On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-2400-99.
Before Judges King, Cuff *fn1 and Winkelstein.
The opinion of the court was delivered by: King, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This Law Against Discrimination case is before us on appeals improperly brought from an interlocutory order of May 10, 2000. The primary issue is the viability of the common-law legislative immunity defense to this statutory cause of action.
The appeal was filed on May 11, 2000; the cross-appeal on May 25, 2000. The interlocutory order granted summary judgment to the City of Bordentown and denied summary judgment to the defendant James Lynch, a city commissioner. The judge improperly certified the order as a final judgment pursuant to R. 4:42-2. Notwithstanding this manifestly improper certification of a clearly interlocutory order as final, we grant leave to appeal out-of-time on both the appeal and cross-appeal. We entertain the matter in the interests of justice and to avoid further delay in this matter, originally filed in the Law Division in 1993. The appeals, despite the procedural irregularities, present several discrete legal issues which are amenable to and require resolution at this time. See Taylor by Wurgaft v. General Elec. Co., 208 N.J. Super. 207, 211 (App. Div.), certif. denied, 104 N.J. 379 (1986).
We reverse the summary judgment order in favor of the City and affirm but modify the denial of summary judgment order with respect to the claim against Commissioner Lynch. We remand for a prompt trial. The judge also ordered a bifurcation and severed trials on plaintiff's dual discriminatory promotion and retaliation claims. We reverse this severance order as a mistaken exercise of discretion. See Rendine v. Pantzer, 141 N.J. 292, 307-11 (1995).
This case presents claims by the plaintiff Frederick Brown, a sergeant in the City's police department, against the City and others claiming violations of his rights under the Law Against Discrimination, N.J.S.A. 10:5-1 to 42 (LAD). Brown claims that the defendants, or some of them, principally defendant Lynch, engaged in racial discrimination in the hiring of defendant Phillip Castagna for the post of Chief of Police, on July 8, 1991. He also claims unlawful retaliation after this appointment.
Defendant Lynch eventually moved for summary judgment on the ground of common-law legislative immunity. The Law Division judge denied this motion on the ground that Lynch was entitled only to "qualified immunity subject to good faith." As noted, we affirm this denial of summary judgment as to Lynch with modification. Commissioner Lynch was in charge of the Department of Public Safety. The City was organized with three commissioners under the Walsh Act, "the commission form of government," N.J.S.A. 40:70-1 to 76-27. Under the Walsh Act: "The board of commissioners ... shall have all the executive, administrative, judicial and legislative powers and duties ... and shall have complete control over the affairs of such municipalities." N.J.S.A. 40:72-2. Lynch headed the Department of Public Safety under the distribution of powers scheme established in the City's government. N.J.S.A. 40:72-4. This blending of powers as head of the department of public safety creates the problem presented by this case.
Lynch is charged with racial discrimination in participating in the hiring of defendant Castagna, a Caucasian, as Chief of Police, in preference to plaintiff, an African-American. We agree that Lynch, as commissioner in charge of the Department of Public Safety, enjoyed common-law "legislative immunity" in voting on Resolution 1991-68 appointing Castagna as Chief of Police on July 8, 1991. On this point we adopt the reasoning of the United States Supreme Court's unanimous decision in Bogan v. Scott-Harris, 523 U.S. 44, 140 L.Ed.2d 79, 118 S. Ct. 966 (1998). In Bogan, the Supreme Court held that the legislative acts of Fall Rivers' mayor and city council's vice-president enjoyed absolute immunity from liability claims for discrimination leveled under 42 U.S.C.A. § 1983 when they voted to eliminate certain city jobs, including the plaintiff's. The Court found that legislative immunity "has long been recognized in Anglo-American law" and has "a venerable tradition." Bogan v. Scott-Harris, 523 U.S. at 48-49, 140 L.Ed.2d at 85, 118 S. Ct. at 970. The "acts of voting for an ordinance were, in form, quintessentially legislative," id. at 523 U.S. 55, 140 L.Ed.2d at 89, as were all "integral steps in the legislative process." Ibid. The Court also strongly implied that the "hiring and firing of a particular employee" was different in character from a traditional legislative act. Id. at 523 U.S. 56, 140 L.Ed.2d at 89, 118 S. Ct. at 973.
Our recognition here of common-law legislative immunity as a defense to an LAD claim follows the lead of Judge Keefe's opinion for this court in Peterson v. Ballard, 292 N.J. Super. 575 (App. Div.), certif. denied, 147 N.J. 260(1996), and Judge Skillman's trial-level opinion in Timber Properties, Inc. v. Chester Twp., 205 N.J. Super. 273, 284 (Law Div. 1984), which held that common-law litigation immunity and legislative immunity, respectively, were preserved in actions under both the LAD and § 1983. We rely on the reasoning of these opinions in finding a sound basis for legislative immunity as a defense to an LAD claim.
The sparse record before us prevents any precise line-drawing as to when Lynch's asserted conduct in this circumstance, relating to his allegedly actionable discriminatory administrative conduct in proposing Castagna for the chief's position, became immunized legislative activity. We take some guidance from our State Constitution's "speech and debate" clause relating to the privilege of legislators which says "for any statement, speech or debate in either house or at any meeting of a legislative committee, they shall not be questioned in any other place." N.J. Const. art. 12, § 4, § 9. See State v. Gregorio, 186 N.J. Super. 138, 151-53 (Law Div. 1982) (Judge Baime relates the history of the clause); Van Riper v. Tumutly, 26 N.J. Misc. 37, 41, 56 A.2d 611 (Sup. Ct. 1948) (statement before legislative committee by state legislator privileged). Without any factual record we cannot make any more specific conclusions on where legislative conduct stops and administrative or personal conduct begins.
Members of the legislature and the judiciary are not protected by their status alone from liability claims. Davis v. Passman, 442 U.S. 228, 246, 60 L.Ed.2d 846, 863, 99 S. Ct. 2264 (1979) (Congressman can be held liable for gender discrimination in hiring); Forrester v. White, 484 U.S. 219, 98 L.Ed.2d 555, 108 S. Ct. 538 (1988) (state-court judge may be held liable under § 1983 for gender discrimination in hiring and firing). Some guidance is found in Justice O'Connor's observations in the Court's unanimous opinion in Forrester as to a judge's administrative actions and responsibilities:
This Court has never undertaken to articulate a precise and general definition of the class of acts entitled to immunity. The decided cases, however, suggest an intelligible distinction between judicial acts and the administrative, legislative, or executive functions that judges may on occasion be assigned by law to perform. Thus, for example, the informal and ex parte nature of a proceeding has not been thought to imply that an act otherwise within a judge's lawful jurisdiction was deprived of its judicial character. See Stump v. Sparkman, 435 U.S. 349, 363, n. 12, 55 L.Ed.2d 331, 98 S. Ct. 1099 (1978). Similarly, acting to disbar an attorney as a sanction for contempt of court, by invoking a power "possessed by all courts which ...