Calabrese v. Policemen's Benev. Ass'n, Local No. 76, Inc., of Springfield Tp.

• Decision Date: 21 February 1978
• Citation: 384 A.2d 579,157 N.J.Super. 139
• Parties: , 98 L.R.R.M. (BNA) 2272 Samuel CALABRESE, Dominick Olivo, James Hietala, Joseph Fusco, Andrew Calabrese, Richard Bromberg, and Edward Kisch, Sr., Plaintiffs-Appellants, v. POLICEMEN'S BENEVOLENT ASSOCIATION, LOCAL NO. 76, INC., OF the TOWNSHIP OF SPRINGFIELD, New Jersey, a branch of the New Jersey Policemen's Benevolent Association, Inc., and the Officers and Directors thereof, and the New Jersey State Policemen's Benevolent Association, Inc., Defendants.
• Court: New Jersey Superior Court

Page 139

157 N.J.Super. 139

384 A.2d 579, 98 L.R.R.M. (BNA) 2272

Samuel CALABRESE, Dominick Olivo, James Hietala, Joseph Fusco, Andrew Calabrese, Richard Bromberg, and Edward Kisch, Sr., Plaintiffs-Appellants, v. POLICEMEN'S BENEVOLENT ASSOCIATION, LOCAL NO. 76, INC., OF the TOWNSHIP OF SPRINGFIELD, New Jersey, a branch of the New Jersey Policemen's Benevolent Association, Inc., and the Officers and Directors thereof, and the New Jersey State Policemen's Benevolent Association, Inc., Defendants.

Superior Court of New Jersey, Law Division.

Feb. 21, 1978.

Joseph S. Seidel, Morristown, for plaintiffs-appellants.

Lawrence A. Whipple, Jr., Newark, for defendants (Zazzali & Zazzali, Newark, attorneys; Lawrence A. Whipple, Jr., on the brief).

FELLER, J. S. C. (retired, temporarily assigned on recall).

Plaintiffs Samuel Calabrese, Dominic Olivo, James Hietala, Joseph Fusco, Andrew Calabrese, Richard Bromberg and Edward Kisch, Sr., are employed as police officers by Springfield Township, Union County, New Jersey. For a varying number of years plaintiffs have been members of defendant New Jersey State Policemen's Association, Local No. 76, of Springfield Township, New Jersey (hereinafter "Springfield P.B.A."). On or about August 1, 1975 plaintiffs joined an organization known as the Fraternal Order of Police (hereinafter "F.O.P."). On August 18, 1975 the membership of the Springfield P.B.A. voted unanimously to expel plaintiffs from their organization for alleged violations of Art. VI, § 1 of their by-laws. This expulsion was upon the determination that the F.O.P. is an organization "the purpose of such organization being to represent policemen in matters affecting their economic welfare."

On August 25, 1975 the Springfield P.B.A. president, Vernon Pedersen, notified plaintiffs that their membership in the Springfield P.B.A. had been terminated. On September 9, 1975 an order was entered by the Superior Court, Law Division, Union County, restraining the Springfield P.B.A. from expelling plaintiffs and directing the organization to show cause on October 3, 1975 why the restraints imposed thereon should not be made permanent.

On October 6, 1975 an answer to the complaint and motions to vacate the temporary restraining order and for dismissal of the complaint were filed by the Springfield P.B.A. and docketed in the Office of the Superior Court Clerk. The matter was adjourned so that possibilities of settlement could be explored by the parties.

On October 20, 1975 the order expelling plaintiffs from the Springfield P.B.A. was suspended by President Vernon Pedersen with the consent and approval of the members of his executive board. Each plaintiff was notified by President Pedersen that charges had been preferred against him for violation of Art. VI, § 1 of the Springfield P.B.A. by-laws and that a hearing was to be conducted at Town Hall, Springfield, New Jersey.

Administrative hearings were conducted on November 3, 1975, January 26, 1976 and February 24, 1976. In compliance with the November 5 order of the court, plaintiffs were afforded the opportunity to be represented by counsel and a stenographic transcript of the proceedings were maintained. Pursuant to this order, filed January 24, 1977, the Law Division retained jurisdiction pending completion of the above-mentioned hearings.

Briefs were submitted by both plaintiffs and defendants to the Judiciary Committee of the State P.B.A. and a unanimous decision was reached by the latter body on June 29, 1977, upholding the said expulsions. Pursuant to the constitution and by-laws of the State Policemen's Benevolent Association, this decision was submitted to the State Board of Delegates for its consideration and final determination. On July 12, 1977 it ratified and confirmed the determination.

Plaintiffs contend that they have violated no rule or by-law of the P.B.A. which would justify their expulsions.

The by-law provision which plaintiffs have been found guilty of violating is Art. VI, § 1 of the by-laws of the Springfield P.B.A. Local. This provision reads as follows:

Any member of this Local who shall join or become a member of any organization in or outside of the police department of which he is a member, the purpose of each (sic) organization being to represent policemen in matters affecting their economic welfare, shall thereby automatically forfeit his membership in this Local and to all rights and benefits thereof. This section shall be inapplicable to the N.J. Chiefs Association, and the Inter-National Conference of Police Associations, Inc. (Emphasis supplied)

The State P.B.A. by-law, Art. VIII, § 1, is substantially the same. It reads as follows:

Any individual member of any local associations who shall join or become a member of any other police or law enforcement organization in or outside of the police department or law enforcement agency of which he is a member, the purpose of such organization being to represent policemen or law enforcement officers in matters affecting their economic welfare, shall automatically lose his membership in this Association and the Local Association, including all rights and benefits thereunder. This section shall be inapplicable to the N.J. Chiefs Association and the International Conference of Police Associations, Inc. In determining whether membership in any other police or law enforcement organization is violative of this section, any member may inquire of the President of this Association and any determination by this Association relating to any other organization shall be deemed final and binding therein. (Emphasis supplied)

The parties agree that there are no genuine issues of material facts involved. Thus, this court heard oral arguments on the plaintiffs' motion and defendants' cross-motion for summary judgment. Briefs were submitted and decision reserved.

I

Plaintiffs argued that the P.B.A.'s by-law provisions, for the violation of which they have been expelled from membership, violate constitutional standards of "equal protection" and statutory prohibitions against discrimination. Defendants contend, however, that the constitutional mandate of "equal protection under the law" is not applicable to a private association acting solely in an intrastate capacity. F.O.P. seeks to invoke the 14th Amendment protection by predicating "state action" upon an assumption by defendants' organization of certain functions which would otherwise allegedly be borne by the State. Counsel argued that the State would be forced to provide certain welfare benefits and insurance policies if the P.B.A. were not performing these functions.

This court agrees with the contention of defendants that the local and state P.B.A. are private associations acting solely in a private capacity. See Moose Lodge v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972). However, this court disagrees with defendants that it has no jurisdiction to hear this matter.

This is not a situation where a prerogative writ action has been instituted to decide the internal affairs of a private corporation rather than a public corporation. Rather in this case the writ of mandamus is used as an attempt to restore to membership those who have allegedly been expelled from a voluntary private organization. Trautwein v. Harbourt, 40 N.J.Super. 247, 123 A.2d 30 (App.Div.1956).

In Joseph v. Passaic Hospital Ass'n, 26 N.J. 557, 571, 141 A.2d 18 (1958), the court held that an irregular removal from connection with a private corporation will warrant the use of the writ of mandamus to effect a restoration of the expelled member to his corporate rights.

The court further held that in the modern view mandamus is not treated as a prerogative writ except where invoked in matters of direct concern to the public, but rather as an ordinary writ of right to remedy the inaction. In New Jersey it is an extraordinary remedial process to compel the performance of a specific act or duty.

Furthermore, when a properly qualified physician was improperly excluded from membership in a society for which he was qualified, mandamus was held to be the proper remedy. Falcone v. Middlesex Cty. Medical Society, 34 N.J. 582, 170 A.2d 791 (1961).

However, this relief has repeatedly been contingent upon the fact the party has exhausted his administrative remedies. Sienna v. Grand Lodge, etc., Order Sons of Italy, 11 N.J.Super. 507, 78 A.2d 610 (App.Div.1951).

It is evident that in this case plaintiffs have exhausted their administrative remedies in the local and state P.B.A. Therefore, under the circumstances this court has jurisdiction to hear the matter.

II

The issue involved in this litigation is whether or not plaintiffs, as members of the F.O.P., belong to a police or law enforcement agency the purpose of which is to represent policemen or law enforcement officers in matters affecting their economic welfare. Defendants contend that plaintiffs are so involved, and thus they automatically lose their membership in the P.B.A. in accordance with the by-laws set out above.

Plaintiffs deny this and further contend that Art. 1, § 5 of the constitution and by-laws of F.O.P. states that said organization is strictly nonpolitical, nonsectarian, and shall have no affiliation directly or indirectly with any labor unions, congress, federation or committees of like nature, or political action committees or similar organizations by whatever name known.

Plaintiffs further contend that in three municipalities in the State the F.O.P. has assumed the role of bargaining agent for the municipal officers, but that this does not make the F.O.P. an organization formed for the purpose of representing policemen in matters affecting their economic welfare.

Defendants contend that the members of the F.O.P. have every right to exert whatever influence they can to obtain economic benefits for the members and to exert...