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Daniele v. City of Newark


October 10, 2008


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

Per curiam.


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 existing term of office and begin a fresh three-year term in plaintiff's former position.

Because the city has a Mayor-Council form of government, the City Council's advice and consent to the reappointment of plaintiff and the other affected judges was required under N.J.S.A. 2B:12-4(b). Accordingly, on January 18, 2006, the City Council discussed the proposed reappointments of plaintiff and the other judges*fn3 involved, and then voted to ratify them. The Council's ratification is memorialized in the minutes of its January 18, 2006 public meeting.*fn4

As a result of these events, plaintiff and Judge Taylor continued to serve the city as municipal judges, with plaintiff completing Judge Taylor's former unexpired term and Judge Taylor serving in a new three-year term associated with plaintiff's former holdover position.

In a letter dated January 19, 2006, the City Clerk informed plaintiff that the City Council had confirmed his reappointment "for a term commencing upon confirmation and ending September 30, 2006." On February 23, 2006, plaintiff was administered the oath of office for his reappointment.*fn5

As we have already noted, Mayor Booker succeeded Mayor James on July 1, 2006. Two days later, the new Mayor's Corporation Counsel issued a written legal opinion evaluating whether the personnel actions concerning the four judges comported with the applicable laws and statutes. In her opinion letter, the Corporation Counsel concluded that the personnel actions were impermissible and void. Specifically, Corporation Counsel advised that it was improper to move plaintiff into the position of Judge Taylor to serve the remainder of her term, reasoning that "the terms of office of the municipal court judges are specific to the judges."

Following the advice of the Corporation Counsel, the City Council adopted a corrective resolution on July 6, 2006. Among other things, the resolution voided plaintiff's appointment to the unexpired term of Judge Taylor and returned plaintiff to holdover status.

Thereafter, on August 17, 2006, Mayor Booker issued two letters that concerned plaintiff. One letter was to the City Clerk, nominating Julien X. Neals to replace plaintiff as municipal court judge, subject to his confirmation by the City Council. The mayor's letter anticipated that Judge Neals, upon confirmation, would begin a three-year term "on or about September 2, 2006." On that same day, the Mayor sent a letter to plaintiff thanking him for his nineteen years of leadership on the municipal court, including his "balanced judgment and impartial enforcement of the municipal laws" and plaintiff's "efforts to promote innovative justice." The letter further advised plaintiff that he would be honored with a proclamation on August 31, 2006.

On August 23, 2006, the City Council confirmed the appointment of Judge Neals in a formal resolution. Judge Neals*fn6 was sworn into office on September 5, 2006. Although he was on vacation and did not work in the early part of September, plaintiff was compensated by the city through September 11, 2006.

Plaintiff then filed a complaint in lieu of prerogative writs in the Law Division, against the city, Mayor Booker, and various fictitious defendants.*fn7 The complaint alleged that plaintiff was wrongfully terminated from his employment as a municipal judge, contending that the city had improperly voided his most recent reappointment. The complaint further alleges that the city had breached its contractual obligations to plaintiff by ending his service prematurely.

As remedies for the defendants' alleged wrongful actions, plaintiff sought reinstatement to the remainder of his term that began on February 23, 2006, compensatory damages, interest, counsel fees, and costs.

Shortly after defendants answered the complaint and denied liability, the parties filed competing motions for summary judgment. Following oral argument on the motions and reviewing supplemental information relating to the City Council's minutes from January 2006, the motion judge issued companion orders on October 2, 2007. Those orders denied plaintiff's motion for summary judgment. They also substantially granted defendants' cross-motion, preserving only plaintiff's claim for monetary damages incurred in the nineteen days between the date his compensation ended (September 11, 2006), and the date on which Judge Taylor's former term expired (September 30, 2006). Subsequently, the parties reached a stipulation, without prejudice to plaintiff's current appeal, calculating the damages incurred during the nineteen-day interval at $7,347.71.

In her written decision accompanying the summary judgment orders, the motion judge observed that "[n]othing within the four corners" of N.J.S.A. 2B:12-4(a) clearly prohibited the simultaneous appointment of Judge Taylor to plaintiff's position in which he was holding over and of plaintiff to the unexpired term vacated by Judge Taylor. Given that observation, the judge concluded that plaintiff had been lawfully appointed to serve until September 30, 2006, and that defendant had improperly ended his tenure nineteen days early. Consequently, the judge found that plaintiff was entitled to monetary damages associated with that nineteen-day interval.

The judge rejected, however, plaintiff's separate theory predicated upon breach-of-contract principles. She noted that the relationship between a municipal court judge and the municipality is "not contractual in character, but is instead controlled by the statutes pursuant to which plaintiff has been appointed." The judge also rejected plaintiff's claims for counsel fees and costs, noting that "no factual or legal basis" supports such additional remedies.

Plaintiff now appeals, arguing that defendants violated "the plain and unambiguous language of N.J.S.A. 2B:12-4" by terminating him in September 2006. He contends that not only did Mayor Booker's administration wrong him by removing him early, but that Mayor James's administration lacked the ability to limit his reappointment to anything less than a plenary, three-year term.

Consequently, plaintiff maintains that, as a result of his renewed oath of office on February 23, 2006, he was statutorily entitled to a full three-year term as municipal judge and should now be reinstated to that position. He argues that the "swap" contemplated by Mayor James was illegal and that there was never a legitimate vacancy created in Judge Taylor's position. Lastly, plaintiff asserts that the independence of the judiciary requires that he be allowed to complete a full three-year term.

Significantly, the city has not cross-appealed the motion judge's determination that plaintiff was entitled to remain in office through September 30, 2006. Likewise, the city has not cross-appealed the nineteen days of compensation that the judge awarded. Therefore, the sole issue before us is whether plaintiff was entitled to continue in office past September 30, 2006, and complete a three-year term that allegedly began on February 23, 2006.

In particular, it is unnecessary for us to resolve whether the judge swap initiated by Mayor James was lawful, or, on the other hand, was ultra vires. All we need to decide is whether plaintiff was wrongfully deprived of the opportunity to complete a new three-year term.

The manifest answer to this narrow question is no. If, as the Corporation Counsel reasoned, the judge swaps were unauthorized under N.J.S.A. 2B:12-4(b) and other related legal principles, then plaintiff surely may not benefit from such illegal action. Conversely, if, as the motion judge found, the judge swaps were not statutorily prohibited or otherwise illegal, then the most that plaintiff can derive from those actions is the particular term of office that had been delineated for him by Mayor James and approved by the City Council. That specified term of office consisted of the unexpired remainder of Judge Taylor's three-year appointment, which ended on September 30, 2006. Under either scenario, plaintiff had no entitlement to remain in office beyond September 30, 2006.

Although the parties would prefer that we use this occasion to comment upon the propriety or impropriety of the sort of judge swaps that occurred here, we perceive no need to issue an advisory opinion on the subject. See DeVesa v. Dorsey, 134 N.J. 420, 428 (1993) (noting that our courts refrain from rendering advisory opinions or exercising jurisdiction in the abstract); see also Crescent Park Tenants Assoc. v. Realty Eq. Corp. of N.Y., 58 N.J. 98, 108 (1971) (same). We are cognizant that the swaps implicate a host of significant concerns, such as the predictability and regularity of the judicial reappointment process, the independence of the judiciary from improper political influences, the transitional conflicts between a "lame duck" incumbent and an incoming administration,*fn8 and the boundaries and interstices of N.J.S.A. 2B:12-4(b). We need not resolve*fn9 those concerns here, because the only issue requiring our disposition is whether plaintiff had any right to continue in office after September 2006. Quite simply, he did not.

The motion judge correctly ruled that plaintiff, as an appointee to public office, had no vested contractual right to remain in office beyond his designated term. Walsh v. State, 147 N.J. 595 (1997), rev'g, 290 N.J. Super. 1 (App. Div. 1996) (adopting the dissenting opinion of Skillman, P.J.A.D.). N.J.S.A. 2B:12-4 specifies that a holdover judge may only serve "until a successor is appointed and qualified." It is obvious that plaintiff has been succeeded, no matter what legal significance one ascribes to the judge swaps. If the swaps were valid, then plaintiff was succeeded by Judge Taylor. If the swaps were invalid, then plaintiff has been succeeded by Judge Neals. Either way, he has no viable claim to remain in office at this time.

Plaintiff relies heavily upon Levine v. Mayor of the City of Passaic, 233 N.J. Super. 559 (Law Div. 1988), certif. denied, 117 N.J. 136 (1989). In Levine, a municipality attempted to limit a holdover judge's three-year term of reappointment by designating only three-and-half months of the judge's new term as prospective, treating the bulk of his three-year appointment as retroactive to his past service as a holdover. Id. at 561. The court in Levine found this arrangement violated the clear terms of N.J.S.A. 2A:8-5, which directed that each municipal judge appointed to fill a vacancy caused by an expired term "shall serve for a term of 3 years," and that "[a]ny appointment to fill a vacancy caused other than by expiration of term shall be made for the unexpired term only." N.J.S.A. 2A:8-5. Because Levine's original three-year term had already expired and he was holding over in that position, the municipality could not reinstate him there without giving him a fully prospective three-year term. Levine, supra, 233 N.J. Super. at 563-65.

We agree with the motion judge that Levine is factually distinguishable from plaintiff's circumstances. The city has not attempted to truncate a new three-year judicial term. Instead, it designated plaintiff to fill the unexpired term of another judge, Judge Taylor, who herself was not in holdover status. The same result would have been obtained if Judge Taylor's vacancy had been filled by an outsider. Although the propriety of how the city created the Taylor vacancy is debatable, the controlling statute, now N.J.S.A. 2B:12-4, limits Taylor's successor to completing her "unexpired term only." See N.J.S.A. 2B:12-4(a). Levine does not alter that conclusion.

In sum, although we do not reach all of the issues decided by the motion judge, we concur with her ultimate decision rejecting plaintiff's claim of right to a full three-year term. We likewise sustain her dismissal of plaintiff's complaint, excepting the modest and unappealed award of nineteen days of unpaid compensation.


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