The State's cross-motion carried no return date and so was never listed on the motion calendar, and no notice was issued by the clerk to set an argument date on the cross-motion.
In any event, it is now plain that the named defendants do not intend to incur expense in answering the motion, and that plaintiff's motion and the State's cross-motion present the basic issue as one of law, making it ripe for decision although the court believes it to be presented in somewhat hypothetical fashion because of the absence of proof in the record here of the details of the Hudson County District Court action.
Putting that doubt to one side, it is clear to the court as a matter of law that plaintiff's frontal broadside attack on New Jersey's statutory procedure for the summary dispossession of tenants cannot be sustained.
The attack is grounded entirely on the proposition that a landlord desiring to repossess rented premises may choose between a summary proceeding for immediate possession under NJSA 2A:18-53 where the tenant is not within the main group of residential tenants covered by the Anti-Eviction Act, NJSA 2A:18-61.1, et seq., and under the latter statute when applicable (as here, evidently) on the one hand, and a plenary common-law action for ejectment, for which NJSA 2A:35-1 is the legislative declaration.
It is said that by reason of Peterson v. Albano, 158 N.J.Super. 503, 386 A.2d 873 (App. 1978) the landlord who chooses the summary proceeding authorized by NJSA 2A:18-53 or 61.1 as the nature of the tenancy may happen to be can prevent the tenant from demanding a jury trial, while a landlord who wants a jury trial may bring this suit as a plenary ejectment action via NJSA 2A:35-1. This pattern it is said, puts in the landlord the full choice whether the litigation will be open to trial by jury or not, leaving the tenant powerless to exercise an equivalent option. This it is argued, is a denial of equal protection of the laws guaranteed by the Fourteenth Amendment and a valid basis for this § 1983 lawsuit. The claim is also made that the question is to be tested by the "strict scrutiny" or "compelling interest" test rather than by the "rational basis" test.
The case is squarely controlled by Lindsey v. Normet, 405 U.S. 56, 31 L. Ed. 2d 36, 92 S. Ct. 862 (1972) which sustained an Oregon statute of similar nature against an even broader attack.
Pernell v. Southall Realty, 416 U.S. 363, 40 L. Ed. 2d 198, 94 S. Ct. 1723 (1974), which invalidated a like federal statute for the District of Columbia for failure to provide for jury trial, is of no help to plaintiff because its outcome rests on the Seventh Amendment provision for jury trial in civil cases, applicable only to the federal government and never applied (so far as the court can ascertain) to the States.
The court also remains of the view that the right to trial by jury in summary dispossess cases, going back to the 1847 statute analyzed before is still in force as NJSA 2A:18-16.
Plaintiff argues that in Peterson v. Albano, supra, there was a notice of appeal as well as a petition for certification, that latter being denied, 78 NJ 337, 395 A.2d 205 (1978). She attaches to her brief a copy of an order of the Supreme Court in Peterson, #M-12, September Term, (1978), which read in its text:
This matter having been duly presented to the Court, it is ORDERED that the motion to dismiss appeal is granted.