Colon v. Tedesco

• Decision Date: 30 October 1973
• Citation: 125 N.J.Super. 446,311 A.2d 393
• Parties: Leonardo COLON et al., Plaintiffs, v. Morris TEDESCO et al., Defendants.
• Court: New Jersey Superior Court

Page 446

125 N.J.Super. 446

311 A.2d 393

Leonardo COLON et al., Plaintiffs, v. Morris TEDESCO et al., Defendants.

Superior Court of New Jersey Law Division.

Oct. 30, 1973.

David J. Lillesand, Bridgeton, for plaintiffs Leonardo Colon and Camden Regional Legal Services, Inc.,--Farm Worker Division.

Michael S. Bokar, Deputy Atty. Gen., for defendants (George F. Kugler, Jr., Atty. Gen., attorney).

HORN, A.J.S.C.

In this action in lieu of prerogative writ, certain defendants move to dismiss the complaint for failure to state a claim upon which relief can be granted or, in the alternative, for summary judgment.

The complaint alleges that plaintiff Leonardo Colon is a migrant Puerto Rican farm worker who, in conjunction with Camden Regional Legal Services, Inc.--Farm Worker Division, a New Jersey nonprofit corporation, individually and on behalf of all others similarly situated, brings this action against various parties, the owner-lessor of a labor camp and others, including the Department of Labor and Industry, State of New Jersey; Ronald M. Heymann, individually and as Commissioner of that Department; Herbert Heilmann, individually and as Assistant Commissioner of Labor Relations and Work Place Standards, and, as such, Director of the Division of Labor; Gabriel Coll, individually and as Chief, Bureau of Migrant Labor in the Division of Labor; Leon Rennebaum, individually and as Supervisor, Bureau of Migrant Labor; Howard Winrow, individually and as Senior Inspector, Bureau of Migrant Labor, and John Krokos, individually and as Inspector, Bureau of Migrant Labor, for the purpose of obtaining an injunction and declaratory judgment. The foregoing named Department of Labor and Industry and the officers thereof are the moving parties herein and are referred to as defendants.

Insofar as this motion is concerned the complaint charges certain individuals in control of a migrant labor camp with permitting unsanitary conditions in their operation so that it constitutes a public nuisance. It charges defendants with a failure to act pursuant to law, to cause the conditions to be corrected or the camp disqualified and enjoined from operation.

The primary relief sought against the moving defendants is a judgment ordering them to initiate proceedings against the owning and operating individuals, pursuant to N.J.S.A. 34:9A--32, New Jersey Regulation 12:100--1(1), and N.J.S.A. 34:9A--21, to declare the camp to be a public nuisance, and for other relief under the applicable statute.

The Attorney General, in behalf of defendants, contends that they are entitled to summary relief from this action for three reasons First, this court lacks jurisdiction to order state officials to institute enforcement proceedings because, under the New Jersey Rules of Civil Procedure, only the Appellate Division has jurisdiction to review the action or inaction of state administrative agencies or officers.

Second, there is nothing in the present case to justify invocation of the extraordinary power of the courts to compel the exercise of discretionary authority by public officials.

Third, plaintiffs lack standing to seek the relief sought to prohibit the continued operation of the camp as a public nuisance.

I will deal with these points successively.

I--The Superior Court, Appellate Division, has exclusive jurisdiction to review the action or inaction of state administrative agencies or officers.

The State relies upon R. 2:2--3(a)(2), which provides that appeals may be taken to the Appellate Division as of right to review final decisions or actions of any state administrative agency or officer thereof, or to review the validity of any rule promulgated by any such agency or officer, with one exception, not involved here.

R. 4:69--1 provides that review, hearing, and relief heretofore available by prerogative writs and not available under R. 2:2--3 shall be afforded by a civil action in the Law Division of the Superior Court.

Notwithstanding the language of R. 2:2--3(a)(2), which makes but one express exception (not applicable here), the courts have engrafted two exceptions, or have construed this rule in two cases to exclude from its applicability review of certain actions (or inactions) of state administrative agencies.

The first one is referred to in Baldwin Construction Co. v. Essex Cty. Bd. of Taxation, 27 N.J.Super. 240, 99 A.2d 214 (App.Div.1953), rearg. den. 28 N.J.Super. 110, 100 A.2d 341 (App.Div.1953), aff'd 16 N.J. 329, 108 A.2d 598 (1954). There it was decided that In the allocation of business between the Law Division and the Appellate Division, proceedings relating to an administrative body with authority confined to a single locality, in this case a county, should be brought in the Law Division even though the defendant may be classified for most purposes as an agency of the State. (at 242, 99 A.2d 214, 215)

In Pfleger v. Dept. of Transportation, 98 N.J.Super. 386, 237 A.2d 505 (Ch.Div.1967), Judge Lane had before him a motion to transfer an action to the Law Division. The complaint sought an injunction against defendants, consisting of the Department of Transportation of the State of New Jersey and others, to prevent them from proceeding with contemplated construction on a state highway. By leave of court the complaint was amended to add a prayer for relief in lieu of prerogative writs, to compel the Department of Transportation to institute condemnation proceedings under the Condemnation Act. Defendants joined in plaintiffs' request for a transfer of the action to the Law Division.

Judge Lane reviewed the applicable cases decided up to that time and came to the conclusion that because plaintiffs were seeking to review the refusal of a state administrative agency to condemn lands, they were required to proceed in the Appellate Division under the corresponding rule applicable at the time, R.R. 4:88--8.

He cited in his opinion Central R.R. Co. v. Neeld, 26 N.J. 172, 139 A.2d 110 (1958), cert. den. 357 U.S. 928, 78 S.Ct. 1373, 2 L.Ed.2d 1371 (1958), in which Justice Jacobs stated concerning this rule: '(T)hey contemplated that every proceeding to review the action or inaction of a * * * state administrative agency would be by appeal to the Appellate Division. * * *' (at 184--185, 139 A.2d at p. 117).

Judge Lane's decision was overruled by the Appellate Division in Pfleger v. N.J. State Highway Dept., 104 N.J.Super. 289, 250 A.2d 16 (1968), the court holding that the Law Division was the proper forum under the existing R.R. 4:88--8. This holding constitutes a second exception and includes the factual situation in the case at bar.

Judge Gaulkin, for the Appellate Division, observed that a close reading of R.R. 4:88--8 revealed that the Supreme Court did not intend that reviews of actions or inactions 'such as the one presented to us now' were to be had in the Appellate Division. He also stated that condemnation of plaintiffs' lands cannot be other than by an action in the Superior Court, Law Division, because there is no administrative machinery within the Department of Transportation for its condemning land, for hearing the arguments for and against seeking condemnation in court, or for deciding whether a 'taking' has been effected by the Department's actions. Further, he said that there was no procedure by which a record may be made before the Department upon which the appellate court could review the Department's decision.

In Princeton First Aid v. Div. on Civil Rights, 124 N.J.Super. 150, 305 A.2d 91 (App.Div.1973), plaintiffs filed a complaint in lieu of prerogative writs in the Law Division, alleging that they were not 'subject to the law against discrimination' and that the Division on Civil Rights lacked jurisdiction over them to determine whether plaintiffs had violated the civil rights of one who had complained to the Division. The Division was granted leave to appeal from an order entered by the trial court granting the relief prayed for by plaintiffs.

The Appellate Division reversed, holding that it was not authorized to assume jurisdiction in the case under Pfleger v. N.J. State Highway Dept., Supra. It distinguished Pfleger as follows:

* * * That case was an action in the nature of Mandamus to compel the Department of Transportation to perform its ministerial duty to institute condemnation proceedings to determine the value of lands allegedly taken and damaged in the course of construction of a road. Enforcement of such a ministerial duty is within the jurisdiction of the Law Division.

Here, however, we are concerned not with a ministerial duty of a state agency but with the quasi-judicial duties of such an agency, the Division on Civil Rights, vested with jurisdiction to consider, hear and determine complaints alleging violations of the laws against discrimination.

In the case before me the agency is not so vested with jurisdiction to consider, hear, and determine complaints. It may investigate and request the Attorney General to take appropriate action. The essence of the instant complaint is the failure of the agency or its officers to perform the allegedly mandatory, statutory function.

It is reasonable to assume that R. 2:2--3(a)(2) was promulgated, among other reasons, for the purpose of providing a speedy review of a proceeding conducted within the state administrative agency itself and involving parties who are given an opportunity to be heard. In such cases a record is made on the basis of which the Appellate Court's review will result in a definitive determination.

In such cases the record may from time to time require supplementation. This is contemplated as a possibility. R. 2:5--5(b). But what is not contemplated is that a full plenary proceeding among adversaries be held before the Appellate Division. This can best be had in the Law Division. It is also noted that 'in exceptional instances,' pending a review by the Appellate Division, a judge of the Superior or County Court may be...