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Middlesex County Bar Association v. Parkin

Decided: July 14, 1988.

MIDDLESEX COUNTY BAR ASSOCIATION, A NON-PROFIT CORPORATION OF THE STATE OF NEW JERSEY, SOMERSET COUNTY BAR ASSOCIATION, A NON-PROFIT CORPORATION OF THE STATE OF NEW JERSEY, JULIUS J. FEINSON, ESQ., PATRICK R. CAULFIELD, ESQ., ROBERT N. GOLDEN, ESQ., EDWARD H. HERMAN, ESQ., MURRAY WEINGARTNER, ESQ., JACK WYSOKER, ESQ., RICHARD H. THIELE, ESQ., ROBERT J. YOUNG, ESQ., RICHARD GALE, ESQ., RAYMOND WENSTRON, ESQ., LESTER S. GOLDBLATT, ESQ., GERALD M. ZASHIN, P.A., JANIS L. TURNER, ESQ., AND RICHARD E. BOARDMAN, ANDREW MICHTA, ELDA WARD, FRANK BANDERECK, RAYMOND SICKLER, RICHARD CLESS AND ROSE REGLIEC, WIDOW OF MICHAEL REGLIEC, PLAINTIFFS-APPELLANTS,
v.
HARRY G. PARKIN, DIRECTOR OF WORKERS' COMPENSATION, ALFRED J. NAPIER, JUDGE OF COMPENSATION, CHIEF, HON. CHARLES SERRAINO, COMMISSIONER OF DEPARTMENT OF LABOR, HON. THOMAS H. KEAN, GOVERNOR OF THE STATE OF NEW JERSEY, SEN. JOHN RUSSO, PRESIDENT OF THE SENATE OF THE STATE OF NEW JERSEY, THE DEPARTMENT OF LABOR, STATE OF NEW JERSEY, THE SENATE OF THE STATE OF NEW JERSEY, W. CARY EDWARDS, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS



On appeal from final actions of the Commissioner of Labor.

Furman, Long and Scalera. The opinion of the court was delivered by Furman, P.J.A.D.

Furman

[226 NJSuper Page 389] Three discrete issues are before us on consolidated appeals: (1) Whether a separate workers' compensation court must be

provided in each county pursuant to N.J.S.A. 34:15-53; (2) Whether defendant Parkin is holding office illegally as Director of the Division of Workers' Compensation because he was not appointed by the Governor and confirmed by the Senate pursuant to N.J.S.A. 34:1A-12; and (3) whether defendant Serraino, Commissioner of the Department of Labor, abused his discretion in denying plaintiffs' application for a hearing on charges of misconduct in office against defendants Parkin and Napier, Chief Judge of Compensation.

The first issue arose because of the shutdown of workers' compensation courts in Middlesex and Somerset Counties. Workers' compensation courts have been reopened in both counties. We are informed that workers' compensation courts are now provided in all counties except Salem, Gloucester and Cape May. Workers' compensation cases from those counties are assigned to courts in adjoining counties. The Attorney General argues for a dismissal on the ground of mootness. We reject that argument because there has been a pattern of shutdowns of workers' compensation courts in various counties and the issue of the construction of N.J.S.A. 34:15-53 is, thus, likely to recur, In re Conroy, 190 N.J. Super. 453, 454-460 (App.Div.1983), rev'd on other grounds 98 N.J. 321 (1985).

N.J.S.A. 34:15-53 provides in pertinent part:

The [workers' compensation] petition shall be heard either in the county in which the injury occurred or in which the petitioner or respondent resides, or in which the respondent's place of business is located, or in which the respondent may be served with process.

The State argues that the last cited criterion provides the Division with unfettered power to schedule hearings in any vicinage because a respondent is theoretically subject to process anywhere in the State. We reject this reading of the statute which effectively renders the statutory language nugatory.

Literally, the statute mandates a hearing in each county of the state, if there is a coincidence of all the criteria for venue in one county only. One county may be the place of residence of both parties, the place where the injury occurred, the place of

business of the employer and the only county where the employer may be served with process because he neither is physically present nor conducts any business elsewhere. But the statute does not mandate that, in counties with a relatively minimal caseload, a permanent workers' compensation court be established. In such counties, both petitioner and respondent may voluntarily travel to the workers' compensation court in an adjoining county to which they are assigned for disposition of their case. If either insists on strict compliance with N.J.S.A. 34:15-53, under the unusual circumstance that all the criteria for venue fit one county only, we would view the provision of a temporary hearing facility in that county as fully complying with the statutory mandate.

Prior to the reorganization of what was then the Department of Labor and Industry in 1972, the Director of the Division of Workers' Compensation was appointed by the Governor with the advice and consent of the Senate pursuant to N.J.S.A. 34:1A-12. The 1972 reorganization plan, which was transmitted by the Governor and approved by the Legislature, N.J.S.A. 52:14C-1 et seq., transferred to the Commissioner of Labor and Industry the authority to appoint all Division Directors in the department "to serve at his pleasure." It provided that all statutes inconsistent with any of its provisions "are superseded to the extent of such inconsistencies."

In 1982 the Legislature approved another reorganization plan, N.J.S.A. 34:1A-1, prepared by the Governor for the Department of Labor, formerly Department of Labor and Industry. Although that plan specifically states that the 1972 reorganization plan is "hereby abolished," it does not deal with the method of appointment of Division Directors, and it provides generally for the ...


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