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In re Education Association of Passaic Inc.

Decided: December 6, 1971.

IN THE MATTER OF EDUCATION ASSOCIATION OF PASSAIC, INC., THANE EMERSON BOWEN, AUDREY THALSHEIMER, RACHEL PRATHER, PAULA CLAIRE FUYDAL, IRVING GOLDSTONE, NICHOLAS S. D'AGOSTINO, MANLIO BOVERINI AND WILLIAM J. FLYNN, DEFENDANTS-APPELLANTS, CHARGED WITH CONTEMPT OF COURT


Conford, Matthews and Fritz. The opinion of the court was delivered by Fritz, J.A.D.

Fritz

[117 NJSuper Page 258] Defendants appeal from judgments convicting them of contempt of court for violating an injunctive

order enjoining a strike or work stoppage by teachers in the Passaic public school system, or promoting, aiding or abetting the proscribed activity.

Our duty on such appeal, as appellants correctly suggest, is to try the matter de novo on the record below, upon the law and the facts, toward the end of adjudging both guilt and punishment. N.J.S.A. 2A:10-3 and R. 2:10-4; Bd. of Ed. of Newark v. Newark Teachers Union , 114 N.J. Super. 306, 316, 318 (App. Div. 1971); Sarner v. Sarner , 28 N.J. 519, 525 (1959), app. dism. 359 U.S. 533, 79 S. Ct. 1137, 3 L. Ed. 2d 1028 (1959), reh. den. 360 U.S. 940, 79 S. Ct. 1446, 3 L. Ed. 2d 1552 (1959); State v. Gussman , 34 N.J. Super. 408 (App. Div. 1955), and Zimmerman v. Zimmerman , 12 N.J. Super. 61, 69 (App. Div. 1950).

Recognition of our obligation in this regard moots for purposes of this appeal the argument here forwarded that the trial court intruded unreasonably at the hearing to the extent of having "assumed the function of prosecutor." Even were such a charge soundly grounded, defendants would suffer no prejudice, for the "extraordinary review" (Zimmerman, supra , at 69) afforded by our law remains as a bulwark against an attenuation of the rights of an accused.

We are constrained to note, however, that we do not find defendants' argument to be soundly grounded in the record. The trial judge, sitting without a jury, did on occasion extend his questioning of witnesses, but this was, on its major occurrence, in respect to records produced during the testimony of the first witness relating to various meetings, and the inquiry by the court obviously intended no more than a coherent, succinct, chronological recitation of events and an identification of the people involved. Prior to his examination of the witness in this respect the trial judge assured counsel (who had already utilized the first trial day in examining the witness) of his intention to afford them "plenty of chance to ask" questions, but expressed the hope he could save time by his procedure. We

believe that relatively early in the trial as it was, this method served the salutary purpose of objectively setting the stage on which the attorneys involved then performed their proper function of strategic advocacy.

Later comments by the court deploring the conduct of defendants and vocalizing the extent to which the sensibilities of the judge were shocked by the fact that

came after the adjudicatory phase of the action, and during the court's findings and conclusions. Defendants, obviously offended by this determination, equate the understandable reaction with an erstwhile and persistent attitude of resentment for "the fact that the defendants had availed themselves of their constitutional right to plead not guilty and ask for a trial," an equation without record support. We believe this comment and others cited by appellant not indicative of permeating prejudice. Cf. In re Buehrer , 50 N.J. 501, 508 (1967).

We find the trial court's inquiries and comments a far cry from the participation castigated in State v. Homer , 86 N.J. Super. 351 (App. Div. 1965), and remain totally unconvinced that such "was so prejudicial as to prove unfairly devastating and detrimental to the rights of the defendant[s]." Id. at 364.

Nor do we labor under any illusion that the absence of a jury of itself insures against the possibility of prejudicial intervention by the judge.

The sharp and apparent contrast between the proscribed activity in Band's Refuse Removal, Inc. v. Fair Lawn and the conduct of the trial judge here confirms our conviction, upon a review of the whole record, that the latter did not overstep permissible bounds of judicial inquiry or bring to the case any predetermination or innate prejudice.

The principal legal thrust of defendants' appeal challenges the constitutionality of a prohibition against striking by school teachers, asserting at length the oft-repeated argument that the "New Jersey Constitution authorizes public employees to strike and that the distinction between public and private employment in the New Jersey Constitution is not with reference to the right to strike, but with reference to the matters about which organizations of public and private employees may deal with their employers." Their brief acknowledges at the same time that our Supreme Court has consistently held otherwise, and has refused to hold that "teachers are beyond that ban." Bd. of Ed., Union Beach v. N.J.E.A. , 53 N.J. 29, 36 (1968); In re Block , 50 N.J. 494, 499-500 (1967). Without respect to the question as to whether the instant order may be thus questioned in a contempt proceeding, In re Block, supra , at 499, we observe that defendants thus answer their own question. Simply put, the issue has been squarely decided ...


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