Johnson v. New Jersey State Parole Bd.

• Decision Date: 20 December 1974
• Citation: 131 N.J.Super. 513,330 A.2d 616
• Parties: Leroy JOHNSON, Plaintiff-Respondent, v. NEW JERSEY STATE PAROLE BOARD et al., Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 513

131 N.J.Super. 513

330 A.2d 616

Leroy JOHNSON, Plaintiff-Respondent, v. NEW JERSEY STATE PAROLE BOARD et al., Defendants-Appellants.

Superior Court of New Jersey Appellate Division.

Argued Nov. 25, 1974.

Decided Dec. 20, 1974.

Joseph T. Maloney, Deputy Atty. Gen., for defendants-appellants. (William F. Hyland, Atty. Gen., attorney; Stephen Skillman, Asst. Atty., Gen., of counsel).

Robert J. Konzelmann, Asst. Deputy Public Defender, for plaintiff-respondent (Stanley C. Van Ness, Public Defender, attorney).

Before Judges MICHELS, MORGAN and MILMED.

The opinion of the court was delivered by

MILMED, J.S.C., Temporarily Assigned.

In his complaint in lieu of prerogative writs, also designated as 'Petition For Writ Of Habeas Corpus,' filed in the Law Division, plaintiff claimed that his constitutional right to a prompt parole revocation hearing had been violated by defendant State Parole Board. On behalf of defendants the Attorney General moved to dismiss the complaint, contending that the Law Division lacked jurisdiction over the subject matter since plaintiff was seeking to collaterally challenge state administrative agency action. The motion was denied, the trial judge finding that the Law Division does have jurisdiction pursuant to R. 4:3--1(a)(1) and that the alleged inaction of the Parole Board appeared to obviate the need for the matter to be considered by the Appellate Division pursuant to R. 2:2--3(a)(2). We granted defendants' motion for leave to appeal from the denial, at the same time directing the Attorney General to move for the consolidation for argument of all appeals pending in this court involving the same issue. ¹

On June 1, 1961 plaintiff was sentenced to serve concurrent terms of 30 to 35 years and 20 to 30 years on his convictions for kidnapping and rape. He was paroled from the State Prison on September 19, 1972. On August 30, 1973, while under parole supervision, he was arrested in Essex County on charges of armed robbery and entry with intent to steal. On September 4, 1973, while in custody in the Essex County Jail, he was served with a warrant as a parole violator, N.J.S.A. 30:4--123.22. A probable cause hearing was held on September 11, 1973. Sufficient cause was found to detain him pending a final revocation hearing. Following his conviction in the Essex County Court of robbery, possession of a weapon and entering with intent to steal, he was, on March 14, 1974, sentenced to new terms totalling not less than 3 nor more than 5 years (3 to 5, 2 to 3 concurrent and 2 to 3 concurrent). He was returned to State Prison and a final parole revocation hearing was held there, under his protest, on March 28, 1974, at which time his parole was revoked. ² He received notice of the decision on April 10, 1974. He has not filed a notice of appeal from that decision. On April 1, 1974, he filed his complaint in lieu of prerogative writs (petition for writ of Habeas corpus) seeking restoration of parole.

The exclusive method for review of an action or inaction of the State Parole Board is by direct appeal to the Appellate Division. The Board is a state administrative agency established within the Department of Institutions and Agencies a principal department in the executive branch of the State Government. Cf. N.J.S.A. 52:14B--2(a). As such its final decisions and actions (or inaction) are reviewable as of right by appeal to the Appellate Division, R. 2:2--3(a)(2), under our special constitutional structure (N.J.Const., Art. VI, § V, par. 4 (1947)). Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 301 A.2d 727 (1973); Monks v. N.J. State Parole Board, 58 N.J. 238, 242, 277 A.2d 193 (1974); Puchalski v. N.J. State Parole Board, 104 N.J.Super. 294, 250 A.2d 19 (App.Div.1969), aff'd 55 N.J. 113, 259 A.2d 713 (1969), cert. den. 398 U.S. 938, 90 S.Ct. 1841, 26 L.Ed.2d 270 (1970); In re Senior Appeals Examiners, 60 N.J. 356, 363, 290 A.2d 129 (1972); Central R.R. Co. v. Neeld, 26 N.J. 172, 184--185, 139 A.2d 110 (1958), cert. den. 357 U.S. 928, 78 S.Ct. 1373, 2 L.Ed.2d 1371 (1958); State v. Dalonges, 128 N.J.Super. 140, 145, 319 A.2d 257 (App.Div.1974); Princeton First Aid & Rescue Squad, Inc. v. Division on Civil Rights, 124 N.J.Super. 150, 305 A.2d 91 (App.Div.1973), certif. den. 63 N.J. 555, 310 A.2d 470 (1973); Mathews v. Finley, 46 N.J.Super. 175, 177, 134 A.2d 441 (App.Div.1957), certif. den. 25 N.J. 283, 135 A.2d 590 (1957); In re Adinolfi, 43 N.J.Super. 262, 128 A.2d 513 (Law Div.1957); In re Mahoney, 17 N.J.Super. 99, 108, 85 A.2d 338 (Cty.Ct.1951).

In Central R.R. Co. v. Neeld, Supra, referring to the objective of the 1948 court rules implementing the constitutional requirement for review, hearing and relief in the Superior Court, in lieu of the superseded pererogative writs ((N.J.Const. Art. VI, § V, par. 4 (1947)), Justice Jacobs pointed out that

In 1948 this court adopted its implementing rules which sought to avoid the problems of the prerogative writ practice and to provide simple and expeditious modes of judicial review from administrative action and inaction. The rules perpetuated none of the former procedural distinctions resting on the nature of the relief sought and their wholesome design was clear; they contemplated that every proceeding to review the action or inaction of a Local administrative agency would be by complaint in the Law Division * * * and that every proceeding to review the action or inaction of a State administrative agency would be by appeal to the Appellate Division. * * * (26 N.J. at 184--185, 139 A.2d at 117)

More recently, in Monks v. N.J. State Parole Board, Supra, Justice Jacobs commented:

* * * When our 1947 Constitution was prepared, pains were taken to insure not only that the court's prerogative writ jurisdiction would remain intact, but also that the manner of its exercise would be greatly simplified (art. VI, sec. 5 para. 4). See Ward v. Keenan, 3 N.J. 298, 303--308, 70 A.2d 77 (1949). The implementing court rules now provide an easy mode of review designed to insure procedural fairness in the administrative process and to curb administrative abuses. * * * (58 N.J. at 248--249, 277 A.2d at 198)

The 'easy mode of review' of actions or inactions of state administrative agencies, including the State Parole Board, 'designed to insure procedural fairness in the administrative process and to curb administrative abuses,' is that set forth in R. 2:2--3(a)(2), I.e., direct appeal to the Appellate Division. Referring to former R.R. 4:88--8 (appeals from administrative agencies), Judge Clapp, in his opinion for the Appellate Division in Mathews v. Finley, Supra, noted:

It should be observed, in passing (though it is not a matter of any consequence now, R.R. 1:27D(b)), that the Law Division had no authority in the premises. To review the action or, plaintiff claims, inaction of the state officials or agencies involved, he should have taken an appeal therefrom directly to the Appellate Division under R.R. 4:88--8. The term 'action,' found in the rule, includes inaction. Over such matters the Appellate Division has exclusive cognizance. (46 N.J.Super. at 177, 134 A.2d at 442; emphasis added)

The writ of Habeas corpus ad subjiciendum, applied for by plaintiff, is a common law writ, a high prerogative writ, confirmed and regulated by statute. In re Thompson, 85 N.JEq. 221, 233, 96 A. 102 (Ch.1915); In re Davis, 107 N.J.Eq. 160, 164--165, 152 A. 188 (Ch.1930); In re Van Winkle, 3 N.J. 348, 355--356, 70 A.2d 167 (1950); Sate v. La Battaglia, 30 N.J.Super. 1, 3, 103 A.2d 162 (App.Div.1954); N.J.S.A. 2A:67--1 et seq.; 39 Am.Jur.2d Habeas Corpus, §§ 1, 8, 9. It is preserved Eo nomine in our State Constitution of 1947 (Art. I, par. 14), and is of necessity summary in nature, designed to ascertain whether the petitioner 'is restrained of his liberty by due process of law.' 39 Am.Jur.2d Habeas Corpus, §§ 1, 9; N.J.S.A. 2A:67--3. It is 'a writ of right when cause appears for its issuance, but cause must always be shown.' In re Thompson, Supra, 85 N.J.Eq. at 249, 96 A. 102. See also, 3 Blackstone Commentaries 132 (Lewis ed., 1922, at 1129--1130).

All Habeas corpus applications and actions, other than those relating to custody of infants, are brought in the Law Division, R. 4:3--1(a)(1). The writ 'will not ordinarily issue when other adequate relief to correct error is available to the applicant.' In re Kershner, 9 N.J. 471, 476, 88 A.2d 849, 851 (1952), cert. den. 344 U.S. 844, 73 S.Ct. 59, 97 L.Ed. 656 (1952). It 'is not designed as a substitute for routine and completely adequate rules of practice. Nor is it designed to serve the office of an appeal.' In re Robilotto, 24 N.J.Super. 209, 211--212, 94 A.2d 207, 209 (App.Div.1953). It 'may not be used in lieu of appeal,' and the 'fact that the time for appeal has expired is of no moment.' In re Zee, 13 N.J.Super. 312, 317, 80 A.2d 480, 482 (Cty.Ct.1951), aff'd sub nom. State v. Zee, 16 N.J.Super. 171, 84 A.2d 29 (App.Div.1951), cert. den. 343 U.S. 931, 72 S.Ct. 766, 96 L.Ed. 1340 (1952). See also, In re Davis, Supra, 107 N.J.Eq. at 170, 152 A. 188. For Johnson there was another adequate remedy available--direct appeal to the Appellate Division from the action or inaction of the state administrative agency (Parole Board) in the parole revocation proceedings. R 2:2--3(a)(2).

Beyond this, 'the function of Habeas corpus is to secure the immediate release of a prisoner.' State v. Williams, 29 N.J.Super. 309, 315, 102 A.2d 647, 650 (App.Div.1954), cert. den. 348 U.S. 847, 75 S.Ct. 71, 99 L.Ed. 668 (1954). An 'indispensable prerequisite to the writ in its traditional application' is that the petitioner, if he prevailed, would be entitled to immediate release--a discharge from custody. State v. Daniels, 38 N.J. 242, 246, 247, n. 1, 183 A.2d 648 (1963), cert. den. 374 U.S. 837, 83 S.Ct. 1885, 10 L.Ed.2d 1057 (1962); In re Kershner, Supra, 9 N.J. at 476, 88 A.2d 849. See also, 39 Am.Jur.2d, Habeas Corpus, § 14....