On appeal from New Jersey Department of Law and Public Safety, Division of New Jersey Racing Commission.
Fritz, Botter and Ard. The opinion of the court was delivered by Fritz, P.J.A.D.
[158 NJSuper Page 184] Appellant's license to race a horse she owned was suspended, following a hearing before a state steward, on the ground that a "spouse of a disqualified person is likewise barred from participating in racing." It is not controverted that appellant's husband, with whom she is living and by whom she is employed as a secretary-bookkeeper, has been convicted of criminal offenses on two occasions. She appealed to the New Jersey Racing Commission and was accorded another hearing. With the copy of the hearing officer's report she was advised of her right to file exceptions or objections to the report. It would appear that she did not avail herself of this opportunity. Thereafter, and in accordance with the findings of the hearing
officer, the Commission suspended her license "in accordance with New Jersey Racing Commission Harness Rule, Chapter 4, Section 9,*fn1 which states, 'The spouse of a disqualified person is likewise barred from participating in racing.'"
Before us she complains that this decision violated the rights provided her by N.J.S.A. 37:2-1 et seq. guaranteeing certain rights to married persons; that chapter 4, section 9 of the harness racing rules is arbitrary and unconstitutional, and that the ultimate decision was a nullity "[s]ince the appellant and his [ sic ] attorney were not notified and did not attend the final hearing before all of the members of the Racing Commission." We find these issues without merit and affirm.
Appellant's brief asserts that the Married Persons Act "clearly allows Mrs. Niglio to own a horse in her own name," and that "she should have the right to own a horse independent of him." Nobody doubts these propositions. It is not a denial of ownership that is here involved. Rather it is a denial of the privilege of racing that horse. Since it is clear that the license here denied would be denied to either spouse similarly situated, and in fact to a single person whose affinity with a convicted criminal approached the dependency here found between Mrs. Niglio and her husband, the Married Persons Act is in no wise implicated. As was said in Capodanno v. Capodanno , 58 N.J. 113, 119 (1971), "The purpose of the Married Women's Act was to secure equality for women and not special privileges." Nothing in the record before us even remotely suggests discriminatory treatment.
The heart of appellant's attack on the harness racing rule in question is to be found in this paragraph from her brief:
Mrs. Niglio seeks to be self-employed in the ownership of harness horses. Clearly her rights are violated by virtue of her marital status. This clearly is a violation of her civil rights.
This calls into question the constitutionality of a rule barring the spouse of a disqualified person on the sole ground of that marital relationship. But we need not decide the constitutional question because it is clear to us that the suspension here was produced not by the marital relationship but by the inescapable dependency of Mrs. Niglio upon her husband, a disqualified person. In this respect the concern of the administrative code for the distinction between merely the married state and the married state accompanied by dependency is apparent. In the definition section of chapter 71, pertaining to harness racing, the word "disqualification" is defined. In this definition the statement appears, "The spouse of a disqualified person is likewise barred from participation." N.J.A.C. 13:71-4.1. There is no elaboration. However, in chapter 70, under the general provisions, said "to apply to * * * all matters within the jurisdiction of the New Jersey Racing Commission" (N.J.A.C. 13:70-1.1), this condition appears:
Disqualification of either husband or wife applies equally to both, unless the spouse of the disqualified person shows to the satisfaction of the Commission that ownership and racing of his or her horses are independent of or not under the control or influence of the disqualified spouse. [ N.J.A.C. 13:70-4.13.]
In addition, both the general rules and the harness rules express concern for an affinity between any applicant and another person convicted of a crime. N.J.A.C. 13:70-4.9; N.J.A.C. 13:71-7.3. This ...