PORZIO, BROMBERG & NEWMAN, P.C.
100 Southgate Parkway
Morristown, NJ 07962-1997
(973) 538-4006
Vito A. Gagliardi, Jr., Esq. (024821989)
Phillip C. Bauknight, Esq. (022962008)
Attorneys for New Jersey State Association of Chiefs of Police
JOHN PAFF,
PLAINTIFF/APPELLEE,
SUPERIOR COURT OF NEW JERSEY:
APPELLATE DIVISION
DOCKET NO.: A-000125-14
V.
TOWNSHIP OF GALLOWAY and
THALIA C. KAY in her official
capacity as Municipal Clerk
and Records Custodian of
Galloway Township,
NOTICE OF MOTION SEEKING LEAVE TO
APPEAR AS AMICUS CURIAE
SAT BELOW:
HONORABLE NELSON C. JOHNSON, J.S.C.
DEFENDANTS/APPELLANTS.
TO: Michael J. Fitzgerald, Esq.
Fitzgerald, McGroarty & Malinsky, P.A.
401 New Road, Suite 104
Linwood, New Jersey 08221
Walter M. Luers, Esq.
23 West Main Street, Suite C202
Clinton, New Jersey 08809
PLEASE TAKE NOTICE that the New Jersey State Association of
Chiefs of Police ("NJSACOP") hereby requests that the Court
enter an Order permitting it to appear as an amicus curiae in
the above-captioned appeal, pursuant to R. 1:13-9.
In support of this motion, NJSACOP relies upon the
accompanying letter brief, Certification of Raymond J. Hayducka,
and Certification of Phillip C. Bauknight, Esq.
2898424
PORZIO, BROMBERG, & NEWMAN, P.C.
Attorneys for New Jersey State
Association of Chiefs of Police
By
rdi, Jr.
he Firm
Date:
2898429
October 23, 2014
CERTIFICATION OF SERVICE
I hereby certify that I am causing to have delivered via
Federal Express a true and correct copy of this notice of
motion, accompanying letter brief, Certification of Raymond J.
Hayducka, and Certification of Phillip C. Bauknight, Esq., to
the following individuals at their last known addresses:
Michael J. Fitzgerald, Esq.
Fitzgerald, McGroarty & Malinsky, P.A.
401 New Road, Suite 104
Linwood, New Jersey 08221
Walter M. Luers, Esq.
23 West Main Street, Suite C202
Clinton, New Jersey 08809
I hereby certify that the foregoing statements made by me
are true.
I am aware that if any of the foregoing statements
made by me are willfully false, I am subject to punishment.
odger J. Sisco
Dated: October 23, 2014
2898424
PORZI0,-
BROMBERG ANEW1VIAN
ATTORNEYS AT LAW
MORRISTOWN NJ • NEW YORK NY • PRINCETON NJ • WESTBOROUGH MA
VITO A. GAGLIARDI , JR.
MEMBER, NJ BAR
CERTIFIED BY 2.1-1E SUPREME COURT OF
NEW JERSEY AS A CIVIL TRIAL ATTORNEY
DIRECT DIAL NO. : 973-889-4151
E-MAIL ADDRESS: VAGAGLIARDI@PBNLAW . COM
October 23, 2014,
VIA FEDERAL EXPRESS
Honorable Judges of the Appellate Division,
Superior Court of New Jersey, ApPel1ate Division
Hughes Justice Center
25 West Market Street
Trentdn, , New Jersey .08625
Re:
Paff v. Galloway Township,
A:0001:25-14
DoCket
Dear Judges of the Court:
We are counsel to the New Jersey State Asso a ion of Chiefs o
Police ( JSACOP")
Kindly accept this letter brief i lieu of
.
more formal submission in suppprt of NJSACOP",s, motion- or leave to
appear` in this case as amicus curiae pursuant to R. 1:13-9 . In the ,
interests- of time and judicial economy, - NJSACOP's. application
, consists
of h s letter brief and the supporting certifications of
, .
:Chief Raymond Hayducka ("Hayducka") and Phillip C. Bauknight, Esq.
("Bauknight Cert .")
NATURE OF THE APPLICATION
NJSACOP was organized in 1912 as an association dedicated t
the
service of the people of the State of New. Jersey through
100 SOUTHGATE PARKWAY, Pa BOX 1997
MORRISTOWN, NJ 07962-1997
TELEPHONE (973) 638-4006
FAX (973) 538-5146
288197/
www.pbnlaw. corn
•
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-7325-97T3
TOWNSHIP OF GREENWICH POLICE
OFFICERS P.B.A., LOCAL NO. 122,
FILING DATE
APPELLATE DM5100
Plaintiff-Appellant,
MAR 29 1999
v.
TOWNSHIP OF GREENWICH, A Municipal
Corporation, and GREENWICH TOWNSHIP
COUNCIL,
fr
Defendants-Respondents.
Submitted: March 3, 1999 - Decided: MAR 2 9
1999
Before.Judges Newman and Fall.
On appeal from the Superior Court of New Jersey,
Law Division, Civil Part, Gloucester County.
Barron & Gillespie, attorneys for appellant
(Thomas M. Barron and Roberto K. Paglione, on
the brief).
Hoffman, DiMuzio & Hoffman, attorneys for respondents
(Kenneth A. DiMuzio, on the brief).
Ravin, Sarasohn, Cook, Baumgarten, Fisch & Rosen,
attorneys for amicus curiae New Jersey State
Association of Chiefs of Police (Vito A. Gagliardi,
on the brief).
PER CURIAM
In this action in lieu of prerogative writs plaintiff,
Township of Greenwich Police Officers P.B.A., Local No. 122 (PBA),
appeals from dismissal of its challenge to an ordinance adopted by
defendants, Township of Greenwich and Greenwich Township Council
(,)
(Greenwich), permitting the Public Safety Committee of Greenwich to
designate an acting chief of police in the event its chief of
police becomes "unavailable" for ten or more working days. We
reverse.
From 1964 until 1996, by ordinance the police department in
Greenwich had one police chief and one deputy police chief. In
1996, by ordinance Greenwich deleted the position of deputy chief
and added that of "administrative captain" to establish the
composition of the police department, as follows:
The Police Department created and established
in the Township of Greenwich shall consist of
a Chief of Police, an Administrative Captain,
a Lieutenant, three Sergeants, two Detectives,
and Patrolmen of varying classes.
By the same ordinance, Greenwich amended Section 36-9A of the
Greenwich Township Code to provide:
The Chief of Police shall designate an officer
to carry out and be responsible for all of the
functions of the Chief of Police, should the
Chief of Police be unavailable. If the Chief
of Police is unavailable and has not
designated an officer to perform his duties
the assignment shall be made by the Director
of Public Safety.
On May 4, 1998, Greenwich passed Ordinance 6-1998 that, inter
alia, amended Section 36-9A to provide:
The Chief shall designate an officer to carry
out the Chief's functions should the Chief be
unavailable for periods of less than ten (10)
of the Chief's working days: should the Chief
be unavailable for periods of ten (10) of the
Chief's working days or longer, an acting
- 2 -
Chief shall be designated by the Public Safety
Committee. The Chief shall be deemed
unavailable if he or she is unable to report
to Work or perform his or her duties for any
reason, is on vacation, or is absent away from
the Township for any reason.
Accordingly, under this ordinance, when the chief of police
is
absent for ten working days or more he is precluded from
designating an acting chief and that responsibility vests solely
with the Public Safety Committee, consisting of the mayor and a
township council member.
On May 11, 1998, the PBA filed a complaint in lieu of
prerogative writs in the Law Division seeking temporary restraints
and an order permanently enjoining Greenwich from enforcing Section
36-9, as amended by Ordinance No. 6-1998, and declaring that
ordinance null, void and illegal as violative of the provisions of
N.J.S.A. 40A:14-118. An order to show cause was issued on that
date.
Oral argument was heard on the issues raised in the complaint
on June 29, 1998. The motion judge dismissed the PBA's complaint,
finding the ordinance "a valid exercise of the Township's policy
making power." An order memorializing that decision was executed
on July 20, 1998. This appeal followed.
On appeal, the PSA presents the following arguments for
consideration:
POINT I
THE TRIAL COURT ERRED IN HOLDING THAT THE
ORDINANCE PROVISION WHICH GIVES THE PUBLIC
SAFETY COMMITTEE POWER TO' APPOINT AN ACTING
CHIEF OF POLICE WHEN THE CHIEF IS UNAVAILABLE
- 3 -
C.
kr
FOR 10 OR MORE DAYS DOES NOT VIOLATE N.J.S.A.
40A:14-118(c) AND (d).
POINT II
THE COURT ERRED IN HOLDING THAT ORDINANCE NO.
6-1998 CREATES AN "APPOINTMENT" POWER AND NOT
AN ASSIGNMENT POWER.
A.
ASSIGNING AN."ACTING" CHIEF OF POLICE IS
NOT AN APPOINTMENT.
B.
THE TOWNSHIP'S ASSIGNMENT OF AN ACTING
CHIEF OF POLICE VIOLATES THE CHAIN OF
COMMAND PROVIDED IN THE TOWNSHIP'S POLICE
ORDINANCE AND THE "LINE OF AUTHORITY"
PROTECTED BY N.J.S.A. 40A:14-118.
POINT III
THE TOWNSHIP CANNOT "APPOINT" AN INDIVIDUAL TO
THE POSITION OF ACTING CHIEF OF POLICE SINCE
THERE IS NO MUNICIPAL ORDINANCE PROVIDING FOR
COMPENSATION OF THE POSITION.
On October 29, 1998 we granted the request of the New Jersey
Association of Chiefs of Police (Association) to appear as amicus
curiae.
The Association presents the following arguments for
consideration:
GREENWICH'S ORDINANCE GIVING THE PUBLIC SAFETY
COMMITTEE THE POWER TO REASSIGN THE STATUTORY
POWERS OF THE CHIEF OF POLICE EVEN WHILE THE
CHIEF IS READY, WILLING AND ABLE EITHER TO
EXERCISE HIS POWERS OR TO ASSIGN THEM TO A
SUBORDINATE VIOLATES N.J.S.A. 40A:14-118.
A.
THE DESIGNATION OF AN OFFICER TO PERFORM
THE CHIEF'S DUTIES IS AN ASSIGNMENT
WITHIN THE EXCLUSIVE PURVIEW OF THE
CHIEF.
B.
THE SUBJECT ORDINANCE VIOLATES THE
DEPARTMENT'S CHAIN OF COMMAND.
The PBA and the Association argue that the motion judge's
decision was erroneous because Section 36-9A of Ordinance No. 6- 4 -
1998 violates N.J.S.A. 40A:14-118 and the judge incorrectly
determined that the designation of an acting police chief
constitutes an appointment, rather than an assignment.
Municipal ordinances are presumed valid and a reasonable
exercise of the legislative authority of the municipal governing
body. Fanelli v. City of Trenton, 135 N.J. 582, 589 (1994); First
Peoples Bank V. Medford Twp., 126 N.J. 413, 418 (1991); Orange
Taxpayer's Council, Inc. v. City of Orange, 83 N.J. 246, 256
(1980).
The presumption is rebuttable, but it places a heavy
burden on the party advocating invalidity of an ordinance. 515
Assoc. v. City of Newark, 132 N.J. 180, 185 (1993); Hutton Park
Gardens v. West orange Council, 68 N.J. 543, 564 (1975). However,
the municipality's action may be overturned if arbitrary or
unreasonable. First Peoples Bank, 126 N.J. at 418; Bryant v. City
of Atlantic City, 309 N.J. Super. 596, 610 (App. Div. 1998).
"A determination predicated on unsupported findings is the
essence of arbitrary and capricious action." Bryant, 309 N.J.
Super. at 610. Nevertheless, "[1]egislative bodies are presumed to
act on the basis of adequate factual support and, absent a
sufficient showing to the contrary, it will be assumed that their
enactments rest upon some rational basis within their knowledge and
experience." Hutton, 68 N.J. at 565.
This presumption of rationality "can be overcome only by
proofs that preclude the possibility that there could have been any
set of facts known to the legislative body or which could
reasonably be assumed to have been known which would rationally
support a conclusion that the enactment is in the public interest."
Ibid. In determining whether a municipal ordinance was authorized
by a statute, we must decide whether the ordinance represented "a
reasonable exercise of the Legislature's delegation of authority to
the municipality enacting the statute." Bryant, 309 N.J. Super. at
610.
Turning to an analysis of the applicable statutory provision,
N.J.S.A. 40A:14-118 provides, in relevant part:
The governing body of any municipality,
by ordinance, may create and establish, as an
executive and enforcement function of
municipal government, a police force, whether
as a department or as a division, bureau or
other agency thereof, and provide for the
maintenance, regulation and control thereof.
Any such ordinance shall, in a manner
consistent with the form of government adopted
by the municipality and with general law,
provide for a line of authority relating to
the police function and for the adoption and
promulgation by the appropriate authority of
rules and regulations for the government of
the force and for the discipline of its
members. The ordinance may provide for the
appointment of a chief of police and such
members, officers and personnel as shall be
deemed necessary, the determination of their
terms of office, the fixing of their
compensation and the prescription of their
powers, functions and duties, all as the
governing body shall deem necessary for the
effective government of the force, Any such
ordinance, or rules and regulations, shall
provide that the chief of police, if such
position is established, shall be the head of
the police force and that he shall be directly
responsible to the appropriate authority for
the efficiency and routine day to day
operations thereof, and that he shall,
pursuant to policies established by the
appropriate authority:
6
a.
Administer and enforce rules and
regulations and special emergency directives
for the disposition and discipline- _of the
force and its officers and personnel;
b.
Have, exercise, and discharge the
functions, powers and duties of the force;
c. Prescribe the duties and assignments of
all subordinates and other personnel;
d. Delegate such of his authority as he may
deem necessary for the efficient operation of
the force to be exercised under his direction
and supervision; and
Report at least monthly to the
e.
appropriate authority in such form as shall be
prescribed by such authority on the operation
of the force during the preceding month, and
make such other reports as may be requested by
such authority.
The official Senate committee statement explains the Legislature's
intent in enacting N.J.S.A. 40A:14-118:
The bill would provide statutory
direction that the police force is an
executive and enforcement function of
Each municipality
municipal government.
having a police force would be required to
establish a line of authority relating to the
police function and to designate an
"appropriate authority" which may be the
mayor, manager or governing body, depending on
the form of municipal government.
The
"appropriate authority" shall adopt rules and
regulations for the government of the police
force which the chief of police shall be
subject to. The line of authority would be
required to be consistent with the degree of
separation of executive and administrative
powers from legislative powers inherent in the
municipal form of government. The municipal
governing body and any individual thereof
would be required to act as a body as through
the "appropriate authority" in all matters
relating to the police function. . .
- 7 -
[Assembly Judiciary, Law, Public Safety and
Defense Committee, Statement to 5.1243
(enacted as L. 1981, c. 266).]
Accordingly, N.J.S.A. 40A:14-118 was enacted, in part, to
provide for a line of authority within the police department and,
once the position of chief of police was established,, to withdraw
from the governing body the authority and power to prescribe the
chief's duties. Ouaalietta v. Borough of Haledon, 182 N.J. Super.
136, 145 (Law Div. 1981). Moreover, "by granting chiefs of police
express statutory authority, the statute sought to avoid undue
interference by a governing body into the operation of the police
force." Falcone v. De Furia, 103 N.J. 219, 222 (1986); Ouaalietta,
182 N.J. Super. at 145.
In Ouaalietta, the court invalidated an ordinance that had
established the position of "Director of Police" as a superior to
the borough's police chief, with powers previously reserved for the
chief. Id. at 140-43. The governing body passed the ordinance in
direct response to the mayor's dissatisfaction with the police
chief's performance. Id. at 140-41. The court found the ordinance
would interfere with the line of authority from the chief to the
governing body, negate the statute's mandate that the chief be the
head of the police force, and divest the chief of his statutory
powers. Id. at 147.
In Gauntt v. City of Bridgeton, 194 N.J. Super. 468, 486 (App.
Div. 1984), we found that the municipality's regulatory power under
N.J.S.A. 40A:14-118 permitted the governing body to establish a
Department of Police and Fire, headed by a director who fixed
- 8 -
policy and formulated fundamental principles to guide the police
chief in the daily operation of the police department. However,
the director made numerous unilateral decisions involving day-today operations of the department such as instituting investigations
without the chief's knowledge, directing certain officers to appear
before community groups, and withdrawing officers from various
police training schools and reassigning others. Id. at 474-78.
The director reassigned the lieutenant, whom the chief designated
to head the department's detective division, replacing that officer
with one of the director's choosing.
Id. at 475.
He also
appointed that same lieutenant as acting chief, while the chief of
police was on vacation for four days. Id. at 477.
We observed that the Legislature had explicitly removed from
the final version of N.J.S.A. 40A:14-118 a provision granting the
chief authority to prescribe the internal organization of the
police force. Id. at 485. However, we found that the director's
interference with routine operations was improper and that his
replacement of the head of the detective division "constituted an
infringement of [the chief's] authority to prescribe the
assignments of all subordinates within his department." Id. at
488.
We also found the director infringed on the chief's
responsibilities when he appointed the lieutenant as acting chief
of police during the chief's vacation because N.J.S.A. 40A:14118(d) gave the chief "the power to l[d]elegate such authority as
he may deem necessary for the efficient operation of the force. .
. .'" Id. at 490.
- 9 -
C
In Falcone, 103 N.J. at 225, our Supreme Court disagreed with
the portion of Gauntt that held the chief's power to assign
included the authority to name the head of the detective division.
The governing body had passed an ordinance establishing a bureau of
two detectives to be appointed by the chief with the approval of
the governing body. Id. at 222-23 n. 2. After the governing body
twice disapproved the chief's selections, the chief and the county
prosecutor sought to have the ordinance invalidated. Id. at 223.
The Court stated that "the question [was] whether the
designation of a detective should be considered to be an
appointment or a promotion by the governing body or an assignment
by the chief." Id. at 224. The Court focused on the increased
salary and responsibilities given a detective and observed that,
under the township's ordinance, the appointment of a detective was
"permanent, and not subject to changes at the discretion of the
chief that typify assignments." Ibid. The Court concluded that
the designation of a detective was "more like an appointment or a
promotion than an assignment of a subordinate within the police
force." Ibid. The Court's conclusion and reasoning are consistent
with our pre-statutory decision involving the same issue. See City
Council of Garfield v. Perrapato, 117 N.J. Super. 184, 193-94 (App.
Div. 1971).
Here, the motion judge found that "the committee's authority
to designate an acting chief during a period of unavailability is
more akin to an appointment," than an assignment.
The judge
reasoned that while Falcone was distinguishable because the
- 10 -
appointment to detective was permanent, "it appears to be a
distinction without a difference, since the [C]ourt's long
consideration of the permanency issue is given almost as an
afterthought." The motion judge found that the Court instead
placed "a great deal of emphasis on the high level of
responsibility" afforded to a detective and that "his primary
consideration must be the significance of position in the overall
police hierarchy, as opposed to the permanency of such a position."
Given that N.J.S.A. 40A:14-118 granted the municipality the
authority to define the chain of command, and the Legislature
declined to provide the chief with authority to determine the
internal organization of the department, the judge found the
ordinance valid, stating the municipality had the authority "to
determine who replaces the chief when he is absent for long
periods, because such choice triggers the appointment power
reserved to it, rather than the assignment power afforded the
chief."
The PEA and Association argue this case implicates our
decision in Gauntt, where the governing body improperly assigned an
acting police chief during the chief's four-day vacation, rather
than the Supreme Court's determination in Falcone that the
governing body had the authority to make appointments to the
permanent position of detective. They assert the governing body's
actions violate the chief's statutorily-created right to prescribe
the duties and assignments of his subordinates, his right to
delegate authority as he deems necessary for the efficient
operation of the force, and the line of authority previously
established by ordinance.
_
In our view, nothing in N.J.S.A. 40A:14-118 prevents the
legislative governing body of a municipality from amending the line
of authority, as Greenwich did in 1996 when it deleted the position
of deputy chief. However, rather than merely reorganizing the line
of authority in the event of the poLice chief's unavailability,
Section 36-9A of Ordinance No. 6-1998 established a triggering
event by which the chief would lose his authority over the
operation of the department.
Under this section, the chief's
absence for ten (10) working days, or the equivalent of a two-week
vacation, automatically transfers the chief's authority to an
individual selected by the Public Safety Committee rather than to
an established, permanent position within the department, such as
a captain.
Consequently, rather than amending the line of
authority, this section of the ordinance entirely usurps the police
chief's authority and his right to exercise direction and
supervision over the force in accordance with N.J.S.A. 40A:14118(d).
Greenwich argues that the chief's absence for an "extended
period of time" implicates the "same policy considerations that
compelled the [L]egislature to vest the appointment power in the
municipality in the first place." They assert that under such
circumstances, "popularly-elected Township officials must be able
to elect a Chief in whom they have confidence and with whom they
can communicate." However, the record is devoid of any rational
- 12 -
basis for determining that ten working days constitutes an
"extended" period of absence for a police chief. Similarly, no
basis is provided for defining "unavailable" as including periods
when the chief is "on vacation, or is absent from the township for
any reason;" or for differentiating an absence of ten days from
nine or eleven working days, such that a chief who is "unavailable"
for ten days, rather than nine or eleven, loses both his or her
ability to oversee the police department and the prerogative of
naming an acting chief. Given the wealth of communication tools
available offering extraordinary levels of accessibility between
individuals and organizations, Greenwich's position is
unsupportable without specific evidence establishing a basis for
stripping the chief of authority over the operations of the police
force every time a two-week vacation is taken.
Moreover, the ordinance makes no provision as to the required
credentials of the individual replacing the police chief, nor does
it place, any limits on that individual's authority over the
department's operations, creating the possibility of political
interference 'in the daily operations of the department.
As
written, the ordinance would not prohibit the Public Safety
committee from appointing a member of the governing body, even one
with no pertinent experience, affording that individual the full
scope of authority necessary to institute changes in the
department's day-to-day operations, including personnel decisions.
This runs counter to the Legislature's expressed intent that the
line of authority maintain the separation between the executive and
- 13 -
A
•
(7
C
administrative powers, and the legislative powers of the municipal
form of government.
Greenwich notes the township's police officers are entitled to
four weeks of vacation after ten years of service and five weeks
vacation after twenty years of service. Greenwich asserts that if
the chief "is concerned about Ordinance 6[-1998], he can avoid the
appropriate authority's appointment of an Acting Chief by
scheduling his vacations accordingly." It may be understandable
that the municipality wants to discourage the police chief from
taking the vacation allotment in periods of four or five
consecutive weeks. However, if the goal is reasonable, Greenwich's
chosen method for achieving it is not. The selected procedure
effectively penalizes the chief by removing him from exercising his
statutorily-vested authority for taking even a two-week vacation.
There is simply no rational basis for attempting to curtail the
possibility of extensive vacation periods by the chief with this
ordinance and its far-reaching effects.
In summary, we find Section 36-9A of Ordinance No. 6-1998, as
written, is an invalid and arbitrary 'exercise of the legislative
authority of Greenwich, without any rational basis, and contrary to
the provisions contained in N.J.S.A. 40A:14-118.
Reversed.
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!weeping is a true copy of the
- 14 -
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New Jersey Judiciary
a
Superior Court - Appellate Division
S
NOTICE OF APPEAL
... 0
Type or clearly print all information. Attach additional sheets if necessary.
ATTORNEY I LAW FIRM? PRO SE LITIGANT
TITLE IN FULL (AS CAPTIONED BELOW):
NAME
John Paff v. Galloway Township and Thalia C. Kay in her
official capacity as Municipal Clerk and Records Custodian
of Galloway Township
Michael 1. Fitzgerald, Esquire
STFtECADDRESS
401 New Road, Suite 104
CITY
STATE
NJ
Linwood
EMAILADDRESS
[email protected]
PHONE NUMBER
ZIP
08221
609-927-0015
ON APPEAL FROM
TRIAL COURT JUDGE
Nelson C.
Johnson, I.S.0
TRIAL COURT ORAGENCY NUMBER
TRIAL COURT OR STATE AGENCY
Superior Court, Law Division,Atlantic County
ATL-L-005428-13
appeals to the Appellate
Notice is hereby given that Galloway Township and Thalia C. Kay
Division from a 0 Judgment or IN Order entered on Jane 10, 2014, July 25 2014
in the III Civil
0 Criminal or 0 Family Part of the Superior Court or from a 0 State Agency decision entered on
If not appealing the entire judgment, order or agency decision, specify what parts or paragraphs are
being appealed.
Appealing June 10, 2014, Order that the Township provide to plaintiff e-mail logs. Not appealing the July 25, 2014, Order
ordering plaintiff attorney's fees and costs, nor the June 25, 2014, order that the award be stayed pending the disposition of the
defendant's appeal.
Have all issues, as to all parties in this action, before the trial court or agency been disposed of? (In
consolidated actions, all issues as to all parties in all actions must have been disposed of.) — Yes
If not, has the order been properly certified as final pursuant to R. 4:42-2?
0 Yes
III No
I No
For criminal, quasi-criminal and juvenile actions only:
Give a concise statement of the offense and the judgment including date entered and any sentence
or disposition imposed:
This appeal is from a
0 conviction 0 post judgment motion 0 post-conviction relief.
If post-conviction relief, is it the 0 1st 0 2nd 0 other
specify
Is defendant incarcerated? 0 Yes 0 No
Was bail granted or the sentence or disposition stayed?
0 Yes 0 No
If in custody, name the place of confinement:
Defendant was represented below by:
• Public Defender LI self • private counsel
kavisicl efaava 010112008
specify
Pap. 1 o12
Notice of appeal and attached case information statement have been served where applicable on the
following:
Name
Trial Court Judge
Trial Court Division Manager
Date of Service
September 4, 2014
September 4, 2014
Nelson C. Johnson, J.S.C.
Teresa Ungaro
Tax Court Administrator
State Agency
Attorney General or Attorney for other
Governmental body pursuant to
8..2:5-1(a), (e) or (h)
Other parties in this action:
Name and Designation
John Paff, Plaintiff/Respondent
Attorney Name, Address and Telephone No.
Walter Luers, Esq., Suite C202, 23 W. Main Street
Clinton, NJ 908-894-5656
Date of Service
September 4, 2014
Attached transcript request form has been served where applicable on the following:
Name
Date of
Service
Amount of
Deposit
Trial Court Transcript Office
Court Reporter (if applicable)
Supervisor of Court Reporters
Clerk of the Tax Court
State Agency
Exempt from submitting the transcript request form due to the following:
0 No verbatim record.
II Transcript in possession of attorney or pro se litigant (four copies of the transcript must be submitted along with an electronic copy).
List the date(s) of the trial or hearing:
November 1, 2013, January 9, 2014, and June 2, 2014
0 Motion for abbreviation of transcript filed with the court or agency below. Attach copy.
❑ Motion for free transcript filed with the court below. Attach copy.
I certify that the foregoing statements are true to the best of my knowledge, information and belief.
I also certify that, unless exempt, the filing fee required by N.J.S.A. 22A:2 has been paid.
September 4, 2014
DATE
SIG
ORNEY OR PRO SE LITIGANT
R OfATCTI
Pne2 of
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
CIVIL APPEALS SETTLEMENT PROGRAM
RICHARD ), HUGHES JUSTICE COMPLEX
25 MARKET STREET, PO BOX 969
TRENTON, NJ 08625-0969
5TH FLOOR NORTH WING
HAROLD B WELLS III
JUDGE
609 633-7080
2/ 71p
NOTICE OF PREARGUMENT CONFERENCE
To:
WALTER M LUERS, ESQ, AND MICHAEL J FITZGERALD, ESQ,
Re:
JOHN PAFF V. GALLOWAY TOWNSHIP
Docket NO, A-000125-14
Date of Conference:
October 29, 2014
si
OCT 0 6 2014 "
Time: 1:00 PM
You are directed to appear at the above address on the date and time set forth to discuss
the issues presented for review in the above entitled appeal and explore the possibilities for
It is
The attorneys actually in charge of the appeal are required to attend.
settlement.
expected that counsel will (1) have full authority to settle the controversy and insure that the
clients will be available for consultation either in person or by telephone, (2) be thoroughly
familiar with the merits of all issues on appeal, (3) be prepared to evaluate, narrow, eliminate
or clarify the issues on appeal and discuss any problems touching on potential scheduling or
procedural complications.
At least five days before the conference, counsel shall file with the undersigned judge a
concise statement of the case, copy to your adversary, and the issues arising therefrom. Please
attempt to provide the trial judge's statement of reasons, if any, supporting the order or
judgment presented for review. Voluminous documents and trial transcripts should not be filed
unless essential to an understanding of the case.
A copy of this Notice may be served upon the court reporter or other transcript preparer
who shall then suspend preparation of the transcript until further notice.
The time for filing briefs as prescribed by the Rules of Court or by any previous
scheduling order is suspended pending the conference.
All communications by and between counsel and the undersigned judge will be without
prejudice and are to be treated as entirely confidential unless confidentiality is expressly
waived.
If the parties reach an agreement prior to the conference, the undersigned judge is to be
notified promptly.
Requests for adjournments must be made immediately upon receipt of this notice and complete
details concerning necessity must be provided.
Date: October 03, 2014
HAROLD B WELLS III, J.A.D. (Reti ed
and temporarily assigned on recall)
co: CASE, Unit
PORZIO, BROMBERG & NEWMAN, P.C.
100 Southgate Parkway
Morristown, NJ 07962-1997
(973) 538-4006
Vito A. Gagliardi, Jr., Esq. (024821989)
Phillip C. Bauknight, Esq. (022962008)
Attorneys for New Jersey State Association of Chiefs of Police
JOHN PAFF,
SUPERIOR COURT OF NEW JERSEY:
APPELLATE DIVISION
DOCKET NO.: A-000125-14
PLAINTIFF/APPELLEE,
V.
CERTIFICATION OF
PHILLIP C. BAUKNIGHT, ESQ. IN SUPPORT
OF MOTION SEEKING LEAVE TO APPEAR AS
AMICUS CURIAE
TOWNSHIP OF GALLOWAY and
THALIA C. KAY in her official
capacity as Municipal Clerk
and Records Custodian of
Galloway Township,
SAT BELOW:
HONORABLE NELSON C. JOHNSON, J.S.C.
DEFENDANTS/APPELLANTS.
I, Phillip C. Bauknight, of full age, hereby certify as
follows:
1.
I am an attorney at law of the State of New Jersey and
an associate with the law firm of Porzio, Bromberg & Newman,
P.C., attorneys for the New Jersey State Association of Chiefs
of Police ("NJSACOP").
I submit this certification in support
of NJSACOP's motion to appear as an
amicus curiae
in this
matter.
2.
Attached hereto as Exhibit "A" is a true and correct
copy of the Appellate Division's opinion in
Township of
Greenwich Police Officers P.B.A. v. Township of Greenwich, A7325-97T3 (March 29, 1999).
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3.
Attached hereto as Exhibit "B" is a true and correct
copy of the Notice of Appeal, filed by Appellants, on September
4, 2014.
4.
Attached hereto as Exhibit "C" is a true and correct
copy of the Court's Notice of Preargument Conference, dated
October 3, 2014.
I certify that the foregoing statements made by me are
true. I am aware that if any of the foregoing statements made
by me are willfully false, I am subject to punishment.
Phillip C. Bauknight
Dated: October 23, 2014
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PORZIO, BROMBERG & NEWMAN, P.C.
100 Southgate Parkway
Morristown, NJ 07962-1997
(973) 538-4006
Vito A. Gagliardi, Jr., Esq. (024821989)
Phillip C. Bauknight, Esq. (022962008)
Attorneys for New Jersey State Association of Chiefs of Police
JOHN PAFF,
SUPERIOR COURT OF NEW JERSEY:
APPELLATE DIVISION
PLAINTIFF/APPELLEE,
V.
DOCKET NO.: A-000125-14
CERTIFICATION OF RAYMOND
HAYDUCKA IN SUPPORT OF NEW
JERSEY STATE ASSOCIATION OF
CHIEFS OF POLICE'S MOTION
TO APPEAR AS AMICUS CURIAE
TOWNSHIP OF GALLOWAY and
THALIA C. KAY in her official
capacity as Municipal Clerk
and Records Custodian of
Galloway Township,
SAT BELOW:
HONORABLE NELSON C. JOHNSON, J.S.C.
DEFENDANTS/APPELLANTS.
I, Raymond J. Hayducka, of full age, do hereby certify and
say:
1.
I am presently serving as the Chief of Police for the
South Brunswick Township Police Department.
I am an active
member of the New Jersey State Association of Chiefs of Police
("NJSACOP") and currently serve as the Chair of the NJSACOP's
Legal Aid and Arbitration Committee.
Based on my personal
knowledge of the facts set forth herein, and my review of
certain documents regarding this matter, I submit this
certification in support of NJSACOP's motion to appear as amicus
curiae in this Appeal.
2. NJSACOP has been made aware of the trial court's decision
to allow Appellee John Paff's ("Paff") improper attempt to
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circumvent the Open Public Records Act, N.J.S.A. 47:1A-1, et
seq. and require police departments across the State, including
the Galloway Township Police Department, to create previously
non-existing public records in the form of email logs. Indeed,
I have spoken with many of my colleagues about this matter and
their concern about the potential state-wide ramifications to
police departments if the trial court's decision is not
reversed.
In addition, NJSACOP has received calls from its
members around the State expressing their concern about the
trial court's decision.
3.
It is abundantly clear to the members of NJSACOP that:
(i) the trial court's decision contradicts the explicit language
of OPRA; (ii) the created records would relate to ongoing police
internal investigations; and (iii) the creation and production
of such records inevitably would result in the release of
confidential information that could compromise the sensitive
investigatory techniques of police departments throughout the
State and irreparably damage the fluid and consistent exchange
of confidential information within the departments. Thus, as a
result of NJSACOP's concern with the potential ramifications of
the trial court's decision, the members of our Legal Aid and
Arbitration Committee recommended that NJSACOP seek leave to
file an amicus brief in this action.
The NJSACOP has moved
quickly to authorize counsel to make the instant application.
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2896200
4.
The NJSACOP was founded in 1912 as an association
dedicated to the service of the people of the State of New
Jersey through increased efficiency in law enforcement. Indeed,
in Article I, Section 1 of our Bylaws, we state the following as
being among the purposes of the NJSACOP:
To secure unity of action in police matters and to
advance and elevate the standard of police
institutions and the recognition thereof by the
general public; to secure the adoption and enforcement
of laws pertaining to the prevention and detection of
crime and the apprehension of criminals; to elevate
the standards of the police profession . . . .
5.
Additionally, in at least five recent cases in which the
court considered issues with potential state-wide effect on law
enforcement, the court permitted and was assisted by amicus
submissions from NJSACOP:
Santiago v. City of Plainfield,
Docket No. UNN-C-56-08 (supporting an attempt to enjoin the City
of Plainfield's removal and demotion of the chief of police);
Santiago v. City of Plainfield,
Docket No. UNN-L-2972-05
(supporting a successful effort to overturn the City of
Plainfield's mayor's prior unlawful attempt to remove Chief
Santiago as the Chief of Police);
Twp. of Greenwich Police
Officers PBA Local No. 122 v. Twp. of Greenwich, Docket. No. A7325-97T3 (decided March 29, 1999) (overturning a challenged
ordinance which would have permitted the Township's Public
Safety Committee to designate an acting chief of police in the
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event its chief were "unavailable" for ten or more working
days);
Romano v. Twp. of Mendham,
Docket No. A-4447-97T1
(decided on March 3, 1999) (upholding the authority of the chief
of police to establish performance standards for traffic
officers); and Murphy v. Luongo, 338 N.J. Super. 260 (App. Div.
2001). In the latter case, NJSACOP was invited by the Appellate
Division to appear as an amicus party.
6.
We believe that the instant case presents a matter of
significant public importance and we wish to give the Court our
perspective on the legal and practical ramifications of the
trial court's decision on police departments throughout the
State, should the decision not be reversed.
Here, the trial
court has ordered Galloway Township to create previously nonexisting public records regardless of the fact that such
documents do not exist and relate to pending internal
investigations.
Although police departments throughout the
State may have the ability to redact information that is
generally recognizable as confidential or containing sensitive
information, there is a real danger of inadvertently releasing
confidential information.
7. The creation and production of email logs would require a
full and complete understanding of the background, context,
substance, and circumstances of each individual email by all
parties involved. Although obvious confidential information
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2896200
could be redacted, there may be information that remains
undetected by a municipal clerk or by a supervisor, as they
would lack the requisite first-person understanding of the
nuanced details and factual background surrounding each email
necessary to protect such information.
Importantly, such an
unintended release could not be reversed.
8.
The public's trust in the ability of law enforcement to
protect confidential information is a fundamental cornerstone of
police departments throughout the State, and would quickly
dissipate should there be a real and potential risk for
sensitive information to be inadvertently released through OPRA
requests, as would be the result here if the trial court's
decision is not reversed. Importantly, information such as the
names of the sender and receiver of emails involved in ongoing
internal police investigations represents information that is
intended to be kept confidential during internal investigations.
9.
Should the trial court's decision remain, it could chill
the willingness of private persons to make complaints against
officers; to come forward with critical information; or to be
willing to assist in such investigations.
10.
It is our understanding that NJSACOP's motion is being
filed soon after Appellants Galloway Township and Municipal
Clerk and Records Custodian Thalia C. Kay filed their Notice of
Appeal. It is also our understanding that no briefing schedule
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2896200
has been set. Rather, it is our understanding that the briefing
schedule has been suspended pursuant to the Court's Notice of
Preargument Conference.
If this matter is not resolved during
the October 29, 2014 Preargument Conference, and NJSACOP's
motion is granted, we are prepared to comply with any briefing
schedule established by the Court so that our participation will
not affect the Court's consideration of this matter.
11. Galloway Township has consented to this application.
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I certify that the foregoing statements are true.
I am
aware that if any of the foregoing statements are willfully
false, I am subject to punishment.
Dated: October
, 2014
7
2896200
CERTIFICATION PURSUANT TO R. 1:4-4(c)
I hereby certify that the affiant above acknowledged the
genuineness of his signature and that an original copy will be
supplied to the Court and all counsel if so requested.
Phillip O!"---eauknight
Dated: October 2.3 , 2014
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