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Johnson v. New Jersey State Parole Board

Decided: December 20, 1974.

LEROY JOHNSON, PLAINTIFF-RESPONDENT,
v.
NEW JERSEY STATE PAROLE BOARD, HONORABLE NICHOLAS D. HEIL, CHAIRMAN; NEW JERSEY STATE CORRECTION AND PAROLE DIVISION, HONORABLE WILLIAM J. FAUVER, DIRECTOR; NEW JERSEY STATE PAROLE BUREAU, HONORABLE NAT J. ARLUKE, CHIEF; AND NEW JERSEY STATE PRISON AT TRENTON, HONORABLE RICHARD SEIDL, ACTING SUPERINTENDENT, DEFENDANTS-APPELLANTS



Michels, Morgan and Milmed. The opinion of the court was delivered by Milmed, J.s.c., Temporarily Assigned.

Milmed

[131 NJSuper Page 515] In his complaint in lieu of prerogative writs, also designated as "Petition For Writ Of Habeas Corpus," filed in the Law Division, plaintiff claimed that his constitutional right to a prompt parole revocation hearing had been violated by defendant State Parole Board. On behalf of defendants the Attorney General moved to dismiss the complaint, contending that the Law Division lacked jurisdiction over the subject matter since plaintiff was seeking to collaterally challenge state administrative

agency action. The motion was denied, the trial judge finding that the Law Division does have jurisdiction pursuant to R. 4:3-1(a)(1) and that the alleged inaction of the Parole Board appeared to obviate the need for the matter to be considered by the Appellate Division pursuant to R. 2:2-3(a)(2). We granted defendants' motion for leave to appeal from the denial, at the same time directing the Attorney General to move for the consolidation for argument of all appeals pending in this court involving the same issue.*fn1

On June 1, 1961 plaintiff was sentenced to serve concurrent terms of 30 to 35 years and 20 to 30 years on his convictions for kidnapping and rape. He was paroled from the State Prison on September 19, 1972. On August 30, 1973, while under parole supervision, he was arrested in Essex County on charges of armed robbery and entry with intent to steal. On September 4, 1973, while in custody in the Essex County Jail, he was served with a warrant as a parole violator, N.J.S.A. 30:4-123.22. A probable cause hearing was held on September 11, 1973. Sufficient cause was found to detain him pending a final revocation hearing. Following his conviction in the Essex County Court of robbery, possession of a weapon and entering with intent to steal, he was, on March 14, 1974, sentenced to new terms totalling not less than 3 nor more than 5 years (3 to 5, 2 to 3 concurrent, and 2 to 3 concurrent). He was returned to State Prison and a final parole revocation hearing was held there, under his protest, on March 28, 1974, at which time his parole was revoked.*fn2

He received notice of the decision on April 10, 1974. He has not filed a notice of appeal from that decision. On April 1, 1974 he filed his complaint in lieu of prerogative writs (petition for writ of habeas corpus) seeking restoration of parole.

The exclusive method for review of an action or inaction of the State Parole Board is by direct appeal to the Appellate Division. The Board is a state administrative agency established within the Department of Institutions and Agencies, a principal department in the executive branch of the State Government. Cf. N.J.S.A. 52:14B-2(a). As such its final decisions and actions (or inaction) are reviewable as of right by appeal to the Appellate Division, R. 2:2-3(a)(2), under our special constitutional structure (N.J. Const., Art. VI, § V, par. 4 (1947)). Beckworth v. N.J. State Parole Bd., 62 N.J. 348 (1973); Monks v. N.J. State Parole Board, 58 N.J. 238, 242 (1971); Puchalski v. N.J. State Parole Board, 104 N.J. Super. 294 (App. Div. 1969), aff'd 55 N.J. 113 (1969), cert. den. 398 U.S. 938, 90 S. Ct. 1841, 26 L. Ed. 2d 270 (1970); In re Senior Appeals Examiners, 60 N.J. 356, 363 (1972); Central R.R. Co. v. Neeld, 26 N.J. 172, 184-185 (1958), cert. den. 357 U.S. 928, 78 S. Ct. 1373, 2 L. Ed. 2d 1371 (1958); State v. Dalonges, 128 N.J. Super. 140, 145 (App. Div. 1974); Princeton First Aid & Rescue Squad, Inc. v. Division on Civil Rights, 124 N.J. Super. 150 (App. Div. 1973), certif. den. 63 N.J. 555 (1973); Mathews v. Finley, 46 N.J. Super. 175, 177 (App. Div. 1957), certif. den. 25 N.J. 283 (1957); In re Adinolfi, 43 N.J. Super. 262 (Law Div. 1957); In re Mahoney, 17 N.J. Super. 99, 108 (Cty. Ct. 1951).

In Central R.R. Co. v. Neeld, supra, referring to the objective of the 1948 court rules implementing the constitutional

requirement for review, hearing and relief in the Superior Court, in lieu of the superseded prerogative writs (N.J. Const., Art. VI, § V, par. 4 (1947)), Justice Jacobs pointed out that

In 1948 this court adopted its implementing rules which sought to avoid the problems of the prerogative writ practice and to provide simple and expeditious modes of judicial review from administrative action and inaction. The rules perpetuated none of the former procedural distinctions resting on the nature of the relief sought and their wholesome design was clear; they contemplated that every proceeding to review the action or inaction of a local administrative agency would be by complaint in the Law Division * * * and that every proceeding to review the action or inaction of a state administrative agency would be by appeal to the Appellate Division. * * * [26 N.J. at 184-185]

More recently, in Monks v. N.J. State Parole Board, supra, Justice Jacobs commented:

The "easy mode of review" of actions or inactions of state administrative agencies, including the State Parole Board, "designed to insure procedural fairness in the administrative process and to curb administrative abuses," is that set forth in R. 2:2-3(a)(2), i.e., direct appeal to the Appellate Division. Referring to former R.R. 4:88-8 (appeals from administrative ...


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