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De Rose v. Byrne

New Jersey Superior Court, Appellate Division


Decided: February 3, 1976.

RALPH C. DE ROSE, INDIVIDUALLY AND AS COMMISSIONER OF THE WATERFRONT COMMISSION OF NEW YORK HARBOR, PLAINTIFF-RESPONDENT,
v.
BRENDAN T. BYRNE, GOVERNOR, STATE OF NEW JERSEY, DEFENDANT-APPELLANT

Fritz, Seidman and Milmed.

Per Curiam

[139 NJSuper Page 133] The salient facts and the legal issues involved appear in the opinion below, 135 N.J. Super. 273 (Ch. Div. 1975). We are advised that since that judgment from which this appeal is taken, Governor Byrne has withdrawn his objection to the salary of Commissioner DeRose and that he has waived application of Executive Order No. 21 to the Commissioner insofar as it would apply to his current term. Following these developments the parties waived oral argument of the appeal. In the circumstances it appears that the executive action no longer has any impact upon the Commissioner and that there is no longer a justiciable controversy

[139 NJSuper Page 134]

between the plaintiff Commissioner and defendant Governor.

While it is clear that we may determine a moot appeal when the public interest in the issue presented is so great as to make a resolution of it desirable, Busik v. Levine , 63 N.J. 351, 364 (1973), app. dism. 414 U.S. 1106, 94 S. Ct. 831, 38 L. Ed. 2 d 733 (1973), we are satisfied that we should not do so in connection with the questions here presented. The legal issues were joined on the basis of a particular factual pattern, possibly unique to Commissioner DeRose.*fn1 The issues of salary and the executive order, are moot. The issue of the applicability of the conflicts of interest statute, N.J.S.A. 52:13D, appears without the information and assistance of administrative agency findings,*fn2 and without the circumscribing precision of a presently justiciable controversy. In such a case we should not and do not undertake to decide, by that which constitutes an advisory opinion more than anything else, the far-reaching issues and important policy questions inherent in the litigation. Oxfeld v. New Jersey State Bd. of Ed. , 68 N.J. 301 (1975); Sente v. Clifton Mayor and Coun. , 66 N.J. 204 (1974).

Obviously we neither approve nor disapprove any expressions of the opinion below. The judgment below is vacated and the appeal is dismissed. No costs.


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