Callahan, J.d.c. (temporarily assigned).
On July 23, 1975 plaintiff filed an action in the Union County Juvenile and Domestic Relations Court seeking to establish that defendant is the father of her out-of-wedlock child and compelling him to provide support. Plaintiff receives assistance from the Union County Welfare Board. On March 7, 1978 the Domestic Relations judge signed an order dismissing her complaint. It provided: "Having reviewed the testimony the Court finds that the complainant has failed to prove her case by a preponderance of the evidence as required." Plaintiff filed a timely notice of appeal. The notice included a demand for trial by jury. Defendant, however, contends that plaintiff has no such right to a jury trial.
Plaintiff relies upon N.J.S.A. 9:17-20, which provides in relevant part:
Defendant, however, offers R. 4:74-6, which states that the appeal "shall be heard by the county court [now Law Division of the Superior Court in the county of venue] without a jury unless defendant demands trial by jury in his notice of appeal." (Emphasis supplied). Defendant contends that the decision to demand a jury trial is therefore his alone.
We must now consider two questions: (1) whether the apparent conflict between rule of court and statute is irreconcilable, and if so, (2) whether a court rule which limits the statutory entitlement to a jury trial offends the constitutional guarantee against impairment of that right.
The rule and statute plainly contradict each other. The Appellate Division has commented, "We note but have no occasion to resolve the apparent conflict between N.J.S.A. 9:17-20 and R. 4:74-6." Sarte v. Pidoto , 129 N.J. Super. 405, 409 (1974). However, the rule may have been intended to implement the statutory guarantee to a jury trial rather than to restrict it. The tentative draft comment states:
This rule makes minor changes in the source rule, adding the statutory right of appellant to demand trial by jury, cf. N.J.S.A. 9:17-20, and making clear the obligation of the lower court to transmit the notice of appeal and its record to the appellate court. [Emphasis supplied]
Had the Supreme Court intended to directly contradict the statutory grant of a jury trial to either party, which "was conceived by the Legislature to be an important attribute," Sarte, supra , 129 N.J. Super. at 408, it presumably would not have referred to it as a "minor language change." It seems more reasonable to assume that the language used in R. 4:74-6 was intended to "add" whatever "statutory right" exists under N.J.S.A. 9:17-20 to demand a jury trial.
This interpretation of the drafters' intent is supported by a comparison of the terms used in the rule itself and in the tentative draft comment. The rule refers to the "defendant's" right, while the comment uses the term "appellant." Clearly, the drafters considered the two terms to be interchangeable. That assumption is not correct in the context of bastardy proceedings, however, as defendant is not the only party able to appeal an adverse determination. N.J.S.A. 9:17-20 permits "any person charged as the reputed father . . . or the
State Board of Child Welfare or the county welfare board or any municipality aggrieved . . ." to appeal an adverse determination. Therefore, the drafters of the rule appear incorrect in assuming that a rule permitting only the defendant to demand a trial ...