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Friedland v. Podhoretz

Decided: April 23, 1980.


Humphreys, J.s.c.


Plaintiff attorneys sue for fees, and also for libel and malicious prosecution, arising from defendant's filing a complaint with the Ethics Committee. The malicious prosecution action is brought pursuant to N.J.S.A. 2A:47A-1 which specifically authorizes such an action. Defendant moves for summary judgment as to the libel and malicious prosecution claims. The primary issue is whether the statute is unconstitutional as an encroachment upon the jurisdiction of the Supreme Court over the discipline of attorneys. N.J.Const. (1947), Art. VI, § II, par. 3.

In Toft v. Ketchum , our Supreme Court held that the filing of an ethics complaint "is privileged and that an attorney cannot predicate a malicious prosecution action or similar suit upon it." 18 N.J. 280, 287 (1955), cert. den. 350 U.S. 887, 76 S. Ct. 141, 100 L. Ed. 782 (1955). The statute in question was passed shortly after the Toft decision. In effect, the statute reversed the holding in Toft. Whether the statute is constitutional was posed but not reached in Black v. Keoner , 44 N.J. 140, 141 (1965).

One who attacks the constitutionality of a statute bears a formidable burden. There is a strong presumption that a statute is constitutional. Indeed, a statute will not be declared void unless its repugnance to the Constitution is clear beyond a reasonable doubt. Harvey v. Essex Freeholders , 30 N.J. 381, 388 (1959). These strictures may be even more binding upon a trial court than an appellate court. Blair v. Erie Lackawanna R. Co. , 124 N.J. Super. 162, 168 (Law Div.1973); Noyes v. Cohen's Estate , 123 N.J. Super. 471, 480 (Ch.Div.1973); Three L. Corp. v. Newark Bd. of Adj. , 118 N.J. Super. 453, 455 (Law Div.1972).

The reasons for judicial reluctance to declare a statute unconstitutional were comprehensively set forth in N.J. Sports & Exposition Auth. v. McCrane , 61 N.J. 1 (1972) as follows:

One of the most delicate tasks a court has to perform is to adjudicate the constitutionality of a statute. In our tripartite form of government that high

prerogative has always been exercised with extreme self restraint, and with a deep awareness that the challenged enactment represents the considered action of a body composed of popularly elected representatives. As a result, judicial decisions from the time of Chief Justice Marshall reveal an unswerving acceptance of the principle that every possible presumption favors the validity of an act of the Legislature. As we noted, all the relevant New Jersey cases display faithful judicial deference to the will of the lawmakers whenever reasonable men might differ as to whether the means devised by the Legislature to serve a public purpose conform to the Constitution. And these cases project into the forefront of any judicial study of an attack upon a duly enacted statute both the strong presumption of validity and our solemn duty to resolve reasonably conflicting doubts in favor of conformity to our organic charter. . . .

The judicial branch of the government does not and cannot concern itself with the wisdom or policy of a statute. Such matters are the exclusive concern of the legislative branch, and the doctrine is firmly settled that its enactment may not be stricken because a court thinks it unwise. (citations omitted). In emphasizing the common sense of these controlling general principles, in his dissent in McCutcheon v. State Building Authority , 13 N.J. 46, 79 (1953), Justice Jacobs quoted the striking language of Justice Holmes in Missouri, Kan. & Tex. Ry. Co. of Tex. v. May , 194 U.S. 267, 270, 271, 24 S. Ct. 638, 48 L. Ed. 971, 973 (1904):

"Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts." [At 8]

In the present case the assault on the statute has a narrow thrust. The statute does not impair in any way the constitutional rights of citizens, rights which the courts must cherish and protect. The Legislature in this case is not defying or failing to comply with a constitutional mandate. See Robinson v. Cahill , 62 N.J. 473 (1973), and its progeny. Moreover, the Legislature is not acting outside its sphere of authority. In this case the Legislature restored a common law right to sue. As Judge Goldmann said in Magierowski v. Buckley , 39 N.J. Super. 534, 558 (App.Div.1956), "A state has the constitutional and legislative power to change or modify the common law; the Constitution does not forbid the creation of new rights or the abolition of

old ones recognized by the common law, if the purpose is to [obtain] a permissible legislative object." (Emphasis supplied). The fact that the judiciary had abolished in Toft the right to sue does not affect the Legislature's right to restore it. An analogous situation is when the Supreme Court abolished the charitable immunity doctrine. Benton v. YMCA of Westfield , 27 N.J. 67 (1958). The Legislature restored the immunity in part, N.J.S.A. 2A:53A-7, and the judiciary deferred to the legislative judgment. La Parre v. YMCA of Oranges , 30 N.J. 225 (1959). "In short, judge-made law . . . is at all times subject to legislative supervision and change. The Legislature clearly has the last word." Busik v. Levine , 63 N.J. 351, 394 (1973) (dissenting opinion, Mountain, J.). See also 15A Am.Jur. 2d, Common Law , § 18 at 617, 618.

Furthermore, the statute does not directly enter the judicial realm. The statute does not purport to discipline lawyers or regulate their admission, practice or expulsion. It merely gives all professional persons, lawyers and nonlawyers alike, a cause of action against any person who "falsely and maliciously and without probable cause" makes a complaint to any public body having the right to discipline that professional. N.J.S.A. 2A:47A-1.

Thus the precise and narrow issue here is whether the Legislature, in restoring to attorneys a cause of action enjoyed by all other professionals, has unconstitutionally encroached upon the Supreme Court's "jurisdiction over . . . the discipline of [lawyers]." N.J. Const. (1947), Art. VI, § II, par. 3. Defendant contends that it has encroached on that authority, relying on language in Chief Justice Vanderbilt's opinion in Toft v. Ketchum, supra , and also on the case of Ramstead v. Morgan , 219 Or. 383, 347 P. 2d 594 (Sup.Ct.1959).

In Toft the Chief Justice concluded that a cause of action for malicious prosecution could be brought for the institution of a nonjudicial action, "at least where such proceedings are adjudicatory

in nature and may adversely affect legally protected interests." 18 N.J. at 284. In deciding whether lawyers should be barred from bringing such an action, he noted that "We are confronted with two conflicting considerations of policy." After discussing the merits and demerits of these two policies, the Chief Justice, speaking for the majority of the court, chose the policy barring attorneys from bringing the suit. He said that "in attempting to do justice between these two conflicting interests, we are necessarily forced to give great weight to the fact that we have been charged by the Constitution with the solemn duty of ridding the bar of those who are unfit to practice our profession." In other words, the Chief Justice, in choosing between two conflicting policies, gave "great weight" to the possible adverse effects such lawsuits might have upon the Supreme Court's authority and duty to discipline attorneys. This is a far cry from a conclusion that the Chief Justice was declaring this area to be off-limits to the Legislature. The majority of the court in Toft was engaging in the court's prerogative of changing the common law to meet what the court considered to be the needs of the time. The issue in Toft was not a constitutional one. The issue was what was the best public policy, i.e. , should a person who is an attorney be able to obtain redress in the courts against one who has acted against him maliciously and without probable cause. Policy determinations are fundamentally for the Legislature, not for the courts. As Chief Justice Weintraub said in Two Guys from Harrison, Inc. v. Furman , 32 N.J. 199 (1960):

It is worth repeating that the judiciary is not concerned with the good sense of a statute. Policy matters are the exclusive responsibility of the legislative branch of government. A judge as a private citizen, may express his opinion at the polls . . .. But the issue now before us is wholly one of the power of the legislature to act, and upon that inquiry a judge would usurp ...

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