On appeal from the Superior Court of New Jersey, Chancery Division, Civil Part, Burlington County, BUR-C-000141-05.
The opinion of the court was delivered by: Kestin, P.J.A.D. (retired and temporarily assigned on recall).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 17, 2007
Before Judges Kestin, Payne and Lihotz.
This matter is before us on an order of transfer from the Chancery Division because of jurisdictional considerations. See R. 1:13-4; R. 2:2-3(a)(2). Following the transfer, defendant, Bureau of Rooming and Boarding House Standards (Bureau) in the Division of Codes and Standards in the Department of Community Affairs, moved for a final remand and to supplement the record. We denied the former motion and reserved disposition on the latter.
After fully considering the record, in the light of the arguments advanced by the parties and prevailing legal standards, we now remand the matter to the agency for re-transmittal to the Office of Administrative Law (OAL) for a contested-case hearing and initial decision on all issues and reference, in turn, to the agency head for final decision. See N.J.S.A. 52:14B-10. We dismiss the pending motion to supplement the record, without prejudice, subject to such determinations as the administrative law judge (ALJ) assigned to the case may make in the conduct of the hearing regarding the record and the receipt of evidence and argument.
As far as we can tell from the record on appeal, issues between the parties date from 2001, when they entered into a settlement agreement in respect of alleged violations of the Rooming and Boarding House Act of 1979 (the Act), N.J.S.A. 55:13B-1 to -21, regarding property in Cinnaminson, in which the individual plaintiff resided. The instant matter began on January 28, 2004, when the Bureau, based on an investigation, determined that the property was being used as a "boarding house" within the meaning of the Act and that plaintiffs were in violation of N.J.S.A. 55:13B-7. When plaintiffs resisted the citation, the matter was transmitted to OAL as a contested case. Plaintiffs raised a series of constitutional questions based upon the First Amendment and other rights guarantees,*fn1 as well as procedural due process considerations; and they invoked 42 U.S.C.A. § 1983. The parties' briefs describe differently the procedural events that then transpired.
According to plaintiffs, after they raised "multiple constitutional issues, including the constitutionality of the [Act] and related issues of construction/interpretation[,]" the ALJ advised he had conferred with the head judge of the OAL and it was determined the OAL did not have jurisdiction to hear and decide such issues, and that if [plaintiffs] wished to pursue same, they would have to go before the Superior Court for relief.
[Plaintiffs] timely proceeded before the . . . Chancery Division . . . on an Order to Show Cause (OSC) basis with Verified Complaint. According to defendant, the contested case in OAL was scheduled before the ALJ on March 8, 2005.
Due to a last minute request for an adjournment by [plaintiffs] due to the sudden onset of a medical condition, the plenary hearing date was converted to an in-person conference to address all issues relating to the matter, including a pending pro hac vice application and constitutional claims. [The ALJ], at that time, rescheduled the case for plenary hearing on October 17 and 18, 2005, and ordered that the case would not be adjourned except under the circumstance of stay of the proceedings issued by order in the State Superior Court.
The October 17 and 18, 2005 administrative hearing did not go forward because, on September 9, 2005, [plaintiffs] had filed an Order to Show Cause with verified complaint with the . . . Chancery Division, requesting a stay of the administrative hearing.
The parties agree on what happened next. As we have noted, because of jurisdictional considerations, the Chancery Division, on October 12, 2005, transferred the case to us.
Plaintiffs contend that the "action to hear and decide constitutional issues [is] maintainable in the Appellate Division." They then proceed to argue the merits of the constitutional issues and related questions. Defendant Bureau, while contending that a remand for a contested case hearing is required, joins issue on those ...