*1 IV аppeal, no constructive disposition of this In of the Court’s view conclusion by expressing a definitive be served purpose would agreement and its effect on the validity of the about approv- and subdivision zoning ordinance amendment subsequent zoning Nevertheless, municipal planning and reviewing al. contemplate applications that concerning development decisions prescribed purpose local relevant by developer for a payments vigilant that such must be to insure application, courts that have the constitute unlawful exactions payments do not process contemplated the meritorious review capacity to subvert scrupulously Similаrly, municipal must be officials the MLUL. approvals imposition of conditions careful to avoid the that, acceptable though to the development applications even imposed without their consent. such applicants, could not be im- developer’s acquiescence to the conditions circumstances the reality, improper municipality may, in constitute an posed by the municipality’s action on the impermissibly taints the incentive thereby principle development undermines application, objective impartial development applications review the MLUL is intended to assure. join opinion. HANDLER and O’HERN this
Justices
Christopher Carey argued respondent (Tomp- J. the cause for kins, Wachenfeld, attorneys; Carey Mary McGwire & Mr. brief). McConeghy, Ann on the opinion the Court was delivered GARIBALDI, J. presented
The central issue in this case is whether a medical hearing resident regarding is entitled to counsel at an internal private hospital’s academic from a residency program. termination reporter may We also decide whether court transcribe such proceedings. We hold that a medical resident does not have the private hearing to counsel at a and that not does have to transcribed.
I Plaintiff, Allyn Hernandez, Dr. graduate of the Universidad (also School, Central Del Caribe Medical was a medical resident staff’) known as “house pursuing post-graduate training in the Residency Internal Program Medicine Hospital, Overlook private Summit, non-profit in hospital Jersey. Program New years consists of three of training supervision under the of a Director, Program Program Director, Associate at- various tending physicians staff, from the medical and the resi- dents, including Program the Chief Resident. The is accredited and reviewed the Accreditation for Council Graduate Medical (ACGME). Education contract,
By a resident is to remain Program entitled in the so long as or his her services “satisfactory” by are deemed Program Hospital. Director and the expressly pro- contract vides that may appointment Overlook terminate the resident’s “for just and sufficient academic cause.” The contract also states may Employee terminated resident use Appeal Procedure as outlined in the House Staff Manual. second-year into a
Plaintiff was a resident when she entered one-year appointment with for to the written contract Overlook 1,1994, July hospital’s through “House for the term of June Staff” resident, second-year plaintiffs practice 1995. As a very medicine was restricted. She was not a member of the staff, discharge patients, medical could not admit or and could not prescribе drugs out-patients signature li- without the physician. censed in
Plaintiff was terminated for academic reasons October 1994. report prepared by A it the Chief Resident stated that was the opinion plaintiff judgment Chief Resident’s lacked the clinical resident, necessary second-year adequate for a failed offer interns, difficulty leadership guidance or to her and had professionalism dealing and decorum when with other staff mem- bers. The Chief Resident addressed various incidents where also plaintiff improperly diagnosed patients. treated addition, Director, Bernstein, M.D., Program
In Michael plaintiff previously stated that had been counseled about performance, improve in her deficiencies but failed to fact, satisfactory level. had been rotated into the 1, 1994, July than as a medicine service on as an intern rather assessment, supervisor in clinical deci- because her weakness in sionmaking, follow-up. Dr. Bernstein states that judgment, exercise of his academic he terminated Dr. Hernandez performance because she was deficient her academic several areas, including diagnosis development. and academic termination,
Following plaintiff, pursuant to the contract for employment, Employee Appeal Procedure set forth invoked the *4 residents, who are the House Staff Manual. The Manual allows reasons, challenge Progrаm to the Di- terminated for academic judgment grounds that the academic rector’s decision arbitrary, capricious, prejudicial judgment or a not based on Appeal Board consists of a Pro- documented evaluations. The gram than resident’s Director and Director other the terminated The Department of the of Medical Education. the Chairman Appeal binding Board’s is determination final and on both the Hospital and the terminated resident. plaintiff by Appeal
Overlook letter meet- notified that Board ing January was scheduled on 1995. Plaintiff demanded attorney appear permitted participate pro- be to and in the ceedings. documents, Plaintiff also demanded that various includ- records, ing patient be attorney. disclosed to her and her Over- requests. look both denied following justify
Overlook offered reason to its to decision hearing: exclude counsel from the academic termination to intended a medical Appeal’s procedure provide review by experienced Program judgment. legal Director’s academic It physicians is not proceed- (either resident) ing and, therefore, no or the attorney will meeting to or attend the permitted Board. participate Appeal she, plaintiff only counsel, also Overlook advised and not could patient review certain relevant documents files at least days prior five hearing. Hospital to the reached this decision policy maintaining because of its confidentiality strict patient’s records.
Nevertheless, legal proceedings in an effort to avoid and settle dispute with plaintiff, subsequently Overlook agreed permit to plaintiffs hearing, provide counsel to attend the to advice to plaintiff, and opening closing to make brief statements. authority Plaintiffs given counsel was also to review relevant documents, with exception patient records. Overlook re- fused, however, plaintiffs present to allow counsel to evidence reporter a shorthand proceedings. to transcribe permitted Overlook’s would present сounsel also be to a brief opening closing statement the Board.
Plaintiff, letter, rejected offer, insisting Overlook’s on the presence of and a reporter proceeding. counsel shorthand at the Plaintiff position also reasserted her that counsel should have Additionally, evidence on her behalf. prepare adequately her, claimed that charges against for the
73 patient records on which and her counsel needed to review the she primarily her termination was based. agreement, plaintiff sought in acceptable to reach an
Unable plaintiffs junctive trial court denied certain of re relief. The relief, quests injunctive but held that was entitled reprеsentation of counsel at the internal review of her dismiss N.J.Super. Hosp., 291 A.2d al. Hernandez v. Overlook (Ch.Div.1995). plaintiffs The trial court directed that counsel proceedings, offer permitted participate the termination data, behalf, explain plaintiffs adverse evidence proceedings arguments to the Board. The court also allowed the Appellate Division affirmed. to be transcribed. The employee appeals hearing August was held on 1995. An order, plaintiff and defendant were Pursuant to the trial court’s proceedings by a represented by counsel and the were transcribed plaintiff has reporter. A final decision to terminate shorthand argument, parties At both been rendered the Board. oral satisfactory compliance and in full agreed that the with the trial court’s order.
II
argument that the decisions below
We first address defendant’s
they ignore
principles of “exhaus
be reversed because
should
The doctrine of exhaustion of remedies re
tion of remedies.”
proceedings to
quires
parties pursue available internal
conclu
seeking judicial
v. Elizabeth
sion before
intervention. Garrow
549, 559,
Hosp. Dispensary, 79 N.J.
Ill
procedural protec
Although our courts have addressed the
fully-licensed practitioners
ap
tions owed to
when denied staff
Garrow,
549,
supra,
79 N.J.
pointments
privileges,
Residents, physicians, generally unlike licensed are considered subject residency requirements students to thе academic See, e.g., Mathog, 748, F.Supp. Mohammed v. program. 635 751 (E.D.Mich.1986) (“[a]s resident, plaintiff undeniably a was a stu dent, subject requirements program”); to the academic ... Rochester, Samper University 580, v. 139 Misc. 2d 528 N.Y.S.2d (“[T]he 958, (N.Y.Sup.Ct.1987) residency program 961 a was both job prerequisite goals and an educational to the career of the plaintiffs”). While staff members are licensed and accredited physicians, plaintiff only temporary permit, allowing held her to practice extremely medicine on an limited basis. term, University in re
Last
we faced similar
issues
Dentistry,
511,
Medicine &
144 N.J.
75 “public intern was a analysis by finding that the began our We provided Act Act and that the purposes of the employee” for the union right to have employees with the same Jersey public New (“Weingarten right”) investigations disciplinary at representation Act Labor Relations by Federal National contemplated as Weingar (citing NLRB v. J. (NLRA). 529-30, 721 Id. at (1975)). Inc., L.Ed.2d 171 95 S.Ct. ten U.S. Weingarten whether step, was to decide next freedom or contractu public policy of academic limited into agreement entered negotiating ally by a collective waived Id. A.2d 721. the union. UMDNJ and between circumstances, Act, most that the under Although we observed information with notice and provide the union required UMDNJ to recog- employees, we against initiating disciplinary actions when university teaching hospital involve[d] that “this case nized inability alleged student/employee for his deciding to terminate That standards. *7 in with medical patients accordance to treat might that freedom for academic triggers a concern situation 532, Act.” Id. at A.2d 721. in 677 rights provided temper the to interfere with not entitled that the union was found We that decisionmaking process and and medical academic UMDNJ’s academic for itself on right “to determine had the UMDNJ teach, may taught, how it shall be may what grounds who 533, A.2d Id. study.” at 677 may to be admitted taught, and who 263, 234, 354 U.S. 77 Sweezy Hampshire, New v. (quoting 721 (Frankfurter, J., (1957) 1311, 1217, 1203, 1332 1 L.Ed.2d S.Ct. “academic freedom” concept of summarized the concurring)). We Sweezy, supra, 354 U.S. in contemplated Frankfurter that Justice following in the 1 L. Ed.2d at 77 S.Ct. at at manner: in of its claim invokes support freedom that the university of academic
The concept
promoting
judiciary.
in
The
interest
privilege
to the
publiс
is not unfamiliar
of
function’ by
an essential social
higher
that “it
reflects the view
performs
education
knowledge through scholar-
promoting
of new
truth,
of
discovery
‘the pursuit
transmis-
teaching
general
and the
students,
of
and
development
and research,
ship
large.’
interest,
this
knowledge
learning
As a result of
to
society
sion of
though
a
[which]
not
‘[a]cademie freedom,
a
of
have developed
concept
courts
right,
long
enumerated
specifically
constitutional
has been viewed as a special
concern
the First Amendment.’
Rutgers,
(1988)
[Dixon v.
State Univ.,
110 N.J.
541 A.2d
432, 448,
(citations omitted).]
Univ.,
116, 121-22,
v. Rutgers
Accord Snitow
103 N.J.
In
University
Dentistry,
In re
supra,
Medicine &
we found
the union had “the
to notice and information about
discipline
may
pending
so that it
discipline
decide ...
that the
does indeed
judgment.”
involve an academic or medical
Id. at
536,
freedom over the predominates Act, and the union should representative leave to receive further expect no informa- tion.
[Ibid.]
case,
In
plaintiff
this
the decision to
solely
terminate
was based
performance.
on her academic
surrounding
circumstances
plaintiff’s
entirely
termination arose
out
as
status
a medical
participating
student
residency
program that was
designed
plaintiff
necessary
teach
the skills
fully-
to become a
physician. Thus,
licensed
Overlook’s dismissal of
any
indistinguishable from
other
pass
institutional decision to
fail a student for failure to
requirements.
meet academic
facts,
very
a ease based on
similar
the Minnesota Court of
*8
Appeals
a
reached
similar сonclusion.
University
Ross v.
of
Minnesota,
Ross,
77 reviewing University’s decision to termi- purpose For the of the reasons, the court found that the nate the resident for academic student, employee, University. an the Id. at was a not of resident gravamen fact that the finding was based on the 33. court’s must complaint “arose in the academic arena and of the resident’s concerning problem an academic a stu- therefore be considered dent.” Ibid. such, University’s pass as a or fail
As dismissal was viewed the ability to meet curriculum stan- decision based on the student’s of academic context of the Ibid. In consideration dards. decision, University’s expertise in the deferred court academic area. Ibid.
Assessing performance must be left to a student’s judgment institution. In re of the individual academic See sound 536, Dent., supra, at 721. University 144 N.J. Med. & of rendering frequently an involves process academic decision subjective ability to meet curriculum assessment of student’s academic, conducted standards. Those evaluations should be not legal, rather than environment because such decisions do process fact-finding of civil lend themselves to the traditional litigation.
IV briefly upon the trial court comment on the cases rеlied We support finding have a to counsel its that residents Despite findings, proceedings. trial court’s termination are proposition not stand for residents cited authorities do dismissal, type hearing prior but to an adversarial entitled place Those required procedure.” all is a “fair cases rather that is responsibility system to devise on the institution adequate charges and a provides the notice of resident heard; proceedings involving opportunity to be formal reasonable See, not, however, e.g., procedures required. Mau trial-like are (3d Dent., Cir.), cert. University Med. & 781 F.2d riello v. (1986) denied, (holding 107 S.Ct. 93 L.Ed.2d U.S. *9 78 adversary hearing,
resident not
to
requiring
entitled
full
but
notice
deficiencies,
evidence,
opportunity
of
to
opportunity
examine
heard);
v.
Hosp.,
Stretten Wadsworth Veterans
537 F.2d
361,
to be
(9th Cir.1976) (same);
Winkley,
v.
267,
Ezekial
369
20 Cal.3d
142
418,
32,
(1977)
Cal.Rptr.
(refraining
572 P.2d
from requiring
“rigid
proceedings”
procedure[s]”).
“formal
or
cases, primarily
staff-privileges
The other
relied on
support
right
of
discovery, recognize
the
to counsel and
that
rights
upon
concept
those
are founded
of
the
“fundamental
fair
ness,” arising
of
physician’s dependence
out
a licensed
staff
on
privileges
living
to earn a
right
and not based on a constitutional
Garrow,
process
to
supra, 79 N.J. at
566-68,
due
of law.
533; Zoneraich,
supra, 212 N.J.Super. at
91,
In
right
we
surgeon
addressed the
physician
discovery
to counsel and
at an
internal
concern
ing
hospital’s
a non-profit
physician’s
denial of the
staff appoint
ment. 79 N.J. at
that,
We also
applicant-physician’s
addressed an
right
to counsel
during
Id. hearing.
Although
A.2d 533.
we
recognized
potential
in allowing
presence
hazards
hearings,
held,
counsel at such
we
physician’s
“[i]n view of the
in proceedings
nature,
substantial
interest
physi-
this
...
cian
should have the
to have counsel
at mandated
hospital hearings
respect
application
to his [or her]
Ibid, (citations omitted).
admission
staff.”
appeal
Appellate
Division revisited Garrow
against
Hospital
regarding
physician’s action
Overlook
a licensed
Garrow,
Relying
privileges.
of her staff
for termination
Appellate
physician
held
“a
is entitled
fundamen
Division
*10
tally
procedures
non-profit hospital’s
in a
consideration оf staff
fair
Zoneraich,
91,
N.J.Super.
212
at
membership.”
supra,
Garrow,
compliance
The
in
further held that
panel,
53.
given by
any charges
proposed
of
or
notice must be
hearing
qualified right
to have counsel
action before the
and
discovery
in
Id.
engage
of relevant materials exists.
and
91,
at
Those are from they judgment. instant did not concern academic case because Here, Residency plaintiffs dismissal from the Internal Medicine only of Program Hospital involved issues academic at Overlook sought granted and judgment. by plaintiff relief and medical The ability Program Director’s the courts below would diminish deny judgment Appeal and Board the to exercise academic necеssary opportunity apply procedures that it deems residents. As appropriate performance attain levels of from its such, predominates be interest in academic freedom Overlook’s “appreciable sought by in an cause the will result relief judgment. In Appeal Board’s academic interference” with Cf. Dent., 534, 677 University Med. & 144 N.J. at A.2d 721. re of judge graduate of all, A after the best its students’ is, school professional and to master curriculum. academic their performance ability required rigid ... or the of rules would serve of attorneys [procedural] presence imposition notwithstanding of that the dismissal be may no useful question purpose, duration. permanent 98 S.Ct. n. [Board Horowitz, the Univ. Mo. v. 435 U.S. 85 Curators of 78, 2, of (1978) (quoting v. 55 L.Ed.2d Greenhill Bailey, 953 n. 132 n. 124, (8th Cir.1975)).] F.2d 5
V hearings legal If are transformed into termination academic legal procedures, involve the academic proceedings that litigious panel an adversarial and contest. would become acting longer reviewing doctors no as would academics medical decisions, judges, ruling legal they rather but as issues that are qualified procedure not trained or evaluate. The would become legalistic, expeditious complicated, consuming and time review judgments severely of academic would be hindered. addition, input attending physi- candid and evaluations from regarding cians per- and senior residents the residents’ acadеmic raising discouraged, formance could be concern residents may practical escape poor perfor- critical review of academic and mance. performing Those evaluations ensure residents are acceptable professionalism. competency levels of Without input, integrity program public such of the and the interest is at stake. recognized
As Justice O’Hern
his
concurrence
Dixon v.
Univ.,
(1988):
Rutgers,
The State
110 N.J.
We also that the Accreditation for Council Graduate Medical requirements Education’s current for resident’s contracts of in the procedures providing opportunity counsel includes guidelines, are termination. Those event resident’s providing only to “advice” to institutions residen- intended residents; training, organizations, to and to individual cy resident Furthermore, mandatory. devoid of they are not record is indicating adоpted guidelines any evidence Overlook those any representations plaintiff guidelines controlled made to that the in the event of an academic termination. plaintiffs unique doctor-in-training and status as a
Because ensuring only qualified considering strong public policy qualified, we both physicians public, serve the find that Overlook substantively pass judgment whether procedurally, and to programs. practice is fit in its To hold to medicine Program’s expertise great and to a otherwise not afford deference effect, would, autonomy in of such in this area threaten residents programs to determine the academic standards which educated, trained, judged. are to be Nevеrtheless, residents, have plaintiff, like an interest license, acquiring a other licensed residents have medical specialty. All becoming board in their resi interest certified income, preserving their earning have an dents interest must, therefore, reputations. guar professional Those institutions academically procedure.” a “fair antee an terminated resident procedure” right adequate notice of “fair includes the Such deficiencies, an of those opportunity examine evidence decision, its by the to make deficiencies used authority. decision-making a case to the Dentistry, 144 N.J. University supra, in In re Medicine and As bring may peer or other a resident also *12 hearing. рerson including professor a physician, a to the Such sympathetic a ear provide consult the resident and could However, during hearings. person not act as such could only great not advocate. Those mandates accord adversarial competence, judgment as to a resident’s weight to institution’s but also ensure that all of the relevant evidence is considered and protect against arbitrary capricious risk decisionmaking.
VI Finally, clearly the record plaintiff indicates that fully was aware of Overlook’s dissatisfaction with performance her academic and was afforded sufficient opportunity notice and an to be heard. Although pass judgment we nо plaintiff’s whether dismissal warranted, was we are satisfied that the decision to dismiss carefully deliberately rendered. judgment The Appellate of the Division is reversed. POLLOCK, J., dissenting. majority acknowledges that in a proceeding to terminate a
medical resident from residency for academic private reasons a must procedure. the resident with a fair Ante at 81-82, 692 According A.2d at 977. majority, to the the resident’s right to a fair right includes representation by a representative, union peer, physician, another professor. or a 76-82, Ante at 692A.2d at Contrary 974-977. rulings to the of the courts, however, lower majority denies the right resident the representation by counsel. I respectfully dissent. my opinion, fundamentally it is dеny unfair to a medical right resident the to counsel at proceeding to terminate his or residency. her conclusion, Consistent with that Chancery Division held “that a resident private terminated from a hospital’s residency program right has the to have counsel attend and introduce hospital hearing evidence at a concerning the resident’s 462, 473, termination.” 291 N.J.Super. (1995). 677 A.2d 811 Chancery Division further held that Dr. Hernandez had the expense reporter for a court to record hearing. Id. at 477, 677 Appellate A.2d 811. The Division holdings. affirmed both N.J.Super. 680A.2d 765 *13 counsel, majority denying Dr. Hernandez the In Hospital’s decision to terminate emphasizes that Overlook majority also only freedom. The residency involves unduly complicate lawyer emphasizes presence of a would disagree characteriza- hearing. I with both the conduct of the tions. training. residency part of a doctor’s
Admittedly, a is a critical significantly from the education that residency, differs A In two in medical school. the first a medical student receives school, they generally attend lectures as years of medical students years, During the last two graduate schools. would other Following graduation, ensuing resi- training clinical. is more “post-graduate training.” Dr. Hernan- dency described as is often Jersey State graduate to whom The New dez was a medical school residency training Examiners had issued Board of Medical permit. doctor, training it is nоt residency is to the
As critical as patients. care for solely exercise. Residents also an academic hospital during evening they in the are the doctors Often they hours, weekends, holidays. many hospitals, In and on arrest, arrhyth- cardiac respond patient emergencies such as charts, mia, sometimes bleeding. patients’ residents On fluids, medication, adjustments change make intervenous affecting Although these entries patient care. enter other orders the review often by attending physician, subject to review are the fact. occurs after Dr. Hernandez “could majority points that as a resident out drugs prescribe not for discharge patients, and could
not admit or
physician.” Ante
signature
out-patients
of a licensed
without
description
any
Missing
is
at 972.
from
perform.
could
acts that Dr. Hernandez
acknowledgment of the
letter that accom
Examiner’s
According to the Board of Medical
re
counter-signatures were not
permit,
panied Dr. Hernandez’s
permit
holder
orders written
quired
“[prescriptions
resident,
in-patient setting.”
super-
As
Dr. Hernandez
interns,
patients,
diagnoses.
vised
cared for
and made
patient
hospital,
To a
or visitor at a
a resident in his or her
sum,
indistinguishable
any
coat
physician.
white
from
other
*14
just
a resident is more than
a medical student. A
in a
resident
hospital
integral part
modern
is an
of the health-care team.
Hospital
sufficiently
Overlook
valuеd Dr. Hernandez’s services
$35,000.00
agree
pay
per year, grant
to
to
her
her four weeks
vacation,
professional liability
her with
and life insur-
residency
ance. To characterize the termination of her
as involv-
only
ing
reality.
academic freedom is to distort
Chancery
As
explained:
the
Division
program
[T]he effect of a resident’s
from a
[is]
termination
residency
substantially
being
similar to that of a
terminated from
staff.
In both cases
physician
hospital
affecting
the resident
as well as the
have tarnished records
their
physician
Such a termination would indeed
professional reputations.
the
adversely impact
being
program.
likelihood of the resident
into another
This
accepted
residency
prejudice
right
result would
the resident’s
to become
board certified and
licensed,
prejudicial
in his or her
area
the
practice
specialty.
information on
Similarly,
record
result in his or her denial of
physician’s
may
medical staff appointment
Having
stigma
being
at other
found that
hospitals.
effect and
of a resident
program
being
terminated from a
is
the same as a
residency
substantially
physician
granted
terminated from
it
that a
staff,
follows
resident should be
hospital
hearing
same fundamental
fairness at a
as is afforded a
in a
physician
proceeding.
termination
[ 291
at 473-74,
811.]
N.J.Super.
physicians possess
right
Licensed
hearings
to counsel at
hospital privileges.
terminatе their
Garrow v. Elizabeth Gen.
Hosp.
549, 566,
Dispensary,
(1979);
&
79 N.J.
terminate majority’s presence nothing to confirm the counsel’s did reveals lawyer presented no witnesses and did Dr. Hernandez’s fears. hospital’s presence, witnesses. His howev- not cross-examine the fair, er, proceeding an assurance assured her Hospital’s ultimate importance in view of the takes on added residency. to terminate her decision majority misgivings about its result. Without itself harbors be entitled to a explanation, recognizes it that a resident would *15 by were “motivated right to counsel if the resident’s termination cases, Rights. Civil such reasons which violated the resident’s proceeding would right to counsel at a resident’s termination rights protect appropriate to vindicate those substantive practices.” public discriminatory hiring and termination from Likewise, at 977. a resident would be Ante at faith or if “the dismissal was motivated bad entitled to counsel agree I performance.” Ibid. with ill-will unrelated to academic conclusions, at a presence of counsel but fail to see how the those any residency for such reasons would be proceeding to terminate a proceeding time-consuming complicated or than a termination less people, right performance. For some on the resident’s based important profession is as as civil to work or to continue right. Education of for Medical
The Accreditation Council Graduate a similar conclu- Medical Association has reached the American Agreement that the Resident sion. It recommends Guidelines for grievance procedures should Contracts that include “the to If profession resident counsel.” the medical recognizes that residents are entitled counsel termination proceedings, it ill highest behooves the court of this State to reach contrary conclusion. majority’s any does appreciation calculus not reveal for the inequality hospital of the contest between a and a resident. The hospital virtually including has limitless administra- resources — tors, physicians, lawyers disposal. its The resident stands —at Many alone. residents are burdened debt and other obli- gations. Their hospital status in relationship one dependence, of an superior authority. inferior to a
Traditionally, try playing courts assure level field for Here, judicial proceedings. contestants administrative and majority ignore inequality is content to between result, and the resident. To achieve this untoward majority exaggerated relies on notions of academic freedom misplaced lawyers fears about the proceed- conduct in such ings.
I judgment Appellate would affirm the of the Division. Justices join HANDLER and opinion. STEIN this PORITZ, For O’HEARN, reversal —Chief Justice and Justices GARIBALDI and COLEMAN —4. HANDLER,
For POLLOCK and affirmance —Justices STEIN —8.