Opposition Brief — New Jersey District Court Ass'n v. Supreme Court of New Jersey

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FILED

No. 86-834 JOSEPH F. SPANIOL, sR.

In The

Supreme Court of the United States

October Term, 1986

NEW JERSEY DISTRICT COURT ASS’N, INC., JACK

SPAETH, SR., JACK SPAETH, JR., R. EUGENE

GLAB, SHARON L. CHERIN AND WAYNE VAN-

DERHOOF,

Ir Supreme Cout,US.

Petitioners,

NEW JERSEY SUPREME COURT and ROBERT D.

LIPSCHER, Administrative Director of the Courts,

Respondents.

ray

On Petition for a Writ of Certiorari to the

Appellate Division of the Superior Court

of New Jersey

BRIEF IN OPPOSITION

W. Cary Epwarps

ATTORNEY GENERAL OF NEW JERSEY

Attorney for Respondents, New

Jersey Supreme Court and

Robert D. Lipscher

Richard J. Hughes Justice Complex

CN 112

Market and New Warren Streets

Trenton, New Jersey 08625

(609) 292-1539

James J. Crancia

Assistant Attorney General

Of Counsel

Josern L. Yannortri

Deputy Attorney General

On the Brief

—_—_—_—_—_——_—_—_————————

ee "TOCKLE LAW BRIEF PRINTING CO., (800) 225-6964

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{

QUESTIONS PRESENTED

1. Whether rules promulgated by the Supreme Court

of New Jersey authorizing the commencement of civil

actions by service of process with simultaneous certified

and regular mail contravenes the Due Process Clause of

the Fourteenth Amendment to the Constitution of the

United States?

2. Does the Fourteenth Amendment to the United

States Constitution require that individuals be afforded

an opportunity to be heard before they are terminated

as officers of the courts of New Jersey when the individ-

uals serve at the pleasure of the County Assignment Judge

and therefore have no property interest in continued em-

ployment under state law?

3. Whether the Supreme Court of the United States

has jurisdiction to entertain a claim that a state court

erroneously interpreted and applied state constitutional

law?

Counterstatement of Facts

Conclusion

TABLE OF CONTENTS

Page

Constitutional Provisions and Court Rules Involved ..

Argument:

Point I. The petition for a writ of certiorari should

be denied beeause the decision of the New

Jersey Superior Court that service by mail

does not contravene the Due Process Clause

is entirely in accord with the applicable de-

cisions of this Court and because there are

no special and important reasons that would

warrant consideration of this issue by the

Court... ..icmusdeeeee

Point II. The Due Process Clause does not require

that petitioners Jack Spaeth, Sr., Jack

Spaeth, Jr., and R. Eugene Glab be afford-

ed an opportunity to be heard before their

termination as Special Civil Part officers

because these individuals had no property

interest under state law in continued em-

ployment. 0.

Point III. The Supreme Court of the United States

does not have jurisdiction to consider pe-

titioners’ contention that the state court

erred in holding that a New Jersey stat-

ute does not require personal service in

actions commenced in the Special Civil Part.

TABLE OF AUTHORITIES

Page

CasEs:

Bishop v. Wood, 426 U.S. 341 (1976) ccc cccccseseseee 14

Board of Regents v. Roth, 408 U.S. 564 (1972) ............. 14,17

Brinkerhoff-Faris Trust and Savings Co. v. Hill,

ee Be | | 20

City of New York v. New York, N.H. and H.R.R.,

344 U.S. 293 (1953) 10

Feuchtbaum v. Constontini, 59 N.J. 167, 280 A.2d

pet SP ea RT EE eS ee pee ae ee 19

— Siegler Co. v. Norton, 8 N.J. 374, 86 A.2d

gt Sa ae . 19

Greene v. Lindsey, 456 U.S. 444 (1982) cccccccceeccssccessene 9,11

Hortonville Joint School Dist. No. 1 v. Hortonville

Ed. Ass’n, 426 U.S. 482 (1976) ........... ee ~~ oe

Legal Tender Cases, 12 Wall. 457 (1871) cess 16

Marder v. Realty Construction Co., 84 N.J. Super.

313 (App. Div. 1964), aff’d 43 N.J. 508 (1964) 13

Mennonite Bd. of Missions v. Adams, 462 U.S. 791

a Sin ie cae eee ence a 10, 11

Mullane v. Central Hanover Bank and Trust Co.,

Te 9, 10, 11, 12

North Laramie Land Co. v. Hoffman, 268 U.S. 276

SE TR eg A 11

O’Bannon v. Town Court Nursing Center, 447

Us. tie (198) “ies RED aR er ED 16

O’Brien v. Skinner, 414 U.S. 524 (1974) 20. es

Perry v. Sinderman, 408 U.S. 593 (1972) nncccceccecceeene 14

Schroeder v. City of New York, 371 U.S. 208 (1962) 10

Schware v. Board id Bar Examiners, 353 U.S.

232 (1957) . 150 bees Dg OS NOR IIE PET eee RC 16, 17

TABLE OF AUTHORITIES

Pages

Speiser v. Randall, 357 U.S. 513, reh. den. 358 U.S.

RE I races thedhc srreiaictartice dnl momiole amiuleaiedanent 20

Sterling v. Environmental Control Board of New

York City, 793 F.2d 52 (2d Cir. 1986) 10

Walker v. City of Hutchinson, 352 U.S. 112 (1956) ...... 10

Winberry v. Salisbury, 5 N.J. 240, 74 A.2d 406,

cert. den. 340 U.S. 877 (1950) 19

CONSTITUTIONAL PROVISIONS:

Fourteenth Amendment, United States Constitution passim

N.J. Constitution (1947), Art. VI, § 2, par. 3 0. 1, 18, 19

STATUTES AND Laws:

N.J. Stat. Ann. 2A :18-5 | RRLceeeh i 2 ae

28 U.S.C. §1257(2) and (3) eeeneeenreernnnnn a eer 19, 20

Be A er ee 3

CON 6 OME Oo 19

ADMINISTRATIVE REGULATION:

RE ae S.C) 5 ee ee a eet 15

Court Rutss:

AY GB gE S| || Ro RE Neale ee 12

NJ. Court Rule 1:33-4'(a) to (e) 1, 6, 15

a Oe ee tO oe es 14

on MD | Se SIO RCE RET ITER RE ea Roh 8

Re ee oe 8

CONSTITUTIONAL PROVISIONS AND

COURT RULES INVOLVED

N.J. Constitution (1947) Art. VI, § 2, par. 3

The Supreme Court shall make rules governing the

administration of all courts in the State, and, subject

to law, the practice and procedure in all such courts.

The Supreme Court shall have jurisdiction over the

admission to the practice of law and the discipline of

persons admitted.

N.J. Court Rule 1:33-4 (a) to (e)

(a) The Assignment Judge shall be the chief judicial

officer within the vicinage and shall have plenary re-

sponsibility for the administration of the courts there-

in, subject to the direction of the Chief Justice and

by rule of the Supreme Court. He shall be responsible

for the implementation and enforcement of the rules,

policies and directives of the Supreme Court, the Chief

Justice and the Administrative Director.

(b) The Assignment Judge shall be the authorized

representative of the Chief Justice for the efficient

and economic management of all courts within the

vicinage. His responsibilities also shall include all

such matters affecting county and municipal govern-

ments, including but not limited to budgets, personnel,

and facilities. ;

the supervision and efficient management of all courts

matters filed in the vicinage and for the supervision,

superintendence and allocation of all judges and per-

sonnel having a judicial support function within the

vicinage.

(d) The Assignment Judge shall have fuil responsi-

bility for the administration of all court units within

the vicinage, including those of the Surrogate and the

Deputy Clerk of the Superior Court.

(e) Subject to uniform minimum standards and con-

ditions promulgated by the Administrative Director,

the Assignment Judge may appoint and discharge such

judicial support personnel within the vicinage as he

shall deem necessary.

fo)

COUNTERSTATEMENT OF FACTS

This matter is before the Court on a petition by the

New Jersey District Court Association, Inc., Jack Spaeth,

Sr., Jack Spaeth, Jr., R. Eugene Glab, Sharon L. Chernin

and Wayne Vanderhoof (petitioners), for a writ of cer-

tiorari to the Appellate Division of the Superior Court of

New Jersey to review the decision entered by that Court on

January 2, 1986 affirming a judgment entered in this ac-

tion in favor of the respondents, Supreme Court of New

Jersey and Robert D. Lipscher, Administrative Director of

New Jersey’s courts, by the Law Division of the Superior

Court of New Jersey (Pad to Pa6).* In an opinion dated

June 5, 1985, the Law Division rejected petitioners’ chal-

lenge, on state law and federal constitutional grounds, to

orders of the Supreme Court of New Jersey authorizing

service of process by simultaneous certified and regular

mail for certain civil actions commenced in the New Jersey

courts (Pa9 to Pal9). The trial court also rejected the

assertions of petitioners Jack Spaeth, Sr., Jack Spaeth, Jr.,

and R. Jugene Glab that the United States Constitution

required that they be given an opportunity to be heard

prior to their termination as officers of the New Jersey

* “Pa” refers to the appendix to the Petition for a Writ of

Certiorari. ‘Pb’ refers to the brief in support of the Petition.

————— Se

courts. Final judgment was entered accordingly (Pa7 to

Pa8), and the Appellate Division affirmed (Pa5 to Pa6).

The Supreme Court of New Jersey refused to certify the

matter for review (Pa3 to Pa4), and dismissed the peti-

tioners’ appeal (Pal to Pa2).

The January 4, 1985 and February 20, 1985 orders of

the Supreme Court of New Jersey that are challenged in

this case provide for the expanded use of mail service for

actions commenced in the Special Civil Part within the Law

Division of the Superior Court of New Jersey (Pa20 to

Pa22). The Special Civil Part, established in each of the

State’s 21 counties by order of the New Jersey Supreme

Court effective December 31, 1983, exercises the jurisdic-

tion previously exercised by the County District Courts.

The County District Courts were statutory courts abolished

by an act of the State Legislature enacted in 1983 after the

New Jersey voters approved amendments to the State

Constitution authorizing the abolition of the County Dis-

trict Courts and the transfer of the jurisdiction of these

Courts to the Superior Court. L. 1983, c. 405. The juris-

diction of the Special Civil Part includes actions where the

amount in controversy does not exceed $5,000, landlord/

tenant matters and small claims cases. The expanded use

of service by mail followed the Supreme Court’s considera-

tion of the results of pilot programs conducted since 1981

to test the effectiveness of mail service in the County Dis-

trict Courts, and later, in the Special Civil Part.

In April 1981, the New Jersey Supreme Court author-

ized the service of initial process by simultaneous certified

and regular mail for al! civil actions, other than small

claims and landlord/tenant matters, in the Passaie County

District Court (Ra2).* The Administrative Office of

New Jersey’s courts compared the results of the two month

project with personal service in the Passaic County Dis-

trict Court during another two month period (Ra20 to Ra

29). It was concluded that service by mail was more effec-

tive and could be achieved more quickly than personal ser-

vice by sergeants-at-arms (Ra27). In March 1982, the

Chief Justice of the Supreme Court formed a Task Force

on Service of Process in the County District Courts. The

Task Force issued a report in which it noted that it had

reviewed the ‘‘favorable results’’ of the Passaic County

service by mail project and recommended that there be

further experimentation with primary mail service in se-

lected counties (Ra40 to Ra70).

In response to the report of the Task Force, the Su-

preme Court ordered the implementation of experimental

service by mail projects in the County District Courts for

Burlington and Monmouth Counties. The Burlington

County project commenced on January 1, 1983 and sum-

monses in a designated percentage of civil actions, land-

lord/tenant matters and small claims cases were permit-

ted to be served by simultaneous certified and ordinary

mail (Ra30). The Monmouth County project commenced

on June 1, 1983 and mail service was permitted for all small

claims cases (Raé4).

In December 1983, the Administrative Office of the

Courts issued a report on the Burlington project which in-

* “Ra” refers to the appendix filed by the respondents in the

Appellate Division of Superior Court. “Aa” refers to the ap-

pendix filed by the petitioners in that Court.

dicated that a greater percentage of defendants in civil

actions and in small claims matters were served by mail

than by personal service (Ra33). Service by mail was

accomplished faster than personal service.* Similar con-

clusions were reached concerning the Monmouth project.

In April 1984, the Clerk of the Special Civil Part reported

that service by mail was faster than personal service and

a greater percentage of defendants were successfully

served by mail than those served personally (Ra37 to Ra

38).

On January 4, 1985, the Supreme Court ordered that

service by mail projects be instituted on or after February

1, 1985 in fourteen additional counties with the Burlington

and Monmouth County projects continued (Pa20 to Pa21).

In an order entered February 20, 1985, the Court amended

its January 4, 1985 order to include a service by mail proj-

ect commencing April 1, 1985 for civil complaints filed in

the Special Civil Part in Bergen County against defen-

dants located in 21 municipalities in that county (Pa22).

Finally, the Court, by order entered April 19, 1985, amend-

ed the January 4, 1985 order to authorize expanded use of

service by mail in the Special Civil Part in Monmouth

County by allowing its use for civil actions as of May 1,

1985 (Ral8).

At the time the New Jersey Supreme Court entered

its order expanding the Monmouth County project to civil

* The results for personal service and service by mail in land-

lord/tenant matters were roughly the same both in terms of

time to serve and percentage of defendants served (Ra33 to

Ra34). Even so, 89°%/o of defendants were successfully served

where mai! service was employed, and 90°/o of all defendants

served by mail were served within 13 days.

complaints, eleven individuals were authorized to act as

Special Civil Part officers in accordance with appointments

by the County Assignment Judge pursuant to New Jersey

Court Rules. N.J. Ct. R. 1:33-4(e) (Aa38 to Aa39). The

officers were authorized to serve summonses, execute war-

rants, make arrests arising out of civil actions, levy at-

tachments and executions and other writs and orders of

the court (Aa37 to Aa38). The officers are nonsalaried,

full-time employees. They receive fees based upon the

performance of specific duties. They are not on the county

payroll and receive no pension benefits and no health care

benefits. The positions are not elassified positions with

civil service status under state law. The officers serve at

the pleasure of the Assignment Judge (Aa38 to Aa40).

The expansion of service by mail to service for civil

actions led to a determination that service income, and

other income from prescribed duties, would be reduced

and the employment of eleven officers was not warranted.

The resulting level of service and other income, when

divided among eleven officers, would reduce the total com-

pensation paid to each officer, with the possibility that the

Special Civil Part would lose its officers due to insuffi-

cient income. The County Assignment Judge decided to

terminate the appointments of four officers based on

seniority effective May 1, 1985. Three of the four offi-

cers, Jack Spaeth, Sr., Jack Spaeth, Jr., and R. Eugene

Glab, are petitioners in this matter.

On April 19, 1985, the New Jersey District Court Asso-

ciation, Inc., the three terminated officers and two litigants

in the Monmouth County Special Civil Part instituted this

action challenging the New Jersey Supreme Court’s Janu-

ary 4, 1985 and February 20, 1985 orders. It was alleged

that service by mail contravened the Due Process Clause

of the Fourteenth Amendment to the United States Con-

stitution. It wes further maintained that enforcement of

the orders would deprive the terminated officers of their

positions as process servers. This was said to constitute

the deprivation of property rights without due process of

law. The petitioners also contended that the orders were

beyond the New Jersey Supreme Court’s rule-making au-

thority under the State Constitution because a state stat-

ute was said to mandate personal service for all actions

commenced in the Special Civil Part.

In an opinion entered June 5, 1985, the trial court held

that service by mail satisfied the requirements of the Due

Process Clause of the Fourteenth Amendment (Pal4 to

Pal6). The trial court ruled further that the termination

of the employment of the Special Civil Part Officers did

not contravene the Due Process Clause because the officers

had no property right under state law in continued employ-

ment (Pal7 to Pal9). The trial court also held that the

orders authorizing service by mail were within the New

Jersey Supreme Court’s plenary authority under the State

Constitution to make rules governing the practice and pro-

cedure in the New Jersey courts (Pal3 to Pal4).

Judgment was entered by the trial court in favor of the

respondents (Pa7 to Pa8). On appeal, the Appellate Divi-

sion of the Superior Court affirmed substantially for the

reasons stated by the trial court in its June 5, 1985 opinion

(Pad to Pa6). The Supreme Court of New Jersey refused

to entertain an appea! from the judgment of the Appellate

Division (Pal to Pa4).*

ARGUMENT

POINT I

THE PETITION FOR A WRIT OF CERTI-

ORARI SHOULD BE DENIED BECAUSE THE

DECISION OF THE NEW JERSEY SUPERIOR

COURT THAT SERVICE BY MAIL DOES NOT

CONTRAVENE THE DUE PROCESS CLAUSE

IS ENTIRELY IN ACCORD WITH THE AP.

PLICABLE DECISIONS OF THIS COURT AND

BECAUSE THERE ARE NO SPECIAL AND

IMPORTANT REASONS THAT WOULD WAR.

RANT CONSIDERATION OF THIS ISSUE BY

THE COURT.

The Court’s rules make plain that review on writ of

certiorari ‘‘is not a matter of right, but of judicial discre-

tion, and will be granted only when there are special and

important reasons therefor.’’ Sup. Ct. R. 17.1. In sup-

port of their application for review, the petitioners main-

tain that the decision of the New Jersey Appellate Divi-

sion that service by mail does not violate the Due Process

Clause is not in accordance with the decisions of this Court.

* The petition for a writ of certiorari was initially submitted

to the Clerk of this Court on October 14, 1986. It was returned

for the correction of certain deficiencies and the corrected

version not filed until November 21, 1986. Respondents did

not receive the corrected petition until December 24, 1986.

This response ‘s filed within 30 days of receipt of the corrected

version. See Sup.Ct. Rule 22.

~ +=

Notwithstanding the petitioners’ arguments to the con-

trary, the decision of the New Jersey Superior Court is

not in conflict with the applicable determinations of this

Court and there are no special and important reasons to

justify further review on writ of certiorart.

The Court has repeatedly reaffirmed the constitu-

tional adequacy of service by mail. In Mullane v. Central

Hanover bank and Trust Co., 339 U.S. 306, 314 (1950), the

Court stated that due process requirements are satisfied

where the notice procedure employed is ‘‘reasonably cal-

culated, under all the circumstances, to apprise interested

parties of the pendency of the action and afford them an

opportunity to present their objections.’’ The Court ruled

in Mullane that where the names and addresses of individ-

uals affected by a proceeding were known, notice by pub-

lication was inadequate. There was no reason ‘‘for resort

to means less likely than the mails to apprise [interested

parties} of the action.’’ Jd. at 318. This was so be-

cause the mails are ‘‘recognized as an efficient and inex-

pensive meams of communication.’’ Id. at 319.

Similarly in Greene v. Lindsey, 456 U.S. 444 (1982),

the Court held that in forcible entry and detainer actions,

posting the summons on the door of the premises was a

constitutionally inadequate notice procedure. But the

Court emphasized :

. . « Notice by mail in the circumstances of this case

would swrely go a long way toward providing the con-

stitutionally required assurance that the State has not

allowed iits power to be invoked against a person who

has not had an opportunity to present a defense despite

a continwing interest in the resolution of the contro-

versy... . [Jd. at 455].

And in Mennonite Bd. of Missions v. Adams, 462 U.S. 791,

800 (1983), where the Court held that notice by publication

and posting did not provide a mortgagee of real property

with adequate notice of a proceeding to sell the mortgaged

property for non-payment of taxes, the Court said that

notice by mail ‘‘or other means as certain to ensure actual

notice’’ is a minimum constitutional precondition to a pro-

ceeding which will adversely affect the liberty or property

interest of any party. See also Schroeder v. City of New

York, 371 U.S. 208, 214 (1962) (In a condemnation action,

the City of New York had a constitutional obligation

to provide notice, ‘‘an obligation which the mailing of a

single letter would have discharged.’’) ; Walker v. City of

Hutchinson, 352 U.S. 112, 117 (1956) (A letter would have

provided constitutionally sufficient notice to a condemnee

that his property was about to be taken.); City of New

York v. New York, N.H. and H.R.R., 344 U.S. 293, 296

(1953) (Mailed notice would be constitutionally adequate

for prospective claimants in a railroad reorganization pro-

ceeding. )*

The petitioners assert that the New Jersey courts did

not apply the Mullane standard which petitioners interpret

* The petitioners cite Sterling v. Environmental Control Board

of New York City, 793 F.2d 52 (2d Cir. 1986). That case does

not support the petitioners. The Court of Appeals held that

the City’s “nail and mail” procedure for notifying landlords of

violations of the City’s sanitation code was violative of the

Due Process Clause. Mail service was constitutionally inade-

quate because notices were mailed to buildings where the

landlords did not reside. The Court of Appeals made clear,

however, that mailed notice would have satisfied the Due

Process Clause if the landlords had registered their mailing

addresses with the City and if the notices were sent to those

addresses.

as requiring the balancing of the need to provide notice

with the practical difficulties of doing so (Pb8 to Pb10).

While such factors might be relevant to the determination

of the constitutional adequacy of a notice procedure, the

overriding consideration is the reasonable likelihood that

interested parties will be apprised of the pendency of the

action by the notice procedure employed. The constitu-

tionality of the notice procedure ‘‘must be judged in the

light of its practical application to the affairs of men as

they are ordinarily conducted.’’ Greene v. Lindsey, supra,

at 451, quoting from North Laramie Land Co. v. Hoff-

man, 268 U.S. 276, 283 (1925).

The courts below correctly applied this principle in

concluding, as the Court concluded in Mullane, Greene and

Mennonite Bd. of Missions, that the mails are a means rea-

sonably certain to ensure actual notice to parties whose in-

terests may be affected by a proceeding. The Court’s de-

cisions indicate most clearly that the constitutional ade-

quacy of mail service is established as a matter of law.

Even were this not the case, the record before the trial

court concerning service by mail in the New Jersey Special

Civil Part amply supported the conclusion that the mails

are reasonably certain to ensure actual notice. In the

Passaic Court pilot project over 90% of the defendants

were served by mail (Ra24, Ra26). In Burlington County,

87% of the defendants in civil actions, 89% in landlord/

tenant matters, and 91% in small claims cases were served

by mail (Ra32 to Ra36). In Monmouth County, 98% of

the defendants were served by mail (Ra37). Moreover,

in none of the three counties was there a marked increase

in motions to vacate judgments for lack of service (Ral5).

Clearly the New Jersey courts did not err in rejecting the

petitioners’ challenge to the New Jersey Supreme Court’s

orders authorizing service by mail in the Special Civil Part

of the Superior Court.

The petitioners suggest that the general rule permits

service by mail only for specifically designated types of

actions, and that the service of mail program authorized

by the Supreme Court of New Jersey for the Special Civil

Part could be utilized in a variety of civil cases (Pb8).

But whether service by mail is ‘‘reasonably calculated un-

der all the circumstances to apprise interested parties of

the pendency of an action ...,’’ Mullane, 336 U.S. at 314,

is uot dependent upon the type of action or proceeding in

which mail service is employed. Indeed, the Court has

never suggested this was so.

The petitioners also maintain that the service by mail

program in the Special Civil Part suffers from a constitu-

tional defect because the program allegedly does not have

adequate safeguards to protect the due process rights of

those affected by the proceedings. The petitioners point

to ed. R. Ctv.P. 4(c)(ii) as establishing what is said to

be constitutionally mandated safeguards (Pb7). The fed-

eral rule allows service by first class mail, postage pre-

paid, and requires resort to personal services unless ser-

vice is acknowledged on a prescribed form that is returned

to the serving party.

The service by mail procedure authorized by the Su-

preme Court of New Jersey contains safeguards designed

to achieve the same goals as the procedures outlined in

Fed. R. Civ.P. 4(e) (ii). Service is made by regular mail

and by certified mail. Signed receipts evidence successful

service. Where the receipts are not returned, service may

be deemed effective if the regular mail is not returned

This ensures that an individual may not avoid service by

refusing to accept or claim a delivery of certified mail.

Finally, the New Jersey court rules prescribe a means of

vacating any default judgment that may erroneously be

entered by reason of a failure of service. Under New Jer-

sey law, an application to vacate a default judgment is

‘‘viewed with great liberality, and every reasonable ground

for indulgence is tolerated to the end that a just result is

reached.’’ Marder v. Realty Construction Co., 84 N.J.

Super. 313, 319 (App. Div. 1964), aff’d 43 N.J. 508 (1964).

It is clear, therefore, that the service by mail program

authorized by the Supreme Court of New Jersey for ac-

tions commenced in the State’s Special Civil Part does not

suffer from any constitutional defect. In so holding, the

Appellate Division of the Superior Court correctly applied

the governing principles from the applicable decisions of

this Court. That being so, there are no special and im-

portant reasons for further consideration of this issue by

the Court.

POINT II

THE DUE PROCESS CLAUSE DOES NOT RE-

QUIRE THAT PETITIONERS JACK SPAETH,

SR., JACK SPAETH, JR., AND R. EUGENE

GLAB BE AFFORDED AN OPPORTUNITY TO

BE HEARD BEFORE THEIR TERMINATION

AS SPECIAL CIVIL PART OFFICERS BE-

CAUSE THESE INDIVIDUALS HAD NO

PROPERTY INTEREST UNDER STATE LAW

IN CONTINUED EMPLOYMENT.

As stated previously, petitioners Jack Spaeth, Sr.,

Jack Spaeth, Jr., and R. Eugene Glab were Special Civil

Part officers in Monmouth County and were terminated

when the service by mail program was expanded in that

county. The County Assignment Judge determined that

there would be insufficient income to warrant the employ-

ment of eleven officers. Four officers were relieved of

their duties on the basis of seniority. The New Jersey

court ruled that the dismissals did not violate the Due

Process Clause, and no decision of this Court calls for a

contrary result in this case. Since the lower courts merely

applied the well established principles from this Court’s

devisions, there are no special and important reasons for

the Court to hear the case on writ of certiorari.

In Board of Regents v. Roth, 408 U.S. 564 (1972), the

Court stated that the Due Process Clause is a safeguard

of the security of interests that a person has acquired in

specific benefits. The property interests protected by the

United States Constitution from deprivation without due

process are those created and defined by rules or under-

standings that derive from State law. Jd. at 561. Accord:

Bishop v. Wood, 426 U.S. 341, 344 (1976), and Perry v.

Sinderman, 408 U.S. 593, 602 (1972).

The New Jersey courts ruled in this case that the peti-

tioners Jack Spaeth, Sr., Jack Spaeth, Jr. and R. Eugene

Glab had no property interest under state law to tenure or

employment as officers of the Special Civil Part. Peti-

tioners were employed in non-salaried positions. They

received fees prescribed for the performance of specific

duties. N.J. Ct. R. 6:2-3(a). The positions are not classi-

fied positions with status under the state’s civil service

laws. The petitioners were excluded from participation in

pension and health care benefits programs. The petition-

ers were appointed to their positions by the County As.

signment Judge pursuant to a court rule that allows the

Assignment Judge to appoint or discharge personnel as

deemed necessary. N.J. Ct. R. 1:33-4(e) (Aa38 to Aad40).

Although the petitioners assert that under N.J. Ct. R.

1:33-4(e) the process servers employed in the Special Civil

Part have more than a unilateral expectation of their con-

tinued employment as Special Civil Part officers, this in-

terpretation of the rule was rejected by the state courts.

It is not the function of this Court to construe the rule con-

trary to the construction given to it by the state courts.

Hortonville Joint School Dist. No. 1 v. Hortonville Ed.

Ass’n, 426 U.S. 482 (1976); O’Brien v. Skinner, 414 US.

524, 531 (1974). Under the rule, as interpreted by the New

Jersey Superior Court, the officers serve at the pleasure

of the County Assignment Judge (Pal67). The petition-

ers took their appointments pursuant to the rule and well

knew that they faced dismissal according to its terms.

The petitioners nevertheless argue that they have an

interest in continued employment grounded in a state ad-

ministrative regulation, N.J.A.C. 4:1-8.14(b) (Pb15). It

is said that this regulation outlines the provisions under

which process servers are employed. This is not correct.

The regulation governs actions taken with regard to posi-

tions in the state’s civil service, and the officers of the

Special Civil Part do not, as the trial court and the Ap-

pellate Division ruled in this case, have positions with

status under the state’s civil service laws (Pal6). In any

event, the administrative regulation provides that individ-

uals could be disqualified from public employment in the

state’s civil service if the individual had ‘‘been dismissed

from the public service for delinquency or misconduct after

an opportunity for a hearing.’’ Since the petitioners in

this case were not dismissed for delinquency or miscon-

duct, the rule has absolutely no application to them.

Wholly aside from the absence of any property inter-

est protected by the Due Process Clause, this case is not

one where the petitioners were discharged on individual-

ized charges. Here, the New Jersey Supreme Court chose

to implement a service by mail program that reduced the

income that had previously supported the employment of

eleven officers of the Monmouth County Special Civil Part.

The County Assignment Judge determined that unless the

staff was reduced, the Special Civil Part could lose all of

its officers. Four officers were relieved of their duties on

grounds of seniority.

Since the petitioners do not challenge the particular

facts concerning the reduction in income or their seniority,

it is plain that they are asserting a challenge to the general

policy determination of the Supreme Court of New Jersey

to expand the service by mail program in Monmouth Coun-

ty. But the protections of the Due Process Clause do not

extend to the indirect effects of governmental action.

O’Bannon v. Town Court Nursing Center, 447 U.S. 773,

789 (1980). The protections against deprivation without

due process of law do not extend to ‘‘consequential in-

juries resulting from the exercise of lawful power.’’ /d.,

quoting from Legal Tender Cases, 12 Wall. 457, 551 (1871).

The petitioners additionally cite the Court’s decision

in Schware v. Board of Bar Examiners, 353 U.S. 232

(1957), for the proposition that a State may not, in regu-

lating eligibility for professional employment, foreclose a

range of employment opportunities without a full prior

hearing (Pb15). In Schware, the Court ruled that a state

could not exclude a person from the practice of law or any

other occupation in a manner or for reasons that contra-

vene the Due Process Clause. Jd. at 328-329. The issue

in the case was whether certain qualifications for admis-

sion to the bar were rationally related to an individual’s

fitness or capacity to practice law. Id. at 239.

The Court’s decision in Schware is distinguishable

from this matter. This case does not concern the qualifi-

cations to serve as officers of the New Jersey Superior

Court. Nor does this case involve a situation where in-

dividuals have been completely foreclosed from employ-

ment opportunities in the New Jersey court system or

otherwise. The issue in this matter is whether the peti-

tioners, terminated by seniority as officers of the Special

Civil Part @ to insufficient workload, were entitled to a

hearing prior to termination, where the petitioners had no

right or expectation to continued employment under state

law. That-issue was not considered by the Schware Court.

The courts below correctly applied the well estab-

lished principles from this Court’s decisions in rejecting

the petitioners’ asse~tions that they could not be termi-

nated without an opportunity for a hearing. As indicated

in Roth, the property interests protected from deprivation

without due process of law are those grounded in state

law. Here, the New Jersey courts found that, as a matter

of state law, the petitioners had no protected property in-

terest in continued employment. Therefore, the termina-

tion of the petitioners without an opportunity for hearing

did not contravene the Due Process Clause.

POINT III

THE SUPREME COURT OF THE UNITED

STATES DOES NOT HAVE JURISDICTION

TO CONSIDER PETITIONERS’ CONTENTION

THAT THE STATE COURT ERRED IN HOLD-

ING THAT A NEW JERSEY STATUTE DOES

NOT REQUIRE PERSONAL SERVICE IN AC.

TIONS COMMENCED IN THE SPECIAL CIVIL

PART.

The petitioners in this case challenged the New Jer-

sey Supreme Court’s orders authorizing service by mail

on the grounds that state Supreme Court did not have the

authority under the New Jersey Constitution to permit

the use of mail service in the face of a state statute pur-

portedly requiring personal service. The Appellate Divi-

sion of the Superior Court affirmed the trial court’s find-

ing that the orders were within the Supreme Court’s plen-

ary power under the New Jersey Constitution to make

rules governing practice and procedure in the state courts.

See N.J. Const. (1947), Art. VI, § 2, par. 3, The Appellate

Division also ruled that service of process was a matter

of practice and procedure (Pall to Pal4). Thus, even if

a state statute was in conflict with the Supreme Court’s

January 20, 1985 and February 4, 1985 orders, the orders

superseded the legislation (Pal4). The petitioners seek

the issuance of a writ of certiorari to determine whether

the New Jersey courts ‘‘erroneously interpreted state deci-

sional law’’ in rejecting their statutory challenge to the

state Supreme Court’s orders (Pb11 to Pb13).

The petitioners argued in the New Jersey courts that

N.J. Stat. Ann, 2A :18-5 mandates personal service in the

Special Civil Part.* However, the history of the statute

reveals that the statute does not and never was intended to

address the manner of service of a summons. It merely

identified those who would undertake service if service

was made personally. Even if the statute were read as

mandating personal service, it was in conflict with a super-

vening order by the Supreme Court of New Jersey.

Under the state’s Constitution, the Court has plenary

authority to make rules governing practice and procedure

in the state’s courts. N.J. Const. (1947), Art. VI, § 2, par.

3. It is well established in New Jersey that an order of

the Supreme Court overrides any conflicting statute on a

matter of practice and procedure. Winberry v. Salisbury,

5 N.J. 240, 255, 74 A.2d 406, 414 cert. den. 340 U.S. 877

(1950); George Siegler Co. v. Norton, 8 N.J. 374, 281-381,

86 A.2d 8, 12 (1952). It is also established under New

Jersey law that service of process is a matter of practice

and procedure. Feuchtbaum v. Constontin, 59 N.J. 167,

280 A.2d 161 (1971).

The petitioners have invoked 28 U.S.C. § 1257(2) and

(3) as grounds for the exercise of jurisdiction in this mat-

ter. The petitioners request the Court to consider wheth-

er the Appellate Division of the New Jersey Superior

Court erred in its interpretation and application of the

* The statute provides that:

All process issued out of a county district court shall be

served only by the sergeant-at-arms of the court or such

officer as shall be especially designated by the judge, or

in courts having branch parts, of the court.

The statute was not repealed when the County District Courts

were abolished but reference therein to the County District

Courts “shall be given effect as though the reference {was}

to the Superior Court... .” L. 1985, c. 405, § 4.

state Constitution and the controlling decisions of the

New Jersey Supreme Court. However, under 28 U.S.C.

1257, the Court is only authorized to review final judgments

of state courts by appeal or by writ of certiorari where a

statute is challenged on the ground that it is repugnant to

the Constitution, treaties or laws of the United States. Ob-

viously, the Court’s jurisdiction under 28 U.S.C. § 1257

does not extend to the consideration o: claims that state

courts erroneously interpreted state law. See Brinkerhoff-

Faris Trust and Savings Co. v. Hill, 281 U.S. 673, 680

(1930). As the Court has made clear, the construction of

state laws is the exclusive responsibility of the state courts.

Speiser v. Randall, 357 U.S. 513, 524 n.14, reh. den. 358

U.S. 860 (1958). It is not within this Court’s authority

to consider the state law issue posed in the petition for a

writ of certiorari. Therefore, the petition for review on

writ of certiorari should be denied.

ray

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the petition for a writ of certiorari should be denied.

Respectfully submitted,

W. Cary Epwarps

ATTORNEY GENERAL OF New JERSEY