NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3191-14T2
STANLEY E. WILLIAMS, APPROVED FOR PUBLICATION Plaintiff-Respondent, October 16, 2015 v. APPELLATE DIVISION BOROUGH OF CLAYTON,
Defendant-Appellant. ________________________________
Argued September 16, 2015 - Decided October 16, 2015
Before Judges Sabatino, Accurso, and O'Connor.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-24-15.
William M. Tambussi argued the cause for appellant (Brown & Connery LLP, attorneys; Mr. Tambussi and William F. Cook, on the briefs).
Thomas A. Cushane argued the cause for respondent (The Cushane Law Firm, LLC, attorneys; Mr. Cushane and David P. Hiester, on the brief).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
This declaratory judgment action concerns the application
of N.J.S.A. 40A:14-129 and -130, statutory provisions that
impose certain hiring and promotional restrictions upon police departments in smaller New Jersey cities that are not of the
"first class" or "second class"1 in population and which are not
civil service jurisdictions. In particular, the statutes direct
that promotions to "superior position[s]" within such police
departments be restricted to officers who have served in those
departments for at least three years. Ibid.
The precise legal issue presented to us —— one which has
not been the subject of a prior reported appellate opinion —— is
whether an applicant for Police Chief in such a jurisdiction is
statutorily eligible for that appointment if he or she has not
served as an officer within that police department for three
years. We concur with the trial court that where one or more
1 "For legislative purposes, cities shall be classified as follows based upon population as ascertained by the most recent Federal decennial census:
a. First class —— cities having a population of more than 150,000;
b. Second class —— cities having a population of not less than 12,000 but not more than 150,000;
c. Third class —— all cities which are not first- or second-class cities except cities bordering on the Atlantic ocean being seaside or summer resorts;
d. Fourth class —— cities bordering on the Atlantic ocean which are seaside or summer resorts."
[N.J.S.A. 40A:6-4.]
2 A-3191-14T2 qualified applicants meet those statutory requirements, the
Police Chief must be appointed from within the ranks of the
municipality's current police force. We therefore affirm the
issuance of declaratory relief in this case confirming that
limitation.
I.
The main statute implicated by this case, N.J.S.A. 40A:14-
129, was first adopted in 1927. See L. 1927, c. 194, § 1. The
law was recodified in 1971, and presently reads as follows:
In any municipality wherein Title 11 (Civil Service) of the Revised Statutes is not in effect, and except in cities of the first and second class, a promotion of any member or officer of the police department or force to a superior position shall be made from the membership of such department or force. Due consideration shall be given to the member or officer so proposed for the promotion, to the length and merit of his service and preference shall be given according to seniority in service. No person shall be eligible for promotion to be a superior officer unless he shall have previously served as a patrolman in such department or force.
[N.J.S.A. 40A:14-129 (emphasis added).]
A companion provision, which was first enacted in 1940 and which
was recodified in 1971 as N.J.S.A. 40A:14-130, imposes an
additional three-year service requirement, as follows:
In any municipality wherein Title 11 (Civil Service) of the Revised Statutes is not in operation, except as otherwise provided by
3 A-3191-14T2 law, a member or officer of the municipal police department or force shall not be promoted until he has served at least 3 years in such department or force.
[N.J.S.A. 40A:14-130 (emphasis added).]
The Borough's Efforts to Select a New Police Chief
The circumstances in this case involve efforts by
defendant, the Borough of Clayton ("the Borough"), to select a
new Police Chief. The parties stipulate that the Borough is not
a city of the first class or second class, and that it is not a
jurisdiction subject to the civil service laws under Title 11A.
The Borough has approximately 8,000 residents. As the name
suggests, the municipality is organized under the borough form
of government, N.J.S.A. 40A:60-1 to 8.1, with a governing body
composed of a Mayor and six Council members. As of January
2015, the Borough's police force numbered fifteen police
officers, consisting of eleven patrol officers, three sergeants,
and one special law enforcement officer.
The Borough's need to select a new Police Chief arose when
its previous Chief took a leave of absence early in 2014,
evidently for health reasons. Consequently, in May 2014 the
4 A-3191-14T2 Gloucester County Prosecutor's Office ("GCPO") took over control
of the Borough's Police Department, through a supersession.2
When the GCPO took over, it appointed Detective William
Perna to serve as supervisor of the Borough's police department
until further notice. Perna has twenty-seven years of experience
with the New Jersey State Police. For reasons that are not
entirely clear from the record, in September 2014 Perna was
replaced by GCPO Sergeant Ronald Koller.3
On October 9, 2014, the Borough passed Ordinance #16-2014,
thereby creating the position of "Acting Chief of Police" during
the supersession.4 Both Perna and plaintiff Stanley E. Williams
applied for the Acting Chief position.
Plaintiff is a long-time resident of the Borough who has
worked in its police department for at least twenty-one years.
He is a patrol officer who has served as the department's head
firearms instructor and its head use-of-force instructor for the
2 See Passaic Cnty. PBA Local 197 v. Office of the Passaic Cnty. Prosecutor, 385 N.J. Super. 11, 16-17 (App. Div.) (explaining the County Prosecutor's supervisory authority over county and municipal police officers), certif. denied, 188 N.J. 217 (2006). In essence, a supersession is a period of time where the office of a county prosecutor directly supervises the day-to-day operations of a local police department within that county. 3 We were advised at oral argument that Koller continues to manage the department under the ongoing supersession at present. 4 The ordinance has not been challenged in this litigation.
5 A-3191-14T2 past eleven years. Prior to embarking on his career in law
enforcement, plaintiff played professional basketball with the
Boston Celtics for several years.
The Borough decided not to fill the position of Acting
Chief. Instead, it elected to proceed with the appointment of a
permanent new Chief. The Borough therefore circulated a job
advertisement for permanent Police Chief internally within the
department on October 31, 2014, and posted the ad publicly two
days later. Among other qualifications, the posting requires
applicants with a Bachelor's Degree in police science, criminal
justice, or other related field, with a preference for a
Master's Degree. The posting also requires applicants to have
at least five years of "increasingly responsible police
supervisory experience directly related to the operations of a
police department."
The Borough received five applications in response to the
job advertisement. Two candidates were immediately eliminated
due to their failure to satisfy the advertised educational or
licensing requirements. The remaining applicants were
plaintiff, Perna, and a third candidate, Preston Forchion. Of
these remaining three candidates, only plaintiff has served as a
police officer in the Borough.
6 A-3191-14T2 As part of the selection process, the Borough created a
testing procedure consisting of three parts: a written exam
administered by the New Jersey State Chiefs of Police
Association ("NJSCPA") worth 40% of the applicant's score; an
oral exam, also administered by the NJSCPA, and also worth 40%;
and an interview with a panel of public officials from the
Borough, worth the remaining 20%. None of those testing steps
have proceeded in this case.
The Litigation
On January 12, 2015, two days before the start of the
formal hiring process, plaintiff filed in the Law Division an
action in lieu of prerogative writs, see Rule 4:69-1, seeking
declaratory relief under the Uniform Declaratory Judgments Act
("UDJA"), N.J.S.A. 2A:16-50 to -62, and permanent injunctive
relief under Rule 4:52. The complaint asserted that Perna and
Forchion were statutorily ineligible to be appointed Police
Chief, given their lack of experience within the Borough's
police force.
Plaintiff named only the Borough as a defendant and did not
name Perna and Forchion as co-defendants. Nor did the Borough
implead Perna and Forchion as third-party defendants. Perna and
Forchion did not move to intervene in the litigation, either in
the trial court or in this appeal.
7 A-3191-14T2 Foregoing discovery, the Borough and plaintiff each filed
motions for summary judgment. After hearing oral argument,
Judge David W. Morgan granted plaintiff's cross-motion for
summary judgment and declaratory relief under the UDJA, and
denied the Borough's motion. A corresponding order was entered
on February 25, 2015.
In interpreting the applicable statutes in his oral
opinion, Judge Morgan concluded that those laws are "fairly
clear" in prescribing that "individuals that are eligible for
selection to the superior office of Chief of Police [in the
Borough] are those individuals that are members of the [f]orce
. . . for three years." Judge Morgan also found that the
legislative history of the statutes supported plaintiff's
position that the municipality must "pick somebody from the
Department," and that in-house applicants should "not be
competing with some other [potentially] very qualified
candidates outside the Department."
During the course of his oral opinion, Judge Morgan
mentioned the need to "enjoin the [Borough] from taking the
steps [it] did [and not] let the process play out such that
external individuals would be eligible[.]" However, in his
signed order implementing his oral ruling (which was apparently
drafted by plaintiff's counsel) the judge refers explicitly only
8 A-3191-14T2 to declaratory relief. The order generically refers to granting
plaintiff's summary judgment motion5 on the issue of declaring
plaintiff the sole statutorily eligible candidate, and denying
the summary judgment motion of the Borough. The order contains
no provision imposing injunctive relief upon the Borough. In
any event, the Borough has deferred proceeding further with the
testing or appointment process, pending the outcome of this
appeal.
II.
On appeal, the Borough argues that the trial court erred in
its ruling for several reasons, two of them essentially
procedural in nature and one of them substantive.
In particular, the Borough procedurally contends that the
declaratory order should not have been issued without a showing
by plaintiff of irreparable harm. The Borough also procedurally
contends that the court erred in declaring the two outside
applicants statutorily ineligible without them having been named
as co-defendants in the complaint. Substantively, the Borough
contends that the court's interpretation of N.J.S.A. 40A:14-129
5 Counsel have furnished at our request copies of their summary judgment submissions in the trial court. The submissions reveal that plaintiff's notice of cross-motion for summary judgment did not refer to injunctive relief. Nor did plaintiff's brief in support of summary judgment request injunctive relief, although plaintiff had sought such a remedy in an earlier brief when he filed an initial order to show cause with his complaint.
9 A-3191-14T2 and -130 is fundamentally flawed, that the statutes are
anachronistic, and that it is arbitrary, capricious, and
unreasonable for the law to deprive the Borough in this
situation of the ability to consider external candidates for the
position.
A.
The Borough's procedural arguments can be readily rejected.
The UDJA provides a well-established mechanism for resolving an
actual legal dispute that arises between adversarial parties.
The purpose of the UDJA is "to settle and afford relief from
uncertainty and insecurity with respect to rights, status and
other legal relations." N.J.S.A. 2A:16-51. Toward that end,
the UDJA is to be "liberally construed and administered" to
effectuate its general purpose. Ibid.; see also N.J. Home
Builders Ass'n. v. Div. on Civil Rights, 81 N.J. Super. 243, 251
(Ch. Div. 1963), aff'd, 45 N.J. 301 (1965). In particular, the
UDJA is an especially appropriate method for resolving "any
question of construction or validity arising under . . . [a]
statute." N.J.S.A. 2A:16-53; see also Finkel v. Twp. Comm. of
Hopewell, 434 N.J. Super. 303, 317 (App. Div. 2013) (citing this
same provision in an opinion resolving the disputed meaning and
application of various election statutes involving ballot
questions).
10 A-3191-14T2 As we recently recognized in Finkel, "the remedy of a
declaratory judgment is 'circumscribed by the salutary
qualification that the jurisdiction of the courts may not be
invoked in the absence of an actual controversy.'" Id. at 318
(quoting N.J. Turnpike Auth. v. Parsons, 3 N.J. 235, 240
(1949)). Our courts generally will not entertain legal
questions that are purely "academic." Id. at 315.
The trial court correctly recognized that the important
issues of statutory construction under the police-appointment
statutes here are not "purely academic." There is an actual,
live controversy presented. For reasons that are not fully
apparent, the Borough is not satisfied with the fact that
plaintiff is the sole applicant for Chief from its police force
who apparently meets (subject to the testing and interview
process) the educational, licensing, and experience criteria of
the job posting. The Borough would prefer to also consider
external applicants for the position, such as Perna and
Forchion, despite their not having served three years as
officers within the Department. The Borough wishes to have all
three applicants sit for the written test and to complete the
other portions of the testing process.
Plaintiff, meanwhile, contends that the trial court was
correct in finding that the statutes restricting eligibility to
11 A-3191-14T2 candidates from within the police force are clear on their face.
Plaintiff argues that it is a waste of time and public resources
to have ineligible outsiders included in the testing and
interview process. Plaintiff also urges that the court reject
with finality the Borough's claims that these statutes are out
of date, arbitrarily restrictive, and unworthy of enforcement.
We agree with plaintiff that there is a significant public
interest to be served by resolving now the merits of the
statutory questions presented here through the mechanism of
declaratory relief. It would be unwise to have the parties, the
police force, the applicant pool, and the citizens of the
Borough left unsure about the contested statutory eligibility
criteria while the hiring process goes forward. There is surely
an "actual dispute" here that warrants resolution at this time
in the public interest.
We reject the Borough's argument that the court's issuance
of a declaratory order in this particular setting was
unjustified because of an alleged lack of irreparable harm. For
one thing, a demonstration of irreparable harm is not always
required to obtain declaratory relief. In fact, nothing in the
UDJA, a statute that must be liberally construed, requires such
a demonstration.
12 A-3191-14T2 Moreover, even if irreparable harm were a necessary
element, the trial judge aptly recognized that prospective harm
in this situation stems from concerns that the Borough must
"comply with the law." See N.J. Dental Ass'n v. Metropolitan
Life Ins. Co., 424 N.J. Super. 160, 165 (App. Div. 2012) (noting
the propriety of a private cause of action that, in essence,
seeks "to compel another private party to comply with a
statute"), certif. denied, 210 N.J. 261 (2012).
We do not read Capibianco v. Civil Serv. Comm'n, 60 N.J.
Super. 307, 313 (App. Div. 1960), a case cited in the Borough's
reply brief, as stripping courts of the ability to issue
declaratory relief that can help assure that a municipality is
guided by appropriate statutory mandates in appointing a Police
Chief. Id. at 312. In Capibianco, the plaintiff was
temporarily appointed as Acting Chief of a municipal police
department. Several years later, the municipality's city
manager requested the State Civil Service Commission to
administer an examination in order to evaluate other candidates
for the permanent position. Id. at 312-13. Based on the test
results, the city manager appointed another candidate Chief of
Police. Id. at 313. The plaintiff filed an action in lieu of
prerogative writs in the Law Division, challenging the city's
actions and contending that his own appointment had been
13 A-3191-14T2 permanent, rather than temporary, and that the examination
process being used to replace him was invalid. Ibid.
The Law Division declined in Capibianco to enjoin the
examination. Ibid. It then dismissed the complaint because
plaintiff had not exhausted his administrative remedies. Id. at
314. The Commission thereafter ruled that the plaintiff's
position had only been temporary, despite a salary increase he
had received, and that the competitive processes used to appoint
a permanent Chief were valid. Ibid. On appeal, we upheld the
Commission's determination as being consistent with the
applicable laws. Id. at 315-20.
Although our opinion in Capibianco mentions in passing that
the Law Division judge had found that the plaintiff "would not
suffer irreparable harm by the holding and taking of the
examination," that observation in dicta does not invalidate the
trial court's order in the present case. Id. at 313. There is
no indication that the plaintiff's lawsuit in Capibianco was
brought under the UDJA. Furthermore, that case did not involve
the statutes at stake here, N.J.S.A. 40A:14-129 and -130. Nor
did the plaintiff in Capibianco allege, as here, that the other
applicants were statutorily ineligible because of a lack of
prior service on the municipality's police force. In addition,
the present case does not implicate the exhaustion of
14 A-3191-14T2 administrative remedies. And, as we previously noted, the trial
court's order being appealed contains no injunctive provisions.
We therefore are unpersuaded by the Borough's reliance on
Capibianco.
We also reject the Borough's contention that plaintiff's
omission of Perna and Forchion as co-defendants requires
dismissal of the complaint. We are mindful that the UDJA
provides that "[w]hen declaratory relief is sought, all persons 6
having or claiming any interest which would be affected by the
declaration shall be made parties to the proceeding." N.J.S.A.
2A:16-56. See also Gotlib v. Gotlib, 399 N.J. Super. 295, 313
(App. Div. 2008) (implementing this principle).
Although the Borough is correct that the court could not
adjudicate the individual rights of the other candidates in
their absence, plaintiff brought this action for declaratory
relief under N.J.S.A. 2A:16-52 against the Borough. He clearly
did so to assure that the Borough itself would not pursue an
appointment process based upon an incorrect conception of the
applicable statutes and their appoint-from-within eligibility
requirements. The final declaratory order issued by the trial
court was directed at the Borough, not at any other applicants.
6 The Borough qualifies as a "person" under N.J.S.A. 2A:16-50, as it is a "municipal or other corporation of any character."
15 A-3191-14T2 To be sure, it would have been more prudent and
comprehensive for plaintiff to have named Perna and Forchion as
additional defendants here, since their names and application
status were known. Even so, we discern no actual prejudice from
their omission from this lawsuit or, for that matter, from this
This litigation has been pursued in an open and public
manner. We have little doubt that the case is a matter of some
notoriety within the Department and the Borough. Perna and
Forchion surely are aware that their testing process has not
proceeded, yet they have not sought to intervene in the
litigation. We do not fault them for remaining on the
sidelines, given the expense and burdens of taking part in
litigation of any kind.
In sum, a declaration and reaffirmation of the statutory
restrictions that the Borough must heed in the hiring process
can be fairly issued without requiring the participation of the
other applicants. We therefore proceed to a review of the trial
court's substantive decision on its merits.
B.
As with any issue of statutory interpretation, courts must
first examine "[t]he plain language of [each] statute" and
"apply to the statutory terms the generally accepted meaning of
16 A-3191-14T2 the words used by the Legislature." L.A. v. Bd. of Educ., 221
N.J. 192, 201 (2015) (quoting Patel v. N.J. Motor Vehicle
Comm'n, 200 N.J. 413, 418 (2009)). "When the Legislature's
chosen words lead to one clear and unambiguous result, the
interpretative process comes to a close, without the need to
consider extrinsic aids." Ibid. (quoting State v. Shelley, 205
N.J. 320, 323 (2011)).
When, as here, an issue concerns more than one statutory
provision, "[r]elated parts of an overall scheme can . . .
provide relevant context." Beim v. Hulfish, 216 N.J. 484, 498
(2014) (quoting N.J. Dep't of Children & Families v. A.L., 213
N.J. 1, 20 (2013)). Put another way, in interpreting the plain
terms of a statute, a court must "read them in context with
related provisions so as to give sense to the legislation as a
whole." Ibid. (quoting DiProspero v. Penn, 183 N.J. 477, 492
(2005) (internal citations omitted)).
The plain language of the statutes before us is
unequivocal. As we noted at the outset, N.J.S.A. 40A:14-129
provides, in pertinent part, "[i]n any municipality wherein
Title 11 of the Revised Statutes is not in effect, and except in
cities of the first and second class, a promotion7 of any member
7 The applicable local ordinance, Clayton, N.J., Code § 21-1, provides that "[t]he order of rank [in the police department] (continued)
17 A-3191-14T2 or officer of the police department . . . to a superior
position shall be made from the membership of such department or
force." (emphasis added). N.J.S.A. 40A:14-130 drives the point
home, in that it requires that such candidates have worked for
the municipality's police department for at least three years.
A common sense reading of these statutes dictates that any
candidate promoted to a superior position (here, the Chief of
Police) must currently work in the municipality's police
department and have three years of experience on the force as a
police officer. The statutory language is plain, direct, and
unqualified.
We find unpersuasive that the Borough's reliance on
selected portions of Miller v. Township of Wayne, 154 N.J.
Super. 247 (Law Div. 1977) and Juliano v. Borough of Ocean Gate,
214 N.J. Super. 503 (Law Div. 1987), requires deviation from the
plain text of the statutes.
Miller does not advance the Borough's position. At most,
Miller can be read to solidify the legal proposition that
N.J.S.A. 40A:14-129 applies to the position of Chief of Police
(continued) shall be in descending order: Chief of Police, Captain, Lieutenant, Sergeant, Corporal, Patrolman, Probationary Patrolman and Special Officers." We do not consider the statutes inapplicable because they refer to a "promotion" rather than an "appointment." In fact, the Borough makes no such argument.
18 A-3191-14T2 in a non-civil service jurisdiction, such as the Borough here.
Miller, supra, 154 N.J. Super. at 260. In Miller, the Law
Division was asked to determine whether the mayor of Wayne could
appoint a Chief of Police from outside the municipality. Id. at
248. Central to the discussion there, however, was whether the
position of Chief of Police was akin to a department head ——
upon which the mayor would have the power to appoint under the
Faulkner Act, N.J.S.A. 40A:69-1 to -210 –– or whether the
position of Police Chief was determined under N.J.S.A. 40A:14-
129. Id. at 254-56.
Citing two existing ordinances stating that Wayne's
business administrator (and not the mayor) had the right to
choose the Police Chief, the Law Division in Miller rejected
plaintiff's argument and determined that the two provisions
(N.J.S.A. 40A:14-129 and the relevant provisions of the Faulkner
Act) were not in conflict. Id. at 260. The court thus
concluded that the Chief of Police's position was to be
determined by reference to N.J.S.A. 40A:14-129. Id. at 262.
That narrow holding, as is relevant here, applies with
equal force. As the Law Division noted in Miller, and contrary
to the Borough's argument, "N.J.S.A. 40A:14-129 does not purport
to strip [the municipality] of [its] power[,] [but] merely
defines the group from which the appointment may be made."
19 A-3191-14T2 Miller, supra, 154 N.J. Super. at 260 (emphasis added). The
fact that the Borough here may prefer to not be bound by those
constraints does not allow it to violate the law.
The Borough's reliance on Juliano is also unavailing. As
in Miller, Juliano dealt with a situation where the plaintiff
sought, among other things, to invalidate a municipality's Chief
of Police appointment under N.J.S.A. 40A:14-129. Juliano,
supra, 214 N.J. Super. at 505. Finding that neither the plain
text of N.J.S.A. 40A:14-129 nor the legislative history for
N.J.S.A. 40A:14-129's predecessor statute supported defendants'
position, the Law Division noted in Juliano that, "[t]he obvious
purpose of the statute is to reward good performance and inject
merit into the promotion process in those municipalities not
functioning under civil service regulations. In effect, the
statute gives a protection similar to civil service procedures
to guard employees against arbitrary action by the employer."
Id. at 511.
The court's opinion in Juliano went on to note that it is
"doubtful" that the Legislature intended to consider a candidate
from outside the municipality "under any circumstances." Id. at
512. However, the court observed that "[the] issue need not be
reached until it is determined by plenary hearing that there is
20 A-3191-14T2 no one within the [ ] Police Department who wants the job and is
qualified for it." Ibid. (emphasis added).
Here, there is at least one applicant, i.e., plaintiff, who
has the requisite three years of experience within the
Department and thus is statutorily eligible for consideration.
We need not at this juncture pass upon whether extraordinary
principles akin to the "doctrine of necessity" might allow the
Borough to appoint a Police Chief from outside of its borders
when no qualified internal applicants have applied. See
DePascale v. State, 211 N.J. 40, 44-45 (2012) (recognizing
general principles of necessity); see also Williams v. State,
375 N.J. Super. 485, 528-29 (App. Div. 2005) (same). All we are
deciding here is that the Borough is bound by the strictures of
N.J.S.A. 40A:14-129 and -130, and thus must confine its
selection procedures to statutorily-eligible candidates.
That said, we must make very clear what we are not deciding
in this opinion. We do not presume to make any determination as
to whether plaintiff, despite his statutory eligibility derived
from his years of service on the Borough's police force,
possesses sufficient and appropriate qualifications to be
appointed Chief of Police.
Given that plaintiff is the only internal candidate who met
the criteria stated within the job posting, the Borough is free
21 A-3191-14T2 to start the process anew and revise the qualifications to
attempt to attract a wider span of internal applicants. The
Borough also may wish, with the County Prosecutor's
acquiescence, to continue with the extant supersession
arrangement. Or, as was suggested at oral argument before us,
the Borough may consider consolidating its small police force
with that of a neighboring town. Other options not contrary to
N.J.S.A. 40A:14-129 and -130 also may well exist, and we need
not canvass them here exhaustively.
In affirming the trial court's decision, we do not comment
on whether these statutes have become outdated or unwise with
the passage of time. We also will not opine on whether it would
be preferable if the statutory scheme permitted smaller towns
such as the Borough to consider and appoint applicants who have
served in law enforcement in other jurisdictions. That policy
choice is reserved for the Legislature, which is, of course,
free to modify or repeal these statutes at any time in the
democratic law-making process.
The trial court's declaratory order is consequently
affirmed.
22 A-3191-14T2