On appeal from the Superior Court, Chancery Division, Hudson County, whose opinion is reported at 122 N.J. Super. 411.
Lynch, Kole and Petrella. The opinion of the court was delivered by Lynch, P.J.A.D.
[160 NJSuper Page 84] Plaintiff, a not-for-profit New Jersey corporation composed of over 500 licensed optometrists (hereafter, Association), brought suit in the Chancery Division alleging that three corporations and several individuals engaged in the optometry business (hereafter, the nonpublic defendants) violated the Optometry Act, N.J.S.A. 45:12-1 et seq. , the Optician Act, N.J.S.A. 52:17B-41.1 et seq. , and the New Jersey Antitrust Act, N.J.S.A. 56:9-1 et seq. , and further charging unfair competition and conspiracy. Plaintiff also alleged that the New Jersey Board of Optometrists (hereafter, the board) and the Attorney General of New Jersey (sometimes jointly referred to as the public defendants) failed to perform their duties. The complaint sought to compel the public defendants to institute proceedings against the nonpublic defendants on the charges cited above.
The trial judge, in an opinion reported at 144 N.J. Super. 411 (Ch. Div. 1976), accurately summarized the substance of the complaint. As to the nonpublic defendants, he noted:
The complaint is drafted in 13 counts. The basic thrust of the complaint as it relates to the individual defendants and corporte defendants is that they have entered into a commercial relationship which is in violation of N.J.S.A. 45:12-1 et seq. and N.J.A.C. 13:38-1 et seq. and the Association and its membership is injured thereby. More specifically, the Association charges that this relationship and the activities pursuant thereto violate N.J.S.A. 45:12-11, 19, 19.1. It is contended that these alleged illegal acts constitute a fraud on the public, denigrate the professional standards of the practice of optometry in New Jersey, are tortious as against the Association and its membership, cause unjust enrichment and also violate the New Jersey Antitrust Act, N.J.S.A. 56:9-1 et seq. [at 415; footnotes omitted]
And as to the public defendants:
Count five of the complaint alleges that the Board has arbitrarily rejected numerous requests of the Association for the Board to take the necessary and proper steps provided by statute to halt the illegal and improper activities of the individual and corporate defendants. The Association wants the court to direct the Board to institute proceedings on the Association's complaints pursuant to N.J.S.A. 45:12-12.
The sixth count is directed against the Attorney General. If basically iterates the relief requested in the fifth count because of the fact that the office of the Attorney General is the counsel to the Board and brings all necessary judicial proceedings on behalf of the Board. [at 415-416; footnotes omitted].
The trial judge dismissed the complaint and plaintiff now appeals. We shall consider separately the allegations against the two classes of defendants -- i.e. , (I) the nonpublic defendants, and (II) the public defendants.
As will be seen, we affirm the decision dismissing the complaint against the nonpublic defendants on the ground that plaintiff has failed to exhaust its administrative remedies. As to the public defendants, we affirm on the ground that their actions constituted a proper exercise of discretion.
As to the nonpublic defendants (corporate defendants and individual optometrists)
In the complaint against these defendants plaintiff seeks two kinds of relief: (a) remedies not involving money damages (an injunction against continuance of the allegedly illegal actions of defendants, a declaration that certain contracts and agreements of defendants are null and void, and an order directing them to move from their present locations), and (b) money damages (for an accounting, damages for interference with business profits, for violation of the New Jersey Antitrust Act, for unfair competition and malicious tort).
Since each class of remedy invokes different principles of law they will be considered separately.
Remedies other than money damages
This type of relief is sought in all counts of the complaint against the nonpublic defendants. In support of its right to such relief, plaintiff has invoked the alleged violations of the Optometry Act set forth in the complaint. However, these alleged violations are properly cognizable in the first instance by the Board.
Enforcement of the provisions of the act is vested in the Board. By N.J.S.A. 45:12-11 the Board is empowered to, and indeed must, revoke or suspend the license of any optometrist who may be in violation of any of the provisions in that section. Among the violations warranting such action is "[a]ny violation of rule or regulation duly promulgated by the board hereunder or of any provision of this chapter." N.J.S.A. 45:12-11(s) (emphasis supplied).
Pursuant to its granted powers, when charges are preferred the Board, or a majority thereof, is to conduct hearings thereon. It has the ...