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Reilly v. Brice

Decided: March 22, 1988.

GEORGE A. REILLY AND VOTERS AND TAXPAYERS ASSOCIATION OF LAVALETTE, NEW JERSEY, PLAINTIFFS-APPELLANTS,
v.
FRANK E. BRICE AND BOROUGH OF LAVALETTE, DEFENDANTS-RESPONDENTS



On certification to the Superior court, Appellate Division.

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

O'hern

This case concerns the measure of discretion vested in courts under Rule 4:69-6(c) to enlarge the ordinarily applicable forty-five day limitation within which courts may review certain actions of municipal governing bodies. We hold that in the circumstances of this case the proper exercise of discretion is to enlarge the forty-five day limitation to allow review of the challenged municipal action.

The case arises from the Lavallette Borough Council's ratification, at a December 28, 1983, special meeting, of an award of a municipal "consulting" contract. In reality, the contract appears to be the negotiated settlement of a dispute over the termination of employment, and consequent entitlement to accrued vacation and sick pay, of the defendant, Frank E. Brice, who was then Lavallette's Chief of Police. Under the terms of the contract Brice was to have received $20,000 payable in equal monthly installments over a period of four years. Brice agreed to act as a consultant to the municipality during this period.

The plaintiff organization and the original named plaintiff claimed to represent the interests of the taxpayers and residents aggrieved by the municipal action. Seeking to declare the $20,000 contract illegal, plaintiffs filed a declaratory judgment action in May 1984 alleging a number of irregularities both in the substance of the agreement and in the procedure of its enactment.

Both defendant and plaintiffs moved for summary judgment. The trial court did not address the validity of the contract, ruling that the action, although denominated as one seeking declaratory relief, was in effect a complaint in lieu of prerogative writs. Since such a claim must be commenced within forty-five days of the governmental action, R. 4:69-6(a), the trial court dismissed plaintiffs' complaint because it was filed more than forty-five days after the right to review the action

arose. The Appellate Division affirmed in an unreported opinion. We granted certification. 108 N.J. 187 (1987).

The time limits governing actions in lieu of prerogative writs are set forth in Rule 4:69-6, which states in pertinent part:

(a). General Limitation. No action in lieu of prerogative writs shall be commenced later than 45 days after the accrual of the right to the review, hearing or relief claimed * * *.

(c). Enlargement. The court may enlarge the period of time provided in paragraph (a) or (b) of this rule where it is manifest that the interest of justice so requires.

Little can be added to Justice Pashman's characteristically thorough analysis of the proper understanding of "the interest of justice" standard embraced by this Rule.

In Ward v. Keenan, 3 N.J. 298 (1949), this Court recognized that the creation of the in lieu proceeding by the Constitution of 1947 was not intended to discard "the substantive law of the former prerogative writs as a means of safeguarding individual rights against public officials and governmental bodies," but was meant to avoid the "defects of procedure that led to criticism." Id. at 308. As a result, exceptions based on prior decisional law were soon engrafted upon the rules governing in lieu proceedings. Schack v. Trimble, 28 N.J. 40, 47-48 (1958). In particular, the courts held that certain cases were excepted from the rule governing limitation of actions. See Pressler, Current New Jersey Court Rules, Comment R. 4:69-6 at 750 (1975). These exceptions included cases involving (1) important and novel constitutional questions; (2) informal or ex parte determinations of legal questions by administrative officials; and (3) important public rather than private interests which require adjudication or clarification. Paragraph (c) of the Rule which provides for enlargement of the limitations period, was added by amendment in 1957 and was ...


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