This is a complaint and order to show cause why a writ of habeas corpus should not issue on behalf of plaintiff Carlos Santiago, an inmate of the Hudson County Penitentiary. Plaintiff was sentenced by the Hoboken Municipal Court on June 13, 1968 for violation of N.J.S. 2 A:170-8 to a term of one year in the county penitentiary. His challenge to the legality of his confinement is based upon the alleged violation of his right to a jury trial, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. The argument is premised upon the theory that Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2 d 491, decided May 20, 1968 (prior to the plaintiff's conviction), vitiates the New Jersey practice of trying disorderly persons offenses without a jury. N.J.S. 2 A:8-21(d) authorizes the trial of Disorderly Persons Offenses in the municipal court before a municipal Magistrate. N.J.S. 2 A:169-4 provided a maximum sentence for conviction of such an offense of one year in the county penitentiary and a fine of $1,000.*fn1 Plaintiff also asserts that N.J.S. 2 A:170-8 is unconstitutional because its standard of proof is impermissively vague.
The court ordered that the Attorney General as well as the Hudson County Prosecutor be served with the complaint and order to show cause since there was a challenge to the constitutionality of a state statute.
The Attorney General appeared through his representative on the return date and advised the court that he did not wish to participate. Accordingly, the court granted his motion to withdraw from the action.
Although the complaint recites that plaintiff was found guilty in the municipal court, the prosecutor at oral argument
produced the record from that court which showed that a plea of guilty had been entered by plaintiff. Defense counsel then conceded for the purpose of the present argument that a plea of guilty had been entered. However, he contended that this did not affect the validity of the legal position he was advancing. Apparently his position is that failure to advise plaintiff of a right to a trial by jury vitiates the plea of guilty. The plea of guilty presents, at least, a serious question of waiver of any purported right to a jury trial. However, because of its disposition of the underlying issue, that is, the existence of a right to a jury trial, the court finds it unnecessary to decide this issue of waiver.
Counsel for plaintiff sought initially to bring a class action for a writ of habeas corpus on behalf of plaintiff and all prisoners throughout the State similarly situated. The court deemed this procedure improper and inappropriate, and hence refused to issue such an order. However, at counsel's request the court allowed him to brief and argue the propriety of such a class action so that he might have a record from which to appeal. The court has incorporated herein its reasons for rejecting those arguments.
Thus, before turning to the merits of plaintiff's claim, two procedural questions must be answered. First, should plaintiff's remedy be one of habeas corpus or post-conviction relief? Second, is he entitled to maintain a class action for the relief sought in the complaint on behalf of all persons similarly situated in the State?
As to the initial procedural question, plaintiff argues that he does not come under the post-conviction relief rules because R.R. 3:10 A -1 applies only to persons convicted of a "criminal offense" which, by definition, would exclude disorderly persons offenses. This very literal reading of the rules overlooks the history and intent of the post-conviction procedure. The rules, R.R. 3:10 A -1 et seq., were drafted to provide a comprehensive procedure by which all claims for post-conviction relief other than appeal could be
processed without the technical difficulties inherent in the former habeas corpus practice. N.J.S. 2 A:67-1 et seq. See Report of Supreme Court Committee on Post-Conviction Rights of Indigents (October 22, 1962), pp. 3-6. The post-conviction relief procedure was made the exclusive means (other than by appeal) of challenging a judgment of conviction. R.R. 3:10 A -3. It includes attacks which were formerly made by habeas corpus. R.R. 3:10 A -2(d); State v. Loray, 46 N.J. 417, 419 (1966).
The same reasons which necessitated the development of a post-conviction procedure for indictable offenses applies to convictions in municipal courts. The drafters of the rules did not intend to leave persons subject to a year's imprisonment without a remedy for illegal detention, or to relegate them to the labyrinth of habeas corpus with its maze of common law ...