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DeSoto v. Smith

March 1, 2006

KAREN DESOTO, CORPORATION COUNSEL FOR THE CITY OF JERSEY CITY, PLAINTIFF/APPELLANT,
v.
HARVEY SMITH AND THE CITY OF JERSEY CITY, DEFENDANTS/RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3394-04.

The opinion of the court was delivered by: Lefelt, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued telephonically February 1, 2006

Before Judges Kestin, Lefelt, and Seltzer.

The Mayor of Jersey City, Glenn Cunningham, appointed plaintiff Karen DeSoto as Corporation Counsel and Director of the Department of Law. Less than one year thereafter, the mayor unexpectedly died, and Harvey Smith, who was council president, became acting mayor. Smith then removed DeSoto from her position, and DeSoto filed a complaint in lieu of prerogative writs against the City and Smith to challenge her removal. Defendants' motion to dismiss the complaint was granted by Judge Gallipoli, and DeSoto now appeals claiming Smith did not have authority to remove her, she had a one-year fixed term, and was denied due process. We affirm.

Jersey City is governed by a mayor-council form of government adopted pursuant to the Faulkner Act, N.J.S.A. 40:69A-31. Under this form of government, the legislative power is exercised by the municipal council, N.J.S.A. 40:69A-36, and the executive power is exercised by the mayor. N.J.S.A. 40:69A-39.

Less than one month after Smith became acting mayor, he notified plaintiff and the council by letter of his intention to remove plaintiff from her position. The letter advised plaintiff that she would "be afforded an opportunity to be heard concerning [her] removal as Corporation Counsel to be conducted [the next day] before [Smith] as Acting Mayor." The next day, plaintiff met with Smith to discuss his intentions. Despite plaintiff's protestations, Smith persisted in his intent to remove her.

About two weeks later, plaintiff prepared a resolution disapproving her removal, which she submitted to the City Clerk, "[p]ursuant to N.J.S.A. 40:69A-43." A few days later, plaintiff advised the City Clerk and council that she was appealing "pursuant to § 3-15 of the Jersey City Code." The council never voted on plaintiff's proposed resolution and the record does not reflect any disposition of her § 3-15 appeal. Plaintiff, in fact, never appeared before the council.

On the same day plaintiff advised the City Clerk and council of her appeal, plaintiff filed a verified complaint for declaratory judgment and action in lieu of prerogative writs. In response, defendants moved for dismissal. After Judge Gallipoli granted defendants' motion dismissing her complaint, plaintiff appealed to this court.

Plaintiff first claims that N.J.S.A. 40A:9-131, which allows the council president to serve as acting mayor, while remaining as council president, violates the separation of powers doctrine. Plaintiff argues the trial court erred when it declined to review this constitutional issue solely because "notice had not been given to the Attorney General," especially because plaintiff claims she properly notified the Attorney General as required by R. 4:28-4.

Rule 4:28-4(a) requires that notice be given the Attorney General of the pendency of any action challenging the validity of a statute when neither the State nor a State agency or officer is participating in the action. Because plaintiff argued that N.J.S.A. 40A:9-131 was unconstitutional, the rule required that she notify the Attorney General.

When notification of the Attorney General is not provided, a trial court "may," but need not refuse to consider the statutory challenge. See D.I.A.L. v. Clifton Constr. Bd. of Appeals, 218 N.J. Super. 74, 85 (App. Div. 1987), certif. denied, 113 N.J. 335 (1988). Nevertheless, the Attorney General does not respond to all notices provided under the rule, and even if the trial court had decided the issue, we need not have accorded the decision any special deference. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). Accordingly, we move on to decide the issue.

Upon review, "[s]tatutes are presumed to be constitutional." State v. One 1990 Honda Accord, 154 N.J. 373, 377 (1998). A "[c]court will invalidate a statute only if it is clearly repugnant to the ...


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