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Miller v. Township of Wayne

Decided: November 18, 1977.


Doan, J.s.c., Retired and Temporarily Assigned on Recall.


The central issue presented in this case for determination is narrow and clearly defined. Plaintiff, the mayor of Wayne Township, claims the right and authority to consider and appoint a chief of police from without the ranks of the present forces of the police department of that municipality. The claim is disputed by the township council, the local chapter of the Policemen's Benevolent Association (PBA Local No. 136) and the New Jersey State Association of Chiefs of Police, intervenor, all of whom assert that the appointment must be made from within the membership of the municipal police department.

The facts are substantially without dispute. On December 31, 1975 the township chief of police retired from the force. Plaintiff, as mayor, ordered the business administrator of the township to solicit applications for the vacancy. Advertisements were placed in various police journals and approximately

140 resumes were received, only two or three of which came from members of the local force. As of the present time the post of chief of police is still unfilled. No candidates have been interviewed and no nomination has been sent to the township council for consideration and appointment. A controversy arose as to the source or group from which a chief of police could be selected and appointed. It is plaintiff's contention that as mayor of a municipality organized under Plan F of the Faulkner Act, he is free under N.J.S.A. 40:69A-43(b) to appoint any person he wishes as chief of police, a descriptive term which he considers as being synonymous with the words "director" or "department head" as used in that statute. PBA Local No. 136 and the State Association of Chiefs of Police dispute the mayor's right or authority to select and nominate a person to fill the vacant position of chief of police from a group other than the membership of the township police department as it exists at the time of selection and appointment.

By reason of the clash of opinions and the uncertainty engendered thereby, the mayor, without the blessing of the council (which turned down his request that he be authorized to institute this action), brought this action under the Uniform Declaratory Judgments Act naming as defendants PBA Local No. 136 and the Township of Wayne. The New Jersey State Association of Chiefs of Police was granted leave to intervene in this action because of the importance of the question involved.

Incidental to the central issue in controversy are the claims of defendants that this action is not a proper one under the Declaratory Judgments Act. They urge, additionally, that filling the vacancy of chief of police is a promotion and under N.J.S.A. 40A:14-129 and the township ordinance all promotions to a superior position in the police department must be made from within the force as it is presently constituted.

Each of the parties moves for summary judgment.


The action is properly brought under the Uniform Declaratory Judgments Act, N.J.S.A. 2A:16-50 et seq.

The Uniform Declaratory Judgments Act, N.J.S.A. 2A:16-50 et seq. , is remedial in nature. It is designed "to settle and afford relief from uncertainty and insecurity with respect to rights, status and other legal relations. It shall be liberally construed and administered * * *" to carry out its general purpose of making uniform the law of those states which enact it. N.J.S.A. 2A:16-51.

To serve these ends it is provided that all courts of record, within their respective jurisdiction, have the power to declare rights, status and other legal relations. N.J.S.A. 2A:16-52. A person "whose rights, status or other legal relations are affected by a statute, [or] municipal ordinance * * * may have determined any question of construction or validity arising under the * * * statute, [or] ordinance * * * and obtain a declaration of rights, status or other legal relations thereunder." N.J.S.A. 2A:16-53. The remedy thus provided is, however, circumscribed by the salutary qualification that the jurisdiction of the courts not be invoked in the absence of an actual controversy.

It is the established policy of our courts to refrain from rendering advisory opinions, from deciding moot cases or generally from functioning in the abstract, and to decide only concrete contested issues (subject to the court's jurisdiction) conclusively affecting adversary parties in interest. N.J. Turnpike Auth. v. Parsons , 3 N.J. 235, 240 (1940). "The first point to be considered in any proceeding for a declaratory judgment is whether or not the controversy that is presented * * * is actual and bona fide or is merely one in which 'the semblance of judicial proceeding and form of due process are present'." Id. at 241.

In New Jersey Bankers Ass'n v. Van Riper , 1 N.J. 193, 198 (1948), it was held that the party plaintiff seeking to invoke declaratory relief must itself have an interest in the

proceeding, either individually or as a representative of a class, and there must also be before the court one who is capable of undertaking the defense or enforcement of an outstanding interest adverse to that which the plaintiff purports to represent. This requirement reflects the wholesome general rule that litigation shall not be maintained by a stranger to a controversy, for otherwise the fundamental beneficial function of a declaratory proceeding -- the arrival at a final, pacifying and tranquillizing decision -- fails of its purpose. Id.

The court is satisfied from the evidence submitted that, within the limits of the issue herein raised, a justiciable controversy exists that is ready for determination. The issue, as has been stated, is whether the authority in the Township of Wayne empowered to appoint a police chief or select or nominate one, may choose such a candidate from outside the municipal police force. The dispute calls for an interpretation of the Faulkner Act, the municipal ordinances of Wayne and those general statutes of the State governing fire and police department activities. Plaintiff mayor can be said to have an interest, in view of his role as chief executive of the municipality, in the determination of whether the law permits him to choose a police chief from outside the department -- both individually and as a representative of the citizens of Wayne who have gone without a police chief for almost two years due to the controversy. Defendant local police union is truly an adverse party in that it represents the men and women who would be adversely affected by such an action on the part of the mayor. So likewise is the intervenor, the New Jersey State Association of Chiefs of Police.

Defendant PBA Local No. 136 contends that the issue presented is not ripe for declaratory judgment. It asserts that the complaint merely alleges that plaintiff "intends to consider" applicants from outside the Wayne police force and that declaratory judgment must await an allegation that plaintiff has actually appointed or named an appointee from outside the local police force. This assertion becomes academic

in the light of the later determination herein of the central issue.

Further, it is common knowledge that where a selection is to be made from a class of 140 applications, the final choice of a nominee is the product of the selection process. Integral to this process of appointment is a weeding out stage and an interviewing stage to meet and personally evaluate the applicants considered qualified. No substantial reason has been presented to demonstrate why the mayor and his business administrator should be required to invest the time and expense which such a procedure requires without prior assurance that the candidates so invited could legally be presented to the council for consideration at the final stage of the appointment.

Lastly, PBA Local No. 136 urges that the plaintiff's term as mayor expires on December 31, 1977, about one month hence, and that in view of the limited time in which plaintiff has to make an appointment, his lack of action in selecting an appointee to date, his failure to actually name an appointee and the fact that his appointee may well turn out to be a present member of the Township of Wayne Police Department, there does not presently exist any controversy over which a declaratory judgment may be properly decided. Plaintiff, on the other hand, seeks the aid of the court to alleviate the present stalemate and to permit him to fulfill his executive responsibility in selecting a new chief of police. He asserts his right to make the selection and concedes that unlike many of the heads of other departments in Wayne Township, the term of chief of police does not end under the Wayne ordinances concerning the police department (ยง 25-1 et seq.) with the term of office of the mayor appointing him nor under the general law (N.J.S.A. 40A:14-128).

The public interest dictates that plaintiff's standing to maintain the present action is properly brought to afford relief from the uncertainty with respect to the ...

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