author: Michels, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CHRISTOPHER X. THOMPSON AND LAWRENCE X. THOMPSON, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued December 16, 1974
    Decided March 27, 1975.

      Before Judges Michels, Morgan and Milmed.

      Mr. Michael Grodjeski, Assistant Deputy Public Defender, argued the cause for appellants (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Franklin L. Flacks, Assistant Prosecutor, argued the cause for respondent (Mr. Wilbur H. Mathesius, Acting Mercer County Prosecutor, attorney).
   The opinion of the court was delivered by

Michels, J. A. D.

Defendants appeal from a judgment of the Law Division vacating its prior restraint against the transfer of temporary custody of defendants to New York in accordance with the provisions of the Interstate Agreement on Detainers adopted by both New York and New Jersey. Execution of the judgment was stayed pending appeal.

Defendants were convicted in Camden County on an indictment charging assault and battery upon a police officer, assault with intent to kill a police officer and possession of a weapon, and on June 18, 1971 were sentenced to State Prison terms totalling 15 to 19 years. Since that date defendants have been, and presently are, in the custody of New Jersey.

On June 15, 1973 an indictment was returned in Kings County, New York, charging defendants and five others with attempted murder, assault in the first degree, assault in the second degree and possession of weapons in Kings County on or about August 14, 1970. On June 30, 1973 warrants for the arrest of defendants were issued in Kings County and on December 3, 1973 they were lodged with the warden of the State Prison as detainers against both defendants. While, presumably, defendants were notified of these detainers pursuant to N. J. S. A. 2A:159A-3(e), neither one made a request for final disposition of the indictment on which the detainers were based. See N. J. S. A. 2A:159A-3(a).

Thereafter, on or about April 11, 1974, the District Attorney of Kings County requested temporary custody of both defendants under Article IV of the Interstate Agreement on Detainers (N. J. S. A. 2A:159A-4). Letters dated April 11, 1974 containing copies of requests for temporary custody (Form 5) of each defendant were sent to the Commissioner of Institutions and Agencies and the Superintendent of the State Prison. By letters dated June 4, 1974 the Acting Superintendent of the State Prison informed the District Attorney of Kings County that, with respect to each defendant, “We, as well as the prisoner, are in receipt of your Request For Temporary Custody,” and that he was notifying the Governor of the State of Now Jersey of the requests. He further informed the District Attorney that the Governor would have 30 days to approve or disapprove the request, and that he would advise of any further action, enclosing certificates of inmate status (Form 3) for each defendant. At the same time the Acting Superintendent sent to the Governor of the State of New Jersey letters dated June 4, 1974 in which he informed the Governor of the receipt of the requests for temporary custody for each defendant and indicated that each had also received his copy. The Acting Superintendent advised the Governor that the request was being referred to his office in accordance with Article IV, paragraph (a), of the Interstate Agreement (N. J. S. A. 2A:159A-4) and requested the Governor’s advice.

On June 24, 1974, before the Governor took any action on the request, defendant Christopher X. Thompson applied for and obtained an ex parte order in the Law Division restraining his transfer to New York for its temporary custody under the provisions of the Interstate Agreement. Defendant alleged that he never requested New York to obtain custody of him for the purpose of disposing of the detainer and requested a formal hearing to contest the legality of his transfer, pursuant to the provisions of N. J. S. A. 2A:159A-4(d). The ex parte order had the effect of also staying the transfer for temporary custody of defendant Lawrence X. Thompson.

On July 3, 1974 Assistant Counsel to the Governor acknowledged receipt of the request for temporary transfer of both defendants to New York and informed the Superintendent that the Governor had the right to disapprove the requests within 30 days of their receipt, and that the Governor “will not exercise his right in this instance as no grounds have been advanced for not honoring New York’s request.”

On October 25, 1974 the prosecutor moved to vacate the restraints. The Law Division judge held that Article IY of the Interstate Agreement on Detainers did not require an extradition type hearing and vacated the prior restraint against the transfer for temporary custody of defendants by New York. Defendants appeal, contending that such interpretation of Article IY violated their rights under the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution, and seek a stay of their delivery to New York until they have been brought before a judge of a criminal court of record and notified of their right to petition the Governor and, if they desire to contest the legality of their delivery to New York, to fix a reasonable time to apply for writs of habeas corpus. Cf. N. J. S. A. 2A:160-18.

Article IV (N. J. S. A. 2A:159A-4) in pertinent part provides:

ARTICLE IY
(a) The appropriate officer of the jurisdiction in which an untried, indictment, information or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party State made available in accordance with Article Y (a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the State in which the prisoner is incarcerated: provided that the court having jurisdiction of such indictment, information or complaint shall bave duly approved, recorded and transmitted the request: and provided further that there shall be a period of 30 days after receipt by the appropriate authorities before the request be honored, within which period the Governor of the sending State may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner.
* * **
(d) Nothing contained in this Article shall be construed to deprive any prisoner of any right which he may have to contest the legality of his delivery as provided in paragraph (a) hereof, but such delivery may not be opposed or denied on the ground that the executive authority of the sending State has not affirmatively consented to or ordered such delivery.

We construe the phrase “to contest the legality of his delivery as provided in paragraph (a) hereof” to mean that within 30 days after receipt by the appropriate authority in the sending state of the written request by the receiving state for temporary custody of the prisoner, the prisoner may move before the Governor of the sending state to disapprove the request. His failure to do so would be tantamount to a waiver of any right which he may have to contest the legality of his delivery. Defendants never moved before the Governor to disapprove New York’s request for temporary custody of them, and therefore we hold that they waived any right which they may have had to contest the legality of their delivery to New York. Moreover, the Governor did not disapprove the requests, thereby entitling the District Attorney of Kings County to have defendants made available in accordance with the provisions of Article Y of the Interstate Agreement (N. J. S. A. 2A:159A-5) so that a speedy and efficient prosecution may be had of the pending indictment against them in Kings County.

We find no merit to defendants’ constitutional attack on Article IY of the Interstate Agreement. Procedural due process is satisfied. The filing of a detainer under the Interstate Agreement served to inform defendants that criminal charges had been brought against them in New York, and that Article IY required that there be a period of 30 days after receipt by the appropriate New Jersey authorities of a request for temporary custody before defendants may be released to New York. Thus, defendants were given notice and afforded a reasonable time within which to contest the legality of their delivery to New York. Wertheimer v. State, 294 Minn. 293, 201 N. W. 2d 383, 386 (Minn. Sup. Ct. 1972).

Moreover, we do not agree that the Equal Protection Clause is violated by the failure to afford defendants an extradition type hearing. The Equal Protection Clause of the Fourteenth Amendment goes no further than to prohibit invidious discrimination. Schilb v. Kuebel, 404 U. S. 357, 379, 92 S. Ct. 479, 30 L. Ed. 2d 502, 519 (1971); Williamson v. Lee Optical Co., 348 U. S. 483, 489, 75 S. Ct. 461, 99 L. Ed. 563, 573 (1955); Shelton College v. State Bd. of Ed., 48 N. J. 501, 521 (1967).

* * * If there is some reasonable basis for the recognition of separate classes, and if the disparate treatment of the classes has a rational relation to the object sought to be achieved by the lawmakers, the Constitution is not offended. The transgression arises only when the classification rests upon grounds wholly irrelevant to achievement of the State’s objective; the separate treatment must admit of but one conclusion beyond a rational doubt, i. e., that the basis therefore is arbitrary and unreasonable and •without relevance to the legislative goal. State v. Young, 57 N. J. 240, 219-250 (1970); New Jersey Chap., American Institute of Planners v. N. J. State Bd. of Prof. Planners, 48 N. J. 581, 601—603, appeal dismissed 389 U. S. 8, 88 S. Ct. 70, 19 L. Ed. 2d 8 (1967); David v. Vesta Co., 45 N. J. 301. 314-315 (1965). [State v. Smith, 58 N. J. 202, 207 (1971)].

There is a reasonable basis for recognizing as a separate class those persons already in prison whose temporary custody is sought pursuant to Article IV of the Interstate Agreement on Detainers in order to dispose of pending criminal charges against them and thus eliminate some of the nneertainties that obstruct programs for their treatment and rehabilitation, and to treat them differently from persons not in prison whose custody is sought pursuant to the Uniform Criminal Extradition Law. The Interstate Agreement on Detainers was adopted to expedite the disposition of criminal charges pending against a person in one state who is serving a term of imprisonment in another state by providing for the transfer of a prisoner by the state of imprisonment for temporary custody in the state which lodged the detainer based upon the pending criminal charge, in order that the prisoner may be brought to trial on such charge. The transfer may be made either on the prisoner’s initiative under Article III or on the initiative of the state lodging the detainer under Article IV. See State v. Masselli, 43 N. J. 1, 4 (1964). During the continuance of temporary custody for trial, time being served on the sentence continues to run, and after the trial is concluded the prisoner is to he returned to the sending state “at the earliest practical time.” See Carrion v. Pinto, 79 N. J. Super. 13, 16 (App. Div. 1963). Consequently, when there is a transfer of temporary custody under the Interstate Agreement, the person already incarcerated suffers no additional restriction on his freedom. However, a person not in custody whose custody is sought pursuant to the Uniform Criminal Extradition Law loses Ms freedom, requiring greater safeguards to protect Mm from unwarranted extradition.

The result that we reach here is supported by Wertheimer v. State, supra, where the Minnesota Supreme Court rejected a similar constitutional attack on the Interstate Agreement on Detainers, stating:

We cannot agree that such a classification is per se arbitrary and unreasonable. A prisoner is in a situation completely different from that of the ordinary citizen whose freedom is unrestricted. By being called upon to defend against a charge in another jurisdiction, a prisoner suffers no additional restriction on his freedom; he continues to gain credit for time served while in the temporary custody of the foreign jurisdiction. The average citizen, however, faces a far different situation. His freedom of movement, previously unrestrained, is brought to an and. He is removed from his community, family, friends, and job under conditions which may permanently cloud his reputation, and, as such, his need for protection from extradition on spurious charges is far greater than that of the prisoner, [at 38S-386]

We are not persuaded to reach a different result by State ex rel. Garner v. Gray, 55 Wis. 2d 574, 201 N. W. 2d 163 (1972), cited by defendants. There the Wisconsin Supreme Court held that the Uniform Detainer Act violated procedural due process requirements and the Equal Protection Clause of both the federal and state constitutions in that it failed to adequately notify a prisoner of his right to petition the governor to deny the custody request or to seek a writ of habeas corpus challenging his impending transfer. The court also held that the Detainer Act violated the Equal Protection Clauses of both constitutions because there was no rational basis to distinguish between prisoners whose custody was sought under the Detainer Act and prisoners whose custody could be sought under the Extradition Act. The Wisconsin Supreme Court ruled that the constitutional defects, however, could be cured by requiring that any person who is sought by out-of-state authorities under the Detainer Act be afforded a type of hearing similar to that provided by the Extradition Act, at which hearing a prisoner sought to be delivered may be advised by a judge of a court of record of the existence of the detainer and his various rights under the Detainer Act. We have carefully studied the majority opinion in that case and disagree with it. We find the excellent analysis of the constitutional issues by Justice Hansen in the dissenting opinion (201 N. W. 2d at 170) to be far more compelling and in accord with our construction of the Interstate Agreement.

For the reasons herein expressed we affirm the judgment of the Law Division vacating the restraints against the transfer of defendants to New York for temporary custody in accordance with the provisions of the Interstate Agreement on Detainers, and we vacate the stay of execution of judgment which we granted pending this appeal.

      At oral argument we requested that defendants’ counsel inform us of the factual basis for the challenge to the legality of defendants’ delivery to New York pursuant to Article IV, and accordingly each defendant filed an affidavit which states: “I am unable to recollect where, or who I was with at the time of the alleged offense. I cannot recall even the day of the week that far in the past. Therefore I feel that the burden lies on the New York authorities.” Thus, even if defendants were granted an extradition type hearing, they would be unable to offer any contradictory proof to overcome the presumptive evidence that they were charged with crimes under laws of the State of New York, that they were within the jurisdiction of New York when the crimes allegedly occurred, and that they had since fled the jurisdiction. See State v. Phillips, 62 N. J. Super. 70, 74-75 (App. Div. 1960), aff’d o.b. 34 N. J. 63 (1961); State v. Foley, 32 N. J. Super. 154, 158-159 (App. Div. 1954).


source: Caselaw Access Project

author: Ackerman, J. A. D.

license: Public Domain

text:
    ESSEX COUNTY WELFARE BOARD, PLAINTIFF-RESPONDENT, v. CURTIS PERKINS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 30, 1974
    Decided March 14, 1975.

      Before Judges Halpern, Crahay and Ackerman.

      Ms. Rita L. Bender argued the cause for appellant.

      Mr. Ralph J. Salerno argued the cause for respondent (Mr. William, J. Tamburri. of counsel).
   The opinion of the court was delivered by

Ackerman, J. A. D.

Appellant asserts two points on this appeal. The first is that the Juvenile and Domestic Relations Court had no power or authority, in proceedings pursuant to R. 1:10-5 to enforce litigant’s rights under a support order granted under the Poor Law (N. J. S. A. 44:1-143 et seq.) to place him on probation. The second point is that he was denied his rights of due process in°the proceedings to enforce litigant’s rights because he was not advised of his right to counsel and he was also not advised of his privilege against self-incrimination under the Fifth Amendment.

A full outline of all the proceedings below is not necessary. In October 1968 appellant was ordered by the Juvenile and Domestic Eelations Court, on complaint of the Essex County Welfare Board, to pay $40 a week through the Essex County Probation Office for the support of his wife and three children. He failed to comply and a proceeding to enforce litigant’s rights was instituted. After a lapse of V/a years he was finally arrested and a hearing was held on October 8, 1971, at which time an order was entered reciting that he had been tried for nonsupport and suspending sentence on the condition that he be placed on probation for three years and, in addition to the conditions of probation set forth in N. J. S. A. 2A:168-2, that he pay $25 a week support through the probation office.

A second proceeding to enforce litigant’s rights was subsequently commenced because of appellant’s defaults. On October 31, 1972, after he had been arrested and another hearing held, an order was entered vacating arrears, increasing weekly support to $35 and "continuing probation.”

He continued to fail to fully comply and in October 1973 he was again arrested and charged with violation of probation. He was provided with counsel and on November 28, 1973 a hearing was held before the late Judge Kenarik. At that hearing appellant asserted that the order of October 8, 1971, placing him on probation was invalid on the ground that probation cannot be imposed in a proceeding to enforce litigant’s rights which is essentially civil in nature.

In a comprehensive oral opinion Judge Kenarik ruled that the 1971 order imposing probation was valid and proper. He entered a new order dated November 28, 1973, finding that appellant was guilty of violation of probation because of (1) failure to report to the probation officer as required by the conditions of probation, and (2) failure to make support pajements. He concluded that appellant, who acknowledged that he had worked steadily for 17 years for the same employer and had earned between $120 and $130 net a week during the period covered by the support orders, had the ability to pay and had no excuse for noncompliance. Although the judge recognized that appellant could be placed in jail until ¡he complied with prior orders or promised to comply, he suspended sentence and continued probation. He further ordered that appellant should pay $35 a week support plus $10 arrears. This appeal followed.

It is apparent from the above that we have before us the typical case, so often faced by the juvenile and Domestic Relations Court, of a man who willfully fails to support his family over a period of years, forcing them to require ever-increasing assistance from public funds, and who makes sporadic contributions to support only because of court compulsion.

Appellant’s main ground for appeal, as indicated above, is that the court lacked power to place him on probation. Although the appeal is from the order of November 28, 1973, it is also a challenge to the validity of the order of October 8, 1971. One may argue, as the respondent does here, that, having failed to take a timely appeal from the earlier order, appellant is foreclosed from questioning it. See Lathrop v. Lathrop, 57 N. J. Super. 532, 537 (App. Div. 1959); Quagliato v. Bodner, 115 N. J. Super. 133 (App. Div. 1971). However, since a timely appeal has been taken from the later order, which was necessarily predicated on the earlier order, we think that essential fairness mandates consideration of the manner in which the final result was reached and we pass to the merits.

The gravamen of appellant’s argument is that probation is available only in criminal matters where punitive sanctions are permitted. He contends that probation subjects one to a curtailment of liberty and that one on probation is made to "feel like a criminal.” It is claimed that probation is an alternative- to a jail sentence, which is normally suspended but may be revived if the conditions of probation are violated, and it is argued that since, a fixed jail sentence can never be imposed in a proceeding to enforce litigant’s rights and no imprisonment at all may be ordered if a defendant lacks ability to pay, probation is not appropriate because the threat of imprisonment for a fixed term on violation is lacking. He claims that the decision in New Jersey Department of Health v. Roselle, 34 N. J. 331 (1961), which emphasized the differences between contempt proceedings and those to enforce litigant's rights, supports his arguments.

We find that his contentions, rejected below, lack merit. Although we affirm essentially for the reasons stated by J ndge Kenarik in his opinion below, we think it appropriate, since the basic powers and everyday practices of the Juvenile and Domestic .Relations Court in imposing probation in support cases are involved, to make some additional comments.

There is no doubt that there is a vast difference between a contempt proceeding under R. 1:10-2 to 4 and a proceeding to enforce litigant’s rights under R. 1:10~5. The latter is essentially a civil proceeding to coerce the defendant into compliance with the court’s order for the benefit of the private litigant. In such proceeding the judge, before ordering any sanction, must determine that defendant has the ability to comply with the order which he has violated, and incarceration may be ordered only if made contingent upon defendant’s continuing failure to comply with the order. Release must be available immediately upon defendant’s compliance. Defendant may not be sentenced to a specific jail term. A contempt proceeding, on the other hand, is essentially criminal and punitive in nature. Its purpose is to punish defendant in the public interest for failure to comply with the order and it may be instituted only by the court. Defendant is entitled to counsel and other safeguards appropriate to criminal proceedings. A fixed jail sentence may be imposed. See New Jersey Department of Health v. Roselle, supra; In re Carton, 48 N. J. 9 (1966); In re Reeves, 60 N. J. 504 (1972); Pierce v. Pierce, 122 N. J. Super. 359 (App. Div. 1973).

Because of the criminal aspects of contempt and the fact that a fixed jail term may be meted out, the right to place a defendant on probation and to impose the conditions of probation specified in N. J. S. A. 2A:168-2 has never been questioned in contempt proceedings. In re Ruth M. Buehrer et al, 50 N. J. 501 (1967). We deem it clear that probation may also be used in civil proceedings to enforce litigant’s rights under R. 1:10-5.

In the ordinary case, where the court order which is the subject of enforcement proceedings pursuant to R. 1:10-5 involves only the performance of a single act, confinement until there is performance is the best solution and the imposition of probation is not a useful alternative. The same does not apply where the order of the court requires continuing performance — this is particularly true where the orders involved are support orders. Where the order is a continuing one and enforcement is contingent upon the ability to comply, which normally requires that defendant continue to work and earn money, incarceration will often serve only to remove his ability to perform. This does not solve the problems which his family has and serves only to increase the burden on the public since it frequently happens, as here, that there are related problems of administration of public assistance and welfare payment programs. See Buchanan v. Essex Cty. Welfare Bd., 117 N. J. Super. 541 (App. Div. 1971). Probation, despite the problems of enforcement if its conditions are violated, is a viable and practical alternative to coerce the defendant’s contniued compliance. It is preferable to imprisonment if it works.

Although there may be erroneous impressions to the contrary because the term “probation” is associated by most persons with criminal matters, the probation office in each county does not serve only in the criminal field. It is an arm of the state judicial system. It performs investigations and collects monies from the courts in both civil and criminal matters. Eor many years, in accordance with court rules so providing, support and alimony payments in almost all cases have been paid through the probation office. See former R. R. 4:98-9(a), now R. 4:?9-9(a). Probation as a judicial tool has not been limited to criminal matters. Wholly apart from practices which may have existed at common law and antedated specific statutory authority, the statutes relating to probation and the duties and functions of the probation office have provided since at least 1929 for probation or "supervision” in quasi-criminal and matrimonial and domestic relations cases as well as in criminal cases. See N. J. S. A. 2A:168-1 through 13, particularly §§ 1, 4 and 11, having their source in L. 1929, c. 156. See also, Adamo v. McCorkle, 13 N. J. 561 (1953), cert. den. 347 U. S. 928, 74 S. Ct. 531, 98 L. Ed. 1080 (1954); Godfrey v. McGann, 37 N. J. 28, 34-35 (1962).

N. J. S. A. 2A:168-1 provides in part as follows:

When it shall appear that the best interests of the public as well as of the defendant will be subserved thereby, the courts of this state having jurisdiction over criminal or quasi-criminal actions shall have power, after conviction *’ * * for any crime or oifense, * * *, to suspend the imposition or execution of sentence, and also to place the defendant on probation under the supervision of the chief probation officer of the county, for a period of not less than 1 year nor more than 5 years.
The courts having jurisdiction over juvenile or domestic relations cases, when it shall appear that the best interests of the public as well as of the person adjudged guilty of any offense, * * *, before such court will be subserved thereby, shall have power to place the defendant on probation for a period of not less than 1 year nor more than 5 years. ~ * *"

N. J. S. A. 2A:168-11 provides in part that

* «■ <• rpjle ¿iuties of probation officers shall be, among others: *?}»##’*** *•
b. To receive under their supervision, on request of the court having jurisdiction, any person ordered to pay any sum for alimony or support in an order or judgment entered in a matrimonial action;
c. To receive under supervision any person placed on probation by any court within the county * *

Lathrop v. Lathrop, 57 N. J. Super. 532 (App. Div. 1959), is a direct holding that probation may be imposed in a proceeding to enforce litigant’s rights. There a judgment had issued out of the Chancery Division in a divorce case, granting custody of children to the wife and rights of visitation to the husband. The wife refused to allow visitation. The trial judge found the wife guilty of “civil contempt,” imposed an indefinite sentence, suspended it, and placed her on probation for five years subject to seven conditions of probation, all relevant to visitation rights. This court affirmed that order. We held, first, that the order was authorized by the terms of the first sentence of N. J. S. A. 2A:168-1, authorizing probation in “g^asi-criminal” actions; we concluded that the language of that portion of the statute, properly construed, confers upon courts the power to use probation. as an adjunctive sanction in “civil contempt” cases. Secondly, we held that the adoption of N. J. S. A. 2A:168-1 through 13 and its predecessor statutes did not have the purpose or intention of preempting the entire field of judicial use of probation as it was known at common law, and that the inherent jurisdiction of the Chancery Division included any reasonable procedures designed to enforce judgments or orders for litigants, including the placing of a defendant on probation.

The correctness of the decision in Lathrop has never been questioned in subsequent cases. Nor has any attempt been made in the intervening years to amend the statute and thus the construction placed upon the first sentence thereof in Lathrop may be deemed to have been acquiesced in by the Legislature. The Roselle case, which it antedated by two years, is not to the contrary. There the Supreme Court took the occasion to clarify and reaffirm the differences between public and private enforcement proceedings and to point out that the common use up to that time, in the court rules and elsewhere, of the term “civil contempt” to designate proceedings on behalf of a private litigant to enforce compliance with a court order was inaccurate and a misnomer. However, as is apparent from a reading of Chief Justice Weintraub’s opinion in that case and the authorities therein cited, the basic substantive differences between contempt and private enforcement proceedings enunciated therein, summarized above, had long been established in our law. The Roselle case did not deal with the matter of probation or forbid its use in proceedings to enforce litigant’s rights. Although in the fashion of the times references were made in Lathrop to “civil contempt” and “criminal contempt”, the fundamental distinctions set forth in Roselle, which were subsequently carried into the court rules by amendment in 1965 (R. R. 3:8 and 4:87) and are now found in R. 1:10, were observed. See also Lathrop v. Lathrop, 50 N. J. Super. 525 (App. Div. 1958).

The decision in Lathrop that there is inherent jurisdiction to use the probation procedure where appropriate in civil proceedings to enforce litigant’s rights is supported by the recent decision of the Supreme Court in State v. Carter, 64 N. J. 382 (1974). There it was held that courts have inherent power apart from statute to fashion “probation” to provide conditional releases for persons committed to state hospitals as criminally insane. Justice Pashman, writing for the court, said:

The fact that the Legislature has acted to provide a remedy does not mean that the judicial branch is limited to the boundary lines of strict legislative expression in fashioning or denying remedies in a particular case. * * *
*■ * * Probation has a deep-rooted common law basis. The enactment of a statute relating to a particular aspect of probation does not preempt the entire field. Lathrop v. Lathrop, 57 N. J. Super. 532, 538-539 (App. Div. 1959). It follows that a statute neglecting to mention probation would certainly not preempt the court’s ability to provide for it. * * * The courts have power to fashion psychiatric out-patient probation in the form of conditional releases, [at 392-393]

See also State v. Johnson, 42 N. J. 146, 174-176 (1964); N. J. S. A. 2A:10-1, last paragraph.

This inherent jurisdiction to use probation where it may reasonably be employed as an alternative to incarceration to enforce orders in favor of litigants is vested in the Juvenile and Domestic Relations Court. See N. J. S. A. 2A:4-18, 2A:4-19.

Because of the nature of the matter before it and the fact that it came up from the Chancery Division, the court in Lathrop (held in the circumstances that “it is not necessary for us to determine whether the exercise of the probation procedure in this case may also be supported on the basis of the reference in the statute [i. e., N. J. S. A. 2A:168-1, second sentence] to courts having jurisdiction over ‘juvenile or domestic relations cases/ ” 57 N. J. Super, at 538. We now hold that the second sentence of N. J. S. A. 2A:168 — 1 specifically vests authority in the Juvenile and Domestic Relations Court to impose probation in civil proceedings to enforce litigant’s rights under support orders. Indeed, the provisions of N. J. S. A. 2A:168-11 (b) and (e) grant authority to that court to place a defendant, who is ordered to pay support, on probation prior to a failure to comply with the order.

Eor many years the court rules, consistent with the statutes relating to probation and the inherent power of the courts, including the Juvenile and Domestic Relations Court, to provide reasonable remedies to enforce their orders, have contained broad provisions providing for probation in terms which permit its use in civil proceedings to enforce litigant’s rights under support orders. See R. 5:6-4, having its source in R. R. 6:6-5, second sentence, and R. R. 6:6-8, which had its source in Rule 6:5 — 8 of the 1948 Rules; R. 5:6-1, which had its source in R. R. 6:6-4, preceded by Rule 6:5 — 3 (d) of the 1948 Rules. Indeed, for 16 years, from 1953 until 1969, the rules contained a provision, similar to N. J. S. A. 2A:3 68— 11(b), authorizing the court to place a defendant, ordered to pay support, on probation prior to any default under the order. The first sentence of R. R. 6:6-5, adopted in 1953, provided :

When the court has entered an order for support it may order the defendant to be placed under the supervision of the chief probation officer of the county to insure the carrying out of the terms of the order for support.

The proposed revision of the rules in 1966 included the carryover of the above provision, with minor language changes, as proposed R. 5 :6-3(c), but it was omitted in the 1969 revision. See R. 5:6-3. The elimination of the provision was dictated by policy reasons rather than by any lack of power or authority, and it has not in any way affected the power of the Juvenile and Domestic Delations Court to place a defendant on probation after default in civil proceedings to enforce a support order pursuant to R. 1:10-5. Nor is the decision in Plath v. Plath, 99 N. J. Super. 394 (App. Div. 1968), a holding that such power is lacking. There the Juvenile and Domestic Delations Court, in issuing a support order, placed defendant, prior to default, on probation for one year, and the condition of probation was that defendant’s salary should be turned over to the Probation Department which should thereupon budget said income and fix the amount of support for defendant’s family and for his own needs. It was held that this order was illegal because it delegated to an agency other than the court itself the function of adjudicating the amount of support. The court said:

It was also error in this essentially civil proceeding to subject defendant, prior to adjudication of default of a prior order, see Lathrop v. Lathrop, 57 N. J. Super. 532 (App. Div. 1959), to the criminal and quasi-criminal probation procedures of N. J. S. 2A:168-2.
The court may not have so intended, but the order was so interpreted by the probation department in imposing a number of probation eonditons appropriate only in a criminal or quasi-criminal context. Probationary supervision of the support order, in the background of this particular ease, should be confined in terms to the authority granted by R. R. 6:6-5. See N. J. S. 2A:168-11(b); Godfrey v. McGann, 37 N. J. 28, 34 (1962). [at 396, emphasis supplied]

The effect of Plath is rather clearly to affirm the validity of R. R. 6:6-5 permitting the placement of a defendant on probation at the time of entry of a support order prior to default thereunder so long as appropriate conditions of probation are fixed. Moreover, it clearly approves the holding in Lathrop that probation may be imposed after default in civil proceedings to enforce litigant’s rights under a support order and, by inference at least, indicates that the conditions of probation set forth in N. J. S. A. 2A:168-2 may be imposed in such cases.

The universal and long standing practice throughout the State of imposing probation in civil enforcement of litigant’s rights in support orders is demonstrated by the contents of three memoranda issued over the years by the Administrative Office of the Courts for the benefit of judges and probation officers entitled “Suggested Procedures for Enforcement of Alimony and Support Payments”.

The first, promulgated on July 29, 1966, outlined new procedures consonant with the rule changes adopted in 1965 to conform to the holding in the Roselle case. The suggested procedures included placing a defendant on probation in civil enforcement proceedings and enclosed sample forms, including a form of order where probation is used, ordering that “during the time necessary to bring support payments up to date, defendant shall be placed on probation under the supervision of -- County Probation Office.”

The second memorandum was dated September 15, 1967. In discussing procedures under the relief to litigants rule, it stated (at 2) :

Experience with the rule demonstrates in any event that most failures to observe the court’s support orders may be cured without recourse to imprisonment. Yet under the rule, incarceration, limited to the period during which it takes the defendant to demonstrate a willingness to comply with the order, remains a possibility. Also possible are a variety of special probationary terms and conditions which need be limited only by the judge’s ability to devise creative solutions, his sense of fitness, and understanding of human nature.

Sample forms of orders were included together with a set of standard conditions of probation. The suggested form of order for use in civil enforcement proceedings was the same as that included with the previous memorandum except that there was added to the provision for probation that the same should be “upon the standard conditions of probation applicable to support matters.” The suggested standard conditions of probation were as follows:

STANDARD PROBATION CONDITIONS GOVERNING DEFENDANTS PLACED ON PROBATION BY THE COURT IN ORDER TO ENFORCE SUPPORT OR ALIMONY AWARDS:

1. You will pay through the Probation Department all monies ordered for support or alimony by the court.

2. You will report to the Probation Department any time you do not make payments as ordered by the court and explain to the Probation Officer the reason for your default.

3. You are to keep the Probation Officer informed of your home and employment address and promptly notify him whenever yon change your place of residence or employment.

4. You will comply with any additional special conditions imposed by the court.

The third memorandum was dated October 2, 1972. It was issued, in part, as the result of the decision of the Supreme Court in In re Reeves, supra, to remind judges that the courts must adhere to due process requirements and comply with R. 1:10, differentiating between contempts and enforcement of litigant’s rights proceedings. With respect to the latter, as in the case of the prior memoranda, a recommended alternative, after making careful inquiry into defendant’s ability to pay, is to place defendant on probation, nsing either the standard conditions governing support orders or any special terms developed by the court for the particular situation. The same standard conditions of probation and sample forms of orders previously circulated were included with the memorandum.

Considering the above authorities and the long practice of the use of probation in the civil enforcement of support orders, we deem it clear that appellant’s contentions lack merit. The use of probation is supported by express statutory sanction as well as by the inherent power of the court. No particular point is made by him that the order of

October 8,1971 was improper because the conditions of probation were those enumerated in N. J. S. A. 2A:168-2. As we have indicated, the statutory authority is broad enough to permit imposition of such conditions where a defaulting defendant is placed on probation in civil enforcement proceedings and appellant’s probation was not rendered illegal because such conditions were imposed. It is obviously preferable, however, that the more suitable standard conditions relating to probation in support matters as suggested by the Administrative Office should be used in the normal case. Cf. Plath v. Plath, supra.

Appellant’s second ground of appeal does not entitle him to relief. He was provided with counsel at the proceedings in 1973 from which this appeal directly stems and was afforded due notice of the proceedings. There is no proof before us that he did not have adequate notice of the R. 1:10-5 proceedings against him in 1971 and 1972, in which probation was first imposed and continued. He apparently did not have counsel provided to him at those hearings, and did not receive Miranda warnings. However, in view of the nature of those proceedings and the limitations on permissible sentences, the fact that he did not appeal directly therefrom, and the fact that he was not incarcerated as a result thereof, he has no basis for complaint. See David v. Strelecki, 51 N. J. 563 (1968) cert. den. 393 U. S. 933, 89 S. Ct. 291, 21 L. Ed. 2d 269 (1969); State v. Macuk, 57 N. J. 1 (1970); State v. McGrew, 127 N. J. Super. 327 (App. Div. 1974); see Crist v. N. J. Div. Youth and Family Services, 128 N. J. Super. 402, 417 (Law Div. 1974).

Affirmed.

      The summary of the Judicial Conference Committee Report on “Custody and Support” for 1950, contained in 73 N. J. L. J. 290 (1950), ineludes the following comment, “The report includes a suggestion that since the name ‘probation office’ is often associated in the public mind with law enforcement and the criminal courts, a ‘friendlier’ designation for the office be established because of the increasingly frequent use of their offices in domestic relations.”

      In the 1969 edition of the Rules of Court, with comments and annotations by Sylvia B. Prcssler, the following comment to R. 5 :6-3 appears at 697:
      “The first sentence of R. R. 6 :6-5, included in the tentative draft as R. 5:6-3(c), authorized the court to place a defendant who is subject to a support order under the supervision of the Probation Department, even if there has been no violation of the order. This provision is eliminated. Cf. Plath v. Plath, 99 N. J. Super. 394 (App. Div. 1968).”


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

text:
    SELECTED RISKS INSURANCE COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT, v. NATIONWIDE MUTUAL INSURANCE COMPANY, A CORPORATION AUTHORIZED TO DO BUSINESS IN NEW JERSEY, DEFENDANT-RESPONDENT AND CROSS-APPELLANT, AND ANGELA V. DEL PLATO, HARRY A. DEL PLATO AND ELVERA F. PALUMBO, GENERAL ADMINISTRATRIX FOR THE ESTATE OF JOHN D. PALUMBO, DECEASED, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued February 4, 1975
    Decided March 14, 1975.

      Before Judges Carton, Crane and Kole.

      Mr. David B. Rand argued the cause for plaintiff-appellant and cross-respondent Selected Risks Insurance Company (Messrs. Schenck, Price, Smith & King, attorneys).

      Mr. Donald B. Connolly argued the cause for defendant-respondent and cross-appellant Nationwide Mutual Insurance Company (Messrs. Oppenheim & Oppenheim, attorneys).
   The opinion of the court was delivered by

Carton, P. J. A. D.

This appeal concerns the scope of the respective coverages provided under an automobile liability insurance policy and a garage liability policy in an accident which occurred at the garage owner’s service station.

The parties stipulated the facts. Harry A. Del Plato drove his station wagon to Battlehill Esso for the purpose of having it serviced and to correct an unsatisfactory idling condition in the engine. He was later joined there by his wife Angela. Del Plato was the named insured under an automobile liability insurance policy issued by defendant Nationwide Mutual Insurance Company. John D. Palumbo, t/a Battlehill Esso, operated the service station. He was insured by plaintiff Selected Risks Insurance Company under a garage liability policy.

Del Plato requested Palumbo to examine the car to determine the nature of the mechanical problem. Palumbo was leaning into the engine compartment in front of the automobile, apparently testing various engine components, when the caT suddenly lurched forward, striking both Palumbo and Mrs. Del Plato, who was also standing in front of the car. Palumbo died as the result of injuries sustained in the accident. Mrs. Del Plato was also injured.

The precise cause of the vehicle’s movement was the subject of dispute and resulted in three lawsuits. The administratrix of the Palumbo estate brought action against Harry and Angela Del Plato. Harry and Angela Del Plato each brought action against the administratrix. All three actions were consolidated for trial. We were informed at the oral argument that while this appeal was pending the administratrix of the Palumbo estate settled the estate’s action against Harry Del Plato. The actions by Harry and Angola Del Plato were tried as to the issue of liability only and the jury rendered special findings that both Harry Del Plato and Palumbo were negligent in causing the accident.

In this declaratory judgment action to determine the coverage provided by the two insurance carriers plaintiff Selected Risks, which issued the garage policy, moved for summary judgment. It sought an adjudication that defendant Nationwide as well as Selected Risks must provide primary coverage to the estate of Palumbo and that Nationwide must defend the negligence actions brought by the Del Platos against the Palumbo estate and contribute to any settlement or judgment resulting from Del Platos’ actions. The trial judge denied plaintiff’s motion, ruling that Nationwide was not obliged to provide coverage to the Palumbo estate under its automobile policy. The trial court also denied defendant Nationwide’s cross-motion for summary judgment, holding that plaintiff Selected Risks was not required under its garage policy to Palumbo to provide coverage to Harry Del Plato. On this appeal each insurance company challenges the portion of the judgment adverse to it.

We consider first Selected Risks’ motion for summary judgment. It was grounded on the premise that the omnibus clause in Nationwide’s automobile liability policy mandated coverage for Palumbo and that the exclusionary clause in that policy could not be given effect because it conflicted with the omnibus clause in that policy. Under the terms of this omnibus clause, which is in the broad form required by N. J. S. A. 39:6-46 (a) to be included in every liability policy issued in the State of New Jersey, Nationwide agreed:

C. PROPERTY DAMAGE & BODILY INJURY — LIABILITY
To pay all sums which those entitled to protection become legally obligated to pay as damages arising out of the ownership, maintenance or use, including loading and unloading, of the described automobile because of:
(1) destruction or damage of property including loss of use thereof;
(2) bodily injury, sickness, disease or death of any person except for liability under any workmen’s compensation law. Those entitled to protection under these Coverages 0(1) and 0(2) are (a) the Policyholder; (b) any resident of the same household; and (o) any person or organisation legally responsible for the use of the described automobile,,, provided the actual operation or (if he is not operating) the other actual use then'eof is with the permission, expressed or implied, of the Policyholder or his spouse if such a resident. [Emphasis supplied]

The exclusionary language of the policy relied upon by Nationwide as the basis for denial of coverage provides in pertinent part:

EXCLUSIONS
There shall be no protection afforded:
* * ^ * * :'r S *
(2) under Coverages C(l), C(2), D(l) and D(2), to any person or organization or to any agent or employee thereof, operating an automobile repair shop, public garage, sales agency, service station or public parking place, with respect to any occurrence arising out of the operation thereof. * « *

Inasmuch as Palumbo was the owner and operator of a service station and the accident arose out of its operation, it is clear that he is a member of the class to which the exclusion is intended to apply. The dispute as to coverage arises because it is also unquestioned that Palumbo was also given permission to use the vehicle.

Nationwide’s omnibus clause recognizes the term “use” is not necessarily restricted to the operation of the vehicle. Several recent New Jersey cases have so interpreted the term. Liberty Mutual Ins. Co. v. O’Rourke, 122 N. J. Super. 68 (Ch. Div. 1973); Unsatisfied Claim & Judgment Fund Bd. v. Clifton, 117 N. J. Super. 5 (App. Div. 1971). The omnibus clause and the exclusionary clause thus appear to be in conflict.

The general principles applicable to the interpretation of such conflicting provisions in standard automobile liability policies are well settled in this State. To the extent that an exclusionary clause conflicts with the statutorily required omnibus clause, the language of the exclusionary clause must be deemed inapplicable.

Thus, in Willis v. Security Ins. Group, 104 N. J. Super. 410 (Ch. Div. 1968), aff’d o. b. 53 N. J. 260 (1969), the court invalidated a clause excluding coverage for individuals driving the insured’s automobile with his permission when such individuals had valid and collectible insurance in $10,000/$20,000 mínimums under their own policies. In Kish v. Motor Club of America, Ins. Co., 108 N. J. Super. 405 (App. Div. 1970), certif. den. 55 N. J. 595 (1970), an exclusionary clause denying coverage to the insured or his family for personal injuries was struck down. There, as here, defendant argued on the basis of eases that preceded Selected Risks Ins. Co. v. Zullo, 48 N. J. 362 (1966) — cases dealing with the interpretation of exclusionary clauses rather than with their validity. The court found those cases “merely of academic interest” in view of the Zullo case. Kish, supra at 408-409.

Defendant’s attempt to distinguish Clifton and Liberty Mutual on the ground that the exclusion in its policy is concerned with “occupation” while those in the above-cited cases are concerned with “use” is untenable. Once “initial permission” to use the ear has been given, there can be no departure from the mandated omnibus coverage. Matits v. Nationwide Mutual Ins. Co., 33 N. J. 488 (1960); Selected Risks Ins. Co. v. Zullo, supra.

In light of the policy embodied in this line of cases it is clear that the exclusionary clause in the Nationwide policy cannot be given effect. The only basis given for the trial court’s ruling to the contrary seems to be that the parties concerned were insurance carriers. That circumstance is not a valid basis for coming to a different conclusion. State Farm Mut. Auto. Ins. Co. v. Travelers Ins. Co., 57 N. J. 174 (1970). We conclude, therefore, that Nationwide must provide coverage to the Palumbo estate under the omnibus clause in the policy issued to Del Plato.

The extent to which each insurance carrier must contribute to the Palumbos’ coverage is governed by the “other insurance” clauses of the respective contracts. See, generally, Cosmopolitan Mut. Ins. Co. v. Continental Cas. Co., 28 N. J. 554 (1959). Since each policy contains a pro rata clause, each insurer has primary but concurrent liability for a proportionate amount of the loss. See, generally, Annotation, “Apportionment of losses among automobile liability insurers under policies containing pro rata clauses,” 21 A. L. R. 2d 611 (1952); Cosmopolitan Mut. Ins. Co. v. Continental Cas. Co., supra at 562.

Defendant Nationwide’s demand that Selected Eisks extend coverage for Del Plato for liability arising out of the accident requires a review of the Selected Eisks policy. The trial court denied Nationwide’s motion on the ground that Del Plato was not a “named insured” in Selected Eisks’ garage policy.

Selected Eisks agrees under its policy to “pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of Coverage G. bodily injury or Coverage H. property damage.” Coverage is afforded for legal liability of the insured for bodily injury “caused by an occurrence and arising out of garage operations, including only the automobile hazard for which insurance is afforded as indicated in the declarations * * “‘[G-jarage operations’ means the ownership, maintenance or use of the premises for the purposes of a garage and all operations necessary or incidental thereto.”

The declaration includes a premium charge for Automobile Hazards 1 and 2. The term “automobile hazard” is defined in this fashion:

“[Ajutomobile hazard” means that one of the following hazards for which insurance is afforded as indicated in the schedule: Automobile Hazard 1.
(1) The ownership, maintenance or use (including loading and unloading) of any automobile for the purpose of garage operations, and (2) the occasional use for other business purposes and the use for non-business purposes of any automobile owned by or in charge of the named insured and used principally in garage operations, and (3) the ownership, maintenance or uso of any automobile owned by the named insured while furnished for the use of any person.
Automobile Hazard 2.
The use in connection with garage operations of any automobile which is neither owned nor hired by the named insured, a partner therein or member thereof, or a member of the same household as any such person.

The policy also contains these provisions under the heading “TV. Persons Insured”:

Bach of the following is an insured under this insurance to the extent set forth below: Under the Garage Bodily Injury and Property Damage Liability Coverages:
(1) the named insured;
* * ‘-b * * *
(3) with respect to the automobile hazard:
(a) any person while using, with the permission of the named insured, any automobile to which the insurance applies under the automobile hazard, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission * *.

Also under this “Persons Insured” heading, and directly below the provisions just quoted, appears the following exclusionary clause:

None of the following is an insurad:
# S*S +1 sj; Jjn jfc $
(iii) any person or organization, other than the named insured, with respect to any automobile
(a) owned by such person or organization or by a member (other than the named insured) of the same household * * *.

Selected Risks maintains that the exclusionary clause quoted above was intended to deny coverage to Del Plato as the owner of the car involved in the accident. We observe that it is at least arguable that the language of this exclusion runs counter to the broad language providing coverage for automobile hazards. However, we need not decide whether such a contradiction exists and, if so, its effect, for we conclude that the principles fonnd earlier in this opinion to be applicable to the omnibus and exclusionary clauses in the Nationwide automobile policy are equally applicable to the parallel clauses in the Selected Risks garage policy.

The latter policy affords protection for automobile hazards which arise from “the ownership, maintenance or use * * * of any automobile for purposes of garage operations.” The term “garage operations” is broadly defined to include “all operations necessary or incidental thereto.” And, under the heading “Automobile Hazard 2,” protection is extended to the use in connection with garage operations of any automobile which is neither owned nor hired by the named insured.

Without question the automobile hazard clauses of the policy provide coverage for liability arising from the use of an automobile on public roads. To that extent the garage policy provides the same kind of coverage as an automobile policy and is, therefore, subject to the same public policy considerations underlying the Motor Yehicle Security-Responsibility Law, N. J. S. A. 39:6-23 et seq., and especially N. J. S. A. 39:6-46 as govern automobile policies.

We view the clause contained in the provision headed “IV. Persons Insured,” insofar as it applies by the terms of the policy to automobile hazards, as distinguished from the public and business liability features of the policy, as embodying the essential elements of the omnibus provision in the ordinary automobile policy. Presumably the policy language extending automobile hazard coverage to any person using a covered automobile with the permission of the named insured was designed to bring the policy into compliance with the Motor Vehicle Security-Responsibility Law. See Annotation, “Liability insurance of garages, motor vehicle repair shops and sales agencies and the like,” 93 A. L. R. 2d 1047 at 1088 (1964). Such an interpretation is implicit in Willis v. Security Ins. Group, supra at 415, where the court held that the exclusionary clause in the garage liability policy there under consideration was invalid because “there may be no departure from the omnibus coverage” of N. J. S. A. 39:6-46. See also, American Motorists Ins. Co. v. Kaplan, 209 Va. 53, 161 S. E. 2d 675 (Sup. Ct. 1968), cited with approval by the Supreme Court in its affirmance of Willis v. Security Insurance Group, 53 N. J. 260, 261 (1969).

The exclusionary clause here relied on by Selected Risks is invalid for the same reasons that apply to the interpretation of the exclusionary clause in Nationwide’s ordinary automobile liability policy.

Here Del Plato’s automobile was temporarily in Palumbo’s custody and general control. Palumbo was using it for the purpose of making engine repairs, an activity clearly connected with the operation of the garage business. But under the somewhat unusual circumstances of the accident it can fairly be said that Del Plato, as much as Palumbo, was also using the vehicle. Since Palumbo had enlisted Del Plato’s assistance in performing the engine repairs it must be said that Del Plato was using his own car with Palumbo’s permission.

Since the exclusionary clause is invalid insofar as it applies to automobile hazards for the reasons stated above, coverage under the omnibus clause must also be extended to Del Plato under the circumstances of this case. Logically it should make no difference whether the accident arising from the use of the automobile occurred on the open highway or in the garage premises. In each ease the use is of a vehicle in the custody of the named insured and with the permission of the named insured. Therefore, Selected Risks must provide coverage for Del Plato under the omnibus clause of its policy.

Judgment reversed.


author: Per Curiam.

text:
    CAPPTURE REALTY CORPORATION, A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT, v. BOARD OF ADJUSTMENT OF THE BOROUGH OF ELMWOOD PARK, PLANNING BOARD OF THE BOROUGH OF ELMWOOD PARK, BOROUGH OF ELMWOOD PARK, A MUNICIPAL CORPORATION IN THE COUNTY OF BERGEN AND STATE OF NEW JERSEY AND MICHAEL BUCK, BUILDING INSPECTOR OF THE BOROUGH OF ELMWOOD PARK, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued March 4, 1975
    Decided March 18, 1975.

      Before Judges Carton, Crane and Kole.

      Mr. Lucien Baron argued the cause for appellant.

      Mr. Stephen R. Spector argued the cause for respondents (Messrs. Ferrara, Glock and Spector, attorneys).
   Per Curiam.

The facts in this case are fully set forth in the opinion of the Law Division judge, 126 N. J. Super. 200.

By various amendments to the zoning ordinance of the borough, commencing October 1971 and extended for yearly periods thereafter until November 22, 1974, a moratorium was declared prohibiting construction on certain lands, including that of plaintiff, within what is referred to as a Hood-prone or flood-plain area of Fleischer Brook. A property owner may obtain relief from the prohibition against construction by applying to the board of adjustment for a special exception use permit under N. J. S. A. 40:55-39 (b). That board is authorized to recommend to the governing body that the exception be granted, provided that the municipal planning board has issued an advisory report finding that the proposed construction will not generate or create any additional surface water runoff from the site and will not impair the general safety, health and welfare. Such special exception use, if recommended, is subject to all other requirements of the zoning and other applicable ordinances.

Plaintiff applied for such a permit but the board of adjustment denied the application. As part of its application plaintiff also sought a special use exception in the E Industrial zone under another provision of the zoning ordinance, § 88-17. This was also denied.

The trial judge found the moratorium declared by the ordinances to be a valid and reasonable exercise of the police and zoning power for the period provided therein, i. e., October 1971 to November 1974, and additionally for a period of two years from the date of its December 21, 1973 decision, provided (1) construction of the necessary flood control project in connection with the area was started in good faith within six months from the date of the decision, and (2) the moratorium, to be extended by ordinance, did not go beyond December 21, 1975. He indicated that failure to meet these limitations would result in the ordinance being found to be unreasonable as to plaintiff’s property. The judge further held that the temporary moratorium did not deprive plaintiff of its property without compensation. The judge also upheld the denial of the application for the special use exceptions by the board of adjustment.

Plaintiff appeals from the resulting judgment against it.

At oral argument it was stated that the moratorium has now been extended by ordinance to July 31, 1975. There was some dispute as to whether the necessary construction work had in fact commenced, but we do not believe that this factor is of major significance in determining the validity or reasonableness of the moratorium here involved.

We agree with the trial judge that under the special circumstances of this case a moratorium as to construction with respect to these flood-prone lands for the period indicated by the judge, that is, to December 21, 1975, constitutes an appropriate exercise of police and zoning power and does not involve a deprivation of property without just compensation. This conclusion is supported by the extensive planning, as well as the nature of the work, involved in this necessary contemplated regional flood control project, and the fact that both the county and the municipality, as well as other municipalities affected, are actively engaged therein. We affirm, essentially for the reasons set forth by the court below, the reasonableness of the moratorium period for these purposes, which have a substantial relationship to health, welfare and safety. See Meadowland Reg. etc. v. Hackensack, etc., 119 N. J. Super. 572 (App. Div. 1972), certif. den. 62 N. J. 72 (1972). Cf. E. Rutherford Indust. Park v. State, 119 N. J. Super. 352 (Law Div. 1972); Morris Cty. Land, etc. v. Parsippany-Troy Hills, 40 N. J. 539, 556, n. 3 (1963).

We express no views as to that portion of the judge’s opinion which implies that failure to terminate a moratorium by December 21, 1975, or to start the work within six months after December 21, 1973, would convert this municipal action into a taking requiring just compensation, or that an extension beyond that time necessarily would be unreasonable. That issue is left to another day when and if the circumstances warrant consideration thereof.

The municipality, however, obviously must consider the real possibility that the line between the exercise of the police and zoning powers on the one hand, and a taking on the other, although not precise, may be found in the not too distant future to have been transgressed as" to plaintiff’s property unless it acts with some degree of expedition to complete the proposed project or to terminate the moratorium. See E. Rutherford Indust. Park v. State, supra; Spiegle v. Beach Haven, 46 N. J. 479, 491-492 (1966), cert. den. 385 U. S. 831, 87 S. Ct. 63, 17 L. Ed. 2d 64 (1966), and 116 N. J. Super. 148, 163-168 (App. Div. 1971).

We also affirm the trial judge with respect to the validity of the board of adjustment’s denial of the application for a special use exception from the moratorium. There is adequate credible evidence in the record to sustain his conclusion that plaintiff failed to adduce the required competent proofs to set aside the decision of the board in this respect. In view of the reasonableness of the period of the moratorium ordinance, the fact that it may be difficult for plaintiff to satisfy the standards it imposes for relief therefrom is insufficient reason for invalidating the standards.

Plaintiff questions the legality of permitting the board of adjustment to serve as the agency under the moratorium ordinance for special use exception recommendations to the governing body. The contention, which conceives of the board of adjustment in this respect as a body to hear police power rather than zoning matters, is without merit. Apart from being an amendment to the zoning ordinance, the moratorium provisions are so inextricably involved with zoning and permits for construction that the use of that board for this purpose is plainly authorized by N. J. S. A. 40:55-39(b). See and compare Morris County Land, etc. v. Parsippany-Troy Hills Tp., supra, 40 N. J. at 546.

Plaintiff challenges the trial judge’s affirmance of the decision of the board of adjustment to the extent that it denied the special use exception in the E Industrial zone under the provisions of § 88-17 of the zoning ordinance. It appears that although plaintiff’s land is situated in the E Industrial zone, the uses it desires to make of the property are all permitted in other districts, including the D Commercial zone. At oral argument this was conceded by the borough. Under paragraph C of § 88-17, no “use permitted by this section [involving the E Industrial zone] * * * and not permitted in any other zone, shall be a matter of right * * * but shall be created only on application to the board of Adjustment, and by the general approval of the said Board for the granting of any necessary building permit or [certificate] * * * of occupancy before issuance by the Building Inspector * * [Emphasis supplied].

Although the provisions relating to the E Industrial zone are not a model of clarity, since at one point they appear to preclude anything but an “industrial” use, we assume, in light of the proceedings below, that plaintiff’s proposed use is permitted in that zone. It seeks to erect a building containing a storage warehouse, a tractor-trailer maintenance shop for its own trucks, and a cardboard box manufacturing facility, with related office use and parking. These seem to be uses permitted in the D Commercial zone and the D-l Light Manufacturing zone. Thus, paragraph C is inapplicable to the uses planned by plaintiff, and board of adjustment approval is not required in order for it to obtain a building permit under § 88-17. Under the circumstances we need not decide the validity of authorizing that board to determine whether the standards of § 88-17 have been complied with or whether plaintiff has sustained its burden of proving such compliance before the board. The conclusions of the trial judge that the board of adjustment’s findings relating to § 88-17 were not arbitrary and that the findings were sufficient, although not erroneous, were not required in order to determine the matters properly before him.

The trial judge directed the planning hoard to review plaintiff’s plot and site plans to determine whether they complied with the provisions of paragraph B of § 88-17 of the ordinance relating to the E Industrial zone. That provides that no building shall be constructed in a Light Manufacturing Zone D-l and Industrial Zone E, without first having obtained the written approval of the Planning Board to a plot plan, site plan, building plan and specifications and use of said building.” Since plaintiffs land is in the E. Industrial zone, planning board approval under the ordinance was required.

We were advised at argument that the planning board had not approved the plans submitted because of plaintiffs failure to comply with the moratorium ordinance requirements for a special use exception therefrom. This determination was plainly erroneous and contrary to the appropriate directions of the trial judge. Plaintiff is entitled to a decision now by the planning board under this provision of the ordinance as to site and plot plan approval on the assumption either that it will be able to satisfy the special use exception standards of the moratorium ordinance or that the moratorium is no longer in effect. The planning board is directed to hold a hearing and make a determination relating to this matter within 60 days from the date of this opinion. See Newark Milk & Cream Co. v. Parsippany-Troy Hills Tp., 47 N. J. Super. 306, 332 (Law Div. 1957).

Plaintiff further appears to contend that the requirement of planning board approval of site and plot plans in the E Industrial zone under § 88-17 is invalid for lack of appropriate standards and for want of statutory authority.

We have not been presented with standards for such review by that board other than the provision in paragraph A of that section that any use “noxious by reason of the emission of odor, dust, noise, smoke or gas, and dangerous to the health or safety of the residents of the community shall not be permitted.” Paragraph ,B authorizes the planning board to approve “a plot plan, site plan, building plan and specifications and use of said building.” The provisions of paragraph A suffice with respect to standards as to use of the proposed building.

We are in no position, because of lack of a record as to other pertinent ordinance provisions, to determine the adequacy of the standards for approval of plot, site and building plans or specifications. ETor do we know whether the borough ordinance places final authority in the planning board as to these matters, or only authority to make recommendations to the governing body or other agency. See N. J. S. A. 40:55-1.13; Newark Milk & Cream Co. v. Parsippany-Troy Hills, supra at 313, 332-333; Kozesnik v. Montgomery Tp., 24 N. J. 154, 178, 186 (1957); Saddle River Day School v. Saddle River, 51 N. J. Super. 589 (App. Div. 1958), aff’d o. b. 29 N. J. 468 (1959); Brundage v. Randolph Tp., 54 N. J. Super. 384 (App. Div. 1959), aff’d o. b. 30 N. J. 355 (1959); Guaclides v. Englewood Cliffs Mayor & Counc., 119 N. J. Super. 403 (Law Div. 1972).

However, since plaintiff has made no affirmative showing of lack of standards with regard to planning board review of site, plot and building plans and specifications, on the present record we hold that it has not demonstrated the absence of adequate criteria in these respects.

Similarly, for lack of a record we need not determine whether the planning board has final, rather than merely recommendatory, review authority as to all matters under paragraph B.

Plaintiff urges the invalidity of planning board review under paragraph B of § 88-17 because no similar requirement exists as to uses permitted in districts other than the Light Manufacturing zone D-l and E Industrial zone. The claim is without merit.

Zoning ordinances may embody reasonably different methods of municipal control of this kind with respect to uses in separate districts. See Newark Milk & Cream Co. v. Parsippany-Troy Hills, supra; Frankel v. Atlantic City, 63 N. J. 333 (1973), reversing on dissenting opinion in 124 N. J. Super. 420 (App. Div. 1973). The borough here has drawn the line for planning board review of site plans and related matters at uses in industrial and light manufacturing districts, as opposed to all other districts. There is no showing that such action is unreasonable or that the industrial and manufacturing zones do not require such special treatment. See and compare Bow & Arrow Manor v West Orange, 63 N. J. 335 (1973).

For the reasons expressed, the judgment below is affirmed. The planning board is directed to hold a hearing and make a determination based thereon consistent with this opinion.

Eo costs.


author: Bischoff, J. A. D.

text:
    COOPER RIVER CONVALESCENT CENTER, INC., APPELLANT, v. WILLIAM J. DOUGHERTY, ACTING COMMISSIONER, N. J. STATE DEPARTMENT OF HEALTH, HEALTH CARE ADMINISTRATION BOARD OF THE DEPARTMENT OF HEALTH, STATE OF NEW JERSEY, RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued March 3, 1975
    Decided March 19, 1975.

      Before Judges Leonard, Seidman and Bischoff.

      Mr. John W. Devlin argued the cause for appellant.

      Ms. Jane Sommer, Deputy Attorney General, argued the cause for respondents (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel).
   The opinion of the court was delivered by

Bischoff, J. A. D.

This is an appeal from a decision of the Health Care Administration Board (HOAB) denying an application for a certificate of need (pursuant to N. J. S. A. 36:2H-1 et seq.) to enable appellant to construct 66 skilled or intermediate nursing home beds. The following abbreviated procedural history is sufficient for purposes of this appeal.

Appellant submitted its application on July 26, 1972, for a certificate of need to construct 66 skilled care nursing home beds, thereby expanding its 108-bed facility to 174 beds. This application was amended to include an alternative request for the issuance of a certificate of need for construction of 66 intermediate care beds, should there be no need for skilled beds in the area. Appellant’s application was forwarded to the Review Committee of the State Health Planning Council (SHPC), the coordinating agency which considers applications for certificates of need under the act (N. J. S. A. 26:2H-3). This Review Committee recommended to the SHPC that appellant’s application be denied because the 1971 State Plan indicated that the region where appellant’s facility is located was overbuilt by 203 beds, and the inventory for the 1972 State Plan, not yet adopted, also indicated that the region was overbuilt by approximately 200 beds. The SHPC on October 27, 1972 adopted the recommendations of the Review Committee and appellant was informed on November 15, 1972 that the Department of Health was recommending to the HCAB that appellant’s application for a certificate of need for “the addition of 66 ECE [extended care facility] beds to the existing 108 bed nursing home facility” be denied. By letter dated March 16, 1973 the Commissioner of Health explained to appellant that the denial was intended to apply to its application for both skilled care beds and intermediate care beds, saying:

* * * the designation of long term care beds was applied equally to both skilled nursing (EOF) and intermediate care (ICF) with no differentiation at the time the project application was reviewed. Thus, since the denial reason stated that the region was overbuilt by 208 beds it make no difference as to whether the proposed beds were specified as skilled nursing (EOF) or intermediate care.

We digress to point out that the distinction between a skilled care facility (ECE) and an intermediate care facility (ICE) is in the level of nursing care provided. The required hours of skilled nursing services aTe not as high for intermediate care as for skilled care. The amount of time required in attendance in each category is established by regulations developed by federal agencies in connection with the Hill-Burton Program, 42 U. S. C. A. § 291 et seq.

The 1971 State Plan did not include an inventory of need for intermediate care because the federal requirements for intermediate care had not then been established. However, an inventory of need for intermediate care was included in the 1973 State Plan for purposes of advance planning. On June 7, 1973 the 1973 State Plan became effective and indicated a need for 383 intermediate care beds and an excess of skilled care beds in a newly defined area which included appellant’s facility. However, this same 1973 State Plan imposed a moratorium on the issuance of certificates of need for the construction of intermediate care facilities. The expressed theory was to fill intermediate care requirements by encouraging licensed skilled care facilities to become intermediate care facilities and thus attempt to reach a balance between requirements and available facilities of all types. This limited moratorium expired June 30, 1973, and was replaced by an expanded moratorium on the issuance of certificates of need for all facilities effective August 31, 1973. This moratorium, extended several times, expired January 31, 1975, about which more will be said later.

Plaintiff requested a hearing, pursuant to N. J. S. A. 26: 2H-9, which was held July 18 and September 12, 1973, at the conclusion of which the hearing officer made the following pertinent findings:

(1) plaintiff’s application was to be judged by the 1971 State Plan, in effect when the application was filed;
(2) the 1971 State Plan did not make a determination of the need for intermediate care facilities. Such a determination is required by N. J. S. A. 26:2H-8;
(3) appellant never received a proper decision on his alternative application for a certificate of need for intermediate care facilities;
(4) the 1973 State Plan shows a need for 383 intermediate care facility beds in appellant’s area;
(5) a moratorium has been imposed on applications for intermediate care facilities, but appellant should be issued a certificate of need because there is a need and appellant’s application was filed before the moratorium was imposed.

The hearing officer recommended to the HCAB that the denial by S’HPC of plaintiff’s application for a certificate of need should be upheld insofar as it applied to skilled nursing facilities, but that a certificate of need should be granted for 66 beds of intermediate care facilities.

The HCAB rejected this recommendation and, instead, followed the recommendation of the Commissioner and denied plaintiff’s application. This appeal followed.

On application by respondent, the matter was remanded so the HCAB could make a “determination and findings.” The HCAB considered the matter on January 29, 1974 and June 25, 1974, following which it denied the application for the reason that the 1971 State Plan indicated no need for long-term facilities in appellant’s region. As stated above, this Plan inventoried only skilled care facilities and did not mention intermediate care facilities.

We first consider appellant’s contention that the HCAB lacked authority to promulgate the so-called moratorium. On August 9, 1973 the Commissioner, with the approval of the Board, adopted the following rule:

PROPOSED POLICY ON SKILLED NURSING AND INTERMEDIATE CARE BEDS * * *
Effective immediately and until March 31, 1974, certificates of need shall not be issued to Health Care Facilities requesting additional skilled nursing or intermediate care beds, or proposing to construct new facilities to accommodate skilled nursing or intermediate care beds. [5 N. J. Reg. 262 (August 9, 1973)]

This rule, sometimes referred to as a “moratorium,” first appeared in the 1973 State Plan as a regulation of the respondent on June 7, 1973 (5 N. J. Reg. 223—July 5, 1973) and by extension continued in effect until January 31, 1975.

The Health Care Facilities Planning Act, N. J. S. A. 26:2H—1 et seq., establishes a comprehensive plan to carry out the stated public policy that “hospital and related health care services of the highest quality, of demonstrated need, efficiently provided and properly utilized at a reasonable cost are of vital concern to the public health.” N. J. S. A. 26:2H-1. To that end the Commissioner, with the approval of the HCAB, is given power to adopt regulations concerning the licensing of health care facilities. N. J. S. A. 26: 2H-5(b). The act sets forth specific criteria to guide the agency in the issuance of certificates of need. N. J. S. A. 26:2H-8.

Such an act should be liberally construed to enable the agency to achieve the task assigned to it, and the courts should imply, where necessary, incidental powers necessary to achieve the legislative scheme. Allendate Field and Stream Ass’n v. Legalized Games, 41 N. J. 209, 217 (1963); New Jersey State AFL-CIO v. Bryant, 55 N. J. 171, 176 (1969). Unless an administrative regulation is clearly ultra vires on its face, the person attacking it must overcome a strong presumption of validity. Motyka v. McCorkle, 58 N. J. 165, 181 (1971); Cole Nat. Corp. v. State Bd. of Examiners, 57 N. J. 227, 231 (1970).

We hold that the Commissioner had the power to impose a moratorium on the issuance of certificates of need for the construction of skilled or intermediate care beds. By doing so he was furthering the legislative objective of properly utilizing health care services. The 1973 State Plan showed an excess of skilled nursing home beds and an insufficient number of intermediate care beds. A rational planning approach to this situation is to halt the construction of additional facilities and encourage the conversion of skilled nursing home beds to intermediate care beds.

. Appellant argues that the regulation is irrational because there is a need for intermediate care beds, but this argument misses the point and overlooks the reason behind the moratorium.

In short, the moratorium is within the power of the Commissioner and the HCAB. Appellant has failed to overcome the strong presumption of validity attaching to the regulation.

Appellant next contends that assuming, arguendo, the existence of a valid moratorium, it should not be applied to it because appellant’s application was filed before the moratorium went into effect.

In Merry Heart Nurs. and Conv. Home v. Dougherty, 131 N. J. Super. 412 (App. Div. 1974), this court decided that an application for a certificate of need should be viewed in light of the facts existing at the time the application is considered, rather than the facts existing at the time the application was filed. The rationale was that this approach would best serve the legislative intent. Id. at 419. The same rationale applies in the instant case. Appellant’s application was considered by the HCAB as late as June 1974, well beyond the effective date of the moratorium. Its existence was an effective bar to the approval of appellant’s application.

Appellant contends that it was denied equal protection because a certificate of need was granted to S’t. Joseph’s Home for the Blind permitting it to reclassify 20 sheltered beds to skilled nursing beds while the moratorium was in effect. This contention is without merit.

This issue is raised for the first time on appeal, is not supported by the record and, therefore, is not properly before us. Moreover, it appears that the facility in question is the only one in the State devoted exclusively to serving the elderly blind. "We find there is a rational basis for the different treatment accorded the two facilities. Trap Rock Industries, Inc. v. Kohl, 63 N. J. 1, 5, cert. den. 414 U. S. 860, 94 S. Ct. 74, 38 L. Ed. 2d 110 (1973); New Jersey Chapt., Am. J. P. v. N. J. State Bd. of Prof. Planners, 48 N. J. 581, 601-603 (1967).

A consideration of the present status of the moratorium is necessary. It was extended by regulation effective November 19, 1974, 6 N. J. Reg. 472(c) to January 31, 1975, and we were informed at oral argument that it has been permitted to lapse. Eurther, the present policy of planning for long-term care no longer involves the establishment of different categories for skilled nursing and intermediate care facilities. See 6 N. J. Reg. 472(a) and 7 N. J. Reg. 55(b).

While the HCAB properly refused to issue a certificate of need to appellant, it does not follow that it was proper to deny it. Ho doubt appellant could refile its application, but such procedure would place it at the end of the line of those seeking certificates of need. Principles of fundamental fairness dictate that during the pending moratorium actions on applications for certificates of need otherwise in order should be withheld until the situation with respect to the need for beds is clarified. Appellant had a priority status resulting from its filing date which should be recognized.

We reverse the order of the HCAB denying appellant’s application and remand the matter to the HCAB for reconsideration in accordance with the principles herein expressed. We further direct that appellant’s priority status be recognized and that its application be acted upon before those applications with a later filing date.