Russo v. Walsh
| Decision Date | 25 April 1955 |
| Docket Number | No. A--108,A--108 |
| Citation | 18 N.J. 205,113 A.2d 516 |
| Parties | Louis J. RUSSO, Plaintiff-Appellant, v. Harry A. WALSH, Chief Examiner and Secretary of State Civil Service Commission, New Jersey State Department of Civil Service and William F. Kelly, Jr., President of the State Civil Service Commission, New Jersey Department of Civil Service, Defendants-Respondents. |
| Court | New Jersey Supreme Court |
George Pellettieri, Trenton, argued the cause for appellant.
Harold Kolovsky, Asst. Atty. Gen., argued the cause for respondents (Grover C. Richman, Jr., Atty. Gen., attorney.)
The opinion of the court was delivered by
The primary inquiry here is whether or not the power conferred upon the Governor by Art. V, Sec. IV, par. 5, of the Constitution of the State of New Jersey, to remove state officers and employees from their positions, includes the power to suspend them pending a hearing. We think it does.
Judgment was entered in the Superior Court, Law Division, 31 N.J.Super. 558, 107 A.2d 528 (1954), dismissing action in lieu of prerogative writ brought by the plaintiff, Louis J. Russo, against Harry A. Walsh, Chief Examiner and Secretary of the State Civil Service Commission of New Jersey, and William F. Kelly, Jr., President of the Civil Service Commission.
Russo, a disabled war veteran, had for some time been employed as Assistant Chief Examiner in the New Jersey State Department of Civil Service with permanent civil service status in the classified service. From March 7, 1951 until April 18, 1954 he was the Chief Examiner and Secretary of the Civil Service Commission. Thereafter he returned to his permanent position of Assistant Chief Examiner.
By Executive Order No. 5, dated June 18, 1954, the Governor of the State of New Jersey, purporting to act under the powers granted him in Art. V, Sec. IV, par. 5, of the Constitution, suspended plaintiff from his position of Assistant Chief Examiner pending a hearing on charges filed against him of malfeasance and misfeasance in office during the period of his employment as Chief Examiner and Secretary.
The offense charged against him was that from July 1, 1948 to June 30, 1953, while employed as Assistant Chief Examiner and later, as Chief Examiner and Secretary of the Civil Service Commission, he submitted invoices to the Division of Employment Security in the Department of Labor and Industry for payment for alleged overtime services in the amount of $1,000 per year, in violation of N.J.S.A. 11:2--2, which prohibits the Chief Examiner and the Secretary of the Commission from holding any 'other public office or employment.'
Russo was duly served with a copy of the executive order on June 19, 1954, and on Monday, June 21, 1954, he presented himself to his superiors, asserting he was ready, willing and able to continue in the performance of his regular duties, but he was not permitted to resume his employment.
Thereafter, on June 29, 1954, he filed a complaint in lieu of prerogative writ in the Law Division, attacking the authority and jurisdiction of the Governor to suspend him from his position pending notice and hearing of charges preferred against him. He sought judgment against the defendants directing them to reinstate him in his position and to include him on the payroll submitted by them so he could receive his regular salary.
The answer filed by the defendants denied the invalidity of Executive Order No. 5, contending it was issued pursuant to and as an integral part of the removal proceedings instituted against the plaintiff by the Governor under Art. V, Sec. IV, par. 5, of the New Jersey Constitution. The answer further alleged the court had no jurisdiction, the complaint did not state a cause of action, and the plaintiff had failed to exhaust the remedies available to him.
The matter came on for hearing on an agreed statement of facts, the trial court dismissing the complaint and holding the power to remove granted by the Constitution of 1947 under Art. V, Sec. IV, par. 5, includes the power to suspend and that the power to remove was not confined to a charge arising out of conduct committed while holding the position from which suspension was made.
From the judgment so entered, Russo appealed to the Appellate Division, and we granted certification on our own motion prior to argument.
At the outset, we are confronted with challenges to the jurisdiction of the Law Division and of this court, both procedural and substantive, to review the cause at its present stage. Procedurally, it § urged the appellant has invoked the wrong remedy; it is said he should have sought relief initially in the Appellate Division under R.R. 4:88--8 by appeal from a 'final decision or action of any state administrative agency,' being the remedy specified by N.J.S.A. 52:14--17.2, dealing with review of removal orders promulgated by the Governor.
Substantively, defendants contend that under the constitutionally decreed separation of powers of the coordinate branches of government, see Art. III, par. 1, the judicial branch cannot, in this indirect manner, review an executive order of the Governor, even though Art. V, Sec. IV, par. 5, specifically provides for judicial review, on the law and the facts, of the manner in which the Governor has exercised his removal power in a specific case.
However, in view of the importance of the constitutional question presented and the manner of its disposition, we find it unnecessary to pass upon the subsidiary questions presented but pass directly to the merits of the cause.
Art. V, Sec. IV, par. 5, provides as follows:
The delegates to the 1947 Convention, adhering closely to our traditional concept of the separation of powers among the three departments of government, legislative, executive and judicial, stressed the thought that the primary responsibility for the conduct of the executive and administrative branches of the government resided in the Governor, and accordingly, for the first time, conferred upon the chief executive the power to meet and discharge the recognized responsibility by investigating the conduct of state employees and granting him the right to remove for cause shown.
The dual power of investigation and removal was but one facet of the sweeping revision of the powers and functions of the executive branch of the State Government which was thought to be necessary. The Convention Committee endeavored:
'* * * to bring the powers of the Governor into line with the popular impression of the powers of that office and to provide for a centralization of authority and power in the office of the Governor under reasonable checks and balances, so that the chief executive may be truly responsible to the people for the conduct of the executive branch of the government.' Report of the Committee on Executive, Militia and Civil Officers, 2 Proceedings of the Constitutional Convention of 1947, 1122.
It noted that:
'While all three branches of the government should be improved and the responsibility more clearly defined, the greatest need has been to raise the relative position of the Executive, which under our present Constitution (the 1844 Constitution) has been the weakest of the three branches * * *.' Ibid.
But aside from the inferences, if any, to be drawn from the above statements of the draftsmen, the proceedings of the Constitutional Convention of 1947 are barren of anything shedding light on the specific question before us. Appellant relies heavily upon and deems the absence of specific reference to the suspension power in the Convention debates and in the Constitution itself to be of prime significance. It is vigorously urged that the suspension of a public employee is a matter wholly distinct and separate from his removal, and the power to suspend does not exist unless specifically granted.
Appellant, however, fails to distinguish between suspension of definite duration used by itself as a form of punishment for misconduct, and suspension as a means of rendering impassive a public employee as an incident to and pending his trial for misconduct. The power to discipline through suspension may frequently be a matter distinct from the power to remove from office, although generally the power to suspend is legally viewed as included within the power to remove since it is merely a lesser form of punishment. See Burnap v. United States, 252 U.S. 512, 515, 40 S.Ct. 374, 64 L.Ed. 692, 694 (1920); 43 Am.Jur., Public Officers, sec. 242.
But we are not dealing here with a disciplinary suspension disassociated from pending proceedings; under the terms of Executive Order No. 5, appellant's suspension was temporary, 'pending the hearing and determination of charges against him of malfeasance and misfeasance in office.'
Shortly before the adoption of the 1947 Constitution, the question whether a statutory grant of the power to remove an employee included the power to suspend him pending hearing was passed upon by the former Supreme Court in Vanderbach v. Hudson County Board of Taxation, 133 N.J.L. 499, 45 A.2d 142 (Sup.Ct.1946), affirmed 135...
To continue reading
Request your trial
-
State v. Musto
...until they expire or are superceded, altered or repealed by this Constitution or otherwise. This subject was discussed in Russo v. Walsh, 18 N.J. 205, 113 A.2d 516, where the court said: It is important to note that when the 1947 Constitution was drafted and debated in the Convention, the V......
-
Errichetti v. Merlino
...remain in full force until they expire or are superceded, altered or repealed by this Constitution or otherwise. In Russo v. Walsh, 18 N.J. 205, 211, 113 A.2d 516 (1955), the Supreme Court stated with respect to a case decision of our former Supreme Court in existence at the time the 1947 C......
-
Trap Rock Industries, Inc. v. Kohl
...its employees or officers pending disposition of indictments or other charges where the public interest so requires. Russo v. Walsh, 18 N.J. 205, 212, 113 A.2d 516 (1955); De Marco v. Board of Chosen Freeholders of Bergen County, 21 N.J. 136, 139, 145, 121 A.2d 396 (1956); Winne v. Bergen C......
-
State Bd. of Medical Examiners v. Weiner
...public welfare prior to or during the pendency of charges and prior to actual hearing and disposition. It relies upon Russo v. Walsh, 18 N.J. 205, 113 A.2d 516 (1955), De Marco v. Board of Chosen Freeholders of Bergen County, 21 N.J. 136, 121 A.2d 396 (1956), and Graham v. City of Asbury Pa......