Appendix — Kirchgessner v. Wilentz

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 95-5328; No. 95-5329

ROBERT A. KIRCHGESSNER, JR.; MICHAEL

KRANYAK; ANDY KAFEL; JACK TOMASELLI;

CHARLES BENE; MAUREEN COOL; BILL SHEERAN;

PROBATION OFFICERS/FOP MEMBERS ON BEHALF

OF THEMSELVES AND ALL OTHERS SIMILARLY

SITUATED; THE PROBATION ASSOCIATION OF NEW

JERSEY,

Appellants,

Vv.

ROBERT N. WILENTZ; ROBERT L. CLIFFORD;

ALAN B. HANDLER; STEWART G. POLLOCK; DANIEL

J. O']HEARN; MARIE L. GARIBALDI; GARY S. STEIN,

IN THEIR OFFICIAL CAPACITIES AS JUSTICES OF

THE SUPREME COURT OF NEW JERSEY,

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF NEW JERSEY

(D.C. Civil Nos. 94-05973, 94-06375)

District Judge: Hon. Alfred J. Lechner, Jr.

Submitted Under Third Circuit LAR 34.1(a)

March 11, 1996

Before: NYGAARD, SAROKIN, Circuit Judges, and

ALDISERT, Senior Circuit Judge

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| JUDGMENT ORDER

After considering the contentions raised by appellant, it

ADJUDGED and ORDERED that the judgment of the

district court entered August 10, 1995 be and is hereby

AFFIRMED.

Costs taxed against appellants.

BY THE COURT

(s)

Circuit Judge

ATTEST:

(s)

Y. Douglas Sisk, Clerk

Dated: July 19, 1996

Costs Taxed in Favor of Appellee as follows:

Total for Brief .......... $118.80

Total $118.80

Certified as a true copy and issued in lieu

of a formal mandate on 8/29/96

Teste: (s)

Chief Deputy Clerk, U.S. Court of Appeals for the Third

Circuit

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UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Chambers of Martin Luther King Jr.

Alfred J. Lechner, Jr. Federal Building & U.S. Courthouse

Judge

28 April 1995

NOT FOR PUBLICATION

LETTER-OPINION

ORIGINAL FILED WITH THE CLERK OF THE COURT

David I. Fox, Esq.

Craig S. Gumpel, Esq.

Fox and Fox Esqs.

570 Broad Street

Newark, New Jersey 07102

(Attorneys for Plaintiff Probation Association of New Jersey)

A.J. Fusco, Jr., P.A.

150 Passaic Avenue

P.O. Box 838

Passaic, New Jersey 07055

(Attorney for Kirchgessner Plaintiffs)

Deborah T. Poritz

Attorney General of New Jersey

Robert H. Stoloff, AAG

Christian Arnold, DAB

Benjamin Clarke, AAG

R.J. Hughes Justice Complex

CN 112

Trenton, New Jersey 08625

(Attorneys for Defendants)

Re: Robert Kirchgessner, Jr.. Michael Kranyak,

Andy Kafel, Jack Tomaselli, Charles Bene,

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Civil Action No. 94-5973 (AJL)

Counsel:

This is a consolidated action consisting of an action

brought by seven named probation officers including one

Robert Kirchgessner, Jr.' (the "Kirchgessner Plaintiffs"), as

members of a putative class of all present and future probation

officers employed by the State of New Jersey, see Kirchgessner

Plaintiffs’ Verified Class Action Complaint and Jury Demand

(the "Kirchgessner Complaint"), and Exhibits A through C, and

an action brought by the Probation Association of New Jersey

("PANJ"), the employee representative for some 1500 probation

employees throughout New Jersey. See PANJ’s Verified

Complaint, Civil Action Number 94-6375 (AJL) (the "PANJ

Complaint"), and Exhibits A through D. The Kirchgessner

Plaintiffs and PANJ (collectively, the Plaintiffs") commenced

their actions against the seven justices (the "Chief Justice" and

the "Associate Justices" or the "Defendants") of the Supreme

Court of the States of New Jersey (the "New Jersey Supreme

1 The other named plaintiffs include Michael Kranyak,

Andy Kafel, Jack Tomaselli, Charles Bene, Maureen Cool and

Bill Sheeran.

Court"), in their official capacities, seeking by way of injunctive

relief to enjoin the policy of the New Jersey Supreme Court

prohibiting probation officer membership in police

organizations. Jurisdiction is alleged pursuant to 42 U.S.C. §

1983, 28 U.S.C. § 1343 and 29 U.S.C. § 102. Kirchgessner

Complaint, 11 2-3; PANJ Complaint, 9 4.

On 15 December 1994, the Kirchgessner Plaintiffs made

an application for an accelerated return date and a preliminary

injunction (the “Preliminary Injunction Application"). See

transcript of Preliminary Injunction Application, dated 15

December 1994 (the "Preliminary Injunction Application Tr.”).

Counsel for the Defendants was given notice of the Preliminary

Injunction Application on 14 December 1994. Id. at 3.

In light of the limited opportunity counsel for the

Defendants had to present opposition and because the

Kirchgessner Plaintiffs sought to enjoin the New Jersey

Supreme Court concerning an opinion issued more than five

months earlier on 8 July 1994 (the "8 July 1994 Opinion"),

attached as Exhibit A to the Kirchgessner Complaint and

Exhibit C to the PANJ Complaint, the Preliminary Injunction

Application was denied on 15 December 1994. Preliminary

Injunction Application Tr. at 3-5. The Kirchgessner Plaintiffs

were instructed to proceed with their motion for injunctive

relief pursuant to Rule 12N, Appendix N of the General Rules

Governing the United States District Court for the District of

New Jersey. Id, at 4-6.

On 3 January 1995, PANJ filed an order to show cause

(the "Order to Show Cause"), seeking a declaratory judgment,

preliminary and permanent injunction against the Chief Justice

and the Associates Justices in connection with the 8 July 1994

Opinion. A letter was forwarded to counsel for PANJ, with

copies to counsel for the Kirchgessner Plaintiffs and counsel for

the Defendants, dated 4 January 1995 (the "4 January 1995

Letter") stating:

As explained on 15 December 1994 to

counsel in the Kirchgessner matter, based upon

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the chronology of the events related to these

cases, as well as the timing of the applications

for injunctive relief, .. there is no reason to

proceed in an emergent manner. The relief

sought requires deliberate action and the

[D]efendants should have a fair and adequate

opportunity to respond to a request for

injunctive relief, as sought in each of these

matters.

4 January 1995 Letter at 2. Additionally, the 4 January 1995

Letter advised that it was the court’s inclination to consolidate

the matters and have the Kirchgessner Plaintiffs and PANJ

jointly brief the injunctive relief issue to avoid a duplication of

effort. Id.

At a status conference, dated 12 January 1995, the

action commenced by PANJ, was consolidated with the matter

filed by the Kirchgessner Plaintiffs. See Order of Consolidation,

dated and filed 12 January 1995. Thereafter, a return date and

hearing were scheduled for 17 April 1995 (the "17 April

Hearing"). See transcript of the 17 April Hearing, dated 17

April 1995 (the "17 April Hearing Tr.").

Currently before the court is the Plaintiffs’ motion for

a preliminary injunction to enjoin the New Jersey Supreme

Court., the Chief Justice and the Associate Justices, from

enforcing a policy, as articulated in the 8 July 1994 Opinion;

this policy prohibits probation officer membership in law

enforcement organizations. Also before the court is the cross-

motion by the Chief Justice and the Associate Justices to

dismiss for failure to state a claim, pursuant to Rule 12(b)(6) of

the Federal Rules of Civil Procedure ("Rule 12(b)(6)").?

2 In support of their motion for a preliminary injunction

and in opposition to the motion to dismiss by the Chief Justice

and the Associate Justices, the Plaintiffs submitted: PANJ’s

Supplemental Brief in Support of Order to Show Cause for

Preliminary Injunction (the "PANJ Brief")’ Brief in Support of

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For the reasons set forth below, the motion by Plaintiffs

for a preliminary injunction is denied. The cross-motion by the

Chief Justice and the Associate Justice to dismiss is granted as

to the Plaintiffs’ Federal causes of action; supplemental

jurisdiction is not exercised concerning the Plaintiffs’ state law

causes of action.

Facts

In October and November 1993, PANJ passed a

referendum to affiliate itself with the Policeman Benevolent

Association of New Jersey (the "State PBA"). PANJ Complaint,

1 28. In September of 1994, the State PBA agreed to become

Kirchgessner Plaintiffs’ Motion for a Preliminary Injunction (the

"Kirchgessner Brief"); Reply Brief of Plaintiff, Probation

Association of New Jersey’s Order to Show Cause for

Preliminary Injunction and in Opposition to Defendants’ Motion

to Dismiss Plaintiffs Complaint (the "PANJ Reply Brief:);

Reply Brief in Support of Kirchgessner Plaintiffs’ Motion for a

Preliminary Injunction and in Opposition to Defendant’s Motion

to Dismiss Plaintiffs’ Complaint (the “Kirchgessner Reply

Brief"); Kirchgessner Plaintiffs’ Appendix, Affidavit of Rich

Walen; Affidavit of Maureen Cool; Affidavit of George Christie

in Support of Plaintiff Probation Association of New Jersey’s

Order to Show Cause for Preliminary Injunction and in

Opposition to Defendants’ Motion to Dismiss Plaintiff's

Complaint; Plaintiff Probation Association of New Jersey’s

Appendix in Support of Order to Show Cause for Preliminary

Injunction and in Opposition to Defendants’ Motion to Dismiss

Plaintiffs Complaint, Volumes | and II.

In opposition to Plaintiffs’ motion for preliminary

injunction and in support of their motion to dismiss, the Chief

Justice and the Associate Justices submitted: Brief in Support

of Motion to Dismiss and in Opposition to Motion for

Preliminary Injunction (the "Defendants Brief"); Defendants’

Letter Brief Addendum in Support of Motion to Dismiss and

Opposition to Motion for Preliminary Injunction (the

"Defendants Addendum"); Affidavit of Mark A. Rosenbaum.

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affiliated with the PANJ, if such affiliation was not prohibited

by law. Id., 130. Additionally, many of the Plaintiffs were, at

that time, members of the Fraternal Order of Police (the

"FOP"). Kirchgessner Complaint, 11 9-14; PANJ Complaint, 1

32.

On 3 March 1994, in response to a request made by the

Chief Probation Officers’ Association, the New Jersey Supreme

Court announced it would review its longstanding policy

prohibiting probation officer membership in law enforcement

organizations, namely the State PBA and the FOP. See Letter

from the New Jersey Supreme Court, dated 3 March 1994 (the

"3 March 1994 Letter"), attached as Exhibit A to the PANJ

Complaint at 1. The New Jersey Supreme Court appointed

retired Superior Court Judge Paul R. Huot, as a special master

(the "Special Master"), to develop a factual record to aid in its

review of this matter. Id.

In the 3 March 1994 Letter, the New Jersey Supreme

Court explained: "In the meantime, the present policy remains

in effect: probation officers shall not become members of any

law enforcement organization... [For the time being the policy

shall not require those probation officers who are currently

members of [the] FOP to resign." Id. at 1-2. Additionally, the

3 March 1994 Letter stated: "The [Supreme Court of New

Jersey] wishes to make clear that it recognizes the probation

officers’ constitutional right to have representatives of their own

choosing in connection with collective negotiations." Id, at 2.

A. The Report of the Special Master

On 28 March 1994, the Special Master issued his report

(the "Report of the Special Master"), attached as Exhibit B to

the Kirchgessner Complaint and the PANJ Complaint,

concerning probation officer membership in law enforcement

organizations and the proposed affiliation of PANJ with the

State PBA. According to the Special Master, there were five

questions submitted by the New Jersey Supreme Court for

which it sought a factual record and recommended findings of

fact. Report of the Special Master at 2. These questions were:

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(1) What impact, if any, will

membership of probation officers in the [State

PBA] or the [FOP] have on the probation

function?

(2) Will the affiliation of PANJ with the

State PBA result in membership in the PBA of

probation officers who are members of PANJ?

(3) What is the present number of

probation officers who are members of the FOP

and what have their activities been in

connection with that organization?

(4) To what extent, if any, may

probation officers become involved in or be

seen as supporting political activity as a result of

membership in either [the State PBA] or [the

FOP]?

(5) Does the legislation (N.J.S.A. [§]

34:13A-5.3) prohibiting, subject to certain

exceptions, police officers from joining an

employee organization that admits non police to

membership [sic] imply any legislative policy

related to the potential impact on non-police

members of such an organization?

The Report of the Special Master explained:

This report does not and the assignment of th[e]

[S]pecial [Master was not intended to make

findings concerning the question of whether a

probation officer was a “law enforcement

officer", nor the question of the propriety or

right of any "union" to be a representative for

collective bargaining purposes of probation

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Officers nor the question of the right of

probation officers to join any particular union.

Id. (emphasis in original).

With regard to the impact of membership in police

organizations on the probation function, the Special Master

determined that the testimony he heard and the evidence

submitted "[were] not such that a true factual determination can

be made." Jd. at 3. According to the Special Master: "While

a far more detailed and intense study would be required to

come to a fully sustainable conclusion based upon empirical

data rather than opinions, it would appear that membership in

the [State PBA] or [the FOP] will not affect the functions of

probation.” Id. at 5 (emphasis added).

The Special Master explained that there "is no evidence

one way or the other" concerning the impact on the function of

probation, as well as on the impact on individual probation

officers from police officer association membership. Id. at 5-6.

Instead, the Special Master stated these determinations turn

upon the decision maker’s view of human nature

as able to withstand the subtle bribery of

friendship or steadfastness in living up to the

moral and ethical standards required by a

particular employment ... [and] [t]he belief in

the professionalism or lack thereof of probation

officers as a whole, or an individual probation

officer, in the performance of duty and

adherence to oath.

Id.

The Special Master was similarly unable to make a

generalized determination concerning the impact of joining a

police officer association upon the neutrality of probation

Officers. Id. at 7. The Special Master rejected testimony

regarding the enhanced cooperation and coordination with law

enforcement agencies which would result from membership in

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the State PBA or the FOP becuase there was already evidence

of such cooperation without probation officer membership in

the State PBA or the FOP. Id.

The Special Master concluded that affiliation with the

State PBA would subject probation officers to the control and

regulations of the State PBA. Id, at 10. "Probation Officers

may be placed in a position of supporting or opposing political

candidates or legislation which may or may not be in the best

interest of probation officers." Id. Additionally, the Special

Master found affiliation with the State PBA could create a

conflict of interest if, for example, the state offers a reward for

the arrest and conviction of a defendant convicted of assaulting

or killing a State PBA member. Id. The Special Master,

however, explained:

This, again is an area where the individual

integrity and professionalism of the officer is

involved. There is no determination that such

membership and such action on the part of the

State PBA would cause any officer to fail to

properly perform his [or her] duties, it is merely

the recognition of a possible consequence of

affiliation.

Id. at 10-11.

The Special Master determined there are between 700

and 800 probation officers who are members of the FOP, and

have been so for twenty years. Id. at 13. The Special master

pointed out that the by-laws of the FOP provides it "is strictly

non-political and shall have no affiliation with any union or

political action committee." Id. at 14. According to the Special

master, there was no evidence presented with respect to the

nature and quality of the activities of the members of the FOP

other than that they participate in social, non-political and non-

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labor oriented activities.? _Id. The Special Master determined

the FOP is not engaged in partisan political activity. Id. at 15.

The Special Master found that the State PBA does, on

occasion, engage in partisan political activity. Id. The State

PBA "may support or oppose candidates for elective office and

support or oppose legislation.” Id.

The Special Master then addressed whether N.J.S.A. §

34:13A-5.3 which prohibits police officers from joining an

employee organization which admits non-police officers, implies

> By letter, dated 11 April 1995 (the "11 April 1995

Letter"), counsel for the Defendants forwarded certain

correspondence between the Administrative Office of the

Courts of the State of New Jersey (the "AOC") and the Public

Employees Relations Commission ("PERC"). According to an

attached letter from PERC to the AOC, dated 17 March 1995,

the New Jersey FOP Coalition of Probation Officers’ Lodges

sought to intervene on behalf of probation officers as labor

representative in a labor dispute. As counsel for the

Defendants point out, the above-referenced correspondence is

an “indication that there is some faction of the [FOP] which

seeks to be certified as a labor organization representing

probation officers." 11 April 1995 Letter.

At the 17 April Hearing, the Plaintiffs explained:

[R]egardless of whether [the FOP is] engaging

in union activities or not, ... the issue is still the

same in terms of their freedom of association.

Is that activity going to disrupt the operation of

Government in fact or appearance? ... [We

have] never stated that the FOP has never

engaged in union activities. In fact, they have

engaged in activities for many years in terms of

representing their members in disciplinary

hearings before police departinents and so on.

17 April Hearing Tr. at 24.

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any legislative policy concerning non-police officers joining

police officer organizations. Report of the Special Master at

16.

The Special Master explained that, according to the

testimony of the Chairman of PERC, the purpose of the statute

is to have collective bargaining without divided loyalties and to

avoid problems which could arise if police and non-police were

members of the same bargaining unit. Jd, Summarizing

PERC’s position, the Special Master stated: “Police are to

protect person and property, even in a labor dispute. The

divided loyalty could arise if a police [officer] was a member of

the same union as the employee who was on strike against a

non[-}public employer.” Id.

According to the Special Master, the determination of

whether persons are classified as police or non-police under the

statute is the function of PERC. Id, The Special Master

explained that "PERC’s jurisdiction does not extend to the

employees of the judicial branch of government|[,]" and that it

was not his )the Special Master’s) duty to interpret or apply the

statute to either police officers or probation officers. Id.

B. The 8 July 1994 Opinion

In the 8 July 1994 Opinion the New Jersey Supreme

Court reaffirmed its policy of prohibiting probation officer

membership in law enforcement organizations, the State PBA

and the FOP in particular, 8 July 1994 Opinion at 5. The New

Jersey Supreme Court explained that the 8 July 1994 Opinion

was "quasi-legislative, based on ... policy considerations|,] ...[its]

knowledge of the subject matter[,] ...[and] derived from [its]

responsibility for, ... authority over, ... involvement with and ...

regular and continuing regulation and oversight of the Probation

Division and its functions and operations."* Id. at 2. The New

* By letter, dated 17 April 1995 (the "17 April Letter’),

counsel for the Defendants explains:

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Jersey Supreme Court did not adopt all of the Special Master’s

findings, although explaining that its "disagreement [was] not

fact-specific, for as [the Special Master] notes the evidence was

largely insufficient ... to reach any such determinations (or as

the Special Master noted concerning the central question before

us, the evidence was ‘not such that a true factual determination

can be made’ ..” Jd. at 3.

According to the New Jersey Supreme Court:

Our decision rests on the fundamental

difference between probation and police

Organizations. Probation is an integral part of

the judiciary, everything that probation does it

does as an arm of the judiciary. Among other

things, it is the entity that enforces judicial

orders. Given the nature and functions of

probation, it must be as impartial as the rest of

the judiciary, totally so and scrupulously so.

Probation cannot take sides any more than a

court may, and cannot be perceived as taking

sides any more than a court may. ... It has no

.more right to become allied with a public

With respect to probation officers, N.J.S.A. [§]

2A:168-5 provides that their appointment shall

be made by the Assignment Judge of the

Superior Court in each county. Although, until

recently, probation officers were technically on

the payroll of the various counties, they have

always been subject to supervision by the

[jJudiciary, Moreover, pursuant to the State

Judicial Unification Act, "judicial employee" is

defined as including any person employed by a

county probation office, N.J.S.A. 2B:10-3, and as

of January 1, 1995, all such employees are on

the State’s payroll. N.J.S.A. 2B:10-4.

17 April Letter at 1.

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defender’s office than with prosecutors or

police. Probation represents no special interest

in society and government but one: the courts.

Police and police organizations have but

one interest and one role: law enforcement.

Everythirig they do serves that interest:

investigating crime, apprehending criminals,

aiding in the prosecution and conviction of the

accused, and in the imposition of punishment.

The police stand firmly and properly on one

side of the scales of criminal justice -- the

prosecution’s side.

Put simply, the functions of police and

probation -- one serving the prosecution the

other serving the courts -- are not only different,

but incompatible. Separation of the two is

essential to the impartiality of the probation

function and to the integrity of the judiciary.

Id. at 3-4.

Consistent with the 8 July 1994 Opinion, the AOC

issued a directive, dated 7 December 1994, requiring all

probation officers to terminate FOP membership by 1 January

1995 and prohibiting affiliation of PANJ with the State PBA.

See Exhibit C to the Kirchgessner Complaint; Exhibit D to the

PANJ Complaint.

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The Kirchgessner Complaint consists of six counts.

Count One alleges the ban on probation officer membership in

the FOP violates the Kirchgessner Plaintiffs’ right to freely

associate, as guaranteed by the First Amendment to the United

States Constitution. Kirchgessner Complaint, 1% 41-42. Count

two alleges the prohibition on FOP membership is a deprivation

of a property right without due process, as guaranteed by the

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Fourteenth Amendment to the United States Constitution. Id.,

17 43-44. Count three alleges the Chief Justice and the

Associate Justices acted under color of state law to deprive the

Kirchgessner Plaintiffs rights guaranteed under the Constitution

in violation of section 1983 of title 42 of the United States

Code. Id., 1945-46. Count four alleges a violation of the

Norris-LaGuardia Act, 29 U.S.C. § 101 et. seg., by denying the

Kirchgessner Plaintiffs their rights to freedom of association,

self-organization and designation of representatives of their own

choosing. Id, 1 47. Count five alleges a deprivation of rights,

as provided by the New Jersey State Constitution, Art. 1, 1 19,

because the prohibition on joining the FOP is a deprivation of

the Kirchgessner Plaintiffs’ rights to organize through

representatives of their own choosing as public employees. Id.,

W1 48-49. Count six alleges that forbidding membership in the

FOP deprived the Kirchgessner Plaintiffs of their rights to join

and assist any employee organization, as provided by N.J.S.A.

§ 34:13A-5.3.

The PANJ Complaint consists of four counts and

parallels the first, third, fifth and sixth counts of the

Kirchgessner Complaint except that it focuses on the ban

concerning affiliation with the State PBA. The PANJ

Complaint alleges violations of the First and Fourteenth

Amendments to the United States Constitution in count one.

PANJ Complaint, 11 46-47. Count two alleges a violation of

section 1983 of title 42 of the United State Code. Id., 1948-49.

Count three alleges a deprivation of rights, as provided by the

New Jersey State Constitution, Art. 1,919. Id., 99 50-52.

Count four alleges a violation of N.J.S.A. § 34:13A-1 et seg.

Id., 17 52-53.

Discussion

A. ta ismissa er Ru b)(6

Because granting a motion under Rule 12(b)(6) can

result in a dismissal at an early stage of a plaintiff's case, all

allegations of a plaintiff must be taken as true and all

reasonable factual inferences drawn in his or her favor. Gomez

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Ac Raed BC OY IRE Le

Oe co cele lend Rebeka eee

v. Toledo, 446 U.S. 635, 636 (1980); Piecknick v. Pennsylvania,

36 F.3d 1250, 1255 (3d Cir. 1994); Jordan v. Fox, Rothchild,

O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994); Schrob

v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Unger v.

National Residents Matching Program, 928 F.2d 1392, 1395 (3d

Cir. 1991); Markowitz v. Northeast Land Co., 906 F.2d 100, 103

(3d Cir. 1990); Melikian v. Corradetti, 791 F.2d 274, 277 (3d

Cir. 1986). Nevertheless, legal conclusions made in the guise of

factual allegations are not given a presumption of truthfulness.

See Papasan v. Allain, 478 U.S. 265, 286 (1986); Haase v.

Webster, 807 F.2d 208, 215 (D.C.Cir. 1986); Briscoe v. LaHue,

663 F.2d 713, 723 (7th Cir. 1981), aff'd, 460 U.S. 325 (1983);

Western Mining Council v, Watt, 643 F.2d 618, 626 (9th Cir.),

cert, denied, 454 U.S. 1031 (1981); Bermingham v. Sony Corp.

of Am., 820 F.Supp. 834, 846 (D.N.J. 1992), aff'd, 37 F.3d 1485

(3d Cir. 1994).

A court may dismiss a complaint for failure to state a

claim where it appears beyond doubt that no relief could be

granted under any set of facts which could be proved consistent

with the allegations. Hartford Fire Ins. Co. v. Merrett

Underwriting Agency Management Ltd., __U.S._, 113 S.Ct.

2891, 2917 (1993); Hishon v. King & Spalding, 467 U.S. 69, 73

(1984); Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Piecknick,

36 F.3d at 1255; ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d

Cir. 1994); Jordan, 20 F.3d at 1261; Unger, 928 F.2d at 1395;

Markowitz, 906 F.2d at 103; Ransom v. Marrazzo, 848 F.2d 398,

401 (3d Cir. 1988); v

764 F.2d 939, 944 (3d Cir. 1985), cet, denied! 474 US. 935

(1985).

A Federal court reviewing the sufficiency of a complaint

has a limited role. "The issue is not whether a plaintiff will

ultimately prevail but whether the claimant is entitled to offer

evidence to support his ], her or its] claims." Scheuer v.

Rhodes, 416 U.S. 232, 236 (1974); Estate of Bailey v. County of

York, 768 F.2d 503, 506 (3d Cir. 1985); Bermingham, 820

F.Supp. at 846.

Applying these principles to the instant action, the

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inquiry is whether the allegations made by the Plaintiffs in the

Kirchgessner Complaint and the PANJ Complaint are sufficient,

so as to entitle them to offer evidence in support of such

allegations.

B. Standard of Review for First

Amendment Restrictions Placed

on Public Employees

“Even though [the Plaintiffs] work for the Government,

they have not relinquished ’the First Amendment rights they

would otherwise enjoy as citizens to comment on matters of

public interest.” Unit Vv j

Union, __U.S._, 115 S.Ct. 1003, 1012 (1995)(quoting Pickering

v. Board of Educ., 391 U.S. 563, 568 (1968)). Nonetheless, as

the National Treasury Court explained: “In Pickering and a

number of other cases we have recognized that Congress may

impose restraints on the job-related speech of public employees

that would be plainly unconstitutional if applied to the public at

large." Jd. at 1012.

When making a determination concerning the validity of

restraints placed on public employees, a court"must ’arrive at a

balance between the interest of the [employee], as a citizen, in

commenting upon matter of public concern and the interest of

the [s]tate, as an employer, in promoting the efficiency of the

public services it performs through its employees.” Id. at 1012

(quoting Pickering, 391 U.S at 568); see also Waters v.

Churchill, __U.S.__, 114 S.Ct. 1878, 1884 (1994) (plurality

opinion)("[t]o be protected, the speech must be on a matter of

public concern, and the employee’s interest in expressing

[himself orJherself on the subject must not be outweighed by

any injury the speech could cause: to the Governmental interest

of promoting efficiency of its public services (citing Connick v.

Myers, 461 U.S. 138, 142 (1983)); Swi v.

Pa., 15 F.3d 1258, 1272 (3d Cir. 1993)(citing Pickering and

Connick and explaining its inquiry as "whether the

[government's interests in proper departmental management

outweighed [plaintiff's] interest in commenting on matters of

public concern").

18A

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As the Supreme Court explained in Waters:

The key to First Amendment analysis of

government employment decisions, then is this:

The government’s interesi in achieving its goals

as effectively and efficiently as possible is

elevated from a relatively subordinate interest

when it acts as sovereign to a significant one

when it acts as employer. The government

cannot restrict the speech of the public at large

just in the name of efficiency. But where the

government is employing someone for the very

purpose of effectively achieving its goals, such

restrictions may well be appropriate.

Waters, 114 S.Ct. at 1888.

In National Treasury, the Court explained that it

"applied Pickering’s balancing test only when the employee

spoke ’as a citizen upon matters of public concern; rather that

’as_an employee upon matters only of personal interest.”

National Treasury, 115 S.Ct. at 1013 (quoting Connick, 461 U.S.

at 147) According to the Court, an employee's private speech

can give rise to discipline while imposing no special burden of

justification on the government employer. Id.

With regard to speech involving a matter of public

concern, the government has a burden to justify its adverse

employment action. Jd, Nonetheless, the Court "has

consistently given greater deference to government predictions

of harm used to justify restriction of employee speech than to

predictions of harm used to justify restrictions on the speech of

the public at large." Waters, 114 S.Ct. at 1887; see also

Connick, 461 U.S. at 151 ("the Government, as an employer,

must have wide discretion and control over the management of

its personnel and internal affairs” (quoting Armett v. Kennedy,

416 U.S. 134, 168 (1974)).

Whether a public employee’s speech addresses a matter

of public concern is determined by the content, form and

19A

context of such statement. Connick, 461 U.S. at 148. "The

inquiry into the protected status of speech is one of law, not

fact." Id. at n.7.

In National Treasury, the Supreme Court explained that

cases where it has ‘applied Pickering’s balancing test" have

generally involved disciplinary actions taken by a government

employer in response to an employee’s speech. 115 S.Ct. at

1012-13. In the instant action, the Plaintiffs argue that because

"[hJere the issue is not one of freedom of speech, but rather

one of freedom of association ... the more stringent standard of

strict scrutiny must be applied." PANJ Reply Brief at 9

(arguing the New Jersey Supreme Court policy "cannot be

justified upon a mere showing of legitimate State interest; ...

[rather it] must be paramount, one of vital importance, and the

burden is on the government to show the existence of such an

interest.” (quoting Elrod v. Burns, 427 U.S. 347, 362 (1976));

see also Kirchgessner Reply Brief at 1-2 ("the freedom to

associate (along with the freedom of speech) is at issue ... the

United States Supreme Court has, in fact, applied the more

stringent standard of strict scrutiny where the freedom of

association is at issue[;] ... Plaintiffs submit that under Elrod v.

Burns, the strict scrutiny test must be applied").

Notwithstanding the Plaintiffs’ assertions, reliance on

Elrod is misplaced. Elrod involved the discharge or threat of

discharge of public employees because of their partisan political

affiliation or non-affiliation. Elrod, 427 U.S. at 349. According

to the Court, Elrod and Branti v. Finkel, 445 U.S. 507 (1980).,

“decided that the First Amendment forbids government officials

to discharge or threaten to discharge public employees solely ~

for not being supporters of the political party in power, unless

the party affiliation is an appropriate requirement for the

position involved.” Rutan v. Republican Party, 497 U.S. 62, 64

(1990). The instant action, therefore, is distinguishable from

Elrod and its progeny. Accordingly such line or precedent does

not require the application of the "strict scrutiny” test to the

20A

FP IO IS IE te ERE dP

4

case at bar.®

The Pickering/Connick balancing test developed from

cases which, lie the instant action, alleged violations of public

employees’ associational rights. The Connick Court explained:

In all of these cases, the precedents in

which Pickering is rooted, the invalidated

statutes and actions sought to suppress the

rights of public employees to participate in

public affairs. The issue was whether

government employees could be prevented or

caer by the fear of ager a from ioining

* To further support their argument for the application of

the "strict scrutiny” test, the Plaintiffs rely upon Labov v, Lalley,

809 F.2d 220, 222-23 (3d Cir. 1987), Mescall v. Rochford, 655

F.2d 111 (7th Cir. 1981), Vorbeck v. McNeal, 407 F.Supp. 733

(E.D.Mo. 1976), Police Officers Guild, Nat'l Union of Police

Officers v. Washington, 396 F.Supp. 543 (D.D.C. 1973) and

296 F.Supp. 1068 (W.D.C.C. 1969).

Kirchgessner Brief at 8-10; Kirchgessner Reply Brief at 2; PANJ

Brief at 7-13; PANJ Reply Brief at 9. These cases are

distinguishable from the instant action and, therefore, provide

no controlling, or persuasive, authority for the Plaintiffs’

position.

As counsel for the Defendants point out, in none of

these cases did the courts apply the Pickering/Connick balancing

test, because such test was inapplicable. In each the courts

reviewed restraints placed on the rights of employees to join

unions and collectively bargain. Defendants Brief at 16. The

Supreme Court of New Jersey "is merely prohibiting affiliation

with police organizations, whether or not the organizations

happens to be a union. The [8 July 1994 Opinion] merely

affirmed a longstanding policy which in no way targeted

unionization." Id. at 17.

21A

Connick, 461 U.S. at 144-45 (emphasis added). The history of

the Pickering/Connick balancing test, therefore, provides further

support for its application in the instant case where

associational rights are implicated. Accordingly, the

Pickering/Connick balancing test, not “strict scrutiny” will be

applied in the instant case.

Cc

i aa TP eaKeaaiak” Raiaced

Test to the Instant Action

The Plaintiffs argue even under the Pickering/Connick

balancing test, the governmental interest of maintaining

impartiality in appearance and in fact, which under lies the ban

on probation membership in law enforcement organizations,

does not outweigh the Plaintiffs’ interest in affiliating with the

State PBA or the FOP. Kirchgessner Reply Brief at 3; PANJ

Reply Brief at 10. Plaintiffs argue the instant ban on probation

membership in law enforcement organizations is analogous to

the ban struck down in National Treasury becuase it is a broad

based prophylactic rule. Kirchgessner Reply Brief at 6; PANJ

Reply Brief at 12.

_ At issue in National Treasury was the constitutionality

of a subsection of the Ethics in Government Act which

prohibited Federal employees from accepting any com pensation

for delivering speeches or writing articles.

115 S.Ct at 1008. The ban in National Treasury "applie[d] even

when neither the subject of the speech or article nor the person

or group paying for it ha[d] any connection with the employee’s

official duties." Id,

* Additionally, associational rights derive from other First

Amendment rights including freedom of speech. Roberts v.

468 U.S. 609, 618, 622 (1984) ("[t}he

Court has recognized a right to associate for the purpose of

engaging in those activities protected by the First Amendment -

- speech, assembly, petition for the redress of grievances, and

the exercise of religion.").

22A

a Pai a ORS wen alte ‘ D 2

|

|

According to the Court:

The Government’s underlying concern is that

[Fjederal officers not misuse or appear to

misuse power by accepting compensation for

their unofficial and nonpolitical writing and

speaking activities. This interest is undeniably

powerful, but the Government cites no evidence

of misconduct, related to honoraria in the vast

rank and file of [Fjederal employees...

Id. at 1015-16. In striking the ban, the Court explained that

absent a nexus limitation between speech and an employees

official duties, "[a] blanket burden on the speech of 1.7 million

[Federal employees requires a much stronger justification than

the Government’s dubious claim of administrative convenience."

Id. at 1017.

Plaintiffs argue the Chief Justice and the Associate

Justices cannot, as the Court required in National Treasury,

"demonstrate that the recited harms are real, not merely

conjectural, and that the regulation will in fact alleviate harms

in a direct and material way."" PANJ Reply Brief at 12

(quoting National Treasury, 115 S.Ct. at 1017 (quoting Turner

Broadcasting System, __U.S.__, 114 S.Ct. 2445, 2450 (1994)).

Plaintiffs argue, despite the opportunity to present evidence to

the Special Master over the five days of hearings on this matter,

the Chief Justice and the Associate Justices "could not point to

any specific evidence ... to support [the] claim that the ’risk’ to

impartiality grants them carte blanche to infringe upon First

Amendment rights." PANJ Reply Brief at 11. Further, the

Plaintiffs argue the Special Master "concluded that there cannot

be a generalized prohibition against probation officers becoming

members of or being affiliated with law enforcement

organizations.” Jd.

The ban on law enforcement membership by probation

Officers is distinguishable from the ban in

As discussed, the ban in National Treasury prohibited speech

even when it had no relationship to a Federal employee's

23A

official duties. National Treasury, 115 S.Ct. at 1008. As

counsel for the Defendants point out:

[I]n this case the New Jersey Supreme Court’s

ban on probation officer membership in police

organizations is directly related to probation

officers’ employment. That is, as employees of

the Judiciary, they must maintain their

impartiality, in appearance and in fact. Their

membership in an organization which is aligned

with one side in the adversary process is

inconsistent with the requirement of such

impartiality.

Defendants Addendum at 3.’

In the instant action, the issue is not merely whether any

individual probation officer will in fact lose his or her ability to

be impartial as a result of law enforcement association

membership. Instead, the harm which has been articulated is

the appearance of partiality from per:>itting probation officers,

who are part of the judiciary, to join the ranks of law

enforcement. As argued at the 17 April Hearing, the

7 The reason articulated by the Plaintiffs for their desire

to affiliate with law enforcement associations verifies the

concerns of the Chiéf Justice and the Associate Justices.

"Affiliation with the State PBA will foster more professional and

collaborative working relationships between probation officers,

parole and police officers, which is vital to a strong and efficient

criminal justice system." PANJ Brief at 2.

* As counsel for the Defendants explained:

Historically, the primary function of probation

has been the enforcement of court orders,

including the conditions of probation. This

function includes, in appropriate circumstances,

the presentation of probation violation reports

24A

governmental interest underlying the 8 July 1994 Opinion is the

avoidance of partiality and conflict both in fact and appearance.

See 17 April Hearing Tr. at 5-6.°

Maintaining the appearance of impartiality of the

judiciary is an interest of vital importance." United States

Civil Serv, C i © Mational J FJ Carriers, 413

U.S. 548, 564 (1973). In United States Civil Sev. Comm'n, the

Court applied Pickering to uphold the constitutionality of the

Hatch Act, 5 U.S.C. § 7324(a)(2), which prohibited Federal

to judges. This central function includes both

punitive and rehabilitative components which

must be balanced by the probation officer.

More recently, other critical functions have been

added to the responsibilities of probation

Officers such as case management functions

including investigating for and preparing pre-

sentence reports, bail reports and pretrial

intervention reports, all of which are used by

judges in making judicial decision.

Defendants Brief at 5-6 (citations omitted).

With regard to the function of probation officers, the

Plaintiffs state: “[T]he issue here is probation officers’

constitutional First Amendment right to become members of or

affiliate with law enforcement organizations of their choice.

Whether the probation function is primarily rehabilitative or

punitive is irrelevant to this constitutional analysis." PANJ

Reply Brief at 5.

* At the 17 April Hearing the Plaintiffs conceded that there

was nothing "more important than the need for the judiciary to

not only be impartial but to appear impartial.” 17 April

Hearing Tr. at 7.

1% As noted, the Plaintiffs do not contest this. See supra

note 9.

25A

employees from taking an active role in partisan political

activities. 413 U.S. at 564.

The Court explained that "[nJeither the right to associate

nor the right to participate in political activities is absolute in

any event.” Id, at 567. The employees of the Executive Branch

are expected to enforce the law and execute the

programs of the Government without bias or

favoritism for or against any political party or

group or the members thereof. A major thesis

of the Hatch Act is that to serve this great end

of Government -- the impartial execution of

laws -- it is essential that [F]Jederal employees,

for example, not take formal positions in

political parties, not undertake to play

substantial roles in partisan political campaigns,

and not run for office on partisan political

tickets. .

There is another consideration in this

judgment: it is not only important that the

Government and its employees in fact avoid

practicing political justice, but it is also crucial

that they appear to the public to avoiding it, if

ot e ed toa

extent.

Id. at 565 (emphasis added).

As was explained at the 17 April Hearing, and conceded

by the Plaintiffs, when weighing the competing interests

between a public employer’s need to have wide discretion in

running an efficient operation and the speech and associational

rights of its employees, the judiciary has greater concerns of

maintaining its impartiality both in appearance and in fact than

other branches of government. 17 April Hearing Tr. at 12-14.

As explained at the 17 April Hearing:

26A

[T]he judiciary and each of the employees of the

judiciary, not only has to be impartial, not only

has to avoid conflict in fact, but has to make

sure [to] avoid the appearance of .. any

partiality or any conflict. It seems that because

of the separation of powers, the judiciary has to

be self-policing in many respects.

Id. at 14.

Despite the Plaintiffs’ argument to the contrary, it does

not appear that the New Jersey Supreme Court’s ban on law

enforcement membership was, or is, at odds with the findings

of the Special Master." As indicated, the New Jersey

Supreme Court explained that, it did not adopt all of the

findings of the Special Master. 8 July Opinion at 3.

Nonetheless, as the New Jersey Supreme Court pointed out,

the Special Master found “the evidence was ‘not such that a

true factual determination [could] be made.” Jd. (quoting the

Report of the Special Master at 3).

Further, while the Chief Justice and the Associate

Justices did not point to specific evidence of impartiality by

probation officers, the Special Master repeatedly indicated that

there was "no evidence one way or the other" and that he was

unable to make any generalized determinations. Report of the

Special Master at 5-7. At the 17 April Hearing the Plaintiffs

again pointed to lack of "empirical" or "objective" evidence to

support the 8 July 1994 Opinion. 17 April Hearing Tr. at 15-18

(although [the Plaintiffs} wouldn’t say the [New Jersey}

Supreme Court took its views out of thin air, [we] can say there

is just no basis for it, except theory"). As also explained at the

17 April Hearing:

" It is unclear why the adherence, or lack thereof, to the

Report of the Special Master is of significance to the instant

analysis. In any event, this issue is addressed because the

Plaintiffs have raised it numerous times in their briefs and at

the 17 April Hearing.

27A

[T]he only way you could have empirical data is

when partiality is developed, when conflict is

developed and at that point it is too late, the

system is brought down under its own weight ...

there can{not] be any basis, other than for

theory unless the system went so awry, unless

the system was so rife

with corruption or partiality that it [the evidence] would [then]

be[come] objective....

What makes the judiciary viable in any

governmental setting is the] distance that

impartiality and the appearance of impartiality

... [create and which] people can rely upon....

Id. at 15-18. Cf, Waters, 114 S.Ct. at 1887 ("Few of the

examples we have discussed involve tangible, present

interference with the agency’s operation. The danger in them

is mostly speculative.")

The Chief Justice and the Associate Justices made a

reasonable determination that membership by probation officers

in the State PBA and the FOP will impair the impartiality of

the judiciary in fact and appearance. It appears this harm is

"real" and "not merely conjectural." National Treasury, 115

S.Ct. at 1017. Further, the interest in maintaining the

appearance of impartiality of the judiciary outweighs the desire

of the Plaintiffs to affiliate with law enforcement organizations.”

22 As previously quoted:

Given the nature and functions

_ of probation, it must be as

impartial as the rest of the

judiciary, totally so and

scrupulously so. Probation

cannot take sides any more than

a court may, and cannot be

perceived as taking sides any

28A

a -

we tt le wa ww wt

Dismissal, pursuant to Rule 12(b)(6), of the Plaintiffs’

claims under the First Amendment is appropriate. As argued

by counsel for the Defendants, in light of the “paramount

interest in maintaining an independent and impartial [j]udiciary,

the prohibition of probation officer membership in police

organizations is of the type that a public employer may

reasonably place on its employees..." Defendants Brief at 9.

See National Treasury, 115 S.Ct. at 1012; Waters, 114 S.Ct. at

1888; Connick, 461 U.S. at 142; Pickering, 391 U.S. at 568;

Swineford, 14 F.3d at 1272. Moreover, it appears beyond doubt

that no relief could be granted under any set of facts which

could be proved consistent with the allegations of First

Amendment violations, as set forth in the Kirchgessner

Complaint and the PANJ Complaint. Hartford Fire, 113 S.Ct.

at 2917; Hishon, 467 U.S. at 73; Conley, 355 U.S. at 45-46;

more that a court may. ... It has

not more right to become allied

with a public defender’s office

than with prosecutors or police.

Probation represents to special

interest in society and

government but one: the courts.

Police and police organizations

have but one interest and one

role: law enforcement.

Everything they do serves that

interest: investigating crime,

apprehending criminals, aiding in

the prosecution and conviction

of the accused, and in the

imposition of punishment. The

police stand firmly and properly

on one side of the scales of

criminal justice -- the

prosecution’s side.

8 July 1994 Opinion at 4.

29A

Piecknick, 36 F.3d at 1255; ALA, 29 F.3d at 859; Jordan, 20

F.ed at 1261; Unger, 928 F.2d at 1395; Markowitz, 906 F.2d at

103; Ransom, 848 F.2d at 401; Angelastro, 764 F.2d at 944.

Accordingly, the motion to dismiss the Plaintiffs’ claims under

the First Amendment, as alleged in counts one of the

Kirchgessner Complaint and the PANJ Complaint, is granted

pursuant to Rule 12(b)(6).

D. Other Federal Claims

As indicated, in addition to their First Amendment

claims, Plaintiffs also allege the New Jersey Supreme Court

policy violated their due process rights under the Fourteenth

Amendment, the Norris-LaGuardia Act, and section 1983 of

title 42 of the United States Code (collectively, the "Federal

Claims").

1. Due Process

Plaintiffs allege in count two of the Kirchgessner

Complaint and in count one of the PANJ Complaint the Chief

Justice and the Associate Justices, by their ban on affiliation

with law enforcement organizations, have deprived the Plaintiffs

of a property right without due process as guaranteed by the

Fourteenth Amendment to the Untied States Constitution.

Kirchgessner Complaint, 11 43-44; PANJ Complaint, 11 46-47.

The determination of whether a plaintiff has adequately

alleged a violation of the Fourteenth Amendment's Due Process

Clause involves two steps. First, it must be determined whether

Plaintiffs have alleged interference with a protected liberty

interest. See Meachum v. Fano, 427 U.S. 215, 223 (1976);

Stephany v. Wagner, 835 F.2d 497,499 (3d Cir. 1987), cert.

denied, 487 U.S. 1207 (1988); Mims v. Shapp, 744 F.2d 946, 949

(3d Cir. 1984). Second, it must be determined whether the

procedures employed by the state to protect that liberty interest

were constitutionally inadequate. see Mathews v. Eldridge, 424

U.S. 319, 335 (1976); Mims, 744 F.2d at 949.

With respect to the first of these steps, the Supreme

30A

i °

an th A 5 2 LN a a SR OE ns

Court has stated: "Liberty interests protected by the

Fourteenth Amendment may arise from two sources -- the Due

Process Clause itself and the laws of the states." Hewitt v.

Helms, 459 U.S. 460, 466 (1983); see Board of Pardons v. Allen,

482 U.S. 369, 373 (1987); Stephany, 835 F.2d at 499.

The Plaintiffs have not alleged a protected liberty

interest nor that such interest was deprived without due process

of law. The Plaintiffs argue if they do not follow the policy of

the New Jersey Supreme Court, "they are threatened with

termination from their jobs... Such termination clearly

threatens the }P]laintiffs’ property interest." Kirchgessner Brief

at 11. As counsel for the Defendants pointed out: "[P]laintiffs

do not allege ... that if any probation officers are terminated for

a violation of the policy that they would not be given a hearing

on that action. It is the termination of employment which must

be attended by due process, not the announcement of the

policy.” Defendants Brief at 32-33.

It appears, therefore, beyond doubt that no relief could

be granted under any set of facts which could be proved

consistent with the allegations of due process violations, as set

forth in the Kirchgessner Complaint and the PANJ

Complaint." hartford Fire, 113 S.Ct. at 2917; Hishon, 467

3 Plaintiffs also content their due process rights were

violated by the New Jersey Supreme Court "by deciding this

case since the circumstance impose a risk of bias or prejudice

on the part of the [New Jersey] Supreme Court (which acted as

both participant-respondent and the purported-arbiter)."

Kirchgessner Brief at 12. Plaintiffs argue: “[D]ue process

demands impartiality on the part of those who function in

judicial or quasi-judicial capacities.” Kirchgessner Brief at 12

(quoting Schweiker v. Mclure, 456 U.S. 188, 195 (1982)). As

mentioned, however, the 8 July 1994 Opinion was issued by the

New Jersey Supreme Court in its "quasi-legislative" capacity. 8

July 1994 Opinion at 2.

Plaintiffs do not appear to contest that the 8 July 1994

31A

U.S. at 73; Conley, 355 U.S at 45-46; Piecknick, 36 J.3d at 1255;

ALA, 29 F.3d at 859; Jordan, 20 F.3d at 1261; Unger, 928 F.2d

at 1395; Markowitz, 906 F.2d at 103; Ransom, 848 F.2d at 401;

164 F.2d at 944. Accordingly, the motion to dismiss

the Plaintiffs’ claims under the Fourteenth Amendment, as

alleged in count two of the Kirchgessner Complaint and count

one of the PANJ Complaint, is granted pursuant to Rule

12(b)(6).

> > Pere Eetieanile 2

Count four of the Kirchgessner Complaint alleges a

violation of the Norris-LaGuardia Act, 29 U.S. C. § 101 et.

seg., by denying the Kirchgessner Plaintiffs their rights to

freedom of association, self-organization and designation of

representatives of their own choosing. Kirchgessner Complaint.

4 47. The Norris-LaGuardia Act provides:

No court of the United States shall have

jurisdiction to issue any restraining order or ...

injunction ... to prohibit any person or persons

participating ... whether singly or in concert ...

from ... [among other things] refusing to

perform any work [and] ... [a]ssembling

peaceably to ... organize ... in promotion of their

Opinion was "quasi-legislative." Instead, according to Plaintiffs:

"to argue that due process (which is, in essence, fairness) is

inapplicable to the [New Jersey] Supreme Court is improper .

and misguided." Kirchgessner Reply Brief at 11. Plaintiffs have

provided no authority, however, for their argument that it was

a due process violation for the New Jersey Supreme Court to

set the policy for the employees of the judiciary. As discussed,

conclusory assertions, such as those advanced here by the

Plaintiffs, are not afforded any presumption of truthfulness

sufficient to survive a Rule 12(b)(6) motion. See Papasan, 478

U.S. at 286; Haase, 807 F.2d at 215; Briscoe, 663 F.2d at 723;

Western Mining Council, 643 F.2d at 626; Bermingham, 820

F.Supp. at 846.

32

4

ee |

~ interests in a labor dispute.

Norris-LaGuardia Act, 29 U.S.C. § 104.

As counsel for the Defendants argues: "Plaintiffs offer

no explanation as to how [the New Jersey] Supreme Court’s

policy, which is not issued in its judicial capacity, could possibly

violate the Norris-LaGuardia Act." Defendants Brief at 32.

According to the Plaintiffs, “assuming arguendo that the

[D]efendants are correct, ... it is the policy considerations of the

Norris-LaGuardia Act which are significant.". Kirchgessner

Reply Brief at 9.

It appears the Plaintiffs are arguing that even though

the instant action neither implicates their right to representation

by a union nor their right to collectively bargain, a right for

them to join a law enforcement organization should be

recognized as within the "policy" of the Norris-LaGuardia Act.

The Plaintiffs are unable to point to any authority to support

such assertion.

It appears beyond doubt that no relief could be granted

under any set of facts which could be proved consistent with the

allegations of a violation of the New Jersey Supreme Court as

set forth in the Kirchgessner Complaint. Hartford Fire, 113

S.Ct. at 2917; Hishon, 467 U.S. at 73; Conley, 355 U.S. at 45-46;

Piecknick, 36 F.3d at 1255; ALA, 29 F.3d at 859; Jordan, 20

F.3d at 1261; Unger, 928 F.2d at 1395; Markowitz, 906 F.2d at

103; Ransom, 848 F.2d at 401; Angelastro, 764 F.2d at 944.

Therefore, the motion to dismiss the Plaintiffs’ claim under the

Norris-LaGuardia Act, as alleged in count four of the

Kirchgessner Complaint, is granted pursuant to Rule 12(b)(6).

3. 42 U.S.C. $ 1983

Count three of the Kirchgessner Complaint and count

two of the PANJ Complaint allege the Chief Justice and the

Associate Justices acted under color of state law to deprive the

Plaintiffs their rights guaranteed under the Constitution in

violation of section 1983 of title 42 of the United States Code.

33A

Kirchgessner Complaint, 19 45-46; PANJ Complaint, 19 48-49.

Section 1983 states, in relevant part:

Every person who, under color of any

statute, ordinance, regulation, custom or usage,

or any State or Territory or the District of

Columbia, subjects, or causes to be subjected,

any citizen of the United States or any other

person within the jurisdiction thereof to the

deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress.

42 U.S.C. § 1983.

"In order to prevail in a [section] 1983 action, a plaintiff

must establish (1) that ‘the conduct complained of was

committed by a person acting under color of state law; and (2)

that the ‘conduct deprived a person of rights, privileges, or

immunities secured by the Constitution or laws of the United

States.” Shaw v. Strackhouse, 920 F.2d 1135, 1141-42 (3d Cir.

1990)(quoting Parratt v. Taylor, 451 U.S. 527, 535 (1981),

overruled on other grounds, Daniels v. Williams, 474 U.S. 327

(1986)).

In light of the foregoing discussion, the Plaintiffs are

unable to establish the second requirement for the maintenance

of a claim under section 1983. It appears, therefore, beyond

doubt that no relief could be granted under any set of facts

which could be proved consistent with the allegations of section

1983 violations as set forth in the Kirchgessner Complaint and

the PANJ Complaint. Hartford Fire, 113 S.Ct. at 2917; Hishon,

467 U.S. at 73; Conley, 355 U.S. at 45-46; Piecknick, 36 F.3d at

1255; ALA, 29 F.3d at 859; Jordan, 20 F.ed at 1261; Unger, 928

F.2d at 1395; Markowitz, 906 F.2d at 103; Ransom, 848 F.2d at

401; Angelastro, 764 F.2d at 944. Accordingly, the motion to

dismiss the Plaintiffs; claims under section 1983 of title 42, as

alleged in count three of the Kirchgessner Complaint and count

34A

two of the PANJ Complaint, is granted pursuant to Rule

12(b)(6).

E. State Law Claims

As discussed, in addition to the Federal Claims, the

Plaintiffs allege the Chief Justice and the Associate Justices

have violated their rights under New Jersey state law (the "State

Law Claims”).

Count five of the Kirchgessner Complaint and count

three of the PNAJ Complaint allege a deprivation of rights as

provided by the New Jersey State Constitution, Art. 1, 9 19.

Plaintiffs allege that the prohibition on affiliation with the State

PBA and the FOP is a deprivation of the Plaintiffs’ right to

organize through representatives of their own choosing as public

employees. Kirchgessner Complaint, V1 48-49; PANJ

Complaint, 19 50-52. Additionally, count six of the Kirchgessner

Complaint and court four of the PANJ Complaint allege

forbidding membership in the State PBA and the FOP deprived

the Plaintiffs of the right to join and assist any employee

Organization, as guaranteed by NJS.A § 34:13A-5.3

Kirchgessner Complaint, 11 50-52; PANJ Complaint, 91 52-53.

Supplemental jurisdiction enables Federal courts to hear

state law claims over which there is no independent basis of

jurisdiction. 28 U.S.C. § 1367; Carnegie-Mellon Univ. v. Cohill,

484 U.S. 343, 349 (1988); United Mine Workers v. Gibbs, 383

U.S. 715, 725 (1966);

Conlux, 24 F.3d 1368, 1374 (3d Cir. 1994). Supplemental

jurisdiction depends upon the existence of subject matter

jurisdiction over other Federal claims in the action. Section

1367(c) permits a court to decline supplemental jurisdiction

when "the district court has dismissed all claims over which it

haw original jurisdiction." 28 U.S.C. § 1367(c)(3); see also,

Carnegie-Mellon, 484 U.S. at 350 (when the Federal-law claims

have dropped out of the lawsuit and only state-law claims

remain, the Federal court should decline the exercise of

jurisdiction by dismissing the case without prejudice).

35A

In the instant case, the Plaintiffs base Federal

jurisdiction upon 42 U.S.C. §1983, 28 U.S.C. § 1343 and 29

U.S.C. § 102. Kirchgessner Complaint, 97 2-3; PANJ

Complaint, 14. Because dismissal pursuant to Rule 12(b)(6) is

granted as to the Federal Claims, such claims can no longer

support supplemental jurisdiction in this court. 28 U.S.C. §

1367(a), (c).

In the instant action, there appears to be no

independent basis for jurisdiction over the State Law Claims.

It appear the Plaintiffs reside in New Jersey. Kirchgessner

Complaint, 1 6; PANJ Complaint, 41 9-14. The Chief Justice

and the Associate Justices are sued in their official capacity, and

are all alleged to maintain chambers in the state of New Jersey.

Kirchgessner Complaint, {4 7-13; PANJ Complaint, 19 15-21.

In fact, it appears all are residents of New Jersey. Plaintiffs do

not allege diversity jurisdiction; it appears they have no basis for

such an allegation. Because no other ground for supplemental

jurisdiction is alleged, nor does any appear appropriate,

supplemental jurisdiction will not be exercised in the instant

case. ie- 484 U.S. at 350 n.7 (citing Gibbs, 383

U.S. at 725); Angst v. Mack Trucks, Inc., 969 F.2d 1530, 1535

(3d Cir. 1992); Fuentes v. South Hills Cardiology, 946 F.2d 196,

198 n.3 (3d Cir. 19910; 28 U.S.C. § 1367 (c)(3). Accordingly,

the State Law Claims alleged in counts five and six of the

Kirchgessner Complaint and in counts three and four of the

PANJ Complaint are dismissed without prejudice.

F. _ Preliminary Injuncti

The Circuit has established, that the decision to issue a

preliminary injunction is based upon a review of four factors:

(1) whether the movant has shown a reasonable

probability of success on the merits; (2) whether

the movant will be irreparably injured by denial

of the relief; (3) whether granting preliminary

relief will result in even greater harm to the

nonmoving party; and (4) whether granting the

preliminary relief will be in the public interest.

36A

Gerardi v, Pelullo, 16 F.3d 1363, 1373 (3d Cir. 1994); see also

S & R Corp. v. Jiffy Lube Int'l, Inc., 968 F.2d 371, 374 (3d Cir.

1992); Merchant & Evans, Inc. v. Roosevelt Bldg. Prods. Co..,

963 F.2d 628, 632 (3d Cir. 1992); Opticians Ass'n of Am. v.

Independent Opticians of Am., 920 F.2d 187, 191-92 (3d Cir.

1990; Alessi v. Pennsylvania, Dept. of Pub. Welfare, 893 F.2d

1444, 1447 (3d Cir. 1990); Instant Air Freight Co. v, C.F. Air

Freight, Inc., 882 F.2d 797, 799 (3d Cir. 1989); Fechter vy, HMW

Indus., Inc., 879 F.2d 1111, 1116 (3d Cir. 1989); Apollo

805 F.Supp. 1157, 1191

Technologies v. Centrosphere Indus.,

(D.N.J. 1992); Glenside West Corp. v. Exxon Co., U.S.A, 761

F.Supp. 1118, 1132 (D.N.J. 199) CPC Int'l, Inc, v. Caribe Food

Distribs., 731 F.Supp. 660, 664 (D.N.J. 1990); Bascom Food

Prods. Corp. v. Reese Finer Foods, Inc,, 715 F.Supp. 616, 624

(D.N.J. 1989).

Of these four requirements, the Circuit has placed

particular weight on the probability of irreparable harm and the

likelihood of success on the merits, stating: “™[W]e cannot

sustain a preliminary injunction ordered by the district court

where either or both of these prerequisites are absent.”

Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 197 (3d

Cir. 1990)(quoting In re Arthur _Treacher’s Franchisee

Litigation, 689 F.2d 1137, 1143 )3d Cir. 1982)); see also Instant

Air, 882 F.2d at 800; Morton v. Beyer, 822 F.2d 364, 367 (3d

Cir. 1987); Freixenet, S.A. v. Admiral Wine & Liquor Co., 731

F.2d 148, 151 (3d Cir. 1984).

Significantly, the Circuit has repeatedly stated that a

"grant of injunctive relief is an extraordinary remedy which

should be granted veh in limited circumstances.” Frank’s GMC

847 F.2d 100, 102

(3d Cir. 1988), accord Chez Sez Ill Corp_v. Union, 945 F.2d

628, 634 (3d Cir. 1991), cert. denied, 503 U.S. 907 (1992);

Instant Air, 882 F.2d at 800; United State v. Philadelphia, 644

F.2d 187, 191 n.1 (3d Cir. 1980); see also Driscoll Potatoes, Inc.

v. N.A. Produce Co., 765 F. Supp. 174, 176 (D.N.J. 1991).

In light of the dismissal of all counts of the Kirchgessner

Complaint and all counts of the PANJ Complaint, the motion

37A

to Plaintiffs for a preliminary injunction is denied as moot.

G. Class Certification for the Kirct Plaintiff

Rule 23(c)(1) of the Federal Rules of Civil Procedure

("Rule 23") provides: “As soon as practicable after the

commencement of an action brought as a class action, the court

shall determine by order whether it is to be so maintained."

Fed.R.Civ.P. 23(c)(1). As the Fifth Circuit in Floyd v. Bowen,

833 F.2d 529, 534 (Sth Cir. 1987) explained:

The timing requirements of Rule 23 are

not absolute. Professor Wright explains that

"[t]he court always is empowered to make a

determination on the merits irrespective of the

denomination of the suit as a class action ... the

propriety of that inquiry is limited only by

concerns of whether the class determination

should be postponed until after the merits

determination.” C. Wright, A. Miller, and M.

Cane, 7 Federal Practice & Procedure, 1785 at

128 (footnote omitted) (1986). Indeed ... the

class action litigation may be halted by a ...

motion to dismiss or by a ... motion for summary

judgment.

Id. (citations omitted); see also Marx v. Centran Corp, 747 F.2d

1536, 1552 (6th Cir. 1984)("It has never been doubted that a

complaint asserting a class action could be dismissed on the

merits before determining whether the suit could be maintained

as a class action.”), cert. denied, 471 U.S. 1125 (1985); Wright -

yv. Schock, 742 F.2d 541, 543-44 (9th Cir. 1984)(holding that

district court has discretion, under appropriate circumstances,

to rule on summary judgment motion before addressing pending

class certification motion).

In Finberg v. Sullivan, 634 F.2d 50, 64 (3d Cir. 1980),

the Third Circuit held, however, that the determination of the

merits of a plaintiff's claims was not a valid basis to deny a

motion for class certification. The Circuit explained: “In

38A

general, the certification of a class does not depend upon

whether the substantive claims have any merit." Jd. (citing

Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974);

Kahan v, Rosenstiel, 424 F.2d 161, 169 (3d Cir.), cert. denied,

398 U.S. 950 (1970)).

In Finberg, the plaintiff had filed a timely motion for

class certification, upon which the district court took no action

for nine months prior to defendants’ motion for summary

judgment. 634 F.2d at 64. The district court finally found the

plaintiffs claims lacked merit and, therefore, reasoned that

there was no purpose for class certification. Jd, Under these

circumstances, and where there was a risk that the claim of the

named plaintiff would become moot, the Third Circuit held "the

district court’s rulings on the plaintiff's substantive claims did

not constitute a valid basis for denial of class certification." Id.

The instant action is distinguishable from Finberg. The

Kirchgessner Complaint includes a demand for class

certification, Kirchgessner Complaint, 17 23-28 and at 12;

however, there is no pending motion for class certification.

Moreover, neither party has briefed the propriety of such class

certification.

As the court in Marx explained, the Supreme Court’s

decision in Eisen

stand[s] for the proposition that when a district

court is determining whether a class action may

properly be maintained under [Rule 23}, the

relative merits of the underlying dispute are to

have no impact upon the determination of the

propriety of the class action. ]Eisen] ... dofes]

not establish a broad rule that in all cases the

determination of the propriety of a class action

must precede any consideration of the merits.

747 F.2d at 1552.

Under the circumstances of the instant action, where

39A

class certification was neither raised by the parties in a prior

motion nor brief in the instant motion for preliminary injunction

or in the cross-motion for dismissal, it is appropriate to

determine the merit of the cross-motion for dismissal without

determining the class certification demand. In light of the

propriety of the cross-motion by the Chief Justice and the

Associate Justices for dismissal pursuant to Rule 129b)(6) and

the dismissal of all counts of the Kirchgessner Complaint and

the PANJ Complaint, it appears unnecessary to address the

class certification issue. See Marx, 747 F.2d at 1552 ("To

require notice to be sent to all potential plaintiffs in a class

action when the underlying claim is without merit is to promote

inefficiency for its own sake."). Accordingly, the Kirchgessner

Plaintiffs demand for class certification is denied as moot.

Conclusion

For the reasons set forth above, the cross-motion by the

Chief Justice and the Associate Justices to dismiss the Federal

Claims, alleged in counts one through four of the Kirchgessner

Complaint and counts one and two of the PANJ Complaint is

granted; supplemental jurisdiction will not be exercised as to the

State Law Claims, alleged in counts five and six of the

Kirchgessner Complaint and in counts three and four of the

PANJ Complaint.- The Motion by Plaintiffs for a preliminary

injunction is denied as moot; the Kirchgessner Plaintiffsdemand ~

for class certification is denied as moot. An order accompanies

this opinion.

{s)

ALFRED J. LECHNER, JR., U.S.D.J.

AJL: jss

ce: John G. Basilone, Deputy Clerk

40A

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

)

Robert Kirchgessner, Jr., )

et al. )

) CIVIL ACTION NO. 94-5973

Plaintiffs, ) (AJL)

v. )

) ORDER

)

Robert N. Wilentz, et al. )

)

7 This matter having come before the court by way of the

motion of the plaintiffs (the “Plaintiffs") for a preliminary

injunction (the "Preliminary Injunction Motion") and by the

cross-motion of defendants (the “Defendants") for dismissal

pursuant Rule 12(b)(6) of the Federal Rules of Civil Procedure

(the "Motion to Dismiss"), and the court having considered the

submissions of the parties, and for the reasons set forth in a

Letter-Opinion filed on this date, and for good cause shown,

IT IS, on this 28th day of April, 1995,

ORDERED, that the Motion to Dismiss made by the

Defendants is granted as to the Plaintiffs’ causes of action based

upon Federal law; and it is further

ORDERED, that supplemental jurisdiction will not be

exercised as to the Plaintiffs’ causes of action based upon state

law; and it is further

ORDERED, that the causes of action based upon

Federal law alleged by the Plaintiffs be and hereby are

dismissed with prejudice; and it is further

ORDERED, that the causes of action based upon state

law alleged by the Plaintiffs be and hereby are dismissed

41A

without prejudice; and it is further

ORDERED that the Preliminary Injunction Motion

made by the Plaintiffs be and hereby is denied as moot; and it

is further

ORDERED, that the Plaintiffs’ demand for class

certification be and hereby is denied as moot

ALFRED J. LECHNER, JR., U.S.D_J.

41AB

PRINTER’S NOTE:

THIS PAGE LEFT BLANK FOR

PURPOSES OF PAGINATION

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 95-5328; No. 95-5329

ROBERT A. KIRCHGESSNER, JR.; MICHAEL

KRANYAK; ANDY KAFEL; JACK TOMASELLI;

CHARLES BENE; MAUREEN COOL; BILL SHEERAN,;

PROBATION OFFICERS/FOP MEMBERS ON BEHALF

OF THEMSELVES AND ALL OTHERS SIMILARLY

SITUATED; THE PROBATION ASSOCIATION OF NEW

JERSEY,

Appellants,

Vv.

ROBERT N. WILENTZ; ROBERT L. CLIFFORD;

ALAN B. HANDLER; STEWART G. POLLOCK; DANIEL

J. O'HEARN; MARIE L. GARIBALDI; GARY S. STEIN,

IN THEIR OFFICIAL CAPACITIES AS JUSTICE OF THE

SUPREME COURT OF NEW JERSEY,

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF NEW JERSEY

(D.C. Civil Nos. 94-05973, 94-06375)

District Judge: Hon. Alfred J. Lechner, Jr.

SUR PETITION FOR REHEARING

PRESENT: SLOVITER, Chief Judge, BECKER,

STAPLETON, MANSMANN, GREENBERG, SCIRICA,

COWEN, NYGAARD, ALITO, ROTH, LEWIS AND

MCKEE, Circuit Judges

42A

a ibid al Riis Ortiiens be rent Herc

The petition for rehearing filed by the Appellant in the

above-entitled case having been submitted to the judges who

participated in the decision of this court and to all other

available circuit judges in regular active service, and no judge

who concurred in the decision having asked for rehearing and

a majority of the circuit judges in regular active service not

having voted for rehearing by the court in banc, the petition for

rehearing is denied.

By the Court,

(s)

Circuit Judge

DATED: Aug. 21, 1996

jm/cc: AJF

RHS

43A

SUPREME COURT OF NEW JERSEY

E-57 September Term 1993

IN THE MATTER OF PROCEEDINGS CONCERNING

PROBATION OFFICERS’ MEMBERSHIP IN LAW

ENFORCEMENT ORGANIZATIONS AND PROPOSED

AFFILIATION OF PANJ WITH THE NEW JERSEY STATE

POLICEMEN’S BENEVOLENT ASSOCIATION, INC.

Hearings held March 16, 17, 18, 19, 21, 1994

Report of Special Master Issued March 28, 1994

Submitted to the Court April 28, 1994

Administrative Ruling Issued July 8, 1994

and Craig S. Gumpel for petition Probation

Association of New Jersey (Fox and Fox, attorneys).

Paul I. Kleinbaum and Robert A. Fagella for petitioner

New Jersey State Policemen’s Benevolent Association,

Inc. (Zazzali, Zazzali, Fagella & Nowak, attorneys)

George Tosi for petitioner Fraternal Order of Police.

_ Jude Del Preore, President, Chief Probation Officers’

Association, petitioner pro sé

Assistant Attorney General Robert H. Stoloff and

i illes for respondent

Judiciary of New Jersey (Deborah T. Poritz, Attorney General

of New Jersey, attorney).

PER CURIAM

The Court has been asked to review its long-standing

policy prohibiting probation officers from becoming members

of law enforcement organizations along with the related issue

of the propriety of the proposed affiliation of the Probation

Association of New Jersey (PANJ) wit the Policemen’s

Benevolent Association of the State of New Jersey (PBA). The

parties directly interested in the issue are the Fraternal Order

44A

PRR ae gee ee

of Police (FOP), PBA, PANJ, and the Chief Probation Officers

Association. We decided that to aid us in our administrative

disposition of the matter, we should appoint a Special Master

to develop a record and make recommended findings of fact.

Judge Paul Huot (Retired) kindly agreed to serve in that

capacity. His service has been invaluable in this matter. The

Probation Division of the Administrative Office of the Courts

participated in the proceedings, basically in opposition to all

other parties.

Our determination is grounded in long-standing policy

considerations that have governed the exercise of our exclusive

power over the administration of the courts. In this case that

power involves the Probation Division, an integral part of the

court system. Our determination is quasi-legislative, based on

the policy considerations noted below, conforming essentially to

policies adopted by this Court in 1976, and on our own

knowledge of the subject matter. These policy considerations,

this knowledge, and our decision are all derived from our

responsibility for, our authority over, our involvement with and

our regular and continuing regulation and oversight of the

Probation Division and its functions and operations. In arriving

at our administrative determination, we have been very much

aided by the testimony before the Special master and by his

report.

A. The Court’s administrative determination

As a comparison of our determination and the Special

Master’s report indicates, we have not adopted all of his factual

recommendations. Although we treat that subject explicitly at

various points in our determination, we note here that our

disagreement is not fact-specific, for as he notes the evidence

was largely insufficient, given the time constraints of the

hearing, to reach any such determinations (or as the Special

master noted concerning the central question before us, the

evidence was "not such that a true factual determination can be

made"). Concerning the matters submitted to him and his

report on those matters, our differences, as we view them, are

based on a different assessment of risks, are based on the

45A

importance of our plans for probation, and most of all are

based on our responsibility to protect the probation function

from those risks now and in the future. But our decision today

is more fundamental, rooted in the nature of judicial integrity

and its essential quality of impartiality.

Our decision rests on the fundamental difference

between probation and police organizations. Probation is an

integral part of the judiciary; everything that probation does it

does as an arm of the judiciary. Among other things, it is the

entity that enforces judicial orders. Given the nature and

functions of probation, it must be as impartial as the rest of the

judiciary, totally so and scrupulously so. Probation cannot take

sides any more that a court may, and cannot be perceived as

taking sides any more that a court may. It is not pro-this or

anti-that, it is not on the side of either men and fathers or

women and mothers, it is not on the side of either parents or

children, not on the side of either prosecutors or defendants.

It has no more right to become allied with a public defender’s

office than with prosecutors or police. Probation represents no

special interest in society and government but one: the courts.

Police and police organizations have but one interest

and one role: law enforcement. Everything they do serves that

interest: investigating crime, apprehending criminals, aiding in

the prosecution and conviction of the accused, and in the

imposition of punishment. The police stand firmly and properly

on one side of the scales of criminal justice -- the prosecution’s

side.

Put simply, the functions of police and probation -- one

serving the prosecution the other serving the courts -- are not

only different, but incompatible. Separation of the two is

essential to the impartiality of the probation function and to the

integrity of the judiciary.

The Court has therefore decided to maintain its policy

prohibiting probation officers from becoming members of law

enforcement organizations, in particular the FOP and the PBA.

A directive to that effect will be issued, including a requirement

46A

ve HS tis Si De trait MS a

that existing memberships in the FOP may not be renewed and

in any event must be terminated by resignation or otherwise by

January 1, 1995. We also prohibit affiliation of PANJ with the

PBA.

B.

Statement of basic probation policies

The opposing contentions of the parties and our

discussion of them require at the outset a clear statement of the

Court’s position on certain basic policies so that there be no

misunderstanding about them:

1)

2)

3)

4)

probation officers must enforce court orders

including conditions of probation; no junction of

probation is more important. While

enforcement is subject to the admitted existence

of some degree of discretion, the overall quality

of enforcement must result in court orders that

are consistently respected and obeyed. Lack of

resources is unfortunately a reality that affects

the level of enforcement; no other factor

constitutes justification fer—a level of

enforcement below that standard.

Cooperation between probation officers and

police is essential in achieving the maximum

effectiveness of probation. That cooperation

exists today, and the Court strongly encourages

it.

The probation function, especially in certain

aspects of supervision and collection, has

become increasingly dangerous. The Court

supports measures to ensure the safety of

probation officers.

The need to punish those convicted of crime has

never been more important. One of the

functions of probation and supervision of

probation is punitive; it is a function that cannot

47A

be compromised. The Court will continue to

direct probation to achieve that function for all

probationers.

5) The need for greater emphasis on intensive

supervision and rehabilitation as part of the

probation function is becoming increasingly

apparent. Guided by specific legislative

appropriations, the Court has supported action

in that direction, will continue to do so, and

anticipates a substantial acceleration of that

trend in the future.

The Court’s determination today is consistent with the

foregoing policies. None of those policies requires either an

alliance between probation and police or membership of

probation officers in police organizations. All of those policies

require preservation of judicial impartiality in the probation

function.

In the specific context of the issues submitted to the

Special Master and his report, we note that the rehabilitation

goal of probation, properly understood and administered, is not

inconsistent with its punitive goal. Probation officers must

pursue both goals; the punitive component without exception,

and the rehabilitative effort measured by its potential

achievement in the particular case. Probation officers need not

act like police nor be identified as police in order to achieve the

punitive goal; and if they do so act or are so identified, they will

be significantly less able to achieve the rehabilitation goal.

Cc. The administrative proceedings and the Special

Master’s report.

The foregoing constitutes the underlying basis for our

decision. The issues submitted to the Special Master, issues

raised by the parties’ request that we reconsider our policy, deal

with specific aspects of probation not directly addressed above.

While those issues are ultimately related to and impinge on the

judicial nature of probation and its essential impartiality, they

48A

touch on other matters as well. Involved is the present and

future mission of probation, our plans for strengthening

probation’s effectiveness, and, in that context, a more detailed

treatment of the impact of an alliance between probation and

police. In the proceedings before the Special Master, PANJ

and the police organizations, in addition to their implicit

challenge to our statement of the essentially judicial nature of

probation, question whether changing the present policy would

have any adverse effect. They also claim that the policy is

irrelevant both to the present and future mission of probation

and to plans for strengthening probation. Since our response

to those challenges and claims plays an important part in our

decision, reinforcing the decision’s fundamental basis as set

forth above, we address this aspect in detail below. We note

that whatever the specific context or aspect of the various

disputes, the necessity of preserving the impartiality of

probation officers and the probation function is central to the

resolution of those disputes.

(1) Summary of AOC testimony

We note at the outset testimony of Harvey Goldstein,

because its import is a recurring theme in these proceedings

and in our decision. Mr. Goldstein, the Assistant Director of

the Probation Division of the Administrative Office of the

Courts, has had twenty-five years experience in various aspects

of probation, holds a Master’s Degree in Criminal Justice, and

is the former President of the American Probation and Parole

Association. He is, and has been for the past elewen years, the

official charged with primary responsibility for the probation

function in this State. While he dealt with many aspects of

probation as it affects this case, his statement of the role of

probation -- as consisting of both punishment and rehabilitation

components -- was the basis for his central conclusion; the

critical need of probation today is to establish and maintain an

appropriate balance between those two components, a balance

seriously threatened by membership in and affiliation with

police organizations. Mr. Goldstein pointed out various

consequences of such membership and affiliation: the identity

of probation officers as police in the mind of the probationer

49A

and the public; the identity of the probation function itself as

police work; the impact of those identifications on the

willingness of community groups to become involved in

rehabilitative efforts, and its impact on the probationer’s

cooperation with those efforts; the influence of membership and

affiliation on the conduct of probation officers, substantial and

inevitable influence as he viewed it, although subtle and as a

practical matter, largely undetectable and unprovable given the

nature of probation work and the broad discretion vested in

probation officers; the impact in fact and appearance on

probation officers’ impartiality in performing numerous

functions that influence important decisions in criminal cases:

bail, pretrial intervention, sentencing, and revocation of

probation itself; and its impact on those probation officers

holding important positions in the court system, in particular

performing case management functions in the Criminal Division

and the Family Division, including holding positions such as

team leaders and assistant division managers. Mr. Goldstein

implied that even today the balance is not appropriate: that

because of the shortage of resources, probation officers are

hard pressed to perform their punitive role effectively, and the

goal of rehabilitation is often theoretical. His view of the future

of probation provides content to the concept of an appropriate

balance: he noted the success, including its impact of

recidivism, of the Intensive Supervision Program (ISP), and the

implementation of the Juvenile Intensive Supervision Program

(JISP) -- both programs relatively new, each including not only

carefully supervised conditions of probation but also

substantially expanded efforts at rehabilitation -- and he pointed

to intermediate sanctions, a probation model often described as

somewhere between prison and conventional probation, proven

to some extent in pilot projects in various counties, as the

promise of the future, with its punitive component accompanied

by deep community involvement in rehabilitative efforts to

reintegrate probationers into the community. He noted through

all of this the need for a substantial increase in probation

resources, especially in probation officers.

From Mr. Goldstein’s testimony, a clear picture

emerged, a picture of probation today, struggling to achieve its

50A

goal, short of resources, the rehabilitative component seriously

affected, the appropriate balance not achieved; and the future

of probation, with all of its promise, its great potential,

dependent on additional resources, dependent on restoring the

balance by greatly strengthening both components. He stated

his conclusions not as an academic theoretician but as a

practical judgment from one experienced in probation that both

its present and future effectiveness, and especially its great

potential for rehabilitation, would be hurt by the proposed

membership and affiliation of probation officers in and with

police organizations. In his testimony Mr. Goldstein strongly

supported the need of cooperation between probation and

police, but carefully distinguished cooperation from

identification, with all of its consequences, and its potential

damage. He thought probation should seek to establish

between probationer and probation officer a relationship of

trust, not surveillance.

William D. Burrell, Gregory B. Wilcenski, and Raymond

R. Rainville provided supportive testimony. Mr. Burrell, with

twenty-two years experience in probation, also holds a Master’s

Degree in Criminal Justice and is the former President of the

National Community Service Sanctioning Association. He is

presently the Chief of Supervision Services in the Probation

Services Division of the Administrative Office of the Courts.

Mr. Wilcenski, Chief of Juvenile Probation Services, has twenty-

four years experience in probation and a Master’s Degree in

Criminal Justice. Mr. Rainville has twenty-five years experience

in probation, a Ph.D. from Fordham University, and is the

former President of the National Child Support Enforcement

Association.

(2) Consideration of the present

function and the future function

of probation

An underlying question implicit in the administrative

proceedings before the Special Master is whether the Court’s

probation policies may consider not just today’s realities but

also tomorrow's plans. The Court concludes not only that

51A

today’s realities justify its determination, but that a different

determination would substantially damage the ability to achieve

future plans. We appreciate the strength and sincerity of the

opposing views of some probation officers. In particular, we

are sensitive to the safety concerns that partially underlie those

views. The wish, apparently shared by a substantial number of

probation officers, to become more closely allied and identified

with police inevitably gives us pause, for we are reluctant to

impose on such dedicated judiciary employees a restriction that

they find not only in conflict with their own wishes, but also one

they believe is unjustified by their own understanding of the

probation function. But the dangers of the moment cannot

determine the long-term policies of probation, even though they

have a significant impact today on safety. The position of the

probation officers, however, also reinforces our conclusion

concerning the importance of our determination, for obviously

we are not restricting some theoretically possible identification

of probation officers with police: we are in fact resisting a most

concrete and substantial attempt to bring those two forces --

police and probation -- closer to unification.

The organizations before us paint a picture of probation

officers able today to perform only one function, and therefore

realistically with only one objective -- enforcement of

punishment -- but with insufficient resources even to accomplish

that. Given that single objective, and given the history of

underfunding that relegated rehabilitation to an

almost=theoretical goal, they note that neither the public nor

the probationer have a different view -- both see probation

officers much the same as police. Indeed, the reality of today

is a probation function so starved for resources that supervision

in many cases cannot achieve punishment, cannot secure

compliance with conditions of probation, and even more so

cannot achieve rehabilitation. According to Mr. Goldstein, the

number of probation officers in New Jersey should be doubled.

Administrative Office of the Courts, State of New Jersey, A

Model _ for Enhancing Probation Supervision: Purpose,

Priorities, Practices (1992) at p. 47 and Tables 1 and 2. In

response to the insufficient number of probation officers, that

report (approved by the Supreme Court in November 1992)

52A

suggests classifying cases according to the degree of risk,

dedicating more supervision to high-risk cases and less

supervision to low-risk cases. Jd, at 53. Establishing a priority

of cases and, when appropriate, relaxing supervision will allow

overburdened probation officers to manage their caseloads. Id.

at 9,

(2)(a) Moving toward the twin goals of

punishment and rehabilitation

The Court agrees, along with Goldstein and other

experts in the field, that the two goals -- punishment and

rehabilitation —- must be balanced and that present knowledge,

including experience in New Jersey, strongly points to

substantially greater benefits t society when the rehabilitative

component, long neglected, is addressed along with the punitive

component. Our future plan is for a probation function with

personnel sufficient not only to punish but to bring probationers

back into the community as productive citizens in significantly

larger numbers than now, to diminish recidivism, and, among

other things, to reduce the need for construction of prisons.

The ultimate issue -- whether probation officers should be even

more strongly identified and associated with the police, in fact

and in appearance, by allowing them to join police

organizations and be part of a police union -- turns on those

differing policy goals. Clearly the judicial necessity of

impartiality does not permit such alliance. Furthermore, we

hold firmly to the conclusion that close identification of

probation officers with police is unnecessary to the achievement

of the punitive function and is inconsistent with the

rehabilitative goal of probation; that such close identification

would constitute a serious obstacle to the cooperation of both

the community and probationers, cooperation that is essential

to rehabilitation, so important now and even more so in our

plan for the future; that it would jeopardize those future plans;

and, finally, that no scientific survey is required legally to

support these essentially predictive conclusions, but rather that

the practical and policy judgment is ours to make, a judgment

fully supported on this record by the testimony of experts and

by our own experience and common sense.

il

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————————

The questions raised by counsel suggest that the public

wants enforcement and punishment, rather than rehabilitation.

This is only part of the picture. What the public wants is an

end to crime, an end to recidivism, and perhaps an end to the

endless construction of new prison. If, as we believe, the more

likely path to these ends, a path supported by the Legislature,

is an appropriate balance between the punitive and

rehabilitative functions of probation, we owe it to the public to

reset that balance; and if we believe that achieving that balance

is less likely if we turn probation officers into police, we owe it

to the public not to allow that to happen.

The considerations that were the basis for this long-

standing policy concerning membership in law enforcement

organizations are even stronger today than before. Although

they may not have been Clearly spelled out at the time, those

policy considerations appear to have had the same basis as

today’s decision: the need, both in fact and in appearance, of

total impartiality on the part of probation officers as an arm of

the judiciary, especially in matters related to law enforcement.

Probation officers are on the side of impartial justice, as is the

entire judiciary, and may not act or be perceived to act in favor

of any other interest.

The future course for probation, although not yet fully

implemented, required impartial enforcement of more court

orders that will have a significant rehabilitative component.

The Court has intensely studied the probation function over the

past thirteen years. We have formed commissions, task forces,

and study groups, and held conferences in that effort. The most .

noteworthy conclusion, among many, of those studies is that |

probation’s role is not only the punishment of offenders but also

the rehabilitation of offenders and their ultimate reintegration

into the community.

(2)(b) Recent developments in

probation; future plans _ for

probation; ISP; JISP, and

intermediate sanctions

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One model of that role is the Intensive Supervision

Program, presently in place for adult offenders (ISP) and in the

process of implementation for juveniles (Juvenile Intensive

Supervision Program or JISP), both supported by specific

legislative appropriations. Probationers under ISP, as the name

implies, are carefully and intensively supervised pursuant to

court order to assure compliance with conditions usually much

more severe than those applicable to ordinary probationers,

who often get at most a phone call or a rare visit. Its punitive

component is substantial, sometimes in fact the functional

equivalent of the incarceration terminated by ISP. ISP’s

rehabilitative component, however, also pursuant to court order,

far exceeds that of ordinary probation. It commences with

assessments of plans proposed by probationers, families, and

friends, including community support groups. The goal of the

plan is the probationer’s recovery, reformation, employment,

rehabilitation, and reentry into the community. The program

works through training, discipline, employment-seeking,

organizing community groups, getting employers interested in

the program, referral to appropriate service agencies for drug

and alcohol treatment if necessary, and anything else that is

conducive to rehabilitation. It has been enormously successful,

as documented not only by dramatically lessened rates of

recidivism, but by careful independent evaluations as well. See

Frank S. Pearson, Institute for Criminological Research, Rutgers

University, Final Report - Research on New Jersey’s Intensive

Supervision Program (1987), and Frank S. Pearson, Institute for

Criminological Research, Rutgers University, Deterring Drug

; edd .

The key to ISP’s success are the highly-trained, highly-

dedicated probation officers directly charged with the

responsibility for all aspects of ISP, both rehabilitation and

punishment. Their role, simply put, is to pull these many

elements together and make them work. They are the right

arm of the rehabilitation component. They are not just the

probationer’s keeper, but also the probationer;s supporter,

counselor, a link between the probationer’s past and his or her

hope for a future, and sometimes even a role model. They are

firmly committed to the probationer’s rehabilitation under court

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tee LAYS RAEI RED PE ECDL II BBN a AOE Mh ee I,

order, with the help of family, friends, and community, all in the

effort to achieve a normal productive life.

The role of these probation officers would be impossible

if they were perceived in any way as "law enforcers,” as "police,"

or if they acted as such. Neither the community groups, the

family, nor the probationer would accept, work with, or be

inspired by someone thought to havé punishment as the main

goal. The same concerns apply to JISP. Although our

experience with that program is more limited, we believe these

concerns as applied to JISP are just as strong, perhaps even

stronger, given the heightened sensitivity and vulnerability of

juveniles, and their suspicion of authority figures.

Our support of ISP and JISP, as well as intermediate

sanctions, a modified version of ISP discussed below, is not

based on some penological policy independently adopted by this

Court. ISP and JISP, with both punitive and rehabilitative

components, were approved by the Legislature before either

program was implemented by the judiciary, ISP in 1983 and

JISP in 1992. That the Legislature has supported them is an

understatement: in effect the Legislature has mandated them.

While these programs were initiated by the Judiciary, the fact

is that before implementation of either, line item appropriations

were passed by the Legislature, the appropriations confined

exclusively to the funding of ISP and JISP. Such appropriations

are intended by the Legislature as both support for a program

and a direction that it be implemented, and are ordinarily so

regarded by the judiciary. This legislative support and direction

have been remarkably strong: during a period of sever fiscal

constraint and shrinking budgets, funding of the ISP line item

has held firm and the JISP line item, funding a new program,

was started, a most unusual occurrence during years when

funding of existing programs was often diminished or even

eliminated. The penological policy, therefore, implicit in ISP

and JISP is very much legislative, fully concurred in by the

judiciary.

Even more that ISP, the future of probation is in the

area of intermediate sanctions, a modified ‘orm of ISP.

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ee ee

Intermediate sanctions consist of court orders providing for

supervision less intrusive than ISP, for rehabilitation more

extensive, and with integration into the community as its

touchstone. Assuming legislative concurrence and support, this

is what we see as the future of probation, applied to

probationers in far greater numbers than the legislatively

approved ISP or JISP. In intermediate sanctions programs,

probation officers are part of a community program, organized

by community activists, court personnel, treatment providers,

potential employers, interested citizens, public officials -- a plan

of rehabilitation and integration into the defined community (a

section, a block, a group) in all of its elements, but still with a

defined collection of individuals directly responsible for the

probationers. Unlike ISP, this program does not require prior

incarceration, for neither jail nor prison is necessarily

appropriate for these less-than-serious offenders although

without the availability of intermediate sanctions as a sentencing

option, jail or prison is in fact often the sentence. The potential

impact of intermediate sanctions on the prison and jail

population could be substantial. Critical to this effort are the

probation officers, responsible for assuring that intermediate

sanctions are working, that not only are the conditions of

probation, i.e., punishment, met, but also that the at-least-equal

goals of rehabilitation and integration into the community are

realized.

Intermediate sanctions (and its result in reducing

recidivism) is the hope of the future for probation. But it is

more than mere hope. We have in fact tried it in New Jersey -

- in Newark and in New Brunswick (and to a lesser extent at

the county level in Bergen, Camden, Morris, Essex, and Union

Counties), and it appears to work, although the experience so

far has not been extensive. The concept has enormous promise,

both for those probationers who will benefit and for society.

The incompatibility of a probation officer’s role in this program

with the identification of that probation officer as a police

Officer is glaring: trust, confidence, and hope -- not punishment

-- are the essential ingredients for the cooperation of all

involved in intermediate sanctions and for the program’s

success. An intermediate sanctions program will not even get

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off the ground without the initiative of an impartial probatica

officer, without the ultimate responsibility of a trusted probation

officer. The necessary individuals and institutions in the

community will not participate if they believe the probation

officer is more interested in discovering and punishing a

violation of probation than in encouraging a potential for

rehabilitation.

The inability to obtain community support for a

probationer under a court order designed to integrate him or

her into society cannot be supported by statistical analysis, but

the anecdotal evidence is persuasive. Mr. Goldstein noted one

conversation, the theme of which was common to many

conversations he had throughout the state, when community

activists told him that they would never attempt to become

involved in such a program if probation officers remained "mini

cops,” that "if all you want us to be is min-cops who are going

to be watching what your clients are doing and reporting them

so that you can have them re-arrested and sent back to court

for other kinds of handling, we don’t want to get involved."

The likely future of probation, described above and

proven by present experience, thus provides added support for

our position. The allowance of membership in police

organizations moves us in the wrong direction nd threatens the

success of probation. But for the obvious fiscal constraints, our

proposed budget would have included the very substantial

expansion of probation needed to implement our plans further.

The organizations before us in effect dismiss these plans ar

unrealistic, given present fiscal constraints. Our determination

of the question before us is not the appropriate place for

budgetary analysis, but obviously, if successful, the cost of such

programs in the long run may be justified by savings far

exceeding costs.

This emphasis on rehabilitative programs underlines the

necessity that probation officers must both in fact and in

appearance be totally impartial -- especially given our overall

view, significantly supported by the Legislature, that probation’s

future is grounded in ISP, JISP, and intermediate sanctions.

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The integration, involvement, and identification of probation

officers as police is inconsistent with that future. It would do

damage even as it affects probation today, damage to the role

of probation today and to programs that are already in place.

But its potential harm for the future is much greater, since

probation’s future itself is much greater. We will not risk that

future implementation with any such entanglement of probation

with the police.

The importance and timeliness of our plans for the

future are underlined by the advent of State funding.

Probation, like the rest of the judiciary, has been afflicted both

in its funding and management by the existence of twenty-one

counties disparately supporting judicial functions, including

especially the probation function. The result has been a variety

of practices, procedures and policies making a coherent State

policy difficult to achieve. It is now possible, as a result of State

funding, to implement the studies that we have made, to

implement the legislative policy, a policy that we believe in, and,

more than possible, it is something for which we can and should

be held accountable. The greater likelihood of funding

adequate to implement that policy statewide must not be

jeopardized by actions that impair our ability to do so, actions

that will properly be recognized as such.

Extracts from the following reports indicate the

judiciary’s commitment to both the punitive and rehabilitative

functions of probation, the increasing importance of the

rehabilitative goal (within the context of a recognition of its

primary duty to enforce court orders) and the consequent

increased stress on community involvement, along with the

emergence of intermediate sanctions and its importance.

Final Report (approved by Supreme Court April

1993), 1992 Judicial Conference on Sanctioning

_ and Probation (pp. 1, 2, 7, 8, 13-16)

1992 Judicial Conference on Sanctioning and

Probation (Report of the Committee on

Probation Management (pp. 15, 30-31(; (Report

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of Committee on Community Supervision (pp. 1,

3, 4, 10))

Final Report (approved by Supreme Court

November 1991); 1990 Judicial Conference on

Drugs and the Courts (pp. 40, 41, 45)

Final Report (approved by Supreme Court

October 1990), 1989 Judicial Conference on

Juveniles, Justice and the Courts (p. 39)

1989 Judicial Conference on Juveniles, Justice

and the Courts (Report of the Committee on

Community-Based Treatment and Services (pp.

48-52)).

Extracts from the Final Report of the New Jersey Sentencing

Policy Study Commission appointed by the Governor (1994)

(pp. 2, 12, 75, 76) point in the same direction.

(3) The increased need for

impartiality: role conflict

problems

Other factors, not present when our policy prohibiting

membership in law enforcement organizations was first

pronounced, are strongly supportive today. The vast majority

of case management personnel in the Criminal Division and the

Family Division of Superior Court are probation officers,

including some assistant division managers and team leaders.

The fact is that probation officers provide a rich pool of ©

talented public servants uniquely qualified for that type of work.

Given the absolute mandate of impartiality in those positions,

and given that they are court officers performing important

functions in which the police and law enforcement in general

have a substantial interest and, indeed, have adversarial

position, their identification as members of a police organization

would be unthinkable. That it is theoretically possible to single

out those probation officers from other probation officers and

extend the prohibition only to them is no solution. Not only

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does that understate the importance of the prohibition as

generally applied to all probation officers, but it would restrict

the judiciary’s ability to assign and reassign personnel from

probation functions (or collection functions) to case

management functions and back. The identification of case

management professionals as former members of a police

organization will not disappear so quickly, nor will their general

identification as part of law enforcement, if probation officers

generally are perceived as police, as part of the PBA or FOP.

(4) The potential consequences of

PANJ affiliation with the PBA

The affiliation of PANJ with the PBA would

compromise probations’ impartiality and would be inconsistent

with our basic conclusion that the probation and police

functions are fundamentally incompatible. The stipulated result

of the proposed affiliation would be membership of probation

officers in the PBA. Furthermore, other potential consequences

of this affiliation threaten the impartiality and integrity of the

probation function. We cannot say from the record before us,

and we simply do not know, if the PBA would insist that

probation officer members adhere to the relationship with the

PBA that is clearly contemplated by its constitution and be

required to satisfy all PBA membership obligations. In the

absence of any evidence to the contrary, we assume the PBA

will so insist; the next two paragraphs are based on that

assumption.

In addition to automatic membership in the PBA, all

probation officers who are members of PANJ (and perhaps

those who, though not members, are in units represented by

PANJ) will be “subject to the jurisdiction” of the PBA. Their

organization becomes a "local of the PBA.” Like all such locals,

they will have the right to endorse political candidates, take

positions on political and legislative issues, and will be obliged

to maintain public relations with local legislators. Each such

probation officer will have a PBA car shield issued to him or

her, along with "safety cards," which we assume identify the

holder as associated with the PBA for whatever advantage that

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may bring. Although the PBA will not act as PANJ’s exclusive

negotiating representative, it is available for such advice and

consultation and guidance in that area as PANJ may desire.

Counsel stated that although the PBA does not routinely sit at

the bargaining table, it would if asked.

Every such probation officer will be required to

complete a police training course (PTC) and certification. Our

understanding is that the PTC require nine continuous weeks,

five days a week, of training designed to improve the skills of

police officers, to make them better police officers, including

inculcation of respect for law enforcement values and the

interest of law enforcement personnel -- police. Putting aside

the very substantial problem of the loss of services of these

probation officers by the judiciary, their potential

transformation from probation officers into police officers is

obvious. As the Special Master noted, one of the consequences

of affiliation is that PANJ will lose its autonomy, and to that we

add so may the probation officers.

Each probation officer will be subject to the

control and regulations of the State PBA.

Probation officers may be placed in the position

of supporting or opposing political candidates or

legislation which may or not be in the best

interest of probation officers. Probation officers

may be placed in the conflict position where the

state organization offers a monetary reward in

connection with the arrest and conviction of a

defendant convicted of assaulting or killing a

PBA member.

[Special Master’s report at 10.]

We cannot say from this record precisely what the

effects are of PANJ and probation officers being "subject to the

jurisdiction of the PBA." What is apparent, however, is that the

affiliation, the membership of probation officers in PBA, and

the relationship that results, contemplate an entanglement of

probation officers with police that may significantly affect and

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transform them and the probation function. They will have

become committed to the goals of the PBA, to the interests of

police; they will be subjected, we assume, on specific issues to

newsletters and the like, and to other efforts to subscribe to the

Position of the PBA, and to work in support of it. They will

presumably attend PBA-sponsored meetings reinforcing that

allegiance. To the extent any or all of the foregoing is generally

known, their identification as the impartial employees of the

judiciary will be overwhelmed by their identification as law

enforcement officers allied with the police, and in fact the

distinct risk exists that they will become such.

Probation officers, thus identified as, and identifying

with, police would continue to investigate for and prepare pre-

sentence investigations, a critical factor in judges’ sentences; bail

reports, important in determining the terms of bail, including

the amount; pretrial intervention investigative reports, often

determinative of admission to or rejection from that program;

and probation violation reports that may lead to imprisonment

of the probationer. All of these reports may depend

significantly on police information. A probation officer who

identifies with the police may be less able to critically evaluate

that information. The damage to the judiciary of the

appearance of police bias is obvious and profound as is the

damage to the defendant from the possible police bias in fact -

- conscious or subconscious. In addition, probation officers

continue to act as court-support personnel, including team

leaders and assistant division managers, in both the Criminal

and Family Divisions of the Superior Court where their services

affect law-enforcement-related matters in many other important

ways.

We need not look into the future of probation that we

are trying to establish, but can simply view probation as is exists

today to grasp the incompatibility of these consequences with

probation’s function. This is no "social and fraternal”

relationship[, such as that found to have been established by

membership in FOP. The PBA is an Organization actively

supporting the interest of police in every legitimate way

possible, politically, legislatively, and through the support of its

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members, an organization that expects its locals -- to which it

would add PANJ and all of the probation officers within PANJ

-- to follow its lead.

We therefore prohibit the proposed affiliation.

(5) The Court’s position and the

Special Master’s report;

probation’s affiliation with an

membership in the PBA

The Special Master’s report and recommendations are

based on his view of probation as it now exists. If probation’s

lack of resources and its consequent inability to fulfill its role is

assumed to b e permanent condition, our disagreement with the

Special Master would be less pronounced. We do not accept

today’s significant identification of probation officers with law

enforcement and police, nor the presumed approval by

everyone, including the public, of a system dedicated almost

exclusively to enforcement and punishment as distinguished

from rehabilitation and integration into the community. Strict

enforcement of court orders is essential, and we do not intend

to allow it to be weakened. Indeed, we have set up a

comprehensive enforcement court that has been so effective in

that area that the Legislature recently signaled its support for

statewide expansion. But this picture of the present is precisely

what we do not wish to reinforce or to freeze. The Special

Master notes the heavy caseload of probation officers -- an

average of 175 cases per officer, and in one county as much as

300. His implication, and a correct one, is that it is impossible

under present circumstances for most probation officers to do

more than a telephone call or a visit, to say nothing of effective

rehabilitation and integration into the community. The point of

difference is that we are determined to change that situation

and will not surrender to present circumstances by making it

even more difficult in the future to do so. That is precisely one

effect of membership in the PBA: it would make our task more

difficult, and make the achievement of our goals less likely.

We agree with the Special Master that the testimony,

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perhaps because of the nature of the issue, was such that a true

factual determination could not be made, and here we are

referring to the difficulty of evaluating the risk of damage to

probation’s future. Our concern is with the risk itself, and the

extent of the risk, and the values threatened by the risk. We

believe the risks substantial, and we know that the values are.

That today’s probationer views the probation officer as

“enforcing” good behavior rather than as an instrument for

rehabilitation may be all too true, but again it is not a condition

we are willing to strengthen. That the public, according to the

Special Master, would applaud PBA membership proves, to us

at least, the urgent need to continue to transform probation not

as membership in the PBA would, but to transform it to the

extent suggested above, and in a way that the public would

understand, in order to give probation the chance to prove its

rehabilitative powers so that the public would applaud

successful rehabilitation of offenders, successful integration of

those offenders as productive citizens in our community,

successful reduction of recidivism, and a successful slowing

down of the escalating costs of prison construction and

operation.

The Special Master notes that "there is no evidence one

way or the other" on whether the probation officer, because of

PBA affiliation and membership, will act differently toward

those he or she is to supervise or investigate. We respectfully

disagree. We believe the affiliation membership itself, along

with PBA’s constitution and goals, is evidence of its likely

impact on probation officers. This is not an Organization that

has been a nullity, without influence on its members. It actively

promotes the interests of the police with the Legislature and the

Executive. It has a formidable presence in society. The Special

Master observes that the effect on gach probation officer will

depend on the officer’s professionalism, that being the Special

Master’s "view of human nature." Certainly the impact of being

affiliated with the PBA on each probation officer who is a

member cannot be predicted with any confidence; it obviously

depends on the individual. But the Court can predict thai it

will have some impact on all such probation officers, an added

police influence in their work, and that it may, and probably

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will, actually effect many of them in their work, however subtly.

The Court must be concerned with how the overall impact of

the affiliation, its probable direction, its likelihood of influence,

will affect the probation officers’ relationship with probationers,

even though “it will," as the Special Master points out, “depend

on each individual." Certainly the strength of the movement of

probation officers to associate with police, whether in the FOP

or in the PBA, is testimony to the conclusion that the risks of

identity and influence is more than minimal.

Our determination and the foregoing observations adequately

indicate the extent of our disagreement with parts of the Special

Master’s finding, report, and recommendations, and the basis

for that disagreement. Among other things, we differ with the

statement that “it would appear that membership in the

Fraternal Order of Police or Policemen’s Benevolent

Association will not affect the functions of probation." That

conclusion of the Special Master is presumably qualified by his

prior observation of the inability on this record to make a “true

factual determination.” Whatever the probability of truth may

be in that prediction as applied to probation as it exists today,

we find the risk of that effect unacceptable, even today, and

totally unacceptable in terms of the future.

We realize that the identification of probation officers as police

and the impact of that on the probation function, both present

and future, while a conclusion based on our own knowledge and

experience, as well as that of Mr. Goldstein and other experts

in the court system charged with responsibility for the probation

function, is a conclusion at odds with the views of many .

probation officers. Those holding a contrary view note that

probation officers will not wear PBA badges, they doubt that

the identification of probation officers as police officers will be

any greater than it is now, and they suggest that it will not

cause damage, noting the existing, albeit unauthorized,

membership of some probation officers in the FOP, Despite

these contrary views, we must act on our own best judgment.

our responsibility is clear, as is our authority. It cannot await

painstaking surveys and statistical analyses of potential public

perceptions and the potential effects on probation officers, with

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all of th uncertainty accompanying such studies. Our

responsibilities call for practical judgments, not scientific

certainty. Furthermore, resolution of the issue is not amenable

to anything even approaching scientific certainty. Government,

including the judiciary, is permitted to use its power based on

its best judgment, so long as it is rational. Government is not

obliged to demonstrate itself as an unerring soothsayer.

Nor can we afford to wait for the effect of police

identification to set in. Some probation officers argue that if

some individual officers do not do their job right, if they act

more like police than probation officers, if they err toward

punishment at the expense of rehabilitation, then specific

corrective action can be taken -- they can be disciplined or

dismissed. We reject that suggestion. As Mr. Goldstein noted

the nature of the probation function allots a significant portion

of the officer’s work to discretion, and that discretionary aspect

is almost impossible to monitor. Since we cannot detect the

damage, we must try to eliminate the risk. We must assure that

the fundamental conditions of employment do so, that they are

consistent with the policies of the Court.

(6) The Court’s position and the

Special Master’s report: the

risks presented by FOP

membership

While the significant differences between the FOP and

PBA effectively undercut the argument that no harm to the

probation function will result from PBA membership inasmuch

as allegedly none has resulted from the unauthorized

membership of some 600-800 probation officers in FOP, those

differences still leave us with the question of the justification for

prohibiting probation officer membership in FOP.

Given the differences in the activities of these two

Organizations and even in their stated goals and stated

permissible activities, the risk to the probation function from

FOP membership does not at present appear to equal the risk

of PBA membership and affiliation. FOP prohibits political and

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- TL es seems asa

tt

legislative activity; it is not "a labor union" and may not become

affiliated with any union of industrial workers. Although the

Special Master found that in fact the FOP, like PBA and PANJ,

has engaged in political activity, he also found that it was

"primarily a social and fraternal association," and that the

activities of probation officers as members were limited to

social and fraternal relations.

The crystal clear fact remains, however, that the

FOP is an organization devoted to the interest s of police. It is

a police organization. It announces itself as such; it functions

as such. And there is some inevitable risk that in fact and in

appearance it will affect probation officers. We say this on the

basis of logic and experience, and even though we have been

unable in these proceedings to measure any actual damage

done by prior membership by probation officers, the risk is

obviously there.

We agree that the FOP’s constitutional prohibition

against membership by anyone who is not a law enforcement

officer is irrelevant to the issue before us. That is a matter for

FOP determination, and if it decides that probation officer

membership does not conflict with its own constitution, we have

no business interfering with that determination.

While the resolution of the question is not as clear as it

is with PBA, we conclude that our duty to preserve the

impartiality of the probation function in fact and in appearance,

and probation’s ability to continue to implement our existing

programs and future plans, must not be subjected even to the

lesser risk posed by such membership. That the judiciary

cannot control or keep track of the possible evolution of FOP

and the possible changes in its policies or activities should be

obvious from this record, for we were unaware of the very

substantial violation of our prior orders prohibiting FOP

membership.

Associational rights are precious and should not be

restricted without reason. But where important legitimate

interests are involved, compelling interests, government must be

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practical in its protection of those interests. The risk may

increase in the future; it may remain the same. But if

government's justifications for action are basically sound, we do

not believe government is required to constantly measure the

balance between risk and associational rights in order to

support its decision. If one believes, as do we, that the

identification of probation officers as police and the influence

of probation officers by police are inconsistent with the essential

impartiality of the judiciary and as well with important goal of

the judiciary, then the level or risk involved here is not

acceptable; it is much more than minimal and we know of no

other way to effectively eliminate it.

A decision barring future membership in PBA but

permitting continuation of the present unauthorized

membership in FOP is not simply incongruous, it would be a

policy going in two different directions at the same time. The

Court will not at the same time create new protections for

probation while destroying those that previously existed. Both

are needed, even though one seems more badly needed than

the other.

A most significant fact bearing on the relevance of the

lack of proof of any impact of FOP membership on the

performance of probation officers is the history of that FOP

membership. The 600 to 800 probation officers who became

FOP members did so under circumstances that suggest they

were then uniquely unattached to the FOP and therefore

unlikely to be influenced by its activities. Five hundred and fifty

of them joined wholesale, not as individuals expressing a desire

to become involved in FOP, but as probation officers who were

members of collective negotiation units whose representatives

decided to bring all of them in, en masse, as FOP members.

They did not apply individually for membership, they did not

pay for membership. Their unions, in Bergen, Essex, Hudson,

Passaic and Union Counties, decided that they would become

members; the union paid their membership dues, at which point

they each automatically became members. Their motivation

was simple; they wanted the benefit of certain kinds of group

insurance that afforded them coverage at lower rates than they

69A

would otherwise get. It is hardly a measurement of the

potential of bona fide FOP membership on the function of

probation to note the lack of its impact on these particular

members. We do not challenge the legality of legitimacy of

such membership, we simply note its nature.

The fact that probation officers, and perhaps the public,

are quite content with present arrangements, content with FOP

membership, the fact that they appear, when stated, to be

neutral, benign, unimportant, because they are "social and

fraternal," all of this masks the obvious truth underlying the

association. Why the Fraternal Order of Police? Why not

Rotary, Kiwanis, Knights of Columbus, or hundreds of other

social or fraternal organizations, even some with activist

agendas? It is the police function that attracts, it is the

identification by the probation officers themselves with the

police and vice versa that is underlined. It is the striking

manifestation, no matter how benign, of precisely what this

Court is trying to avoid, to prevent, and to eliminate. If the

public does not mind, if probationers do not mind, it is because

they already believe that probation officers are police. If we

are ever to change that perception, this membership cannot be

permitted.

We need no wait to act until the organization -- an

organization dedicated to professionalism, not a labor union,

not involved in politics of legislation -- begins the process of

transformation, in competition with the PBA, that has occurred

with other similarly professional, non-labor organizations in the

public employee field. The New Jersey Education Association

at one time proclaimed itself as a professional organization

uninvolved in politics, legislation, our union activities. We note

that after these proceedings began, a local lodge of the FOP

filed a petition to be the exclusive labor representative of the

probation officers of Essex County, the largest group of

probation officers in the States. The State FOP’s constitution

has a statement that it is not a “labor union." We nced not

calibrate the FOP activities, day-by-day, month-by-month, or

year-by-year, to determine the moment that the balance shifts

and when the risk becomes apparent enough to others to justify

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our action. Police or probation: the two simply do not mix,

and the risk of the mix, we conclude, justifies this associational

abridgment.

(7) Other issues

Since we did not submit any constitutional issues to the

Special Master, he properly declined to rule on counsel’s oral

contentions made at the hearing. Briefs were not submitted to

was any record developed specifically directed at those issues.

Our ruling today is administrative, based on our exclusive power

over the administration of justice, a quasi-legislative power.

Obviously our courts are available, including this Court, to

adjudicate any constitutional issues related to this matter that

may be raised in appropriate litigation. We note, however, that

Article I, Paragraph 19 of the New Jersey Constitution does not

appear to be involved, since PANJ does not seek to have the

PBA as its negotiating representative.

The Court expresses no opinion on whether police

officers are prohibited by N.J.S.A. 34:13A-5.3 from becoming

part of collective negotiation units that include probation

officers. As the Special Master’s report suggests, it is a

question affecting the rights of police, not the rights of

probation officers, and, as such, is a question inappropriate for

adm/nistrative determination by this Court.

On an unrelated aspect of the matter, we note the

Special Master’s observation that probation officers would likely

designate PANJ as their collective negotiations representative

if a state-wide election were to be held. Putting aside the

question of its relevance, we note simply that we do not predict

election outcomes.

me CONCLUSION

To summarize, we have decided to maintain the Court's

policy prohibiting probation officers from becoming members

of law enforcement organizations. This decision applies to both

the PBA and the FOP, even though we recognize differences

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Miietikedbin ceiedniotioeton, ae sen 2 a ina

between the two organizations. In addition, we cannot allow

the PANJ to affiliate with the PBA. We decide there matters

on the basis of Court policy.

The Court’s decision is based, as noted at the outset, on

the nature of judicial integrity and its essential quality of

impartiality; on the fundamental difference between probation

and police organizations and the resulting fundamental

incompatibility between the two. The Court’s decision is further

supported by probation as it functions today and by the

judiciary’s future plans for probation. The consequences of

probation officers themselves identifying with the police, and

being identified by probationers and the public with the police,

threaten, in fact and in appearance, the impartiality of the

judicial branch of government. These problems are real today,

particularly with case management personnel, from whom the

system requires absolute impartiality, and also with probation

officers who critically affect matters in which police are

interested, who depend on police for information, as well as

other probation officers. We are convinced those problems of

today will be even worse tomorrow as the probation function

heads in the direction of an appropriate balance between

punishment and rehabilitation. Rehabilitative efforts will be

severely damaged, if not totally frustrated, by an alignment,

perceived or actual, between law enforcement and probation

officers.

Although some other suggestions have been proposed,

we believe that nothing short of strict separation can adequately

address the concerns we have noted. Neither a wait-and-see

nor an individual-based disciplinary approach is institutionally -

appropriate. We must continue the prohibition. The integrity

of probation and the judiciary require it.

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SUPREME COURT OF NEW JERSEY

IN THE MATTER OF PROCEEDINGS CONCERNING

Probation Officers’ MEMBERSHIP IN LAW

ENFORCEMENT ORGANIZATIONS AND PROPOSED

AFFILIATION OF PANJ WITH THE PBA

APPEARANCES:

Administrative Office of the Courts by Robert Soloff and

Michael Diller, Deputies Attorneys General

Probation Association of New Jersey by David Fox, Esquire

and Craig Gumpel, Esquire

Police Benevolent Association by Paul Kleinbaum and Robert

Fagella

Fraternal Order of Police by George Tosi, Esquire

Chief Probation Officers Association, Pro Se, by Chief Jude

Del Preore, President

By Order of the Supreme Court this hearing officer was

appointed ‘Special Master’ to Create a factual record and

recommended findings of fact on issues set forth in the

Supreme Court’s letter to this officer dated March 3, 1994.

Testimony was taken on March 16, 17, 18, 19 and 21, 1994.

The persons who testified were: James Mastriani, Chairman,

Public Employees Relations Commission; William Burrell,

Chief, Supervisory Services, Administrative Office of the Courts;

Raymond Rainville, Chief, Child Support Services,

Administrative Office of the Courts; Gregory B. Wilcenski,

Chief, Juvenile Probation Service, Administrative Office of the

Courts; Harvey M. Goldstein, Assistant Director for Probation

Services, Administrative Office of the Courts; Carol Lenahan,

President, Probation Officers Chapter, State of Florida Police

Benevolent Association; Jude Del Preore, Chief Probation

Officer, Morris/Sussex Vicinage and President of the Chief

Probation Officers Association; Peter N. Brill, Chief Probation

Officer, Bergen County; Eugene J. McGrath, Chief Probation

Officer, Camden County; Robert F. Kirchgessner, Probation

Officer Passaic County Probation Department; Gregory martin,

Senior Probation Officer, Burlington County Probation

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Department; Donald W. Reiman, Assistant to the President,

State of New Jersey Policemen’s Benevolent Association;

George P. Christie, Probation Officer, Monmouth County

Probation Department; Peter A. Tortoreto, Senior Probation

Officer, Camden County Probation Department; David

Santobianco, Probation Officer, State of Delaware; Mario

Paparozzi, New Jersey Department of Corrections.

There were other persons in Court available to testify but

counsel determined that their testimony would be cumulative

and they were not called.

In addition to testimony exhibits were introduced into evidence

and numbered AOC-1 to AOC-256; PANJ-1 to PANJ-35; FOP-

1 to FOP-5; CPO-1 and CPO-2.

Eighteen stipulations were read into the record.

The questions framed by the Supreme Court for which it

desired a factual record and recommended findings of fact are:

1) What impact, if any, will membership of Probation

Officers in the FOP or the State PBA have on the probation

function?

2) Will the affiliation of PANJ with the State PBA

result in membership in the PBA of Probation Officers who are

members of PANJ?

3) What is the present number of Probation Officers

who are members of the FOP and what have their activities

been in connection with that organization?

4) To what extent, if any, may Probation Officers

become involved in or be seen as supporting political activity s

a result of membership in either FOP or State PBA?

5) Does the legislation (N.J.S.A. 34:13A-5.3)

prohibiting, subject to certain exceptions, police officers from

joining an employee organization that admits non police to

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membership imply any legislative policy related to the potential

impact on non-police members of such an organization?

The interest of the Supreme Court was amplified by comments

and sub-questions within each of the above categories, as set

forth in the Court’s letter to the Special Master. This report

attempts to comply with that directive.

This report doe pot and the assignment of this Special Master

was not intended to make findings concerning the question of

whether a Probation Officer was a "Law Enforcement Officer’,

nor the question of the propriety or right of any "Union" to be

a representative for collective bargaining purposes of Probation

Officers nor the questions of the right of Probation Officers to

join any particular union.

QUESTION #1

Probation was established by statute in New Jersey in 1900,

however, prior to that time an informal probation supervision

was used by the Courts when sentencing persons convicted of

the commission of a crime. Since that time the functions of the

Probation Department have expanded and extend far beyond

the supervision of people convicted of the commission of a

crime.

Probation, in New Jersey, has always been the Department used

to provide services needed by the judiciary. In the area

concerned with Criminal Justice the Probation Department

currently conducts bail investigations and pre-trial intervention

investigation (including those authorized by CDS status). Post-

conviction it conducts pre-sentence investigations. All

investigations are reduced to reports submitted to the Court.

Persons placed on probation, after conviction, or as a condition

of bail or as a condition of pre-trial intervention, are supervised

by Probation Officers. At the present time there are 72,000

adult convicts under the supervision of Probation Officers and

an additional 3,000 adults under supervision but not on

probation (¢.g. pre-trial intervention). The present average

case load for those Probation Officers supervising such people

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is 175 cases per officer, while in one county the case load is 300

cases per Officer.

In addition to its activities for the Criminal Division of the

Superior Court, the Probation Department is charged with

conducting the same or similar activities for the juvenile section

of the family division of the Superior Court. At the present

time there are 11,000 juveniles under supervision of the

Probation Department within the state.

Probation has also been charged with other duties. It serves as

a collection arm of the court in child support cases, of which

there are presently 267,000 such cases. It required to conduct

investigation s concerning child custody, see to collections in

civil penalty cases, seek out places in which community service

may be performed, assign persons to such work and oversee the

myriad details in connection therewith. In short, the Probation

Department is required to do any act which a court requires to

be done to enable the Court to perform its duty.

The testimony and evidence submitted with respect to the

impact of membership in a police organization upon the

probation function was not such that a true factual

determination can be made. The testimony was opinion and

speculation.

The Administrative Office of the Courts voiced the following

concerns:

1) Membership might encourage Probation Officers to

cooperate with police in the law enforcement process, such as

being an informant or acting in an ‘undercover’ capacity. This,

it is believed, would send a double message to the probationer

who is under supervision.

2) Probation is not law enforcement, it is a blend of

duties (in the Criminal Division) which encompass enforcement

of the Court order and counseling to effect a change in

behavior. The Probation Officer has substantial discretion in

determining when and if to issue a complaint for violation of

probation.

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ia Pe eT er

3) The success of the probation function of assisting a

person to change his behavior will be adversely affected if the

probationer looks upon the Probation Officer as a policeman

rather than a helper.

4) Probation, as an arm of the judiciary, must maintain

the same impartiality as the Court. The reports prepared for

the judiciary must always be fair and objective. Association

with the police would adversely affect the perception of the

probationer and the public toward the Probation Department,

seeing it as no longer an impartial entity. It is feared that the

public would cease to be cooperative with the Probation Officer

if probation were no longer viewed as an impartial entity.

5) It would be difficult to monitor the conduct of

Probation Officers because there are many subtle discretionary

decisions which Probation Officer must make every day in

supervising a probationer.

The concerns, as expressed by members of the Administrative

Office of the Court, have little empirical evidence from which

a factual determination may be made concerning their validity.

On the other hand, there is little empirical evidence to indicate

their lack of validity. Those officers who testified and who have

been members of the Fraternal Order of Police stated that such

membership did not affect their performance of duties. Mr.

Goldstein testified that he has no objective evidence relating to

Probation Officers who were also members of the Fraternal

Order of Police nor as to how such membership may have

affected them in the performance of their duties. Two of the

Chiefs of Probation who testified admitted membership in the

FOB during their tenure as Probation Officers. Since they have

been promoted to Chief, it can be inferred that their duties and

their performance was not compromised by such membership.

A factual recommendation is difficult because the conclusion to

be drawn will be based upon the philosophy and experience of

the decision maker, that is

1) The perception of human nature as able to

withstand the subtle bribery of friendship or steadfastness in

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living up to the moral and ethical standards required by a

particular employment.

2) The belief in the professionalism or lack thereof of

Probation Officers as a whole, or an individual Probation

Officer, in the performance of duty and adherence to oath.

There are presently members of the Probation Department who

are former police officers (one who has retained his

membership in the New Jersey Troopers Association), members

who are married to present police officers and members who

count police officers among their family and friends. Thus, it

can be found that the subtle pressures, about which concern has

been expressed, already exist. There was no evidence presented

that these particular members have violated their oaths or

duties, however, there as also no evidence that these officers

were subjected to any particular supervision or review which

could establish that the same did not exist.

In most other states the Probation Department is a part

of the Department of Corrections and the duties of parole and

probation are combined, at least with respect to the supervision

of adults who have been convicted or charged with the

commission of a crime. In the opinion of a Probation Officer

from Florida and an Officer from Delaware, there was no effect

upon performance of duties by being within one office, by being

part of the Department of Corrections nor by being associated

with police associations. It must be noted, however, that the

functions discussed by these witnesses, and, indeed, the

emphasis of all parties to this hearing, was upon adult criminal _

supervision. It appears that the Probation Department or

Office in other states does not have the myriad duties of

Probation Officers in New Jersey.

While a far more detailed and intense study would be required

to come to a fully sustainable conclusion based upon empirical

data rather than opinions, it would appear that membership in

the Fraternal Order of the Police or Policemen’s Benevolent

Association will not affect the functions of probation.

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a

The impact of membership in police organizations upon

Probation Officers must be considered from two aspects"

1) The effect of their conduct in relation to the

probationer

2) The effect on their morale.

The validity of the conclusion reached above that membership

will not have an effect on the functions of probation, that is,

that the duties will be performed is assumed. The question now

posed asks whether, in performing those functions, the

Probation Officer will act differently toward those he is to

supervise, collect from or investigate.

Again, there is no evidence one way or the other. Again, the

conclusion will be based upon the decision maker’s view of

human nature and the professionalism or lack thereof of any

particular officer.

No one presented evidence concerning Probation Officers views

toward the functions of collection of payments and child custody

investigation. It would seem however, that since those functions

would not be affected by membership in a police organization

that the conduct of the Probation Officer in performing those

functions would not be affected.

Evidence was received concerning the role of supervision of

probationers. The testimony of exhibits firmly establish that the

Administrative Office of the Courts, The Probation

Departments, the Probation Officers and the Judges ;consider

the supervision function of the Probation Officers to be the

most important. [Exh. AOC-1 p. i Exec. Sum; I-Intro.].

Recognition is given by all to the fact that, although such

supervision ideally incorporates assistance and counseling and

the "broker-ing’ of services needed by the probationer, there is

little time that can be spent on functions other than strict

supervision and enforcement of the probation order. One

officer testified that, at best, he can devote 30 minutes in a

week to the role of counsellor, while Exh. AOC-1 states that a

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Probation Officer can devote less than 10 minute per week to

the supervision of each probationer.

It was clear to this hearing officer that everyone recognizes that

the increase in work load has transformed the original ideal of

probation from rehabilitation to, as one witness described it,

‘prison without walls’. The prison population has doubled

between 1980 and 1993 and probation case loads have

quadrupled. While criminal conduct continues to increase and

as probation staffing fails to increase the function of supervision

will remain the primary function of the Probation Officer.

(Testimony indicated that there is a need for twice as many

Probation Officers as presently are employed). As Such,

membership in a police organization will not affect the conduct

of the Probation Officer toward the probationer. Indeed, Exh.

AOC-1, p. 7 recognizes that "The Probation Officer plays a

crucial role in protecting the community".

The evidence also indicated that probationers currently look

upon Probation Officers as enforcers of the Court Order,

although it does not appear that the average probationer draws

a distinction between a Court Order and the Law. While it

would have been helpful to hear from some probationers, and

while it would add substance to any conclusion to do a study”

with many probationers, this officer believes, from the evidence

presented, that probationers view the Probation Officer as

involved in enforcing good behavior rather than as an

instrument for rehabilitation.

The legislative policy and that of the Supreme Court has shifted

from rehabilitation to punishment since the adoption of NJSA

2C:1-1 et seg. in 19878. Persons convicted of crime know that,

based upon that conclusion, this officer recommends a factual

determination that membership in the FOP or PBA will not

affect the view of the probationer toward the Probation Officer.

Treating the community and the public as the same, it is

apparent from the attention given by the media to crime and

punishment, that the temper of the times favors punishment,

not rehabilitation. In general, the public knows little about the

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activities and functions of any Probation Department. The

public is however, constantly bombarded in all forms of media

with information about the nature and number of crimes

committed. Society, throughout the ages, has moved with the

pendulum of history from severe punishment to concepts of

rehabilitation. While there are still individuals firmly committed

to rehabilitation, such as those described by Mr. Goldstein, "The

majority favor more strict punishment. This is established by

the success of those candidates for elective office whose anti-

crime rhetoric leads to election victories. Although it is most

probable that the public would not know whether Probation

Officers were members of a police organization, it is this

officer’s conclusion that such membership would be applauded

and that the impact on the public would be a favorable one.

Exh. AOC-1, p. 9 recognizes that citizens define criminal justice

in terms of protection and prevention. The Final Report of the

j j prepared for the judicial

conference on sanctions and probation [Exh. AOC-2] states

"One of the most basic expectations of society is that its

government agencies and their employees will discharge their

responsibilities effectively. Paramount among those

responsibilities is the imposition and enforcement of criminal

sanctions, such as those imposed on probationers.”

The impact on the neutrality of the Probation Officers is a

question similar to that discussed above. Since it could not be

found that membership would have an effect upon the functions

of probation nor upon the conduct of the Probation Officer

toward the probationer, short of an individual officer failing to

live up to his oath and his duties, the conclusion must be that

it will depend upon the individual officer and his sense of right

and wrong. There cannot be a generalized answer which would

encompass all individuals holding the position of Probation

Officer.

There was testimony, by way of opinion, that such membership

would enhance cooperation with and the coordination of efforts

with law enforcement agencies. This hearing office rejects

those opinions based upon the clear testimony of the Chiefs of

Probation who have arranged various cooperative efforts. The

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cooperation exists without Probation Officers being members of

the FOP or PBA, but it must be acknowledged that Chief

Probation Officers are members of the Chief of Police

Association with the approval of the Administrative Office of

the Courts[Exh. CPO-1].

The ability to supervise probationers and to enforce court

orders is believed to be encompassed in the above discussion

concerning the impact on the functions of probation and the

impact of Probation Officers.

QUESTION #2

If PANJ becomes a local of the PBA the individual members of

PANJ will become members of the PBA (Stip. #1) Article I,

Section 1 of the Constitution and By-Laws (PANJ-21) of the

PBA provides: "This association...is a state organization having

subordinate and local branches within the state. It grants

charters to local OraRcOes, pean pe eenpeng magsiaree per

mmdeian fae Sec, 1 & Art IV, Sec. 2(a). gear poe

each_member thereof accepting and retaining its charter

consents to all of the provisions of these by-laws or

amendments thereto. [Stip. #2, #4, Test. D. Reiman]

(Emphasis Supplied)

The consequences of affiliation on PANJ members as

determined from the Constitution and By-Laws are:

1) Probation Officers will be determined to be law

enforcement officers in the opinion of the officers and members

of the PBA.

2) PANJ as a local of the PBA “May endorse

candidates for local political office only after the state President

is notified and has approved. (Art. II, Sec. 2)

3) PANJ will be subject to the jurisdiction of the State

PBA "at all times", both of the local and “its respective

members" (Art. ITI, Sec. 1(c). (This is to be contrasted with the

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testimony that each local is autonomous)

4) PANJ and its members will be subject to the

authority of the State PBA "to approve, modify or reject any

local by-law..." (Art. III, Sec. 1(d).

5) PANJ and its members will be subject to the State

PBA authority "to prescribe any additional qualifications or

conditions for obtaining or retaining membership herein [State

PBA] and in any local thereof" (Art. III, Sec. 1(g).

6) State PBA has power "to provide a suitable reward

to be paid to informants providing information, leading to the

arrest and conviction of any person who is finally convicted of

assaulting or killing a PBA member" (Art. III, Sec.1,(1)

7) PANJ shall be obliged to seek and obtain recognition

or certification as the exclusive majority representative of

employees (Art. III, Sec 2) (This is to be contrasted with

stipulation #9 which states :It is not a prerequisite of affiliation

with the PBA that a local be a collective negotiations

representative)

8) Membership requires "Completion of PTC training

and certification" (Art. IV, Sec. 1(a)

9) "The governing and legislative power and control of

this association [State PBA] are vested in a board of state

delegates consisting of a representative from each local

association. Art. V, Sec. 1).

10) Each local elects a state delegate who, among other

things, "Shall maintain public relations with local legislators..."

11) Membership must be exclusive in PBA. “Any

individual members of any local association who shall join or

become a member of any other police or law enforcement

agency of which he or she is a member, a purpose of such

organization being to represent policemen or law enforcement

Officers in matters affecting their employment or economic

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ron” acl

welfare, shall be expelled from this association and the local

association." (Art. VIII, Sec. 1)

12) Art. XII refers to the attorney for the association,

Sec. s(b) refers to the locals. The duty of the attorney shall be,

among others, to "Prepare all legislation".

13) Art. XIX contemplates support or opposition to

legislation which \shall be determined by the state board of

delegates.

14) Article XXI contemplates the issuance of "Safety

Cards" by individual officer

15) Article XXII contemplates the issuance of "Car

Shield” to members.

16) No member shall institute court proceedings against

the State PBA or any local without first seeking redress from

the association. (Art. XXIV, Sec. 1)

It is not known to what extent the officers or members of PANJ

are familiar with the requirements of the State PBA

Constitution and By-laws. It is known however, that the

members of PANJ overwhelmingly voted to join the PBA. That

expression of the membership, as well as the testimony

presented, leads to the conclusion that affiliation with the PBA

will be beneficial to the morale of the Probation Officers.

The consequence of such affiliation, however, when measured

against the Constitution and By-Laws, as identified above, are —

apparent. Each Probation Officer will be subject to the control

and regulations of the State PBA. Probation Officers may be

placed in the position of supporting or opposing political

candidates of legislation which may or may not be in the best

interest of Probation Officers. Probation Officers may be

placed in a conflict position where the state organization offers

a monetary reward in connection with the arrest and conviction

of a defendant convicted of assaulting or killing a PBA member.

This, again is an area where the individual integrity and

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en eee eee

professionalism of the officer is involved. There is no

determination that such membership and such action of the part

of the State PBA would cause any officer to fail to properly

perform his duties. It is merely the recognition of a possible

consequence of affiliation.

Members of PANJ will be unable to select a collective

bargaining agent other than PANJ which is ia local of the PBA.

Although the State PBA is not directly involved in collective

bargaining, it does provide advisers and renders other

assistance. This can be a beneficial consequence of affiliation.

(Last part of Stip. #5)

Individual members must complete PTC training and

certification. The ability to complete such training will have an

effect upon the available time of the Probation Officer. Since

it is a requirement of the State PBA for membership, it is

assumed that the time necessary to complete the training

program will be a subject of the collective bargaining process.

Excuse from regular duties will have a consequence to the

Probation Department and its functions. The requirement that

the State Delegate maintain relations with local legislators will

involve that Probation Officer in some kind of political a

This text is long and has been trimmed here. Open the source document for the complete record.