On appeal from the Superior Court, Appellate Division, whose opinion is reported at 187 N.J. Super. 390 (1982).
For reversal -- Chief Justice Wilentz, and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. Affirmed -- None. The opinion of the Court was delivered by Garibaldi, J. O'Hern, J., concurring. O'Hern, J., concurring in the result.
On August 6, 1979, L. 1979, c. 163, N.J.S.A. 40:69A-60.7, became effective, allowing the mayors of cities of the first class with a "Mayor-Council Plan C" form of government under the Optional Municipal Charter Law, N.J.S.A. 40:69A-1 to 40:69A-210, to appoint their police chiefs. The issue here is whether N.J.S.A. 40:69A-60.7 is special legislation enacted in violation of N.J. Const. (1947), Art. IV, § VII, para. 9(13).
Both the trial court and the Appellate Division held that the law was unconstitutional because it was special legislation. The City of Newark appealed to this Court as of right pursuant to Rule 2:2-1(a)1.
Newark and Jersey City are the only cities in New Jersey of the first class (i.e., municipalities with a population in excess of 150,000) and both have adopted the "Mayor-Council Plan C" form of government. Accordingly, the act is applicable only to those two cities.
Newark has adopted Title 11 of the Revised Statutes, Civil Services, N.J.S.A. 11:1-1 to 28-3. Pursuant to that Title, the office of police chief was a classified civil service position that was filled in accordance with civil service procedures. However, in 1976 when Newark's police chief retired, Newark resisted appointing the chief through civil service because it wanted the position to become unclassified. For several years, no permanent police chief was appointed and the position was filled with interim appointees.
The Newark Superior Officers Association, an organization of deputy police chiefs of Newark and a plaintiff in this case, urged the Department of Civil Service to schedule a promotional examination for the position of police chief. In response to the requests of the Newark Superior Officers Association, Joseph H. Ryan, Acting Chief Examiner and Secretary of the Department of Civil Service, in a June 7, 1979 letter to the president of the Association, stated, in part:
This entire matter has been handled by the Department of Civil Service with a consideration of the unique demands for such a position. The City of Newark, being the largest city in the State of New Jersey, had asked for special treatment relative to the highest level position in the uniform police department. The judgment that this was a valid request was made on the basis of a very considered analysis of the situation. . . . The Department feels it acted within the authority granted to it by law in attempting to address not only the concept of merit fitness, but also to recognize the needs and requirements of the most populous city of the State.
In January 1978 at the request of the City, Senator Lipman of Essex County introduced legislation that provided that in first class cities operating under the "Mayor-Council Plan C" of the Optional Municipal Charter Law, the mayor may appoint a police director or a director of public safety, and a police chief. Such officers would be appointed without competitive examination, and would serve in the unclassified service of the civil service during the term of the mayor who appointed them. S. 687 (1978). In the "Mayor-Council Plan C" form of government, there was an unclassified police director over a classified police chief.
The State Assembly Municipal Government Committee prepared a statement accompanying the Act on June 21, 1979, which read as follows:
The Senate committee statement adequately expresses the provisions of this bill.
The bill applies to Newark and Jersey City; it comes at the request of Newark. In that city, the police director carries out long term administrative and planning policies; the police chief is responsible for the day to day implementation of those policies. The director and the chief must work closely together. The police director, in the unclassified civil service, must be responsive to the mayor and council. The police chief, on the other hand, in the classified service with tenure, may be unresponsive to the administration. By placing the office of police chief in the unclassified service, cooperation between the chief and the city administration will be assured.
The committee reports this bill with the understanding that legislation to be received by the Assembly, will deal with the problem of the relationship of the police chief to elected officials in more general terms. Jersey City has voiced no objections to this bill.
Subsequently, the bill was amended to omit the references to police director and director of public safety from the bill and to require that prior to his appointment the police chief had to have served as a superior police officer and possess at least five years administrative and supervisory police experience. The bill became effective on August 6, 1979 L. 1979, c. 163, N.J.S.A. 40:69A-60.7.*fn1
Newark adopted an ordinance pursuant to the act and proceeded to appoint a chief of police. Jersey City has never adopted such an ordinance.
A week after Newark adopted the ordinance plaintiffs brought this action in the Chancery Division, which action was subsequently transferred to the Law Division. Plaintiffs named as defendants the City of Newark, the Municipal Council of the City of Newark and two City officials, and the State of New Jersey and two state officials. Plaintiffs in their complaint charged that the law deprived its members of salary and fringe benefits; that the law was special legislation in violation of N.J. Const. (1947), Art. IV, § VII, para. 9; that the law violated their prevailing collective bargaining agreement by failing to provide for a promotional examination, and that it impaired their contract with the city contrary to N.J. Const. (1947), Art. IV, § VII, para. 3. Plaintiffs sought compensatory and punitive damages, an order directing that the civil service examination be given, and a permanent injunction against the city from appointing the police chief without an examination.
Both plaintiffs and defendants moved for summary judgment. In support of its motion, the City produced an affidavit from the Director of the Police Department of Newark, defendant Hubert Williams. In his affidavit, Director Williams stated that he has overall responsibility for the delivery of police services within the City. He stated that he established the policy and issued directives to ensure efficient use of personnel and property of the department. In addition, he said he performs community relations functions requiring the utmost sensitivity to the needs, fears and problems of the City's population. As the Police Director of the largest city in the state, with a population of 329,248 persons of diverse ethnic, racial and social backgrounds, he asserted that he deals on a "regular
basis with the conflicts and tensions typical of large urban areas." He pointed to the riots of 1967, 1968 and 1974 as a testament to the volatile nature of the community. Because of the complexity of his responsibilities Williams stated that he must rely heavily on the assistance of the police chief in performing his duties. Williams therefore asserted:
5. It is imperative that the person in the position of Police Chief hold the Director's trust and confidence, that he be able to act with sensitivity to community problems and tensions, that he exercised good judgment in decision making and in assisting formulation of policy, all of which qualifications are not measurable by the application of Civil Service standards.
6. In the belief that removing the position of Police Chief from the classified service would improve the operation of the Police Department and the delivery of police services and would ensure a greater degree of accountability from the top echelon of the Department in carrying out the policy and directives of the City Administration, I requested that the Mayor propose legislation providing for the removal of the position of Police Chief from the classified service.
The trial court denied the motions of all parties for summary judgment on the constitutionality of the statute and dismissed, without prejudice, the issues concerning alleged violations of civil service laws and the collective bargaining agreement on the grounds that they were moot.
As a result of a pre-trial conference the attorneys had with the trial court, the court advised them that it would review the papers submitted in support of their motions for summary judgment, and if it found there were no need for additional testimony, it would decide the issue of the constitutionality of N.J.S.A. 40:69A-60.7 on the stipulations entered that day. The stipulations were as follows:
The first stipulation deals with the population and numbers of uniformed police personnel in the seven largest municipalities, and those seven largest municipalities in the State of New Jersey in ranking order are as follows:
Newark, 329,248 population, police personnel of 1200.
Jersey City, 223,532 population, 853 uniformed police personnel.
Paterson, 137,970 population, 377 police uniformed personnel.
Elizabeth, 106,2011 [sic], 311 uniformed police personnel.
Trenton, 92,124 population, and 331 uniformed police personnel.
Woodbridge, 90,074 population, and 170 uniformed police personnel.
Camden, 84,910 population, 315 uniformed police personnel.
The second stipulation is that the County of Essex, which has its own police force, has a population of 850,451 with 114 uniformed police personnel. The next two cities, while not among the largest in the municipalities, are adjacent municipalities to the City of Newark and counsel felt that it was relevant and that is the City of East Orange with a population of 77,025 and 275 uniformed police personnel. The Town of Irvington, 61,493 population and 139 police personnel.
The third stipulation is that all New Jersey Municipalities in which Title XI, that is simple [sic] service is in effect have the position of police chief in the classified service except the City of Newark. Jersey City may but has not exercised its right under the challenged Act to take the position of police chief in the unclassified service.
The last stipulation is that all police chiefs in the classified service report to and are subordinate to an elected or appointed official or officials who are in the unclassified service.
The trial court held N.J.S.A. 40:69A-60.7 to be unconstitutional special legislation in violation of Article IV, § 7, para. 9(13) of the New Jersey Constitution. After the trial court decision but before an appeal to the Appellate Division was filed, N.J.S.A. 40:69A-60.7 was amended by P.L.1981, c. 465, § 43, effective January 9, 1982, to limit the application of the law to "any city of the first class which, prior to the effective date of this amendatory and supplementary act has adopted the form of government ...