Colon v. TedescoColon v. Tedesco
Mr. Michael S. Bokar, Deputy Attorney General, for defendants (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
HORN, A.J.S.C.
In this action in lieu of prerogative writs certain defendants move to dismiss the complaint for failure to state a claim upon which relief can be granted or, in the alternative, for summary judgment.
The complaint alleges that plaintiff Leonardo Colon is a migrant Puerto Rican farm worker who, in conjunction with
Insofar as this motion is concerned the complaint charges certain individuals in control of a migrant labor camp with permitting unsanitary conditions in their operation so that it constitutes a public nuisance. It charges defendants with a failure to act pursuant to law, to cause the conditions to be corrected or the camp disqualified and enjoined from operation.
The primary relief sought against the moving defendants is a judgment ordering them to initiate proceedings against the owning and operating individuals, pursuant to
The Attorney General, in behalf of defendants, contends that they are entitled to summary relief from this action for three reasons:
Second, there is nothing in the present case to justify invocation of the extraordinary power of the courts to compel the exercise of discretionary authority by public officials.
Third, plaintiffs lack standing to sеek the relief sought to prohibit the continued operation of the camp as a public nuisance.
I will deal with these points successively.
I — The Superior Court, Appellate Division, has exclusive jurisdiction to review the action or inaction of state administrative agencies or officers.
The State relies upon
Notwithstanding the language of
The first one is referred to in Baldwin Construction Co. v. Essex Cty. Bd. of Taxation, 27 N.J. Super. 240 (App. Div. 1953), rearg. den. 28 N.J. Super. 110 (App. Div. 1953), aff‘d 16 N.J. 329 (1954). There it was decided that
In the allocation of business between the Law Division and the Appellate Division, proceedings relating to an administrative body with authority confined to a single locality, in this case a county, should be brought in the Law Division even though the defendant may be classified for most purposes as an agency of the state. [at 242]
In Pfleger v. Dept. of Transportation, 98 N.J. Super. 386 (Ch. Div. 1967), Judge Lane had before him a motion to transfer an action to the Law Division. The complaint sought an injunction against defendants, consisting of the Department of Transportation of the State of New Jersey and others, to prevent them from proceeding with contemplated construction on a state highway. By leave of court the complaint was amended to add a prayer for relief in lieu of prerogative writs, to compel the Department of Transportation to institute condemnation proceedings under the Condemnation Act. Defendants joined in plaintiffs’ request for a transfer оf the action to the Law Division.
Judge Lane reviewed the applicable cases decided up to that time and came to the conclusion that because plaintiffs were seeking to review the refusal of a state administrative agency to condemn lands, they were required to proceed in the Appellate Division under the corresponding rule applicable at the time, R.R. 4:88-8.
He cited in his opinion Central R.R. Co. v. Neeld, 26 N.J. 172 (1958), cert. den. 357 U.S. 928, 78 S.Ct. 1373, 2 L.Ed.2d 1371 (1958), in which Justice Jacobs stated concerning this rule: “[T]hey contemplated that every proceeding to review the action or inaction of a * * * state administrative agency would be by appeal to the Appellate Division.” (at 184-185).
Judge Lane‘s decision wаs overruled by the Appellate Division in Pfleger v. N.J. State Highway Dept., 104 N.J. Super. 289 (1968), the court holding that the Law Division was the proper forum under the existing R.R. 4:88-8. This holding constitutes a second exception and includes the factual situation in the case at bar.
In Princeton First Aid v. Div. on Civil Rights, 124 N.J. Super. 150 (App. Div. 1973), plaintiffs filed a complaint in lieu of prerogative writs in the Law Division, alleging that they were not “subject to the law against discrimination” and that the Division on Civil Rights lacked jurisdiction over them to determine whether plaintiffs had violated the civil rights of one who had complained to the Division. The Division was granted leave to appeal from an order entered by the trial court granting the relief prayed for by plaintiffs.
The Appellate Division reversed, holding that it was not authorized to assume jurisdiction in the case under Pfleger v. N.J. State Highway Dept., supra. It distinguished Pfleger as follows:
* * * That case was an action in the nature of mandamus to compel the Department of Transportation to perform its ministerial duty to institute condemnation proceedings to determine the value of lands allegedly taken and damaged in the course of construction of a road. Enforcement of such a ministerial duty is within the jurisdiction of the Law Division.
Here, however, we are concerned not with a ministerial duty of a state agency but with the quasi-judicial duties of such an agency, the Division on Civil Rights, vested with jurisdiction to consider, hear and determine complaints alleging violations of the laws against discrimination.
It is reasonable to assume that
In such cases the record may from time to time require supplementation. This is contemplated as a possibility.
In the case at bar there has been no adversary type of proceeding in the Department of Labor and Industry. There is no provision for same. This is not a quasi-judicial matter before said Department. No intramural record of any kind has been made. The Appellate Division cannot obtain a record to review, absent a plenary hearing before a judge. Plaintiffs seek the performance of ministerial duties.
Accordingly, I conclude that this court does have jurisdiction of this action.
II — Right of this court to compel state agency and officials to take action against owners and operators of the migrant labor camр.
The Seasonal Farm Labor Act is one of several state statutes designed to aid and protect seasonal and migrant farm
The act also mandates the Department of Labor and Industry to revoke a certificate of compliance whenever it is found that a camp for which a certificate has been issued no longer complies with the requirements of the act.
Defendants maintain that plaintiffs are asking this court to compel officials of a coequal branch of State Government to perform a discretionary act and, beyond that, to рerform it in a specified manner. They urge that under these circumstances a court will not interfere with the discretionary power of public agencies unless there has been a plain and palpable abuse of discretion; that a mere difference of opinion is not sufficient to justify the substitution of the court‘s discretion for that of the duly constituted authority vested by the Legislature. Mayor, etc., Elizabeth v. N.J. Turnpike Authority, 7 N.J. Super. 540, 545-546 (Ch. Div. 1950); Newark v. N.J. Turnpike Authority, 12 N.J. Super. 523, 527-528 (Ch. Div. 1951), aff‘d 7 N.J. 377 (1951).
* * * Unless the particular duty be peremptory, the fair exercise of judgment and discretion is the province of the functioning authority. The right of the relator and the public duty sought to be enforced must be both clear and certain.
In Reid Development Corp. v. Parsippany-Troy Hills Tp., 10 N.J. 229, 237 (1952), it was held that “Where there is an omission to do what the law сlearly and unmistakably directs as an absolute duty, mandamus is an appropriate remedy.”
In In re Senior Appeals Examiners, 60 N.J. 356 (1972), the Civil Service Commission, having made a final determination that compensation allocated to the title of Senior Appeals Examiner, Department of Labor and Industry, be increased by one range, contended that the administrative determination was beyond any judicial review. The court rejected this argument on the ground that there is nothing in the statute showing any intention to deprive the court of a review “for arbitrariness and abuse under traditional judicial doctrines” (at 367).
A fair reading of In re Senior Appeals Examiners, supra, as well as Monks v. N.J. State Parole Board, 58 N.J. 238 (1971), sustains the view declared in Switz, supra, to the effect that although the court would not overturn discretionary determinations upon the part of public officials in the absence оf clear abuse or arbitrariness, nevertheless it would guard its right to review such actions or inactions in order to compel such agencies or officials to exercise the discretion where required, rather than to frustrate those who at the least are entitled to the exercise of the discretion.
In the instant case the statute‘s language is mandatory, as already indicated. It may be that the defendants have performed in accordance with their obligations, but that has not been demonstrated. Plaintiffs are entitled to the aid of the court in ascertaining whether they have so
Without a hearing and the discovery to which plaintiffs may be entitled in advance of the hearing, there could be abuses which may never be discovered. Mandamus does not seek to interfere with or control the mode or manner of the exercise of discretion on the part of a state official or agency, or to influence or direct a particular result. It does lie to compel the exercise of such discretion.
III — Standing of plaintiffs.
The foundation of defendants’ claim that plaintiffs have no standing to maintain this action rests on assertions that only the Attorney General may enforce the provisions of the act and that plaintiffs suffer no special injury.
This is untenable. Apart from the fact that plaintiff Colon is a migrant farm worker whose interests the statute was enacted to protect, our courts have taken a liberal view with respect to who may seek relief where there has been alleged failure on the part of public officials to perform.
Defendants submit that since the statute,
If this be so, the failure of either the Attorney General or the Department to act responsibly would render the law a sterile declaration of public policy.
The mere fact that a nonconforming camp is deemed a public nuisance does not foreclose plaintiffs from taking this action. Such nuisances are abatable not alone by the Attorney General but also by any individual who sustains
In Garrou the court sustained the right of a property owner to sue to enjoin private individuals from violating a zoning ordinance and for an order compelling defendant municipal officials to enfоrce such ordinance on a showing of special damages.
In United Stations of N.J. v. Kingsley, 99 N.J. Super. 574 (Ch. Div. 1968), aff‘d Del Spina v. Getty Oil Co., 54 N.J. 150 (1969), plaintiffs sought to enforce the provisions of
In the case at bar one of the plaintiffs is allegedly a migrant farm worker who asserts that he suffered from the failure to enforce the terms of the statute. He has been specially injured if he establishes the factual allegations of the complaint. Under the circumstances he has the requisite standing to maintain the action.
Accordingly, the motion is denied.