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White v. Violent Crimes Compensation Board

Decided: May 25, 1978.


On certification to the Superior Court, Appellate Division.

For reversal and remandment -- Chief Justice Hughes and Justices Sullivan, Pashman and Handler. For affirmance -- Justices Clifford and Schreiber and Judge Conford. The opinion of the court was delivered by Pashman, J. Conford, P.J.A.D. (temporarily assigned), dissenting. Justice Clifford joins in this dissenting opinion. Justice Schreiber dissents.


On September 15, 1973 eighteen-year-old Elizabeth White was the victim of a brutal criminal assault and rape as a result of which she suffered severe bodily injuries, including a broken jaw, "tremendous" facial bruising and other head injuries. Plaintiff was hospitalized until September 26, 1973, and her jaw was wired shut until October 30, 1973. Although some of her medical bills were paid by insurance, she incurred substantial out-of-pocket expenses in obtaining the required restorative medical and dental care. In addition, her injuries caused her to miss some six weeks of her work as a seamstress.

Despite her debilitated condition, plaintiff was able to provide the police with a description of her assailant on the night of the attack and to identify him by photograph and in person at the hospital the next day. With her jaw still wired and her speech difficult, she later testified before the Ocean County Grand Jury. The assailant subsequently entered pleas of guilty to charges of rape and atrocious assault and battery and was sentenced to a ten-to-twelve year term of imprisonment in July 1974.

After her release from the hospital, plaintiff was "hesitant to be around people and didn't go anyplace much." This shyness, understandably occasioned by the physical and emotional trauma of her ordeal, was exacerbated by the removal of the wiring from her jaw. The full dental plates she had been wearing prior to the tragic occurrence were destroyed as a result of the savage beating inflicted upon her by the assailant. Plaintiff lacked sufficient financial resources to obtain replacement plates until March 1974, when she was able to borrow the necessary amount from her brother. Thus, plaintiff was without any teeth for a number of months. Her embarrassment over her physical appearance enhanced her already great reluctance to participate in

normal social activities, causing her to limit her primary social contacts to her family. Her psychological state is poignantly demonstrated by her statement that her main reason for taking a job in a clothing factory was the fact that she "did folding work sitting at a table and didn't have to speak to anyone."

In late November 1973 plaintiff and her mother went to the Ocean County Courthouse to inquire as to how she might receive financial relief for the pecuniary losses she suffered as a result of being the victim of a crime. Plaintiff had previously been advised by an unspecified employee of the County Prosecutor that the Prosecutor's Office "would be my lawyer and take care of everything." She had incorrectly understood this statement to mean that the County Prosecutor would represent her in proceedings to obtain the appropriate civil relief as well as in the prosecution of her attacker. At the courthouse she was referred by a receptionist to the nearby legal services office, which proceeded to refer her to the Ocean County Welfare Board. A caseworker there informed plaintiff that she could not be helped by the Welfare Board and referred her to the welfare director of her municipality. In all these conversations, plaintiff mentioned that her financial distress was a direct result of her being the victim of a criminal attack.

Plaintiff continued her diligent pursuit of assistance by subsequently seeking advice as to the solution to her predicament from the municipal welfare director, a local attorney, a business manager of a hospital and the local police, all to no avail. She was still operating under the assumption that her crime-related losses would be "taken care of when the criminal case was over." In September 1974, plaintiff contacted the Prosecutor's Office to inquire about the status of the prosecution against her assailant. She then learned for the first time that he had already been convicted and sentenced. In response to her query as to what could be done about her bills, she was told that her only avenue of relief would be to retain her own attorney to

bring a civil action against her assailant. This was the first time plaintiff learned that the Prosecutor's Office would not be able to remedy her financial difficulties. Since she was unable to afford private counsel, plaintiff was quite distraught at this turn of events.

Several weeks later plaintiff learned of the existence of a local community action agency where she might be able to obtain assistance in resolving her financial problems. A counselor there had heard of a crime victim's aid agency in another state and attempted to ascertain whether such an agency existed in New Jersey. After numerous unsuccessful inquiries, a call to the office of the legislative representatives for the area yielded, after some investigation, the name and address of the respondent Violent Crimes Compensation Board (the Board) and the identity of one of its members, who lived in Ocean County.

Upon learning of the details of plaintiff's situation, the Board member, R. Richard Kushinsky, Esq., advised the counselor to write to the Board at once to request the forms for submitting a claim, which the counselor did on November 1, 1974. When the forms were received, plaintiff and the counselor gathered the necessary supporting material and submitted the claim application on November 6. The claim was filed with the Board on November 8, 1974.

The Board processed plaintiff's application and verified all of the factual details of her claim, concluding that she was the victim of a violent crime of the requisite magnitude who did sustain pecuniary losses as a result of the injuries she suffered and was thus properly eligible for compensation. Nevertheless, on April 1, 1975 plaintiff was advised by the Board's claims investigator that he was recommending the denial of her claim for compensation because it had not been filed within the time specified by the statute controlling the Board's operations. Plaintiff requested a hearing before the Board itself, which was held on May 15, 1975. The Board formally denied her claim on July 24, 1975. In its order of denial, the Board observed that had plaintiff's claim been

filed in timely fashion she would have qualified for compensation. Although recognizing that a statutory limitation period may be tolled in situations of infancy or incapacity, the Board found that neither of these "exceptions" was applicable in plaintiff's case and accordingly held that the untimely filing mandated denial of her claim.

Plaintiff then took her case to the Department of the Public Advocate's Citizen Complaint Division, which requested the Board to "retroactively extend" the statutory deadline for the filing of plaintiff's claim. The Board declined to reconsider its decision. Pursuant to R. 2:2-3(a)(2), the Public Advocate appealed the Board's denial of compensation to the Appellate Division, which, in an unpublished opinion, affirmed the decision of the Board. The court held that the "time limit in question is a condition precedent to a victim's eligibility for compensation." Discerning no judicial power to "relax that condition" even in cases where hardship results, the court ruled that plaintiff's claim was barred by the statutory limitation period. We granted plaintiff's petition for certification. 75 N.J. 15 (1977).


Our initial task is to assess the nature of the statutory time limitation on the filing of claims with the Board. In response to increasing public concern for the plight of innocent victims of violent crime, the Legislature enacted the Criminal Injuries Compensation Act of 1971 (the Act), L. 1971, c. 317, N.J.S.A. 52:4B-1 et seq. This statutory scheme created an administrative mechanism whereby victims of certain enumerated crimes could obtain limited reimbursement for their financial losses occasioned by the commission of the crime upon application to the Violent Crimes Compensation Board. See N.J.S.A. 52:4B-3, 10, 11, 12, 18; N.J.A.C. 13:75-1.1 et seq.; see generally Note, 27 Rutgers Law Review 727 (1974). The portion of the Act pertinent for present purposes provides:

No order for the payment of compensation shall be made under section 10 of this act [ N.J.S.A. 52:4B-10] unless the application has been made within 1 year after the date of the personal injury or death, and the personal injury or death was the result of an offense listed in section 11 of this act [ N.J.S.A. 52:4B-11] which had been reported to the police within 3 months after its occurrence.

[ N.J.S.A. 52:4B-18]

See also N.J.A.C. 13:75-1.5(a). We agree with the Appellate Division that compliance with the statutory requirement that an application for compensation be filed in timely fashion is a "condition precedent" to eligibility for compensation under the Act.

Statutes of limitation are not all of the same species. Courts have long recognized distinctions among the several types most frequently found. A "true" or "pure" statute of limitations is generally said to operate only to preclude the enforcement of a right by barring a remedy after the expiration of the limitation period without destroying the underlying right itself. See Zoffer v. Crane, 120 N.J. Super. 538, 540 (App. Div. 1972). Statutes of this variety are commonly known as "remedial" or "procedural" statutes of limitation. See Union City Housing Authority v. Commonwealth Trust Co., 25 N.J. 330, 335 (1957). A second type, often referred to as "substantive" or "jurisdictional" statutes of limitation, is said to extinguish the underlying right as well as to bar the remedy. In Marshall v. Geo. M. Brewster & Son., Inc., 37 N.J. 176 (1962), we considered the implications of such a statute in the choice-of-law context:

When the legislature of a state creates or recognizes a right, it may, if it so chooses, subject it to a limitation in such manner that the right is to terminate upon expiration of the limitation. In such cases, the limitation will be viewed not as simply procedural but as part of the state's substantive law. * * * On the other hand, the legislature may intend that the limitation operate not as a condition of the right but as the ordinary statute of limitations which is customarily viewed as procedural. Most courts, though by no means all, have construed the limitations in their wrongful death acts as

substantively conditioning the rights granted and such construction has been given effect elsewhere. * * *

[37 N.J. at 181]

Special limitation periods are generally deemed substantive when they are created concurrently with a novel cause of action. Accordingly, the statutory tolling provisions, now embodied in N.J.S.A. 2A:14-21, applicable to the general "remedial" statutes of limitation have been construed to be inapplicable to such special substantive limitation statutes. See Grabert v. Central R.R. Co., 91 N.J.L. 604, 605 (E & A 1918). A third "hybrid" type of limitation statute defines substantive rights itself and may preclude a right from even coming into existence as well as disallowing its enforcement. See O'Connor v. Altus, 67 N.J. 106, 121-22 (1975); Rosenberg v. Town of North Bergen, 61 N.J. 190, 199 (1972).

We are satisfied that the limitation period set forth in N.J.S.A. 52:4B-18 is properly characterized as a member of the substantive class of limitation statutes. The "right"*fn1 to compensation for losses resulting from the commission of a violent crime was unknown at common law. Moreover, the fact that the one year filing limitation is "built in" to the statutory scheme suggests that it goes to the essence of the right granted and was intended as a condition thereon. However, the determination that the statutory restriction on the

timely filing of applications with the Board is a substantive condition on the victim's eligibility for ...

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