Petition of Santiago

• Citation: 248 A.2d 701,104 N.J.Super. 110
• Decision Date: 18 December 1968
• Docket Number: No. L-9641,L-9641
• Parties: Petition of Carlos SANTIAGO for a Writ of Habeas Corpus.
• Court: Superior Court of New Jersey

Page 110

104 N.J.Super. 110

248 A.2d 701

Petition of Carlos SANTIAGO for a Writ of Habeas Corpus.

No. L-9641.

Superior Court of New Jersey

Law Division.

Dec. 18, 1968.

William Goldberg, Palisade, for plaintiff (John J. Powers, Hudson County Legal Services, attorney).

Clinton E. Cronin for the Attorney General, Arthur J. Sills, Atty. Gen., attorney).

Anthony M. DeFino, Asst. County Prosecutor, for the State (James A. Tumulty, Jr., Hudson

County Prosecutor, attorney, Charles D. Sapienza, Legal Asst. on the brief).

ARTASERSE, A.J.S.C.

This is a complaint and order to show cause why a writ of Habeas corpus should not issue on behalf of plaintiff Carlos Santiago, an immate of the Hudson County Penitentiary. Plaintiff was sentenced by the Hoboken Municipal Court on June 13, 1968 for violation of N.J.S. 2A:170--8, N.J.S.A., to a term of one year in the county penitentiary. His challenge to the legality of his confinement is based upon the alleged violation of his right to a jury trial, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. The argument is premised upon the theory that Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, decided May 20, 1968 (prior to the plaintiff's conviction), vitiates the New Jersey practice of trying disorderly persons offenses without a jury. N.J.S. 2A:8--21(d) N.J.S.A., authorizes the trial of Disorderly Persons Offenses in the municipal court before a municipal magistrate. N.J.S. 2A:169--4 N.J.S.A., provided a maximum sentence for conviction of such an offense of one year in the county penitentiary and a fine of $1000. ¹ Plaintiff also asserts that N.J.S. 2A:170--8, N.J.S.A., is unconstitutional because its standard of proof is impermissively vague.

The court ordered that the Attorney General as well as the Hudson County Prosecutor be served with the complaint and order to show cause since there was a challenge to the constitutionality of a state statute.

The Attorney General appeared through his representative on the return date and advised the court that he did not wish to participate. Accordingly, the court granted his motion to withdraw from the action.

Although the complaint recites that plaintiff was found guilty in the municipal court, the prosecutor at oral argument produced the record from that court which showed that a plea of guilty had been entered by plaintiff. Defense counsel then conceded for the purpose of the present argument that a plea of guilty had been entered. However, he contended that this did not affect the validity of the legal position he was advancing. Apparently his position is that failure to advise plaintiff of a right to a trial by jury vitiates the plea of guilty. The plea of guilty presents, at least, a serious question of waiver of any purported right to a jury trial. However, because of its disposition of the underlying issue, that is, the existence of a right to a jury trial, the court finds it unnecessary to decide this issue of waiver.

Counsel for plaintiff sought initially to bring a class action for a writ of Habeas corpus on behalf of plaintiff and all prisoners throughout the State similarly situated. The court deemed this procedure improper and inappropriate, and hence refused to issue such an order. However, at counsel's request the court allowed him to brief and argue the propriety of such a class action so that he might have a record from which to appeal. The court has incorporated herein its reasons for rejecting those arguments.

Thus, before turning to the merits of the plaintiff's claim, two procedural questions must be answered. First, should plaintiff's remedy be one of Habeas corpus or post-conviction relief? Second, is he entitled to maintain a class action for the relief sought in the complaint on behalf of all persons similarly situated in the State?

As to the initial procedural question, plaintiff argues that he does not come under the post-conviction relief rules because R.R. 3:10A--1 applies only to persons convicted of a 'criminal offense' which, by definition, would exclude disorderly persons offenses. This very literal reading of the rules overlooks the history and intent of the post-conviction procedure. The rules, R.R. 3:10A--1 et seq., were drafted to provide a comprehensive procedure by which all claims for post-conviction relief other than appeal could be processed without the technical difficulties inherent in the former Habeas corpus practice. N.J.S 2A:67--1 et seq., N.J.S.A. See Report of Supreme Court Committee on Post-Conviction Rights of Indigents (October 22, 1962), pp. 3--6. The post-conviction relief procedure was made the exclusive means (other than by appeal) of challenging a judgment of conviction. R.R. 3:10A--3. It includes attacks which were formerly made by Habeas corpus. R.R. 3:10A--2(d); State v. Loray, 46 N.J. 417, 419, 217 A.2d 450 (1966).

The same reasons which necessitated the development of a post-conviction procedure for indictable offenses applies to convictions in municipal courts. The drafters of the rules did not intend to leave persons subject to a year's imprisonment without a remedy for illegal detention, or to relegate them to the labyrinth of Habeas corpus with its maze of common law limitations. Plaintiff's brief indicates these technical pitfalls under the old Habeas corpus practice.

There are other indications that the post-conviction relief rules are not be to read so narrowly.

In R.R. 3:10A--6(a) assignment of counsel is covered even where the defendant's conviction was for a nonindictable offense. Recently Judge Kentz in State in the Interest of J.M., 103 N.J.Super. 88, 246 A.2d 536, (J. & D.R.Ct.1968) treated an application for writ of Habeas corpus, after an adjudication of delinquency in the Juvenile and Domestic Relations Court, as a proceeding in the nature of post-conviction relief, and held that In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), was to be given retroactive effect. It has been the practice throughout the State to apply the post-conviction procedures to penal proceedings of all kinds, including disorderly persons offenses.

The court therefore concludes that the proper procedure open to plaintiff in this action is a petition for post-conviction relief, and it treats the present application accordingly.

As to the second procedural point, there does not appear to be any right under our rules to bring a class action for post-conviction relief. The procedure is basically a criminal proceeding entitled in the cause, and filed in the county where the conviction was obtained. R.R. 3:10A--1 et seq. But even if the correct form of the were Habeas corpus, N.J.S. 2A:67--1 et seq., N.J.S.A., a class action would not lie in the present circumstances. Our rule R.R. 4:36--1, which is taken from Rule 23 of the Federal Rules of Civil Procedure, governs class actions. Plaintiff would be asserting at most a spurious class right. This is basically a permissive joinder device and judgment in such an action binds only original parties of record or those who intervene and become parties to the action. 3A Moore's Federal Practice, §§ 23.10, 23.11.

Furthermore, it has been the general rule that several applicants cannot even join in one petition for writ of Habeas corpus. 39 C.J.S. Habeas Corpus s, 77a, p. 622. The theory behind the rule has been that a commitment to prison acts individually on each person committed, and a writ seeking his discharge on Habeas corpus must likewise be individual. Ferree v. Douglas, 145 Pa.Super. 447, 21 A.2d 472, (Super.Ct.1941); In re Kosopud, 272 F. 330 (D.C.Ohio 1920); United States ex rel. Bowe v. Skeen, 107 F.Supp. 879 (D.C.W.Va.1952).

In Riley v. City and County of Denver, 137 Colo. 312, 324 P.2d 790 (Sup.Ct.1958), two prisoners attempted to bring a class action essentially for Habeas corpus type relief for themselves and all others similarly situated because of void judgments of the municipal courts of Denver. The court relying on above theory, noted that

'Although Habeas corpus is a civil proceeding * * * we hold that the Rules of Civil Procedure, providing for class actions, do not apply. The very nature of Habeas corpus proceedings forfends class actions. * * *' (324 P.2d at p. 791)

However, federal courts have entertained joint application for Habeas corpus which presented the common claims of two or more petitioners who were convicted at a joint trial. United States ex rel. Poret v. Sigler, 361 U.S. 375, 80 S.Ct. 404, 4 L.Ed.2d 380 (1960); Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923); DeGrandis v. Fay, 335 F.2d 173 (2 Cir. 1964); Curtis v. Boeger, 331 F.2d 675 (8 Cir. 1964). Thus, it would seem that the older conceptualistic rule has fallen to the more pragmatic considerations where a joint application is brought by defendants who were convicted at the same trial. The instant case, however, does not involve joinder. R.R. 4:33--1 requires for joinder that the action arise out of 'the same transaction, occurrence, or series of transactions or occurrences * * *.' Although this phrase has never been given exact definitional limitation, the court holds that it does not cover the present factual pattern. See Schnitzer & Wildstein, N.J. Rules Serv. A--IV--1044 et seq.

In Adderly v. Wainwright, 272 F.Supp. 530 (D.C.Fla.1967), and Hill v. Nelson, 272 F.Supp. 790 (D.C.Cal.1967), two celebrated cases by occupants of death rows in Florida and California, the federal District Courts would not go so far as to say that there never could be a Habeas corpus class action under any circumstances. However, in Adderly the record was not complete enough to determine if a class action was possible; and in Hill the court decided that a class action was too impractical a vehicle for the circumstances involved in that matter. Cf. 'Multiparty Federal Habeas Corpus,' 81 Harv. L. Rev. 1482 (1968), urging the use of class actions in certain federal...