On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket Number MER-L-1344-02.
Before Judges Wefing, Fall and Payne.
The opinion of the court was delivered by: Fall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Public Law 2001, Chapter 362 (the"Act"), codified in part as N.J.S.A. 2B:10A-1 to -3 and amending N.J.S.A. 2C:39-6, establishes within the Administrative Office of the Courts a"Probation Officer Community Safety Unit," consisting of no less than 200 probation officers who shall be authorized to carry a firearm in accordance with N.J.S.A. 2C:39-6c(17) and rules to be adopted by the Supreme Court of New Jersey. The Act grants those probation officers in the Probation Officer Community Safety Unit the authority to arrest, detain and transport probationers and to enforce the criminal laws of this State.
The Act further requires the Administrative Director of the Courts to report to the presiding officers of the New Jersey Senate and General Assembly within eighteen months of its effective date as to the effectiveness of the Probation Officer Community Safety Unit.
In these back-to-back appeals consolidated for opinion purposes, defendant State of New Jersey and intervenors Probation Association of New Jersey and Probation Association of New Jersey Professional Supervisors Union (collectively,"PANJ"), appeal from entry of an order in the Law Division on January 20, 2004, granting summary judgment in favor of plaintiff, Richard J. Williams, in his official capacity as Administrative Director of the Courts, declaring the Act unconstitutional under the separation-of-powers clause of the Constitution of the State of New Jersey, and thereby void. In A-3389-03T3, PANJ also appeals from those portions of the January 20, 2004 order denying their motion to dismiss the complaint or alternatively transferring the matter to an independent, neutral third party for resolution; denying their motion to compel arbitration and for a stay of the Law Division action pending that arbitration; dismissing their counterclaim; and denying their cross-motion for summary judgment. PANJ further appeals from that portion of an order entered on February 4, 2003, denying their application for status as party defendants and designating them as permissive intervenors pursuant to R. 4:33-2.
After analyzing the record in the light of the written and oral arguments presented by the parties, we concur with the trial court's conclusion that the Act is void as constituting an impermissible infringement on the plenary constitutional authority of the Supreme Court to make rules concerning the administration of the courts, violative of N.J. Const., Art. III, ¶ 1.
We reject the contention by PANJ that the trial court erred in declining to submit the issue of comity and constitutionality of the Act to arbitration. It is clear that the facial validity of legislation is not subject to arbitration. PANJ's argument that the validity of the Act must be determined by an impartial arbitrator or entity other than the judiciary is without merit. Absent federal court jurisdiction, the doctrine of necessity requires state court judicial review of the validity of the Act. The remaining contentions of PANJ are without merit and will be discussed infra.
The following procedural and factual history is relevant to our consideration of the issues advanced on appeal. On April 23, 2002, plaintiff filed a complaint, captioned"In the Matter of P.L. 2001, Chapter 362," seeking a judgment declaring L. 2001, c. 362 unconstitutional on the grounds that it impinged upon powers granted the Judiciary by the New Jersey Constitution thereby violating the separation of powers clause of the Constitution. N.J. Const. Art. III, ¶ 1.
PANJ moved, on May 2, 2002, for entry of a consent order permitting it to intervene. According to plaintiff, although the court never entered a formal order, PANJ was permitted to intervene on consent of plaintiff and the State.
By order issued on June 14, 2002, the trial court ordered the re-captioning of the complaint to specifically name Richard J. Williams, in his official capacity as Administrative Director of the Courts, as plaintiff, and the Legislature of the State of New Jersey, by and through Richard J. Codey and John O. Bennett, in their official capacities as Presidents of the Senate and Albio Sires, in his official capacity as Speaker of the Assembly, as defendants. An amended complaint was filed on June 20, 2002.
On July 22, 2002, PANJ filed a notice of removal of the matter to the United States District Court for the District of New Jersey. After a hearing on plaintiff's motion to remand held before Judge Anne E. Thompson on September 18, 2002, the court ordered that the matter be remanded to the Superior Court of New Jersey for lack of federal jurisdiction.
On October 30, 2002, plaintiff forwarded a proposed consent order to the Law Division seeking to delete the named legislative defendants and to replace them with the State of New Jersey as defendant. PANJ opposed the consent order, urging that"if the State of New Jersey is named as a defendant in this matter, in effect the plaintiff and the defendant would be the same entity." Counsel for the State expressed support for the consent order.
During a December 6, 2002 telephone conference pertaining to PANJ's opposition to the consent order, Judge Linda R. Feinberg tentatively decided that"because the statute [L. 2001, c. 362] has been duly enacted, and because the State is the one who would be authorized and given the authority to enforce it,... the State is the appropriate party." Over objection of plaintiff's counsel and with no objection being interposed by the State, counsel for PANJ requested that his clients be made party defendants. The judge directed the briefing of that issue.
In a written opinion dated December 6, 2002, Judge Feinberg formalized her tentative oral decision concerning the status of the State and indicated that she intended to sign the proposed consent order. An order embodying the foregoing was entered on January 6, 2003.
Plaintiff filed a second amended complaint, naming the State as defendant, on January 10, 2003. The State filed an answer dated January 21, 2003, denying the material allegations of the complaint and containing five affirmative defenses.
In a January 21, 2003 written opinion, Judge Feinberg reiterated her determination that the State of New Jersey was the appropriate defendant, denied PANJ's request to be designated as party defendants, ruled that PANJ would remain as permissive intervenors, and denied plaintiff's request that PANJ be dismissed from the action. The judge reasoned, as follows:
Permissive intervention is to be liberally construed by trial courts, with a view to whether intervention will unduly delay or prejudice the adjudication of rights of the original parties and whether intervention will eliminate the need for subsequent litigation. The court recognizes that PANJ's members do have an interest in the outcome of this litigation and as such PANJ was permitted to intervene in the action.
PANJ has not demonstrated that there currently exists a [justiciable] controversy for which it should be granted status as a defendant, and in addition has not established that it holds a position that cannot be adequately represented by the State. Therefore, the court denies PANJ's request to be granted status as a defendant in this action. In addition, the court denies the AOC's request that PANJ be dismissed from this action. Accordingly, PANJ will maintain its current status of intervenor in the action.
An order memorializing that ruling was entered on February 4, 2003.
On March 25, 2003, PANJ filed an answer that denied the material allegations of the second amended complaint and contained sixteen affirmative defenses and a five-count counterclaim. Count one of the counterclaim sought injunctive relief restraining state court action while a special master and/or neutral third party decided the matter, a declaratory judgment that plaintiff's actions violated the due process clause of the United States Constitution, and injunctive relief requiring implementation of the Act. Counts two, three and four sought similar injunctive relief. Count five also sought injunctive relief and demanded that the matter be referred to a neutral arbitrator.
On March 25, 2003, plaintiff moved for summary judgment, seeking an order declaring the Act unconstitutional under the New Jersey Constitution. Appended to plaintiff's brief in support of the motion were AOC Directive #10-73, dated May 15, 1974; an Administrative Ruling issued by the Supreme Court on April 28, 1994, captioned"In the Matter of Proceedings Concerning Probation Officers' Membership in Law Enforcement Organizations and Proposed Affiliation of PANJ with the New Jersey State Policemen's Benevolent Association, Inc."; and AOC Directive #6-97, dated April 28, 1997.
AOC Directive #10-73 provided:
The Supreme Court has reviewed the matter of Probation Officers' carrying weapons in the regular performance of their work. The Court directed that Probation Officers not be permitted to carry weapons.
Probation work is the guidance and assistance to persons under investigation and supervision, and not law enforcement. It is suggested that where Probation Officers occasionally find themselves exposed to hazardous conditions during the course of their work, they use measures other than the carrying of firearms. They should consider traveling in pairs or requesting a police officer to accompany them on those occasions.
The Administrative Ruling dated April 28, 1994, issued after five days of hearings before a Special Master and the submission of the Special Master's report, stated in part:
The Court has been asked to review its long standing policy prohibiting probation officers from becoming members of law enforcement organizations along with the related issue of the propriety of the proposed affiliation of the Probation Association of New Jersey (PANJ) with the Policemen's Benevolent Association of the State of New Jersey (PBA).
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 is not pro-this or anti-that, it is not on the side of either men and fathers or women and mothers, it is not on the side of either parents or children, not on the side of either prosecutors or defendants. It has no more right to become allied with a public defender's office than with prosecutors or police. Probation represents no special interest in society and government but one: the courts.
Police and police organizations have but one interest and one role: law enforcement. Everything they do serves that interest: investigating crime, apprehending criminals, aiding in the prosecution and conviction of the accused, and in the imposition of punishment. The police stand firmly and properly on one side of the scales of criminal justice--the prosecution's side.
Put simply, the functions of police and probation--one serving the prosecution the other serving the courts--are not only different, but incompatible. Separation of the two is essential to the impartiality of the probation function and to the integrity of the judiciary.
The Court has therefore decided to maintain its policy of prohibiting probation officers from becoming members of law enforcement organizations, in particular the FOP [Fraternal Order of Police] and the PBA. A directive to that effect will be issued, including a requirement that existing memberships in the FOP may not be renewed and in any event must be terminated by resignation or otherwise by January 1, 1995. We also prohibit affiliation of PANJ with the PBA.
AOC Directive #6-97 further stated:
On December 7, 1994, the Administrative Director issued Directive #9-94 prohibiting new membership in the FOP/PBA by probation officers, and requiring resignation by existing members. Enforcement of Directive #9-94 was suspended pending resolution of federal litigation. The United States Supreme Court recently declined to grant the Probation Association of New Jersey's petition for certiorari regarding our Supreme Court's decision to uphold the ban on FOP/PBA membership. Accordingly, the Court's 1994 Administrative ruling should now be enforced. That is, probation officers may not join the FOP or PBA. Existing membership may not be renewed and must be terminated by June 30, 1997.
On March 24, 2003, PANJ moved to dismiss plaintiff's second amended complaint or, alternatively, to transfer the matter to an independent neutral third party for adjudication of all claims, affirmative defenses and counterclaims. George P. Christie, President of PANJ, submitted a certification in support of the motion in which he concluded that"a hearing in this matter should be conducted by an independent third party neutral and not before the Judiciary and its representatives who have already made a final decision as to the result." Christie further stated that because safety is of utmost importance to probation officers, not only did PANJ or its predecessors lobby for passage of the Act for eight years, it negotiated collective bargaining agreements with the AOC containing provisions regarding the safety of probation officers. He added that the Act was passed"over the opposition of the Judiciary both in person and in writing through its staff lobbyist, David Anderson, a former trial court administrator, and upon information and belief through other higher representatives of the Supreme Court."
Christie noted that a directive issued from a meeting of Assignment Judges"or related meetings instructing administrators in the vicinages that the law [Act] is not'self executing'... the Judiciary from top to bottom opposes this law" and that a direct connection exists between plaintiff and the New Jersey Supreme Court. He further stated that probation officers face"threatening situations and are in harm's way" on a regular basis, and have been physically confronted and have overseen probationers who committed serious crimes, including murder, while on probation. Christie also noted that based upon the employer-employee relationship between them, the Judiciary and PANJ,"are constantly adversaries in court proceedings and proceedings before administrative agencies" and"are adversaries in scores of grievance matters," and that"PANJ has filed numerous Unfair Practice Charges against the Judiciary pursuant to the Public Employment Relations Act."
Counsel for PANJ also filed a certification in support of PANJ's motion. Among other things, he urged that the Judiciary is"the party which refuses to enforce the legislation in question to which it is opposed and which PANJ lobbied to enact" and that the State Judicial Unification Act made the Judiciary the employer of probation officers and"all contracts and communications with PANJ are with the New Jersey State Judiciary." Attached to counsel's certification was a letter from counsel to plaintiff regarding a disciplinary matter in the Mercer Vicinage in which the local President of PANJ was the subject of the discipline and that Judge Feinberg, the judge assigned to the within matter, had been named as a distributee of the letter. Counsel noted that"on January 21, 2003, Judge Feinberg issued a decision denying PANJ's request to be named a defendant in this matter."
On March 25, 2003, PANJ moved to compel arbitration and sought a stay of the within action while arbitration was pending. Christie also submitted his certification in support of that application, in which he concluded that the Judiciary's refusal to implement the Act"is a violation of the Health and Safety Articles [of various collective bargaining agreements between PANJ and the Judiciary] and must be referred to arbitration for resolution."
In support of that contention, Christie referred to language contained in a series of collective bargaining agreements between PANJ and the Judiciary concerning the health and safety of probation officers. In particular, he cited to Article 26.1 of the 2001-2004 collective bargaining agreement for the PANJ Case-Related Professionals Unit that provided:
(a) The Judiciary shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. The Judiciary will discharge its responsibility for the development and enforcement of occupational safety and health standards to provide a safe and healthful environment in accordance with PEOSHA and any other applicable statutes, regulations or guidelines outlined in the New Jersey Register which pertains to health and safety matters. The Judiciary will provide a reasonably safe and healthful place of employment for all employees.
(b) The parties agree to cooperate in maintaining and improving safe working conditions and health protection for the employees with established safety standards and in the promotion of safety, safe working habits and good housekeeping throughout the work environment. Where reasonably possible, each employee will comply with all safety rules and regulations.
Article 26.1 of the 2002-2004 collective bargaining agreement for the PANJ, Professional Supervisors Union contained substantially similar language except the following sentence was added at the end of sub-article (a):"References to safety are intended to include a concept of reasonable personal security and protections which shall be maintained to assure employees against physical harm." Sub-article (b) of the Supervisors' Union Agreement provided that"[w]here applicable, the Judiciary shall be guided by the'Best Practices for Safety Standards for New Jersey Probation.'" Sub-article (c) of the Supervisors' Contract contained the same language as sub-article (b) of the Case-Related Professionals' Agreement.
Christie further stated that the arbitration procedures contained in Article 10 of both agreements provided that the"Judiciary and PANJ agreed to submit contractual issues to binding arbitration[,]""[p]laintiff's effort to bypass the collectively agreed to arbitration process by filing a declaratory judgment action in the New Jersey Superior Court violated the agreements negotiated by PANJ and the Judiciary[,]" and that"any resolution of whether... [the Act] must be implemented is an issue for one of the five arbitrators designated by PANJ and the Judiciary: Barry Weinberg, a retired judge, James Mastriani, former Public Employment Relations Commission Commissioner, Robert Glasson, Jeffrey B. Tener and Joan Parker."
Finally, Christie stated that PANJ had pending grievances filed against the Judiciary predicated upon the Judiciary's failure to address certain safety concerns of probation officers, and that the Judiciary had agreed that the resolution of these issues was subject to arbitration.
Judge Feinberg held a conference call with counsel for plaintiff and for PANJ on April 14, 2003. The judge referred to the motion for summary judgment filed by plaintiff and the motions to compel arbitration and appoint a third party neutral filed by PANJ. Noting that plaintiff's motion concerned a constitutional issue, the judge stayed discovery"without prejudice." An order memorializing that determination was entered on April 14, 2003.
On April 29, 2003, PANJ cross-moved for summary judgment. Christie submitted a certification in support of that cross motion, and in opposition to plaintiff's motion for summary judgment. After repeating the same information contained in his certification submitted in support of the motion to compel arbitration, Christie detailed some twenty-nine instances between May 10, 2001, and April 2003 where probation officers had faced"dangerous situations... in the course of performing their regular job duties."
Christie also stated that probation officers are given a"very superficial" basic training course and, although they are instructed to abandon a field visit if it appears dangerous, they risk discipline if they do not make these visits. He added that probation officers do not receive self-defense training or have protective equipment and, although they are instructed to seek police assistance if they need help, police are often not readily available.
Christie further certified that probation officers supervise over 100,000 adult criminal offenders and an additional 15,000 juveniles resulting in a caseload of 170 cases per officer. According to Christie, many of the offenders are dangerous, and there are at least 25,000 outstanding bench warrants for probationers who did not report or comply with conditions of their probation.
Christie also stated that New Jersey federal probation officers, New Jersey state parole officers and probation officers in other states are permitted to carry firearms. He further noted that it was his"understanding that Judge Feinberg and/or her husband and other New Jersey court judges are authorized to carry firearms."
Christie repeated information contained in his certification submitted in support of the motion for the matter to be heard by an independent third party neutral, and urged that the Judiciary possessed a"biased interest" in the outcome of this case and that"[t]he appearance of impropriety throughout the Judiciary is apparent based on the existing employer-employee relationship."
On April 29, 2003, plaintiff cross-moved for summary judgment, seeking dismissal of PANJ's counterclaim with prejudice. The State also cross-moved for summary judgment.
On June 13, 2003, oral argument was held before Hon. Paulette M. Sapp-Peterson on PANJ's motions for reference of the matter to an independent third party; to compel arbitration; and on the motions and cross-motions for summary judgment on the constitutional issue.
Judge Sapp-Peterson denied PANJ's motions for reference and to compel arbitration in an oral opinion, defining the issue as follows:
The basis of this particular application is that the defendants [intervenors] maintain that final arbiters of disputes between the Judiciary and PANJ are third parties, often an arbitrator, a special master or the Public Employees Relation [sic] Commission, otherwise known as PERC. The defendant interveners [sic] argue that no other party to this litigation has had the extensive litigation history with the Judiciary that PANJ has experienced and therefore, it seeks the assistance of administrative agencies or persons who are independent of the Judiciary to resolve this dispute.
The defendants contend that this is necessary because of the adversary relationship between PANJ and the Judiciary and that often includes confrontations with the assignment judges in each vicinage.
In denying the motion to dismiss or alternatively transfer the matter to a third party neutral, and in noting that due process rights had not been implicated, the judge stated:
The Doctrine of Necessity is applicable to the present case. This Court is mindful that this case has been remanded to Superior Court from the New Jersey Federal District Court and on the basis that there was no... Federal jurisdictional question implicated...
Clearly, there is a public need to have this matter decided immediately. Moreover, based on the fact that this matter has been remanded to Superior Court from the Federal Court, it is clear that there is no other alternative forum and the Judiciary as a whole is implicated, thus, the parties can not act without the Judiciary's involvement.
Further addressing PANJ's motion to compel arbitration, the judge stated:
[T]he interveners rely upon Article 26 of the Collective Bargaining Agreement of 2001-2004 and Article 10 of the... Agreement, which indicates an intent on the part of the Judiciary to submit any statutory claims including any claims as it relates to... [the Act], to arbitration.
The Court rejects that particular contention and finds that the scope of... arbitration deal[s] with... grievances... disputes arising under the agreement. In reading the agreement, the clear and unambiguous language of this agreement does not call for the arbitrator to interpret legal questions, that is, to determine the constitutionality of this particular statute.
The judge reserved decision on the motions and cross-motions for summary judgment with respect to the constitutionality of the Act.
On December 19, 2003, Judge Sapp-Peterson issued a comprehensive written opinion granting summary judgment to plaintiff and declaring the Act unconstitutional. After reviewing the provisions of the Act, the judge noted that it required the Administrative Director of the Courts to report to the presiding officers of the Senate and General Assembly the effectiveness of the new probation officer unit within eighteen months of the Act's effective date.
The judge also found that plaintiff's constitutional challenge could be addressed without resolution of any factual issues raised in opposition as a basis for denying summary judgment, and that it was not necessary to await completion of discovery prior to addressing the legal issues.
After reviewing the history of probation in New Jersey, the judge noted that the separation of powers among the three branches of government"has never meant an absolute and perpetual division" and does not"prevent cooperative action among the three branches."
Setting forth constitutional and case-law authority for the proposition that the Supreme Court is vested with the broadest possible administrative authority, the judge stated that"[c]onsistent with this constitutional grant of broad administrative powers, the Supreme Court issued Directive #10-73, prohibiting probation officers from carrying firearms," and the court further found that the Act"is in direct conflict with" that Directive. The judge added that"[a]n administrative directive prohibiting probation officers from carrying weapons in the performance of their duties involves the internal administration of the courts."
The judge discounted the fact that the Judiciary had never challenged previously-existing statutes"that outlined the structure of the probation department and procedures to be followed by probation," as"not dispositive."
The judge further stated that"the focus is not upon whether the legislation interferes with the Judiciary, as it is clear that the Court tolerates actions of other branches of government affecting the judicial system," but"what is dispositive, is whether the legislative enactment interferes with the Judiciary's mandate to administer the courts."
The judge found such interference improper because by directing that the Judiciary deploy a certain number of probation officers to the newly created unit, the Legislature is exercising administrative prerogatives over the organization, management and allocation of judicial resources.
[I]n addition to being subject to supervision by the Supreme Court, these officers would be subject to supervision by the Attorney General, the chief law enforcement officer of this state....
[T]he Act requires the Administrative Director of the Courts to report to the Legislature, within eighteen months of the Act's effective date, on the effectiveness of the unit, despite the Constitution's explicit provision making the Administrative Director subject to the exclusive supervision by the Chief Justice of the Supreme Court.
In summary, the judge concluded that while the Act represents a legitimate exercise of the Legislature's police power to address a threat to public safety, its implementation impermissibly intrudes and threatens the Judiciary's constitutional authority over the administration of the courts. The specific provisions join together the Legislative, Executive, and Judicial branches of government in a manner inconsistent with the Judiciary's role as an"independent branch of government constitutionally entrusted with the fair and just resolution of disputes"... [and] the specific provisions of the legislation are not susceptible to further harmonization because under the Act, probation officers are both law enforcement and judicial enforcement officers, serving both the Executive and Judicial Branches, a hybrid role that compromises the integrity of the Judiciary.
On January 20, 2004, an order constituting a final judgment was entered that: (1) granted plaintiff's motion for summary judgment and declared the Act unconstitutional and void; (2) denied PANJ's motions to dismiss or alternatively to transfer to an independent neutral third-party and to compel arbitration; (3) granted plaintiff's cross-motion for summary judgment dismissing PANJ's counterclaim with prejudice; (4) denied the State's cross-motion for summary judgment seeking a declaration that the Act was constitutional, and (5) denied PANJ's cross motion for summary judgment.
On appeal, the State presents the following arguments for our consideration:
THE TRIAL COURT ERRED IN FINDING P.L. 2001, CHAPTER 362 UNCONSTITUTIONAL.
THE ENACTMENT OF P.L. 2001, CHAPTER 362 IS A VALID EXERCISE OF THE LEGISLATURE'S CONSTITUTIONAL GRANT OF POWER, JUST AS THE ENACTMENT OF N.J.S.A. 2A:168-5, ET SEQ., ESTABLISHING THE PROBATION DEPARTMENT, WAS A VALID EXERCISE OF THE LEGISLATURE'S CONSTITUTIONAL GRANT OF POWER.
P.L. 2001, CHAPTER 362 IS SUBSTANTIVE LAW, VALIDLY ENACTED PURSUANT TO THE LEGISLATURE'S CONSTITUTIONALLY GRANTED POLICE POWER.
THE DOCTRINE OF SEPARATION OF POWERS DOES NOT REQUIRE THE"WATERTIGHT" COMPARTMENTALIZATION OF THE THREE BRANCHES OF GOVERNMENT.
A. The Fact That Designated Probation Officers Are Authorized To Carry Firearms Does Not Impermissibly Transform Them Into Police Officers, Nor Does It Transfer The Responsibility For Their Supervision To The Executive Branch.
THE JUDICIARY MUST MAKE EVERY EFFORT TO ACCOMMODATE THE LEGISLATURE IN ITS ENACTMENT OF P.L. 2001, CHAPTER 362, IN THE INTEREST OF COMITY.
THE COURT MUST ATTEMPT TO HARMONIZE THE JUDICIARY'S CONSTITUTIONAL GRANT OF RULE MAKING POWER WITH THAT OF THE LEGISLATURE'S GRANT OF POLICE POWER.
PANJ advances the following arguments:
THE STANDARD OF APPELLATE REVIEW.
THE TRIAL COURT'S HEAVY RELIANCE ON PASSAIC COUNTY, 73 N.J. 247 (1977) TO DENY THE NEED FOR COMITY IS VITIATED BY THE PASSAGE OF THE JUDICIAL UNIFICATION ACT, N.J.S.A. 2B:11-1 et seq. AND ...