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Howes & Howes Files Major Constitutional Litigation Against Bayonne Mayor

Bayonne Mayor Mark Smith holds two public offices in the CIty of Bayonne.  He simultaneously holds the office of Mayor and the subordinate office of Deputy Police Chief.  New Jersey law has long prohibited this sort of dual office holding.  Despite recent public outcry for Mr. Smith to choose between these two offices, he has refused to do so.  The City of Bayonne has taken no action, so 31st District Assemblyman Anthony Chiappone (pictured below) has filed suit in Hudson County Superior Court.


The case of Anthony Chiappone vs. Mark Smith has been filed and duly docketed in the Superior Court in Hudson County.  The Plaintiff is 31st District Assemblyman Anthony Chiappone, a Howes & Howes client.  The Defendant is Bayonne Mayor Mark Smith.  The suit asks the Superior Court to prohibit Smith from holding the offices of Bayonne Mayor and Deputy Police Chief of Bayonne.

The Complaint is based on long-standing New Jersey law prohibiting a public official from holding two public offices where one is subordinate to the other.  This legal principle is known as the “Doctrine of Incompatibility”.  Factually, the Office of Deputy Police Chief is subordinate to the Office of Mayor.  That is, the Mayor appoints the city’s department heads.  One of those department heads supervises the Police Chief and Deputy Police Chief.  In other words, Deputy Chief Smith answers to someone who answers to Mayor Smith.  Mayor Smith is empowered to sign the police contract that determines Deputy Chief Smith’s salary and benefits.

The Doctrine of Incompatibility finds its roots in the old common law, which is one source of New Jersey law.  There are two landmark cases where New Jersey courts have applied the Doctrine of Incompatibility to bar an individual from simultaneously holding an elected office and a police position in the same municipality.  Those cases are the recent case of Wildwood v. DeMarzo, and the older case of Dunn v. Froelich.

Dunn v. Froelich involved two well-known and revered Union County political leaders, Elizabeth Mayor Tom Dunn and Ralph Froelich, who continues to serve Union County as its Sheriff.  In that case, Mr. Froelich was an Elizabeth police lieutenant who sought the office of Elizabeth City Councilman.  Mayor Dunn brought the suit to bar Mr. Froelich from holding both offices at the same time.  The court applied the Doctrine of Incompatibility to bar Mr. Froelich from holding both positions.  The Dunn case is significant because it involves the exact same form of city government as Bayonne - the Faulkner Act form of government.

Then there is the 2010 case of City of Wildwood v. DeMarzo.  Mr. DeMarzo was both a Wildwood City Commissioner and Wildwood Police Sergeant.  The City of Wildwood filed suit to prohibit the dual office holding.  Again, the New Jersey Appellate Division applied the Doctrine of Incompatibility to bar the dual office holding.  The DMarzo case is significant because Mr. DeMarzo was on leave from his police position, just like Mr. Smith.

The case will be decided by a Superior Court Judge based on these same principles of law.  Every case is unique, and the court will consider the unique aspects of each case, We have full confidence in the ability of the court to decide the case correctly based on the Doctrine of Incompatibility.


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