On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. LT-10768-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 7, 2011
Before Judges A. A. Rodriguez, Sabatino and Fasciale.
Plaintiff Newark Housing Authority (NHA) appeals from an October 7, 2010 order dismissing without prejudice its tenancy complaint. The judge ruled that a known registered adult occupant of an apartment unit in a public housing project has a due process right to notice of an eviction complaint against a tenant, filed pursuant to N.J.S.A. 2A:18-61.1e(2) and 2A:18-61.1p. Rather than reach the constitutional issue, we focus on whether the registered adult occupant enjoys protection under the Anti-Eviction Act (the Anti-Eviction Act), N.J.S.A. 2A:18-61.1 to -61.12, as a "functional co-tenant," pursuant to Maglies v. Estate of Guy, 193 N.J. 108, 126 (2007). Because we are unable to determine whether the adult qualifies as a "functional co-tenant," we remand for further proceedings consistent with this opinion.
Plaintiff, a public housing authority (PHA), leased an apartment to defendant Veronica Melvin (Veronica). An NHA tenant profile identified Veronica's adult sister, Fatykeisha Melvin (Fatykeisha), as an authorized occupant of the premises.*fn1
Plaintiff alleged that Veronica's son engaged in drug-related activity, and attempted to evict all of the apartment's occupants.
Plaintiff filed a complaint against Veronica seeking possession of the premises pursuant to N.J.S.A. 2A:18-61.1e(2) and 2A:18-61.1p.*fn2 Plaintiff did not notify Fatykeisha of the eviction proceedings.
Veronica appeared in court on the trial date and agreed to vacate the premises. The judge then entered judgment for possession in plaintiff's favor and plaintiff obtained a warrant of removal of all of the apartment's occupants. Fatykeisha filed an order to show cause (OTSC) to stay her removal. She appeared pro se, and testified that plaintiff failed to provide her with notice of the eviction complaint despite her status as a known authorized occupant for approximately twenty-one years.
The judge agreed with Fatykeisha and dismissed the eviction complaint without prejudice. He concluded that plaintiff violated Fatykeisha's right to procedural due process by depriving her of the opportunity to defend the illegal activity allegations. He explained that, pursuant to N.J.S.A. 2A:18-57, a judgment for possession of the named tenant requires eviction of all occupants. He pointed out that Rule 6:3-4(a) allows occupants to be named as defendants in tenancy actions so that such occupants do not later petition the court after service of the warrant of removal, claiming that their procedural due process rights were violated. The judge filed four amplifications of his decision pursuant to Rule 2:5-1(b).*fn3 This appeal followed.
On appeal, plaintiff argues that the judge erred by concluding that Fatykeisha was denied procedural due process.*fn4
HDLI asserts that the judge misinterpreted Rule 6:3-4(a), and the NAA and NJAA argue that Fatykeisha lacked standing to challenge her eviction. HDLI, NAA, and NJAA contend that the judge's decision is against public policy.
The judge focused on Fatykeisha's purported constitutional right to procedural due process as a "known authorized occupant" of the apartment. However, this case turns on a non-constitutional issue, that is, whether Fatykeisha is a "functional co-tenant." As the Supreme Court recently reiterated in The Committee to Recall Robert Menendez from the Office of United States Senator v. Wells, 204 N.J. 79, 95-96 (2010),
In addressing this and like disputes [(senatorial recall process)], we strive to avoid reaching constitutional questions unless required to do so. See Harris v. McRae, 448 U.S. 297, 306-07, 100 S. Ct. 2671, 2683, 65 L. Ed. 2d 784, 798 (1980) ("[I]f a case may be decided on either statutory or constitutional grounds, this Court, for sound jurisprudential reasons, will inquire first into the statutory question."); Randolph Town Ctr., L.P. v. County of Morris, 186 N.J. 78, 80 (2006) ("Courts should not reach a constitutional question unless its resolution is imperative to the disposition of litigation." (citations omitted)); accord Burnett v. County of Bergen, 198 N.J. ...