On appeal from the Superior Court, Law Division, Bergen County.
Matthews, Morton I. Greenberg and Coleman. The opinion of the court was delivered by Matthews, P.J.A.D.
The issue confronting us on this appeal is whether L. 1980, c. 147, effective November 22, 1980, increased the term of the incumbent Paramus Borough Clerk from one year to three years.
The facts are not in dispute. Prior to November 22, 1980 N.J.S.A. 40A:9-133 provided that the term of office of a municipal clerk was three years, "[u]nless otherwise provided by law." Similarly, prior to that date, N.J.S.A. 40:87-15 provided that the term of office for appointive officers under the borough form of government was "for 1 year and until their successors shall have qualified." Since Paramus is governed under the borough form of government, the applicable section for appointment of the borough's appointive officers (including the borough clerk) is N.J.S.A. 40:87-15.
Plaintiff was first appointed borough clerk in January 1977. She was also appointed to that office at the borough's annual reorganization meetings in 1978, 1979 and 1980. Her most recent appointment was made on January 1, 1980.
On November 22, 1980, L. 1980, c. 147, was enacted. Under § 5 the phrase "[u]nless otherwise provided by law" was deleted from N.J.S.A. 40A:9-133, and the statute now provides:
In every municipality there shall be a municipal clerk. When so provided by law the municipal clerk shall be elected, otherwise he shall be appointed by the governing body of the municipality. His term of office shall be 3 years. If elected, his term shall commence on January 1 following his election and when appointed, his term shall run from January 1 in the year in which he was appointed.
Under § 1 N.J.S.A. 40:87-15 was amended to provide that the term of office of borough appointive officers was "for 1 year, or for such specific term as is generally provided by law, and until their successors shall have qualified." Section 6 provides:
Nothing contained in this act shall be deemed to affect the term of office of any municipal clerk serving on the effective date of this act a specified term of more than 3 years during such term.
Section 9 provides that the act "shall take effect immediately" -- i.e. , November 22, 1980.
On January 1, 1981, when the borough held its annual reorganization meeting, the mayor did not nominate anyone for appointment to the office of borough clerk. Under N.J.S.A. 40:87-16, if the mayor "fails" to make a nomination for an appointive office "within thirty days after the office becomes vacant," the borough council "shall appoint" the officer.
On February 5, 1981 plaintiff filed a verified complaint for declaratory judgment against defendant borough council in the Law Division, Bergen County. She requested the court to construe the application of N.J.S.A. 40:87-15 and N.J.S.A. 40A:9-133 to her term of office and demanded judgment (a) declaring that defendant has "no statutory or other power or authority to terminate plaintiff's employment as Paramus Borough Clerk," (b) restraining defendant "from altering" her employment as borough clerk and (c) awarding her attorney's fees and costs of suit.
Following the hearing on the return date of the order to show cause, the trial judge, in a written opinion, held that plaintiff "holds a three year term of office as the Paramus Borough Clerk terminating on January 1, 1983."
Defendant contends that the trial judge erred in holding that L. 1980, c. 147 (the "act") should be retroactivity applied to plaintiff's term of office because no expression of legislative intent to make the act retroactive can be found in the act.
In his opinion the judge noted that in 1971, "continuing the trend toward uniformity," the Legislature adopted N.J.S.A. 40A:9-133, which "established a three year term for municipal clerks in all municipalities [unless otherwise provided by law]." This meant that the "only exceptions" to the three-year term specified by N.J.S.A. 40A:9-133 were "clerks serving under forms of government where different terms had been specifically set by prior legislation." Plaintiff was one of these exceptions, serving as she did from January 1, 1980 as borough clerk "for 1 year and until . . . [her successor] shall have qualified" pursuant to N.J.S.A. 40:87-15. He also found that the act adopted on November 22, 1980 removed the "few exceptions to the new legislative mandate that all municipal clerks serve three years."
In addressing plaintiff's contention that the act increased her term of office to three years, the judge noted that the Legislature "has the power to extend the terms of [incumbent] municipal officers." However, he acknowledged that this "subject" was "not directly addressed" by the Legislature in the act and, therefore, he had to "apply the rules of judicial construction to ferret out the legislative purpose." He concluded that this ...