Rivkin v. Dover Tp. Rent Leveling Bd.

Citation649 A.2d 1356,277 N.J.Super. 559
PartiesDavid RIVKIN, Edward Rivkin, Judith Rivkin, t/a Galaxy Manor, a New Jersey Partnership, Plaintiffs-Respondents and Cross-Appellants, v. DOVER TOWNSHIP RENT LEVELING BOARD, Defendant-Appellant and Cross-Respondent.
Decision Date08 December 1994
CourtNew Jersey Superior Court – Appellate Division

Courtland T. Babcock, II, Brick Town, for appellant/cross-respondent (Babcock, Hennes & Bielory, attorneys; Mr. Babcock, on the brief).

Reuel E. Topas, Jackson, for respondents/cross-appellants (Levin, Shea, Pfeffer, McMahon and Russell, attorneys; Mr. Topas, on the brief).

Before Judges KING, D'ANNUNZIO and EICHEN.

The opinion of the court was delivered by

D'ANNUNZIO, J.A.D.

The issue is whether defendant deprived plaintiffs of procedural due process, thereby subjecting defendant to liability for compensatory damages and counsel fees.

Galaxy Manor, a partnership, operates a mobile home park in Dover Township. In May 1990, it filed an application for a rent increase with defendant Dover Township Rent Leveling Board (Board or defendant). The application was based on major capital improvements to the park, allegedly in the amount of $59,624.96. The Board conducted hearings and rendered its decision in October 1990, permitting rent increases based on capital improvements in the amount of $20,641.42.

Plaintiffs, the partners in Galaxy, filed this action in lieu of prerogative writs, contending that the defendant's determination was arbitrary and capricious and alleging a violation of their civil rights contrary to 42 U.S.C.A. § 1983. 1 The core of plaintiffs' allegations focused on the behavior of Edward Baltarzuk, a member of the Board. Plaintiffs contended that Baltarzuk participated in the hearings with a preconceived bias against their application, behaved as an advocate for the tenants during the hearing, relied on evidence outside the record and poisoned the deliberations of the Board.

In the prerogative writ aspect of plaintiffs' case, the trial court ruled that Baltarzuk had prejudiced plaintiffs. The court set aside the Board's determination, remanded for a new hearing and barred Baltarzuk from participating as a Board member at the new hearing. On remand, the Board allowed an additional $25,089.67 in qualifying capital improvements.

Based on a finding that Baltarzuk's behavior had violated plaintiffs' civil rights contrary to § 1983, the court awarded counsel fees to plaintiffs pursuant to 42 U.S.C.A. § 1988 in the amount of $39,679.55. The court also awarded plaintiffs compensatory damages in the amount of $6,303.34, representing interest on the difference between the initial rent increase and the larger rent increase awarded as a result of the hearing on remand. Defendant appealed, and plaintiffs cross-appealed.

Plaintiffs contended, and the trial court agreed, that Baltarzuk's performance as a Board member deprived them of procedural due process. See Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S.Ct. 1610, 1613, 64 L.Ed.2d 182, 188 (1980) (entitlement to an impartial tribunal is a procedural due process right). We conclude that even if Baltarzuk's behavior deprived plaintiffs of due process, plaintiffs had an adequate postdeprivation remedy under State law and, therefore, § 1983 was not violated.

Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) 2 involved a claim by a Nebraska inmate that prison officials negligently lost a hobby kit he had ordered by mail. Plaintiff contended that he had been deprived of his property without due process of law in violation of § 1983. The district court's judgment in plaintiff's favor was affirmed by the United States Court of Appeals.

The Supreme Court rejected Nebraska's contention that only an intentional deprivation of property would support a § 1983 claim. The Court focused on whether plaintiff had "suffered a deprivation of property without due process of law. In particular, we must decide whether the tort remedies which the State of Nebraska provides as a means of redress for property deprivations satisfy the requirements of procedural due process." Id. at 537, 101 S.Ct. at 1914, 68 L.Ed.2d at 430.

In resolving this issue, the Court noted that deprivation of a property or liberty interest pursuant to an established state procedure usually has required a predeprivation hearing. See Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Mullane v. Central Hanover Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). The Court, however, also observed that in some circumstances the availability of a postdeprivation remedy can satisfy the Due Process Clause. Parratt, supra, 451 U.S. at 538, 101 S.Ct. at 1914, 68 L.Ed.2d at 430-31. See Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088 (1950) (summary seizure and destruction of drugs); Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030 (1947) (immediate seizure of property in light of substantial question regarding the competence of a bank's officers); North America Cold Storage Co. v. Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (1908) (seizure and destruction of unwholesome food without a prior hearing). The Court noted that, in these cases, exigency or "the impracticality of providing any meaningful predeprivation process can, when coupled with the availability of some meaningful" postdeprivation review satisfy the requirement of procedural due process. Parratt, supra, 451 U.S. at 539, 101 S.Ct. at 1915, 68 L.Ed.2d at 431.

Presaging its ruling on plaintiff-inmate's claim, and in terms peculiarly applicable to the present case, the Court stated:

The justifications which we have found sufficient to uphold takings of property without any predeprivation process are applicable to a situation such as the present one involving a tortious loss of a prisoner's property as a result of a random and unauthorized act by a state employee. In such a case, the loss is not a result of some established state procedure and the State cannot predict precisely when the loss will occur. It is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place. The loss of property, although attributable to the State as action under "color of law," is in almost all cases beyond the control of the State. Indeed, in most cases it is not only impracticable, but impossible to provide a meaningful hearing before the deprivation. That does not mean, of course, that the State can take property without providing a meaningful postdeprivation hearing. The prior cases which have excused the prior-hearing requirement have rested in part on the availability of some meaningful opportunity subsequent to the initial taking for a determination of rights and liabilities.

[Id. at 541, 101 S.Ct. at 1916, 68 L.Ed.2d at 432.]

Applying those principles, the Court concluded that the inmate did not state a valid claim under § 1983 because the deprivation resulted from an unauthorized failure of corrections officials to follow established state procedure, and Nebraska provided a postdeprivation remedy under its tort claims procedure. Id. at 543, 101 S.Ct. at 1917, 68 L.Ed.2d at 434.

In Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the Court reaffirmed Parratt and extended it to an intentional deprivation of property. The Court stated:

While Parratt is necessarily limited by its facts to negligent deprivations of property, it is evident, as the Court of Appeals recognized, that its reasoning applies as well to intentional deprivations of property. The underlying rationale of Parratt is that when deprivations of property are effected through random and unauthorized conduct of a state employee, predeprivation procedures are simply 'impracticable' since the state cannot know when such deprivations will occur. We can discern no logical distinction between negligent and intentional deprivations of property insofar as the 'practicability' of affording predeprivation process is concerned. The state can no more anticipate and control in advance the random and unauthorized intentional conduct of its employees than it can anticipate similar negligent conduct.

[Id. at 533, 104 S.Ct. at 3203, 82 L.Ed.2d at 407.]

The Court refined the application of Parratt-Hudson principles in Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). Plaintiff, Burch, had executed required documents admitting him to a Florida hospital for treatment of mental illness. Under Florida statutes, a person may be admitted as a voluntary patient based on his " '[e]xpress and informed consent' " which is defined as " 'consent voluntarily given in writing after sufficient explanation and disclosure ... to enable the person ... to make a knowing and willful decision.' " Id. at 123, 110 S.Ct. at 982, 108 L.Ed.2d at 112. Burch was admitted as a voluntary patient though his condition and behavior on admission could have supported an inference that he was not competent to make a knowing and willful decision regarding admission. He also executed consents to treatment. Burch remained at the hospital for five months, and during that time no hearing was held regarding his status.

Burch commenced an action under § 1983, alleging a deprivation of liberty without procedural due process, i.e., the procedural safeguards available under Florida law utilized in cases of involuntary commitments. The district court dismissed the complaint for failure to state a claim, and the United States Court of Appeals reversed. The issue was whether the Parratt holding, that the availability of a postdeprivation remedy satisfied due process, applied to Burch's claim.

The Supreme Court rejected Burch's contention that Parratt applied only to deprivations of property. The Court ruled that the involvement of a...

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4 cases
  • Rivkin v. Dover Tp. Rent Leveling Bd.
    • United States
    • New Jersey Supreme Court
    • 29 Febrero 1996
  • Waters v. Township of Galloway
    • United States
    • New Jersey Superior Court — Appellate Division
    • 27 Diciembre 1995
    ... ... See Rivkin v. Dover Tp. Rent Leveling Bd., 277 N.J.Super. 559, 569-70, 649 A.2d 1356 ... ...
  • State v. Smith
    • United States
    • New Jersey Superior Court
    • 25 Julio 1996
    ... ... v. Rent Leveling Bd. of Parsippany-Troy Hills Township, 194 N.J.Super. 34, 49, 476 ... Sherman's, Inc., 92 N.J. 114, 455 A.2d 1102 (1983); Rivkin v. Dover Township Rent Leveling, 277 N.J.Super. 559, 649 A.2d 1356 ... ...
  • Rivkin v. Dover Tp. Rent Leveling Bd., C-621
    • United States
    • New Jersey Supreme Court
    • 8 Marzo 1995

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