| Gallena v. Scott

• Decision Date: 12 August 1947
• Citation: | Gallena v. Scott, 54 A.2d 481, 136 N.J.L. 70 (N.J. 1947)
• Court: New Jersey Supreme Court
• Parties: PAUL S. GALLENA, PROSECUTOR, v. I. GRANT SCOTT, CLERK IN CHANCERY OF NEW JERSEY, DEFENDANT

136 N.J.L. 70

54 A.2d 481

GALLENA

v.SCOTT, Clerkin Chancery.

Supreme Court of New Jersey.

Aug. 12, 1947.

Certiorari proceeding by Paul S. Gallena against I. Grant Scott, Clerk in Chancery of New Jersey, to review the action of the defendant in trying charges to dismiss the prosecutor from his employment or position as chief clerk of office of Clerk in Chancery.

Application denied.

George Pellettieri, of Trenton, for prosecutor.

Walter D. Van Reper, of Trenton, for defendant.

EASTWOOD, Justice.

This is an application for a writ of certiorari ‘to review the action of I. Grant Scott, Clerk in Chancery of New Jersey, in trying charges to dismiss prosecutor, Paul S. Gallena, from his employment or position as Chief Clerk of the Office of the Clerk in Chancery.’The principal ground advanced by prosecutor for the allowance of said writ is:

‘(a) That the said defendant, I. Grant Scott, Clerk in Chancery, is biased and prejudiced against deponent and had already prejudged the case as is shown by the fact that he had previously discharged deponent without any hearing and, therefore, cannot give deponent a fair and impartial trial as provided by the statute in such case made and provided.'

Prosecutor's employment is concededly ‘in the unclassified division’ under the provisions of the Civil Service Act, R.S. 11:4-4(m), N.J.S.A.His appointment is under the authority of R.S. 2:2-20, N.J.S.A., which admittedly vested the defendant with authority to make such appointment.The aforesaid power of appointment vested in the defendant gives rise to the corollary that the defendant is vested with the authority to discharge such employee.However, it is admitted that the prosecutor is an honorably discharged veteran of World War I and by reason thereof is entitled, under the provisions of R.S. 38:16-1 et seq., N.J.S.A., known as the ‘Veterans' Tenure of Office Act,’ to hold his position and employment with the defendant during good behavior, and may not be removed therefrom except after a fair and impartial hearing, nor for political reasons.

Prosecutor was appointed to said position effective January 1, 1945, on which date he commenced his employment and entered upon the performance of his duties.Defendant gave written notice to prosecutor on March 14, 1947, that his services as Chief Clerk of said office were terminated effective April 15, 1947.Defendant, upon being advised by the Attorney-General of New Jersey that, by virtue of the aforesaid ‘Veterans' Tenure of Office Act,’prosecutor could not be dismissed from his position except for good cause shown after a fair and impartial hearing, reinstated prosecutor to his position of Chief Clerk.His employment in said position continued until June 30, 1947.On April 25, 1947, prosecutor was served with a specification of charges against him, preferred by one Helen Ryan, an employee in the office of the defendant, Clerk in Chancery.The trial of said charges before the defendant was set down for May 8, 1947.At the hearing of said charges, and prior to the taking of any testimony, prosecutor entered a special appearance, and made a motion that the defendant disqualify himself ‘from trying said charges and that said charges be dismissed,’ on the principal ground that the defendant was ‘biased and prejudiced against deponent and had already prejudged the case as is shown by the fact that he had previously discharged deponent without any hearing and, therefore, cannot give deponent a fair and impartial trial as provided by the statute in such case made and provided.’Other grounds were advanced by prosecutor at the same time for the dismissal of said charges against prosecutor.Prosecutor's motion was denied, as the result of which this application for writ of certiorari emerges.At the argument of this application, it was conceded by counsel that, if defendant is disqualified and precluded from presiding over the trial of the prosecutor, there is no other official of forum by whom the prosecutor could be tried on the charges preferred against him.Such a situation has been dealt with in the case of Zober v. Turner, Director of Department of Public Safety, 106 N.J.L. 86,...