This litigation was spawned in a bitter battle in June 1985 for the office of mayor of Jersey City. The incumbent Mayor Gerald McCann lost the election. After the election but before incoming Mayor Anthony Cucci took office, Mayor McCann appointed a large number of people to various municipal offices and positions. Mayor Cucci has brought this action seeking to have these "lame duck" appointments declared invalid. His major ground is that Mayor McCann's motives in making the appointments were wrongful and malicious.*fn1
All parties have moved for summary judgment. The court finds that no genuine issue of fact is present and that the appointments were lawfully made. Defendants' motions for summary judgment are therefore granted. The court's reasons are as follows.
The Jersey City Municipal Council met on June 13, 1985, two days after the election. The published agenda for the meeting contained the following item: "Appointment of two Housing Authority Commissioners and other autonomous agencies." Nevertheless, at the meeting resolutions were introduced to approve some 22 appointments to such positions as the Housing Authority, Sewerage Authority, Board of Adjustment, Rent Leveling Board, Planning Board, Alcoholic Beverage Commission, Municipal Court and Board of School Estimate. Those appointed were supporters of Mayor McCann, including his brother. The resolutions were adopted amid much turmoil. The appointments were presented again and approved at a subsequent meeting of the Council held on June 24, 1985.
Plaintiffs contend that Mayor McCann and his council supporters bore the incoming administration a "great deal of ill will and malice." (Mayor Cucci's Certification para. 10.) Mayor Cucci contends that his offices were vandalized, vital records
were destroyed, and the outgoing administration failed completely to cooperate in the transition between the two administrations. He argues that the post election appointments were part of a "continuing effort to obstruct and interfere with my administration's coming into power. . . ." (Mayor Cucci's Certification para. 16(e); see other Certifications filed on behalf of plaintiffs and see the responding Certification of former Mayor McCann.)
In the absence of legislation to the contrary, a "lame duck" mayor and council may make and approve appointments before the new administration takes office. See Bakely v. Nowrey, 68 N.J.L. 95, 52 A. 289 (Sup.Ct.1902) aff'd. 68 N.J.L. 732, 54 A. 833 (E. & A.1903); Thomas v. Mc Grath, 145 N.J. Super. 288, 293 (App.Div.1976); Georgia v. Suruda, 154 N.J. Super. 439, 446 (Law Div.1977); 2 McQuillin Mun. Corp. (3 ed. Rev.1979), § 10.35 et seq.
For an outgoing administration to make such appointments may be unwise public policy; however, the practice has a long history in the United States. In the closing days of his term, President John Adams appointed 50 Federal judges. Supporters of the incoming administration of President Thomas Jefferson complained that these "midnight" appointments would provide "sinecure places and pensions for the thorough-going federalist partisans." As predicted, President Adams' appointments were "all right-thinking federalists". See Bernard Schwartz, American Heritage History of the Law in America, 54 (1974).
Here, too, the incoming administration contends that Mayor McCann was motivated by a desire to reward his supporters. However, the law is settled that courts will not inquire into what motivated public officials in making and approving appointments, provided that the officials had the power to so act and exercised that power in accordance with law. See Bd. of Rec. Comm'rs., Rutherford v. Rutherford, 166 N.J. Super. 476, 482
(App.Div.1979); 5 McQuillin Mun. Corp. (3 ed. Rev.1981), § 16.90 at 266.
The wisdom of acts by public officials are reviewable by the people on election day. The reviewing authority of judges has a much narrower reach. See Kozesnik ...