McNeil v. McDonough

Decision Date20 March 1980
Docket NumberCiv. No. 76-1024.
Citation515 F. Supp. 113
PartiesWilbur J. McNEIL and William Jones, Plaintiffs, v. Richard C. McDONOUGH et als., Defendants.
CourtU.S. District Court — District of New Jersey





Martin & Hart by Arthur N. Martin, Jr., East Orange, N. J., for plaintiffs.

John J. Degnan, Atty. Gen. of New Jersey, Joseph W. Ferraro, Jr., Deputy Atty. Gen., Newark, N. J., for defendants.


BIUNNO, District Judge.

This is a case in which the claims made involve allegations of racial discrimination in employment and employment opportunities. Trial was before the court without a jury. As provided by F.R.Civ.P. 52, this opinion contains the findings of fact and conclusions of law contemplated by the Rule.

The claims are asserted on a number of federal grounds with corresponding authority for jurisdiction, as follows:

Under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, jurisdiction being under 28 U.S.C. § 1343 or 42 U.S.C. § 2000e-5(f)(3), or both;
Under 42 U.S.C. §§ 1982, 1983 and 1988, with jurisdiction under 28 U.S.C. § 1343;
Under Amendment 14 of the U.S. Constitution with jurisdiction under 28 U.S.C. § 1331(a).

Different prerequisites, time limits or statutes of limitation apply to the different grounds, and different elements and defenses apply, as discussed hereafter.

The individual defendants originally named were formerly in office as Director of the Division of Alcoholic Beverage Control in the Department of Law and Public Safety of the State of New Jersey. The present Director in office, Joseph H. Lerner, was impleaded by agreement of the parties as though originally named as a defendant and as though his answer were the same as the others. The court notes that the method provided for by F.R.Civ.P. 25(d)(2), i. e., describing the public officer by title rather than by name, was not used. The final defendant is the Division of Alcoholic Beverage Control itself.

The plaintiffs, Wilbur J. McNeil and William Jones work in the Division.

Before launching into an analysis of the law and testimony, it will be useful background to touch on the history of the Division itself.

The Division is the current administrative successor to the N.J. State Department of Alcoholic Beverage Control, established by N.J.P.L.1933, c. 436 as a consequence of the adoption of Amendment 21, which in turn repealed Amendment 14 (Prohibition) of the U.S. Constitution. The history of regulation and control of alcoholic beverages, however, goes back much farther than that, perhaps as far back as Allinson's Laws. (1738-1739) Gaine v. Burnett, 122 N.J.L. 39, 4 A.2d 37 (S.Ct.1939) reviews this long history before federal Prohibition and Repeal.

The 1933 statute followed an exhaustive study and report by a committee, established by joint resolution of the Legislature adopted October 9, 1933, and largely followed the draft statute proposed by the report.

As was observed in an earlier study,

"It was felt that the choice of a `single executive' was a wise one. The object of liquor legislation is rigid, uncompromising control. The main duties of the department are police in nature, and such duties are performed with greater efficiency and promptness through a single executive than through a plural board."
Study of State Administrative Agencies in New Jersey, by Clark Crane Vogel under the supervision of Nathan L. Jacobs (University of Newark, May, 1941), at p.44.

With the enactment of the Revised Statutes of 1937, the statute became N.J.R.S. Title 33. The original statute, by § 3 (N.J. R.S. 33:1-3) not only created the Department, but itself named the first commissioner, D. Frederick Burnett, Esq., and fixed his term and salary. Mr. Burnett had served as counsel to the study committee (see Study supra, p.43 at n.9). It is a matter of common knowledge among the State's bench and bar that Mr. Burnett was not only the architect of the statute but that as its first commissioner, and with the able assistance of his Chief Deputy Commissioner and Counsel, Nathan L. Jacobs (until lately Associate Justice of the Supreme Court of New Jersey) set the level of high professional performance called for by the command that he do all things "designed to insure the fair, impartial, stringent and comprehensive administration" of the law. N.J.P.L. 1933, c. 436, § 20; N.J.R.S. 33:1-23.

The structure of the department as created did not contemplate that it should itself be the sole vehicle for control and administration. Rather, a large measure of "home rule" was delegated to local municipalities with the Department serving as supervisor. The commissioner was assigned the function of issuing certain types of licenses (e. g., for manufacture, wholesale, plenary retail transit, transportation and public warehouse), N.J.R.S. 33:1-18, while local municipal boards or bodies were authorized to issue all other kinds of license, mainly various types of retail licenses which are far more numerous, N.J.R.S. 33:1-19.

With this municipal licensing authority there was imposed a set of corresponding administrative enforcement duties, N.J.R.S. 33:1-24, including the suspension or revocation of municipally issued licenses, NJRS 33:1-31, subject to appeal to the commissioner. As of June 30, 1938, a total of 3,943 licenses had been issued, Study supra, at p. 51, most of which doubtless were municipally issued retail licenses.

The structure, then, with the large measure of "home rule" for retail licenses, implied that the Department was intended to be a small, highly organized and efficient unit, directly controlling the manufacture, wholesaling and distribution aspects, while auditing the municipal functions through appeal and otherwise.1

With the adoption of the 1947 N.J. Constitution, it was required that all executive branch units, including departments, be allocated by law among and within not more than 20 principal departments, N.J.Const., 1947, Art.5, § 4, par.1. Under current law the former Department has been constituted as a division of the Department of Law and Public Safety, headed by the Attorney General, N.J.R.S. 52:17B-15, and the powers and duties of the former commissioner transferred to the Director of the Division, N.J.R.S. 52:17B-17.

Given this background and pattern, it is no surprise that the number of budgeted positions in the division is only about 150, a small number for a unit of State government charged with the important functions and duties of this one. Some of the positions are clerical force, which come under Civil Service (NJRS Title 11), by reason of N.J.R.S. 33:1-4c. All other State employees appointed by the director do not come within Civil Service. These fall into a number of categories:

... 5 deputy directors, each assigned to a bureau by the director, and removable for cause; N.J.R.S. 33:1-4 b (1973);
... such number of inspectors, investigators and executive assistants as the director deems necessary; they are removable at will, except that after 3 years employment they shall serve during good behavior and shall not be removed except for cause; Idem., par. d.
... temporarily employed experts and specialists for specified service;
... counsel and other legal assistants.

Of the total staff, the evidence is that there are 80 to 90 employees in the Enforcement Bureau, these being divided into 5 sections: wholesale, retail, undercover, front and administrative. McNeil has served in both the undercover and retail sections and is now assigned to wholesale. Jones has been continuously assigned to undercover.

Although the original commissioner was named by the Legislature, it may no longer elect or appoint any executive, administrative or judicial officer except the State Auditor, N.J.Const., 1947, Art. 4, § 5 par. 5. The director of the Division is now appointed by the Governor, with the advice and consent of the Senate, N.J.R.S. 52:17B-16. The office was made full-time by N.J.P.L. 1970, c. 222, effective October 16, 1970, Idem. (pocket part).

Thus, the Director of the division is today a state officer appointed by the Governor and confirmed by the Senate, whose immediate head is the Attorney-General of New Jersey, who in turn, as head of the Department of Law and Public Safety, is a member of the Governor's cabinet. In this capacity he serves an administrative state function separate from his duties and powers as chief law enforcement officer for the State as a constitutional officer, without regard to departmental structure or administrative duties. See N.J.Const. 1947, Art. 5, § 4, par. 1, 2 and 3; also State v. Winne, 12 N.J. 152, 96 A.2d 63 (1953); Board etc. Lehigh Valley R. Co., 106 N.J.L. 411, 149 A. 263 (E & A, 1929).

Limitations Aspects

There is no federal statute of limitations for suits under the Civil Rights Act, 42 U.S.C. § 1981 et seq. The decisions widely recognize that in this circumstance the federal courts are to apply that period of limitation applicable under State law had a like action been brought under State law. In fact, the conformity provisions of 42 U.S.C. § 1988 contemplate that this course be followed.

Inspection of the reported cases dealing with the selection of the proper State limitation period show wide variations of scope. As observed recently in Davis v. U. S. Steel Supply, 581 F.2d 335 (CA 3, 1978) the selection involves a process of analyzing each complaint, and each aspect of a particular complaint, to ascertain the fundamental nature of each claim since different time periods may apply to different claims or complaints.

In this case, both plaintiffs have been and are still employees of the State of New Jersey, albeit in its unclassified service rather than under Civil Service, and complain of invidious discrimination grounded on race or color in the alleged failure to promote each of them. Since each has 3 years' service, neither may be discharged without cause...

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3 cases
  • Aitchison v. Raffiani
    • United States
    • U.S. Court of Appeals — Third Circuit
    • March 1, 1983
    ...8, we conclude that the court misspoke in its November opinion and that the July decision reflects the true ruling.7 In McNeil v. McDonough, 515 F.Supp. 113 (D.N.J.1980), aff'd per curiam, 648 F.2d 178 (3d Cir.1981), an employment discrimination case, the district court without discussing t......
  • McMorrow v. Schweiker
    • United States
    • U.S. District Court — District of New Jersey
    • April 21, 1982
    ...judicial review by courts that may exercise original jurisdiction and those that may not, see the discussion in McNeil v. McDonough, 515 F.Supp. 113, at 127-129 (D.N.J.1980), affd. 648 F.2d 178 (CA 3, The concept of "substantial evidence" as a test on review also subsumes the applicable law......
  • Brick City Grill, Inc. v. City of Newark
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    • U.S. District Court — District of New Jersey
    • March 31, 2015
    ...a "person" subject to suit under the statute. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 69 (1989); see also McNeil v. McDonough, 515 F. Supp. 113, 122 (D.N.J. 1980 ("From the legislative history outlined above, there can be no doubt that insofar as the [Division of Alcoholic ......

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