Romano v. Kimmelman

• Decision Date: 27 July 1983
• Citation: 190 N.J.Super. 554,464 A.2d 1170
• Parties: William ROMANO, Raymond Akersten, Donald Hand, Lawrence O'Brien, Bruce Decher, Joseph Amato, and Richard Stropolli, Plaintiffs-Appellants, Cross-Respondents, v. Irwin I. KIMMELMAN, in his official capacity as the Attorney General of the State of New Jersey; Clinton Pagano, in his official capacity as Colonel of the New Jersey State Police and the State of New Jersey, Defendants-Respondents, Cross-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 554

190 N.J.Super. 554

464 A.2d 1170

William ROMANO, Raymond Akersten, Donald Hand, Lawrence O'Brien, Bruce Decher, Joseph Amato, and Richard Stropolli, Plaintiffs-Appellants Cross-Respondents, v. Irwin I. KIMMELMAN, in his official capacity as the Attorney General of the State of New Jersey; Clinton Pagano, in his official capacity as Colonel of the New Jersey State Police and the State of New Jersey, Defendants-Respondents, Cross-Appellants.

Superior Court of New Jersey Appellate Division.

Argued July 18, 1983.

Decided July 27, 1983.

Francis X. Moore, Red Bank, and John J. McDermott, Tinton Falls, for plaintiffs-appellants, cross-respondents (Francis X. Moore, Red Bank and Thomas J. Smith, West Long Branch, attorneys and on the brief).

Boris Moczula, Deputy Atty. Gen., for defendants-respondents, cross-appellants (Irwin I. Kimmelman, Atty. Gen. attorney; Boris Moczula, Deputy Atty. Gen., of counsel and on the brief).

Before Judges POLOW, FRANCIS and McELROY.

The opinion of the court was delivered by

POLOW, P.J.A.D.

The seven plaintiffs, all charged with operating motor vehicles while under the influence of intoxicating liquor in violation of N.J.S.A. 39:4-50, instituted this action in the Superior Court alleging that use of "the Breathalyzer 900 and 900A by the State" deprives them and all others similarly situated of due process rights under the United States Constitution and of "rights, privileges and immunities secured by 42 U.S.C. § 1983." Thus, for themselves and all others similarly situated, plaintiffs demand an injunction against use of Smith and Wesson's Breathalyzer 900 and 900A test results as evidence in drunk driving proceedings, an injunction against further use of the designated breathalyzer models by law enforcement personnel, a On April 26, 1983 the trial judge signed an order temporarily restraining introduction of breathalyzer model 900 and 900A test results in all cases unless the State could show compliance with current recommendations of the manufacturer, Smith and Wesson, in its September 10, 1982 Consumer Advisory or any changes thereof. Plaintiffs' motions for certification of the suit as a class action and for summary judgment were denied but a hearing was ordered for the purpose of receiving evidence including expert testimony on the reliability of the breathalyzer. The trial judge anticipated that a Superior Court determination made following such a hearing would then be subject to appellate review. Defendants' motions to dismiss the complaint and for adjournment of the hearing date were denied. Before the scheduled hearing could be conducted, both sides sought and were granted leave to appeal. ¹

blanket order providing for new trials for plaintiffs and all persons previously convicted after trial or upon guilty plea in cases in which the designated breathalyzer models were used, and a prohibition against use of any prior conviction based upon such breathalyzer test results in determining second or subsequent offender status.

On this appeal, plaintiffs challenge as reversible error the denial of certification of the suit as a class action and the refusal to apply collateral estoppel against the State based upon a prior municipal court determination, not involving these plaintiffs, that the breathalyzer models in question are unreliable. ²

Although the trial judge in the action which is the subject of this appeal dismissed the complaint as against the State, ³ defendants urge that the complaint should also have been dismissed as against the Attorney General and the Superintendent of the State Police because they are not "persons" within the meaning of 42 U.S.C.A. § 1983, (herein § 1983), there is no allegation of bad faith, plaintiffs have not been deprived of their due process rights and they have not demonstrated irreparable harm nor lack of an adequate remedy at law. We conclude that the complaint does not establish a right to relief under § 1983, there is an adequate remedy at law for plaintiffs and others similarly situated and the doctrine of collateral estoppel is not applicable to give a binding effect upon other courts of this State to the municipal court determination in the Lopat case.

Plaintiffs' collateral estoppel argument is that the State, having participated in the Lopat hearing, may not relitigate the breathalyzer reliability issue already ruled upon by a municipal court judge although no Lopat defendants are parties to this action. The record of the Lopat municipal court hearing has not been reproduced on this appeal. The oral opinion of the municipal court judge indicates that the Lopat defendants, all of whom had breathalyzer readings exceeding .10%, challenged the admissibility of those readings and the Attorney General intervened and represented the State pursuant to N.J.S.A. 52:17B-1 et seq. in the preliminary hearings dealing with the reliability of the breathalyzer test results. After extended hearings the municipal court judge, on April 6, 1983, rendered his oral opinion holding the breathalyzer readings unreliable and inadmissible. He found that Smith and Wesson Breathalyzer Models 900 and 900A had been authorized by the Administrative Code as breath testing instruments in June 1982 despite indications that certain radio equipment including walkie-talkies and other communication

                devices produced interference with the operation of those machines.  The judge found Smith and Wesson knew the problem and in September 1982 issued its customer advisory indicating that recent tests of the two designated models showed susceptibility to radio interference.  Certain guidelines were recommended therein "as a matter of preparedness for courtroom testimony."   It appears that the municipal court judge heard expert testimony and observed breathalyzer testing upon which he concluded that the breathalyzer test results were so unreliable as to be inadmissible against any of the Lopat defendants.  Although given the opportunity to do so, the Attorney General did not seek leave to appeal from that preliminary determination.  The record on this appeal does not reveal the ultimate disposition, if any, of the drunk driving charges against any of the Lopat defendants
                

The Demand For Class Action Certification

Plaintiffs propose recognition of various groups of persons for class action certification pursuant to R. 4:32-1 et seq. They suggest one group consisting of all persons convicted after trial in this State in proceedings involving use of breathalyzer models 900 or 900A within the two year period before the issuance of Smith and Wesson's Customer Advisory, a second group consisting of persons convicted more than two years before that date, a third group consisting of all persons who entered guilty pleas in reliance on breathalyzer 900 or 900A readings, and a fourth group consisting of all persons presently awaiting trial on drunk driving charges involving the use of the designated machines.

We are fully satisfied that certification of this suit as a class action would be totally inappropriate. Although a large number of individual defendants may seek to attack the reliability of the designated breathalyzer models, we agree with the trial judge's rationale in rejecting plaintiffs' class action argument. With regard to those proposed groups consisting of persons previously convicted, each application for a new trial based upon allegedly Furthermore, applications on behalf of those previously convicted are in the nature of motions for post-conviction relief. In re Petition of Carlos Santiago, 104 N.J.Super. 110, 248 A.2d 701 (Law Div.1968), aff'd o.b. 107 N.J.Super. 243, 258 A.2d 31 (App.Div.1969) held that

"newly discovered evidence" must be decided on its own merits. The factual basis for each drunk driving conviction, the degree of reliance on breathalyzer readings, the precautions taken to assure reliability, and many other factors will vary with each set of circumstances. [464 A.2d 1174] As to those who have charges pending, the tests and safeguards employed to assure breathalyzer reliability in current prosecutions will also vary from case to case and from municipality to municipality. ⁴ No judicial determination concerning the general reliability of breathalyzer testing or the safeguards required in using the machine can provide a blanket formula for relief to all members of the separate groups identified by plaintiffs as prospective classes. Ultimately, certification as a class action would unduly complicate the claims and issues but could not provide the vehicle for individual relief in cases so varied by way of factual and procedural circumstances.

... 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 action were habeas corpus, N.J.S. 2A:67-1 et seq., 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 of record or those who intervene and become parties to the action. [Citation omitted].

Furthermore, it has been the general rule that several applicants cannot even join in one petition for writ of habeas corpus. [Citation omitted.] 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. [Citations omitted.] [104 N.J.Super. at 115-116, 248 A.2d 701].

Thus we conclude there is no basis for class action designation for those...