author: Horn, A. J. S. C.

text:
    JANE DOE ET AL., PLAINTIFFS, v. BRIDGETON HOSPITAL ASSOCIATION, INC. ET AL., DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided October 7, 1974.

      Mr. Steven A. Kleiner for plaintiff Dr. Edward S. Milner, Jr. (Messrs. Kleiner, Moore & Fisher, attorneys).

      Mr. Isaac I. Serata for plaintiffs Jane Doe, Mary Roe and Dr. Calvin Hahn.

      Ms. Nadine Taub and Mr. Band Rosenblatt of counsel for all plaintiffs.

      Mr. William P. Doherty, Jr. for defendant Bridgeton Hospital Association, Inc.

      Mr. Joseph D. O’Neill for defendant Newcomb Hospital (Messrs. Shapiro, Brotman, Eisenstat & Capizola, attorneys).

      Mr. Wayland A. Lucas for defendant Salem County Memorial Hospital.

      Mr. John R. Heher for New Jersey Hospital Association as amicus curiae (Messrs. Smith, Stratton, Wise & Heher, attorneys; Mr. Frank J. Petrino on the brief).
   Horn, A. J. S. C.

This is an action instituted by two women (their names as plaintiffs are pseudonyms) and two physicians licensed and practicing in this State. The physicians each specialize in obstetrics and gynecology. Plaintiffs, for themselves and all others similarly situate, seek a declaratory judgment that the policies of defendant hospitals in prohibiting their respective facilities to be used for the performance of first-trimester, elective abortions upon female plaintiffs violate their rights under the First, Fifth, Eighth, Ninth and Fourteenth Amendments to the Constitution of the United States and Article 1 of the Constitution of the State of Hew Jersey.

The action initially included as defendants the Department of Institutions and Agencies of the State of Hew Jersey and certain officials in said Department, for the purpose of compelling the Division of Medical Assistance, an agency thereof, to issue directives that the costs of medical services for such abortions be reimbursed by Medicaid. Following promulgation of regulations providing for Medicaid reimbursement for such procedures, a consent dismissal order was entered with respect to said Department of Institutions and Agencies and said officials.

Upon the filing of the complaint with affidavits and upon application to the eo-urt on representations that immediate and irreparable injury might occur to the female plaintiffs if the relief sought was not granted, the court directed that the Bridgeton and Newcomb Hospitals respectively permit their facilities to be used with respect to said plaintiffs for the purpose of the performance of such abortions.

Following an interlocutory appeal, the Appellate Division reversed the order of the lower court, stating in part:

We find no irreparable harm resulting to plaintiffs since there are other hospitals in the area that will perform elective abortions during the first trimester.
Ultimate issues of whether defendants-appellants must permit the performance of an elective abortion during the first trimester under the existing facts ’ * * are highly debatable and of great public importance and should await a full hearing and determination by the trial court.

Motions for summary judgment were denied and a full hearing was afforded to all parties.

In view of the unusual nature of this action and the importance of a full statement of the factual complex to all parties, a more detailed statement of facts is narrated than is actually necessary for the conclusions.

New Jersey’s abortion law in effect since at least 1898 declares that any person who maliciously or without lawful justification and with intent to cause a miscarriage of a pregnant women participates in bringing about miscarriage is guilty of a high misdemeanor. N. J. S. A. 2A:87-1.

On January 22, 1973 the United States Supreme Court decided the companion cases of Roe v. Wade, 410 U. S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), and Doe v. Bolton, 410 U. S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973).

In Roe v. Wade the Supreme Court held that the right to make thé “abortion decision” was an' aspect of “liberty” protected by the Due Process Clause of the Fourteenth Amendment and also, for that' stage of pregnancy prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.

In Doe v. Bolton the court held that the Georgia statute, which contravened the constitutional right of a pregnant woman to abortion during the first trimester of pregnancy, was invalid and any statutory provisions unduly restrictive of such female’si right were likewise invalid.

As a result of these holdings, although New Jersey’s abortion statute is still viable, it must now be construed in the light of the Roe v. Wade and Doe v. Bolton decisions. State v. Haren, 124 N. J. Super. 475 (Law Div. 1973).

Each of the three defendant hospitals has adopted policies against permitting the use of its respective facilities for other ■ than therapeutic abortions. The objective sought by this action is .the vitiation of the effect of these policies and to compel the hospitals to permit their respective facilities to be used for what are now legal, nontherapeutic procedures calculated to abort pregnancies during the first 'trimester of pregnancy.

■ One of the female plaintiffs consulted plaintiff Dr. Milner at his office in Bridgeton. She was pregnant and desired a first-trimester abortion. Her history was that s'he was 36 years of age, married, and had had eight pregnancies resulting in four living children, two miscarriages and two children that died soon after birth. She was suffering from fibroids of the uterus. Her husband was disabled and her principal income was from welfare assistance. An attempt was made by the doctor to have her admitted to Salem County Memorial Hospital for the purpose of therapeutic abortion. However, the Therapeutic Abortion-Sterilization Board of that hospital rejected the application on the ground that there did not appear to be therapeutic reasons for the abortion. The fact that the fibroids did not warrant the abortion was not controverted. The hospital administrator informed Dr. Milner that the rules of the hospital did not permit elective abortions. After making many telephone calls, Dr. Milner communicated with a physician who performed the procedure free of charge at another hospital.

The other female plaintiff also visited Dr. Milner for the purpose of securing an abortion. She was 27 years old, married, had had five pregnancies with four living children and desired the abortion because she couldn’t afford another child. At the time she consulted Dr. Milner she had been pregnant for ten weeks. Dr. Milner unsuccessfully attempted to have her admitted to the Bridgeton Hospital. He was informed by the administrator of that hospital that its rules did not permit such abortions. This plaintiff was then referred to a clinic in Philadelphia but failed to keep an appointment there due to her alleged inability to obtain transportation. Another attempt was made to have a second-trimester abortion performed in a Philadelphia institution, but she was unable to pay for her care. Consequently she was ultimately delivered of the child.

Two of the defendant hospitals are situate in Cumberland County and one is situate in Salem County. Bridgeton Hospital is about 47 miles from Atlantic City, 37 miles from Camden, 135 miles from New York City, 35 miles from Philadelphia and 32 miles from Wilmington, Delaware. New-comb Hospital is about 30 miles from Atlantic City, 31 miles from Camden, 122 miles from New York City, 39 miles from Philadelphia and 48 miles from Wilmington, Delaware. Salem County Memorial Hospital is about 64 miles from Atlantic City, 31 miles from Camden, 130 miles from New York City, 39 miles from Philadelphia and 15 miles from Wilmington, Delaware.

Although as discussed later each hospital is the only facility of its kind in its primary service area, those desiring such elective abortions may secure same in a number of other institutions -—• either hospitals or abortion clinics — in Philadelphia, New York City and also in and about Camden, Atlantic City and Wilmington, Delaware. The Underwood Hospital in Woodbury, Gloucester County, about 27 miles from Bridgeton and less than that from Vineland and Salem, also permits such procedures, as does a private hospital in Marlton, Camden County.

Each defendant hospital was formed and is operated for nonprofit purposes. Each is dedicated by its certificate of incorporation to provide care for the sick and injured. New-comb Hospital and Salem County Memorial Hospital received substantial funds from Eederal Government sources for capital uses, under the Hill-Burton Act. All three have received substantial funds from government sources for operating expenses. Each has been the beneficiary of large sums of money as the result of public support, partially resulting from public solicitation. Each enjoys federal income tax exemption, local property tax exemption and New Jersey sales tax exemption, as well as other exemptions. Each receives payments through Medicaid and Medicare.

Each hospital serves what is designated as its primary service area as well as a secondary service area. Most of those living in a primary service area will secure hospital service from the respective hospital when such services are required. Generally such hospitals also draw patients in common with other hospitals in the surrounding, secondary areas.

The hospitals are subject to regulation on the part of the State under the Health Care Eacilities Planning Act of 1971, N. J. S. A. 26:2H-1 et seq. This enactment gave to the New Jersey State Department of Health central, comprehensive responsibility for the development and administration of the State’s policy with respect to health planning, hospital and related health care services. All public and private institutions, whether state, county, municipal, incorporated or not incorporated, serving principally as facilities for the prevention, diagnosis or treatment of human disease, pain, injury, deformity or physical condition, were made subject to the provisions thereof.

The act delegated far more restrictive controls over private institutions furnishing health care than had existed formerly, all for the purpose of advancing quality patient care in said hospitals, but at the same time “to protect against unnecessary duplication of facilities and services and to moderate operating costs.” (Statement attached to Senate Bill No. 2088, introduced February 11, 1971, enacted in the aforesaid N. J. S. A. 26:2H-1 et seq.)

Under the statute a Health Care Administration Board was created in the State Department of Health. N. J. S. A. 26:2H-4. New hospital facilities may not be constructed, present facilities may not be expanded, and no new health care services may be instituted except upon application for and receipt of a certificate of need under said act. N. J. S. A. 26 :2H-7. Whether or not a certificate of need is granted depends upon a finding that the action proposed for which a certificate is required “is necessary to provide required •health care in the area to be served, can bo economically accomplished and maintained, and will contribute to the orderly development of adequate and effective health care services.” The criteria for making such determinations are: (a) the availablility of facilities or services which may serve as alternatives or substitutes; (b) the need for special equipment and services in the area; (c) the possible economies and improvement in services to be anticipated from the operation of joint, central services; (d) the adequacy of financial resources and sources of present and future revenues; (e) the availability of sufficient manpower in the several professional disciplines, and (f) such other factors as may be established by regulation. N. J. S. A. 26:2H-8.

' As a result, the State has assumed an introspective supervision and control of hospitals and facilities that had never before existed.

Notwithstanding the provisions of the Health Care Facilities Planning Act, the hospitals still enjoy privileges consistent with private status, which include the election of boards of directors by members of the respective hospital associations, appointment of officers and medical staffs by the respective governing bodies, and general control of operation and policy, subject only to the requirements of the act.

., Vacuum aspiration is the usual and generally accepted method for producing abortion during early pregnancy, i.e., before the end of the 13th week. A suction tube is introduced into the uterus for the purpose of removing the contents thereof. From the 13th to the 16th weeks of pregnancy physicians suggest that no abortions be performed. Between the T6th and 20th weeks the method commonly used is the injection of a strong saline solution into the' uterus, which generally precipitates the miscarriage.

The earlier the procedure the less risk accompanies it. Complications increase gradually from about the 7th week to the 13th week. From approximately 5% to 6%, up to the seventh week, the rate of complication will increase to approximately 12% to 13% at the end of the 13th week. Starting with the 16th week it rises to about 25%.

Clinics charge about $150 to $175, including the usual medical service, for the procedure during the first trimester. Private hospitals charge about $200 to $250 for use of the facilities, exclusive of the physician’s charge. Second-trimester charges in hospitals approximate $350 and up, depending on the number of hospital days required.

Where the hospitals possess the necessary equipment and facilities, they will permit generally all types of elective procedures other than abortions.

Plaintiff physicians assert that statistics demonstrate that of those seeking first-trimester abortions approximately 75% are unmarried, 60% are white, 40% are nonwhite (mostly black). Over 50% are less than 24 years of age and only about 60% request the surgical procedure before they are less than ten weeks pregnant. About 20% request abortion between the 11th and 12th weeks, and 20% after the 12tli week. Of all these about 40% submit Medicaid forms.

Low-income women, it is contended, are at a decided disadvantage as the result of compulsory referral by their physicians to physicians in other areas where there are available facilities. Hardship results to them because they cannot afford the added costs of travel; loss of wages or salary, if employed; expenses for baby sitters, and the requirements of some institutions that the costs of the procedure be deposited in advance. In addition to these disadvantages, they also suggest that the delay caused by necessary referrals and preparation sometimes goes beyond the first trimester so that an elective abortion may no longer be obtainable in this State. In such cases the alternatives are either to incur greater expense to have the procedure performed in a jurisdiction such as New York City, where elective abortions may be had after the first trimester, or to be delivered of the child at full term. It is also asserted that the inability to obtain the operation is a source of increased distress and mental pain and suffering for such women. However, about one week will elapse from the time patients visit plaintiff physicians to the performance of an abortion at a facility other than one of defendant hospitals. This includes time for referral, visit and preparation.

Although recognized that if possessed of the necessary apparatus a physician could perform the first-trimester procedure at his office, this is not desirable, for safety reasons, by reason of possible complications and the absence of sufficient personnel to aid in the performance of the process.

It is estimated that when a woman is referred to another physician for the operation because of unavailability of local facilities, only 60-70% return for follow-up care, as against approximately 95% who return for follow-up care to the physician who performs the procedure.

Each hospital has the facilities to perform the procedures sought by plaintiffs. These facilities would not be overtaxed if they were used for the elective procedures or, if they would be, reasonable regulations as to use could be appropriately made.

Plaintiffs' contentions embrace two principal points: first, that the decision of each hospital constitutes “state action" and therefore is in violation of the Eourteenth Amendment to the United States Constitution; second, that the hospital powers are reviewable as powers in trust, and the actions of the hospitals complained of are not consistent with the public good and should be set aside. Greisman v. Newcomb Hospital, 40 N. J. 389, 396, 404 (1963).

Before pursuing each of these contentions the appropriate perspective should be mounted. This requires comment with respect to what Roe and Doe, both supra, did not declare. They did not direct hospitals or other health facilities to permit elective abortions. They did not declare that any such health facility was required to make available its facilities for such procedures. They did not require individuals to participate in the procedures. They did not ipso facto pronounce that any hospital or health facility refusing to lend its facilities for a first-trimester abortion was in violation of the rights of a female.

The direct effect of Roe and Doe was to excise from that area of criminality under state abortion laws the procedure of a voluntary, nontherapeutic miscarriage performed within the first trimester.

I

The Eourteenth Amendment to the United States Constitution prohibits a state from making or enforcing any law which shall abridge the privileges or immunities of citizens.

The Civil Rights Act of 1871, 42 U. S. C. A. § 1983, in part reads:

Every person who, under color of any statute, ordinance, * * *, custom, or usage, of any State * * *, subjects, or causes to be subjected, any citizen * * * to tlxe deprivation of any rights * * * secured by the Constitution and laws, shall be liable ’ * * for redress.

In addition to the original jurisdiction given to the United States District Courts to redress the deprivation of a citizen under the Civil Eights Act of 1871 (28 U. S. C. A. § 1343), state courts also have jurisdiction. Testa v. Kalt, 330 U. S. 386, 67 S. Ct. 810, 91 L. Ed. 967 (1947); Gray v. Serruto Builders, Inc., 110 N. J. Super. 297, 301 (Ch. Div. 1970).

Unquestionably there is “state action” in the denial of such procedures by government-operated hospitals which have available facilities. Hathaway v. Worcester City Hospital, 475 F. 2d 701 (1 Cir. 1973); Doe v. Hale Hospital, 369 F. Supp. 970 (D. Mass. 1974); Nyberg v. City of Virginia, 495 F. 2d 1342 (8 Cir. 1974) — all the foregoing involving municipal or public hospitals.

But when the entity involved is private the question of whether the action is “state action” is complex and can only be answered by a review of all the circumstances. There is no precise formula and “[o]nly by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.” Burton v. Wilmington Parking Authority, 365 U. S. 715, 722, 81 S. Ct. 856, 860, 6 L. Ed. 2d 45 (1961).

I have already recounted facts concerning the sources of hospital funding for capital and operational purposes, the tax exemptions, the position of the hospitals in the scheme of health care in their respective areas, the corporate objectives of each, as well as the magnitude of the State’s regulation of all hospitals.

Plaintiffs rely heavily on Simkins v. Moses H. Cone Memorial Hospital, 323 F. 2d 959 (4 Cir. 1963), cert. den. 376 U. S. 938, 84 S. Ct. 793, 11 L. Ed. 2d 659 (1964). In that case plaintiffs charge defendant hospital with race discrimination with respect to selection of its medical staff and its policy regarding admission of patients. The court held that the action was “state action.” It was shown that the Cone Hospital received Hill-Burton funds, tax exemptions, Medicare and Medicaid funds (as do the instant defendant hospitals), and was also the subject of intensive regulation by the state. But in addition to these facts there wére two more important facts. First, five out of 15 members of the governing board were appointed by various state agencies and one by a “public agency.” Second, the HilhBurton statute prohibits the beneficiaries of its grants from engaging in any form of racial discrimination. The case therefore is vastly different by reason of these last two cited facts.

The point was raised and clearly decided against the pregnant female and her physician in Doe v. Bellin Memorial Hospital, 479 F. 2d 756 (7 Cir. 1973). The principal issue was whether defendants who are regulated by the State of Wisconsin and have accepted financial support pursuant to the Hill-Burton Act may refuse to perform abortions without offending the Civil Rights Act, 42 U. S. C. A. § 1983. It held that they may so refuse.

Substantially the same arguments were pressed there as in the instant case — the danger of a clinic abortion in the female plaintiff’s case; that practical considerations, such as time, distance and expense, normally limited the plaintiff doctor’s practice to hospitals in the area; that defendant hospital was regulated by the state, that it has received funding under the Hill-Burton Act from the Federal Government and has been an agency through which- the State of Wisconsin and the United States Government have provided medical services for residents of Northeastern Wisconsin; that every passing day increases the medical risk to the female plaintiff and that she was nearing the end of her first trimester of pregnancy, at which point medical risks increase dramatically.

The court in Beilin held that there is no constitutional objection to the decision (not to permit elective abortions) by a purely private hospital. “We think it is also clear that if a state is completely neutral On the question whether private hospitals shall perform abortions, the state may expressly au th'orize such hospitals to answer that question for themselves [at 760; emphasis supplied.]

As observed by the court in that case, the Supreme Court in Doe v. Bolton, supra, impliedly approved a section of the Georgia statute under review in that case when it said: "There is also a provision [subsection (e)] giving a hospital the right not to admit an abortion patient and giving any physician and any hospital employee or staff member the right, on moral or religious grounds, not to participate in the procedure.” 410 U. S. at 184, 93 S. Ct. at 744.

The Beilin court rejected plaintiffs’ arguments that the hospital’s right to make the decision had been limited by the Hill-Burton Act and the Civil Bights Act of 1871 in the following language:

The facts that defendants have accepted financial support, as alleged, from both the federal and state governments, and that the hospital is subject to detailed regulation by the State, do not justify the conclusion that its conduct, which is unaffected by such support or such regulation, is governed by § 1983 (Civil Rights Act of 1871). [Doe v. Bellin, supra, 479 F. 2d at 761]

Taylor v. St. Vincent's Hospital, 369 F. Supp. 948 (D. Mont. 1973), was an action against a hospital founded on the assertion that it violated plaintiff’s rights in refusing to permit her to undergo a tubal ligation at the time of her Caesarean delivery. The parties stipulated that defendant hospital was a private corporation operating a hospital facility and as such it received certain tax benefits from the State of Montana, and also that before the present administration took over the predecessor administration operating the hospital applied for and received Hill-Burton funds.

In holding that plaintiff’s action must be dismissed and that the hospital was not required to permit its facilities to be used as demanded by plaintiff, the court noted that on June 18, 1973 the President signed into law the Health Programs Extension Act of 1973. Title IV, § 401, of that act provides in part:

(b) Receipt of any grant, contract, loan, or loan guarantee under the Public Plealth Service Act, the Community Mental Health Centers Act, or the Developmental Disability Services and Facilities Construction Act by individual or entity does not authorize any court or any public official or other public authority to require * * *
(2) such entity to —
(a) make its facilities available for the performance of any sterilization procedure or abortion if the performance of such procedure or abortion in such facilities is prohibited by the entity on the basis of religious beliefs or moral convictions. [Public Law 93-45; 87/Sto#. 91, § 401(b)]

In Greco v. Orange Memorial Hospital Corp., 374 F. Supp. 227 (E. D. Texas 1974), a doctor sought a declaratory judgment that the policy of the hospital prohibiting the performance of elective abortions was unconstitutional. The hospital was constructed through the combined efforts of the state government, the federal government and also private persons, with the goal of providing health care for the people of Orange County, Texas. Land had been donated by private donors. The original construction was paid for through the issuance of interest-bearing county bonds and through the use of Hill-Burton funds. Initial operating expenses were raised through public donations in the local area. The hospital was chartered as a nonprofit corporation and entered into a lease agreement with the county, whereby the county agreed that the hospital building and land would be leased to the corporation to operate the hospital for renewal periods of five years at $1 a year. The corporation agreed to operate the hospital at its own expense; maintain the facilities without cost to the county; pay all taxes and insurance, and assume any liability arising from litigation involving the hospital. Additionally, it agreed to accept persons certified by the county as indigents on a reimbursable basis. Because the hospital enjoyed the status of a nonprofit corporation it was exempt from federal, state and local taxes.

No county official sat on the board of directors, which was the policy-making body, and the corporation operating the hospital was a separate, independent entity from the county.

The court held that the central jurisdictional question concerned the issue of whether there was sufficient state action to confer upon that court the subject matter jurisdiction. It held that there was not, on the ground that “for a private hospital to be subject to the Civil Eights Act of 1871, [42 U. S. C. A. § 1983], or the Fourteenth Amendment, its actions must be imbued with state involvement to a significant degree.” [at 232; emphasis supplied]

I agree with the contention of defendants that governmental regulation of or participation in some or even most of the affairs of defendant hospitals does not make every act of defendant so imbued with governmental action that each act can be subjected to constitutional restraints. Moose Lodge v. Irvis, 407 U. S. 163, 173, 92 S. Ct. 1965, 32 L. Ed. 2d 627 (1972); Jackson v. Norton-Children’s Hospitals, 487 F. 2d 502, 503 (6 Cir. 1973); Greco v. Orange Memorial Hospital Corp., supra, 374 F. Supp. at 232. To be regulable or subject to constitutional standards, the very activity of defendants which plaintiffs challenge must be supported by state action, Doe v. Bellin Memorial Hospital, supra, 479 F. 2d at 761; Watkins v. Mercy Medical Center, 364 F. Supp. 799, 802 (D. Idaho 1973); Powe v. Miles, 407 F. 2d 73, 81 (2 Cir. 1968), that sufficiently fosters or encourages that activity. If the state is completely neutral and does not foster or provide the “impetus” for the hospital policy causing plaintiffs’ alleged injuries, defendants’ actions do not amount to state action. Moose Lodge v. Irvis, supra, 407 U. S. at 172, 92 S. Ct. 1965; Doe v. Bellin Memorial Hospital, supra, 479 F. 2d at 760—761 ; Ward v. St. Anthony Hospital, 476 F. 2d 671, 675 (10 Cir. 1973). To hold otherwise would insinuate state action in almost every corporate action, for there is hardly any activity in this complex civilization that is not affected in some way by either federal, state, municipal or bureaucratic regulation. Absent a direct mandate from some governmental authority with respect to the adopted policy under attack, the “sifting of facts and weighing [of] circumstances” must lead one to reasonably conclude that the policy is fostered by the state de jure or at least de facto. Courts should not distort the factual implications to arrive at a conclusion one way or the other. If th'e state is “neutral” or has not “imbued” the alleged actions with state involvement to a significant degree, a court is not authorized to conclude that state action is involved.

Plaintiffs also rely heavily on Public Utilities Comm’n v. Pollak, 343 U. S. 451, 72 S. Ct. 813, 96 L. Ed. 1068 (1952), and Jackson v. Statler Foundation, 496 F. 2d 623 (2 Cir. 1974). Both of these cases are clearly distinguishable.

The issue in the former was whether the installation and use of receivers and loud speakers for transmission of radio programs in public buses privately owned but regulated by the Public Utility Commission of the District of Columbia was in violation of plaintiff’s constitutional rights to free speech and privacy. The court held that it was not. It upheld jurisdiction to review the action, primarily on the basis that the Public Utility Commission, an arm of government, had approved the action complained of.

Jackson v. Statler Foundation, supra, was a racial discrimination action brought against charitable foundations. The court held that it had jurisdiction by reason of the facts that foundations received governmental aid through tax immunities and were regulated to a large extent by the Federal Government, and because of purposes of the organization with respect to serving a public function.

The court observed that one of the most relevant of the substances of limitations imposed by the Federal Government with respect to such foundations was found in 26 U. 8. O. A. § 4945(a)-(d) and (g). (At 632) “These sections provide that a foundation which gives grants to individuals must do so in an ‘objective and non-discriminatory’ manner.” On the basis of this directive from the Federal Government the court found that the scheme of regulation connotes government approval of the activity. As already mentioned, in the case at bar there appears to be no such involvement on the part of any branch of government which connotes such approval.

In a strong dissenting opinion by Judge Friendly the majority opinion was taken to task for its “fundamental error [in] its loose characterization of the ‘state action’ doctrine.” Citing Moose Lodge No. 107 v. Irvis, supra, 407 U. S. at 176-177, 92 S. Ct. 1965, it repeated what had been said in Powe v. Miles, supra — that the state must be involved not simply with some activity of the institution alleged to have inflicted injury upon a plaintiff but with the activity that caused the injury. “Putting the point another way, the state action, not the private action, must be the subject of complaint.” 496 F. 2d 623, 638.

The dissenting opinion also stated: “The ‘state action’ cases that have stressed the heavy presence of government regulation are those in which private institutions are carrying out state policy against the plaintiffs or in which the state is benefiting directly from the private activity.” Jackson v. Statler Foundation, supra at 638.

I do not agree that the following Supreme Court cases support plaintiffs’ position as urged by them. Each concerns much greater action than that exhibited on the part of the State of New Jersey.

In Burton v. Wilmington Parkway Authority, 365 U. S. 715, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1961), a racial discrimination case, the state action was found in the facts that the state was the lessor of public property to the lessee who on that account was required to comply with the proscriptions of the Fourteenth Amendment as though they were covenants written into the lease.

In Adickes v. Kress & Co., 398 U. S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970), the racial discrimination was by a nongovernmental person who did it with knowledge of and pursuant to a state-enforced custom requiring such discrimination, and therefore the individual and the state were joint participants in the activity, so that the, individual was acting “under color of” that custom, in violation of 42 U. S. C. A. § 1983.

In Reitman v. Mulkey, 387 U. S. 369, 87 S. Ct. 1627, 18 L. Ed. 2d 830 (1967), another racial discrimination case, the court struck down an amendment to the California constitution which authorized racial discrimination by landlords in leasing their premises, notwithstanding earlier statutory enactments to the contrary, which were thereby impliedly repealed.

In McCabe v. Atchison, Topeka & Santa Fe R. Co., 235 U. S. 151, 35 S. Ct. 69, 59 L. Ed. 169 (1914), the court dealt with a statute which, as construed by the court, authorized carriers to provide cars for white persons but not for negroes. The court held, notwithstanding dismissal of the complaint on a procedural ground, that such a statute was invalid under the Fourteenth Amendment, because a carrier refusing equal service to negroes would be “acting in the matter under the authority of a state law.” This was in fact a statute authorizing a private corporation to invade the civil rights of citizens, which right the corporation would not otherwise have. Reitman v. Mulkey, supra, 387 U. S. at p. 379, 87 S. Ct. 1627.

In Nixon v. Condon, 286 U. S. 73, 52 S. Ct. 484, 76 L. Ed. 984 (1931), the court was faced with a statute empowering the executive committee of a political party to prescribe the qualifications of its members for voting or other participation, but containing no directions with respect to the exercise of that power.

In commenting on the holding in Nixon v. Condon, supra, the court in Reitman v. Mulkey, supra, said (387 U. S. at 379, 87 S. Ct. at 1633) : “This was authority which the committee otherwise might not have had and which was used by the committee to bar Negroes from voting in primary elections.” (Emphasis supplied.) Reposing this power in the executive committee was held to insinuate the state into the self-regulating, decision-making scheme of the voluntary association; the exercise of the power was viewed as an ex-pressi on of state authority contrary to the Fourteenth Amendment.

On January 31, 1973 the then Attorney General of the State of New Jersey said in a press release in connection with the Roe v. Wade and Doe v. Bolton opinions, both supra, announced only eight days earlier, “No hospital or clinic is compelled to permit abortions to be performed on its premises.”

Plaintiffs assert that this statement constituted state encouragement to hospitals to deny the use of their facilities for elective abortions and that it along with all the other circumstances evidenced “state action.” Not so.

The statement was a fair interpretation of the court’s holding in Doe v. Bolton, as already alluded to herein. But, more importantly, the Attorney General’s statement did not encourage or give authority which the hospitals otherwise did not have. Reitman v. Mulkey, supra.

The very fact that there are hospitals and clinics in the State which permit the procedures is to a degree mute testimony that the Attorney General’s statement was not accepted as encouragement for one policy or another.

The Division of Medical Assistance and Health Services announced on November 29, 1973 that it would pay providers of medical services for all “medically indicated” abortions performed on Medicaid eligible women “without distinction between elective and therapeutic abortions performed on or after January 22, 1973.” (Health Services Program Staff Bulletin A-9.2, Department of Institutions and Agencies, Division of Medical Assistance and Health Services)

Such announcement and policy is contrary to an asserted policy of encouraging hospitals not to permit their facilities to be used except for therapeutic procedures.

Accordingly, I find no “state action” and specifically that the policy of the defendant hospitals is not in violation of plaintiffs’ civil or constitutional rights under the Fourteenth Amendment.

II

Substantially all the factors in Greisman, supra, which led to that court’s declaration that Hewcomb Hospital was “in no position to claim immunity from public supervision and control because of its allegedly private nature,” 40 N. J. at 396, are present in the case at bar.

As cautioned in Greisman, however, the court is not asked to pass on a discretionary exercise of judgment but only on the validity of the adopted policy (at 402). And as particularly observed in Greisman (at 403): “Hospital officials are properly vested with large measures of managing discretion and to the extent that they exert their efforts toward the elevation of hospital standards and higher medical care, they will receive broad judicial support.”

Greisman overturned a policy of Hewcomb Hospital which arbitrarily rejected an application for staff privileges submitted by an osteopathic physician because he had not graduated from a medical school approved by the American Medical Society and was not permitted membership in the County Medical Society. The court held that the applicant was entitled to have his application' for membership evaluated on its own, individual merits.

The fact that the policy under attack here is concerned directly with patient services is not sufficient to distinguish the holding in Greisman so as to render it inapplicable. Consequently, the arguments of those espousing defendants’ cause to the contrary are found to be without merit.

Having already related the facts applicable to each defendant hospital which parallel those in Greisman, and in addition the closer supervision by the State since then (the Health Care Facilities Planning Act was not in existence when Greisman was decided), it must be conceded that this court may review the policy of defendant hospitals. Consequently, the policy challenged by plaintiffs is subject to review by this court for the purpose of determining whether it is consistent with the “public good.” Greisman, supra. Ordinarily a court reviews judgments of public bodies to determine if they are arbitrary and patently unreasonable. Kramer v. Bd. of Adj., etc., 45 N. J. 268 (1965). However, whichever view is taken or intended by the court in Greisman, the result in this case is the same.

Having determined that “state action” is not involved so as to render the hospital policy to be in violation of fundamental rights of plaintiffs (Point I) and having concluded that this court has jurisdiction to review the policy in the light of Greisman, supra, I now turn to the issue of whether the action complained of is in fact arbitrary and unreasonable in the sense that the adopted policy is so inimical to the public good that it must be set aside.

This review must consider all aspects of the discretionary judgment of the hospitals, not merely the aspect of possible or even probable consequences to plaintiffs alone. Doe v. Beltin, supra. Further, it must presume in the first instance the validity of the policy under attack, in the light of the recognized managing discretion on the part of hospital officials, as stated in Greisman.

The subject itself is so 'highly sensitive that emotions on both sides of the issue run high. Even the decisions of Doe v. Wade and Roe v. Bolton have never been accepted as the final word on the moral question. Moral and religions concepts as well as attitudes toward birth control, population growth, women’s rights and constitutional rights have shaped the scope of the controversy.

Justice Blackmnn, in Roe v. Wade, supra, took pains to acknowledge awareness “of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires.” 410 U. S. at p. 116, 93 S. Ct. at p. 708.

In Doe v. Hale Hospital, supra, the court stated:

This court regrets that it does not enjoy the freedom of accepting and rejecting described by Mr. Justice White where he said, at p. 222, 93 S. Ct. at p. 763: * * I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it.” [369 F. Supp. at 975]

And in Doe v. Wohlgemuth, 376 F. Supp. 173, 179 (W.D. Pa. 1974), in deciding that the State of Pennsylvania could not lawfully deny reimbursement to welfare recipients for costs of abortions under its medical assistance program, the court felt impelled to say: “It must be noted that in dealing with the issues in this ease we are precluded from the treatment of abortion on moral grounds * *

In Nyberg v. City of Virginia, supra, it was said in the dissenting opinion:

Doe and Roe are primarily concerned with protecting the right of a pregnant woman to have an abortion. If that right can be reasonably protected without compelling every public clinic and hospital in the United States to perform the procedure, consideration should be given to doing so. * * * We believe that a decent regard for the deep-seated convictions of those in the community who favor abortions, as well as those who oppose abortions, can be recognized by determining whether the rights of pregnant women desiring abortions can be reasonably protected without requiring the municipal hospital to perform abortions against its will. [495 IT. 2d at 1348]

Each of the defendant hospitals considered and debated the problem before taking the final action complained of in the instant ease. Each of the hospitals asserts that since their respective board members represent all sections, races, creeds and income levels of the citizens of their respective communities, and each having “sounded out” other members of the community in their respective service areas, they concluded that for themselves as well as for the members of the community their consciences are opposed to the use of their facilities for purposes of elective abortions, notwithstanding that in some instances the medical staffs differed in their recommendations.

Before final action was taken there were emotional demonstrations by members of the public. There were letters opposing the policy as well as favoring the policy. Pickets were stationed outside the hospital entrances for one side or the other. As stated, the consensus of the respective governing boards was that a majority of citizens in each of the communities favored the respective policy decisions.

An action is arbitrary when it is without fair, solid and substantial cause —• that is, without cause based upon the law or where it is nonrational. Blade’s Law Dictionary (rev. 4 ed. 19G8), 134.

“Conscience” has been defined as the sense or consciousness of the moral goodness or blameworthiness of one’s own conduct, intentions or character together with a feeling of obligation to do right or be good. Webster’s 3rd New International Dictionary (1971).

As mentioned above, following Roe v. Wade and Doe v. Bolton, it was provided in the Health Programs Extension Act of 1973 that receipt of grants, loans or loan guarantees under stated federal laws does not authorize any court, public official or public authority to require such beneiicary to make its facilities available for the performance of any sterilization procedure or abortion “if the performance of such procedure or abortion in such facilities is prohibited by the entity on the basis of religious beliefs or moral convictions.”

The “Manual of Standards for Hospital Facilities” (New Jersey Department of Health publication) contains a caveat which declares:

B. The Department of Health does not have the power or authority to:
1. Require any hospital to practice or permit sterilization of human beings, euthanasia, birth control or any other similar practice contrary to the dogmatic or moral beliefs of any well-established religious body or denominations. [Regulation 106B.1]

Conscience must bo equated with “religious beliefs” or “moral beliefs.” Welsh v. United States, 398 U. S. 333, 90 S. Ct. 1792, 26 L. Ed. 2d 308 (1970), and Gillette v. United States, 401 U. S. 437, 91 S. Ct. 828, 28 L. Ed. 2d 168 (1971), eases involving conscientious objectors to military service.

On October 2, 1974 the Governor approved Senate No. 503, now chapter 111, Laws of 1974, which in part provides that no hospital shall be required to provide abortion or sterilization services or procedures. I do not consider this statute as “state action,” for the same reasons already discussed with respect to the statement of the Attorney General. Eor the reasons appearing hereinafter, I need not decide and I refrain from deciding the effect of this statute. Counsel have notified me that no further argument or proceedings are requested or planned in the action.

As already mentioned, Doe v. Bolton, supra, impliedly indicated that a hospital would have the right to self-determination as to whether or not to permit the procedure.

I need not determine either the binding effect of the so-called “conscience clause” of the Health Programs Extension Act of 1973, supra> upon the court, or even the official effect, if any, of the New Jersey Department of Health announcement.

The action of Congress and the New Jersey Legislature emphasizes the importance of the issue to the citizenry. Furthermore, the disparity of views points up the fact that the hospital decisions were not purely arbitrary and based on insubstantial grounds.

It is well known that hospitals must enjoy the good will of their communities to be able to furnish the maximum service within their abilities. Hospitals depend on gifts, solicited and unsolicited, and generally the primary givers are those who reside in the service area. To require a hospital to act contrary to the community conscience as well as the conscience of its management would be itself contrary to the public good.

I do not find that there is such a shortage of available facilities within reasonable distances of the respective hospitals that, with almost minimal additional hardship, would serve to provide the service required by the female plaintiffs or those similarly situate. I am not satisfied that the few hardships that may result are sufficient to overcome the reasonableness of the hospitals’ determination. Nor have the physician plaintiffs demonstrated sufficient personal loss or hardship, or such injury to their patients, as to overcome the reasonableness of the hospitals’ policy.

Judge Friendly said in his dissent in Jackson v. Statler Foundation, supra, 496 F. 2d at 640, that if the courts take over the supervision of foundations there will ultimately be no foundations. This could equally apply to hospitals and other eleemosynary institutions.

Finally, as was said in Wahba v. New York University, 492 F. 2d 96, 102 (2 Cir. 1974), courts should pay heed to the “value of preserving a private sector free from the constitutional requirements applicable to government institutions.” Also: “An organization should not have to demonstrate an “associationa! or other constitutional’ claim to privacy * * * before the courts will take cognizance of the social values that private eleemosynary institutions can promote.” Jackson v. Statler Foundation, supra, 496 F. 2d at 639.

I have considered all the other points advanced by plaintiffs but I do not find them persuasive.

Having determined that the defendant hospitals’ policy challenged in this action was neither arbitrary nor contrary to the public good in the totality of the circumstances, judgment dismissing the complaint of plaintiffs will be entered, without costs, upon presentation of a draft of such judgment pursuant to the rules.

      42 U. S. C. A. 291 authorizes grants for capital improvements for hospitals.


source: Caselaw Access Project

author: Greenberg, J. C. C.,

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. DENNIS S. SMITH, DEFENDANT.
    Superior Court of New Jersey Law Division—(Criminal)
    Decided October 2, 1974.

      Mr. Jeff Masin, Assistant Prosecutor, for the State (Mr. Richard J. Williams, Atlantic County Prosecutor, attorney).

      Mr. Gerard C. Gross for defendant (Messrs. McGahn and Friss, attorneys).
   Greenberg, J. C. C.,

Temporarily Assigned. Defendant moves to dismiss the count of an indictment charging him with a violation of N. J. S. A. 2A :127-4 on the ground that the statute is unconstitutional on its face. The statute provides as follows:

Any person who installs or has in any automobile, a short-wave radio receiver operative on frequencies assigned by the federal commtmications commission for fire, police, municipal or other governmental uses, is guilty of a misdemeanor, unless a permit therefor has first been obtained from the chief of the county police, or from the chief of the police of the municipality, wherein such person resides.
This section does not apply to any fire, police or other governmental official of the state or of any county or municipality thereof.

The contentions of defendant must be addressed with certain well-established principles in mind. A court should not reach and determine a constitutional issue unless absolutely imperative in the disposition of the litigation. Donadio v. Cunningham, 58 N. J. 309, 325 (1971). In view of the nature of defendant’s motion there is no alternative to a determination of the constitutional issue.

A statute is entitled to a presumption of constitutionality, Male v. Ernest Renda Contracting Co., 64 N. J. 199 (1974), and this is especially so when the statute has long been applied without any question being raised as to its constitutionality. Gibraltar Factors Corp. v. Slapo, 23 N. J. 459, 463 (1957). While the absence of any reported decisions construing the statute in question since its adoption in 1933 may indicate that no significant legal determinations have been made with respect to it, there appears to be no reason to assume that prosecutors have not enforced the law in appropriate situations. In view of the presumption of constitutionality, it follows that a statute will not be declared inoperative and unenforceable unless it is plainly in contravention of a constitutional mandate or prohibition. State v. Profaci, 56 N. J. 346, 349 (1970).

When the Legislature’s exercise of the police power is brought into question, if the end is one to which the legislative power may properly be addressed, it is enough if it can be seen that in any degree, or under any reasonably conceived circumstances, there is an actual relation between the means used and the end sought by the statute. Jamouneau v. Harner, 16 N. J. 500, 518 (1954). While no statement of the ends of the Legislature appears in the statute, it seems reasonable to assume that there may have been a determination by the Legislature that if persons in automobiles could without restriction listen to fire, police ox other governmental communications, their high degree of mobility coupled with their possible desire to proceed to locations referred to in such communications, for reasons of curiosity or otherwise, might well result in interference with essential governmental activities. Likewise, the Legislature may have determined that if persons engaged in illegal activities were able to receive such information in their automobiles, they would become aware of their detection and their escape would be facilitated. Bearing in mind that the constitutionality of a statute does not turn on whether it is a wise one in a judge’s view, Brown v. Heymann, 62 N. J. 1, 10 (1972), then one can conceive an actual relation between the means used and the end sought by the statute. Banning such receivers in automobiles may avoid interference with police, fire and other governmental agencies in carrying out their functions; it may make it more difficult for those engaged in illegal activities to become aware of their detection.

Defendant contends that the statute denies him equal protection of the laws, in violation of the Fourteenth Amendment to the Constitution of the United States, in that limitation of 1ho operation of the statute to automobiles is unreasonable and arbitrary. Further, he alleges that the exception which constitutes the second paragraph of the statute is so broad as to violate equal protection. As to the former contention, there is no question but that the Legislature could have broadened the scope of the statute by including within its operation motor vehicles other than simply automobiles. However, the constitutionality of a legislative classification is presumed and one who attacks the classification must carry a heavy burden of showing its arbitrariness,; a statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. State in Interest of K. V. N., 116 N. J. Super. 580, 587 (App. Div. 1971), aff’d 60 N. J. 517 (1972). Equal protection is not denied because a penal statute might have gone further than it did or might have included some persons or classes of persons who were excluded, but rather violation of equal protection arises only when classification rests upon grounds wholly irrelevant to the achievement of the Legislature’s objective. State v. Smith, 58 N. J. 202 (1971). Applying these concepts to the classification at hand one can readily conceive that the serious problem in the view of the Legislature would exist with automobiles and not other types of motor vehicles. Persons in trucks would tend to be engaged in commercial operations and be unlikely to constitute a threat of interference. Other types of vehicles might be deemed not of sufficient numbers to be such a threat. Persons utilizing motor vehicles in illegal activities might well be expected to use automobiles rather than other types of vehicles because of their obvious advantages. The classification of the statute in this respect is certainly not wholly irrelevant to the State’s objective and is therefore not invalid.

As for defendant’s contention that the exception in the statute for any “fire, police or other governmental official of the state or of any county or municipality thereof” renders the statute invalid, it need only be said that, in light of what the ends of the Legislature appear to have been, the possession of radio receivers by these individuals in their automobiles could well be deemed to be not inconsistent with such ends.

Defendant further contends that the statute violates his First Amendment right of freedom of speech, as guaranteed by the Fourteenth Amendment. He cites Stanley v. Georgia, 394 U. S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969), for the proposition that the Constitution protects the right “to receive information and ideas.” The right protected by the Supreme Court in Stanley v. Georgia, supra, bears no relation to the right now asserted by defendant. It cannot seriously be contended that a person has a constitutional right to be a party to a communication, e. g., from one police officer to another directing the latter to proceed to a designated location to investigate a reported crime. The claim of violation of defendant’s right of free speech is completely without merit.

Finally, defendant contends that inasmuch as the statute provides for the issuance of permits but gives no standards to the issuing authorities, the Legislature has made an unconstitutional delegation of its authority. Legislative delegations are permissible so long as they are accompanied by sufficient basic standards. State v. Hotel Bar Foods, 18 N. J. 115 (1955). It is true that no standards are expressed in the statute which are to be followed by the police chief in determining whether or not to issue a permit for a radio receiver in an automobile. However, the standards need not be set forth in express terms if they may reasonably be inferred from the statutory scheme as a whole. Schierstead v. Brigantine, 20 N. J. 164, 169 (1955). In Motyka v. McCorkle, 58 N. J. 165 (1971), the court stated:

* * * While we have continued the form of the traditional requirement that delegation must have a sufficient accompanying standard, we have consistently sustained general standards and have not hesitated to imply them. * * *' Indeed in recent days we have attached greater significance to the presence of procedural and judicial safeguards against unreasonable and unwarranted agency action than we have to the presence of details in the statutory standards. * * * [58 N. J. at 177]

See also, In re Application of Schragger, 58 N. J. 274, 279 (1971).

It may reasonably be inferred that the Legislature intended that the police chief would issue a permit to a person who demonstrated a legitimate reason for access to the information being transmitted on the frequencies assigned for the purposes in question. This being so, the statute does not constitute an unlawful delegation by the Legislature.

Based on the foregoing, it is determined that N. J. S. A. 2A :127-4 is not in violation of the Constitution and the motion to dismiss is denied.


author: Kentz, J. S. C.

text:
    VINCENT DAMBRO, JR., PLAINTIFF, v. UNION COUNTY PARK COMMISSION, A BODY POLITIC OF THE STATE OF NEW JERSEY, AND BOROUGH OF WATCHUNG, A MUNICIPAL CORPORATION, DEFENDANTS, AND UNION COUNTY PARK COMMISSION, A BODY POLITIC OF THE STATE OF NEW JERSEY, THIRD-PARTY PLAINTIFF, v. BOROUGH OF WATCHUNG, A MUNICIPAL CORPORATION, THIRD-PARTY DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided October 11, 1974.

      Mr. Joseph J. Triarsi for plaintiff (Messrs. Pisano & Triarsi, attorneys).

      Mr. Jack L. Lintner for Borough of Watchung (Messrs. Graham, Turasko, Golden & Lintner, attorneys).

      Mr. Arthur J. Callaghan for Union County Park Commission (Messrs. Brause, Callaghan & Coyle, attorneys).
   Kentz, J. S. C.

The Borough of Watehung (hereinafter Watehung) has filed a motion to dismiss the complaint of plaintiff Vincent Dambro and the third-party complaint of defendant, Union County Park Commission (hereinafter Park Commission) based on noncompliance of the notice of claim provisions of New Jersey Tort Claims Act, N. J. S. A. 59:8 et seq., with particular reliance placed on N. J. S. A. 59:8-4. Plaintiff has made a motion for leave to file a notice of late claim against Watehung pursuant to the provisions of N. J. S. A. 59:8-9.

The ease arose out of a severe injury caused to plaintiff on May 28, 1978. He dove into the stream while swimming in the falls area of New Providence Road, Watehung, and hit his head on certain rocks and debris resulting in a broken neck.

On May 30, 1973 counsel for plaintiff sent a letter to the Watehung Police Department advising of his representation' of plaintiff in connection with injuries sustained as a result of an accident which occurred two days before at the swimming area. A copy of the police report was sent to plaintiffs counsel. This police accident report contained the name and address of plaintiff, the date and time of the accident, the location of the accident, the fact that plaintiff had dove into the water and could hot move the lower part of his body. The report included a confirmation from Overlook Hospital in Summit that the victim had a broken neck.

On June 11, 1913, two weeks after the date of the accident, counsel for plaintiff sent a letter to the borough tax assessor advising him of the attorney’s representation of plaintiff. This letter named plaintiff, gave his address and stated that he plaintiff was injured when “he fell at the ‘falls area of New Providence Hoad’ near the waterfall.” Plaintiff’s counsel requested the tax assessor to advise him as to the owner of the premises in question and whether it be privately owned or owned by the municipality, county or State. This letter was returned with a notation reading “Union County Park Commission, P. O. Box 215, Elizabeth, N. J. 01201.”

Plaintiff’s counsel notified the Park Commission on or about August 14, 1913, and this original notification was supplemented on September 18, 1973. On the belief that the Park Commission was the sole owner of the premises in question, plaintiff instituted suit against the Park Commission on April 30, 1914. On or about June 18, 1974 plaintiff received a third-party complaint filed by the Park Commission against defendant Watehung, alleging the premises in question were owned in whole or in part by Watehung.

Plaintiff filed a notice of motion for an order permitting the joinder of the third-party defendant, Watehung, as a direct defendant. This motion was granted and an amended complaint was served upon both defendants on July 26, 1914.

Watehung has brought a motion before this court to dismiss the plaintiff’s amended complaint. Watehung urges that the notice requirements as set forth in N. J. S. A. 59:8-4 have not been satisfied by plaintiff’s letters to the Watehung Police Department and the tax assessor.

N. J. S. A. 59 :8-4 states:

A claim shall be presented by the claimant or by a person acting on his behalf and shall include:
(a) The name and post office address of the claimant;
(b) The post office address to which the person presented the claim desires notices to be sent;
(c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted;
(d) A general description of the injury, damage or loss incurred so far as it may be known at the time of presentation of the claim;
(e) The name or names of the public entity, employee or employees causing the injury, damage or loss, if known; and
(f) The amount claimed as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage or loss, insofar as it may he shown at the time of the presentation of the claim, together with the basis of computation of the amount claimed.

Watchung contends that neither letter provides the information required by N. J. S. A. 59:8-4(d), (e) and (f), and that the letter to the Watchung Police Department fails to provide information required by 59:8-4(a). Additionally, Watchung urges that N. J. S. A. 59:8-7 requires that the notice of claim must be filed with the department or agency involved in the alleged act or omission. N. J. S. A. 59 :8-7 states:

A claim for damage or injury arising under this act against the State shall be filed either with (1) the Attorney General or (2) the department or agency involved in the alleged wrongful act or omission. A claim for injury or damages arising under this act against a local public entity shall be filed with that entity.

Plaintiff asserts that a notice of claim under the Tort Claims Act need not be made by a formal filing of claim, but rather may he an informal presentation by letter or otherwise.

The New Jersey Tort Claims Act, effective July 1, 1972, is a recent expression of the New Jersey Legislature, and this case presents a question of construction not yet determined by the courts of New Jersey. In arriving at a decision this court seeks to follow the legislative purpose and policies embodied in the act.

N. J. S. A. 59:1-2 states the legislative declaration concerning the act:

The Legislature recgonizes the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity. On the other hand the Legislature recognizes that while a private entrepreneur may readily be held liable for negligence within the chosen ambit of his activity, the area within which government has the power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done. Consequently, it is hereby declared to bo the public policy of the State that public entities shall only be liable for their negligence within the limitations, of this act and in accordance with the fair and uniform principles established herein. All of the provisions of this act should be construed with a view to carry out the above legislative declaration.

Tlie official comment to N. J. S. A. 59 :8-3 states the purpose oí the notice of claim provisions to be twofold:

(a) to allow the public entity at least six months for administrative review with the opportunity to settle meritorious claims prior to the bringing of suit; (b) to provide the public entity with prompt notification of a claim in order to adequately investigate the facts and prepare a defense.

The New Jersey Toil Claims Act is in derogation of the common law rule of sovereign immunity. At the same time it is remedial in nature and seeks to correct the deficiencies of sovereign immunity. N. J. S. A. 59:1-2, supra. Such a conflict between two recognized rules of statutory construction should not impede this court.

Statutes in derogation of the common law are generally strictly construed. Dacunzo v. Edgye, 19 N. J. 443 (1955); Bruce G. M. Diesel, Inc. v. Associates Financial Services Co., Inc., 125 N. J. Super. 53 (App. Div. 1973). This rule should not, however, defeat the legislative purpose. N. J. S. A. 59 :l-2, supra. Dacunzo v. Edgye, supra. The New Jersey Supreme Court provided some guidelines for statutory interpretation in a situation like the present when it stated in DeFazio v. Haven Savings and Loan Ass’n, 22 N. J. 511 (1956) :

In construing statutes the inquiry is to determine tbe purpose and intent of the Legislature. If tbe statute alters or amends tbe previous law or creates or abolishes types of actions, it is important to discover tbe intention of the Legislature to ascertain the old law, tbe mischief and tbe proposed remedy, [at 518]

The New Jersey Tort Claims Act was based upon California’s Tort Claims Act, Gal. Gov't. Code, § 810 et seq. (see Comment accompanying N. J. S. A. 59:2-1), Markey v. Skog, 129 N. J. Super. 192, 205 (App. Div. 1974). The California courts have held that substantial compliance with the notice of claim statute is sufficient. Stromberg, Inc. v. Los Angeles County Flood Control Dist., 270 Cal. App. 2d 759, 76 Cal. Rptr. 183 (Sup. Ct. 1969). The Stromberg court stated that:

The doctrine of substantial compliance has frequently been invoked to validate a claim in fact filed under tbe claims statute, although incomplete or defective or presented to the wrong agency, where claimant has made a bona fide attempt to comply with the statutory requirements * * but we know of no case in which it has been invoked to cure an omission to file a claim, [at 186]

Another California case indicates other situations involving substantial compliance, such as “improper verifications, unclear descriptions of the place of the accident, or filing with the wrong county agency.” McGranahan v. Rio Vista, 224 Cal. App. 2d 624, 36 Cal. Rptr. 798, 801 (D. Ct. App. 1964).

A look at the facts of the present case is persuasive. Counsel for plaintiff wrote to the Watchung Police Department two days after the accident. This letter advised the department of the representation of plaintiff by counsel and stated the date and place of the accident. The department’s own report sent out to plaintiff’s counsel contained plaintiff’s name, address, the location of the accident, and incidentally listed the location as within Watchung, New Jersey. The police report also referred to the receipt of a hospital report indicating the fact that plaintiff had suffered a broken neck.

Within two weeks of the accident plaintiff’s counsel wrote to the tax assessor of Watchung. This second letter contains plaintiff’s name and address, as well as the fact that an accident occurred in the "falls area of New Providence Load” near the waterfall. Plaintiff’s counsel asked for advisement on the ownership of the premises, and the tax assessor returned the letter with the handwritten notation reading, "Union County Park Commission, P. 0. Box 275, Elizabeth, N. J. 07207.” Plaintiff’s counsel relied upon this representation and notified the Park Commission on or about August 14, 1973, thus filing a proper claim under N. J. S. A. 59: 8-4.

This representation by the Watchung tax assessor raises the issue of estoppel. The doctrine of estoppel may be applied against the State and its counties and municipalities. Bayonne v. Murphy, 7 N. J. 298, 311 (1951). Estoppel is conduct, either express or implied, which reasonably misleads another to his prejudice so that a repudiation of such conduct would be unjust in the eyes of the law. Such estoppel is grounded not on subjective intent but rather on the objective impression created by the actor’s conduct. Matsuo Yoshida v. Liberty Mutual Ins. Co., 240 F. 2d 824, 829 (9 Cir. 1957); Goodpasture v. Goodpasture, 115 N. J. Super. 189, 197 (Ch. Div. 1971).

Plaintiff’s counsel made a good faith effort to discover the owner of the premises, as evidenced by his prompt notification under N. J. S. A. 59:8-4 to the Park Commission upon receipt of the notation from the Watchung tax assessor. The tax assessor, an administrative official of Watchung, acted in apparent good faith and within the ambit of his duty. The law should not permit a municipality to insulate itself from possible tort liability by the mistake or inadvertence of its employee tax assessor.

The case of Jantausch v. Verona, 41 N. J. Super. 89 (Law Div. 1956), aff’d 24 N. J. 326 (1957), likewise indicated that where an administrative official “in good faith and within the ambit of his duty makes an erroneous and debatable interpretation * * * and the property owner in like good faith relies * * estoppel would apply. 41 N. J. Super. at 94.

Defendant contends subsections (a), (d), (e) and (f) of N. J. S. A. 59:8-4 were not complied with. The name and address of claimant were stated on counsel’s letter to the tax assessor as required under subsection (a). The police department’s own records indicate that plaintiff suffered a broken neck, and therefore Watchung had at least constructive knowledge of the nature of the injury. Accordingly, subsection (d) is satisfied.

N. J. S. A. 59:8-4(e) requires the name or names of the public entity causing the injury, if known. Obviously the name of such entity was not known to plaintiff and any alleged insufficiency on his part can only be attributed to defendant Watchung’s actions.

N. J. S. A. 59:8-4(f) requires the amount claimed as of the date of presentation of the claim, if such amount is known. A lack of stated damages will not bar plaintiff’s cause of action if the amount of damages is not known at the time of the presentation of the claim.

Furthermore, Watchung has been served with a third-party complaint by the Park Commission which seeks contribution under the Joint Tortfeasor Contribution Law, N. J. S. A. 2A:53A-1 et seq. This court is convinced that the decision in the recent case of Marlcey v. Slcog, supra, gives the right to the Park Commission to implead Watchung. Marlcey permitted a nonpublic defendant to seek contribution against the State when plaintiff had not given proper notice of the claim to the State within the time limitations of N. J. S. A. 59:8-8. The same right should extend to a public defendant seeking contribution. Accordingly, the motion to dismiss the third-party complaint is denied.

Watchung will have to prepare a proper defense as a third-party defendant. An investigation of the facts is possible in that the police department report of the accident exists. This court finds that Watchung had an opportunity to prepare a defense, as well as investigate all facts and thereby was afforded an opportunity to settle plaintiff’s claim before litigation commenced. Thus, the legislative purposes as stated in the comment to N. J. S. A. 59:8-3 are satisfied.

This court also finds that counsel for plaintiff correctly relied on the representation of Watchung’s tax assessor. To hold otherwise would result in plaintiff having to serve summonses and complaints upon any and all possible defendants in order to insure his day in court against the proper defendant. A contrary ruling may also produce a situation where the Park Commission may prove nonownership of the premises on its part which would leave plaintiff without a remedy.

An examination of the totality of the facts convinces this court to deny the motion to dismiss plaintiff’s complaint against Watchung. The facts and information contained in the letters to the police department and tax assessor, the representation of the tax assessor of Watchung’s nonownership, and the good faith efforts of plaintiff’s counsel who did in fact file a proper claim against the Park Commission, indicate to this court that the legislative purpose and remedial goals of the statute have been achieved.

Plaintiff has made a motion seeking an order permitting him to file a notice of late claim against Watchung pursuant to N. J. S. A. 59:8-9. This section does allow for the filing of such a notice within one year after the accrual of the claim at the discretion of the court. The incident occurred on May 28, 1973. Plaintiff did not file a formal notice of late claim within one year of that date.

Since this court has ruled for the reasons stated that there has been substantial compliance with the statutory notice requirement, there is no need for the filing of an additional notice at this time even if the giving of such a notice is allowable. Cf. Lutz v. Semcer, 126 N. J. Super. 288 (Law Div. 1974), wherein plaintiff’s motion for leave to file a notice of late claim was denied. Plaintiff in Lutz did not allege that timely notice had been given pursuant to N. J. S. A. 59: 8-4, and the court made no finding with respect thereto.

Accordingly, this motion for leave to file a late claim notice is denied for the reason that sufficient notice has already been given pursuant to the statute and any further notice at this time would serve no useful purpose under the circumstance of this case, and for the further reason that the one-year limitation period for the filing of a late claim notice has expired.

Order to be submitted in accordance herewith.


author: Per Curiam.

text:
    WALLINGTON HOME OWNERS ASSOCIATION, AN UNINCORPORATED ASSOCIATION, AND ANDREW P. VASCO, PLAINTIFFS-RESPONDENTS, v. BOROUGH OF WALLINGTON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT, AND JAMES NUCKEL, INTERVENOR-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 4, 1974—
    Decided March 25, 1974.

      Before Judges Collestee, Lynch and Michels.

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

      Mr. Malcolm Blum argued for respondents (Messrs. Sirota, Carlton & Blum, attorneys).

      Mr. Lawrence G. Goodman argued for intervenor (Messrs. Goodman, Stoldt & Breslin, attorneys; Mr. Allen M. Bell on the brief).
   Per Curiam.

This is an appeal by defendants Borough of Wallington (Borough) and James bTuckel (Nuckel) from a portion of a judgment declaring that an amendment to the Borough’s zoning ordinance, which created a “Planned Commercial” (P-C.) zone for an area of undeveloped land, was invalid because it constituted “spot zoning” and did not meet the statutory purposes of zoning set forth in N. J. S. A. 40:55-32.

The property involved is known as “Roehr’s Tract” consisting, in all, of 27 acres. It is rectangular in shape having an average width of 830 feet, an average depth of 1,620 feet, with a frontage on Paterson Avenue of 730 feet. The tract rezoned to “Planned Commercial” consists of four acres of the “Roehr’s Tract.” The remaining 23 acres were rezoned Residential (R-4) and no appeal was taken therefrom.

Plaintiff is an association of residential property owners living near the “Roehr’s Tract.”

Most of the “Roehr’s Tract” had previously been zoned R-l. (One-family residential use) with the area facing Paterson Avenue zoned LI-C. (Light Industry-Commercial) for a depth of 200 feet. The latter permitted business offices, banks, restaurants, dry cleaners, gas and service stations, building supply warehouses, howling alleys, stores for the sale of drugs, candy and tobacco, small manufacturing laboratories and mortician use. The new P-C. zone permits the land to be used for business and professional offices, retail department stores, food supermarkets and medical arts buildings. And it extends said zone to a depth of 400 feet whereas the previous LI-C. zone went to a depth of 200 feet.

Intervenor Nuckel purchased the land from the Roehr’s Company in 1969. The tract was the last remaining undeveloped tract of substantial size in Wallington.

The trial judge struck down the P-C. zone for these reasons as he expressed it in his letter opinion: “The court finds that the change for this property from 200 feet to 400 feet does not benefit Wallington but appears to be a special benefit inuring to the benefit of the property owner.” He added his personal opinion that the fiow of shoppers would probably be away from and not to the Wallington area and therefore there woidd be no need for the supermarket which Nuckel projects as the future use of the property. The Borough on the other hand contended that there was a need for such facility especially so because, since the adoption of the zoning ordinance in 1964, two large garden apartment complexes were built within a few blocks of the site.

What we have is essentially a disagreement between what the municipal authorities believed to be appropriate zoning for the subject tract and what the trial judge conceived to be appropriate.

Without reciting the various circumstances and contentions here we have decided to reverse the judgment invalidating the amendment of the ordinance insofar as it created the P-C. zone. Plaintiffs have failed to sustain the heavy burden which is theirs in this context.

The party attacking the validity of a zoning ordinance has a heavy burden of affirmatively showing it bears no reasonable relationship to public health, morals, safety or welfare. Proof of unreasonableness must be beyond debate. [Citations omitted]. The presumption may be overcome by a showing on its face or in the light of facts of which judicial notice can be taken, of transgression of constitutional limitations or bounds of reason. [Citation omitted].
The judicial role in reviewing a zoning ordinance is tightly circumscribed. There is a strong presumption in favor of its validity. A court cannot pass upon the wisdom or lack of wisdom of an ordinance. It may only invalidate a zoning ordinance if the presumption in favor of its validity is overcome by a clear, affirmative showing that it is arbitrary or unreasonable. [Citations omitted].
The functions of the legislative bodies and the judicial forums are distinct. The wisdom of a particular course chosen by a governing body is reviewable only at the polls. [Citations omitted], [J. D. Const. v. Bd. of Adjust. Tp. Freehold, 119 N. J. Super. 140, 146 (Law Div. 1972) ; emphasis added.]

See also Johnson v. Township of Montville, 109 N. J. Super. 511, 519 (App. Div. 1970).

Chief, then Associate, Justice Weintranb said in Kozesnik v. Montgomery Twp., 24 N. J. 154, 167 (1957) :

The zoning statute delegates legislative power to local government. The judiciary of course cannot exercise that power directly, nor indirectly by measuring the policy determination by a judge’s private view. The wisdom of legislative action is reviewable only at the polls. The judicial role is tightly circumscribed. We may act only if the presumption in favor of the ordinance is overcome by a clear showing that it is arbitrary or unreasonable.

More recently it has been held by onr Supreme Court:

It is fundamental that zoning is a municipal legislative function, beyond the purview of interference by the courts unless an ordinance is seen in whole or in application to any particular property to be clearly arbitrary, capricious or unreasonable, or plainly contrary to fundamental principles of zoning or the statute. N. J. S. A. 40:55-31, 32. It is commonplace in municipal planning and zoning that there is frequently, and certainly here, a variety of possible zoning plans, districts, boundaries, and use restriction classifications, any of which would represent a defensible exercise of the municipal legislative judgment. It is not the function of the court to rewrite or annul a particular zoning scheme duly adopted by a governing body merely because the court would have done it differently or because the preponderance of the weight of the expert testimony adduced at a trial is at variance with the local legislative judgment. If the latter is at least debatable it is to be sustained. Kozesnik v. Montgomery Twp., 24 N. J. 154, 167 (1957) ; Vickers v. Tp. Com. of Gloucester Tp., 37 N. J. 232, 242 (1962), cert. den. and app. dism., 371 U. S. 233, 83 S. Ct. 326, 9 L. Ed. 2d 495 (1963). [Bow & Arrow Manor v. Town of West Orange, 63 N. J. 335, 343 (1973)].

Plaintiffs have failed to overcome the presumed validity of the municipal action here involved.

Nor do we find that the adoption of the amendment constituted “spot zoning.”

Por several years many studies were made of the area and recommendations made to the Borough as to the zoning of the “Boehr’s Tract” before the instant amendment was adopted. This was not a “singling out a small parcel of land for a use classification totally different from that of the surrounding area, for the benefit of the owners of such property and to the detriment of other owners,” Jones v. Zoning Bd. of Adjustment, Long Beach Tp., 32 N. J. Super. 397, 404 (App. Div. 1954). This tract was the last large available piece of land in the Borough. The trial judge’s “opinion” that it was improbable that shoppers would flow from surrounding communities to the subject area is not supported in the record. A judge’s private knowledge is entitled to no weight at all. Amadeo v. Amadeo, 64 N. J. Super. 417, 424 (App. Div. 1960). Defendant’s expert, fully qualified to give his opinion, felt that a shopping center would do well in the area. This conformed to the judgment of the local officials.

The judgment of the Law Division is reversed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WILLIAM VOGT, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    A-811-73
    Submitted September 30, 1974—
    Decided October 16, 1974.

      Before Judges Coneord, Michels and Morgan.

      Messrs. Heilbrunn, Tabman, Josephs, Finkelstein, Heilbrunn & Garruto, attorneys for appellant (Mr. Richard Galex, on the brief).

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for respondent (Mr. David S. Baime, Deputy Attorney General, of counsel and on the brief).
   Per Curiam.

Defendant was convicted in a municipal court of disorderly conduct in making annoying telephone calls to one Jensen, in violation of N. J. S. A. 2A:170-29. The conviction was affirmed in a trial de novo on the municipal court transcript by the Ocean County Court.

Jensen testified that he had received a number of calls at his Toms Biver home from one who made threats against him or his wife, or just breathed into the phone. He could not identify the voice, which sounded as though it were being-disguised, and gave the impression of a male “teenager.” He thereupon requested the telephone company to trace the calls. Similar calls continued to be made to the Jensen home, and the telephone company informed him that all the calls made at the times of such subsequent incidents, as reported by Jensen to the company, were shown by its tracer system to have originated at the home of defendant. Defendant resided there with his wife and children aged 2 and 4 years.

There was proof that up until one year prior to these occurrences Jensen had worked under the supervision of defendant for a common employer and that after Jensen left to take another job he had had an altercation with defendant over a “bad recommendation” the latter had given Jensen’s new employer.

The State called as a witness one Anderson, employed by the New Jersey Bell Telephone System as a “switchman” in the Toms Biver central office of the company. He was in charge of the department in that office which operated and maintained tracing equipment. He described the tracing method of operation in detail. Although Anderson did not operate the tracing equipment used in this case, that having involved equipment at the Lakewood central office of the company, he produced the original IBM computer cards of the company on which the tracer equipment had purportedly recorded the time and originating telephone number of the irregular calls received at the Jensen home during the period of the tracer. The cards showed the originating telephone to have been that at defendant’s home. Anderson was designated to testify because the man in charge of the trace actually conducted at the Lakewood central office was on vacation at the time of trial. While the cards were not formally offered in evidence, it appears from the transcript that they were submitted to the municipal court judge and to defense counsel for their examination and in effect treated as though in evidence. There seems no doubt that if formally offered in evidence, and challenged, they could properly have been qualified for admission as business records under Rvid. R. 63 (Í3).

Defendant concedes in his brief that the several decisions in the Hibbs case, supra, 123 N. J. Super. 108 (App. Div. 1973), certif. den. 63 N. J. 253 (1973), 123 N. J. Super. 124 (App. Div. 1972) and 123 N. J. Super. 152, the opinion of the Mercer County Court cited above, “stand for the proposition that telephone tracing equipment is reliable and accurate” for purposes of admissibility of evidence based thereon, but he nevertheless contends that there must in each case be proof that “the equipment was operating properly and that the test was conducted by a qualified individual.” Defendant maintains that the latter prerequisites of proof were here absent.

It may be noted that this court sustained a conviction in Hibbs, supra, notwithstanding there was no indication in its two opinions that there was specific proof that the telephone tracing equipment used in that case was “operating properly" or that the particular technician who attached the tracing eqiripment was “qualified.” It seems implicit in the last opinion of the court (123 N. J. Super. 124) that the establishment by expert proof of the automatic nature of the computer-like equipment was tantamount to a demonstration that it was “operating properly” and that the qualifications of the technician the company assigned to apply the trace could be assumed.

This telephone equipment and the method of its use as a trace]-, as described in Judge Moore’s opinion for the Mercer County Court in Hibbs (123 N. J Super. 152), is sharply differentiable from the use of such apparatus as drunkometers, breathalyzers, VASCAR instruments, etc. As to each of the latter a small, discrete piece of equipment is involved, requiring periodic inspection or adjustment (e.g., by calibration) for use on specific occasions and an especially trained operator for its administration—one who may sometimes make subjective judgments in the course of his use of the equipment. But see, State v. McGeary, 129 N. J. Super. 219, 227-28 (App. Div. 1974). It is for these reasons that in penal proceedings dependent for proof of guilt on the evidence revealed by such devices it is required not only that the scientific basis of the equipment be proven (or be subject to judicial notice as) reliable, but that the particular instrument be shown to have been in proper working order and the operator qualified to use it. See State v. Johnson, 42 N. J. 146, 171 (1964); State v. Finkle, 128 N. J. Super. 199, 209 (App. Div. 1974), certif. granted 65 N. J. 575 (1974).

We are fully satisfied that in the light of the present record and the authority of and findings in the Hibbs case it was not necessary for the State to offer any more specific proof that the tracing equipment was in proper working order. We do believe, however, that fairness and due judicial caution in a case like this, involving penal consequences to defendant, call for the State on remand to produce the testimony of the individual, if available and ascertainable, who made the tracing attachment, or otherwise his responsible superior, to testify as to the procedure used and the qualifications of the operator.

We also believe no question should remain open as to the evidentiary status of the IBM cards mentioned above. Unless defendant stipulates that they shall be regarded as admitted in evidence as business records, the State is given leave to attempt to qualify them as such.

We therefore remand to the Ocean County Court for the limited purposes stated and direct that court to make findings of fact on such testimony and return the record and findings to this court within 30 days of the filing of this opinion. We retain jurisdiction.

       We omit tke details of liis testimony ¿s it was to the same general effect as the description of the equipment and method of operation set forth comprehensively by the Mercer County Court in State v. Hibbs, 123 N. J. Super. 152 (1972). See further references to the Hibbs ease, infra.