Carlson v. City of Hackensack

983 A.2d 203, 410 N.J. Super. 491
CourtNew Jersey Superior Court Appellate Division
DecidedDecember 1, 2009
DocketA-2898-08T3
StatusPublished
Cited by9 cases

This text of 983 A.2d 203 (Carlson v. City of Hackensack) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carlson v. City of Hackensack, 983 A.2d 203, 410 N.J. Super. 491 (N.J. Ct. App. 2009).

Opinion

983 A.2d 203 (2009)
410 N.J. Super. 491

Arthur B. CARLSON, Jr., Plaintiff-Respondent,
v.
CITY OF HACKENSACK, a body corporate and politic of the State of New Jersey, Defendant-Appellant.

No. A-2898-08T3

Superior Court of New Jersey, Appellate Division.

Argued October 27, 2009.
Decided December 1, 2009.

Eric M. Bernstein, Warren, argued the cause for appellant (Eric M. Bernstein & Associates, LLC, attorneys; Mr. Bernstein, of counsel and on the brief; Wendy L. Wiebalk, on the brief).

*204 David H. Ben-Asher, Montclair, argued the cause for respondent (Rabner Allcorn Baumgart & Ben-Asher, P.C., attorneys; Mr. Asher and Eugenie F. Temmler, on the brief).

Julian F. Gorelli, Senior Deputy Attorney General, argued the cause for amicus curiae State of New Jersey (Anne Milgram, Attorney General, attorney; Melissa Raksa, Assistant Attorney General, of counsel; Mr. Gorelli, on the brief).

Fred Semrau, Boonton, argued the cause for amicus curiae Association of Municipal Assessors of New Jersey (Dorsey & Semrau, attorneys; Mr. Semrau, on the brief).

Before Judges FUENTES, GILROY and SIMONELLI.

The opinion of the court was delivered by

GILROY, J.A.D.

Defendant, City of Hackensack (City), appeals from that part of the April 25, 2008 order granting partial summary judgment to its tax assessor, plaintiff Arthur Carlson, determining the City had wrongfully reduced plaintiff's salary. The City also appeals from a second order of the same date denying its cross-motion for partial summary judgment.

The issue presented on appeal is whether a municipality is permitted to reduce the salary of its tax assessor during his or her term of office if the municipality also reduces the assessor's weekly work hours commensurate with the salary reduction. We answer the question in the negative and affirm.

The City first employed plaintiff as a full-time tax assessor in 1992. The City reappointed plaintiff in 1997 giving him tenure in that office, pursuant to N.J.S.A. 54:1-35.31(1). He continues to hold that position. Effective January 1, 2008, the City reduced plaintiff's employment from full time (35 hours per week) to part time (15 hours per week); reduced his salary from approximately $107,000 ($111,613 with longevity) to $44,288 ($47,837 with longevity) per annum; and eliminated his health benefits because he was no longer a full-time employee.

On January 11, 2008, plaintiff filed a complaint in lieu of prerogative writs, seeking an order declaring that the City's action: in reducing his salary and eliminating his health benefits was unlawful, contrary to N.J.S.A. 40A:9-146 (count one); in reducing his salary was unlawful, contrary to N.J.S.A. 40A:9-165 (count two); and in reducing his salary and eliminating his health benefits was unlawful, contrary to N.J.S.A. 40A:9-146.4, (count three). On February 25, 2008, plaintiff filed a motion seeking partial summary judgment on count two. The City filed a cross-motion for partial summary judgment on the same count.

On April 25, 2008, the trial court entered an order, supported by an oral decision that: granted plaintiff's motion determining that the City's action in reducing plaintiff's salary violated N.J.S.A. 40A:9-165; awarded plaintiff back pay from January 1, 2008; and enjoined the City from reducing plaintiff's 2007 salary of $111,613 during his term as tax assessor. In so doing, Judge Harris reasoned that the unambiguous proscription contained in N.J.S.A. 40A:9-165 prohibits a municipality from reducing its tax assessor's salary during the term of his or her office. On the same day, the court entered an order denying defendant's cross-motion.

On December 26, 2008, plaintiff voluntarily dismissed count three of his complaint. On January 23, 2009, the court granted plaintiff's unopposed motion for partial summary judgment on count one. *205 The City appeals from the two April 25, 2008 orders.

The City argues that it did not violate N.J.S.A. 40A:9-165 when it changed plaintiff's employment from full time to part time, reducing his salary commensurate with the reduction in his weekly work hours. Plaintiff counters that the City is prohibited from reducing his salary during his term as tax assessor by the plain language of N.J.S.A. 40A:9-165. Amici curiae State of New Jersey and the Association of Municipal Assessors of New Jersey support plaintiff's position.

A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523, 666 A.2d 146 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).

On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2010). We employ the same standard that governs trial courts in reviewing summary judgment orders. Block 268, LLC v. City of Hoboken Rent Leveling & Stabilization Bd., 401 N.J.Super. 563, 567, 952 A.2d 473 (App.Div.2008).

Because the question presented turns on statutory construction, we review the general principles governing that task. In construing a statute, the role of a court is to determine the intent of the Legislature and, "generally, the best indicator of that intent is the statutory language." DiProspero v. Penn, 183 N.J. 477, 492, 874 A.2d 1039 (2005). In deciphering the Legislature's intent, "[w]e apply to the statutory terms the generally accepted meaning of the words used by the Legislature." Patel v. N.J. Motor Vehicle Comm'n, 200 N.J. 413, 418-20, 982 A.2d 445, 448 (2009). It is not the function of a court to "presume that the Legislature intended something other than that expressed by way of the plain language." O'Connell v. State, 171 N.J. 484, 488, 795 A.2d 857 (2002).

"A clear and unambiguous statute is not open to construction or interpretation." Watt v. Mayor & Council of Franklin, 21 N.J. 274, 277, 121 A.2d 499 (1956). Indeed, the court must "`construe and apply the statute as enacted.'" DiProspero, supra, 183 N.J. at 492, 874 A.2d 1039 (quoting In re Closing of Jamesburg High Sch., 83 N.J. 540, 548, 416 A.2d 896 (1980)). "If the plain language leads to a clear and unambiguous result, then our interpretive process is over." Richardson v. Bd. of Trs., Police & Fireman's Ret. Sys., 192 N.J. 189, 195, 927 A.2d 543 (2007). Only if the statutory language is ambiguous and open to more than one interpretation should the court look to extrinsic evidence. DiProspero, supra, 183 N.J. at 492, 874 A.2d 1039.

Here, the controlling statute is N.J.S.A. 40A:9-165. That statute provides in pertinent part:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

The Pitney Bowes Bank, Inc. v. Abc Caging Fulfillment
113 A.3d 1217 (New Jersey Superior Court App Division, 2015)
Hyland v. Township of Lebanon
17 A.3d 233 (New Jersey Superior Court App Division, 2011)
State v. O'BRIEN
14 A.3d 56 (New Jersey Superior Court App Division, 2011)
Wilson v. City of Jersey City
1 A.3d 723 (New Jersey Superior Court App Division, 2010)
State v. Friedman
996 A.2d 457 (New Jersey Superior Court App Division, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
983 A.2d 203, 410 N.J. Super. 491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carlson-v-city-of-hackensack-njsuperctappdiv-2009.