On appeal from the Superior Court, Appellate Division.
For reversal -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Schreiber and Handler. For affirmance -- None. The opinion of the Court was delivered by Clifford, J.
This case presents a constitutional test of the validity of defendant Barbara Curran's appointment as a Commissioner of the Board of Public Utilities (BPU). At issue is the proper interpretation of Article IV, section V, paragraph 1 of the New Jersey Constitution of 1947. That paragraph, commonly known as the ineligibility clause, reads in pertinent part as follows:
No member of the Senate or General Assembly, during the term for which he shall have been elected, shall be nominated, elected or appointed to any State civil office or position, of profit, which shall have been created by law, or the emoluments whereof shall have been increased by law, during such term.
The Appellate Division, in an unreported opinion, held that this clause rendered the appointment invalid inasmuch as there was a salary increase for the position of BPU Commissioner during the legislative term for which Mrs. Curran had been elected to the New Jersey General Assembly, even though she was not serving as a legislator at the time of the increase. We reverse. The appointment of Mrs. Curran as a Commissioner of BPU is valid.
On November 6, 1979 Barbara Curran was elected to a two-year term as a member of the New Jersey General Assembly. She was administered the oath of office on January 8, 1980. Her term was scheduled to end on January 12, 1982. In April 1980 a vacancy occurred on the BPU when then Commissioner Richard B. McGlynn resigned. On June 23, 1980 Mrs. Curran resigned from the Assembly and on the same day was nominated by Governor Byrne and confirmed by the Senate to succeed Mr. McGlynn. On June 24, 1980 the Governor formally appointed Mrs. Curran as a member of the BPU. She took the oath of office on June 26, 1980 and has been serving since that date.
On June 12, 1980, during Mrs. Curran's term in the Assembly, the fiscal 1980-81 appropriation bill, S. 1309, was introduced in the Senate. As part of that bill the salaries of certain state officials, including the Commissioners of the BPU, were raised
by $7000, from $49,000 to $56,000 per year. On June 23, 1980, the same day on which Mrs. Curran resigned from the Assembly and was nominated and confirmed as a BPU Commissioner, the Senate passed the appropriation bill. On June 26, the date Mrs. Curran was sworn in as a Commissioner, the Assembly likewise passed the same bill. Governor Byrne signed the appropriation bill on June 30, 1980 and it became effective July 1, 1980.
The instant suit was started on July 23, 1980. Plaintiffs are the Student Public Interest Research Group, a non-profit, non-partisan advocacy organization that has appeared as intervenor in utility rate cases. The individual plaintiffs are resident taxpayers and ratepayers to several public utilities regulated by the BPU. Defendants are Governor Byrne, Mrs. Curran, and George Barbour, president of the BPU. Plaintiffs sought a judgment declaring Mrs. Curran's appointment to the BPU void as violative of the ineligibility clause. They also asked for a declaration that any decision of the BPU participated in by Mrs. Curran is "null and void as unlawfully decided," and an injunction against Mrs. Curran's "exercise of and participation in decisions or activities" of the BPU.
In response to the assertion of the Attorney General, representing all defendants, that the trial court lacked subject matter jurisdiction pursuant to R. 2:2-3(a)(2), the trial court, with plaintiffs' consent, transferred the case to the Appellate Division. That court acknowledged the manifest qualifications of Mrs. Curran for the office of BPU Commissioner and the absence of "any endeavor or intent on the part of Curran or the Governor to evade or violate the provisions of the ineligibility clause," and further recognized that to declare Mrs. Curran ineligible might effect "an injustice truly not contemplated by the ineligibility clause." However, the Appellate Division held the appointment invalid because a "legislator is disqualified [under the ineligibility clause] if there is a salary ...