author: Galda, J. S. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JAMES N. SAN VITO, DEFENDANT-PETITIONER, AND PATRICIA E. SAN VITO, DEFENDANT-PETITIONER.
    Superior Court of New Jersey Law Division
    Decided June 5, 1974.

      Mr. Leo J. Gellene for petitioners (Messrs. Merrey and Merrey, attorneys).

      Mr. Craig D. Katz, Assistant Prosecutor, for respondent (Mr. Joseph C. Woodcock, Jr., Prosecutor of Bergen County, attorney).
   Galda, J. S. C.

James N. San Vito and his sister Patricia petition for the expungement of their arrest records, pursuant to N. J. S. A. 2A:85-15 et seq. (L. 1973, c. 191). The exceptional circumstances of this matter dictate an interpretation of this new statute.

The facts are not in dispute and relatively simple. Petitioners were arrested on November 24, 1970 in Montvale, Bergen County, on a charge of possession of a controlled dangerous substance, in violation of the then existing law, N. J. S. A. 24:18-4. Additionally, James was charged under N. J. S. A. 24:18-37 with maintaining a narcotics nuisance.

A probable cause hearing held in the Montvale Municipal Court resulted in the case being referred to the Bergen County grand jury, which subsequently found “no bill.”

Upon the filing of the expungement petition I issued an order for a hearing on April 26, 1974. As required by the statute, N. J. S. A. 2A:85-16, petitioners served notice of the hearing upon the Montvale Chief of Police, the Bergen County Prosecutor and the Attorney General. In response to that notice the Attorney General’s office sent me the following letter:

The Attorney General’s Office will consent to an order of expungement in the above-captioned matter if the petitioner stipulates therein that he will never institute civil proceedings against law enforcement officers involved in this case.
If such a representation cannot be made, we will object to the entrance of an order of expungement in which case only the sealing remedy would be available. See 1*. L. 1973, Chapter 191, Paragraph •1(a).

The State maintained this position at the scheduled hearing; petitioners’ attorney strongly opposed it. He candidly stated that although his clients never contemplated suing the State, he could not, in good conscience, consent to such a provision in the expungement order. Subsection 3(a) of the statute (N. J. S. A. 2A:85-17(a)) provides:

At the time appointed for the hearing, if there is no objection from those law enforcement agencies notified of the hearing, and no reason appears to tho contrary, the court may grant an order directing the clerk of the court and the parties upon whom notice was served to expunge from their records all evidence of said arrest including evidence of detention related thereto, and specifying those records to be expunged.

Subsection 4(a) — N. J. S. A. 2A:85-18(a) — goes on to say:

If an objection is made by any law enforcement agency upon which notice was served, the court shall determine whether there are grounds for denial. If the court determines there are no grounds for denial it may grant an order directing the clerk of the court and the parties upon whom notice was served to seal their records of said arrest, including evidence of detention related thereto, and specifying those records to be sealed.

Section 5 (N. J. S. A. 2A:85—19) directs that no court shall grant an expungement order or seal the records of arrest where "ground for denial” exists. "Grounds for denial” are said to exist —

a. When tho usefulness of the information of the arrest and the proceedings to law enforcement authorities and to anyone who might obtain such information outweighs the desirability of having a person, who has been acquitted or against whom charges have been dismissed or discharged, freed from any disabilities attached to the arrest which preceded that acquittal, dismissal or discharge.
b. When dismissal resulted from a plea bargaining agreement or when acquittal, discharge or dismissal occurred after exclusion of highly probative evidence upon invocation of an exclusionary rule not directed to the truth of the evidence excluded. [Section 6; N. J. S. A. 2A:85-20]

Based upon the Attorney General’s letter and the position taken by the prosecutor’s office at the hearing, I am satisfied that no “grounds for denial” are present in this matter. Therefore, the only question open, and indeed the crux of this matter, is which of the two statutory remedies, expungement or sealing, is the proper relief to be granted?

There is a significant difference in the statutory scheme between expungement and sealing. In the case of expungement, once an order is issued the records of the arrest and the evidence relating thereto must be sequestered from the agency’s regular files and delivered to a designated custodian of expunged records. The records or the information contained therein may never again be released. N. J. S. A. 2A:85 — 17 (b).

The case is otherwise where there is a sealing. The records and information pertaining to the arrest are not sequestered. They may be maintained and used within the agency or agencies possessing them. The statute provides that “sufficient precautions” be taken to insure that the records and information are not revealed to anyone outside the law enforcement agency possessing them. N. J. S. A. 2A:85-18(b).

Finally, while both procedures mandate that the agency in possession of any such record must deny its existence where there is a request therefor, a court may, upon motion and for good cause shown, allow inspection of the previously sealed records. Id. Such is not the case where there is an expungement order. Expungement, therefore, is clearly the superior remedy from a petitioner’s point of view.

The State’s argument is twofold. Primarily it contends that the statute, and more specifically subsections 3(a) and 4(a) quoted above, should be given literal interpretation: that is to say, if any law enforcement authority involved in the particular case were to interpose any objection for any reason whatsoever, the court could consider only the sealing remedy. In short, the State maintains here that if may object to, and thereby preclude, the expungement remedy for a reason wholly irrelevant and immaterial to the record-keeping necessities of the law enforcement agencies.

As a corollary to this assertion, the State contends that if it is denied the power to exact the release from civil suit it seeks in exchange for not objecting to expungement, a situation could arise where a party could seek expungement of an arrest record, obtain it and then proceed to sue the State and/or its agents in a civil action such as false imprisonment. The State, once stripped of the expunged records, would be hard put to defend such a suit.

Petitioners oppose the State’s position on three grounds: (1) it would violate public policy to permit the State to coerce them into agreeing to a release from civil suit in return for expungement of their arrest record; (2) the validity of such a release is highly questionable in light of the elements of “overreaching” and “uneonscionability” they assert are present in the State’s position; and finally (and to my mind most importantly), (3) what the State contends for is inconsistent with the legislative intent in enacting the statute in question.

I conclude that petitioners’ position is correct; they are entitled to an order of expungement free of any release, stipulation, proviso or waiver.

While there may be merit in petitioners’ argument that the validity of a waiver such as the State seeks is doubtful in light of the relative bargaining powers of the parties (see Henningsen v. Bloomfield Motors, Inc., 32 N. J. 358 (1958), and Shell Oil Co. v. Marinello, 63 N. J. 402 (1973)), my decision is based on what I find to be the intent of the Legislature.' I therefore find it unnecessary to deal with the “unconscionability” argument.

Por a court to agree with the State’s construction of the statute would be equivalent to granting law enforcement agencies carte blanche as to the price they could exact from parties otherwise qualified to obtain an order of expungement by the very terms of the statute. I do not mean to imply that the State is acting in bad faith in this matter, but once such absolute power were granted a law enforcement agency, would it not amount to usurping the reviewing function of the courts under the statutory scheme? Eurther, and perhaps more seriously, if law enforcement agencies are not limited to making only relevant and material objections to orders of expungement, would this not be condoning the potential for arbitrary, if not capricious, actions on their part?

The court is asked to put its stamp of approval on a waiver by petitioners of their right to bring a civil action. This is the price the State puts upon this order of expungement. What prices might it seek to exact in the future ?

I am mindful of the fact that the Legislature did not expressly use the phrase “material objection” in the wording of sections 3(a) and 4(a) of the statute. This, in and of itself, is not fatal to the position of petitioners, for it is axiomatic that the legislative intent, and the purpose for which the statute was enacted, are the polestars to which a court must look when called upon to interpret that statute.

In light of the final paragraph of the “Committee Statement” accompanying Assembly Bill 227 which became L. 1973, c. 191 (N. J. S. A. 2A:85-15 et seq.), I am strongly led to believe that the Legislature intended that any objection brought by law enforcement agencies must be material to the necessities of law enforcement. That paragraph reads, in part:

* * * The court can then direct the cleric of the court and parties who received notice of the hearing to expunge all evidence of the arrest and detention if there is no material objection or reason to do otherwise. The petitioner would then be relieved from any disabilities which might have resulted from the arrest and the arrest will then be deemed not- to have occurred. [Emphasis supplied]

I have also been influenced by Lhe message sent by former governor William T. Cahill to the General Assembly on March 2, 1973 in connection with that legislation. The purpose of the message was to urge reconsideration and amendment of the expungement legislation that had been submitted for the Governor’s approval. Governor Cahill said:

An expungement provision creates immediate conflict with the need of law enforcement authorities to maintain records necessary to fulfill their functions in the prevention and detection of crime. At issue are the tools law enforcement agencies need to exercise their poweis of investigation. As Chief Justice Weintraub stated concerning the scope of record-keeping by law enforcement authorities in Anderson v. Sills, 56 N. J. [210] 220, 229 (1970), “The basic approach must be that the Executive Branch may gather whatever information it reasonably believes to be necessary to enable it to perform the police roles, derectional and preventative.” The approach to retaining records must be equally as broad.
There may be instances where the police have no reason to retain an arrest record, as when the arrest was an admitted mistake. In such a situation it may be appropriate to expunge the arrest record. However, if the police legitimately believe that the record is necessary for law enforcement purposes, expungement would be inapproitriale.
The primary objective of any expungement statute is to insulate the person from any disabilities or adverse effects resulting from the information sought to be expunged. * * *

The Legislature, acting upon the recommendations of the Governor, rewrote the statute. The statute in its present form includes the amendments so suggested.

Clearly, then, it is to this remedial end that the expungement statute is directed. No one disputes that the police have a right to maintain records on those persons who, in the legitimate opinion of law enforcement officials, represent a potential threat to the law and order of this State. But where, as here, expungement of arrest records of innocent people is objected to on a basis admittedly unrelated to effective law enforcement, the purpose of the statute is subverted. This court will not be a party to such an arrangement.

Since the State’s objection to the order of expungement is not relevant or material to any legitimate law enforcement need, the order of expungement will be granted.

A word as to the State’s argument with respect to the potential of civil suits in the present context.

To repeat, the State expresses concern that it would be hampered in defending such suits by the expungement of arrest records. But the fact that the records of arrest are expunged does not mean that the State, in defending such a suit, could not prove, by the best available evidence, the facts and circumstances of the arrest. See Evid. R. 70. Courts have not been without solutions to extraordinary situations in circumstances when the quest for truth runs headlong into a given prohibition against the admissibility of certain evidence or information. Walder v. United States, 347 U. S. 62, 74 S. Ct. 354, 98 L. Ed. 503 (1954) (suppression of evidence in a prior, unrelated prosecution is not a license to commit perjury in present litigation).

Petition for expungement granted.


source: Caselaw Access Project

author: Pressler, J. C. C.

license: Public Domain

text:
    MARIE MARKEY AND WILLIAM F. MARKEY, HER HUSBAND, PLAINTIFFS, v. CARL SKOG, DEFENDANT AND THIRD-PARTY PLAINTIFF, v. NEW JERSEY DEPARTMENT OF TRANSPORTATION, THIRD-PARTY DEFENDANT.
    Superior Court of New Jersey Law Division
    Decided June 21, 1974.

      Mr. Jack A. Maloof for defendant and third-party plaintiff (Messrs. Colquhoun, Kennedy & Brogan, attorneys; Mr. Jack A. Maloof on the brief).

      Messrs. John S. Fitzpatrick and Thomas D. Monte, Jr. for third-party defendant (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Thomas D. Monte, Jr. on the brief).
   Pressler, J. C. C.

(temporarily assigned). This automobile negligence action, by reason of the third-party complaint filed by defendant Carl Skog against the New Jersey Department of Transportation (hereinafter “State”), raises an important question of construction of the New Jersey Tort Claims Act, N. J. S. A. 59:1-1 et seq., which has not heretofore been dealt with by any reported decision of our courts. That question, posed by the motion of the State for dismissal of the third-party complaint, is whether the viability of the right of a nonpublic defendant to seek contribution from a public entity as a joint tortfeasor is dependent upon plaintiff having complied with the claim presentation requirements of N. J. S. A. 59:8-8. Eor the reasons hereinafter set forth, the court has determined that it is not.

The essential facts involved in this litigation, insofar as they are implicated in the motion to dismiss the third-party complaint, are undisputed and may briefly be stated. Plaintiffs Marie Markey and William E. Markey (hereinafter “Markey”), were, on October 28, 1972 passengers in Skog’s automobile which he was then driving on Route 23 southbound in River dale, New Jersey. They claim to have been injured when Skog’s automobile collided with a traffic island curbing in the roadway. They filed their complaint against Skog in'October 1972, alleging negligence on his part in his operation of his vehicle. Skog was served on October 30, 1972 and filed and served his answer in due course. On August 15, 1973 Skog filed a notice of motion, served only- upon plaintiffs in accordance with B. 4:8-1, seeking leave to file and serve a third-party complaint against the State. An order granting such leave was entered on September 19, 1973 and within the ensuing week the third-party complaint was filed and served, seeking contribution from the State- as a joint tortfeasor on the theory, as it thereafter. appeared, that the State’s negligence in its design and maintenance of the roadway in question was a substantial contributing cause of the accident.

It is conceded that plaintiffs have never made a direct claim against the State in respect of this accident on this or any other theory; that they have not, since the filing of the third-party complaint, sought leave to amend their complaint to seek direct relief from the State, and finally, that they have not, despite the State’s notice to them of the pending motion to dismiss, participated in these proceedings at all. It is further conceded that the State’s first notice of plaintiffs’ accident and of the defendant’s contribution claim was the third-party complaint served upon it some 11 months after the event.

The State’s answer to the third-party complaint denies negligence and alleges, by way of affirmative defense, that its sovereign immunity bars the contribution claim, and it is essentially the sovereign immunity defense which is being urged in support of its pending motion. The State’s basic contention is that the New Jersey Tort Claims Act, effective July 1, 1972, does not constitute an abrogation of the doctrine of sovereign immunity but rather is a limitation on the application of that doctrine pursuant to which the State has agreed, in effect, to recognize and permit the adjudication against it only of certain tort claims of a defined substantive nature and provided, further, that such claims are processed, presented and proceeded upon in accordance with the strict procedural requirements of the act. Hence, it argues, if a plaintiff fails to perfect his claim against the State by having failed to comply with the procedural requirements of the act, the State is not only not liable to the plaintiff but is also relieved of liability in respect of all consequences of its alleged negligence, including liability to a joint tortfeasor for contribution.

The State seeks to support this conclusion by a literal construction of the act, relying first on N. J. S. A. 59:8-3, which provides that “No action shall be brought against a public entity under this act unless the claim upon which it is based shall have been presented in accordance with the procedure set forth in this chapter.” The State then points to N. J. S. A. 59:8-8, which provides that “A claim relating to a cause of action for death or for injury to person or to property shall be presented as provided in this chapter not later than the ninetieth day after accrual of the cause of action.” That section further provides that “the claimant shall be forever barred from recovering against a public entity if” he has failed to file his claim with it within 90 daj^s after its accrual unless, pursuant to N. J. S. A. 59:8-9, he has obtained leave from the Superior Court extending the filing time for one year following the accrual of the claim. The State urges that the word “claim,” as used in both N. J. S. A. 59:8-3 and 59:8-8, must be construed to mean the primary claim of the person who has sustained the death, personal injury or property damage resulting from the public entity’s alleged negligence. Thus, it reasons, if the primary claim is barred by the primary claimant’s inaction during the 90-day period, the State is no longer liable to the primary claimant and, therefore, cannot be liable to any derivative claimant, including a joint tortfeasor. The logical consequence of this position, which it asserts by way of a supplemental brief, is that a private joint tortfeasor seeking contribution does not have any procedural device available to him to cure a plaintiff’s failure to have pursued the statutory remedy against the public entity, and thus cannot preserve his right to contribution against the State even if he were himself to put the public body on notice within the 90-day period. The State insists, therefore, that a private joint tortfeasor’s right to contribution from it is exclusively dependent on the plaintiff’s unilateral election to seek recovery from the State in accordance with the act.

It is,the court’s conclusion that the State’s argument misconceives not only the history, purpose and construction of the Joint Tortfeasors Contribution Law, N. J. S. A. 2A:53A-1 et seq., but also the history and purpose of the New Jersey Tort Claims Act.

The adoption by the Legislature in 1952 of the Joint Tortfeasors Contribution Law obviously proceeded from its intention to alleviate the evident harshness and inequity of the common-law rule then obtaining in this State pursuant to which there was no right of joint tortfeasors to seek allocation among themselves of the burden of their fault. Under the common-law rule plaintiff was not only free to determine which among joint tortfeasors, if less than all, he chose to sue but was also free to determine which of them, if he obtained judgment against more than one, he would charge with the burden of satisfying the judgment and, if more than one, in what proportion. The right of contribution which is afforded by the 1952 act constitutes a recognition of the equitable doctrine that a “tortfeasor who satisfies the judgment is entitled to be put on the same footing with those who are equally liable for the wrong remedied by the judgment.” Kennedy v. Camp, 14 N. J. 390, 398 (1954). The public-policy basis of the contribution doctrine was further articulated by Justice Heher in Kennedy as follows:

Apart from its -foundation in the “clearest principles of natural justice”, the doctrine “has an equal foundation in morals; since no one ought to profit by another man’s loss; where he himself has incurred a like responsibility. Any other rule would put it in the power of the creditor to select his own victim; and, upon motives of mere caprice or favoritism, to make a common burden a most gross personal expression. It would be against equity for tbe creditor to exact or receive payment from one, and to permit, or by his conduct to cause, tbe other debtors to be exempt from payment.” Story’s Equity Jurisprudence (11th ed.) sections 492, 493. The gravamen of the action for contribution is the discharge of the joint tortfeasor’s common liability for tbe common wrong, enforceable by action at the instance of the injured person.

See also, Tino v. Stout, 49 N. J. 289, 295-297 (1967).

It is clear that a defendant’s right to contribution from a joint tortfeasor is, therefore, an inchoate right which does not ripen into a cause of action until he has paid more than his pro rata portion of the judgment obtained against him by the plaintiff. It is at that point that Iris cause of action for contribution accrues. See McGlone v. Corbi, 59 N. J. 86, 94-95 (1971). The assertion by codefendants in a negligence action of a right of contribution inter sese and the right of a defendant to implead a joint tortfeasor by a third-party complaint before plaintiff’s cause of action has been reduced to a judgment are merely devices of procedural convenience afforded by the rules of practice. See R. 4:7-5 and R. 4:8-1. Thus, although a defendant is not necessarily bound to proceed against joint tortfeasors in the same action in which plaintiff seeks to establish his (defendant’s) liability, he ordinarily will, nevertheless, do so because a single action is the most orderly and logical manner in which proof of common liability can be established •— and it is, of course, common liability which is the substantive basis of the right of contribution.

The extent and duration of such common liability as- will support a right to contribution is also well settled. It is common liability at the time of the accrual of plaintiff’s cause of action which is the sine qua non of defendant’s contribution right. If there is common liability to plaintiff at that time — that is, common liability as a matter of fact even although, necessarily, then unadjudicated —defendant cannot be deprived of his inchoate right by reason of plaintiff’s loss thereafter of his own right of direct action against the joint tortfeasor. Thus, for example, if plaintiff is barred from pursuing his cause of action against one of two joint tortfeasors because the statute of iimitations has run in respect of his own claim, the inchoate contribution right of the tortfeasor who has been sued prior to the running of the statute nevertheless remains viable and does not accrue until he has paid more than his pro rata share of the judgment. Hence, the party defendant has the right to implead the unjoined joint tortfeasor in plaintiff’s action for the purpose of proving their common liability even after the statute of limitations on plaintiff’s claim has run. Any other rule would not only be contrary to the conceptual basis of the cause of action for contribution but would also be contrary to the policy of the contribution statu! e, which seeks to prevent plaintiffs, by their unilateral actions, from electing where to place the burden of a common fault. See Cooper v. Philadelphia Dairy Products, 34 N. J. Super. 301 (Law Div. 1955); McGlone v. Corbi, 59 N. J. 86, 94-95 (1971); Annotation, “Running of a Statute of Limitations Against Claim for Contribution or Indemnity Based on Tort,” 20 A. L. R. 2d 925 (1951). And see, Pennsylvania Greyhound Lines, Inc. v. Rosenthal, 14 N. J. 372, 389 (1954), dealing with a joint tortfeasor’s defense in a contribution claim brought after entry of judgment, based on the then applicable interspousal immunity, plaintiff and defendant having married after the judgment was entered. The court there noted, in sustaining the contribution right, that “the continued subsistence of the common liability is not a sine qua non to enforcement contribution under the statute.”

The State here concedes that plaintiffs Markey could have perfected a right of action against it by having complied with the claim-presentation provisions of N. J. S. A. 59 : 8-8, and that if they had done so, it could not then have challenged defendant Skog’s right to seek contribution from it. It seeks to avoid the analogy to the statute of limitations situation, however, by relying both on the verbiage of the New Jersey Tort Claims Act and on what the court believes to be a fundamental confusion between the quite different concepts of right and remedy.

The New Jersey Tort Claims Act, N. J. S. A. 59:1-1 et seq., represents, of course, the legislative response to Willis v. Dept. of Cons. & Ec. Dev., 55 N. J. 534 (1970), in which our Supreme Court, recognizing the plain injustice of refusing relief to persons injured by the wrongful conduct of the State, effectively abolished the defense of sovereign immunity in tort actions. In order, however, to afford the Legislature an opportunity to consider and express its will on such questions involved in the adjudication of tort claims as the requirement of notice, the fixing of monetary limits of recovery, the exclusion of certain categories of damages, the applicable concept of liability and the delegation of adjudication to an administrative agency, the court limited its holding to those tort claims arising after January 1, 1971, a date extended by the Legislature to July 1, 1972, the effective date of the Act. See N. J. S. A. 52:4A—1, as amended. And see, Maule v. Conduit & Foundation Corp., 124 N. J. Super. 488 (Law Div. 1973); Perillo v. Dreher, 126 N. J. Super. 264 (App. Div. 1974).

Neither the act itself, as finally adopted, nor the Report of the Attorney General’s Task Force on Governmental Immunity (May 1972) on which the act is essentially based, addresses itself directly to the contribution problem now before the court. But while both are silent with respect to any time limitations or other bar to the assertion of a contribution claim against the State, both expressly recognize the potentiality of the State’s status as a joint torfeasor by imposing monetary limitations upon its contribution obligation. See N. J. 8. A. 59:9-3, which, as explained by the accompanying Comment, limits the State’s pro rata share of the actual judgment in accordance with the maximum judgment recoverable against it by plaintiff pursuant to the provisions of N. J. S. A. 59:9-2.

The State urges, relying on N. J. S. A. 59:1-2, thaL the legislative failure to have expressly permitted the assertion of contribution claims where plaintiff himself has not perfected his cause of action against the State must be deemed to constitute a legislative intention that the State shall continue immune from contribution claims made under that circumstance. N. J. S. A. 59:1—2, the basic policy expression of the act, provides in full as follows:

The Legisla Lire recognizes tlie 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 be the public policy of this 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 he construed with a view to carry out the above legislative declaration. [Emphasis supplied ¡

The State’s reasoning in this regard is based upon its reading of the italicized sentence of this section as continuing the State’s sovereign immunity except where the act specifically and affirmatively provides to the contrary. That statement, however, is obviously not intended to qualify the entire scope of the State’s tort liability, but rather constitutes a qualification of the preceding sentence of the section, the clear intention of which is to continue the State’s immunity only with respect to those areas of governmental activity recognized by Willis, supra, 55 N. J. at 540, as properly excluded from tort claim susceptibility, such as legislative and judicial action or inaction, and decisions calling for the exercise of official judgment or discretion. See, so construing N. J. S. A. 59:1-2, Maule v. Conduit & Foundation Corp., 124 N. J. Super. at 492. And see, e. g., implementing this limitation on liability, N. J. S. A. 59:2-3 to 59:2-8, inclusive, and 59:3-2 to 59:3—13, inclusive. Thus, since N. J. S. A. 59:1-2, as well as 59:2-1(a), an analogous provision of similar import, are both statements of substantive limitation on the State’s liability, neither is reasonably construable as dealing with procedural bars in respect of those categories of tort claims for which the State has accepted liability. Those bars are exclusive^ the subject of chapter 8 of the act.

The State next urges that the contribution claim is here barred because the State has no common liability with defendant, arguing that under N. J. S. A. 59:8-8, it has no independent liability to plaintiffs because of their failure to have filed a 90-day notice. That, however, is nonliability after the fact. Common liability for contribution purposes is, as noted, determinable as of the date of the accrual of plaintiff’s claim. That a plaintiff is barred from pursuing his cause of action after 90 days — and “barred” is the word used by N. J. S. A. 59:8-8 — does not mean he did not have the right to do so at the time his cause of action accrued. The subsequent loss of the remedy, therefore, as in the statute of limitations ease, does not operate retroactively, for contribution purposes, to wipe out the right of action which existed before the bar to the remedy was raised by plaintiff’s inaction. That is to say, the 90-day notice is not á condition precedent to the existence of liability on the part of the State. It is a condition only upon a plaintiff’s right thereafter to pursue his remedy against the State.

The State’s final argument is based on N. J. S. A. 59:9—3, heretofore referred to, construed by the State to constitute a limitation on the right to assert a contribution claim. As noted, however, the limitation of that section is not on the substantive right to seek contribution but rather is a monetary limitation on the remedy of contribution after the right is established.

The court’s conclusion that there is nothing in either the text, the history or the policy of the Tort Claims Act which mandates the abrogation or limitation of the right of contribution as heretofore legislatively established and judicially construed is in accord with the determination of the majority of jurisdictions which have considered this question in the context of governmental tort claims acts substantially similar to ours. See Olsen v. Jones, 209 N. W. 2d 64 (Iowa Sup. Ct. 1973); Geiger v. Calumet Cty. 18 Wis. 2d 151, 118 N. W. 2d 197 (Sup. Ct. 1962); Zillman v. Meadow-brook Hosp. Co., Inc., 73 Misc. 2d 726, 342 N. Y. S. 2d 302 (Sup. Ct. 1973); Roehrig v. Louisville, 454 S. W. 2d 703 (Ky. Ct. App. 1970); Cotham v. Bd. of Cty. Comm’rs, 260 Md. 556, 273 A. 2d 115 (Ct. App. 1971); Royal Car Wash Co. v. Mayor, etc. of Wilmington, 240 A. 2d 144 (Del. Super. Ct. 1968). And see Annotation, “Claim Against Municipality — Notice,” 93 A. L. R. 2d 1385 (1964). The basic ratio decidendi of these decisions is that in the absence of a clear legislative mandate to the contrary, the interest of the State both in obtaining repose and in having a timely opportunity for the investigation of claims against it must yield to the overriding equities which underpin the contribution laws. Only two states have reached a contrary conclusion, Minnesota and Colorado. See Jensen v. Downtown Auto Park, Inc., 289 Minn. 436, 184 N. W. 2d 777 (Sup. Ct. 1971) and Powell v. Brady, 30 Colo. App. 406, 496 P. 2d 328 (Ct. App. 1972).

California, upon whose Tort Claims Act, Cal. Gov’t. Code., § 810 et seq., the New Jersey Tort Claims Act was based, (see Comment accompanying N. J. S. A. 59:2-1), has not dealt with the question now before this court, and that for the reason that it has adopted only a very limited modification of the common-law no-contribution rule and does not recognize the right of a defendant to implead an unjoined joint tortfeasor. See General Elec. Co. v. State ex rel. Dept. of Pub. Wks., 32 Cal. App. 3d 918, 108 Cal. Rptr. 543 (D. Ct. App. 1973). That vagary of the California contribution law may well account for the silence of the California Tort Claims Act and, consequently, the silence of the New Jersey act.

The foregoing is not necessarily to say that the Legislature might not, if it chooses, impose express procedural limitations on the right of contribution from public entities. This court cannot, however, conclude that the Legislature has yet done so. But see, Reich v. State, 386 Mich. 617, 194 N. W. 2d 700 (Sup. Ct. 1972), holding unconstitutional as a violation of the federal equal protection guaranty what it construed as a legislative intent to deny defendants whose right of contribution lay against a public entity the same scope and extent of the right as afforded those whose joint tortfeasors were private persons.

Eor the reasons hereinabove set forth, the motion of the third-party defendant for dismissal of the third-party complaint is denied.

      The third-party complaint also sought indemnification from the State. At the argument of this motion, however, defendant conceded that his claim for indemnification would not lie under the doctrine, most recently reiterated in Schramm v. Arsenal Esso Station, 124 N. J. Super. 135 (App. Div. 1973), that the right to common-law indemnification requires the freedom from fault of the person seeking that relief. Hence, if defendant were ultimately found to be free from fault, there would be no liability on his part for which indemnity could be sought and if the defendant were ultimately found to be at fault then all it would be entitled to from the State, if it were also found to be at fault, would be contribution. Accordingly, the indemnity claim was stricken from the third-party complaint, leaving only the contribution claim to be disposed of.

      See N. J. S. A. 52:17B-4.1 and 4.2.

      The Comments accompanying the test of the act are taken from the Task Force Report.

      As to the State’s liability^ for negligence in road maintenance generally., see N. J. S. A. 59:4-2.


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

text:
    JOHN YUHAS, GUARDIAN AD LITEM FOR LARRY YUHAS, A MINOR AND JOHN YUHAS, GUARDIAN AD LITEM FOR BARRY YUHAS AND JOHN YUHAS, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, v. FLOYD W. MUDGE, WILLIAM MUDGE, MICHAEL LASHUTKA, EDWIN C. CHRISTIE AND ECCO PRODUCTS, INC., DEFENDANTS, AND POPULAR MECHANICS CORPORATION AND HEARST CORPORATION, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted June 18, 1974
    Decided July 1, 1974.

      Before Judges Haleern, Matthews and Bischoee.

      Mr. Harvey L. Stern, attorney for appellants.

      Messrs. Lenox, Giordano, Devlin, Delehey & Socey, attorneys for respondents.
   The opinion of the court was delivered by

Halpern, P. J. A. D.

The novel question presented on this appeal is whether a magazine publisher may be held responsible in negligence for injuries resulting from the use by a paying customer of an alleged defective product advertised in its magazine, when it does not manufacture, distribute, sell, warrant or endorse the product. The trial judge found that no actionable duty existed against the publisher and granted summary judgment in favor of respondents. We affirm.

Defendants Christie and Ecco Products, Inc., manufacturers and sellers of fireworks, placed a paid advertisement in Popular Mechanics Magazine published by respondents Popular Mechanics Corp. and Hearst Corp. Defendants Floyd Mudge and Michael Lashutka saw the advertisement and purchased the fireworks directly from Christie and Ecco. Infant plaintiffs Barry Yuhas and Larry Yuhas sustained personal injuries when the fireworks were exploded by Floyd Mudge. Admittedly, respondents did not manufacture, distribute, sell, test, warrant or endorse the fireworks; nor is there any indication in the record that they have ever received any direct pecuniary benefit from any sales of the multitude of products advertised in their magazine.

This suit was instituted against William Mudge, the owner of the property where the accident occurred; Eloyd Mudge, the purchaser of the fireworks and the one who invited plaintiffs to see the fireworks and who exploded them; Michael Lashutka, who purchased the fireworks with Eloyd Mudge; Edwin Christie and Ecco Products, Inc., manufacturers and sellers of the fireworks, and respondents, printers and publishers of the advertisement.

We are concerned only with the dismissal of plaintiffs’ complaint against respondents. Preliminarily, we note that plaintiffs’ claims against some of the defendants still remain open; thus, the summary judgment appealed from is interlocutory rather than final, and leave to appeal should have been sought. R. 2:2-3(b) and R. 2:2-4-. However, at this late stage, and in the interest of prompt disposition of the matter, the necessary leave is granted nunc pro tunc.

The thesis advanced by appellants to recover from respondents is that they publish a pseudo-scientific publication which has acquired an “aura of authentativeness” in the public’s mind and, therefore, they owed the reading public the duty to investigate and test inherently dangerous products advertised in their publication. They argue this is particularly true since the sale of fireworks is proscribed in New Jersey by N. J. S. A. 21:3-2. We disagree, and hold that no such legal duty rests upon respondents unless it undertakes to guarantee, warrant or endorse the product. To impose the suggested broad legal duty upon publishers of nationally circulated magazines, newspapers and other publications, would not only be impractical and unrealistic, but would have a staggering adverse effect on the commercial world and our economic system. Eor the law to permit such exposure to those in the publishing business who in good faith accept paid advertisements for a myriad of products would open the doors “to a liability in an indeterminate amount for an indeterminate time to an indeterminate class.” Ultramares Corp. v. Touche, Niven & Co., 255 N. Y. 170, 174 N. E. 441, 444 (Ct. App. 1931). For cases which express this same philosophy, see De Bardeleben Marine Corp. v. United States, 451 F. 2d 140, 148 (5 Cir. 1971); Hempstead v. General Fire Extinguisher Corp., 269 F. Supp. 109 (D. C. Del. 1967); Hanberry v. Hearst Corp., 276 Cal. App. 2d 680, 81 Cal. Rptr. 519 (D. Ct. App. 1969); Mac Kown v. Illinois Publishing & Printing Co., 289 Ill. App. 59, 6 N. E. 2d 526 (App. Ct. 1937); Jaillet v. Cashman, 115 Misc. 383, 189 N. Y. S. 743 (Sup. Ct. 1921), aff’d mem. 202 App. Div. 805, 194 N. Y. S. 947 (App. Div. 1922) , aff'd mem. 235 N. Y. 511, 139 N. E. 714 (Ct. App. 1923); Prosser, The Law of Torts (4th ed. 1971), § 107 at 707-708.

It is a significant to note that the condemnation of the unlawful practice of unconscionable commercial advertising exempts publishers when they have “no knowledge of the intent, design or purpose of the advertiser.” N. J. S. A. 56:8—2.

Affirmed.

       The advertisement read :
      PYROTECHNIC Caseings, stars, devices of all types, send 50(i for samples. Ecco, Box 189, Northvale, New Jersey 07647
      UNDERWATER Fuse 81 feet $1.00. Professional green fuse, 45 feet $1.00. Christie, Box 85, Bergenfield, New Jersey 07621

       We understand that the Mudges settled plaintiffs’ claim against them for $22,500.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. MICHAEL BARTEK, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 10, 1974
    Decided July 3, 1974.

      Before Judges Handler, Meanor. and Kole.

      Mr. Paul Colvin argued the cause for appellant.

      Mr. Richard J. Engelhardt, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, and Mr. George F. Kugler, Jr., former Attorney General of New Jersey, attorneys; Mr. Mart Vaarsi, Deputy Attorney General, of counsel).
   Per Curiam.

Defendant was convicted in the Mine Hill Municipal Court of two charges of parking a vehicle within an intersection, in violation of N. J. S. A. 39:4-138(a), and one charge of obstructing traffic, in violation of N. J. S. A. 39:4-67. The total of the fines imposed for the three offenses was $15. On a de novo appeal on the record to the Morris County Court he was again found guilty of these offenses and the same penalties were imposed. The latter judgment is the subject of this appeal.

The police had charged defendant with nine summonses for violation of a local ordinance involving parking, as well as 34 summonses for violations of the two traffic statute provisions hereinbefore referred to. Since the municipal court judge deemed it unnecessary to issue that number of charges, he only found guilt with respect to the three issued on the first date and dismissed those remaining.

Defendant owns a store on the corner of Route 46 and Randall Avenue in the Township of Mine Hill. The lot is triangular in shape, with the intersection of Route 46 and Randall Avenue forming an acute angle rather than a right angle. The defendant has a store on this property from which he apparently sells appliances. He parks cars and small panel trucks in the area adjacent to the store on this triangular piece of property.

The basic issue before the courts below was whether such parking was lawful. This, in turn, as presented by the parties below, required a determination of whether the municipality had a prescriptive easement for a highway or street over the part of defendant’s property on which the vehicles were parked. If that easement were found to exist, the question of whether the statutory provisions had been violated had to be resolved. On both issues, of course, the courts had to find that the State proved its case beyond a reasonable doubt. State v. Johnson, 42 N. J. 146 (1964); State v. Brown, 22 N. J. 405 (1956); Kearney v. Modern Transportation Co., 116 N. J. Super. 526, 529-530 (App. Div. 1971).

The county court, on its de novo review, found, as did the municipal court, against defendant on both issues. It is in this setting that we have the case for review.

Both statutes appear to require proof that the owner permitted his vehicle to occupy what is in fact a street or highwajr. See definitions of “street” and “intersection” in N. J. S. A. 39:1-1. The latter section also defines “highway” as “the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.” The evidence in the record amply supports the following findings, which the County Court expressly or by inference made (see State v. Johnson, supra at 42 N. J. 157, 171) : (1) the area involved was paved and maintained by the municipality; (2) vehicles, in turning from Route 46 into Randall Avenue, in fact crossed over that area; (3) this was a hazardous turn if the area were not so used, and (4) a public danger was created by defendant’s parking of cars therein. We pass the question of whether such evidence and findings may not suffice to predicate violations of the statutes involved, without the necessity of determining the prescriptive easement issue. The latter matter, as hereinafter discussed, might well have awaited a more appropriate proceeding. Cf. State v. Sisti, 62 N. J. Super. 84 (App. Div. 1960); State v. Gillespie, 100 N. J. Super. 71 (App. Div. 1967), certif. den. 51 N. J. 274 (1968); City of Seattle v. Wright, 72 Wash. 2d 556, 433 P. 2d 906, 908 (Sup. Ct. Wash. 1967); State v. O’Connor, 76 N. J. Super. 246 (Cty. Ct. 1962); State v. Valeriani, 101 N. J. Super. 396 (App. Div. 1968). See Annotation, “Application of regulations or rules governing vehicular traffic to driveways or other places not legal highways,” 80 A. L. R. 469, 470 (1932); Annotation, “Applicability of criminal ffiit-and run’ statute to accidents occurring on private property,” 77 A. L. R. 2d 1171 (1961). See also, Tubular Service Corp. v. State Highway Dept. Comm’r, 77 N. J. Super. 556, 564 (App. Div. 1963), aff’d 40 N. J. 331 (1963). Cf. State v. Young, 95 N. J. Super. 535 (Cty. Ct. 1967).

We thus approach the issues as they were presented below.

The County Court, using the appropriate standard of de novo review on the record (State v. Johnson, supra at 157) found, beyond a reasonable doubt, that at least since January 1936 the area on which the vehicles were parked had been paved and maintained by the township and used by the public as a street; that a prescriptive highway or street easement over defendant’s property in favor of the public had been established; that it was of no moment that the deed of June 26, 1970 to defendant and his wife of the entire premises did not recite that it was subject to any prescriptive street easement in favor of the public, since at that time it was certainly obvious or should have been obvious” to the purchaser that the area involved was paved and part of a public highway, and that defendant’s parking of his vehicles in the area violated the statutory provisions involved.

We are satisfied, considering the scope of our review, that there was adequate evidence before that court to justify its findings. State v. Johnson, supra at 158-162. We affirm essentially for the reasons set forth by that court. The proofs warranted its conclusion, based on the facts and the law, that the prescriptive easement claimed over defendant’s property for a public way, street or highway had been established for the purpose of these proceedings. See Lower Tp. v. Reeves, 14 N. J. Super. 180 (Ch. Div. 1951); Campbell Stores v. Hoboken, 115 N. J. Eq. 159 (E. & A. 1933); Dickinson v. D. L. & W. R. R. Co., 87 N. J. L. 264 (E. & A. 1915); Riverside v. Penn R. R. Co., 74 N. J. L. 476 (E. & A. 1907); Spiegle v. Beach Haven, 116 N. J. Super. 148 (App. Div. 1971); Stallone v. Schiavonne Bonomo Corp., 103 N. J. Super. 170 (App. Div. 1968), certif. den. 53 N. J. 226 (1969); Parsippany-Troy Hills Tp. v. Bowman, 3 N. J. 97, 104 (1949).

Defendant contends that the municipal court, being a statutory court of strictly limited jurisdiction, had no authority to determine the existence of the easement. We disagree.

That court has jurisdiction to hear and decide motor vehicle and traffic law violations, such as those here involved. N. J. S. A 2A:8-21; State v. Ahrens, 25 N. J. Super. 201 (App. Div. 1953). It obviously has no authority to entertain an action the basic purpose of which is to obtain a determination of title to real property or the existence of a lesser interest therein, such as an easement in favor of the public by way of dedication or prescriptive right. But having primary jurisdiction over the motor vehicle offenses, it has the ancillary power to hear and determine all subsidiary issues that arise in order properly to adjudicate guilt or innocence of such charges. The municipal court, just as any other court, has ancillary jurisdiction to resolve questions incidental to the exercise of its primary jurisdiction. Where, as here, the latter requires that it determine an issue relating to title to real property, it may do so. See 20 Am. Jur. 2d, Courts, § 100 at 460; In re Van Winkle, 3 N. J. 348, 360 (1950); Linder v. Linder, 126 N. J. Super. 466 (App. Div. 1974); State v. Monroe, 30 N. J. 160 (1959); Hewitt v. Hollahan, 56 N. J. Super. 372, 378 (App. Div. 1959); Stallone v. Schiavonne-Bonomo Corp., supra; State v. Wouters, 71 N. J. Super. 479, 488 (App. Div. 1962). Cf. Lay Fac. Ass’n v. Newark Archdiocese, 122 N. J. Super. 260, 269 (App. Div. 1973).

Thus, we have no doubt as to the jurisdiction of the municipal court to have determined the existence of the prescriptive easement as an incident to its jurisdiction over the charges before it. Nevertheless, we question the desirability or efficacy of the procedure here adopted by the municipality — namely, the issuance of summonses under the traffic laws. A more appropriate vehicle would have been an action to quiet title, or to obtain a declaratory judgment as to the respective rights in the claimed easement. Incident to such action the municipality might have sought a temporary restraint against the defendant’s parking of the vehicles in the disputed area pending a final hearing in view of the dangerous nature of the intersection and the danger to the public by reason of defendant’s activities. See, e. g., Brighton Const. Inc. v. L & J Enterprises, Inc., 121 N. J. Super. 152 (Ch. Div. 1972), aff’d o. b. 126 N. J. Super. 186 (App. Div. 1974), certif. den. 64 N. J. 511 (1974); Spiegle v. Beach Haven, supra; R. 4:52-2. Nor is defendant without legal recourse. He had available to him a proceeding to seek to compel the municipality to condemn the claimed ease-' ment over the area involved and, if successful, to be paid just compensation therefor. Haycock v. Jannarone, 99 N. J. L. 183 (E. & A. 1923). Since the municipality claims only an easement, the fee title in any event would remain with defendant subject to the public easement. See Stockhold v. Jackson Tp., 136 N. J. L. 264 (E. & A. 1947) ; State v. Cooper, 24 N. J. 261 (1957).

The determination of guilt as to the traffic offenses and the subsidiary issue of the prescriptive easement, under the circumstances here, is no bar to fully relitigating the latter issue in a forum where it belongs — a court having appropriate civil jurisdiction. See Kearney v. Modern Tranportation Co., supra 116 N. J. Super. at 530. Since the convictions did not involve indictable offenses, they could not be used in any such proceeding. Evid. R. 63 (20). Moreover, we seriously question whether principles of res judicata or collateral estoppel would be applicable to that civil proceeding in a case such as this, involving the issue of whether there was a taking of property for which just compensation should be awarded. See Burd v. Sussex Mutual Ins. Co., 56 N. J. 383, 397 et seq. (1970). Cf. Kugler v. Banner Pontiac-Buick, Opel, Inc., 120 N. J. Super. 572 (Ch. Div. 1972). Affirmed.

      The municipal court had before it Exhibit S-10, a 1916 state highway map, about which Mr. Ahlers, the township engineer testified. It showed, he said, the edge of a traveled way about ten feet from the porch on defendant’s store. The portion of defendant’s property beyond ten feet from the porch was found by the municipal court to be subject to the easement. The 1916 map was not available to the County Court and it did not rely thereon. Nevertheless, Ahlers, age 73, testified that from his own observations he recalled the area as being a public or traveled way from 1916; and that since 1936, when he became township engineer, it was constantly used by the public as a traveled way. There was also evidence that prior owners of defendant’s property had used the rear thereof to park. The County Court did not determine the actual extent or size of the easement.

      We, of course, in no way fault the municipal court in this respect. Once it had jurisdiction, in a case such as this it could not refuse to exercise it. 20 Am. Jur. 2d Courts, § 93, p. 453.


author: Michels, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. THOMAS J. McGEARY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appeilate Division
    Submitted December 3, 1973
    Resubmitted for Determination May 20, 1974
    Decided July 8, 1974.

      Before Judges Collester, Lynch and Michels.

      Messrs. Mayo, Lefkowitz & Shihar, attorneys for appellant (Mr. Leslie S. Lefkowitz on the brief).

      Mr. John S. Kuhlthau, Middlesex Comity Prosecutor, attorney for respondent (Mr. Lawrence Silver, Assistant Prosecutor, on the brief).
   The opinion of the court was delivered by

Michels, J. A. D.

Defendant was found guilty in the Municipal Court of the Township of Piscataway of driving while under the influence of intoxicating liquor, in violation of the provisions of N. J. S. A. 39:4-50(a). Ilis driver’s license was suspended for two years and a $200 fine imposed. He appealed to the Middlesex County Court where, after a trial de novo on the record below, he was again found guilty and the same sentence imposed. The judgment was stayed pending the outcome of an appeal to this court.

Defendant contends that reversible error was committed by allowing into evidence the inspection certificate to establish that the Breathalyzer was in proper operating order, without requiring the State Police coordinator who actually inspected the instrument to testify, and that in the absence of evidence of the results of the Breathalyzer test there was insufficient evidence to support a conviction of driving under the influence of alcohol in violation of the provisions of N. J. S. A. 39:4-50 (a).

We are satisfied that there was sufficient credible evidence in the record to support the finding of guilt without considering the result of the Breathalyzer test. See State v. Johnson, 42 N. J. 146, 157—162 (1964). Defendant was observed operating his vehicle in an erratic manner. In fact, his vehicle was observed crossing the center lane going into the oncoming lane of traffic and back into the proper lane again. When defendant was stopped by the police officers a strong odor of alcohol was detected on his breath, and he had difficulty finding his driver’s license in his wallet until it was pointed out to him by the officers. When defendant was asked if he had been drinking, he responded in the affirmative and in fact stated, in response to a question as to how much he had been drinking, “too much.” Moreover, defendant did not even know whether he was in Piscataway or Parlin, which are ten miles apart. When he was placed under arrest and taken to the police station, where he performed various physical tests, he was unsteady on his feet and evidenced a lack of coordination. Finally, one of the experienced police officers testified that defendant was “definitely under the influence of alcoholic beverage.” The evidence was overwhelming in support of his conviction without regard to the Breathalyzer reading.

The County Court judge commented that even in the absence of the Breathalyzer reading it “would have no doubt about the fact that this man had been affected and was impaired by the consumption of alcoholic beverages.” The suggestion that the county judge did not find defendant guilty of violating N. J. S. A. 39:4-50 (a) is completely without merit. The statement quoted above must be considered in its context. Defendant was not charged with nor was any argument made that he should be found guilty of operating a motor vehicle while his ability was impaired by the consumption of alcohol pursuant to N. J. S. A. 39:4-50(b). Obviously the trial judge was merely expressing his finding of drunken driving in the light of its 'legal connotation. In State v. Emery, 27 N. J. 348, 355 (1958), the Supreme Court expressly held that it is not a prerequisite to a conviction of driving under the influence of intoxicating liquor “that the accused be absolutely ‘drunk’, in the sense of being sodden with alcohol. It is sufficient if the presumed offender has imbibed to the extent that his physical coordination or mental faculties are deleteriously affected.” See also State v. Johnson, supra, 42 N. J. at 165-166; State v. Rodgers, 91 N. J. L. 212, 215 (E. & A. 1917); State v. Glynn, 20 N. J. Super. 20, 25 (App. Div. 1952); State v. Miller, 64 N. J. Super. 262, 265 (App. Div. 1960). The County Court’s finding that “this man had been affected and was impaired by the consumption of alcoholic beverages” cannot reasonably be interpreted to mean that defendant was merely found guilty of operating a motor vehicle while impaired by consumption of alcohol under N. J. S. A. 39:4-50(b).

The thrust of defendant’s argument, that it was error for the courts below to admit into evidence the inspection certificate of the Breathalyzer instrument as a business record, is that defendant was thereby deprived of the opportunity to cross-examine the State Police coordinator as to his qualifications to test the Breathalyzer and as to the procedure followed by him in actually testing the instrument to determine whether it was in proper operating order. Defendant relies for support upon the following excerpt from the Supreme Court opinion in State v. Johnson, supra:

It is, of course, most essential, in view of the heavy impact the result can have, that proper administration of the test be clearly established before the reading is admitted in evidence. This includes full proof that the equipment was in proper order, the operator qualified and the test given correctly (as well as the fact that the defendant consented orally or in writing). * * in [42 N. J. at 171]

Defendant also argues that even if the inspection certificate is a business record within the meaning of Evid. R. 63(13), the State failed to lay a proper foundation for its admissibility under the rule, or to properly authenticate it, pursuant to Evid. R. 67. The County Court judge followed decisions of courts in the same county, wherein inspection certificates have been admitted in evidence as business records to prove that the Breathalyzer was in proper operating order. Other courts have accepted inspection certificates as proof of this essential fact. See, e. g., State v. Hudes, 128 N. J. Super. 589 (Cty. Ct. 1974). Contra, State v. Conners, 125 N. J. Super. 500 (Cty. Ct. 1973).

The Breathalyzer is sufficiently established and accepted as a scientifically reliable and accurate device for determining the alcoholic content of the blood to admit testimony of the reading obtained upon a properly conducted test. State v. Johnson, supra, 42 N. J. at 170-171; State v. Miller, supra, 64 N. J. Super. at 268. Obviously, as pointed out by the Supreme Court in State v. Johnson, supra, “it is * * * most essential * * * that proper administration of the test be clearly established before the reading is admitted in evidence,” and “this includes full proof that the equipment was in proper order. * * *” However, we do not construe this language to mean that the State is limited solely to the testimony of the state trooper who inspected and tested the Breathalyzer in order to establish that it was in good operating order. Evid. R. 63(13) provides:

A writing offered as a memorandum or record of acts, conditions or events is admissible to prove tbe facts stated therein if the writing or the record upon which it is based was made in the regular course of a business, at or about the time of the act, condition or event recorded, and if the sources of information from which it was made and the method and circumstances of its preparation were such as to justify its admission.

“A business,” as used in Evid. B. 63(13), includes “every kind of business, governmental activity, profession, occupation, calling or operation of institutions, whether carried on for profit or not.” (Evid. R. 62(5)), and it is now clear that police reports with certain qualifications are admissible under Evid. R. 63(13) as an exception to the hearsay rule. See Brown v. Mortimer, 100 N. J. Super. 395, 403-404 (App. Div. 1968); Schneiderman v. Strelecki, 107 N. J. Super. 113, 119 (App. Div. 1969), certif. den. 55 N. J. 163 (1969); Sas. v. Strelecki, 110 N. J. Super. 14, 20 (App. Div. 1970). Cf. Fagan v. Newark, 78 N. J. Super. 294, 319 (App. Div. 1963).

The inspection and testing of Breathalyzer instruments in New Jersey are performed by members of the State Police pursuant to their official duties. The inspection is performed on a regular basis by a State Police coordinator (coordinator) specially trained to perform this function. See N. J. A. C. 13:51-2.2 and 13:51-3.4 adopted by the Attorney General of New Jersey, Department of Law and Public Safety, pursuant to the authority conferred by N. J. S. A. 39:4-50.3. Unquestionably, the coordinator has a duty to perform an inspection and to record the results thereof honestly and accurately. The duty of truthfulness in completing the inspection certificate, certifying that the instrument “has been inspected and found to be in good operating order” is compelling. In fact, it is difficult to conceive that a coordinator would violate this duty and certify that an instrument had been inspected and found to be in good operating order when in truth and in fact it had not been so found. Certainly, if the inspection of the instrument revealed that it was not operating properly and required repairs or adjustments of any kind, there is little likelihood of and absolutely no reason for the fabrication of the inspection certificate. No purpose would be served thereby. It is not only important to and in the interests of a defendant that the Breathalyzer be in proper operating order, but it is equally important to and in the interest of the State and the citizens thereof. If the instrument were not in good operating order and the readings did not accurately record the percentage of alcohol in the blood, either reporting too high a reading or too low a reading, the presumptions created by N. J. S. A. 39:4-50.1 would be incorrect and the State as well as the accused might be adversely affected. Consequently, there are compelling reasons for the coordinator to properly and honestly perform his duty in inspecting the instrument and recording the results of Ms inspection on the certificate. The fact certified to by the coordinator here was within his personal knowledge —- unlike, for example, an opinion stated by a state trooper or police officer in a police report as to the cause of an automobile accident. In the latter instance the opinion would not be admissible as part of a business record. See Brown v. Mortimer, supra; Rogalsky v. Plymouth Homes, Inc., 100 N. J. Super. 501, 506 (App. Div. 1968), certif den. 52 N. J. 167 (1968).

Accordingly, we hold that strong and convincing indicia of trustworthiness exist for the admission of the inspection certificate as a business record exception to the hearsay rule under Evid. R. 63(13). We therefore disagree with that portion of the opinion in State v. Conners, supra, holding that the inspection certificate is inadmissible “without testimony and cross-examination of the coordinator who tested the machine” as proof that the Breathalyzer was in proper working order. 125 N. J. Super. at 507. The result we reach here is supported by the persuasive language of People v. Foster, 27 N. Y. 2d 47, 52, 313 N. Y. S. 2d 384, 388, 261 N. E. 2d 389, 391-392 (1970), wherein the Court of Appeals of New York held that a speedometer deviation record is admissible as proof of reliability of the speedometer used to clock the speed of a defendant’s car without requiring the testimony of the officer who actually tested the speedometer under the business entry exception to the hearsay rule if a proper foundation is laid. There, the court stated:

It appears that the speedometer deviation records should be admissible since, unlike the Samuels [People v. Samuels, 302 N. Y. 163, 96 N. E. 2d 757] and Roth [People v. Roth, 11 N. Y. 2d 80, 226 N. Y. S. 2d 421, 181 N. E. 2d 440] cases cited above, they were not records made outside of the ordinary course of police department business, solely for the instant litigation. It is generally true that such speedometer tests are made at regularly scheduled intervals, and that the records kept are merely memorials of the fact that the tests were made and what the results were. This is a classic example of making records in the regular course of business; and it is probably the regular course of police business in maintaining highway safety to make such records at the time of the test. While it is true that such records may later be used in litigation, such was not the sole purpose when they were made, and, therefore, they should not be excluded merely because this was a possible future use.

We further hold that the inspection certificate is a report and finding of a public official within the provisions of Evid. R. 63(15), which provides:

Subject to Rule 64, a statement is admissible if in the form of (a) a written statement of an act done, or an act, condition or event observed by a public official if it was within tile scope of his duty either to perform the act reported or to observe the act, condition or event reported and to make the written statement, or (b) statistical findings made by such a public official whose duty it was to investigate the facts concerning the act, condition or event and to make statistical findings.

The rationale for the admissibility of written statements as to an act done by a public official is set forth in McCormick, Evidence, (2 ed. 1972) § 315 at 735-736, as follows:

The special trustworthiness of official written statements is found in the declarant’s official duty and the high probability that the duty io make an accurate report has been performed. 4’ * *
A special need for this category of hearsay is found in the inconvenience of requiring public officials to appear in court and testify concerning the subject matter of their statements. Not only would this disrupt the administration of public affairs, but it almost certainly would create a class of official witnesses. Moreover, given the volume of business in public officers, the official written statement will usually be more reliable than the official’s present memory. For these same reasons, there is no requirement that the declarant be shown to be unavailable as a witness.

See also, Phillips v. Erie Lackawanna R. Co., 107 N. J. Super. 590, 593-599 (App. Div. 1969), for an excellent review of the development of Evid. B. 63(15).

The strong and convincing indicia of trustworthiness which support the admissibility of the inspection certificate as a business record apply with equal force to support its admissibility under Evid. R. 63(15). The duty performed by the coordinator in testing the instrument to determine whether it is operating properly requires little or no exereise'of discretion. While the coordinator'must be trained to perform this duty, his determination is primarily the result of a mechanical process, i. e., whether the instrument is operating accurately within tolerable limits based on the test performed. Eurthermore, since the coordinator testing the instrument examines many such instruments periodically, he, of necessity, would have to rely more upon his record than on his recollection of the inspection of the particular instrument involved. Thus, we hold that the inspection certificate is also admissible in evidence by virtue of Evid R. 63(15).

. The conclusion we reach is supported in principle by State v. Woodward, 1 Or. App. 338, 462 P. 2d 685 (1969), wherein the Court of Appeals of Oregon upheld the admissibility of a certified copy of an official record of the Oregon State Board of Health, which, as here, certified that a breathalyzer instrument had been tested and was found to be accurate by a trained technician under an Oregon statute (ORS 43.330), which provided in pertinent part:

Other official documents may be proved as follows:
(1) Acts of the executive or administrative departments of this .state and of the United States by the records of the departments, certified by the department heads * * *.
$ He & & * * * *
(5) Acts of a public corporation of this state or of a board or department, by a copy certified by the legal keeper * * *.

Moreover, we view Evid. R. 63(15) as particularly appropriate for the admission of an inspection certificate. Under this exception to the hearsay rule the inspection certificate need merely-be authenticated as any other document to be offered in evidence (see Evid. R. 67), subject, of course, to Evid. R. 64 which gives the trial judge the discretion to exclude the inspection certificate if it appears that the intention to offer it was not made known by the State in sufficient time in order to provide defendant with a fair opportunity to meet-it. Admission of the inspection certificate under Evid. R. 63(15) avoids the burden cast upon the State to qualify the document as a business record if offered under Evid. R. 63(13).

While we hold that the inspection certificates here involved are business records under Evid. R. 63(13), as well as the reports and findings of a public official under Evid. R. 63 (15), and therefore properly admissible as an exception to the hearsay rule, nevertheless, we are of the view that the courts below erred in admitting them in evidence in this case. Our review of the record reveals that the State failed to authenticate the inspection certificates in any manner as required by Evid. R. 67. Furthermore, the State failed to lay any foundation qualifying the inspection certificates as business records under Evid. R. 63(13). See People v. Foster, supra.

Affirmed.

      The certificates here involved are in the following form:
      STATE OF NEW JERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY DIVISION OF STATE POLICE INSPECTION CERTIFICATE
      Instrument .....................Number ............ has been inspected and found to be in good operating order on
      Date Inspector ..................
      N.I State Police 343 (Rev 1-67)


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

text:
    THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ROSS L. COOPER, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted June 18, 1974
    Decided July 8, 1974.

      Before Judges Carton, Lora and Seidman.

      Mr. Justinian G. Connors, Jr., attorney for appellant.

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for respondent (Mr. Peter S. Hamerslag, Deputy Attorney General, of counsel and on the brief).
   The opinion of the court was delivered by

Carton, P. J. A. D.

Defendant was convicted in the municipal court of disregarding a traffic signal, specifically, passing a red light on Hooper Avenue in Brick Township. He was fined $10 and .assessed $10 additional costs. After a trial de novo in the County Court he was again found guilty.

Defendant appeals, contending on appeal, as he did below, that the State failed to prove beyond .a reasonable doubt an essential element of its case — that the traffic signal was placed in accordance with the law. The statute on which he was convicted reads in pertinent part as follows:

The driver of every vehicle * * ‘h shall obey the instructions of any official traffic control device applicable thereto, placed in- accordance with the provisions of this chapter. * * * [N. J. S. A. 39:4-81; emphasis supplied]

Both the municipal court and the County Court took the position that the alleged invalidity of the signaling device was an affirmative defense and that the burden of establishing it rested upon the proponent. We agree.

Our courts have stated that the Motor Vehicle Act is penal, and a violation of its provisions results in a prosecution of a quasi-criminal action. State v. McCarthy, 30 N. J. Super. 6, 9 (App. Div. 1954); State v. Ring, 85 N. J. Super. 341, 343 (App. Div. 1964), certif. den. 44 N. J. 407 (1965), cert. den. 382 U. S. 812, 86 S. Ct. 24, 15 L. Ed. 2d 60 (1965). Enrther, the courts have said that as in all criminal prosecutions the State has the burden of proving all the essential elements of a motor vehicle violation. State v. Ring, supra at 343.

The statute makes it clear that the essential elements of a violation are that (1) defendant was a driver of a vehicle; (2) he failed to obey the instruction of a control device; (3) the device in question was official, and (4) the device was placed pursuant to the applicable statutes. Absent a presumption shifting the burden of going forward, it would seem that the obligation would ordinarily rest upon the State of showing that the traffic control device in question was an official one and that it was properly placed at its location.

Whether there is such a presumption in a case involving a violation of the Motor Vehicle Act has not, until this time, come before the courts of this State. However, this court has determined that there exists such a presumption as to the official nature and proper placement of traffic control devices in civil cases. Davidson v. Fornicola, 38 N. J. Super. 365 (App. Div. 1965), certif. den. 20 N. J. 467 (1956). There we said:

* * * [/]» civil actions such objects of the common and conventional size, shape and appearance as stop signs, traffic signals and devices, safety isles, and pavement markings as may be placed in or over and on the public streets and highways shall in the absence of evidence which renders the presumption unavailable, be presumed to have been lawfully erected, placed and maintained. The presumption is, however, of a rebuttable nature. *’ * * We emphasize that our ruling is intended only to be applicable to the trial of civil actions. * * * [at 379]

See also Weinstein v. Newark, 100 N. J. Super. 199, 208 (Law Div. 1968).

From a standpoint of reason and common sense we think a similar presumption should apply with respect to the erection of a traffic control device and its placement.

N. J. S. A. 39:1-1 defines “official traffic control devices” as “all signs, signals, markings, and devices not inconsistent with this subtitle placed or erected by authority of a public body or official having jurisdiction, for the purpose of regulating, warning, or guiding traffic.”

N. J. S. A. 39:4-202 provides:

No resolution, ordinance or regulation passed, enacted or established under authority of this article, shall be effective until submitted to and approved by the director as provided in section 39:4-8 of this Title.

In pertinent part N. J. S. A. 39:4—8 reads:

No ordinance or resolution concerning, regulating or governing traffic or traffic conditions, adopted or enacted by any board or body having jurisdiction over highways, nor any such regulation promulgated by the State Highway Commissioner, shall be of any force or effect, unless the same is approved by the director or has been approved by the Commissioner of Motor Vehicles or the Traffic Commissioner according to law. *■ * *

Our courts have often stated that governmental action is presumed valid until the contrary is demonstrated. Earl v. Winne, 14 N. J. 119, 134 (1953); Edelstein v. Asbury Park, 51 N. J. Super. 368, 389 (App. Div. 1958); DeMarco v. Bergen Cty. Bd. of Chosen Freeholders, 36 N. J. Super. 382, 384 (Law Div. 1955), aff’d 21 N. J. 136 (1956). This presumption has been carried over into criminal cases. Thus, in State v. Kuznitz, 105 N. J. Super. 33 (Cty. Ct. 1969), the court stated that there is a presumption that law enforcement officers acted legally in executing a search warrant. Similarly, the court has said there is a presumption that jury commissioners acted within the scope and authority of their office. State v. Forer, 104 N. J. Super. 481 (Law Div. 1969). While a presumption of this kind has not been extensively discussed in the reported decisions, its existence seems beyond dispute. See United States v. Bellmer, 404 F. 2d 132, 134 (3 Cir. 1968); 9 Wigmore, Evidence (3d ed. 1940), § 2534 at 488.

Moreover, there is a well settled rule of law that there is a presumption of validity of municipal action, and the governing body did what the law required in the absence of contrary proof. Cf. Campbell v. Teaneck Tp. Committee, 101 N. J. L. 461, 465 (Sup. Ct. 1925); Manning v. Paramus, 37 N. J. Super. 574, 579 (App. Div. 1955).

In Manning the court quoted from 6 McQuillin, Municipal Corporations (3d ed. 1950), § 22.34 at 354, as follows:

The presumption of the validity of an ordinance is fully applicable with respect to the regularity of steps and proceedings in its enactment, and accordingly substantial compliance with mandatory requirements pertaining to the passage of an ordinance is presumed. Hence, it is presumed that the municipal legislative body and other city officials have done what is necessary to make the ordinance valid. * * *

Our research has disclosed only one case where the precise issue posed here has been considered by an appellate court. In State v. Klapes, 2 Conn. Cir. 23, 193 A. 2d 901 (App. Div. 1963), the defendant argued that the state, in order to prove a prima facie case, was required to establish that the stop sign in question was legally erected. In that case, as here, no proof was offered on this issue at the trial. The court, in ruling that there was a presumption the stop sign was legally erected, stated:

No such need exists in the case of traffic control signs. The epmmon-law presumption is that public officers in the discharge of their duties have observed all proper formalities, unless the contrary is proved; and this presumption serves the purpose of evidence in making out a prima facie case. The presumption finds expression in the legal maxim, “Omnia praesumuntur legitime facta donee probetur in contrarium.”
In the present instance, it may be presumed as a matter of law that the traffic authority of Hartford acted in accordance with the law. This presumption is reenforced by § 14^310, giving the traffic authority the power to remove any private, limitation or spurious signs as a public nuisance. The traveler is thus placed under no necessity to question the legality of a stop sign. Facts that from ordinary observation appear ostensibly true may be considered true unless shown otherwise.
There is no error. [Id at 902, 903; citations omitted].

But see contra, People v. Gay, 5 Misc. 2d 648, 164 N. Y. S. 2d 526 (Cty. Ct. 1957).

We agree with the reasoning and the conclusions arrived at by the Connecticut court in Klapes. As in that case, the presumption is further strengthened here by virtue of the existence of a statute which forbids the display or use of any unauthorized traffic sign or device. N. J. S. A. 39:4-183.3. Without evidence to the contrary, it can reasonably be inferred that N. J. S. A. 39:A-183.3 is being complied with, and therefore that the only traffic control devices in use are official traffic control devices as authorized by the Motor Vehicle Act. (See Alderman v. United States, 394 U. S. 165, 89 S. Ct. 961, 22 L. Ed. 176 (1969), reh. den. Ivanov v. United States, 394 U. S. 939, 89 S. Ct. 1177, 22 L. Ed. 2d 475, in which the United States Supreme Court said without experience to the contrary they would not assume the wiretap statute was disregarded or not enforced.)

Existence of such a presumption does not relieve the State of the burden of proving that the light was official and properly placed. Once the State has proved, however, that a traffic control device does exist in a specific location, it is to be presumed official and properly placed there. The burden of going forward and adducing evidence to rebut the presumption then falls upon defendant.

Affirmed.


author: Lester, J. S. C.

text:
    ROBERT ALTBRANDT, PLAINTIFF, v. IPPOLITA ALTBRANDT, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided June 12, 1974.

      Mr. Philip C. Geibel for the plaintiff.

      Mr. Stephan P. Lypinshi for the defendant.
   Lester, J. S. C.

This is an action for divorce based upon 18 months separation, pursuant to N. J. S. A. 2A:34-2(d).

The parties were married on November 12, 1949. Plaintiff is a bona fide resident of the State of New Jersey, residing in Paramus. Defendant is similarly domiciled in New Jersey, residing in Hoboken. The parties separated on or about Thanksgiving Day, November 27, 1969, since which time, and for 18 consecutive months, they have lived separate in different habitations, and there is no reasonable prospect of reconciliation.

Defendant was hospitalized for several weeks in 1968 and in the summer of 1973. It is alleged that she was incompetent at the time of separation although not hospitalized.

N. J. S. A. 2A:34-2 sets forth the causes for divorce from bond of matrimony. Subsection (d) provides: . .'

Separation, provided that the husband and wife have lived separate and apart in different habitations for a period of at least 18 or more consecutive months and there is no reasonable prospect of reconciliation; provided, further that after the 18-month period there shall be a presumption that there is no reasonable prospect of reconciliation ; ~ SI *.

Defendant contends that such separation should be voluntary; that at the time of commencement of separation and thereafter, she was mentally incompetent; therefore, the separation was not made voluntarily, and hence a divorce should not be granted under this section.

It is the policy of this State to terminate dead marriages. To achieve this policy, the Legislature recently enacted a general revision of the divorce laws incorporating several “no fault” causes of divorce. Legislative intent with respect to this section was to establish a no-fault ground for divorce to accord with public policy that dead marriages should be legally terminated. Wansner v. Wansner, 119 N. J. Super. 190 (Ch. Dv. 1972).

The statute does not characterize the nature of the separation. Rationale of the provision of this section relating to divorce on ground of separation is to terminate dead marriages, regardless of fault or lack of fault. Morrison v. Morrison, 122 N. J. Super. 277 (Ch. Div. 1972).

The exceptions are only those enumerated by the statute in other subsections. Desertion must be willful and continuous. N. J. S. A. 2A:34-2(b). Separation as a result of imprisonment must be for at least 18 months. N. J. S. A. 2A:34-2(g). Separation as a. result of institutionalization for mental illness must be for 24 months. N. J. S. A. 2A: 34-2 (f). Separation is nowhere else characterized. In Morrison v. Morrison, 122 N. J. Super. 277 (Ch. Div. 1972), it was held that any separation of spouses which does not result from imprisonment or institutionalization and which continues for 18 or more consecutive months gives rise to a cause of action for divorce, whether the separation is voiun'tary or involuntary, if it also appears that there is no reasonable prospect for reconciliation.

The purpose of this legislation is to avoid issues such as those raised by the defendant in this case.

A majority of states do not require that tbe separation be voluntary or by mutual assent, and it is submitted that this is the preferable view if the policy is one of adopting a non-fault ground for divorce. Insofar as the public interest in terminating dead marriages is concerned, there should be no distinction based upon the character of the separation. To insist that the separation be “voluntary” perpetuates some of the problems and anomalies of fault grounded divorce. [Final Report to the Governor and the Legislature of the Divorce Law Study Commission 72 (May 11, 1970)]

If the familial relationship has so far deteriorated that plaintiff seeks a divorce, there is no social good to be achieved by withholding the remedy. Reconciliation cannot be achieved unilaterally.

In its most recent case, Painter v. Painter, 65 N. J. 196 (1974), the Supreme Court emphasized the decreasing importance of the concept of fault. Eault, it was held, is no longer a criterion for equitable distribution of property. The court specified some of the most significant changes in matrimonial law as a result of the general statutory revision. Obstinacy need no longer be proven in order to establish a cause of action for desertion. N. J. S. A. 2A :34-2. Recrimination, condonation and the clean hands doctrine are no longer available as defenses. N. J. S. A. 2A:34-7. In addition, when awarding alimony a court may not penalize a party for marital fault. Greenberg v. Greenberg, 126 N. J. Super. 96 (App. Div. 1973).

The court holds that N. J. S. A. 2A:34-2(d) does not require a voluntary act. Incompetence, if not treated by institutionalization, is no defense to a cause of action for divorce under this section. A judgment of divorce will be entered in favor of plaintiff.