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New Jersey Home Builders Association v. Division on Civil Rights

Decided: November 13, 1963.

NEW JERSEY HOME BUILDERS ASSOCIATION, A CORPORATION, NEW JERSEY ASSOCIATION OF REAL ESTATE BOARDS, A CORPORATION, AND JOSEPH V. MONTORO, PLAINTIFFS,
v.
DIVISION ON CIVIL RIGHTS IN THE DEPARTMENT OF EDUCATION OF THE STATE OF NEW JERSEY, DEFENDANT



Wick, J.s.c.

Wick

This is a suit wherein plaintiffs New Jersey Home Builders Association, New Jersey Association of Real Estate Boards and Joseph Montoro seek by declaratory judgment to invalidate certain portions of the Law Against Discrimination (N.J.S.A. 18:25-1 et seq).

The New Jersey Home Builders Association is a nonprofit corporation of the State of New Jersey. Its membership is comprised of persons, partnerships, associations and corporations of this State engaged in the business of home building. It was formed for the purpose of representing the home builders industry for "mutual advantage and cooperation." The New Jersey Association of Real Estate Boards, a coplaintiff, is also a nonprofit association whose membership is composed of most of the real estate brokers and many real estate salesmen licensed to do business in the State of New Jersey. The individual coplaintiff, Montoro, is engaged in the business of building dwellings and other structures. He is also a licensed

real estate broker, with licensed salesmen in his employ at his place of business in Pleasantville, Atlantic County, New Jersey. Montoro is a member of the New Jersey Home Builders Association, a coplaintiff in this action.

The Law Against Discrimination (N.J.S.A. 18:25-1 et seq.) requires that all persons shall have an equal opportunity to obtain all the advantages of

"* * * publicly assisted housing accommodation, and other real property without discrimination * * * subject only to conditions and limitations applicable alike to all persons. This opportunity is recognized as and declared to be a civil right." (N.J.S.A. 18:25-4; emphasis added)

It is an unlawful discrimination for an owner, real estate broker, real estate salesman, or their agents or employees to refuse to sell, rent, lease, assign or sublease, or otherwise to deny to or withhold from any person or group of persons, any real property or land or part or portion thereof because of race, creed, color, national origin or ancestry of such person or group of persons. N.J.S.A. 18:25-12(g) and (h).

The law covers these classifications of properties:

(1) All publicly assisted housing accommodations. This category includes housing erected with public funds or assistance pursuant to certain State laws enumerated in N.J.S.A. 18:25-5(k) and

"* * * all housing financed in whole or in part by a loan, whether or not secured by a mortgage, the repayment of which is guaranteed or insured by the Federal Government or any agency thereof." (N.J.S.A. 18:25-5(k))

(2) All vacant lands. N.J.S.A. 18:25-5(l).

(3) All multiple dwellings containing accommodations for more than four families, regardless of the type of financing. N.J.S.A. 18:25-5(l)(1).

(4) All three-family dwellings where one of the units or apartments is not "maintained by the owner at the time of sale or rental as the household of his family." N.J.S.A. 18:25-5(l)(1).

An exception from the operative provisions of the law exists if the dwelling is not subject to any indebtedness "the repayment of which is guaranteed or insured by the Federal Government or any agency thereof." N.J.S.A. 18:25-5(k), if it is in one of the following classes:

(1) All one and two-family dwellings

"except, however * * * when they are part of a group of 10 or more dwelling houses constructed or to be constructed * * * (exclusive of public streets) and are offered for sale or rental by a person who owns or has owned or otherwise controls or has controlled the sale or rental of such group of dwelling houses." N.J.S.A. 18:25-5(l)(2).

(2) All three-family dwellings where one unit or apartment is

"maintained by the owner at the time of sale or rental as the household of his family." N.J.S.A. 18:25-5(l)(1).

The Law Against Discrimination is based on the express legislative finding that discrimination is a threat to the rights and privileges of the inhabitants of the State and is a menace to free democracy. N.J.S.A. 18:25-3.

If the State Commissioner of Education finds (in accordance with the statute) an act of discrimination by a person subject to the provisions of the statute, he has the power to serve an order on the respondent requiring him to cease and desist from further action in violation of the law. N.J.S.A. 18:25-17. Upon a failure of the respondent to comply therewith, enforcement must be sought through the courts. N.J.S.A. 18:25-19 and 21.

The complaint sets forth six objectionable features of N.J.S.A. 18:25-1 et seq.:

(1) The Commissioner of Education is authorized to compel a home owner, under pain of fine or imprisonment, to sell or rent his home to a person without discrimination solely because the home is financed in whole or in part by a loan, whether or not secured by a mortgage, the repayment of which

is guaranteed or insured by the Federal Government or any agency thereof.

(2) Home owners not having such loans, and not otherwise obligated to the Federal Government, are accorded special immunities and privileges not accorded to home owners having such loans. The allegation in regard to this matter is that the result is arbitrary and invidious discrimination.

(3) This invasion amounts to the taking of private property for private use.

(4) The statute constituted an invasion of the fundamental rights of man.

(5) The classification is discriminatory in result because it is unreasonable, arbitrary and capricious and bears no relationship to the police power or the purposes sought to be attained by the enactment.

(6) The act is not within the public domain under the definition found in N.J.S.A. 18:25-5(k), in that it is violative of man's inalienable rights to property.

For these reasons it is alleged that the exceptions embodied in N.J.S.A. 18:25-5(l) also render the classification arbitrary, unreasonable and discriminatory and constitute an invasion of the fundamental rights of man, all in violation of the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution.

Further, it is alleged that the Law Against Discrimination, N.J.S.A. 18:25-1 et seq. , insofar as it authorizes the Commissioner to compel builders, real estate brokers, real estate salesmen, or their employees and agents, to sell and/or build a dwelling, creates an involuntary servitude or a form of peonage, in violation of the Thirteenth Amendment of the Federal Constitution and of several federal statutes.

I.

The plaintiffs prosecute this action under N.J.S. 2A:16-53 of the Declaratory Judgments Law. The preliminary procedural requirement is a determination that a real controversy be found to exist. Lucky Calendar Co. v. Cohen ,

20 N.J. 451 (1956). The court should not "decide or declare the rights or status of parties upon a state of facts which is future, contingent, and uncertain." Tanner v. Boynton Lumber Co. , 98 N.J. Eq. 85, 89 (Ch. 1925).

The Declaratory Judgments Law (N.J.S. 2A:16-50 et seq.) is expressly declared to be remedial in nature. N.J.S. 2A:16-51. Its mandate is to afford relief from uncertainty with respect to a person's rights -- "person" including partnerships, unincorporated associations and corporations. N.J.S. 2A:16-50. It is incumbent on the court to liberally construe and administer the law in order to effectuate this general purpose. N.J.S. 2A:16-51; Central Hofbrau Corp. v. 200 ...


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