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Kelly v. Sterr

Decided: January 22, 1973.

DAVID B. KELLY, SUPERINTENDENT, DIVISION OF STATE POLICE OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN L. STERR, DEFENDANT-APPELLANT



For affirmance -- Chief Justice Weintraub, Justices Jacobs, Hall and Mountain, and Judges Conford and Sullivan. For reversal -- None. The opinion of the Court was delivered by Sullivan, P.J.A.D., Temporarily Assigned.

Sullivan

Defendant John L. Sterr, appellant herein, a trooper in the service of the New Jersey State Police, was charged with violation of certain departmental rules and regulations while in the performance of his assigned duties.

He received a departmental hearing (summary court trial) before an officer designated by the Superintendent of the State Police, was found guilty and was suspended without pay and allowances, for a period of two weeks. The Appellate Division affirmed in an opinion reported at 119 N.J. Super. 272 (1972). Certification was granted, 61 N.J. 162 (1972), to review defendant's contention, rejected at the summary court trial as well as by the Appellate Division, that defendant had a constitutional right to an open or public hearing on the departmental charges against him.

Basically, defendant argues: (1) A New Jersey Police summary court trial is a quasi-judicial proceeding and "is subject to standards of fair and adequate procedure constituting due process, one of which is a public hearing"; (2) it is not enough that defendant was afforded the right to be represented by counsel, the right to call witnesses, and the right of judicial review. Since a summary court trial is "very similar to a criminal prosecution," with penal and punitive aspects, no good reason exists for denying defendant the right to a public trial guaranteed to every accused in a criminal prosecution; (3) a closed hearing always increases the likelihood of "command influence," particularly in a para-military organization such as the State Police where promotions are determined by those in command, a fact

quite evident to the hearing officer who presided at defendant's trial.

Defendant's contention that a summary court trial should be analogized to a criminal prosecution thereby bringing him within the ambit of N.J. Const., Art. I, par. 10 is without merit. The sole inquiry at defendant's departmental hearing was whether or not defendant-trooper had failed to properly carry out his assigned duties. This was not a criminal prosecution in any sense of the word and the constitutional safeguards guaranteed an accused in a criminal prosecution are not applicable.

Defendant's further contention that administrative due process requires a public hearing is also without merit. Due process is not a rigid concept. Its flexibility is in its scope once it has been determined that some process is due. It calls for such procedural protections as the particular situation demands recognizing that not all situations calling for procedural safeguards require the same kind of procedure. Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). Relevant considerations are the public interest, the rights involved and the nature of the proceeding. The manner of holding and conducting the hearing may vary. As long as principles of basic fairness are observed and adequate procedural protections afforded, the requirements of administrative due process have been met. In Laba v. Newark Board of Education, 23 N.J. 364, 382 (1957) we said: "Absent specific legislative direction, the administrative tribunals may mold their own procedures so long as they operate fairly and conform with due process principles."

Our Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq., which applies to State Police summary court trials, is silent on the matter of whether or not an administrative hearing should be public. The Rules and Regulations for the discipline and control of the State Police, (adopted by the Superintendent pursuant to N.J.S.A. 53:1-10), although they set forth in detail the manner in which a disciplinary

hearing shall be held and the rights and privileges accorded an accused, make no mention that the hearing shall be open to the public. New Jersey Civil Service Rule, N.J.A.C. 4:1-5.10(a), provides that "[h]earings not required by law to be open to the public may be held open or closed to the public, as the Commission may determine." The Federal Administrative Procedure Act, 5 U.S.C.A. ยง 551 et seq., makes no provision for public hearings. Consequently federal administrative agencies are free "to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties." F.C.C. v. Pottsville Broadcasting Co., 309 U.S. 134, 143, 60 S. Ct. 437, 84 L. Ed 656, 662 (1940), quoted in F.C.C. v. Schreiber, 381 U.S. 279, 290, 85 S. Ct. 1459, 14 L. Ed. 2d 383, 391 (1965).

Considering the type of hearing here involved, the subject matter thereof together with the rights at stake, we conclude that due process did not require a public hearing. However, it must be recognized that in administrative agency proceedings a public hearing has certain advantages. Obviously it promotes public confidence in the integrity and fairness of the process. It can be viewed as a restraint against the filing of frivolous or insubstantial disciplinary charges against a person. Therefore, absent a showing of good cause or sufficient reason for keeping a hearing private, the general policy favors an open administrative hearing, Schreiber, supra, particularly if the person involved requests it.

Here the Superintendent of the State Police has detailed the reasons why the Division maintains a policy of private hearings in Division disciplinary matters, and why retention of that policy is essential to morale and the ...


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