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Daniele v. City of Newark

October 10, 2008

PAUL R. DANIELE, PLAINTIFF-APPELLANT,
v.
CITY OF NEWARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND CORY BOOKER, MAYOR, CITY OF NEWARK, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1760-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 22, 2008

Before Judges Carchman and Sabatino.

Plaintiff Paul R. Daniele appeals the Law Division's summary judgment order that dismissed his complaint seeking reinstatement as a municipal judge in the City of Newark ("the city"). We affirm.

The operative facts are substantially undisputed. Plaintiff was first appointed a full-time municipal court judge in the city on June 3, 1987. He had previously served as a part-time judge in the city for eight years. Pursuant to former N.J.S.A. 2A:8-5*fn1 (recodified in 1994 at N.J.S.A. 2B:12-4), plaintiff's term of appointment was three years.

After his initial three-year term ended, plaintiff remained a Newark municipal judge in holdover status for several years. Eventually he was reappointed on February 3, 1993, for an additional three-year term. When that term of reappointment expired on February 2, 1996, plaintiff continued to serve the city as a holdover judge, pursuant to N.J.S.A. 2B:12-4, the present statute, which became effective in February 2004.*fn2

In November 2005, the incumbent Mayor of Newark, Sharpe James, was defeated in a general election by Cory Booker. James's term of office expired on June 30, 2006, and Booker was sworn in as the new Mayor the next day, July 1, 2006.

During Mayor James's final months in office, he initiated certain personnel actions within the municipal court. Some of those actions directly involved plaintiff and triggered the present litigation.

Specifically, on December 29, 2005, Mayor James transmitted a letter to the City Clerk, directing what has been informally described in the record as a "swap" of municipal judges within the city. In particular, Mayor James's letter advised the City Clerk:

I am placing [Municipal] Judge Shaka Taylor and [Municipal] Judge Walter Oliveras in the slots currently filled by [Municipal] Judge Paul Daniele and [Municipal] Judge Diana Montes, both of whom are in holdover status. Judge Taylor and Judge Oliveras [] will serve new 3-year terms commencing upon confirmation.

Additionally, I am placing Judge Daniele and Judge Montes in the slots currently filled by Judge Taylor and Judge Oliveras, to serve the unexpired terms.

At the time of Mayor James's December 29 letter, Judges Taylor and Oliveras were both in the midst of three-year terms that commenced on October 1, 2003. Their terms were due to expire on September 30, 2006. Plaintiff, meanwhile, was serving as a holdover appointment, having been in that status for nearly a decade.

The intended effect of the so-called judge "swap," insofar as it concerned plaintiff, was to convert his holdover status to an appointment for the unexpired remainder of Judge Taylor's term. That remainder period, as of the December 29, 2005 correspondence, consisted of about nine months. Simultaneously, Judge Taylor was to discontinue her ...


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