin, well qualified to discharge the duties of the office of administrator, desire to be appointed, I cannot disregard them for strangers. Rinehart v. Rinehart, 12 C. E. Gr. (27 N. J. Eq.) 475. The right of the next of kin to administration is personal. Cresse’s Case, 1 Stew. Eq. (28 N. J. Eq.) 286. It may be renounced, but it cannot be assigned or transferred. Hence the majority cannot demand the appointment of strangers. [In re Wallace’s Case, 49 N. J. Eq. 530, 549 (Prerog. Ct., 1892)]

Also in Cramer v. Sharp, 49 N. J. Eq. 558 (Prerog. Ct. 1892), the court deals with our present situation.

The right of administration grows out of the right of distribution, and consequently those who are entitled, by the statute of distribution, as to what remains as the intestate's clear estate, after payment of debts and expenses of administration, have an exclusive primary right to administration. This right, it has been held, is purely personal, not coupled with any power or right on the part of the person possessing it to nominate or select the person to be appointed. In re Cresse’s Estate, 1 Stew. Eq. (28 N. J. Eq.) 236, 237. This is undoubtedly true where a part of the next of kin, even a majority, ask for the appointment of a stranger, against the will of one of their own number, who is willing to take the appointment, and qualified to be the appointee, [at 561]

The application of Cyril J. McCauley for letters of administration, is denied and the letters are granted to Helen Brown and Josephine DeGregory.


author: Per Curiam.

text:
    THE STATE OF NEW JERSEY, COMPLAINANT-RESPONDENT, v. IN THE INTEREST OF G. J., JUVENILE-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued December 1, 1969
    Decided December 18, 1969.

      Before Judges Costeord, Collester and Kolovsky.

      Mr. John Oannel, Assistant Deputy Public Defender, argued the cause for appellant {Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. George A. Glujf, Assistant Prosecutor, argued the cause for respondent {Mr. John G. Thevos, Passaic County Prosecutor, attorney.)
   Per Curiam.

G. J., a 14-year-old girl, was charged with juvenile delinquency for excessive absence from school by complaint filed in the Juvenile and Domestic Belations Court February 5, 1968. The case having been listed on the court’s informal calendar (counsel not required; see R. R. 6 :9-l (c)), the girl was adjudged a delinquent and placed on probation on April 8, 1968. In March 1969 G. J. was charged with violation of probation. The court determined that her continued truancy from school constituted a probation violation and it committed her to the State Home for Girls. She is presently a resident of that institution and appeals from the commitment.

The basic ground of appeal is that since (a) the juvenile was not attended by counsel in the original delinquency proceeding, contrary to the requirement of In re Gault, 387 U. S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), for such representation in cases where adjudication is attended by institutional commitment, and (b) the ultimate commitment here was based on violation of the probation fixed by the original determination rather than upon an independent determination of guilt of juvenile delinquency, the commitment is unconstitutional nothwithstanding the fact that counsel attended the juvenile on the hearing for violation of probation. See also Burgett v. Texas, 389 U. S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967).

Intervening the two proceedings mentioned above, the juvenile on October 14, 1968 was brought before the court for her continued absence from school—a violation of probation. A one-day Menlo Park examination was ordered. She was continued on probation and the Probation Department was ordered to prepare a social examination report for the court. On Januaiy 28, 1969 the girl again was brought into court for truancy and thus another violation of probation. The transcript indicates that she was accorded commitment to the State Home for Girls, same being suspended on the basis of her promise that she would attend school. The probation officer was directed to keep the court informed as to any further truancy.

Thus, the March 1969 hearing and determination was the fourth occasion on which the court had for consideration the matter of G. J.’s truancy. This time the case was listed for the formal calendar (counsel required, see R. R. 6 :9—1 (c), (d)), and the juvenile was represented by the office of the Public Defender. She was examined by her counsel and by the court, and the court found on sufficient proof that she had been truant from school for part of January and all of Eebruary, 1969. In committing her, the court noted that the girl had been warned of the consequences of continued truancy.

While we fully appreciate the technical basis for the juvenile’s present claim of unconstitutionality of the commitment, we regard the absence of counsel at the previous hearings as harmless beyond a reasonable doubt and think that she has been visited with no real deprivation in a fundamental sense. The final'hearing, at which the girl had counsel, and after which commitment was ordered, was in the substantive, though not the technical sense, that hearing upon whose outcome commitment hung. It is in substance as though the March 1969 hearing were on charges of the January and Eebruary truancy, with the court taking into consideration a probation presentence report indicating habitual truancy theretofore. Eemand for a rehearing, with counsel, covering all the previous charges of truancy, could not be expected to result in a different outcome and would serve neither the interests of justice nor the child’s welfare.

We would suggest, however, that in the future, where a violation of probation has occurred and the original probationary order was imposed on the juvenile without the benefit of counsel at the hearing, the subsequent conduct constituting violation of probation be incorporated in a new complaint charging juvenile delinquency in relation to such conduct, to be heard on the formal calendar with counsel. In such instance, the previous behavior of the juvenile can be incorporated in a predisposition investigation and report for consideration by the court on disposition after adjudication of delinquency. See R. 5:9-l (f) (effective September 8, 1969). Counsel should be apprised thereof in advance.

Affirmed.