On appeal from the Superior Court, Law Division, Essex County.
Gaulkin, Scalera and D'Annunzio.*fn1The opinion of the court was delivered by Gaulkin, P.J.A.D.
The sole question presented on this appeal, brought by the Mayor of the Township of Fairfield, is whether appointment of the municipal judge is to be made by the mayor with the advice and consent of the council or, as the trial judge held, by the municipal governing body.
The parties agree that the issue requires our interpretation and application of this portion of N.J.S.A. 2A:8-5:
Each judge of a municipal court of a single municipality shall be appointed as follows:
In municipalities governed by a mayor-council form of government, by the mayor with the advice and consent of council; provided, that in municipalities governed under the borough law (chapters 86 to 94 of Title 40 of the Revised Statutes), if the mayor fails to nominate a judge within 30 days after the office becomes vacant, or the council fails to confirm any nomination made by the mayor within 30 days after the same is made, then the council shall appoint the judge; and
In all other municipalities, by the governing body of the municipality.
Fairfield has adopted the Faulkner Act "small municipality plan C" as its form of government. N.J.S.A. 40:69A-139 et seq. (repealed).*fn2 The municipality is accordingly governed "by an elected mayor and councilmen." N.J.S.A. 40:69A-140 (repealed). At first blush, that would appear to be "a mayor-council form of government" calling for appointment of the municipal judge "by the mayor with the advice and consent of council." The respondent municipal council, however, urges that its government is not "a mayor-council form" within the meaning of N.J.S.A. 2A:8-5.
The relevant provisions of N.J.S.A. 2A:8-5 have been in effect since 1948. In 1950, the Legislature adopted the Faulkner Act, designed to permit "each municipality to select on its own initiative and without subsequent legislative approval any one of several forms of municipal government previously approved by the Legislature." Bucino v. Malone, 12 N.J. 330, 335, 96 A.2d 669 (1953). The approved plans were described in Bucino as
grouped in three general local government divisions -- the Mayor-Council, the Council-Manager, and the Small Municipality. There are six alternative plans under the Mayor-Council Division, four under the Council-Manager Division, and four under the Small Municipality Division, or a total of 14 optional plans.
Although only six of the statutory forms are designated as "mayor-council" plans, all 14 call for both a mayor and a council. In the "mayor-council" plans, the mayor is elected by the voters and is not a member of the council; in all other plans, the mayor is a member of the council, ...