NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3191-14T2

STANLEY E. WILLIAMS, APPROVED FOR PUBLICATION Plaintiff-Respondent, October 16, 2015 v. APPELLATE DIVISION BOROUGH OF CLAYTON,

Defendant-Appellant. ________________________________

Argued September 16, 2015 - Decided October 16, 2015

Before Judges Sabatino, Accurso, and O'Connor.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-24-15.

William M. Tambussi argued the cause for appellant (Brown & Connery LLP, attorneys; Mr. Tambussi and William F. Cook, on the briefs).

Thomas A. Cushane argued the cause for respondent (The Cushane Law Firm, LLC, attorneys; Mr. Cushane and David P. Hiester, on the brief).

The opinion of the court was delivered by

SABATINO, P.J.A.D.

This declaratory judgment action concerns the application

of N.J.S.A. 40A:14-129 and -130, statutory provisions that

impose certain hiring and promotional restrictions upon police departments in smaller New Jersey cities that are not of the

"first class" or "second class"1 in population and which are not

civil service jurisdictions. In particular, the statutes direct

that promotions to "superior position[s]" within such police

departments be restricted to officers who have served in those

departments for at least three years. Ibid.

The precise legal issue presented to us —— one which has

not been the subject of a prior reported appellate opinion —— is

whether an applicant for Police Chief in such a jurisdiction is

statutorily eligible for that appointment if he or she has not

served as an officer within that police department for three

years. We concur with the trial court that where one or more

1 "For legislative purposes, cities shall be classified as follows based upon population as ascertained by the most recent Federal decennial census:

a. First class —— cities having a population of more than 150,000;

b. Second class —— cities having a population of not less than 12,000 but not more than 150,000;

c. Third class —— all cities which are not first- or second-class cities except cities bordering on the Atlantic ocean being seaside or summer resorts;

d. Fourth class —— cities bordering on the Atlantic ocean which are seaside or summer resorts."

[N.J.S.A. 40A:6-4.]

2 A-3191-14T2 qualified applicants meet those statutory requirements, the

Police Chief must be appointed from within the ranks of the

municipality's current police force. We therefore affirm the

issuance of declaratory relief in this case confirming that

limitation.

I.

The main statute implicated by this case, N.J.S.A. 40A:14-

129, was first adopted in 1927. See L. 1927, c. 194, § 1. The

law was recodified in 1971, and presently reads as follows:

In any municipality wherein Title 11 (Civil Service) of the Revised Statutes is not in effect, and except in cities of the first and second class, a promotion of any member or officer of the police department or force to a superior position shall be made from the membership of such department or force. Due consideration shall be given to the member or officer so proposed for the promotion, to the length and merit of his service and preference shall be given according to seniority in service. No person shall be eligible for promotion to be a superior officer unless he shall have previously served as a patrolman in such department or force.

[N.J.S.A. 40A:14-129 (emphasis added).]

A companion provision, which was first enacted in 1940 and which

was recodified in 1971 as N.J.S.A. 40A:14-130, imposes an

additional three-year service requirement, as follows:

In any municipality wherein Title 11 (Civil Service) of the Revised Statutes is not in operation, except as otherwise provided by

3 A-3191-14T2 law, a member or officer of the municipal police department or force shall not be promoted until he has served at least 3 years in such department or force.

[N.J.S.A. 40A:14-130 (emphasis added).]

The Borough's Efforts to Select a New Police Chief

The circumstances in this case involve efforts by

defendant, the Borough of Clayton ("the Borough"), to select a

new Police Chief. The parties stipulate that the Borough is not

a city of the first class or second class, and that it is not a

jurisdiction subject to the civil service laws under Title 11A.

The Borough has approximately 8,000 residents. As the name

suggests, the municipality is organized under the borough form

of government, N.J.S.A. 40A:60-1 to 8.1, with a governing body

composed of a Mayor and six Council members. As of January

2015, the Borough's police force numbered fifteen police

officers, consisting of eleven patrol officers, three sergeants,

and one special law enforcement officer.

The Borough's need to select a new Police Chief arose when

its previous Chief took a leave of absence early in 2014,

evidently for health reasons. Consequently, in May 2014 the

4 A-3191-14T2 Gloucester County Prosecutor's Office ("GCPO") took over control

of the Borough's Police Department, through a supersession.2

When the GCPO took over, it appointed Detective William

Perna to serve as supervisor of the Borough's police department

until further notice. Perna has twenty-seven years of experience

with the New Jersey State Police. For reasons that are not

entirely clear from the record, in September 2014 Perna was

replaced by GCPO Sergeant Ronald Koller.3

On October 9, 2014, the Borough passed Ordinance #16-2014,

thereby creating the position of "Acting Chief of Police" during

the supersession.4 Both Perna and plaintiff Stanley E. Williams

applied for the Acting Chief position.

Plaintiff is a long-time resident of the Borough who has

worked in its police department for at least twenty-one years.

He is a patrol officer who has served as the department's head

firearms instructor and its head use-of-force instructor for the

2 See Passaic Cnty. PBA Local 197 v. Office of the Passaic Cnty. Prosecutor,

(App. Div.) (explaining the County Prosecutor's supervisory authority over county and municipal police officers), certif. denied,

(2006). In essence, a supersession is a period of time where the office of a county prosecutor directly supervises the day-to-day operations of a local police department within that county. 3 We were advised at oral argument that Koller continues to manage the department under the ongoing supersession at present. 4 The ordinance has not been challenged in this litigation.

5 A-3191-14T2 past eleven years. Prior to embarking on his career in law

enforcement, plaintiff played professional basketball with the

Boston Celtics for several years.

The Borough decided not to fill the position of Acting

Chief. Instead, it elected to proceed with the appointment of a

permanent new Chief. The Borough therefore circulated a job

advertisement for permanent Police Chief internally within the

department on October 31, 2014, and posted the ad publicly two

days later. Among other qualifications, the posting requires

applicants with a Bachelor's Degree in police science, criminal

justice, or other related field, with a preference for a

Master's Degree. The posting also requires applicants to have

at least five years of "increasingly responsible police

supervisory experience directly related to the operations of a

police department."

The Borough received five applications in response to the

job advertisement. Two candidates were immediately eliminated

due to their failure to satisfy the advertised educational or

licensing requirements. The remaining applicants were

plaintiff, Perna, and a third candidate, Preston Forchion. Of

these remaining three candidates, only plaintiff has served as a

police officer in the Borough.

6 A-3191-14T2 As part of the selection process, the Borough created a

testing procedure consisting of three parts: a written exam

administered by the New Jersey State Chiefs of Police

Association ("NJSCPA") worth 40% of the applicant's score; an

oral exam, also administered by the NJSCPA, and also worth 40%;

and an interview with a panel of public officials from the

Borough, worth the remaining 20%. None of those testing steps

have proceeded in this case.

The Litigation

On January 12, 2015, two days before the start of the

formal hiring process, plaintiff filed in the Law Division an

action in lieu of prerogative writs, see Rule 4:69-1, seeking

declaratory relief under the Uniform Declaratory Judgments Act

("UDJA"), N.J.S.A. 2A:16-50 to -62, and permanent injunctive

relief under Rule 4:52. The complaint asserted that Perna and

Forchion were statutorily ineligible to be appointed Police

Chief, given their lack of experience within the Borough's

police force.

Plaintiff named only the Borough as a defendant and did not

name Perna and Forchion as co-defendants. Nor did the Borough

implead Perna and Forchion as third-party defendants. Perna and

Forchion did not move to intervene in the litigation, either in

the trial court or in this appeal.

7 A-3191-14T2 Foregoing discovery, the Borough and plaintiff each filed

motions for summary judgment. After hearing oral argument,

Judge David W. Morgan granted plaintiff's cross-motion for

summary judgment and declaratory relief under the UDJA, and

denied the Borough's motion. A corresponding order was entered

on February 25, 2015.

In interpreting the applicable statutes in his oral

opinion, Judge Morgan concluded that those laws are "fairly

clear" in prescribing that "individuals that are eligible for

selection to the superior office of Chief of Police [in the

Borough] are those individuals that are members of the [f]orce

. . . for three years." Judge Morgan also found that the

legislative history of the statutes supported plaintiff's

position that the municipality must "pick somebody from the

Department," and that in-house applicants should "not be

competing with some other [potentially] very qualified

candidates outside the Department."

During the course of his oral opinion, Judge Morgan

mentioned the need to "enjoin the [Borough] from taking the

steps [it] did [and not] let the process play out such that

external individuals would be eligible[.]" However, in his

signed order implementing his oral ruling (which was apparently

drafted by plaintiff's counsel) the judge refers explicitly only

8 A-3191-14T2 to declaratory relief. The order generically refers to granting

plaintiff's summary judgment motion5 on the issue of declaring

plaintiff the sole statutorily eligible candidate, and denying

the summary judgment motion of the Borough. The order contains

no provision imposing injunctive relief upon the Borough. In

any event, the Borough has deferred proceeding further with the

testing or appointment process, pending the outcome of this

appeal.

II.

On appeal, the Borough argues that the trial court erred in

its ruling for several reasons, two of them essentially

procedural in nature and one of them substantive.

In particular, the Borough procedurally contends that the

declaratory order should not have been issued without a showing

by plaintiff of irreparable harm. The Borough also procedurally

contends that the court erred in declaring the two outside

applicants statutorily ineligible without them having been named

as co-defendants in the complaint. Substantively, the Borough

contends that the court's interpretation of N.J.S.A. 40A:14-129

5 Counsel have furnished at our request copies of their summary judgment submissions in the trial court. The submissions reveal that plaintiff's notice of cross-motion for summary judgment did not refer to injunctive relief. Nor did plaintiff's brief in support of summary judgment request injunctive relief, although plaintiff had sought such a remedy in an earlier brief when he filed an initial order to show cause with his complaint.

9 A-3191-14T2 and -130 is fundamentally flawed, that the statutes are

anachronistic, and that it is arbitrary, capricious, and

unreasonable for the law to deprive the Borough in this

situation of the ability to consider external candidates for the

position.

A.

The Borough's procedural arguments can be readily rejected.

The UDJA provides a well-established mechanism for resolving an

actual legal dispute that arises between adversarial parties.

The purpose of the UDJA is "to settle and afford relief from

uncertainty and insecurity with respect to rights, status and

other legal relations." N.J.S.A. 2A:16-51. Toward that end,

the UDJA is to be "liberally construed and administered" to

effectuate its general purpose. Ibid.; see also N.J. Home

Builders Ass'n. v. Div. on Civil Rights,

(Ch. Div. 1963), aff'd,

(1965). In particular, the

UDJA is an especially appropriate method for resolving "any

question of construction or validity arising under . . . [a]

statute." N.J.S.A. 2A:16-53; see also Finkel v. Twp. Comm. of

Hopewell,

(App. Div. 2013) (citing this

same provision in an opinion resolving the disputed meaning and

application of various election statutes involving ballot

questions).

10 A-3191-14T2 As we recently recognized in Finkel, "the remedy of a

declaratory judgment is 'circumscribed by the salutary

qualification that the jurisdiction of the courts may not be

invoked in the absence of an actual controversy.'"

at 318

(quoting N.J. Turnpike Auth. v. Parsons,

(1949)). Our courts generally will not entertain legal

questions that are purely "academic."

.

The trial court correctly recognized that the important

issues of statutory construction under the police-appointment

statutes here are not "purely academic." There is an actual,

live controversy presented. For reasons that are not fully

apparent, the Borough is not satisfied with the fact that

plaintiff is the sole applicant for Chief from its police force

who apparently meets (subject to the testing and interview

process) the educational, licensing, and experience criteria of

the job posting. The Borough would prefer to also consider

external applicants for the position, such as Perna and

Forchion, despite their not having served three years as

officers within the Department. The Borough wishes to have all

three applicants sit for the written test and to complete the

other portions of the testing process.

Plaintiff, meanwhile, contends that the trial court was

correct in finding that the statutes restricting eligibility to

11 A-3191-14T2 candidates from within the police force are clear on their face.

Plaintiff argues that it is a waste of time and public resources

to have ineligible outsiders included in the testing and

interview process. Plaintiff also urges that the court reject

with finality the Borough's claims that these statutes are out

of date, arbitrarily restrictive, and unworthy of enforcement.

We agree with plaintiff that there is a significant public

interest to be served by resolving now the merits of the

statutory questions presented here through the mechanism of

declaratory relief. It would be unwise to have the parties, the

police force, the applicant pool, and the citizens of the

Borough left unsure about the contested statutory eligibility

criteria while the hiring process goes forward. There is surely

an "actual dispute" here that warrants resolution at this time

in the public interest.

We reject the Borough's argument that the court's issuance

of a declaratory order in this particular setting was

unjustified because of an alleged lack of irreparable harm. For

one thing, a demonstration of irreparable harm is not always

required to obtain declaratory relief. In fact, nothing in the

UDJA, a statute that must be liberally construed, requires such

a demonstration.

12 A-3191-14T2 Moreover, even if irreparable harm were a necessary

element, the trial judge aptly recognized that prospective harm

in this situation stems from concerns that the Borough must

"comply with the law." See N.J. Dental Ass'n v. Metropolitan

Life Ins. Co.,

(App. Div. 2012) (noting

the propriety of a private cause of action that, in essence,

seeks "to compel another private party to comply with a

statute"), certif. denied,

(2012).

We do not read Capibianco v. Civil Serv. Comm'n,

(App. Div. 1960), a case cited in the Borough's

reply brief, as stripping courts of the ability to issue

declaratory relief that can help assure that a municipality is

guided by appropriate statutory mandates in appointing a Police

Chief.

. In Capibianco, the plaintiff was

temporarily appointed as Acting Chief of a municipal police

department. Several years later, the municipality's city

manager requested the State Civil Service Commission to

administer an examination in order to evaluate other candidates

for the permanent position.

. Based on the test

results, the city manager appointed another candidate Chief of

Police.

. The plaintiff filed an action in lieu of

prerogative writs in the Law Division, challenging the city's

actions and contending that his own appointment had been

13 A-3191-14T2 permanent, rather than temporary, and that the examination

process being used to replace him was invalid.

The Law Division declined in Capibianco to enjoin the

examination.

It then dismissed the complaint because

plaintiff had not exhausted his administrative remedies.

. The Commission thereafter ruled that the plaintiff's

position had only been temporary, despite a salary increase he

had received, and that the competitive processes used to appoint

a permanent Chief were valid.

On appeal, we upheld the

Commission's determination as being consistent with the

applicable laws.

.

Although our opinion in Capibianco mentions in passing that

the Law Division judge had found that the plaintiff "would not

suffer irreparable harm by the holding and taking of the

examination," that observation in dicta does not invalidate the

trial court's order in the present case.

. There is

no indication that the plaintiff's lawsuit in Capibianco was

brought under the UDJA. Furthermore, that case did not involve

the statutes at stake here, N.J.S.A. 40A:14-129 and -130. Nor

did the plaintiff in Capibianco allege, as here, that the other

applicants were statutorily ineligible because of a lack of

prior service on the municipality's police force. In addition,

the present case does not implicate the exhaustion of

14 A-3191-14T2 administrative remedies. And, as we previously noted, the trial

court's order being appealed contains no injunctive provisions.

We therefore are unpersuaded by the Borough's reliance on

Capibianco.

We also reject the Borough's contention that plaintiff's

omission of Perna and Forchion as co-defendants requires

dismissal of the complaint. We are mindful that the UDJA

provides that "[w]hen declaratory relief is sought, all persons 6

having or claiming any interest which would be affected by the

declaration shall be made parties to the proceeding." N.J.S.A.

2A:16-56. See also Gotlib v. Gotlib,

(App. Div. 2008) (implementing this principle).

Although the Borough is correct that the court could not

adjudicate the individual rights of the other candidates in

their absence, plaintiff brought this action for declaratory

relief under N.J.S.A. 2A:16-52 against the Borough. He clearly

did so to assure that the Borough itself would not pursue an

appointment process based upon an incorrect conception of the

applicable statutes and their appoint-from-within eligibility

requirements. The final declaratory order issued by the trial

court was directed at the Borough, not at any other applicants.

6 The Borough qualifies as a "person" under N.J.S.A. 2A:16-50, as it is a "municipal or other corporation of any character."

15 A-3191-14T2 To be sure, it would have been more prudent and

comprehensive for plaintiff to have named Perna and Forchion as

additional defendants here, since their names and application

status were known. Even so, we discern no actual prejudice from

their omission from this lawsuit or, for that matter, from this

appeal.

This litigation has been pursued in an open and public

manner. We have little doubt that the case is a matter of some

notoriety within the Department and the Borough. Perna and

Forchion surely are aware that their testing process has not

proceeded, yet they have not sought to intervene in the

litigation. We do not fault them for remaining on the

sidelines, given the expense and burdens of taking part in

litigation of any kind.

In sum, a declaration and reaffirmation of the statutory

restrictions that the Borough must heed in the hiring process

can be fairly issued without requiring the participation of the

other applicants. We therefore proceed to a review of the trial

court's substantive decision on its merits.

B.

As with any issue of statutory interpretation, courts must

first examine "[t]he plain language of [each] statute" and

"apply to the statutory terms the generally accepted meaning of

16 A-3191-14T2 the words used by the Legislature." L.A. v. Bd. of Educ.,

(2015) (quoting Patel v. N.J. Motor Vehicle

Comm'n,

(2009)). "When the Legislature's

chosen words lead to one clear and unambiguous result, the

interpretative process comes to a close, without the need to

consider extrinsic aids."

(quoting State v. Shelley,

(2011)).

When, as here, an issue concerns more than one statutory

provision, "[r]elated parts of an overall scheme can . . .

provide relevant context." Beim v. Hulfish,

(2014) (quoting N.J. Dep't of Children & Families v. A.L.,

(2013)). Put another way, in interpreting the plain

terms of a statute, a court must "read them in context with

related provisions so as to give sense to the legislation as a

whole."

(quoting DiProspero v. Penn,

(2005) (internal citations omitted)).

The plain language of the statutes before us is

unequivocal. As we noted at the outset, N.J.S.A. 40A:14-129

provides, in pertinent part, "[i]n any municipality wherein

Title 11 of the Revised Statutes is not in effect, and except in

cities of the first and second class, a promotion7 of any member

7 The applicable local ordinance, Clayton, N.J., Code § 21-1, provides that "[t]he order of rank [in the police department] (continued)

17 A-3191-14T2 or officer of the police department . . . to a superior

position shall be made from the membership of such department or

force." (emphasis added). N.J.S.A. 40A:14-130 drives the point

home, in that it requires that such candidates have worked for

the municipality's police department for at least three years.

A common sense reading of these statutes dictates that any

candidate promoted to a superior position (here, the Chief of

Police) must currently work in the municipality's police

department and have three years of experience on the force as a

police officer. The statutory language is plain, direct, and

unqualified.

We find unpersuasive that the Borough's reliance on

selected portions of Miller v. Township of Wayne,

(Law Div. 1977) and Juliano v. Borough of Ocean Gate,

(Law Div. 1987), requires deviation from the

plain text of the statutes.

Miller does not advance the Borough's position. At most,

Miller can be read to solidify the legal proposition that

N.J.S.A. 40A:14-129 applies to the position of Chief of Police

(continued) shall be in descending order: Chief of Police, Captain, Lieutenant, Sergeant, Corporal, Patrolman, Probationary Patrolman and Special Officers." We do not consider the statutes inapplicable because they refer to a "promotion" rather than an "appointment." In fact, the Borough makes no such argument.

18 A-3191-14T2 in a non-civil service jurisdiction, such as the Borough here.

. In Miller, the Law

Division was asked to determine whether the mayor of Wayne could

appoint a Chief of Police from outside the municipality.

. Central to the discussion there, however, was whether the

position of Chief of Police was akin to a department head ——

upon which the mayor would have the power to appoint under the

Faulkner Act, N.J.S.A. 40A:69-1 to -210 –– or whether the

position of Police Chief was determined under N.J.S.A. 40A:14-

129.

.

Citing two existing ordinances stating that Wayne's

business administrator (and not the mayor) had the right to

choose the Police Chief, the Law Division in Miller rejected

plaintiff's argument and determined that the two provisions

(N.J.S.A. 40A:14-129 and the relevant provisions of the Faulkner

Act) were not in conflict.

. The court thus

concluded that the Chief of Police's position was to be

determined by reference to N.J.S.A. 40A:14-129.

.

That narrow holding, as is relevant here, applies with

equal force. As the Law Division noted in Miller, and contrary

to the Borough's argument, "N.J.S.A. 40A:14-129 does not purport

to strip [the municipality] of [its] power[,] [but] merely

defines the group from which the appointment may be made."

19 A-3191-14T2 Miller, supra,

(emphasis added). The

fact that the Borough here may prefer to not be bound by those

constraints does not allow it to violate the law.

The Borough's reliance on Juliano is also unavailing. As

in Miller, Juliano dealt with a situation where the plaintiff

sought, among other things, to invalidate a municipality's Chief

of Police appointment under N.J.S.A. 40A:14-129. Juliano,

supra,

. Finding that neither the plain

text of N.J.S.A. 40A:14-129 nor the legislative history for

N.J.S.A. 40A:14-129's predecessor statute supported defendants'

position, the Law Division noted in Juliano that, "[t]he obvious

purpose of the statute is to reward good performance and inject

merit into the promotion process in those municipalities not

functioning under civil service regulations. In effect, the

statute gives a protection similar to civil service procedures

to guard employees against arbitrary action by the employer."

.

The court's opinion in Juliano went on to note that it is

"doubtful" that the Legislature intended to consider a candidate

from outside the municipality "under any circumstances."

. However, the court observed that "[the] issue need not be

reached until it is determined by plenary hearing that there is

20 A-3191-14T2 no one within the [ ] Police Department who wants the job and is

qualified for it."

(emphasis added).

Here, there is at least one applicant, i.e., plaintiff, who

has the requisite three years of experience within the

Department and thus is statutorily eligible for consideration.

We need not at this juncture pass upon whether extraordinary

principles akin to the "doctrine of necessity" might allow the

Borough to appoint a Police Chief from outside of its borders

when no qualified internal applicants have applied. See

DePascale v. State,

(2012) (recognizing

general principles of necessity); see also Williams v. State,

(App. Div. 2005) (same). All we are

deciding here is that the Borough is bound by the strictures of

N.J.S.A. 40A:14-129 and -130, and thus must confine its

selection procedures to statutorily-eligible candidates.

That said, we must make very clear what we are not deciding

in this opinion. We do not presume to make any determination as

to whether plaintiff, despite his statutory eligibility derived

from his years of service on the Borough's police force,

possesses sufficient and appropriate qualifications to be

appointed Chief of Police.

Given that plaintiff is the only internal candidate who met

the criteria stated within the job posting, the Borough is free

21 A-3191-14T2 to start the process anew and revise the qualifications to

attempt to attract a wider span of internal applicants. The

Borough also may wish, with the County Prosecutor's

acquiescence, to continue with the extant supersession

arrangement. Or, as was suggested at oral argument before us,

the Borough may consider consolidating its small police force

with that of a neighboring town. Other options not contrary to

N.J.S.A. 40A:14-129 and -130 also may well exist, and we need

not canvass them here exhaustively.

In affirming the trial court's decision, we do not comment

on whether these statutes have become outdated or unwise with

the passage of time. We also will not opine on whether it would

be preferable if the statutory scheme permitted smaller towns

such as the Borough to consider and appoint applicants who have

served in law enforcement in other jurisdictions. That policy

choice is reserved for the Legislature, which is, of course,

free to modify or repeal these statutes at any time in the

democratic law-making process.

The trial court's declaratory order is consequently

affirmed.

22 A-3191-14T2