Marranca v. Harbo

• Decision Date: 02 March 1964
• Docket Number: No. A--28,A--28
• Citation: 41 N.J. 569,197 A.2d 865
• Parties: Joseph T. MARRANCA, Plaintiff-Respondent and Cross-Appellant, v. Rolf T. HARBO, Director, Elizabeth Police Department and Department of Civil Service of the State of New Jersey (and 5 others), Defendants-Appellants and Cross-Respondents.
• Court: New Jersey Supreme Court

Page 569

41 N.J. 569

197 A.2d 865

Joseph T. MARRANCA, Plaintiff-Respondent and Cross-Appellant, v. Rolf T. HARBO, Director, Elizabeth Police Department and Department of Civil Service of the State of New

Jersey (and 5 others),

Defendants-Appellants and

Cross-Respondents.

No. A--28.

Supreme Court of New Jersey.

Argued Dec. 2, 1963.

Decided March 2, 1964.

John M. Boyle, Elizabeth, for defendant-appellant Harbo (Calvin J. Hurd, Elizabeth, attorney for defendant-appellant Leach; Seymour S. Lichtenstein, Elizabeth, attorney for defendant-appellant Tierney).

Marilyn H. Loftus, Deputy Atty. Gen., for defendant-appellant Department of Civil Service (William L. Boyan, Deputy Atty. Gen., on the brief; Arthur J. Sills, Atty. Gen., attorney).

Eugene J. Kirk, Elizabeth, for defendants-appellants Brennan, Jr., McMahon, Jr., and Schlicker.

Adrian M. Unger, Newark, for plaintiff-respondent and cross-appellant (Milton M. and Adrian M. Unger, Newark, attorneys).

The opinion of the Court was delivered by

WEINTRAUB, C.J.

This is a civil service case. Plaintiff, a patrolman in the Elizabeth Police Department, sued to compel the appointing authority to promote him to sergeant. During the pendency of the suit five other patrolmen were so promoted. Plaintiff then amended his complaint to challenge the validity of those promotions. The trial court held that although plaintiff could not compel his own promotion and hence must fail in his original complaint, nonetheless the pendency of his suit operated to prevent the other appointments. Marranca v. Harbo, 76 N.J.Super. 429, 184 A.2d 765 (1962). All parties appealed and we certified the matter before argument in the Appellate Division.

There are a number of procedural issues which we will pass to reach and settle the substantive controversy affecting as it does the operation of a police department.

On May 4, 1957 the Civil Service Department conducted promotional examinations. The employment list which thereby emerged, and which we will call the first list, became effective March 13, 1958 and was to continue for two years. Plaintiff, initially seventh on that list, moved to first when the six ahead of him were promoted.

On January 26, 1960 a vacancy occurred in the position of sergeant. On March 4, 1960 plaintiff petitioned Civil Service to compel his promotion, alleging the vacancy and that the list was to expire on March 12. Actually Civil Service had already extended the list for six months and apparently had also called for another examination. On May 6, 1960 the Civil Service advised plaintiff that 'The matter of appointment is one that rests entirely in the hands of the (appointing) authorities. The Civil Service Department cannot compel the authorities to make an appointment.' It explained that it could act only if the appointing authority appointed a temporary incumbent or notified it of the vacancy, neither of which events had occurred. Plaintiff did not seek a review of that disposition of his petition.

An examination was held on May 21, 1960. A new list, which we will call the second list, was promulgated on January 26, 1961. Meanwhile Civil Service had extended the first list for still an additional six months so that it was to expire on March 12, 1961. Plaintiff, who, as we said above, was at the head of the first list, was number 16 on the second list.

The complaint in this action was filed on March 7, 1961, five days before the first list, as finally extended, was to expire. On June 30, 1961 the appointing authority requested Civil Service to certify the names of eligibles for three appointments as sergeants. Civil Service certified the names, using the second list. Later the appointing authority decided to fill two more vacancies and further certifications were made, also from the second list. The five promotions mentioned above were made during the period of July 1961 to January 1962 from the names so certified.

As stated above, the trial court held that (1) plaintiff was not entitled to the relief he sought in his original complaint, but nonetheless (2) the mere pendency of his otherwise unsuccessful suit operated to continue the first list and thereby to invalidate the five promotions based upon the second list. We will consider these propositions in inverse order.

I.

Examinations are to be held from time to time 'to meet the needs of the service.' R.S. 11:9--1, N.J.S.A. 'Ideally, a competitive examination would be held every time a vacancy existed, thus assuring the selection of the most competent available person.' Kaplan, Law of Civil Service, p. 163 (1958). But as a practical matter an employment list must serve for some period, and hence our statute provides that the list shall endure for no less than six months nor more than three years with respect to the state service and for no less than one year nor more than three years for the local service, as the Civil Service Commission may provide. R.S. 11:9--10, N.J.S.A.; R.S. 11:22--32, N.J.S.A.

The Legislature has thus fixed the outer time limit of a list because a stale list disserves both the employer units and the coemployees whose eligibility to compete accrues after an examination. Indeed in New York it was held that the Legislature could not revive an expired list without doing violence to the principle of merit employment embodied in the Constitution of that State. Hurley v. Board of Education, 270 N.Y. 275, 200 N.E. 818 (Ct.App.1936). We refer to that decision without passing upon the meaning of our own constitutional provision, Art. VII, § 1, par. 2, to emphasize that both the public and the aspiring candidate would be unnecessarily hurt if the mere institution of a suit by someone extended a list for any and all purposes.

What then is the fair reading of R.S. 11:22--33, N.J.S.A. which deals with the impact of litigation upon the life of the employment list? It reads:

'When an eligible list has been established by the commission for any position or employment in the service of any county, municipality or school district, and a proceeding has been instituted in any court of record, with respect to the filling of any position or employment from such eligible list, such list shall not expire during the period in which such litigation is pending but shall be extended (1) from the time of the entry of judgment, (2) for a period of time equal to the period during which such proceeding or litigation was pending.'

We have numbered the two adverbial phrases for ease in referring to them.

The sense of the statute seems clear enough: if there is a suit 'with respect to the filling of any position or employment from such eligible list,' justice should not be denied because the list expired during the pendency of the litigation. A direct statement to that effect would have been clear, but the draftsman unfortunately resorted to the indirect and rather fictional approach which the lawyer sees so often. Instead of saying that the expiration of the list shall not defeat the right in suit, the draftsman wrote in terms of an extension of the list. Thus the second adverbial phrase provided that the list shall be extended 'for a period of time equal to the period during which such proceeding or litigation was pending.' But that phrase, unless qualified, would overshoot the mark, for it would continue an old list for purposes unrelated to the needs of the litigation, to the prejudice of the employer and new aspirants. Hence, we think, the draftsman inserted the first adverbial phrase 'from the time of the entry of judgment,' to express the thought that the fictional extension shall come into being only upon the entry of judgment and then only for the purpose of implementing the judgment.

A careful reading of the statute in the light of its basic policy leads to that view. The purpose to extend the list for the entire period of the litigation is fully expressed in the second adverbial phrase. The first adverbial phrase can have but one of two roles. It can relate either to the Length of the extension or to the Condition upon which the extension shall come into being. If the phrase relates to the Length of the extension, then it must mean that instead of extending the list 'for a period of time equal to the period during which such proceeding or litigation was pending' as the second adverbial phrase provides, the extension is for Twice that period. That of course is the view for which plaintiff contends. Thus if litigation consumes three or four years, the list will be continued during that period and thereafter for a like number of years. Moreover, the list may be extended endlessly by a succession of groundless suits. No one can think of a reason why the Legislature would want that extraordinary result, a...