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Falcone v. Defuria

New Jersey Superior Court, Appellate Division


Decided: January 16, 1985.

JOSEPH A. FALCONE, PASSAIC COUNTY PROSECUTOR AND BERNARD TERRANOVA, CHIEF OF POLICE, TOWNSHIP OF LITTLE FALLS, PLAINTIFFS-APPELLANTS,
v.
FREDERICK DEFURIA, MAYOR OF THE TOWNSHIP OF LITTLE FALLS AND THE TOWNSHIP COMMITTEE OF LITTLE FALLS, DEFENDANTS-RESPONDENTS

On appeal from Superior Court, Law Division, Passaic County whose opinion is reported at N.J. Super. .

Michels, Petrella and Baime.

Per Curiam

[199 NJSuper Page 556]

A declaratory judgment action was instituted to challenge as violative of the 1981 amendment to N.J.S.A. 40A:14-118 (L. 1981, c. 266) a municipal ordinance of the Township of Little Falls, Passaic County which provided for the appointment of two detectives to the police force by the chief of police with the approval of the governing body. The trial judge upheld the ordinance over plaintiffs' claim that the amendment gave exclusive power over the internal operation of the police force and its day-to-day operation, including the designation of detectives without interference or condition, to the chief of police.

This suit was originally instituted by the Passaic County prosecutor.*fn1 By amendment the police chief of the Township of

[199 NJSuper Page 557]

Little Falls was added as a plaintiff. The facts have been fully set out in the opinion of the trial judge which upheld the ordinance and need not be repeated here. See Falcone v. DeFuria, 199 N.J. Super. 549 (Law Div.1984).

Appellants conceded at oral argument that the power to appoint various officers to the police force and to promote officers to various ranks within the department resided exclusively in the governing body before the 1981 amendment to N.J.S.A. 40A:14-118, and remains with the governing body since that time. Both sides rely on our recent opinion in Gauntt v. City of Bridgeton, 194 N.J. Super. 468 (App.Div.1984). That opinion, however, is neither dispositive of the issue raised here nor inconsistent with our determination. Gauntt simply does not address the critical distinction in N.J.S.A. 40A:14-118 between the power to appoint and the power to assign to various duties. Hence, we reject plaintiffs' argument that that case is dispositive. Respondent argues that there is some indication in Gauntt (Id. at 484-485) and in the legislative history that the chief of police was not given such broad power. As originally introduced in the Legislature, Senate Bill No. 1243 had contained express language authorizing the chief of police to "prescribe the internal organization of the force and the duties and assignment of all subordinates and other personnel." This was eliminated by deletions in the 1981 legislative process of enactment of chapter 266, L. 1981 effected by the substitution of the Assembly Committee Substitute ("ACS") for Senate No. 1243, as well as the previous deletion thereof by Senate

[199 NJSuper Page 558]

Committee amendments.*fn2 Respondent argues that this shows a legislative intent not to extend such authority to the police chief. Other amendments during the legislative process and the Committee statement to the ACS also indicated a modified approach to the 1981 enactment. The legislative history, to the extent available, tends to support the municipality's position.

We affirm substantially for the reasons expressed by Judge Simpson in his decision dated May 15, 1984.


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