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Levine v. Mayor

Decided: May 11, 1988.

H. RONALD LEVINE, PLAINTIFF,
v.
MAYOR OF THE CITY OF PASSAIC, CITY COUNCIL OF THE CITY OF PASSAIC AND THE CITY OF PASSAIC, DEFENDANTS



Martin, J.s.c.

Martin

The parties to this action, by way of cross motions for summary judgment, seek from the court (counts 1 and 2 of plaintiff's complaint) a ruling of whether N.J.S.A. 2A:8-5 can be limited in its term application by the appointing and confirming authority, in this instance, defendants, the Mayor and Council of the City of Passaic.

N.J.S.A. 2A:8-5 provides in part:

Each judge of the municipal court shall serve for a term of three years from the date of his appointment and until his successor is appointed and qualified.

Defendants, on October 1, 1987, reappointed plaintiff, a sitting municipal judge, to a qualified term of office by making it partially retroactive to January 16, 1985 and partially prospective to January 15, 1988, a period of three years. It is undisputed that plaintiff has served continuously as municipal judge in the City of Passaic since November 1975. The appointment of plaintiff prior to the one in dispute was for a term of three years, ending January 14, 1985. Since that date, plaintiff has been serving in a hold-over capacity, receiving his full salary and benefits.

On October 1, 1987 the mayor exercised his power under the statute in question by selecting plaintiff to continue to serve as municipal judge. By resolution, the city council approved the selection. Both the appointing and confirming authority, however, limited plaintiff's term of service as previously indicated.

Since the essential facts necessary to resolve the issues presented are not in dispute, summary disposition is appropriate. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67 (1954). Plaintiff contends that the statute is clear in its terms and cannot be limited in its application, and any attempt to do so would require a severance of the limited term. Defendants

argue that the limiting intent of the appointing authority controls. They further state that if the term limitation is legally deficient, the appointment is ultra vires and without force and effect.

It is clear that the appointing power of defendants comes solely via a state statute. N.J.S.A. 2A:8-5 is the power source for defendants' acts and the included specific phrase;

is critical to a resolution of the dispute.*fn1 The intent of the Legislature in providing this empowering state statute controls. A.M.N., Inc. of New Jersey v. South Brunswick Tp. Rent Leveling Bd., 93 N.J. 518 (1983).

The sense of a law is to be gathered from its object and the nature of the subject matter, the contextual setting, and the statutes in pari materia. [ State v. Brown, 22 N.J. 405, 415 (1956); emphasis supplied].

If the language is clear, the court may not ignore it in its construction process. Bravand v. Neeld, 35 N.J. Super. 42 (App.Div.1955). For purposes of construction, a distinction must be drawn between evaluating municipal enactments based upon the general police powers provided to a local government, and a review of specific state empowering statutes which form the sole basis for municipal action. The review of municipal functions is somewhat circumscribed. H.P. Higgs Company, Inc. v. Borough of Madison, 184 N.J. Super. 355 (Law Div.1982), aff'd in part, rev'd in part 188 N.J. Super. 212 (App.Div.1983), certif. den. 94 N.J. 535 (1983), and generally should not result in a redrafting exercise. Jantausch v. Borough of Verona, 41 N.J. ...


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