statute. Section 5 of the 1847 law authorized a provisional and summary procedure for securing possession from a holdover tenant. As with common law ejectment, it provided for a trial by jury but only by a jury of six as in courts for the trial of small causes then in force, but in 1848 the provision was changed to call for a jury of twelve. This statute was revised in 1874, by an act in which the jury provision was found in sec. 15. That section was reenacted, without referring to the earlier laws, by the Act of April 23, 1888, but the jury provision was omitted.
The question arose in Fry v. Myers, 56 NJL 115, 28 A. 425 (Sup. 1893). In Fry, the tenant in a summary dispossess proceeding demanded a jury and one was summoned and appeared. The justice, however, dismissed the jury (presumably because of the 1888 change) and tried the case without it, giving judgment for the landlord. On certiorari, the writ was allowed because the justice was without jurisdiction to try the case without a jury.
The court observed that before 1847, under ejectment proceedings, a jury was a matter of right unless waived, and that the same was true under the 1847 act for summary dispossess for holdover until 1888 (except that for the one year, 1847-1848, a jury of six was specified).
It also observed that by section 16 of the 1847 Act (the vestiges of which still remain as NJSA 2A:18-59) the Legislature took away the right of appeal or the removal of the proceedings by certiorari "because the party had a right to go before the jury on the facts."
The court expressly eschewed a decision on the constitutionality of the 1888 Act in reference to New Jersey's constitutional guarantee of trial by jury, choosing instead to interpret the statute and to conclude that the provision for jury trial was omitted by mere inadvertence and not by deliberate legislative intent to abolish it in that class of cases.
The express provision was restored, and was certainly there in the revision of 1903, see 1910 Comp. Statutes, "Landlord and Tenant", pp. 3071-3072, sec. 18b. It has stayed on the books ever since and is on the statute books today.
The first major revision after the Compiled Statutes of 1910 was the Revised Statutes of 1937. The jury provision of the Landlord and Tenant Act appeared there as the last sentence of R.S. 2:32-267, which otherwise dealt mainly with matters of practice and procedure.
After adoption of N.J. Const. 1947, and the taking effect of the new Judicial Article on September 15, 1948, the new Rules of Court for the County District Courts spelled out the procedure for demanding a jury in that court by R. 7:8-2. That rule called for a jury demand to be made not later than 10 days after the date for the defendant to appear or answer, but in "landlord and tenant cases, the demand shall be filed and the fee paid by the demanding party at least 1 day before the return day of the summons."
By P.L. 1951, ch. 344, effective January 1, 1952, Title 2 of the Revised Statutes (Administration of Civil and Criminal Justice) was revised as Title 2A, N.J.S. The table showing where provisions of the former Title 2 were to be found in the revised Title 2A, discloses that R.S. 2:32-267, as amended in 1944, was embodied in N.J.S. 2A:18-16. The same table shows that R.S. 2:32-102, which provided for jury trial in the district courts generally, was also embodied in N.J.S. 2A:18-16. The source note for that section discloses that it is derived from both R.S. 2:32-102 and R.S. 2:32-267 as amended.
But all that remained of R.S. 2:32-267 after the Title 2A Revision was the sentence calling for jury trial. The rest of that section dealt with matters of practice and procedure, which had been covered by Rule of Court since September 15, 1948. The rules superseded the statutes on matters of practice and procedure, due to the new constitutional assignment of the function of making rules on practice and procedure to the new Supreme Court. See N.J. Const., 1947, Art. 6, sec. 2, par. 3, and Winberry v. Salisbury, 5 NJ 240, 74 A.2d 406 (1950), cert. den. 340 U.S. 877, 95 L. Ed. 638, 71 S. Ct. 123.
The holding in Winberry is no more than that a court-promulgated rule of procedure supersedes pre-existing statutes (the new rules set a 45 day time limit for filing appeals, while the old statute allowed 1 year). The opinion in Winberry, which affirmed the Appellate Division on the only question before the court, went beyond that question and declared in dictum that the Supreme Court's authority to make rules of practice and procedure was impervious to the qualifying phrase, "subject to law", which was read to mean "substantive law", thus making the phrase redundant and superfluous as observed in Mr. Justice Case's concurring opinion.
In any event, although the question has been followed closely since then, there is no known reported case in which the Supreme Court has actually applied the dictum of Winberry to a statute enacted after a court rule. Those with contemporary recollections know that the Winberry dictum stirred up a veritable storm of controversy which has periodically erupted ever since. The Supreme Court has evidently avoided a constitutional confrontation with the other branches of government, even to the point of accepting sub silentio but without formally conceding the point, the provision in The Evidence Act, 1960, N.J.S.A. 2A:84A-40, that an evidence rule adopted by the court overrides previous statutes on the subject only to the extent that the statute affected is expressly identified by an official footnote. The mechanism has been described with approval, see Waterfront Commission, 39 N.J. 436, at 454-456, 189 A.2d 36 (1963) but of course without conceding that the statute binds the court. It also accepted N.J.S. 2A:84A-37, reserving to the Legislature the authority (if its existence prevails) to alter rules of evidence adopted by the court.
In this context, the decision of the Appellate Division in Peterson, supra is a slender and doubtful basis for accepting plaintiff's claim that she has no right to a jury trial in a summary dispossess proceeding under New Jersey law. The declaration of that right, going back to at least 1847 (and before if ejectment actions are considered) is on the books today as NJSA 2A:18-16. That statute is mentioned in Peterson, but merely in the course of describing the appellant's claim. It is nowhere discussed or dealt with, and certainly not reviewed in the light of its history.
The problem, which is necessarily a delicate one in the federal scheme, is that the 1973 deletion of the reference to landlord and tenant case demands for jury trial in N.J. Court Rule R. 6:5-3 (a) could have no effect beyond removing what was there. What was there, at all times from the first 1948 Rules, was the procedure for demanding a jury trial. The right to a jury trial has always been in the statutes, since at least 1847 and is in there now. Under even the most enthusiastic view of the dictum of Winberry it cannot be rationally claimed (or so it seems to the court) that the allowance or denial of a right to jury trial, as distinguished from the procedure to enjoy it, is a matter of "practice and procedure" for rules of court.
New Jersey's constitutional guaranty of trial by jury goes back to its first Constitution of 1776, Art. 22, and has been continued ever since by N.J. Const. 1844, Art. 1, par. 7, and N.J. Const. 1947, Art. 1, par. 9. For a discussion of the subject, and review of earlier cases, see Board etc. v. N.Y. Central, 10 N.J. 294, at 302-305, 90 A.2d 729 (1952).
Another decision worth noting on the jury issue for landlord/tenant summary dispossess actions is Story v. Walker, 71 N.J.L. 256, 58 A. 349 (Sup. 1904).
Also worth noting is the decision in Pernell v. Southall Realty, 416 U.S. 363, 40 L. Ed. 2d 198, 94 S. Ct. 1723 (1974), holding invalid a federal statute for the District of Columbia that authorized summary dispossess proceedings without a jury trial, as contrary to Amendment 7. The opinion is for 7 members of the court, the other two concurring in result without opinion.
In that case Justice Marshall reviews the common law status of the right to trial by jury in actions for possession of real estate. While scholars may regard the historical review as somewhat revisionist, and while the case is not binding on the Supreme Court of New Jersey on matters of state law, it is nonetheless a decision to be reviewed and considered. See also, N.J. Practice (West), Vol. 23, 1982 pocket part.
Plaintiff also makes no mention of Lindsey v. Normet, 405 U.S. 56, 31 L. Ed. 2d 36, 92 S. Ct. 862 (1972). In that case, a tenant faced with summary eviction proceedings under an Oregon statute resembling New Jersey's in many respects, filed a federal suit first under 42 USC § 1983, challenging the statute on both due process (not raised here) and equal protection grounds. Except for a provision for double bond on appeal (not involved here), the statute was upheld against both kinds of challenge. On the equal protection issue, the court applied the usual "rational basis" test, and not the "compelling State interest" test. The decision is much in point and suggests that plaintiff will not prevail.
From what has been said, it should be plain that plaintiff has not made a showing that she is, in fact, deprived of equal protection as a matter of state law in terms of a jury trial, whether it be by virtue of state statute or state constitution. This court is not the one to decide the question. It merely observes that the claim is of doubtful validity and so the requisite showing for a preliminary injunction has not been made.
The same difficulty is evident in regard to discovery and other trial features. Since 1948 these matters have not been governed by statute but by court rule. Plaintiff attacks the statute, which does not deal with the subject, and ignores the court rules that regulate it.
In fact, plaintiff wholly ignores N.J. Court Rule R. 4:67, which authorizes a wide variety of actions to be handled procedurally in a summary manner, including, no doubt, actions for ejectment under NJSA 2A:35-1.
Plaintiff cites Lugar v. Edmondson Oil, 457 U.S. 922, 939, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982). That case has no application here. As the opinion takes care to record, "The holding today, as the above analysis makes clear, is limited to the particular context of prejudgment attachment", see footnote 21. The present case does not involve that context at all, and beyond that, since no adequate showing has been made that plaintiff was deprived of equal protection, the second element of § 1983 (action under "color of" a state statute) need not be reached or dealt with at this stage.
There is also the matter of a bond. F.R.Civ.P. 65(c) requires security for damages, not merely for costs, in the event a preliminary injunction is issued and later found not to have been warranted. Plaintiff's proofs are that she is indigent and the implication is that she is unable to post bond. That being so, no preliminary injunction can issue in any event. The permission to proceed under 28 USC § 1915(a) does not relieve plaintiff of the obligation to bond for damages.
Nor should there be an advancement or consolidation of the trial on the merits at this time under F.R.Civ.P. 65(a)(2). There is no presentation of any fact material, such as the alleged lease, certified copies of all papers on file in the county district court, or the like. While a variety of facts are discussed in the brief, none of them is established on the record by affidavit, exhibit or other proof. The motion is premature.
Finally, the motion for certification as a class action is denied at this time. If there be any merit in the claim of denial of equal protection (which does not now appear) there will need to be a far more thorough exposition of applicable State law, whether on its constitution, statutes or court decisions, than has been attempted. The subject is an intricate one with a lengthy history and a great mass of pertinent materials (a few of which are noted above) which must be explored with considerable care. The superficial presentation made so far gives the court little confidence that plaintiff can or will adequately represent the putative class.
If the case is to go further, with active, interested parties with something to gain or lose, it will probably be necessary to amend the pleadings.
The challenged statute section, N.J.S.A. 2A:18-53, is evidently the wrong statute. That section, preceded since 1937 by N.J.R.S. 2:32-265, derives from the 1847 statute mentioned above. It was modified in 1974 by what is euphemistically called the "Anti-Eviction Law", whose provisions left NJSA 2A:18-53 applicable only to non-residential tenants and to those residential tenants who rent in owner-occupied premises with not more than two rental units, or who rent space in a hotel, motel or other "guest house" rented to transient guests or seasonal tenants (the language leaves a great deal to be desired since "guests" at a hotel, motel, inn, or the like are not "tenants" at all).
For all other residential tenants, of whom plaintiff Crocker seems to be one, the grounds for summary dispossess are governed not by NJSA 2A:18-53 but by the 1974 statute as amended and supplemented, and which is found at NJSA 2A:18-61.1 et seq. That statute is not challenged, nor are the Rules of Court that apply to summary dispossess proceedings, which are limited to the landlord/tenant relation, and which are much narrower in that respect than common law eviction, as modified by NJSA 2A:35-1, which applies not only where the occupant in possession is a tenant but also where he is not.
Thus, a much more carefully drawn set of pleadings will be needed before the court can afford to put more time into this case. Since the 1974 amendments the statutory pattern has become quite complex and intricate. Plaintiff Crocker is probably wholly unequipped to act as a class representative for a group that includes large retail stores, factories, offices and other premises occupied by substantial commercial tenants. She is probably unequipped to serve for a class that includes residential tenants of "luxury" apartments whose eviction is grounded on conversion of the property to cooperative, condominium or other like form of ownership in severalty.
This problem goes not only to the substance of the suit but also to the proper definition of a class if there is to be a class certification at all. It is worth observing that Greene v. Lindsey, 456 U.S. 444, 72 L. Ed. 2d 249, 102 S. Ct. 1874 (1982), although filed as a class action, was decided without having had a class certified at all.
For the reasons discussed the court will enter an order denying plaintiff's motions for:
1. preliminary injunction against further processing of the Hudson County dispossess proceeding;
2. certification of "all tenants" as a class;
3. advancing trial on the merits and consolidating it with the preliminary injunction hearing as allowed by F.R.Civ.P. 65(a).