On certification to the Superior Court, Appellate Division, whose opinion is reported at 205 N.J. Super. 411 (1985).
For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi, and Stein. For affirmance -- None. The opinion of the Court was delivered by Handler, J.
The issues in this appeal are whether, upon the submission to the head of an administrative agency of a recommended determination by an administrative law judge in a contested matter heard in the Office of Administrative Law, a decision by the administrative agency made without a full quorum constitutes a failure to take action upon the recommended decision; and, if it does, whether the recommended determination of the administrative law judge is deemed approved under N.J.S.A. 52:14B-10. The appeal calls upon us to review these issues in light of an opinion of the Appellate Division that ruled that decisional action taken by the administrative agency without a full quorum was legally ineffective, and that therefore the recommended determination of an administrative law judge under such circumstances would be deemed approved under N.J.S.A. 52:14B-10.
This litigation originated in the eighth horse race held at Freehold Race Track on March 31, 1984. In that race, James King, Jr., a licensed harness driver, was driving a horse called Nancy's Best Bet. Despite the fact that Nancy's Best Bet was a rough-gaited horse, King drove an excellent race until approximately the final 95 feet of the home stretch. At that point a horse in front of King's broke stride and the driver pulled to the outside. King "grabbed" and steered his horse to the inside, and finished second by a head.
King's "place" finish was greeted with skepticism. On April 5, 1984, the Board of Stewards of the New Jersey Racing Commission (Commission) found that King had driven his horse "with design to prevent his winning" in violation of N.J.A.C. 13:71-20.10(a), and imposed a sixth-month suspension from racing. Two weeks later, the State Steward affirmed the fine and suspension. King appealed to the Commission, which referred the matter to the Office of Administrative Law (OAL) as a contested case. Following a hearing, the Administrative Law Judge (ALJ) issued an initial decision on September 6, 1984, concluding that no violation had occurred and that King should not be suspended. The initial decision was subject to review and final determination within the time limits prescribed in N.J.S.A. 52:14B-10.
The Commission sought and received two time extensions, which would have expired on January 11, 1985. On January 8, 1985, by a vote of two of its four members, the Commission rendered a decision rejecting the ALJ's recommendation, instead concluding that King had violated Commission regulations and suspending him for six months. King filed a notice of appeal with the Appellate Division, which stayed imposition of the suspension pending appeal.
In a reported decision, 205 N.J. Super. 411 (1985), the Appellate Division held that the Commission had voted without a quorum and therefore its decision rejecting the initial decision of the ALJ was invalid and void. It ruled that the ALJ decision is deemed to be adopted by the Commission under N.J.S.A. 52:14B-10. Accordingly, the court reversed the decision of the Commission and "remanded the matter for the processing" of the "Initial Decision of the ALJ as the final agency decision in this matter." Id. at 417.
The Commission filed a petition for rehearing, which the Appellate Division denied. The Commission then filed a petition for certification and King filed a cross-petition with this
Court. We granted the Commission's petition, but denied the cross-petition. 103 N.J. 471 (App.Div.1986).
The question that we consider initially is whether the decision taken by the Commission rejecting the recommended decision of the ALJ was rendered by a quorum and was therefore valid. On this point, we agree with the Appellate Division.
Under N.J.S.A. 5:5-29, "[a] majority of the Commission shall constitute a quorum for the transaction of any business, for the performance of any duty, or for the exercise of any power of the commission." On the date upon which the Commission determined the matter, three of the four members of the Commission were present. Indisputably three commissioners were required to provide a majority quorum of the four-member Commission.
The existence of a quorum on that day turns solely on the status of Commissioner Stuart O. Goldsmith. Goldsmith was physically present but had recused himself from these proceedings at King's request.*fn1 This recusal left only two commissioners to make the final decision.
The Appellate Division observed that the general rule in state and federal courts in New Jersey is ...