A263

An Act concerning municipal prosecutors and amending P.L.1999, c.349.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 4 of P.L.1999, c.349 (C.2B:25-4) is amended to read as follows:

4. a. Each municipal court in this State shall have at least one municipal prosecutor appointed by the governing body of the municipality, municipalities or county in accordance with applicable laws, ordinances and resolutions.

b. A municipal prosecutor shall be an attorney-at-law of this State in good standing, and shall serve for a term of one year from the date of his or her appointment, except as determined by the governing body of a county or a city of the first class with a population greater than 270,000, according to the latest federal decennial census, or the governing body of a city of the second class with a population of greater than 30,000 but less than 43,000, according to the latest decennial census, which city of the second class is located in a county of the first class with a population less than 600,000 according to the latest federal decennial census, and may continue to serve in office pending re-appointment or appointment of a successor. A municipal prosecutor may be appointed to that position in one or more municipal courts. The provisions of [this act] P.L. 1999, c.349 (C.2B:25-1 et seq.) shall apply to each such position held.

c. (1) A municipal prosecutor of a joint municipal court shall be appointed upon the concurrence of the governing bodies of each of the municipalities in accordance with applicable laws, ordinances or resolutions.

(2) A municipal prosecutor of a central municipal court shall be appointed by the governing body of the county.

d. Municipal prosecutors shall be compensated either on an hourly, per diem, annual or other basis as the county, municipality or municipalities provide. In the case of a joint municipal court, municipalities shall, by similar ordinances, enter into an agreement fixing the compensation of the municipal prosecutor and providing for its payment. In the case of a central municipal court, the county shall fix the compensation of the municipal prosecutor and provide for its payment.

The compensation of municipal prosecutors shall be in lieu of any and all other fees; provided, however that when a municipal prosecutor is assigned to prosecute a de novo appeal in the Superior Court, the prosecutor shall be entitled to additional compensation unless the municipality expressly provides otherwise at the time the compensation is fixed.

e. In accordance with applicable laws, ordinances and resolutions, a municipality may:

(1) appoint additional municipal prosecutors as necessary to administer justice in a timely and effective manner in its municipal court; and

(2) authorize an acting municipal prosecutor in another municipality in the county to substitute for the municipal prosecutor on occasion, as necessary to administer justice in a timely and effective manner in its municipal court.

Such appointments shall be subject to [this act] P.L. 1999, c.349 (C.2B:25-1 et seq.). This subsection also applies to joint municipal courts and central municipal courts.

f. Any municipal court having two or more municipal prosecutors shall have a "chief municipal prosecutor" who shall be appointed by the governing body of the county or the municipality. The chief municipal prosecutor of a joint municipal court shall be appointed upon the concurrence of the governing bodies of each municipality. The chief municipal prosecutor shall have authority over other prosecutors serving that court with respect to the performance of their duties.

g. (1) Nothing in [this act] P.L. 1999, c.349 (C.2B:25-1 et seq.) shall affect the appointment of municipal attorneys in accordance with N.J.S.40A:9-139; provided, however, that a person appointed to the positions of both municipal prosecutor and municipal attorney shall be subject to all of the provisions of [this act] P.L. 1999, c.349 (C.2B:25-1 et seq.) while serving in the capacity of municipal prosecutor.

(2) In addition to any other duties proscribed by the provisions of [this act] P.L. 1999, c.349 (C.2B:25-1 et seq.), a person serving as both a municipal prosecutor and a municipal attorney may prosecute county or municipal ordinance violations.

(cf: P.L.1999, c.349, s.4)

2. Section 5 of P.L.1999, c.349 (C.2B:25-5) is amended to read as follows:

5. a. A municipal prosecutor, except as provided by subsection b. of this section and sections 6 and 7 of [this act] P.L. 1999, c.349 (C.2B:25-6 and C.2B:25-7), shall represent the State, the county or the municipality in the prosecution of all offenses within the statutory jurisdiction of the municipal court as defined by law; including municipal ordinance and municipal code violations pertaining to zoning, land or property use regulation, property maintenance, building or construction. Such other local officials as may be deemed appropriate may be called by the municipal prosecutor in such prosecutions. Nothing contained herein shall prohibit a municipality from hiring special counsel to act as municipal prosecutor for these types of offenses or from authorizing a municipal prosecutor in another municipality in the county to substitute for the municipal prosecutor in the prosecution of any offense within the statutory jurisdiction of the municipal court as defined by law. A municipal prosecutor shall be responsible for handling all phases of the prosecution of an offense, including but not limited to discovery, pretrial and post-trial hearings, motions, dismissals, removals to Federal District Court and other collateral functions authorized to be performed by the municipal prosecutor by law or Rule of Court. As used in this subsection, the term "post-trial hearing" shall not include de novo appeals in Superior Court.

b. A municipal prosecutor may, with the approval of the court and pursuant to the Rules of Court, authorize private attorneys to prosecute citizen complaints filed in the municipal court. A municipal prosecutor may, with the approval of the court, decline to participate in municipal court proceedings in which the defendant is not represented by counsel. The court shall afford the citizen complainant an opportunity to be heard prior to determining whether to approve a municipal prosecutor's decision to authorize a private attorney to prosecute a citizen complaint or to decline to participate in a municipal court proceeding in which the defendant is not represented by counsel. When the municipal prosecutor declines to prosecute, the prevailing complainant may make an application to the court for counsel fee reimbursement to be paid out of applicable fines, but such reimbursement shall not exceed the amount of the applicable fines. Upon a finding that a conflict of interest precludes a municipal prosecutor from participating in a proceeding, the court shall excuse the municipal prosecutor and may, in such a case, request the county prosecutor to provide representation in accordance with section 6 of [this act] P.L. 1999, c.349 (C.2B:25-6) unless the municipality has provided for alternative representation. Alternative representation may include, but is not limited to, a municipal prosecutor in another municipality in the county who substitutes for the municipal prosecutor pursuant to subsection a. of this section.

c. A municipal prosecutor may at any time move before the municipal court to amend or dismiss any complaint for good cause shown in accordance with the Rules of Court.

(cf: P.L.2000, c.178, s.1)

3. Section 6 of P.L.1999, c.349 (C.2B:25-6) is amended to read as follows:

6. a. Appointments to fill vacancies in the position of municipal prosecutor shall be made in accordance with the provisions of section 4 of [this act] P.L.1999, c.349 (C.2B:25-4) as soon as practicable.

b. Unless the municipality has provided for alternative representation, including, but not limited to, a municipal prosecutor in another municipality in the county who substitutes for the municipal prosecutor pursuant to subsection a. of section 5 of P.L.1999, c.349 (C.2B:25-5), the Attorney General or the county prosecutor, with notice to the Attorney General, may designate, at the request of the municipal prosecutor or municipal court, one or more assistant or deputy attorneys general or assistant prosecutors to prosecute the business of any municipal court if there is a vacancy in the office of the municipal prosecutor or the municipal prosecutor is temporarily unavailable and the municipal prosecutor or the municipal court has requested such designation.

(cf: P.L.1999, c.349, s.6)

4. This act shall take effect immediately.

STATEMENT

This bill would clarify that a municipality may authorize a municipal prosecutor in another municipality in the county to act as a substitute municipal prosecutor on occasion.

Under the statutes governing municipal prosecutors, set out in chapter 25 of Title 2B of the New Jersey Statutes, each municipal court in the State must have at least one municipal prosecutor appointed by the governing body. However, no statutory provision specifically addresses the situation of substitute municipal prosecutors. A substitute may be needed on occasion to fill in for the municipal prosecutor when the municipal prosecutor is not available.