Case Information

MARK BERNINGER AND CAROL BERNINGER, HIS WIFE, PLAINTIFFS-APPELLANTS, v. BOARD OF ADJUSTMENT OF THE BOROUGH OF MIDLAND PARK, MAYOR AND COUNCIL OF THE BOROUGH OF MIDLAND PARK, AND JOHANNA VOGEL, DEFENDANTS, AND ELIAS NOURY AND MARIE NOURY, HIS WIFE, DEFENDANTS-RESPONDENTS.

Superior Court of New Jersey, Appellate Division

March 18, 1992

603 A.2d 946 | 254 N.J. Super. 401

Argued January 22, 1992

Commentary (1971) at 270; Model Penal Code § 241.1 (1957), commentary at 124-26.

The result of the majority may be the better result, and if it is I regret the law that compels me to differ. It is a Constitution we are construing, however, and its meaning seems to me to be clear and beyond the power of this Court to expand, especially when to do so invalidates an otherwise perfectly legitimate exercise of legislative power.7

For reversal and remandment Justices CLIFFORD, POLLOCK, O'HERN, GARIBALDI and STEIN—5.

Chief Justice WILENTZ, dissents.

Justice HANDLER, not participating.

Argued January 22, 1992—Decided March 18, 1992.

William T. Smith argued the cause for appellants (Hook, Torack & Smith, attorneys).

John C. McGlade argued the cause for respondents (Lessack & McGlade, attorneys).

PER CURIAM.

The judgment is affirmed, substantially for the reasons expressed in the majority opinion of the Appellate Division, reported at 254 N.J.Super. 401, 603 A.2d 954 (1992).

O'HERN, Justice, dissenting.

I would reverse the judgment of the Law Division, substantially for the reasons expressed in Judge Gaulkin's concurring and dissenting opinion, reported at 254 N.J.Super. 401, 603 A.2d 954 (1992).

Footnotes

7 I reach no conclusion on the federal constitutional question. Defendant does not raise it, it is not within the scope of our grant of certification, the majority does not explicitly decide it, and it has not been fully briefed nor argued.