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September 22, 1982

IDA CROCKER, etc., Plaintiff,

The opinion of the court was delivered by: BIUNNO

 The complaint in this case asserts a claim under 42 USC § 1983, with jurisdiction claimed under 28 USC § 1331 and § 1343(3), challenging the validity of N.J.S.A. 2A:18-53 as violating the Equal Protection Clause of the Fourteenth Amendment. No allegation is asserted under the Due Process Clause of that Amendment.

 The fact allegations of the complaint are scanty. It says that plaintiff occupies premises at 9 Gifford Avenue, Jersey City, N.J., as a tenant by virtue of a written lease entered into by her and "the defendants", who are nowhere described or identified other than by the listing of their names in the caption of the complaint. No mention is made of the date the lease term began, its duration, or any of its terms. The complaint does not say whether the lease is for the entire building, or for quarters within the building, or how many residential units the building contains if it contains more than one. In fact, the complaint does not allege that the lease is of residential property, or for commercial purposes. There is at most an ambiguous implication, in par. 8, that plaintiff will be "deprived of her home", which could be the case if the lease were of a store and plaintiff chose to live within it.

 It then is alleged that on or about July 1, 1982, "defendant" (without indicating which of the three) caused plaintiff to be served with a summons and complaint demanding possession under NJSA 2A:18-53. The complaint is silent on the question whether the lease term had expired, whether rent had been paid, whether the lease term had been cut short by a notice of termination, notice to quit or demand for possession for breach of any provision of the lease, whether a right of re-entry was reserved, or any of the other facts inevitably involved in this kind of matter.

 Rather, the complaint alleges that under New Jersey law landlords seeking possession of [real] property [from a tenant] have the option to bring a plenary action under NJSA 2A:35-1, et seq., or a summary proceeding under NJSA 2A:18-53. It is alleged that if a landlord sues under NJSA 2A:35-1, the parties are afforded a "plenary hearing" with a full right of discovery, trial by jury and appeal. It is alleged that those rights are prohibited or sharply curtailed in a summary proceeding under NJSA 2A:18-53, and that a defendant/tenant in such a case has no option [which he may exercise of right] to have the suit proceed in a plenary or summary manner.

 Paragraph 6 asserts that by affording the option to proceed in a plenary or summary manner to landlords (as plaintiffs) while denying that option to tenants (as defendants) the State of New Jersey, "without a compelling state interest" has denied to tenants "equal access to the judicial system" in violation of the Equal Protection Clause of the Fourteenth Amendment.

 Immediate and irreparable harm is alleged in paragraph 8, followed by demands for judgment that (a) the statutory scheme violates the Equal Protection Clause; (b) defendants be enjoined from proceeding against defendant under NJSA 2A:18-53, and (c) there be allowed compensatory damages, costs and attorneys fees.

 Six days after the complaint was filed, plaintiff filed a motion for a preliminary injunction under F.R.Civ.P.65(a), or to have trial advanced and consolidated under F.R.Civ.P. 65(a) (2), and for certification of the case as a class action, under F.R.Civ.P. 23. The motion was noticed for August 24, 1982 but since that was not a motion day, the clerk notified plaintiff that the motions were calendared for September 13, 1982.

 There is a verifying affidavit by plaintiff. It incorporates her affidavit for leave to proceed as indigent under 28 USC § 1915. She says that she has limited income (the other affidavit says her only income is $360 [per month?] from the Hudson County Department of Welfare) and that she cannot afford moving expenses, security and advance rental [sic] which would be incurred if she were evicted. She wants to remain as a tenant because the premises afford her and her children a decent and safe place to live. She categorically denies that she or any persons under her control "are doing" any acts which would reasonably [sic] disturb any other residents. She says it is true that for a short time her sister and her children lived with her because they were displaced by a fire, but they have vacated the building and only she and her two children reside there.

 Intervention by New Jersey

 On July 21, 1982, the court issued and sent to Hon. Irwin I. Kimmelman, Attorney General of New Jersey, a certification pursuant to 28 USC § 2403(b) to inform him that the constitutionality of NJSA 2A:18-53 had been drawn into question and of the State's right to intervene. By letter dated September 8, 1982 the court was informally told that the State had decided to intervene. An adjournment was sought for the hearing set for September 13, 1982 to provide time to file papers in response to plaintiff's motion for preliminary injunction and other relief, but the Deputy Attorney General was instructed to appear on September 13th at the motion hearing and that the course to be followed would be resolved then.

 The Mootness Aspect.

 Before the motion hearing of September 13, 1982, and at argument on that day, the court was informed that the Hudson County District Court had heard and decided the dispossess action and had ruled in favor of the tenant (plaintiff here). The defendants here, who are evidently owner/lessor/managing agent of the premises, do not plan to file another dispossess action against Crocker, though they naturally reserve the right to do so in the future should the right to do so come into being on the basis of facts or events later than the last judgment.

 This disposition by the Hudson County District Court obviously precludes any favorable action by this court to grant Crocker's motion for preliminary injunction. There is no longer any pending dispossess action and nothing to be enjoined on any emergency basis. That aspect of the case is obviously moot, and the motion for preliminary injunction must be denied if only for that reason.

 An appeal was taken, and the ruling was reversed to the extent that it ordered dismissal, so that declaratory relief might be considered. In fairness to the Court of Appeals, the record disclosed that it had never been provided with a copy of the transcript of the hearing, and so it was not aware that the tenant had vacated the premises and could not be found. See 61 F.R.D. 381, at 386 (D.N.J.,1973).

 In Ortiz, a hearing had on the declaratory judgment aspect, and class certification was denied, as was a request for convening a 3-judge court [now an anachronism] but the case was retained for decision on the merits. See 61 F.R.D. at 396. Ortiz, however, abandoned further prosecution and the case was eventually dismissed without a ruling on the merits.

 In this case, Crocker's attorney wishes to keep the case alive because the issue is one capable of repetition yet evading review even though the summary dispossess proceeding that was pending when suit was filed here has come to an end. Southern Pacific, etc. v. I.C.C., 219 U.S. 498, 55 L. Ed. 310, 31 S. Ct. 279 (1911); Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973), and many other decisions in that line. The question is inherently jurisdictional, involving the specific existence of a "case or controversy". The reported decisions of our highest court are at least Delphic if not less informative than that, with split votes of 5 to 4 not unusual. See, for example, Super Tire, etc. v. McCorkle, 416 U.S. 115, 40 L. Ed. 2d 1, 94 S. Ct. 1694 (1974) and DeFunis v. Odegaard, 416 U.S. 312, 94 S. Ct. 1704, 40 L. Ed. 2d 164 (1974), decided about 7 days apart, reaching opposite results, and with the later case making no mention of the earlier one. Also, compare Board, etc. v. Jacobs, 420 U.S. 128, 43 L. Ed. 2d 74, 95 S. Ct. 848 (1975) with Sosna v. Iowa, 419 U.S. 393, 42 L. Ed. 2d 532, 95 S. Ct. 553 (1975). A useful note is "Mootness on Appeal in the Supreme Court", 83 Harv. L. Rev. 1672 (1970).

 In any event, the point having come up only informally and shortly before hearing the motion for preliminary injunction, the court is disinclined to dismiss the case as moot although it may well be under the present circumstances.

 The discussion to follow indicates why the court lacks confidence that Crocker is a suitable class representative, as well as its doubt that there is in fact a "case or controversy". The hearing transcript should disclose the emphasis put on the importance of having real parties with a real interest in the outcome, in contrast to an academic debate which conjures up notions of mediaeval theorists arguing the question of the number of angels who can dance on the point of a needle without ...

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