Salaries for Probation Officers of Bergen County, In re

• Decision Date: 07 June 1971
• Docket Number: COUNTY--1970--1971
• Citation: 278 A.2d 417,58 N.J. 422
• Parties: , 65 Lab.Cas. P 52,582 In re SALARIES FOR PROBATION OFFICERS OF BERGEN
• Court: New Jersey Supreme Court

Page 422

58 N.J. 422

278 A.2d 417, 65 Lab.Cas. P 52,582

In re SALARIES FOR PROBATION OFFICERS OF BERGEN COUNTY--1970--1971.

Supreme Court of New Jersey.

Argued April 5, 1971.

Decided June 7, 1971.

Edwin C. Eastwood, Jr., Asst. County Counsel, for appellant, Bergen County Bd. of Freeholders (Michael J. Ferrara, Bergen County Counsel, attorney; Edwin C. Eastwood, Jr., No. Bergen, of counsel; Ronald LoLordo, Asst. Bergen County Counsel, Hackensack, on the brief).

David S. Litwin, Deputy Atty. Gen., for respondents, Bergen County Judges (George F. Kugler, Jr., Atty. Gen., attorney; Stephen Skillman, Asst. Atty. Gen., of counsel; David S. Litwin, Trenton, on the brief).

Abraham L. Friedman, Newark, filed a statement in lieu of brief on behalf of respondent, American Federation of State, County and Municipal Employees, AFL-CIO, Local 1970, Bergen County Probation Officers Chapter (Rothbard, Harris & Oxfeld, Newark, attorneys).

The opinion of the Court was delivered by

MOUNTAIN, J.

On July 30, 1970 the Judges of the Bergen County Court, acting pursuant to N.J.S.A. 2A:168--8, entered an order fixing salaries, fringe benefits and working conditions for probation officers of Bergen County with respect to the years 1970 and 1971. The Board of Freeholders of Bergen County, which would be required to supply the funds to meet these obligations, took an appeal from this order and we certified the case on our own motion. R. 2:12--1.

Rather prolonged negotiations, commencing in December, 1968, preceded the entry of the order. During these negotiations the probation officers were represented by the American Federation of State, County and Municipal Employees, AFL-CIO, Local 1970, Bergen County Probation Officers Chapter, which was recognized as their exclusive representative for purposes of collective negotiation under the New Jersey Employer-Employee Relations Act. N.J.S.A. 34:13A--5.3. At first a single County Court Judge acted for all the judges. Later the Assistant Director for Probation in the Administrative Office of the Courts took his place. A representative of the Board of Freeholders attended certain of the negotiating sessions and was otherwise kept advised of the progress being made. An agreed stipulation of facts setting forth chronologically the course of negotiations forms part of the record and clearly establishes the absence of any factual dispute. Rather the County challenges the action taken on legal grounds of a fundamental nature.

In New Jersey probation officers are appointed by judges of the county court, N.J.S.A. 2A:168--5, who are also authorized to fix their salaries. N.J.S.A. 2A:168--8. A principal argument advanced by the County on this appeal is that this statutory arrangement should be declared illegal since it improperly interferes with the exercise of the judges' judicial duties. It is pointed out that as a result of this legislative scheme, the judges of the various county courts are burdened with the necessity of negotiating employment contracts, that this preoccupation may well diminish their judicial effectiveness and that furthermore it casts upon them responsibilities and tasks in no way germane to the judicial function. We disagree for the reasons to be discussed.

It may be conceded that the appointment of probation officers and the fixing of their salaries are not, at least in the purest sense, judicial acts. But the doctrine of the separation of powers was never intended to create, and certainly never did create, utterly exclusive spheres of competence. The compartmentalization of governmental powers among the executive, legislative and judicial branches has never been watertight.

It is simply impossible for a judge to do nothing but judge; a legislator to do nothing but legislate; a governor to do nothing but execute the laws. The proper exercise of each of these three great powers of government necessarily includes some ancillary inherent capacity to do things which are normally done by the other departments.

Thus, both the legislative department and the judicial department have certain housekeeping chores which are prerequisite to the exercise of legislative and judicial power. And, to accomplish these housekeeping chores both departments have inherently a measure of administrative authority not unlike that primarily and exclusively vested in the executive department. (Judges for Third Judicial Cir. v. County of Wayne, 383 Mich. 10, 172 N.W.2d 436, 440 (1969))

In appointing probation officers and in fixing their salaries the county judges act as legislative agents. Vanderwart v. Dept. of Civil Service, 19 N.J. 341, 117 A.2d 5 (1955); In re Application of Bigley, 55 N.J. 53, 57, 61, 259 A.2d 213 (1969); In Matter of Application of Schragger, 58 N.J. 274, 277 A.2d 212 (1971). Such legislative delegation to judicial officers is sanctioned by long usage and although the judiciary is not required to accept such delegation should it appear incongruous or unduly burdensome, Massett Building Co. v. Bennett, 4 N.J. 53, 61, 71 A.2d 327 (1950); In Matter of Application of Schragger, Supra, no such objection exists here.

It should be noted that our statutory scheme requires the county court judges to afford the board of freeholders of the county notice as well as an opportunity to be heard both as to the necessity of a particular appointment, N.J.S.A. 2A:168--5, and as to the amounts of annual salaries, N.J.S.A. 2A:168--8. These salutary provisions give to those who must find the means to pay an opportunity to make known and discuss any fiscal problems that the added expenditure may invite before the commitment is finally made. But the ultimate decision rests with the judges.

In a number of other states, statutes give judges the right to appoint probation officers, subject to the approval of the county. Such statutes have been uniformly interpreted to limit the power of the county effectively to disapprove to those cases where there has been a showing that the action of the judges was arbitrary, capricious or unreasonable. Absent such proof, the county has been denied the right to challenge successfully the action of the judge or judges. Noble County Council v. State, 234 Ind. 172, 125 N.E.2d 709 (1955); Smith v. Miller, 153 Colo. 135, 384 P.2d 738 (1963); Birdsall v. Pima County, 106 Ariz. 266, 475 P.2d 250 (1970). Other states, quite apart from statute, have held that courts possess the inherent power to appoint probation officers as well as other personnel necessary to a proper administration of justice and to see that they are paid. State ex rel. Weinstein v. St. Louis County, 451 S.W.2d 99 (Mo.Sup.Ct.1970); Commonwealth ex rel. Carroll v. Tate, 442 Pa. 45, 274 A.2d 193 (1971). Whether justification for the action be found in a statute, or in the inherent power of the courts properly to maintain themselves, we have no doubt that such power exists and that it will be set aside only upon a showing that its exercise was arbitrary, capricious or unreasonable.

It is next argued that in voting to expend funds to meet the retroactive salary increases to which the judges agreed, the freeholders would violate the Local Budget Law, N.J.S.A. 40A:4--1, et seq., which forbids the incurring of liabilities or the expenditure of money for which no appropriation has been made, N.J.S.A. 40A:4--57, and would likewise violate N.J.S.A. 2A:135--5 which makes such action a misdemeanor. There would indeed be such violations were the Freeholders to meet the required payments without first making the necessary appropriation. Although no appropriation for this expense appeared in the regular budget, the matter can readily be handled by the adoption of an emergency appropriation...