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KIRCHGESSNER v. WILENTZ

April 28, 1995

Robert Kirchgessner, Jr., et al., Plaintiffs,
v.
Robert N. Wilentz, et al., Defendants.



The opinion of the court was delivered by: ALFRED J. LECHNER, JR.

 LECHNER, District Judge:

 This is a consolidated action consisting of an action brought by seven named probation officers including one Robert Kirchgessner, Jr. *fn1" (the "Kirchgessner Plaintiffs"), as members of a putative class of all present and future probation officers employed by the State of New Jersey, see Kirchgessner Plaintiffs' Verified Class Action Complaint and Jury Demand (the "Kirchgessner Complaint"), and Exhibits A through C, and an action brought by the Probation Association of New Jersey ("PANJ"), the employee representative for some 1500 probation employees throughout New Jersey. See PANJ's Verified Complaint, Civil Action Number 94-6375 (AJL) (the "PANJ Complaint"), and Exhibits A through D. The Kirchgessner Plaintiffs and PANJ (collectively, the "Plaintiffs") commenced their actions against the seven justices (the "Chief Justice" and the "Associate Justices" or the "Defendants") of the Supreme Court of the State of New Jersey (the "New Jersey Supreme Court"), in their official capacities, seeking by way of injunctive relief to enjoin the policy of the New Jersey Supreme Court prohibiting probation officer membership in police organizations. Jurisdiction is alleged pursuant to 42 U.S.C. § 1983, 28 U.S.C. § 1343 and 29 U.S.C. § 102. Kirchgessner Complaint, PP 2-3; PANJ Complaint, P 4.

 On 15 December 1994, the Kirchgessner Plaintiffs made an application for an accelerated return date and a preliminary injunction (the "Preliminary Injunction Application"). See transcript of Preliminary Injunction Application, dated 15 December 1994 (the "Preliminary Injunction Application Tr."). Counsel for the Defendants was given notice of the Preliminary Injunction Application on 14 December 1994. Id. at 3.

 In light of the limited opportunity counsel for the Defendants had to present opposition and because the Kirchgessner Plaintiffs sought to enjoin the New Jersey Supreme Court concerning an opinion issued more than five months earlier on 8 July 1994 (the "8 July 1994 Opinion"), attached as Exhibit A to the Kirchgessner Complaint and Exhibit C to the PANJ Complaint, the Preliminary Injunction Application was denied on 15 December 1994. Preliminary Injunction Application Tr. at 3-5. The Kirchgessner Plaintiffs were instructed to proceed with their motion for injunctive relief pursuant to Rule 12N , Appendix N of the General Rules Governing the United States District Court for the District of New Jersey. Id. at 4-6.

 On 3 January 1995, PANJ filed an order to show cause (the "Order to Show Cause"), seeking a declaratory judgment, preliminary and permanent injunction against the Chief Justice and the Associate Justices in connection with the 8 July 1994 Opinion. A letter was forwarded to counsel for PANJ, with copies to counsel for the Kirchgessner Plaintiffs and counsel for the Defendants, dated 4 January 1995 (the "4 January 1995 Letter") stating:

 
As explained on 15 December 1994 to counsel in the Kirchgessner matter, based upon the chronology of the events related to these cases, as well as the timing of the applications for injunctive relief, ... there is no reason to proceed in an emergent manner. The relief sought requires deliberate action and the Defendants should have a fair and adequate opportunity to respond to a request for injunctive relief, as sought in each of these matters.

 4 January 1995 Letter at 2. Additionally, the 4 January 1995 Letter advised that it was the court's inclination to consolidate the matters and have the Kirchgessner Plaintiffs and PANJ jointly brief the injunctive relief issue to avoid a duplication of effort. Id.

 At a status conference, dated 12 January 1995, the action commenced by PANJ, was consolidated with the matter filed by the Kirchgessner Plaintiffs. See Order of Consolidation, dated and filed 12 January 1995. Thereafter, a return date and hearing were scheduled for 17 April 1995 (the "17 April Hearing"). See transcript of the 17 April Hearing, dated 17 April 1995 (the "17 April Hearing Tr.").

 Currently before the court is the Plaintiffs' motion for a preliminary injunction to enjoin the New Jersey Supreme Court, the Chief Justice and the Associate Justices, from enforcing a policy, as articulated in the 8 July 1994 Opinion; this policy prohibits probation officer membership in law enforcement organizations. Also before the court is the cross-motion by the Chief Justice and the Associate Justices to dismiss for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Rule 12(b)(6)"). *fn2"

 For the reasons set forth below, the motion by Plaintiffs for a preliminary injunction is denied. The cross-motion by the Chief Justice and the Associate Justices to dismiss is granted as to the Plaintiffs' Federal causes of action; supplemental jurisdiction is not exercised concerning the Plaintiffs' state law causes of action.

 Facts

 In October and November 1993, PANJ passed a referendum to affiliate itself with the Policeman Benevolent Association of New Jersey (the "State PBA"). PANJ Complaint, P 28. In September of 1994, the State PBA agreed to become affiliated with the PANJ, if such affiliation was not prohibited by law. Id., P 30. Additionally, many of the Plaintiffs were, at that time, members of the Fraternal Order of Police (the "FOP"). Kirchgessner Complaint, PP 9-14; PANJ Complaint, P 32.

 On 3 March 1994, in response to a request made by the Chief Probation Officers' Association, the New Jersey Supreme Court announced it would review its longstanding policy prohibiting probation officer membership in law enforcement organizations, namely the State PBA and the FOP. See Letter from the New Jersey Supreme Court, dated 3 March 1994 (the "3 March 1994 Letter"), attached as Exhibit A to the PANJ Complaint at 1. The New Jersey Supreme Court appointed retired Superior Court Judge Paul R. Huot, as a special master (the "Special Master"), to develop a factual record to aid in its review of this matter. Id.

 In the 3 March 1994 Letter, the New Jersey Supreme Court explained: "In the meantime, the present policy remains in effect: probation officers shall not become members of any law enforcement organization.... For the time being the policy shall not require those probation officers who are currently members of [the] FOP to resign." Id. at 1-2. Additionally, the 3 March 1994 Letter stated: "The [Supreme Court of New Jersey] wishes to make clear that it recognizes the probation officers' constitutional right to have representatives of their own choosing in connection with collective negotiations." Id. at 2.

 A. The Report of the Special Master

 
(1) What impact, if any, will membership of probation officers in the [State PBA] or the [FOP] have on the probation function?
 
(2) Will the affiliation of PANJ with the State PBA result in membership in the PBA of probation officers who are members of PANJ?
 
(3) What is the present number of probation officers who are members of the FOP and what have their activities been in connection with that organization?
 
(4) To what extent, if any, may probation officers become involved in or be seen as supporting political activity as a result of membership in either [the State PBA] or [the FOP]?
 
(5) Does the legislation (N.J.S.A. [§ ] 34:13A-5.3) prohibiting, subject to certain exceptions, police officers from joining an employee organization that admits non police to membership [sic] imply any legislative policy related to the potential impact on non-police members of such an organization?

 Id.

 The Report of the Special Master explained:

 
This report does not and the assignment of the Special Master was not intended to make findings concerning the question of whether a probation officer was a "law enforcement officer", nor the question of the propriety or right of any "union" to be a representative for collective bargaining purposes of probation officers nor the question of the right of probation officers to join any particular union.

 Id. (emphasis in original).

 With regard to the impact of membership in police organizations on the probation function, the Special Master determined that the testimony he heard and the evidence submitted "[were] not such that a true factual determination can be made." Id. at 3. According to the Special Master: "While a far more detailed and intense study would be required to come to a fully sustainable conclusion based upon empirical data rather than opinions, it would appear that membership in the [State PBA] or [the FOP] will not affect the functions of probation." Id. at 5 (emphasis added).

 The Special Master explained that there "is no evidence one way or the other" concerning the impact on the function of probation, as well as on the impact on individual probation officers from police officer association membership. Id. at 5-6. Instead, the Special Master stated these determinations turn upon the decision maker's view of human nature

 
as able to withstand the subtle bribery of friendship or steadfastness in living up to the moral and ethical standards required by a particular employment ... [and] the belief in the professionalism or lack thereof of probation officers as a whole, or an individual probation officer, in the performance of duty and adherence to oath.

 Id.

 The Special Master was similarly unable to make a generalized determination concerning the impact of joining a police officer association upon the neutrality of probation officers. Id. at 7. The Special Master rejected testimony regarding the enhanced cooperation and coordination with law enforcement agencies which would result from membership in the State PBA or the FOP because there was already evidence of such cooperation without probation officer membership in the State PBA or the FOP. Id.

 The Special Master concluded that affiliation with the State PBA would subject probation officers to the control and regulations of the State PBA. Id. at 10. "Probation officers may be placed in a position of supporting or opposing political candidates or legislation which may or may not be in the best interest of probation officers." Id. Additionally, the Special Master found affiliation with the State PBA could create a conflict of interest if, for example, the state offers a reward for the arrest and conviction of a defendant convicted of assaulting or killing a State PBA member. Id. The Special Master, however, explained:

 
This, again is an area where the individual integrity and professionalism of the officer is involved. There is no determination that such membership and such action on the part of the State PBA would cause any officer to fail to properly perform his [or her] duties, it is merely the recognition of a possible consequence of affiliation.

 Id. at 10-11.

 The Special Master determined there are between 700 and 800 probation officers who are members of the FOP, and have been so for twenty years. Id. at 13. The Special Master pointed out that the by-laws of the FOP provides it "is strictly non-political and shall have no affiliation with any union or political action committee." Id. at 14. According to the Special Master, there was no evidence presented with respect to the nature and quality of the activities of the members of the FOP other than that they participate in social, non-political and non-labor oriented activities. *fn3" Id. The Special Master determined the FOP is not engaged in partisan political activity. Id. at 15.

 The Special Master found that the State PBA does, on occasion, engage in partisan political activity. Id. The State PBA "may support or oppose candidates for elective office and support or oppose legislation." Id.

 The Special Master then addressed whether N.J.S.A. § 34:13A-5.3, which prohibits police officers from joining an employee organization which admits non-police officers, implies any legislative policy concerning non-police officers joining police officer organizations. Report of the Special Master at 16.

 The Special Master explained that, according to the testimony of the chairman of PERC, the purpose of the statute is to have collective bargaining without divided loyalties and to avoid problems which could arise if police and non-police were members of the same bargaining unit. Id. Summarizing PERC's position, the Special Master stated: "Police are to protect person and property, even in a labor dispute. The divided loyalty could arise if a police [officer] was a member of the same union as the employee who was on strike against a non[-] public employer." Id.

 According to the Special Master, the determination of whether persons are classified as police or non-police under the statute is the function of PERC. Id. The Special Master explained that "PERC's jurisdiction does not extend to the employees of the judicial branch of government[,]" and that it was not his (the Special Master's) duty to interpret or apply the statute to either police officers or probation officers. Id.

 B. The 8 July 1994 Opinion

 In the 8 July 1994 Opinion the New Jersey Supreme Court reaffirmed its policy of prohibiting probation officer membership in law enforcement organizations, the State PBA and the FOP in particular. 8 July 1994 Opinion at 5. The New Jersey Supreme Court explained that the 8 July 1994 Opinion was "quasi-legislative, based on ... policy considerations[,] ... [its] knowledge of the subject matter[,] ... [and] derived from [its] responsibility for, ... authority over, ... involvement with and ... regular and continuing regulation and oversight of the Probation Division and its functions and operations." *fn4" Id. at 2. The New Jersey Supreme Court did not adopt all of the Special Master's findings, although explaining that its "disagreement [was] not fact-specific, for as [the Special Master] notes the evidence was largely insufficient ... to reach any such determinations (or as the Special Master noted concerning the central question before us, the evidence was 'not such that a true factual determination can be made')." Id. at 3.

 According to the New Jersey Supreme Court:

 
Our decision rests on the fundamental difference between probation and police organizations. Probation is an integral part of the judiciary; everything that probation does it does as an arm of the judiciary. Among other things, it is the entity that enforces judicial orders. Given the nature and functions of probation, it must be as impartial as the rest of the judiciary, totally so and scrupulously so. Probation cannot take sides any more than a court may, and cannot be perceived as taking sides any more than a court may. ... It has no more right to become allied with a ...

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