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In re Kallen

Decided: February 9, 1983.

IN THE MATTER OF WILLIAM J. KALLEN, RESPONDENT


On certification to the Superior Court, Appellate Division.

For reversal and reinstatement -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. For affirmance -- None. The opinion of the Court was delivered by Garibaldi, J.

Garibaldi

This case raises the important issue of the relationship between state administrative agencies and the Office of Administrative Law ("OAL") in the conduct of contested cases. Specifically, does an administrative law judge have the authority to refuse an Order of Remand from an agency head issued for the purpose of admitting evidence that was not presented at the initial hearing?

The Director of Motor Vehicles, relying on evidence produced on remand before an administrative law judge, suspended for 90 days the driving privileges of respondent, William J. Kallen, for his refusal to submit to a breath chemical test under N.J.S.A. 39:4-50.4 (current version at N.J.S.A. 39:4-50.4a (1982)). The Appellate Division reversed the Director's Final Decision in an unreported opinion. We granted the State's petition for certification. 89 N.J. 449 (1982).

We reverse the judgment of the Appellate Division and reinstate the Final Decision and Order of the Director.

I.

On October 14, 1979, Kallen was arrested by a police officer for driving while under the influence of alcohol in violation of N.J.S.A. 39:4-50, and taken to the police station for a breathalyzer test.

At the station, Kallen agreed to take the breathalyzer test. Since the arresting officer was not a certified breathalyzer

operator, the test was administered by another police officer who had such qualifications. After Kallen twice blew insufficient air into the breathalyzer to analyze his blood-alcohol level, the breathalyzer operator advised Kallen that his actions constituted a refusal to take the breath chemical test.

On November 5, 1979, the Director of the Division of Motor Vehicles (the "Director") notified Kallen of a proposed suspension of his license for ninety days under N.J.S.A. 39:4-50.4 for his refusal to take the breath chemical test. Kallen filed a timely request for a hearing, which was held before an Administrative Law Judge ("ALJ") on January 22, 1980. The only witnesses to testify at that initial hearing were Kallen and the arresting officer. At its outset, Kallen's attorney stipulated that the arresting officer had reasonable grounds to believe that Kallen was operating his motor vehicle while under the influence of alcohol and that Kallen was in fact arrested. The only contested issue at the initial hearing was whether Kallen had refused to take the breathalyzer test.

On February 7, 1980, the ALJ issued his initial decision, in which he found that the State had failed to establish by a preponderance of evidence that Kallen had refused to take the breathalyzer test. The ALJ noted that the arresting officer was not an expert in the use of the breathalyzer machine, and therefore not qualified to testify on whether the limited amount of air Kallen blew into the device was adequate for testing purposes. He further opined that the State had given no legally sufficient reason for its failure to produce the breathalyzer operator. Since the State had failed to meet its burden of proof, the ALJ recommended that the charges against Kallen be dismissed.

Twenty days later on February 27, 1980, the Police Chief of the initiating municipality requested the Director to reopen the case to permit the testimony of the breathalyzer operator. Kallen objected to a rehearing.

On March 25, 1980, the Deputy Director for the Division,*fn1 granted the request and remanded the case to the ALJ to reopen the hearing to take the testimony of the breathalyzer operator. In his decision, the Deputy Director stated these reasons for the remand:

Under the circumstances of this case, I feel that for a full and true disclosure of the facts in this case, this matter should be rescheduled for another hearing at which time the breathalyzer operator . . . shall testify . . . .

The remand hearing was held on May 12, 1980. On June 13, 1980, the ALJ issued his Decision on Remand. He concluded that the remand was fundamentally unfair because the sole purpose of the remand was to present evidence that with reasonable diligence could have been presented at the initial hearing. Accordingly, he claimed the authority to refuse to comply with the Director's Order of Remand and recommended dismissal of the charge.

However, to avoid the necessity of another hearing, the ALJ did allow the breathalyzer operator to testify, and concluded that if the operator's testimony were properly before him, the State had proved that Kallen had refused to take the breath chemical test in violation of N.J.S.A. 39:4-50.4.

On July 18, 1980, the Director reversed the ALJ's recommendation, upholding the propriety of the remand and suspending Kallen's driving license for 90 days. Kallen appealed to the Appellate Division, which stayed the suspension of Kallen's driving privileges.

The Appellate Division, in reversing the Director's final decision, relied on the "fundamental fairness" doctrine set forth in State v. Tropea, 78 N.J. 309 (1978), and a newly-enacted rule of the Office of Administrative Law, N.J.A.C. 1:1-16.5(c) to hold that the ALJ had the authority to refuse to comply with the Order of Remand.

II.

This case concerns the relationship between state administrative agencies and the Office of Administrative Law. Here, the Court must consider whether the ALJ's action in refusing to comply with the Order of Remand from the Deputy Director constitutes an undue interference with the agency head's right to make the final decision in a contested case. In Unemployed-Employed Council of N.J. v. Horn, 85 N.J. 646 (1981), and In re Uniform Adm'n Procedure Rules, 90 N.J. 85 (1982), we established principles that are relevant here.

An agency head has the exclusive right to decide contested cases in administrative hearings. As we recently wrote:

Because the agency has the statutory jurisdiction to set and enforce regulatory policy, the final decision in contested cases is entrusted solely to the agency head. [ In re Uniform Adm'n, 90 N.J. at 96.]

The Legislature's intent to give agency heads final decision-making power is embodied in at least three statutory provisions. First, N.J.S.A. 52:14B-10(c) gives the head of an agency the power to "adopt, reject or modify the recommended report and decision" ...


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