On appeal from Superior Court of New Jersey, Law Division, Hudson County, Complaint Nos. HC2005-104552; SC2005-001198; HC2006-002079; SC2005-001197; HC2006-002100; HC2006-104560; HC2006-104561; SC2006-005932.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2007
Before Judges Parrillo and Graves.
Defendants John Sweeney and Trophy Trucks appeal from an order entered by the Law Division on October 17, 2006, denying their motion to reinstate their appeal from a final judgment of the Jersey City Municipal Court in the amount of approximately $5,800,000. According to defendants, their appeal was initially dismissed by the Law Division on September 29, 2006, because of their inability "to post a 12.6 million dollar bond" pursuant to R. 4:74-3(a). After reviewing the record in light of the contentions advanced on appeal, we reverse and remand to the Law Division for further proceedings.
The factual record is quite sparse. We have not been provided with: (1) copies of the fire code violations and other charges filed against defendants; (2) the final judgment entered by the Jersey City Municipal Court; or (3) any findings, conclusions, or reasons for the orders entered by the Law Division. And the State has failed to file either a brief or a statement in lieu of a brief, as required by R. 2:6-4(d). According to defendants, in February 2005, they received a Notice of Violations and Order from a Jersey City fire official directing them to correct several fire code violations.
Defendants contend that on September 8, 2005, after they had "corrected and abated" the alleged violations, they were served with "an Order to Pay Daily Penalty and Abate Violations for the violations of: (1) Improper storage of hazardous material; and (2) Imminent Hazard." This order alleged "defendants were in non-compliance for 210 days which result[ed] in a penalty in the amount of $1,055,000.00." Defendants contend they pled not guilty to each of the original charges as well as additional charges filed against them. Nevertheless, according to defendants, the Jersey City Municipal Court "imposed a penalty of approximately $5.8 million dollars," together with a "suspended 180 day jail sentence" without a trial and without any findings of fact or conclusions of law. Thus, defendants argue that the municipal court judge violated their "[d]ue [p]rocess rights by failing to provide an adequate adjudication."
Defendants filed an appeal with the Law Division, however, on September 29, 2006, their appeal was dismissed because defendants "failed to file a bond pursuant to Rule 4:74-3(a)."
In pertinent part, R. 4:74-3(a) states:
A party appealing from a judgment of a municipal court imposing a penalty shall file a notice of appeal with the clerk of the municipal court describing the judgment, stating that an appeal is being taken therefrom to the Law Division of the Superior Court in the county of venue and stating whether or not a verbatim record was made in the municipal court. A copy of the notice of appeal shall be served upon the opposing party, and a copy filed with the deputy clerk of the Superior Court in the county of venue. On appeal from a judgment imposing a penalty appellant shall deliver to the municipal court a deposit in cash or a bond with at least one sufficient surety, in double the amount of the judgment; or if the judgment imposes no money penalty or imposes imprisonment with a money penalty, then in such sum as the court fixes, conditioned upon the prosecution of the appeal and compliance with such further order or judgment as may be entered.
On October 9, 2006, defendants filed a notice of motion to reinstate their appeal or, alternatively, to permit the filing of an action in lieu of prerogative writs to challenge the constitutionality of R. 4:74-3(a). In their brief in support of their notice of motion to reinstate their appeal, defendants argued that they were unable to post a bond in the amount of $11.6 million dollars (double the amount of the judgment), and that the requirement was excessive and unconstitutional:
For instance, the United States Supreme Court has ruled that the burden of the costs of a trial transcript effectively deprived criminal defendant of his constitutional right to appeal. Griffin v. Illinois, 351 U.S. 12[, 76 S.Ct. 585, 100 L.Ed. 891] (1956). Court fees of $60 amount to an unconstitutional barrier to an indigent wife seeking a divorce. Boddie v. Connecticut, 401 U.S. 371[, 91 S.Ct. 780, 28 L.Ed. 2d 113] (1971). . . . A requirement that appellants post an undertaking in an amount equal to double the judgment violates an indigent defendant's due process. Credit [Assocs.], Inc. v. Harp, 794 P.2d 343[, 282 (Mont. 1990)].
In Whitmore v. N.J. Div. of Motor Vehicles, 137 N.J. Super. 492 ([Ch. Div.] 1975), the plaintiffs attacked the validity of the Garage Keepers Lien Act for the prerequisite of posting the entire disputed garage keeper's bill or a double bond in order to be heard judicially. The court held that the statutory remedy is blocked to plaintiffs who are disputing in good faith but are without sufficient funds to advance the disputed excess in cash or to pay the premium on a double bond. Id. at 499. Therefore, the Garage Keepers Lien Act [was] held to be unconstitutional under the 14th Amendment in failing to afford plaintiffs the opportunity to be heard judicially. Id. at 500.
The Law Division order that denied defendants' motion to reinstate their appeal does not contain any findings of fact or conclusions of law and, according to defendants, the Law Division judge did not provide any reasons for denying their motion. In their present appeal, defendants argue, as they did below, that Rule ...