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Hiering v. Township of Jackson

Decided: February 9, 1990.


Serpentelli, A.j.s.c.


Can a township which has executed an agreement to employ an attorney for a four year term pursuant to a statute authorizing a four year appointment, terminate the attorney's services before the end of the four year term when that statute has been repealed and replaced by a statute providing for a one year term? This novel question may have statewide implications. It arises in the following context.

On January 1, 1989, plaintiffs, William T. Hiering, Jr. and the law firm of Hiering and Hoffman, were appointed to the office of township attorney in Jackson Township. The appointment was made for a term of four years consistent with the provisions of N.J.S.A. 40:145-13. A resolution was adopted by the township committee on January 1, 1989, authorizing the execution

of a contract with plaintiffs for professional services for a term from January 1, 1989 to December 31, 1992. The contract embodying this term and the other conditions of employment was executed on January 1, 1989.

On August 11, 1989 the Legislature enacted N.J.S.A. 40A:63-1 et seq. as part of a comprehensive revision of laws relating to the township form of government. N.J.S.A. 40A:63-9 repealed N.J.S.A. 40:145-13, effective January 1, 1990, thereby eliminating the authority for a four year appointment. Instead, N.J.S.A. 40A:63-6(b)(3) established the term of office for the township attorney as one year by incorporating the provisions of N.J.S.A. 40A:9-139.

On December 22, 1989, plaintiffs received a letter signed by two committeemen and a committeeman-elect, a majority of the five person council which would reorganize on January 1, 1990, advising that their services would no longer be required as of that date. On December 29, 1989, plaintiffs filed a complaint and order to show cause challenging the anticipated action of the new majority of the committee. Among other things, plaintiffs sought to restrain the appointment of another attorney and to obtain a ruling that plaintiffs were entitled to complete their four year term.

On that date, the court denied interim relief on the grounds that the application was premature (no appointment having yet been made), that there was no showing of irreparability even if the appointment was made and that the law was uncertain with respect to plaintiffs' likelihood of success on the merits. In the interests of judicial economy, the court provided for a return date on the substantive issues in the event that the governing body replaced plaintiffs at the reorganization meeting of January 1, 1990. Plaintiffs sought interlocutory relief from the Appellate Division which was denied.

On January 1, 1990, defendants did adopt a resolution appointing other counsel as the township attorney for one year

thereby terminating plaintiffs' employment. The case is now ripe for disposition on the merits.

This rather complex issue could have been resolved easily by an explicit statement of legislative intent. But as is so often the case, we are left only with the end product and no clear statement of its ingredients. N.J.S.A. 40A:63-1 et seq. which brought about the repeal of the four year term and the creation of the one year term became law as chapter 157 of the Laws of 1989. The legislative statement accompanying Assembly Bill 1449, the source of the statute here in dispute, explained that it was a revision of the laws pertaining to township and village forms of government. It noted that the aim of the legislation, in general, was to provide a law describing the township and village forms of government which is readily understandable by both citizens and municipal officials and which reduces ambiguity and conflict with more recent government law -- a bit of irony given the debate before this court. The assembly statement noted that the bill resulted from the recommendations of a report made to the Legislature and Governor by the County and Municipal Government Study Commission on the traditional forms of municipal government.

The report referred to in the legislative statement is entitled Functional Fragmentation And The Traditional Forms Of Government In New Jersey (hereinafter report). The 78 page document dated November, 1985, reviews the statutes that govern cities, towns, boroughs, townships and villages. The commission concludes, among other things, that the laws are frequently archaic, sometimes misleading and often confusing. It finds "that a substantial statutory revision of the traditional-form government laws will improve local officials' ability to operate traditional-form municipalities." Report at xii. The report, however, throughout its detailed analysis does not speak to the controversy before this court. Indeed, there is no discussion of the office of attorney or the differing terms of appointment in the existing law. In short, there is nothing in the report that is directly on point.

Inferences might be gleaned from the report to support the position of either party. Plaintiffs argue that a principal thrust of the report and the commission's recommendations is elimination of fragmentation in the statutory law. Thus, plaintiffs contend the commission was looking for uniformity among the various forms of government wherever possible. That could easily be accomplished for the office of attorney by selecting a one year term in townships to coincide with the prevailing law in other forms of government. Again, there is nothing in the report that explicitly supports plaintiffs' argument. Defendants counter by asserting that a primary purpose of the commission's recommendations was to streamline the organization of municipal government. Included in that goal was an ...

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