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In re Shain

Decided: March 16, 1983.

IN THE MATTER OF JOEL L. SHAIN, POLICE DIRECTOR AND JOEL L. SHAIN, MAYOR


On certification to the Superior Court, Appellate Division.

For affirmance -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. For reversal -- None. The opinion of the Court was delivered by Garibaldi, J.

Garibaldi

The issue here is whether a Special Investigatory Committee of the City Council of a Mayor-Council Plan D Faulkner Act municipality has the authority to issue subpoenas to compel the testimony of the Mayor and other executive municipal officials.

The Appellate Division, in an unpublished opinion, affirmed the trial court's order holding that the Special Investigatory Committee of the Orange City Council had the authority to subpoena the Mayor and other executive municipal officials. We granted the Mayor's petition for certification, 91 N.J. 238 (1982), and now affirm.*fn1

I.

On May 13, 1980, Joel L. Shain was elected Mayor of the City of Orange, a municipal corporation organized under Mayor-Council Plan D of the Faulkner Act, N.J.S.A. 40:69A-1 to -210.*fn2 Immediately upon assuming office in July, 1980, the Mayor named a Lieutenant in the Orange Police Department as Acting Police Director to fill the vacant position of Police Director. The appointee's name was submitted to the City Council for confirmation. This appointment fomented a political conflict between the Council and the Mayor, which culminated in this lawsuit.

On September 2, 1980, the City Council established by resolution a special investigatory committee ("the Committee"), comprising the entire Council, to investigate allegations that the new Acting Police Director had interfered with the duties of the Orange Chief of Police. The Committee conducted a public hearing on September 9, 1980, at which the Police Chief, Deputy Chief, and Acting Director voluntarily testified about their respective duties, and the procedures followed in a then-recent departmental reorganization. One week later, the Committee

held another public hearing. Although it heard no testimony at that time, the Committee agreed to adopt preliminary findings of fact from the initial hearing and to hold the investigation open for further testimony.

In the meantime, the Council refused to confirm the Mayor's candidate for Police Director. As a result of this action, on or about October 15, 1980, the Mayor named himself Acting Director of the Police Department.

On October 16, 1980, the City Council, sitting as the Committee, adopted a resolution that incorporated the Committee's preliminary findings of fact. The resolution recited that the Mayor's appointed Acting Police Director had interfered with the duties of the Police Chief and that such interference potentially endangered the health and welfare of the people of the City of Orange.

The Committee reconvened in camera on December 10, 1980. The key witness at this meeting was a former Orange official, whose testimony dwelled mainly upon matters irrelevant to the investigation and outside the scope of the resolution. On the next day, December 11, 1980, the Committee subpoenaed five police officers to testify in camera before it. Their testimony, some of which was not germane to the investigation, repeatedly criticized the Mayor and his former Acting Police Director for injecting politics into the operation of the Police Department.

The Committee then subpoenaed certain additional police officers to appear at a later hearing scheduled for December 18, 1980. In response, the Mayor issued an executive order prohibiting any member of the Orange Police Department from testifying before the Committee and ordered that transcripts of the prior December meetings be sent to federal, state, and county law enforcement agencies for appropriate action.*fn3 The Mayor

later stated in an affidavit that he had issued that order because he had believed that the Council was not acting in good faith and had gone beyond the scope of its original resolution.*fn4

Early in January, 1981, the Mayor advised the Committee that he would not comply with any subpoena it might issue to him. Undaunted by that warning, the Committee went ahead and served the Mayor with a subpoena to testify before the Committee later that month. The Mayor failed to appear at the scheduled hearing.

The Committee then instituted an action in the Superior Court, Law Division, for an order to show cause why the Mayor, both as Mayor and as Acting Director of Police, should not comply with the subpoena, and why he should not be held in contempt for his failure to comply. The Mayor responded with an answer and a counterclaim for an order in lieu of a common-law writ of prohibition to stop the investigation and to quash the subpoena, asserting that the issuance of the subpoena was not authorized by statute. The Law Division judge held that the City Council had the right as a matter of law to conduct an investigation pursuant to its resolution of September 2, 1980, and the power to issue subpoenas in connection with such a legislative investigation.

The Appellate Division affirmed the lower court's order for the reasons set forth in the opinion below.

II.

The legislative history of the Faulkner Act*fn5 makes clear that under a Mayor-Council form of local government, the elected Council exercises the ...


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