judges will be judges and not regulators. They are full-time professionals (usually, but not always, lawyers); they do not hear matters in which they were previously involved as administrators; under detailed regulations, they conduct themselves and their proceedings as judges would conduct a trial. In short, there should be little to distinguish a proceeding before an administrative law judge from a judicial proceeding. The Court of Appeals held, in Williams, that in such circumstances the plaintiff would be afforded an opportunity to pursue her constitutional claims in an ongoing state proceeding.
Such is not the case in the present action. The Board of Architects is not a tribunal in which plaintiffs should be required to defend their federal rights. It is not enough that plaintiffs would have an ultimate appeal to the New Jersey courts. In complex Commerce Clause cases and in cases involving the antitrust laws the fact-finding process can be critical and should, as in Williams, take place before a truly adjudicatory body.
The fact which colors everything that happens before the Board of Architects is that most of the members are architects, and architects in general have an interest in the outcome of this proceeding. The business in which Deck House is engaged threatens economic interests of the profession. From the evidence presented to date it appears that Deck House sells high quality, relatively expensive homes. They are the kind of houses in connection with which one might well employ an architect if manufactured houses were not available. There is no evidence to date that these houses are defective in any way.
It is not unreasonable to conclude that a rapid growth in the manufactured house industry into the field of both low-cost and high-cost homes will have an adverse economic effect upon the architectural profession.
It may well be that none of these considerations would have any influence upon the members of the Board of Architects hearing the case against plaintiffs, but the possibility is there and the appearance of partiality cannot be dispelled either in the minds of the parties to the proceeding or the public. Were this a judicial proceeding, there is no doubt the judge would disqualify himself. What makes the situation even more disturbing is the fact that the Board of Architects had the opportunity to refer the case to an impartial tribunal, an administrative law judge, and that they rejected that course of action in part, at least, because they did not "feel comfortable" with an administrative law judge.
This is not the kind of hearing tribunal in which a litigant should be compelled to defend his federal rights. Gibson v. Berryhill, 411 U.S. 564, 93 S. Ct. 1689, 36 L. Ed. 2d 488 (1973); Rosko v. Pagano, 466 F. Supp. 1364 (D.N.J.1979).
Even apart from the obvious interest of architects, the proceedings before the Board are insufficiently adjudicatory in nature to meet the standards set forth in Williams for a proceeding adequate to vindicate federal claims. The New Jersey Administrative Procedure Rules, N.J.A.C. 1:1-1.1, et seq., are applicable to hearings in contested cases whether they be before an administrative law judge or before an agency or board. Of necessity, however, the hearings will be very different in nature if they are held by the agency rather than by an administrative law judge. Earlier in this opinion I described how the proceedings before the Board of Architects has departed from judicial standards and from standards which the administrative procedure rules seek to maintain. In summary: The Board has had continuing involvement with the Deck House-Laibow situation since before May, 1979 and has already concluded that there has been a violation of the statute. Since the date when the case became contested the Board has had ex parte involvement with matters relating to the case; the members of the Board who are architects are skilled professionals, but it does not appear that any members of the Board have the legal training to deal with the complicated questions raised by plaintiffs' federal claims; the Board is unable to proceed with an uninterrupted hearing; the attorney who opposes plaintiffs before the Board was the attorney who advised the Board from the inception of the controversy and in connection with the charges the Board has made against plaintiffs. While the "concentration of inquisitorial, prosecutorial and judicial power" is not fatally defective on constitutional grounds in all situations, e.g., In re Information Resources, 126 N.J.Super. 42, 312 A.2d 671 (App.Div.1973), it does, in this case, at least, preclude Younger abstention.
Since I have concluded that the nature of the state proceedings makes Younger abstention inappropriate, it is unnecessary to address the third criteria for abstention, that federal intervention into state administrative proceedings would be substantial and disruptive. I simply point out that in view of the conclusions which I reach on other issues in the case, failure to abstain should result in no substantial, much less disruptive, intervention into the pending state proceeding.
C. Pullman Abstention: Defendants urge that even if abstention on Younger grounds is not appropriate the Court should abstain for the reason that there are unresolved questions of state law which, once decided by the New Jersey courts, might eliminate the federal constitutional and statutory questions raised in this action. Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941). Defendants point not only to the proceeding before the Board of Architects but also to the Lepley and Marron case, which could result in a court ruling which would validate plaintiffs' actions which the Board has challenged.
There are at least two questions of statutory interpretation which have not been decided by the New Jersey courts.
N.J.S.A. 45:3-10 proscribes the practice of architecture "in this state" or engaging "in this state" in the business of preparing plans, specifications and preliminary data for the erection of any building without certification by the New Jersey State Board of Architects. Whether Deck House's preparation of plans and specifications in Massachusetts and the distribution of such plans and specifications in connection with the sale of manufactured houses erected in New Jersey and elsewhere throughout the United States constitutes the practice of architecture in New Jersey within the meaning of N.J.S.A. 45:3-10 is a question which can only be resolved by the New Jersey courts.
One federal court dealing with circumstances quite different from the circumstances in the present case held that a Maryland architectural corporation which prepared plans and specifications for a New Jersey resident for a building to be constructed in New Jersey and which had them certified by an employee who was a New Jersey architect, had violated N.J.S.A. 45:3-10. The Court concluded that New Jersey law prohibits the practice of architecture by a corporation and it prohibits the practice of architecture by a person who is not licensed in New Jersey. It found that the procedures used by the Maryland corporation were an illegal subterfuge designed to evade New Jersey's law and, as such, precluded recovery of compensation for architectural services. Dalton, Dalton, Little, Inc. v. Mirandi, 412 F. Supp. 1001 (D.N.J.1976).
Another federal court held that a Florida statute defining real estate brokers as persons who shall "in this state" agree to perform certain services "was not intended to reach persons who rendered brokerage services outside of Florida" in connection with Florida real estate. Lucas v. Gulf & Western Industries, Inc., 666 F.2d 800 (3d Cir. 1981).
Neither of these cases, of course, controls the meaning to be given to the language of N.J.S.A. 45:3-10. They simply suggest that the meaning is not free from doubt and that New Jersey courts might well construe it in a manner which would eliminate some or all of the federal questions as to Deck House's activities in New Jersey.
Similarly, the New Jersey courts might construe the statutes in a manner which would validate Laibow's practice of reviewing Deck House's plans and certifying them if he found them to be in compliance with all New Jersey and other applicable requirements and standards. At least one court has held such a review and certification to constitute "preparation" of plans, obviating the necessity of completely redrawing plans prepared by someone else in order to meet statutory requirements. Medlin v. Florida State Bd. of Architecture, 382 So.2d 708 (Fla.Dist.Ct. of App.1979). The decision of Judge Wiley in the Lepley and Marron case suggests the possibility of a similar result in New Jersey.
The Pullman doctrine requires that the state courts be given an opportunity to decide the state law questions before the federal court addresses the federal questions and in the process adopts a possibly erroneous interpretation of the state statutes. To accomplish this end, I will stay proceedings in this case to give the parties an opportunity to complete the proceeding before the Board of Architects and, if any party elects to do so, to pursue appropriate appeals in the state courts. Plaintiffs have the option of reserving their right to litigate the federal questions here by recording the appropriate reservation of that right in the state proceedings, England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S. Ct. 461, 11 L. Ed. 2d 440 (1964). I will reserve jurisdiction in the event it becomes necessary to deal with the federal questions.
D. Interim Relief: Having decided to stay proceedings in this Court, it becomes necessary to determine whether interim relief is appropriate in order to prevent any federal rights from being lost while the state proceedings are being pursued.
The question whether preliminary injunctive relief should be granted in a Pullman abstention case was addressed in New Jersey-Philadelphia, Etc. v. N.J. State Bd., 654 F.2d 868, 887 (3d Cir. 1981).
Since ... a grant of pendente lite relief is not a final interpretation of state law by a federal court and leaves a state court entirely free to place any construction on its law, limiting or otherwise, which it determines to be consistent with the first amendment (in this case the Commerce Clause), Pullman considerations have very little weight at the preliminary injunction stage. Once the court has concluded that an immediate dismissal on Younger grounds is inappropriate, a motion for preliminary injunctive relief, especially in first amendment contexts, ought, we think, to be considered without regard to the separate question whether a Pullman stay of final hearing is appropriate. Assuming the case is not to be dismissed outright, the district court should be guided by the classic requirements for a preliminary injunction: