January 31, 2011
JYOTSHNA O'HARE, MIA SCANGA AND SEBASTIAN BERNHEIM, PLAINTIFFS-APPELLANTS,
POONAM ALAIGH, COMMISSIONER, N.J. DEPARTMENT OF HEALTH AND SENIOR SERVICES, IN HIS OFFICIAL CAPACITY, N.J. DEPARTMENT OF HEALTH AND SENIOR SERVICES, FAYE SORHAGE, DIRECTOR, OFFICE OF INFECTIOUS AND ZOONOTIC DISEASE, IN HER OFFICIAL CAPACITY, COLIN CAMPBELL, ASSISTANT DIRECTOR, OFFICE OF INFECTIOUS AND ZOONOTIC DISEASE, IN HIS OFFICIAL CAPACITY, JANET DEGRAF, DIRECTOR, OFFICE OF COMMUNICABLE DISEASE, IN HER OFFICIAL CAPACITY, JOSEPH AIELLO, OFFICE OF ANIMAL WELFARE, IN HIS OFFICIAL CAPACITY, OFFICE OF ANIMAL WELFARE, OFFICE OF INFECTIOUS AND ZOONOTIC DISEASE, OFFICE OF COMMUNICABLE DISEASE, DIVISION OF EPIDEMIOLOGY, ENVIRONMENTAL AND OCCUPATIONAL HEALTH, AND RUTH CHARBONNEAU, DIRECTOR OF LEGAL AND REGULATORY AFFAIRS FOR THE DEPARTMENT OF HEALTH AND SENIOR SERVICES, IN HER OFFICIAL CAPACITY, DEFENDANTS-RESPONDENTS.
On appeal from the New Jersey Department of Health and Senior Services.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 5, 2011
Before Judges Fisher and Sapp-Peterson.
In this appeal, we are asked to consider whether the Department of Health and Senior Services (Department) timely and adequately complied with our decision in Liberty Humane Society, Inc. v. Jacobs, No. A-0902-06 (App. Div. June 24, 2008). Although we are chagrined at the Department's lengthy and rather flagrant disregard of our earlier mandate, we find nothing arbitrary, capricious or unreasonable in the decision rendered by the Department at long last, and affirm.
The record in the earlier appeal revealed that Liberty Humane Society, Inc. (LHS) privately investigated what it viewed as the improper and unauthorized conduct of two animal control officers, Joseph Frank and Emanuel Machado.*fn1 LHS provided the results of its investigation to the Department and other agencies but the Department conducted no investigation and imposed no discipline.
After months of unsuccessfully urging the Department's intervention, on August 29, 2006, LHS filed an action in lieu of prerogative writs seeking to compel the Department to revoke the animal control certifications of Frank and Machado. A Law Division judge denied relief and dismissed the complaint for lack of jurisdiction.
LHS appealed. In our earlier opinion, we rejected the Department's contention that it was not authorized to revoke the certification of an animal control officer, reasoning that "the Department is the only entity responsible for certifying animal control officers, and it alone may revoke the certification of an animal control officer." Id., slip op. at 13. In addition, we recognized that even though N.J.S.A. 4:19-15.16 "does not explicitly state that the Department must investigate allegations of misconduct regarding certified animal control officers, in order to avoid an absurd result given that there is no other entity authorized to perform this function, the Department implicitly has a duty to investigate the allegations and take appropriate action by revoking certification if warranted." Id., slip op. at 14-15. We further explained the rationale behind our holding in the following way:
It defies logic to argue that the Legislature intended for the Commissioner to establish standards for the training of animal control officers but did not create a mechanism to revoke the certification of those who violate their statutory obligations. Because the Department has unilateral discretion over certification, it follows that the Department would have the same discretion to determine when certification must be revoked. To take the Department's argument to an extreme, an animal control officer once certified could transgress any statutes regarding impoundment of animals and never lose his or her certification as long as the officer is not convicted of animal cruelty. Because the Department is the only entity with the authority to do so, it must investigate allegations of misconduct in order to determine whether a certification should be revoked. [Id., slip op. at 16.]
As a result, we reversed "the Department's determination that it lacked authority to investigate or revoke the certifications of the animal control officers and remanded the case to the Department to review and consider the allegations as well as make findings of fact to create a record appropriate for appellate review." Id., slip op. at 18. We did not retain jurisdiction.
To say that the Department took no immediate steps to comply with our June 24, 2008 mandate would be an understatement. When LHS's periodic prodding bore no fruit, LHS moved in this court in January 2010 for an order in aid of litigant's rights. For procedural reasons, we denied that motion; however, we did not foreclose LHS's right to file a notice of appeal seeking review of the Department's alleged refusal to comply with our mandate, citing Hosp. Ctr. at Orange v. Guhl, 331 N.J. Super. 322, 329 (App. Div. 2000). When LHS took no further action, Jyotshna O'Hare, Mia Scanga and Sebastian Bernheim (appellants) filed a notice of appeal on April 26, 2010.
On May 7, 2010, approximately two weeks after the notice of appeal was filed, the Department issued letters to Frank and Machado, determining that they had acted beyond their authority. Frank and Mechado were directed to complete a scheduled day of training by a date certain to remain in good standing.
Notwithstanding the Department's ultimate disposition of LHS's claims against Frank and Mechado, appellants contend by way of this appeal that the Department willfully failed to comply with our mandate, and that the May 7, 2010 determinations were the product of an inadequate investigation. We share appellants' consternation over the Department's failure to comply with our mandate in a timely manner. The Department has argued in mitigation that our prior mandate did not specify the time within which the Department was required to act; that contention is certainly true, but it hardly justifies the Department's pretermission of our mandate for nearly two years. Just as governmental agencies have a right to assume we will not readily intervene into matters within their jurisdiction, see, e.g., Clowes v. Terminix International, Inc., 109 N.J. 575, 587 (1988), and that we will defer to an agency's findings when falling within its expertise, see, e.g., In re Certificate of Need Granted to the Harborage, 300 N.J. Super. 363, 379 (App. Div. 1997), so too we have a right to assume that these governmental bodies will comply with our judgments. Our system of government presupposes "a cooperative accommodation among the three branches of government" that is threatened when one branch chooses to ignore the legitimate actions of the other. Communications Workers of Am. v. Florio, 130 N.J. 439, 449 (1992). We are thus entitled to assume and expect that our judgments will be respected and honored by the other branches of government.
The Department's contention that it lacked sufficient resources to conduct an investigation is unconvincing. The fact that the Department suddenly found the time and resources to investigate and adjudicate the matter within weeks of the filing of the notice of appeal belies the excuses offered to explain the Department's delay for the nearly two preceding years. We have no reason to assume that the Department had any intention to comply with our mandate absent the action taken by appellants here.
We nevertheless reject appellants' argument that the investigation was inadequate even though the Department's inexcusable delay understandably raised suspicion about the legitimacy of the adjudication in question.*fn2 We reject these arguments principally because the Department's investigation essentially concurred with appellants' claim that Frank and Mechado acted improperly. The Department having reached that conclusion, we find no purpose would be served by compelling a more thorough investigation or the creation of a better record for appellate review. We also find no cause for second-guessing the discipline imposed.
In addition, although not necessary to our disposition of this appeal, we conclude that appellants had standing to complain of the improper conduct of Frank and Mechado even though their actions violated the rights of some other pet owner. The earlier proceedings did not so much involve the rights of the other pet owner as it did the fitness of Frank and Mechado to continue to act as animal control officers. That is a matter of public interest, and the undisputed fact that appellants are dog owners residing in a geographic region covered by the animal control officers in question sufficiently imbued appellants with standing to complain of the conduct of Frank and Mechado. See Crescent Park Tenants Ass'n v. Realty Equities Corp., 58 N.J. 98, 107-08 (1971).*fn3
We find insufficient merit in appellants' remaining arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).