Dickinson v. Fund for the Support of Free Public Schools

HANDLER, J.,

dissenting in part.

In this case the Court grapples with yet another series of important and controversial issues concerning the State’s tidelands. This latest round of litigation has been generated by the amendment to the New Jersey Constitution, adopted on November 3, 1981. N.J. Const. (1947), Art. VIII, § V, par. 1. That amendment initiates a definitive solution to the chronic ownership problems that have beset the extensive tidelands located *91within our State. These have been painstakingly described on several occasions. O’Neill v. State Hwy. Dept., 50 N.J. 307 (1967); City of Newark v. Natural Resources Coun. Dept. Env. Prot., 82 N.J. 530 (1980), cert. den., 449 U.S. 983, 101 S.Ct. 400, 66 L.Ed.2d 245 (1980). I agree with the Court’s resolution of all the issues litigated in this case except one. I differ from the Court with respect to the limitations it has placed judicially upon the manner in which the State under the amendment can claim, and ultimately resolve, the ownership of those tidelands which the amendment encompasses.

The Court now decides that the State was not authorized under the constitutional amendment to claim as tidal flowed those properties that were depicted on an existing map which had been developed in conjunction with the State’s ongoing investigation of its tide flowed lands. The.flat rejection of this map (referred to as P-13) as evidencing the State’s riparian claims is tantamount to a forfeiture of State lands. Further, it deprives the public of the proceeds from the State’s disposition of such lands, proceeds otherwise applied to public education through the constitutional and statutory fund created for that purpose. N.J. Const. (1947), Art. VIII, § IV, par. 2; N.J.S.A. 18A:56-5. The abrupt and substantial loss of public assets now dictated by the Court is neither mandated by the language of the constitutional amendment nor evidenced from the history and circumstances surrounding-its passage. I therefore dissent from the Court’s decision in this respect. My reasons essentially parallel those in the dissenting opinion of Judge Michels in the Appellate Division, 187 N.J.Super. 224, 254 (1982), as well as the similar reasoning expressed in the opinion of Judge Simpson in the trial of this matter in the Superior Court, Law Division, 187 N.J.Super. 320 (1982).

It is beyond argument that the language of the constitutional amendment does not expressly or plainly prohibit the State from utilizing its existing tidelands map as a basis for its riparian claims. The constitutional amendment requires only that the State take prompt affirmative action with respect to its tide*92lands. The State must within one year of the adoption of the amendment specifically define and assert ownership claims to such lands.

The amendment provides essentially that if lands have not been “tidal flowed” for at least 40 years, the State shall be barred from asserting a claim to such lands as “riparian lands.” This bar, however, can be lifted under two conditions. The first condition is if the State has previously — within the last 40 years — “specifically defined and asserted” a riparian claim to such lands, it can continue, presumably, to maintain such a claim. The second condition that would overcome the bar is if a claim is made by the State to such lands within one year following the adoption of the constitutional amendment. N.J. Const. (1947), Art. VIII, § V, par. 1.

Riparian claims under the amendment must be made “pursuant to law.” The Appellate Division majority concluded that the “law” subsumed by this phraseology meant the meticulous mapping, notice and filing procedures specified for meadowlands under L.1968, c. 404; N.J.S.A. 13:1B-13.1 et seq. Dickinson v. Fund for Support of Free Pub. Schools, 187 N.J.Super. 224, 241 (App.Div.1982). Under this view of the constitutional amendment, the only claims to tidelands effective in lifting the bar would be those incorporated in the detailed maps made, filed and publicized pursuant to that statute.

On this point the Court correctly rejects the conclusion of the Appellate Division majority. The Court in effect endorses the dissenting views of Judge Michels. Ante at 75. I concur. Judge Michels explained that the detailed statutory mapping scheme of N.J.S.A. 13:1B-13.1 et seq. was clearly referable to the “meadowlands,” which constitutes a distinctive category or subset of the State’s tidelands. 187 N.J.Super. at 258-60. The Court in adopting the basic reasoning of Judge Michels recognizes that the Legislature in proposing the constitutional amendment did not designate the meadowlands mapping act as the *93exclusive legal vehicle by which the State would be required to make claims to the 40-year tide-fast properties.1

The critical inquiry therefore is to ascertain the proper meaning to be ascribed to the added constitutional language of the amendment that a State riparian claim be “specifically defined and asserted.” The majority concludes that it would be somehow “incongruous” for the Legislature to have proposed in 1981 a constitutional amendment that required, as the State’s riparian claims, the distribution of a photomap that had been available to the public since June 1979, ante at 81 (emphasis added). The Court apparently considered the proposition to be anomalous because the people “must have intended the State to do more than it had already done.” Ante at 83. This perceived incongruity leads the Court to reject any use of the existing tidelands map, P-13, as the basis for the State’s riparian claims under the amendment.

I strongly disagree with the premise that is implicit in the Court’s reasoning. The question to be dealt with is not whether the Legislature required the distribution of the existing tidelands map, P-13, as the method by which the State could present its riparian claims under the amendment. Rather the question is whether the Legislature permitted P-13 to be used by the State to satisfy its responsibility under the amendment. I find nothing persuasive in the background and circumstances surrounding the passage of the amendment that militates *94against the conclusion that the Legislature recognized, and the people of the State understood, that a sound and reasonable exercise of governmental discretion under the amendment could encompass the affirmative decision to use the existing tidelands map, subject to appropriate conditions, as the basis for the State’s riparian claims.

In reaching a contrary result, the majority in my view has misapplied and misused the statements attributed to various individuals in the course of the enactment and adoption of the amendment. Ante at 83, 84-85. Most of these individuals were concerned that the amendment, if adopted, might be construed as mandating the use of the meadowlands mapping act, N.J.S.A. 13:1B-13.1 et seq. as the exclusive method for the assertion of the State’s riparian claims. They also assumed that the existing tidelands map, P-13, would not be judicially approved as a claims methodology. If the amendment were construed and applied in that way, they believed that the State could not possibly assert riparian claims within the one year period allowed by the amendment. Such a judicial interpretation, they reasoned, would result in the automatic forfeiture of State tidelands. Consequently, some of these individuals urged that the amendment should not be adopted.

This partisan position based upon one possible interpretation of the amendment does not define either the purpose of the constitutional amendment or the intent of the people in adopting it.2 As conceded by the Court, there is no empirical basis for *95the conclusion that the amendment as propounded and adopted designated the meadowlands mapping act as the exclusive method to present State riparian claims. Indeed, there is no basis to impute an intent on the part of those who propounded and endorsed this constitutional amendment that any single existing methodology was to be the exclusive mode for defining and asserting the State’s riparian claims to the subject tidelands.

We are therefore remitted to an interpretation of the constitutional amendment that will impute to the people who adopted this organic change an intention that serves to effectuate fully and fairly its overriding purpose. Vreeland v. Byrne, 72 N.J. 292, 302 (1977). Our task is to find the true and sensible meaning of the constitutional provision. Lloyd v. Vermeulen, 22 N.J. 200, 206 (1956). We must be mindful that “[t]he Constitution was made to serve and protect the people of the State and all of its language must be sensibly construed with that uppermost in mind.” Kervick v. Bontempo, 29 N.J. 469, 480 (1959).

The key to our interpretive mission is to identify and define the purpose of the constitutional amendment. That purpose is accurately recapitulated by the Court:

The State must not only delineate the former tideland, but also should alert those having an adverse interest. That warning is necessary to fulfill a major purpose of the Amendment, namely to relieve property owners from State ownership claims that may or may not be valid. Sometimes it is difficult to determine whether land ever had been flowed by the tide and, unless the State acted affirmatively, owners would be uncertain indefinitely if the State “has a claim to the land.” Gormley v. Lan, 88 N.J. 26, 35 n. 2 (1981). A claim made in good faith by the State notifying the property owner is all that is required. [Ante at 80 (footnote omitted).]

I believe the presentation of riparian claims under the aegis of P-13 clearly and reasonably fulfills the constitutional purpose of the amendment. As stated aptly and concisely by Judge Michels:

*96At best, the result of the State’s asserting its claim [under any map adopted, including P-13] will be notice of potential claim to those whose lands are claimed, and repose to those whose lands are passed over. Uncertainties of title will not be resolved, and owners will not be relieved of competing claims, until the State’s title is actually litigated and judicially determined. Thus, the most the people could have intended the amendment accomplish is fair notice to landowners that their land might, subject to judicial determination, be subject to State claim and ownership. * * * [T]he people of New Jersey did not intend arbitrarily to cut off an efficient mapping program, near to completion, and give up their claim to thousands of acres of land devoted to their public schools. Rather, the legislative history suggests that the amendment was intended to give relief to the landowner who is uncertain of the status of his land and must either “sue the state and attempt to acquire the title or ... purchase a grant from the state.” [187 N.J.Super. at 261 (citation omitted).]

Thus, the good faith application of P-13 as the initial assertion of riparian claims contemplated by the amendment provides both fair notice and repose to impacted property owners and clearly sets the stage for the definitive, ultimate determination of tidelands ownership.3

What is perplexing about the majority’s decision is that it embraces untoward consequences that can be avoided without subverting the constitutional purpose or doing violence to the language of the amendment. As earlier noted, one such consequence is the forfeiture of State lands. Another derivative consequence is the permanent loss of public educational funds that would be generated from the proceeds of the disposition of *97such forfeited riparian lands. Indeed, as to the latter, the interpretive statement that was approved by this Court and used on the ballot in the general election in which the amendment carried provided in certain terms:

When the State establishes ownership of tidal flowed land, any proceeds from the sale of the land are deposited in a fund devoted to public education. [Gormley v. Lan, 88 N.J. at 35, n. 2.]

These consequences — the immediate forfeiture of State tidelands and the permanent loss of public school funds — are not dictated by either the purpose or the language of the constitutional amendment and do not reflect a reasonable intent of the voters.

It is a “golden rule” of interpretation, fully applicable to constitutional as well as statutory documents, that the unreasonableness of a particular result arising from the selection of one among several possible alternative interpretations strongly militates in favor of the adoption of an interpretation that embraces a reasonable result. 2A Sutherland, Statutory Construction § 45.12 at 37 (4 ed. Sands 1973); Clifton v. Passaic Cty. Bd. of Taxation, 28 N.J. 411, 421 (1958) (“A construction ‘calling for unreasonable results will be avoided where reasonable results consistent with the indicated purpose of the act as a whole are equally possible,’ ” quoting Elizabeth Federal Savings & Loan Ass’n v. Howell, 24 N.J. 488, 508 (1957)); see Kervick v. Bontempo, supra, 29 N.J. 469.

Judge Simpson in the trial of this case noted that the State’s “[c]laims have to date been fully delineated [on P-13] as to areas covered by 767 photomaps,” and he stressed that “all remaining claims will have been specifically defined and asserted pursuant to law by November 2, 1982 and fully delineated by December 31,1985 .... ” 187 N.J.Super. at 340 (emphasis added). Consequently, he incorporated this mapping schedule as a condition for the State’s use of P-13 as the basis for the State riparian claims. Id. at 340-41. Judge Michels endorsed, as would I, the *98order entered by Judge Simpson, which was designed to expedite the presentation and perfection of the State’s claims under P-13. 187 N.J.Super. at 263-64. While Judge Michels did not specifically reiterate Judge Simpson’s order incorporating the mapping schedule with its December 31, 1985 deadline, I am satisfied that this schedule is an appropriate and necessary measure and would affirm its inclusion.

Furthermore, the discretionary use of the existing tidelands map, P-13, as a method for presenting the State’s riparian claims does not render the constitutional amendment meaningless. It does not signify that the State would not be doing “more than it had already done,” as suggested by the Court. Ante at 83. The majority fails to stress the point we underscored in Gormley v. Lan, 88 N.J. 26 (1981) that the amendment imposes a forty year time bar to State claims to land previously perpetually vulnerable to such claims.

The amendment sought to bar all State claims to land not flowed by the tide for the past 40 years. The prior law, by contrast, subjected lands to the State’s claim no matter how ancient the tidal flow over that parcel may have been, or put differently, no matter how long the land had been dry. [Id. at 30.]

The amendment forces the State’s hand; it mandates that the State go forward and affirmatively assert its riparian claims. The use of P-13 accomplishes this purpose, as it serves to identify properties that would otherwise be indefinitely exposed to ownership claims by the State. It also effectively identifies properties that are eliminated from any possible State claims of ownership.

The trial court’s adjudication of the issues and the relief it granted constitute a valid and responsible exercise of judicial power. This disposition represents injunctive relief in the nature of mandamus — relief that is required to compel the exercise of governmental discretion where there is a duty to act, but the court is confronted with inaction borne of official confusion, indifference or intransigence. See Switz v. Middletown Tp., 23 *99N.J. 580, 587-91 (1957). Ordinarily, the Court will not determine the manner in which discretionary authority shall be exercised. Gallena v. Scott, 11 N.J. 231, 238 (1953). It may do so, however, when governmental inertia imperils interests of significant constitutional magnitude. There must be an appropriate and effective judicial response when a constitutional imperative is to be addressed, a constitutional objective attained, or a constitutional calamity averted. Id.; South Burlington Cty. N.A.A.C.P. v. Mount Laurel Tp., 92 N.J. 158 (1983); Robinson v. Cahill, 69 N.J. 133 (1975), cert. den., 423 U.S. 913, 96 S.Ct. 217, 46 L.Ed.2d 141 (1975), vacated on other grounds, 69 N.J. 449 (1976).

Here, the court was faced with governmental inaction attributable to official confusion or misunderstanding as to the dictates imposed by the constitutional amendment. Sufferance of such a governmental refusal to act would mean the abnegation of the will of the people. The Court would be derelict if it were to tolerate this constitutional nullification. The injunctive application of the existing tidelands map, P-13, under the constitutional amendment, subject to the strict acceleration of the final mapping procedures, is a modest, reasonable, and circumspect exercise of the Court’s remedial powers, wholly justified by the overriding constitutional goals that it preserves.

For reversal in part; affirmance in part — Chief Justice WILENTZ, and Justices CLIFFORD, SCHREIBER, POLLOCK, O’HERN and GARIBALDI — 6.

Dissenting in part — Justice HANDLER — 1.

The Court points out that the differences in the State’s duties under the meadowlands mapping act and those that arise under the amendment are “not simply semantic.” Ante at 78. The meadowlands mapping act is designed to have the State do more than merely “claim” lands. It requires the State to “find” that certain lands are “State owned” and to “determine and certify” that ownership. N.J.S.A. 13:1B-13.2. In addition to the legislative treatment of meadowlands as distinct from other kinds of tidelands, as the Court points out, the meadowlands mapping act contains a plethora of detail, including the publication and filing, the listing of parcels, and the depiction of riparian grants, which would be burdensome and counterproductive if imposed as requirements for the filing of a tidelands claim under the constitutional amendment. Ante at 78-79.

Administration officials testified at the two public hearings (Public Hearings on ACR-3037 and SCR-3023 before the Senate Judiciary Committee and Assembly Judiciary, Law, Public Safety and Defense Committee, June 5, 1981; Public Hearings on ACR-3037 and SCR-3023 before the Subcommittee of the Assembly Agriculture and Environment Committee, July 23, 1981) regarding the interpretation and effect of the proposed constitutional amendment. These opinions should be accorded no determinative weight in ascertaining legislative intent of the amendment, absent an indication of an adoption of such expressions as the views of the framers or the adopters of *95the amendment. 2A Sutherland, Statutory Construction, § 48.10 at 210 (4 ed. Sands 1973); State v. Exxon Corp., 151 N.J.Super. 464 (Ch.Div.1977).

David Moore, Chairman of the Tidelands Resource Council, testifying at the trial, rejected the use of P-13 as a State claim as “irresponsible” because the State eventually might abandon many of the properties claimed on the map. He felt the meadowlands mapping procedure was more efficient in this respect. However, no particular mapping technique avoids litigation in quieting title. The subsequent post-mapping need to settle and determine actual ownership is unavoidable regardless of which mapping technique is used and, therefore, does not per se disqualify and invalidate the use of P-13 as a claims instrument. Regardless of which maps are used to comprise State claims, resolution of contested ownership continues to necessitate individual quiet title actions. This is acknowledged in City of Jersey City v. Tidelands Resource Council, 95 N.J. 100 (1983) where the Court today approves the State’s right to adjust claim lines according to the availability of new evidence before engaging in any controversy involving a particular piece of property.