Civil action in lieu of prerogative writ. On motion for summary judgment.
By these actions in lieu of the former prerogative writ of certiorari , several groups of taxpayers complain of the action of the Essex County Board of Taxation in revising assessments upon their respective properties for the tax year 1952, such action purporting to have been taken under sections of the statute vesting in the county board of taxation supervisory control for the purpose of examining, correcting, equalizing and revising assessments as first determined by the local assessors and listed and filed with it.*fn1
Since these assessments are so subject to control by the county board, and since the collectors of the municipalities are bound by the corrections made in the assessment lists, final assessments responsive to the action of the county board herein complained of have been effected, and the respective municipalities have been joined with the county board as defendants. Assessments levied on property in the first instance by the assessors are not complete until the county board certifies the assessor's duplicate to the tax collector. Middletown v. Ivins , 102 N.J.L. 36 (Sup. Ct. 1925); Hackensack Water Co. v. Division of Tax Appeals , 2 N.J. 157 (1949).
In the several complaints essentially similar charges are made of illegality of the action of the county board, and unjust, unlawful and unconstitutional discrimination against
the taxpayers by the assessments revision so ordered. Before issue was joined on these allegations the complaint basic to the litigation, that filed in the case first above captioned, survived a motion to dismiss on the ground that the Law Division lacked jurisdiction (Baldwin Const. Co. v. Essex County Bd. of Taxation , 21 N.J. Super. 370 (Law Div. 1952)).
Defendants having answered in defense of the action complained of, now move for summary judgment on the pleadings, contending that the complaint evidences not only lack of jurisdiction in the court, but that any jurisdiction which may exist in the premises should not be exercised in view of the failure of the plaintiffs to exhaust administrative remedies available to them by appeal from the assessments to the county board*fn2 and thence to the Division of Tax Appeals,*fn3 the legislative scheme being to provide a review of assessed valuations first in the county board of taxation and secondly in the Division of Tax Appeals. Hackensack Water Co. v. Division of Tax Appeals, supra.
The exhaustion of such remedies is indeed required before proceedings in lieu of prerogative writ are maintainable, "except where it is manifest that the interests of justice require otherwise." (Rule 3:81-14) Plaintiffs insist on grounds to be noticed hereafter that they are not, on the basis of the pattern of grievance and claim for relief reflected in their complaints, remitted to exhaustion of such remedies.
From the judgment on appeal of the Division of Tax Appeals, an appeal goes to the Appellate Division of the Superior Court, by force of Rule 3:81-8. Such is the usual course of appeal litigation envisaged in the present practice, from the original assessment of the tax to the scrutiny of the appellate courts.
The defendants further suggest on the instant motion that since the county board is a state administrative agency (Warren v. Hudson County , 135 N.J.L. 178 (E. & A. 1946)), and since plaintiffs characterize the assessments revision of the county board as an "order" and an "action" of finality, at least in the light of its immediate and allegedly unconstitutional infringement of their property rights, the matters complained of constitute a "final decision or action" of such board, subject to review on direct appeal to the Appellate Division under Rule 3:81-8, supra , and that, accordingly, intervention by the Law Division in lieu of certiorari is inadmissible.
Before reviewing the complaint in appraisal of its sufficiency to invoke the questioned jurisdiction of the court, it should be noticed that plaintiffs contend, in view of the identity of substance in the grounds urged in support of the instant motion and of that disposed of by the Law Division (Baldwin Const. Co. v. Essex County Bd. of Taxation, supra), that such conclusion, as the "law of the case," is dispositive and binding on the court at present. There is considerable force to this argument for it must be conceded that the principal clash of view on that motion involved, as here, the impact of the rule of exhaustion of remedies on the asserted jurisdiction of the court. The adequacy of the complaint was there examined to assess the manifest requirements of the interests of justice under Rule 3:81-14, supra. I do not believe defendants suggested there, at least with emphasis, the availability of direct appeal under Rule 3:81-8, supra , to the Appellate Division. Nor had there been then the joinder of factual issue, regarded by defendants at this juncture as significant on the question of "whether or not
the matter is ripe, as a matter of policy, for judicial determination." Nolan v. Fitzpatrick , 9 N.J. 477 (1952). Moreover, new parties have come in, and although their interests and contentions reflect no widening of the issues then submitted, they were not heard thereon at that time. On the whole, and although I find myself in basic accord with the views of the learned judge who decided that motion, I feel that my decision should rest, independently thereof, on the broad merits of the motion now before me, which will have the incidental effect of entirety in determination, making complete review of my action available.
The complaints recount the progressive making of assessments in the statutory formula, in that assessments were made on plaintiffs' real, and in some instances their personal, property for the tax year 1952 by the local assessors and recorded in the statutory assessment lists and duplicates filed on or about January 10, 1952 with the county board; that such board met with the assessors, conformably to the statute, on January 25, 1952 for the purpose of equalizing assessments of real property as among the several districts, no business of consequence as concerning the instant assessments having been considered. The complaint alleges that on March 10, 1952, the county board by telephone instructed the assessors to refrain from completing their tax records because the county board was contemplating changes in certain assessments, and shortly thereafter the assessors received memoranda from the county board as to various changes. On March 20, 1952, the board issued an order purporting to correct and revise the tax lists of assessments and directing such changes in assessments to be made. The assessors, or certain of them, met again with the county board on a telegraphic summons from the board on March 24 and some of the assessors expressed disagreement with the order of the county board, and argued their reasons therefor, to the effect that the random ("picking out properties here and there") selection of properties for the increasing of assessments "resulted in unfair and arbitrary treatment of those
taxpayers and required them to pay an unfair share of the taxes of the municipality."
To a request that it disclose the basis for its changes in assessments, the county board demurred on the ground that such information was confidential, in which position, apparently, it could claim some justification, in view of the wide area of informational source approved by our courts in addition to the view and investigation directed by statute. N.J.S.A. 54:3-15; N.J.S.A. 54:4-47; Middletown v. Ivins, supra. These objections, however, are said to have elicited an admission by the county board president that limitations of time, information and funds for full investigation made it impossible for the board fully to comply with its statutory obligation of revision, correction and equalization of assessments; that accordingly, the board had undertaken a partial adjustment of some of the assessments. The possibility, even the probability, of error under these circumstances was conceded and the assessors were reminded that dissatisfied taxpayers had their remedy for correction of any such error.
The motion for summary judgment under Rule 3:56 searches the record of pleadings and pre-trial proofs for the real existence of a triable issue of material fact, for its granting depends upon a showing "palpably that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." On the other hand, the motion for judgment under Rule 3:12-3 (if made on purely legal grounds confined to the pleadings) measures the content of the complaint alone, to determine whether it fulfills the requirements of Rule 3:8-1 in setting forth a valid factual case entitling the pleader to relief. This motion discards legal conclusions, ambiguities of assertion and the like, and precipitates the material allegations of fact. This ...