McCann v. Clerk of City of Jersey City

MCCANN, PLAINTIFF-APPELLANT, GERALD v. CLERK OF THE CITY, DEFENDANT, CITY OF MANZO, JERSEY AND LOUIS

DEFENDANT-INTERVENOR-RESPONDENT.

Argued Telephonically April 2001- Decided April 2001 Filed June 2001. (De Taite, appellant argued T. Luca & George cause briefs). Taite, Luca, attorneys; R. De on Samuel DeSoto, respondent. argued F. the cause for Karen by opinion was of the Court delivered STEIN, J. applied to be a candidate for the

Petitioner Gerald McCann Mayor City Jersey City, a Act of of Faulkner 8,May municipality, non-partisan election. The Clerk City process petition ground Jersey on the of refused McCann’s disqualification of candidacy provisions his was barred Code, 2C:51-2d, the Criminal Faulkner suit, brought Division N.J.S.A. 40:69A-166. McCann the Law Appellate to include on the ballot. The ordered Clerk McCann reversed, Appellate in an Division and we affirmed the Division April 5, pursuant opinion dated 2001. This is issued to that order order.

I City, Jersey having is a of in that McCann former served 1991,during In his office from 1982-1986and 1990-1992. December administration, second McCann was convicted the United States on District Court for the District New fifteen counts fraud, fraud, including charges false an indictment of mail wire bank, false to the statements statements Internal Revenue (IRS), income tax evasion and failure file a tax return. Service review, purposes we For of this assume that none of the events giving rise to while those convictions occurred McCann was convictions, required public office.1As a result of his McCann was 1According giving opinion, to the Law Division "the conduct rise to prior having Mayor." occurred become McCann v. [McCann's] convictions to his (Law 13, 2001) City Jersey City, Clerk the Docket No. L-1322-01 Div. March 2). (slip op. accept purposes We our its that statement for review because 2C:51-2a(1), pursuant pro forfeit Ms office to N.J.S.A wMch any public vides for the forfeiture of office in this on State involving dishonesty conviction of an offense or a crime of the above, third-degree or or equivalent the conviction of an offense under law. federal court federal sentenced McCann June 1992 to a term of

thirty-three imprisonment by three-year months period followed a supervised February 1997, supervised of release. In while on release, Mayor McCann announced his intention to run of for However, City in the disqual 1997 election. was because he voting sentence, serving ified from Chancery while Ms federal the Appellate Division and Division held that he was barred from Elections, runmng. Superintendent v. N.J.Super. McCann 303 371, (Ch.Div.), 352, A 1134 aff'd, N.J.Super. 696 .2d 303 696 A.2d denied, (1997). (App.Div.), 1124 149 N.J. 693 A.2d 109 certif. sentence, completing voting rights After his and with his re- stored, again sought Mayor Jersey City, McCann to run for filing petition in February City May a with the for 2001 Clerk Jersey City’s Corporation Based on from election. advice Counsel, Clerk process petition refused to McCann’s because disqualified his 1991 him convictions from the office of disqualification Code, provisions under of the Criminal 2C:51-2d, Act, N.J.S.A. and the Faulkner N.J.S.A. 40:69A-166. disqualifies public “any person The Criminal Code office, touching or involving convicted of an offense on his position employment.” or N.J.S.A. 2C:51-2d. The Faulkner Act prohibits “[a]ny person involving of a convicted crime or offense office, turpitude position moral assuming] mumcipal [from However, accuracy critical to the is not outcome of this case. we note that at February hearing McCann's forfeiture-of-office in the Law Division the convicted, dealing State that two which maintained of the counts for he was with violations, Specifically, dealing IRS "did occur while he was in office. Count 1990; filing corporate with the false tax in June Count 15 return dealt Agent providing July with false statements to an IRS of 1990.” McCann did dispute hearing. not facts at those the 1992 municipality pursuant this act.” employment governed in a 40:69A-166. seeking complaint in Law Division a declara McCann filed a for Law tory judgment eligible he was to run office. The rejected arguments disquali City for Division both of Clerk’s process peti fying ordered the McCann’s McCann and Clerk tion. The court held that the- forfeiture statute the Criminal apply did not to McCann’s offenses because those offenses Code respect private while was sector. With occurred McCann acknowledged disqualification the Faulkner the court in the Act would McCann’s provision contained Faulkner bar but, relying candidacy if on v. it was enforceable Matthews (1980), City, held that the Atlantic 84 N.J. deprived equal provision right McCann his constitutional subjects protection mayor it in Faulkner because candidates municipalities eligibility requirements Act to stricter than those apply municipalities, any Act rational non-Faulkner without basis for the distinction. 509, Appellate Super. A.2d Division reversed. 338 N.J. 770 statute, (App.Div.2001). respect

723 With to the forfeiture the Appellate acknowledged prior the Division that no cases addressed by specific question presented ap MeCann-whether the statute plied to crimes in office. that occurred while the candidate was not However, language “indicating] the cited related court from eases may person being that such indeed a forever conduct warrant 517, 723, public employment,” from barred id. at 770 A.2d and preclude concluded “the Forfeiture Statute was intended to anyone obtaining who violated trust a second 518, opportunity to do Id. at 770 A.2d 723. also so.” The court rejected the Law Division’s conclusion that Faulkner Act disqualification large provision Relying was unconstitutional. part legislative history on the of the the court observed that possible Act greatest power “intended to confer the of self- Constitution, government, upon with consistent the New municipalities pursuant adopting plan to the Act.” Id. (citing Serv., City Dep’t A.2d 723 Newark v. Civil of of 416, 424, N.J.Super. (App.Div.1961)). “Given the broad, unprecedented sweep powers Legislature ultimately put in mayors the hands of and other elected officials in these newly noted, configured municipalities,” the court “it not unex- pected sought regulate that it also those who would exercise powers.” those Id. at 770 A.2d 723. The court concluded that disqualification reasonable, provision was and therefore consti- tutional, “given scope power mayor the broad vested in the and municipalities.” other elected officials of those Id. at 770 A.2d granted petition We McCann’s for certification and motion for acceleration, argument by telephone April heard oral on day, 2001. Later that affirming judgment we issued an order Appellate vacating stay of the Division printing opinion affected election ballots. supplement This is issued to our 5,2001 April order.

II We candidacy address first whether McCann’s is barred Code, the forfeiture statute in the Criminal N.J.S.A. 2C:51-2. That provides statute part: relevant holding a. A person office, or elective or any public position, employment, appoin government agency tive, under the of this State or or subdivision political thereof, who is convicted of an offense shall forfeit such office or if: position (1) involving He is convicted under the laws of this State of an offense dishonesty degree or of a crime the third or above or under the laws of another state or of the United States of an offense or a if which, crime committed in this would State, crime; be such an offense or (2) involving touching He is convicted an offense or such office, position or employment; (3) The Constitution of a statute other than the code so provides. d. In addition to the for the punishment offense, the forfeiture set prescribed forth in subsection a. of 2C:51-2, N.J.S. convicted an any person offense involving touching or on his or shall be public office, position employment forever holding honor, or tmst or disqualified under this any position profit from office State or its administrative or subdivisions. political 320 added).] (emphasis

[N.J.S.A 2C:51-2 noted, position ordered in to forfeit his as was 1992 As McCann Mayor Jersey City pursuant 2C:51-2a because he to N.J.S.A. involving dishonesty third-degree or of the was convicted of crimes question higher was in office. The first for our review or while he while is whether convictions for offenses committed McCann’s serving as or on his “involv[ed] touch[ed] McCann was not office, so, employment.” If public position, or N.J.S.A. 2C:51-2d. holding any public in disqualified” “shall be office he forever question impression. first this State. Ibid. The one of objective determining meaning of a overriding Our in the legislative light is to intent of the statute “effectuate language objects sought v. used and the to be achieved.” State (1997). Hoffman, “Ordinarily, 149 N.J. Legislature’s language of is the indicator of the the statute surest Barow, 218, 231, (1998), intent,” v. 153 708 401 Cornblatt N.J. A.2d “ statutory language ‘clearly meaning and if the reveals the of the statute, the court’s sole function is to enforce the statute ” NI, 1997 Zudke accordance with those terms.’ SASCO LLC v. (2001) wich, 579, 586, A (quoting 166 N.J. 469 New .2d 646, 651, Dep’t Safety Bigham, Law v. 119 N.J. 575 A.2d & Pub. (1990)). question, provision “In we also addition legislative task is harmonize consider overall scheme. ‘Our way individual and read in the is most sections the statute ” legislative (quoting consistent Ibid. Fiore with the overall intent.’ (1995)). Freightways, v. Consol. N.J. A.2d 436 2C:51-2d, con language of N.J.S.A. considered statute, suggests of the that a does not text entire conviction upon” public office facts “involve[ ]” “touch[ ] unless the underlying relationship bear the conviction some direct to an (a) statute, speci held individual. Subsection which holding person currently fies the circumstances under which a separate forth position, office must surrender that sets two (a)(1) requires standards. Subsection forfeiture where the office involving dishonesty holder is convicted “of an offense of of a 2C:51-2a(1). degree crime of the third or above.” N.J.S.A Subsec (a)(2) requires tion where the forfeiture office-holder “is convicted office, involving touching position employ of an or such offense or 2C:51-2a(2). standard, ment.” The but not the N.J.S.A. latter (d). former, duplicated in subsection Legislature That the included two distinct standards for forfeiture of office demonstrates that a substantive distinction merely “involving dishonesty” must exist between crimes and “involving touching Appellate those or on” an office. The Division “involving for determined McCann’s convictions were offenses touching Jersey City or on” his office as because the disrespect offenses “demonstrate his and untrustworthiness for government agencies.” Super, 338 N.J. 770 A.2d In 723. view, Appellate our the Division’s construction is too broad be (a)(1) it superfluous-any cause renders the subsection standard above,” “involving dishonesty degree crime or ... of the third or 2C:51-2a(1), also, presumably, N.J.S.A. would demonstrate “un disrespect government agencies.” trustworthiness and “It ais statutory cardinal rule of construction that full effect should be given, possible, every if word of a statute. cannot We assume Legislature meaningless language.” Sky that the used Gabin v. (1969). Club, 550, 555, line Cabana N.J. operative “involving distinction between the dishones ty” “involving touching or on” standards can found in the be Legislature’s permanent disqualification decision to limit only persons involving to those “convicted an or offense 2C:51-2(d) touching public (emphasis on his office.” added). view, phrase implies, That in our a determination on the part Legislature scope disqualification limit provision directly to crimes that are related to an individual’s in, from, performance flowing specific public or circumstances position office or an held individual. When individual office, wholly public commits a crime unrelated to his or her ordinarily involving touching crime cannot be characterized as on office. noted, relating found that conduct

As Law Division private place while in the convictions took he was McCann’s sector, there is that the bore direct no indication offenses Mayor Jersey City relationship responsibilities to his as of be- only argument proffered The is tween 1982-1986 and 1990-1992. public trust committed his that McCann violated the when he offenses, magnitude and that of his of trust the abuse the necessarily responsibilities mayor. bears on We do not a qualities dispute that reveals that are relevant McCann’s conduct Mayor. However, inquiry fitness for our under to his the office (d) determining is of- subsection limited to whether McCann’s upon specific his fenses touched either of tenures as City, and no indication there is the record relationship mayoral direct exists between offenses and his subject responsibilities. We conclude that is not therefore McCann disqualification to under N.J.S.A. 2C:51-2d. Appellate heavily Division relied on Moore v. Youth Correc Institute, 256, (1990), 119 574 A.2d 983 find that

tional N.J. but we who, distinguishable. a ease Moore involved corrections officer inmates, being disciplined harassing prison placed for threat after ening telephone prosecuted officer who him at the calls to the hearings disciplinary on and visited officer’s home several occasions, point at one on parking his car the officer’s lawn and 261, racing question motor. Id. 983. his 574 A.2d The narrow during whether Moore was conduct committed non-business hours premises facility and off the of the correctional at which Moore employed to was could be considered or touch on his involve 269, employment purposes of forfeiture. Id. at In 574 A.2d 983. could, determining that it we noted that infraction “[w]hen employee over as to casts shadow make his or her continued trustworthiness, appear incompatible service with the traits of order, honesty, appro to law and obedience then forfeiture exclusion, priate.” Id. at Read in 574 A.2d 983. that statement support Appellate could be understood construc Division’s (d). However, language tion of subsection of Moore should be

323 disposition, understood the context the facts critical our undisputed petitioner’s and it was that the co- harassment his employee in relationship Moore bore a direct and substantial respective governmental positions. their Likewise, principal Appel the other decisions relied on Division, Botti, N.J.Super. late v. State 189 (Law Div.1983) Musto, N.J.Super. and State v. 454 A.2d (Law Div.1982), o.b., N.J.Super. 456 A.2d aff'd Botti, (App.Div.1983), disposition. are not inconsistent with our case, present mayor like the involved a who was convicted of mail evasion, offending prior fraud tax but the conduct occurred However, assuming his office. Botti held that was forfeiture (a)(1) warranted under subsection of the forfeiture statute because “involving dishonesty”; Botti was convicted of a crime the court specifically question did not resolve the whether the individual’s purposes conduct involved or touched on his for office of subsec (a)(2) (d). supra, tions N.J.Super. or at 458 A.2d Botti Similarly, mayor 1333. Musto involved a senator and state who offenses, including was convicted of various mail federal fraud and Musto, supra, N.J.Super. tax fraud. at 454 A.2d 449. However, underlying the conduct those offenses occurred while office, in public analysis Musto was and the Musto court’s was determining limited to whether Musto’s offenses would have re purposes sulted in convictions under law for state of N.J.S.A. 2C:51-2a(1), 271-82, id. at 454 A.2d and whether the forfei 282-320, ture statute was constitutional. Id. 454 A.2d 449. The question whether the offenses in Musto involved or touched on implicated Musto’s offices was not in court’s the review. question, dishonesty” Without McCann’s crimes “involve for purposes properly of the forfeiture statute and in his resulted However, Jersey City of in forfeiture the office of 1992. one, permanent disqualification higher the standard for is a and on that the record before us we conclude N.J.S.A. 2C:51-2d does not disqualification public office permanent mandate McCann’s this State.2

Ill Nevertheless, disqualification we conclude (also to -149 N.J.S.A. 40:69A-1 provision of the Faulkner Law), bars McCann’s Optional Municipal Charter known as the statutory scheme candidacy. The Faulkner Act is an elective municipalities to choose between four participating authorizes Act. Article 17 of the government that are set forth plans of mandatory provisions that are common to Act contains a series provision plans, disqualification of the optional and the all of the provisions. follows: common It states as Faulkner Act is one involving shall be a crime or moral turpitude convicted person Any offense ineligible munici or in a to assume any municipal office, position employment governed act, and conviction while to this upon pality pursuant thereof convicted of such an offense his however any person shall office; provided, forfeit appointing degree which in the of the who has achieved a of rehabilitation opinion subject to the as to Civil Commission, and the Civil Service employment authority with the welfare his would not be law, incompatible Service indicates employment objectives agency, governmental be of the may aims society eligible be continued in Any employment employment. considered apply or 17-16 of 17-14, 17-15, who violate of sections shall person provisions jurisdiction forfeit conviction thereof in a court of this article shall upon competent his office. added) (footnotes omitted).3] (emphasis [N.J.S.A. 40:69A-166 although trial court noted, 1,n. 771 A.2d at 1126 n. As at 316-17 supra during underlying took found that the facts McCann’s convictions place period underlying office, record is not clear on that in which he was not in point, brought was before the Law and the manner which this case expedited fact-finding might rigorous than otherwise have Division a more precluded findings 2C:51-2 issue on the We base our of the N.J.S.A. occurred. disposition Law made Division. 3 argues candida- that the statute’s rehabilitation clause saves his McCann also argument. The office of we find little merit to that Jersey City but cy, oversight subject other to the of the Civil Service Commission or any not respecting "appointing can offer an the rehabilitation who opinion authority” argues, however, McCann that the can be consid- a candidate. public mayoral "appointing statute, if a for of the such ered the authority" purposes it can be inferred that the has deter- candidate succeeds in an election public

325 Jersey City municipality, is a Act Because Faulkner McCann is subject to the N.J.S.A. 40:69A-166 standard. McCann concedes “involving turpitude” that his convictions constitute crimes moral However, purposes argues for of the statute. he that the statute deprives equal protection him of the laws violation Jersey subjects States and New because it United Constitutions him, candidates, Faulkner Act to a other different standard disqualification imposed municipal for than the standard on candi- generally pursuant dates to N.J.S.A. 2C:51-2d. We hold that the disqualification imposed municipalities standard on Act Faulkner pursuant supported by public 40:69A-166 is N.J.S.A. sound policy justifications scrutiny. and withstands constitutional

A The United States and New Constitutions im pose independent Legislature’s power restraints on the to hold legal citizens to different standards. As we noted in Drew Associ Travisano, 249, (1991), 122 ates N.J. v. N.J. equal-protection analysis employs different tiers of re “[f]ederal scrutiny right view: strict act a when an involves fundamental class; scrutiny suspect an act a semi- intermediate when involves class; suspect scrutiny in and minimal rational-basis all other 258, Id. at cases.” 584 A.2d 807. The federal standard review clearly scrutiny. this case is rational basis That is no there right fundamental to be a candidate for office is well- settled, Carter, 134, 142-43, 849, Bullock v. 405 92 855- U.S. S.Ct. (1972); Fouche, 31 L.Ed. 2d Turner v. 396 U.S. (1970); City, S.Ct. L.Ed. 2d 567 Matthews v. Atlantic mined that “his would not be with the welfare of employment incompatible objectives governmental agency.” and the aims and society disagree. reading view, 40:69A-166. We In our the most sensible of the statutory language are indicates that the clause who applies only municipal employees to their Because are elected and are therefore not appointed positions. mayors subject “appointing Commission, to an or the Civil Service are authority” they from elected office if commit crimes permanently disqualified they contemplated statute. disqualification

326 (1980), 153, 168, 40:69A-166 does 1011 and N.J.S.A. 417 A.2d N.J. Thus, will 40:69A-166 suspect a classification. not create “only if the classification States Constitution violate the United of the grounds wholly irrelevant to the achievement rests on 420, 425, Maryland, 366 81 objective.” McGowan v. U.S. State’s (1961). 393, 1101, 1105, L.Ed. 2d S.Ct. standard, however, is some equal protection

Our state rejected the federal multi-tiered stringent. We have what more balancing approach in which we approach rigid in of a less favor right, the extent to which the “the nature of the affected consider it, upon public need for governmental intrudes and the restriction 552, 567, Kimmelman, Greenberg v. 99 N.J. the restriction.” (1985). 287, Byrne, Right Accord to Choose v. 91 N.J. A.2d 294 (1982); Taxpayers Weymouth v. Town 450 A.2d 925 Ass’n (1976). 6, 43, equal discussed our ship, 80 N.J. We in analysis specific in the context of election restrictions protection In City, supra, 84 N.J. 417 A.2d 1011. Matthews v. Atlantic Matthews, two-year residency require down a the Court struck organized applied municipalities under the Walsh ment that requirement That stood contrast to N.J.S.A. 40:70 to -76. municipalities majority” of other the State at that time the “vast residency requirement candidacy.” imposed “no durational Matthews, petitioner in supra, at 417 A.2d 1011. The 84 N.J. McCann, similarly argued, that the more onerous Matthews by residency municipality supported a requirement his was not public policy justification satisfy equal protection sufficient standards. scrutiny began level of

The Matthews Court its discussion equal protection noting standard afforded under the State right a for candidates on the durational impact residency requirement although significant into the indirect, is nevertheless a intrusion voter’s vote, of choice. a limits the number of potential freedom Since residency requirement right infringement the absence of candidates, there is an to vote despite against recognize time, class of voters. At the same we discrimination particular maintaining integrity legislative of the electoral interests importance process. [Id. 1011.] 417 A.2d competing by fashioning The Court balanced those considerations following permit standard for review: “To the furtherance of unduly restricting these interests without the electorate’s freedom choice, requirement we hold that a restriction candidates reasonably suitably for elective office must be tailored to legitimate governmental objectives.” further Ibid. standard, developing

In large part that the relied in on Court (1965). 166, Gangemi Rosengard, v. In N.J. 207 A.2d 665 Gangemi, plaintiff challenged requirement the the Faulkner Act “registered that certain Faulkner Act elected officers be voters” years. provision for at least two N.J.S.A. 40A:69A-167.1. The 150,000 applied only exceeding population adopted to cities in that plans. holding provision one of the Act’s Ibid. In that the violated protection equal principles, the it Court noted that could not supposed “conceive a rational connection between the aim of the municipalities operation law and class of to which its is limited.” 175, Gangemi, supra, 44 at 207 A.2d N.J. 665.

Following Gangemi, Matthews that Court concluded the residency requirement deprived Walsh Act Act Walsh candidates equal protection. recognized The Court that durational residen cy requirements public purpose “[protecting a valid serve 170, However, integrity of at the ballot.” Id. 417 A.2d 1011. justification residency requirement Court found that the for the in meaning Act “lose[s] Walsh when it is observed that applies only municipalities in statute 40 out of 567 the State government.” with commission form of Id. at (1980)). (citing Fitzgerald, Legislative Manual 891-904 The Court rejected argument two-year requirement the State’s that the was justified respect municipalities Act with Walsh but not other municipal government Act forms because Walsh commissioners possessed powers municipalities. than more those other “There showing govern has been no that because of the structure of the ing body municipalities, years in Walsh Act an additional two reasonably necessary for a candidate to become familiar with local problems or for the voters to become familiar with the candidate.” concluded, therefore, 172-73, Id. at 417 A.2d 1011. The Court justification why provide sound because the State “failed municipalities Act and other local forms of local under the Walsh differently,” at 417 A.2d government should be treated id. residency requirement was unconstitutional. Act Walsh B delegation pow Examination of the Faulkner Act’s municipalities general, mayors specifically, ers to makes exists, appeal, context of this a “sound clear that there justification” heightened disqualification for the standard Matthews, supra, 417 A.2d N.J.S.A. 40:69A-166. 84 N.J. Accordingly, we are 40:69A-166does 1011. satisfied right equal protection. not constitutional violate McCann’s The Faulkner Act “was created with the intent to confer greatest possible power upon municipalities the of local self- State____ government consistent with the Constitution of this plans Municipalities adopted one of the Faulkner Act have granted authority organization of been wide determine departments personnel.” City and to control v. Casamasino (1999) (citations 333, 342-43, Jersey City, 158 N.J. omitted). Accordingly, provides: Section 30 of the Act enumeration of contained in this act or in other Any specific municipal powers any general general law shall not be construed in to limit the any way description in article, contained this such enumerated power specifically municipal in shall be construed as addition and to the powers supplementary powers general grants All conferred terms this article. by municipal power governed an this whether in the form of act, under municipalities by optional plan general terms, construed, enumeration or shall be as liberally by

specific required State, the Constitution of this favor of the municipality.

[N.J.S.A. 40:69A-30.] passage municipalities Prior to the of the Faulkner had the town, governments according city, option organizing their to the borough, village township, and commission forms that derived English practices and colonial and were codified statute early Jersey nineteenth and twentieth centuries. See 34 New Practice, (Michael Pane) §§ Local Government Law 4.2-4.9 A. (rev. 1999). 3d ed. “The essential common feature of all these older government forms of is that there is no distinction between strong executive and administrative functions and there is no chief § Legislature executive.” Id. at 4.9. In created a nine- Municipal member on Commission Government to offer recom- legislation Jersey municipal mendations for that would “move New government strong to a foundation on based institution of the most municipal government modern forms of possible, particularly forms in which powerful the Chief Executive would either be a independently strong mayor, powerful appointed elected or a professional manager.” § Id. at 4.10. February Report

The 1950 Second the Commission on Mu- nicipal blueprint Government served as a for the Faulkner Act. (statement) (“This See L. principal c. 210 is the bill intended carry out the [Report]”). recommendations contained The Report, municipal second article of the incorpo- which concerns powers, ration and practical states that it “establishes induce- improvement, by offering ments to municipalities charter exten- powers self-government sive of local and relief from the need specific legislative approval to undertake new or different munici- Government, pal Municipal services.” New Commission on (Sec- Proposed Local A Optional Government: Charter Plan Self (1950). Report) 2 Report goes ond on to describe the “New enjoyed by municipalities adopt Powers” that elect to one of the plans four contained in the Act: grant governed The act would broad new powers municipalities by any forms: optional (1) general The new stated in are terms rather than enumer- powers by specific so as to the maximum ation, home rule under the new Constitution. provide (2) legal The of the new Constitution intended to broaden the provisions powers government given legislative local are effect. (3) subject Although government still remains to the control of the municipal Legislature legislative Constitution, as the new control is in required by expressed a broad and authorization which leaves the widest discretion with complete possible organization each to determine the of its the municipality departments, compensa- subject range services, of its and character tion of its officers and employees, general all law which to municipalities. apply provisions [Id. 3.] noted, optional forms of Act creates four As the Faulkner mayor-council plan, 40:69A- municipal government N.J.S.A. —the to-98; -67; plan, council-manager N.J.S.A. 40:69A-81 31 to -132; and the municipality plan, 40:69A-115 to the small N.J.S.A - plan, 40:69A-149.1 to mayor-council-administration government up “divides Each Faulkner Act form of 149.16. differently, rights’ under the [afforded Constitution] ‘bundle of meeting in the needs of presumably so as to be the most effective Practice, Jersey supra, municipality’s inhabitants.” 34 New City mayor-council plan. adopted § has the Faulkner 4.15. distinguishable options from the other because it is plan That is gubernatorial “quite presidential or form its concen- close to the highly-visible, independently- power tration of the hands of a power who has substantial over the ad- elected Chief Executive mayor mayor-council plan is ministration.” Ibid. The a Faulkner four-year popular vote to a term. N.J.S.A. 40:69A-33. elected elected, to, mayor empowered among things, is other Once municipal “[supervise, departments control all direct and prepare budget, “[supervise governments,” and submit the annual custody municipal property, and of all institutions and the care contracts, requir- agencies,” “[s]ign all bonds or other instruments municipality,” “[negotiate ing the consent of the contracts departments, municipality,” appoint the of all administrative heads approve municipal 40:69A- or veto all ordinances. N.J.S.A. addition, 40, -41. In if council members desire to communi- elected mayor-council municipality, municipal employees in a cate with “solely through mayor designee.” they must do so or his N.J.S.A. 40:69A-37.1. mayor’s mayor-council authority under the Faulkner Act’s is, therefore, substantial, plan no

plan accident this “[i]t adopted by virtually Jersey’s largest munici- has been all of New visible, a need for effective palities places which there is — leadership pursue programs support full of the admin- with the Practice, supra, § istration.” 34 New 4.16. It is also no Legislature passed Act, accident that when the the Faulkner it felt compelled qualify grant to powers municipalities the broad generally, mayors specifically, heightened and to awith standard responsibility. Jersey City, of ethical in office as in large adopted other cities that have the Faulkner is one of the State, powerful municipal most pursuant offices in this created designed provide a law that was' municipalities unique with authority flexibility organize municipal governments ac- cording preferences. persuaded to local We are that the Act’s requirement disqualification municipal from office for those persons involving convicted of turpitude,” “crimes moral N.J.S.A. 40:69A-166, “reasonably suitably tailored to further [the] legitimate governmental objeetive[ ensuring powers that the ]” granted by Matthews, conscientiously. the Act are exercised su- pra, 84 N.J. A.2d 1011.

Our conclusion is reinforced consideration of the his relationship torical between N.J.S.A. 40:69A-166 and the forfei ture statute the criminal At code. the time the Faulkner Act passed, provided was the forfeiture statute as follows: holding an Any office, elective or under this or person State, appointive, any county guilty, who shall thereof, be convicted or who shall non municipality upon, plead allegation charging vult or nolo an to, contendere indictment or such with person high touching the commission of a misdemeanor or misdemeanor the administra- office, tion of his or which involves moral shall forfeit such office and turpitude, cease to hold the same from the date of such conviction or of such as entry plea aforesaid. § 1.] c. 1913, 74, [L. Thus, passed, at the time the Faulkner Act was the forfeiture apparently person position, statute mandated that a McCann’s involving turpitude” who committed an offense “moral that result- forfeiture, precluded ed would holding specific be again. provision That of the forfeiture statute would have produced the same result as now confronts McCann under the Faulkner Act. To conclude that the Faulkner Act would have been adopted, constitutional when it was but was then uncon- rendered Legislature stitutional scope when the narrowed the of the forfei- form, present by enacting 2C:51-2 its ture statute losing A not run the risk of peculiar. state “need would indeed be failed, through simply it [legislative] scheme because an entire otherwise, every might conceiv- to cover evil inadvertence or Comm’rs, v. Bd. Election ably attacked.” McDonald have been (1969).Rather, 808-09, 1404, 802, 22 2d 89 L.Ed. 739 394 U.S. S.Ct. time, addressing step itself to legislature may regulate “one at a a legislative phase problem which seems most acute of the Inc., Optical 348 U.S. 75 S.Ct. mind.” Williamson v. Lee (1955). 461, 465, Legislature’s action in 99 L.Ed. for amending cannot serve as a basis render- the forfeiture statute clearly Act ing provision a of the Faulkner that unconstitutional prior Legislature’s to the action. was constitutional Finally, argument that 40:69A- we note the dissent’s N.J.S.A because, although interest it support 166 does not a rational state applied powerful public offices such as might be rational as City, applies Mayor Jersey the statute extends further and of jurisdictions, including municipal positions in Act all Faulkner unique authority. Post positions that do not involve the exercise of 338-39, advancing A.2d at In that 167 N.J. at 1139-40. flexibility unprecedented in argument, the dissent discounts the municipal government Faulk organizing operations that the municipal that Act on officials at the level. We find ner bestowed higher accompa Legislature’s insistence that ethical standards organization ny powers of is a reasonable one. On more those level, however, emphasize running was not we that McCann basic council, mayor in a municipal a seat on a or for the office mayor’s relatively municipality powers are limited. where the Jersey sought City, a election to the office of McCann municipality power the maximum on its chief execu that bestows by that is authorized statute. We are mindful of the tive office might pose closer consti concern that the Faulkner Act dissent’s offices, applied municipal questions tutional as to less influential only before us. The Faulkner Act but we need decide the case right equal protection of the laws. does not violate McCann’s

IV order, affirm, April In we as accordance with our modified, Appellate judgment of the Division.

COLEMAN, J., concurring part dissenting part. in opinion I determination in Point III of its concur the Court’s Faulkner petitioner Gerald McCann is barred 40:69A-166, becoming a candidate for the office of N.J.S.A. City Jersey City. disagree I Mayor of with the Court’s II conclusion Point the New Code Criminal 2C:51-2d, disqualification provision, does not Justice’s would, Mayor. I similarly running him from for the office of bar therefore, judgment Appellate barring affirm the Division substantially candidacy statutory for the his under both schemes expressed by Judge opinion. reasons Petrella his well-reasoned LaVECCHIA, JJ., concurring dissenting. LONG and judgment Appellate Division We would reverse the substantially persuasive opinion expressed for the reasons in the judgment plaintiff, Judge granted D’ltalia. trial court The City process in directing the Clerk to accordance Gerald McCann applicable petition law to be a candidate for with McCann’s 8, Jersey City May nonpartisan election. The court conviction, serving although concluded that McCann’s earlier while mayor Jersey City in his from as warranted removal office, permanent disqualification a under the it did not work Act, According to the trial court that Forfeiture N.J.S.A. 2C:51-2. disability conviction is for “an is reserved for those whose criminal office, public position involving touching on his or offense or employment.” The court found that because the N.J.S.A 2C:5-2d. crime were committed before acts that formed the basis of the his mayor, his crime did not “touch” or “involve” McCann became office. urged grounds as court also considered the alternative

The trial provision of holding public office: the forfeiture a to McCann’s bar provides: 40:69A-166. That section the Faulkner involving shall be a or offense moral turpitude convicted of crime Any person ineligible office, municipality to assume any municipal position employment governed conviction thereof while office shall act, to this upon pursuant forfeit his office.... provi concluded that the Faulkner Act’s forfeiture The trial court Jersey City is a Faulkner Act applicable on its because sion is face certainly turpi municipality crimes involved moral and McCann’s However, City City, 84 relying on Matthews v. Atlantic tude. (1980), Gangemi Rosengard, v. 417 A.2d 1011 N.J. (1965), A .2d 665 the court concluded that N.J.S.A N.J. applied to The statute is unconstitutional as McCann. 40:69A-166 subjects equal protection because it candi was found to violate mayor municipalities eligibili for in Faulkner Act to stricter dates municipalities ty requirements applicable than in other with no are persuasive justification disparate for the treat discernible and ment. Manzo, mayor, appeal by a rival candidate for

On Louis Notwithstanding grounds. on both Appellate Division reversed place conduct took before he became that McCann’s criminal mayor, court concluded that his conviction nonetheless public because the conviction occurred “touched on his office” held office and because his offenses were of while McCann such character as to “demonstrate his untrustworthiness and thereby rendering “suspect disrespect government agencies,” any to the State or its subdivisions future service McCann N.J.Super. (App.Div. capacity.” 338 509 at 2001). Appellate Division also concluded the Faulkner Jersey City. again holding public office in Act bars McCann emergent appeal by The matter comes before the Court on an rejected appeal by McCann. The Court has his the slimmest person majority margins, Two of the three three two. members rejected argument ineligible to be a have the that McCann is mayor Jersey City by dint of for the office of the candidate disposition Forfeiture N.J.S.A. We concur in their 2C:51-2d. dissent, however, holding of that issue. We from the of the majority provision disqualifies that the Faulkner Act’s forfeiture McCann, time, holding public employment for all office or only municipalities in--and Act in-Faulkner because his criminal turpitude. activities constituted crimes moral We write to add following. the

I. The contention is that a criminal act must be considered criminality during “touch” an if office the conviction of occurs felon, occupancy public by underlying if and the crime adversely integrity is such as to reflect so on the character and person the actor that no reasonable would be confident in his ever again wielding government power. argument That flawed respects. several

First, argument language, design, does not fit the legislative underlying intent N.J.S.A. 2C:51-2d. N.J.S.A. 2C:51-2 requires the of office forfeiture when the holder is convicted”of a dishonesty, place crime of whether or not the criminal act takes 2C:51-2a(l). during period By holding. of office its N.J.S.A. terms, person own convicted must be office at the time of Otherwise, nothing conviction. there is to forfeit. That is the extent congruity holding of office and conviction in N.J.S.A. 2C:51- nothing language 2. There is the statute to indicate that Legislature holding intended that the coincidence of office consequence beyond present conviction should have forfeiture of office, namely ineligibility the future to hold office under subsec- Legislature tion d. That is not what the intended its use of the phrase “involving touching or on his office.” legislative using phrase obviously intent was dishonesty differentiate between those convicted of crimes of office, 2C:51-2a(1), during upon who forfeit that office conviction, involving touching and those “convicted of an offense or office, position employment,” only such who not forfeit that 386 2C:51-2a(2), conviction, but are thereafter upon office, holding public N.J.S.A. 2C:51-2d. The again

precluded from phrase “touching on expansive reading of the Appellate Division’s 2C:51-2a(2) surplusage mere public office” renders N.J.S.A. his dishonesty a crime of actual it not matter whether because would if the same trappings of office its execution ly employed the holding future office permanent preclusion from result obtained: obviously Legislature intended The under N.J.S.A. 2C:51-2d. felons, those who commit distinguish two classes between acts, must use their office to do so. We and those who dishonest it the distinction respect legislative classification because Wey Taxpayers and real. Ass’n makes seems both sensible 6, 43, Weymouth Township, 80 364 A.2d Township v. N.J. mouth nom., (1976), Weymouth v. Town cert. denied sub Feldman 1016 (1977) L. Ed. 2d ship, 97 S. Ct. 52 373 430 U.S. always required and has a real (concluding that “New govern and the relationship between the classification substantial serves”). purpose purportedly which it mental obliterate, Yet, blur, the distinction. that is decline to indeed We which, note, Appellate holding, we of the Division’s result prior in Moore v. Youth Correctional resorts to our decision Institute, 256, 269, (1990), support for its 574 A.2d 983 as 119 N.J. it, view, although reading a fair of that case reveals like State (Law Div.1983), Botti, N.J.Super. 458 A.2d 1333 v. 189 Instead, entirely distinguishable on its facts. we read indeed plain meaning. v. sensibly, give and effect to its Merin statute (1992) 430, 435, (stating that Maglaki, 126 N.J. legislative intent “primary for the is to ‘effectuate the task Court objects language sought to be light of the used and the ”) 508, 514, Maguire, 423 A.2d (quoting achieved’ State v. 84 N.J. Franklin, (1980)); Borough v. and Council Watt (1956) 274, 277, (declaring that “it is the A.2d 499 N.J. legislature of the function of the court to ascertain the intention meaning apply and to it to the facts plain from the of the statute them”). Justices as it finds We therefore concur with Stein concerning application of Forfeiture Act. Zazzali

II. disqualification provision provides: of the Faulkner Act involving convicted of a crime or moral shall be turpitude Any person offense ineligible office, to assume in a any municipal position employment municipality governed act, this conviction thereof while in office shall pursuant upon forfeit his office; however convicted of such an offense who provided, any person degree appointing has achieved a of rehabilitation which in the opinion subject Commission, and the Civil Service as to to the Civil authority employment Service indicates his would not be law, with the welfare employment incompatible objectives governmental agency, of and the aims and of the society be may eligible considered for in or be continued apply employment Any employment. who shall violate 17-14, 17-15, sections or 17-16 of person provisions jurisdiction this article shall conviction thereof a court of forfeit upon competent his office. added) (footnotes omitted).] (emphasis [N.J.S.A. 40:69A-166 1950, applies only The Faulkner which was enacted 127 municipalities. inapplicability of the State’s 566 Given the the prohibition holding, Forfeiture Act’s on future office McCann municipalities, assuming could be a candidate the other 439 he requirements. upon satisfied other The State is thus called explain justification differing the reasons and for the treatment municipalities. between Constitution, heightened eligibility

Under our because a bar to vote, holding impacts indirectly right for office on the proffered justification supported by something must be more than rationality.” City City, supra, “mere Matthews v. Atlantic 84 Rather, “requirement N.J. at 417 A.2d 1011. or restriction reasonably suitably for for candidates elective office must be legitimate governmental objectives.” tailored to further Id. at 1011; Gangemi Rosengard, supra, 417 A.2d see also v. 44 N.J. at (striking equal 207 A.2d 665 as unconstitutional under the clause, protection requirement Faulkner Act that elected officers registered in cities of the first class be voters for at two least years, municipali- whereas elected officers other Faulkner Act subject requirement). ties were not to such a durational That is equal protection employ test we under our State Constitution. (1985) Kimmelman, 552, 567, Greenberg v. 99 N.J. balance, (stating striking we have “[i]n considered 338 governmental which the right, the extent to the affected

nature of it, for the restric need upon intrudes restriction 88, 97, L.M., N.J.Super. 550 tion”); 229 Interest in the State an (stating “focus is on whether (App.Div.1988) A.2d suitably furthered appropriate governmental interest of’) (citing complained in the action disparate treatment embodied 355, 368, Servs., 107 N.J. Department Human Barone v. (1989). denied, (1987)), 555 A.2d A N.J. .2d 1055 certif. proper is critical and Obviously, applying the standard could make a differ- in Matthews standard enunciated enhanced However, proffered justifica- because the specific in a case. ence eligibility does for for office Faulkner Act’s standard tion for the employed test stringent rational basis not even meet the less Constitution, analyze the case we will States under the United perspective of both standards. from the

III. inquiry whether there is a rational basis focus of our thus is persons of crimes of moral precluding convicted to be advanced municipalities holding in Faulkner Act while turpitude from government. persons in other forms of permitting such to serve essentially adopted disqualification provision Act The Faulkner Indeed, many years. at the prevalent in our law for that had been broadly adoption, Service Law of Faulkner’s the State Civil time testing disqualify to for or to the Chief Examiner authorized certify any person “guilty of a crime” or “infamous or refuse has been dismissed from notoriously disgraceful conduct” or “who (L. 1930, 176, delinquency.” 11:9-6 c. public for N.J.S. service 19). Likewise, persons disqualification provisions barred specific § becoming turpitude from a member of a crime of moral convicted (1945). (L. 1917, c. police department. N.J.S. 40:47-3 of a or fire 3). Thus, XVI, § Faulkner was not an enactment that Art. “began” problem incremen- past and to address broke with the merely incorporated long-standing notions of who should tally. It disqualified public from office. be contrary, Act, On the it was eighteen the Forfeiture enacted Faulkner, years part after as of a full scale revision of the criminal code, that past. first broke with provides: The Forfeiture Act holding A person any office, or position, elective or employment, appoin- government agency

tive, under the of this State or or subdivision any political thereof, who is convicted of an offense shall forfeit such office or if: position (1) involving He is convicted under the laws of this of an State offense dishonesty degree or of a crime of the third or above or under the laws of another state or of the United States of an offense or a which, crime if committed this would State, be such an crime; offense or (2) involving touching He is convicted of an offense or such office, or position or employment; (3) The Constitution or a statute other than the code so provides.

[N.J.S.A. 2C:51-2.] 2(d) importantly, More provides subdivision perpetual dis- qualification holding public from office: In addition to the punishment for the and prescribed offense, the forfeiture set

forth in subsection a. of N.J.S.A. 2C:51-2, convicted of an any person offense involving touching or on his public office, position shall be forever employment holding disqualified office or any honor, trust or position under this profit State or of its administrative or subdivisions. political added).] (emphasis [N.J.S.A. 2C:51-2d The Forfeiture Act is a legislative judgment careful that modu- prior by lated law distinguishing justifies what forfeiture from justifies what disqualification. That it was intended to have broad effect is revealed part parcel the fact that it is of Title 2C obviously govern is meant persons all convicted of all Indeed, upon enactment, criminal offenses. its exception with the disqualification the Faulkner all other repealed. laws were What occurred here seems obvious to Legislature simply us. The overlooked Faulkner when it enacted the Forfeiture Act~no more and no less.

IV. attempting In justify disqualification Faulkner’s provision, majority points only bottom purported justification: one great power mayors municipalities. Faulkner Act Al- though may it well be that some municipalities, Faulkner Act mayor in some other forms of power exceeds that argument Jersey mark.

government, is wide of the All “New municipalities enjoy powers basic and have the same same Practice, responsibilities.” 34 Local Government basic New (Michael Pane) (rev. 1999). Law, 1.8, Although § 3d ed. A. government, within and without Faulkner Act the various forms power differently, municipalities, legislative allocate and executive collectively power remains the same. the reservoir of Moreover, mayoral powers unique not to greater are Faulkner forms, is, strong mayor Act some Faulkner Act forms have a plan); (mayor-council weak N.J.S.A 40:69A-31 to -67 council. (small municipality plan); to N.J.S.A 40:69A-115 -132 N.J.S.A (mayor-council-administrator plan). 40:69A-149.1 to -149.16 Some mayor. strong Faulkner Act forms have a council and weak Likewise, (council-manager plan). 40:69A-81 -98 some mayor strong Act forms a and weak council. non-Faulkner have (towns); (cities); to -7 40A:61-2 to -7 N.J.S.A. 40A.-62-1 N.J.S.A (boroughs). to -7 non-Faulkner Act forms N.J.S.A. 40A:60-1 Some mayor. strong have a council and a weak N.J.S.A. 40:79-1 to -6 (commission (municipal manager); -3 N.J.S.A. 40:70-1 to form of government); (villages); N.J.S.A. 40A:63-1 -7 N.J.S.A. 40A:63-8 short, (townships). power distinguishes specific In no feature all all government Faulkner Act forms non-Faulkner Act forms.

Further, specific government if even a Faulkner Act form of is council, “strong” mayor, correspondingly has one it a “weak” yet holding eligibility requirements for remain same possible justify both What can be advanced to offices. rationale legislative judgment heightened eligibility requirements occupy necessary seeking are for those a “weak” council office seeking municipality occupy in a Faulkner Act but not those “strong” position council in other Faulkner and non-Faulkner government? municipal is forms answer none. legislative objective In our view there no discernible to be by precluding persons advanced of crimes of moral convicted turpitude holding only municipalities. Faulkner Act differing suitably, treatment appropriately does not and in an fashion, legislative tailored advance a purpose, rational as it must indirect, Matthews, impact, right its albeit affects the to vote. supra. it Nor does meet even lesser rational basis standard. heightened eligibility The Faulkner Act’s standard is unconstitu- plaintiff applied tional as view. our

V. For expressed by Judge those reasons and for the reasons DTtalia, respectfully we dissent. STEIN,

For as COLEMAN affirmance modified—Justices ZAZZALI —3.

For reversal —Justices LONG and LaVECCHIA —2. A.2d GALIK, SIMONE THE EXECUTRIX OF ESTATE GA OF VIVIAN LIK, MOTHER, GALIK, HER AND DECEASED SIMONE INDI VIDUALLY, PLAINTIFF-APPELLANT, v. CLARA MAASS MED CORPORATION, SERVANTS, ICAL CENTER A HOSPITAL ITS AGENTS, EMPLOYEES, FUSCO, M.D., OR JOSEPH M. RICH (FICTITIOUS ROE, ROE, ARD JANE AND DOE MARY NAMES INTENDING TO DESIGNATE PHYSICIANS NURSES AND/OR

Case Details

Case Name: McCann v. Clerk of City of Jersey City

Court Name: Supreme Court of New Jersey

Date Published: Jun 1, 2001

Citation: 771 A.2d 1123

Court Abbreviation: N.J.