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Legal Q & A

Matthew Weng
Matthew Weng
League Staff Attorney

Incompatibility of Office and
New Scrutiny for Gun Ordinances

Q As we reorganize our local government for the upcoming year, we are being attentive to possible conflicts of interest, but our solicitor also said we need to watch out of the “doctrine of incompatibility of office.” Can you give me any details on this?

A Incompatibility of office is a doctrine that stretches back to the common law in England. Michael Pane, in his treatise on New Jersey Local Government Law, defines the doctrine this way: “It is a situation in which the nature of two offices is such that both positions cannot be executed with care or ability by the same individual, either because one is subordinate to the other or because one office in some other fashion interferes with the other.”

The courts in New Jersey defined the doctrine this way: “Offices are incompatible when there is a conflict or inconsistency in their functions. Therefore offices are not compatible when one is subordinate to or subject to the supervision or control of the other or the duties of the offices clash requiring the officer to prefer one obligation over the other” Hollander v. Watson, 167 N.J. Super. 588.

For example, an employee of the county college who is also a Freeholder cannot vote for members of the College Board of Trustees. In Calligy v. Mayor and Council of Hoboken, a 1995 Law Division case, Hoboken tried to make the municipal court judge a member of an administrative department under the supervision of an elected official. The court found this to be incompatible with the independence normally expected of a municipal court judge, because there may come a time when the judge would be forced to choose between their judicial duty and their duty to the administrative department of which they would be a member.

In essence, a municipal officer or employee cannot be in a position where they would be required to supervise themselves, or where their two positions may, at some point, be at odds with each other.

Q Have there been any important developments in the past year concerning municipal ordinances dealing with gun ownership? We are reviewing our ordinances and are concerned they may be too restrictive to pass Constitutional muster.

A The Supreme Court recently decided McDonald v. City of Chicago, an important 2nd Amendment case that may have an impact on local restrictions of gun ownership. Chicago passed an ordinance over 20 years ago that prohibited ownership of handguns. Several residents sued, under the theory that the 2nd Amendment right to keep and bear arms applies to state and local governments as well as the federal government. The Supreme Court agreed, striking down the Chicago ordinance as too restrictive on the right to own a firearm.

However, the Court reiterated its language from a previous holding that the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The Court went on to state that this holding does not overturn longstanding regulatory measures such as “prohibitions on the possession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

In his opinion, Justice Alito decline to delineate just how far longstanding regulatory measures by state and local governments may go before they are unconstitutional. We advise local elected officials to discuss any restrictions they may have on the sale or possession of firearms with their municipal attorney.

The following is from a story the website Politico did on the subject.

Experts said the court’s decision would prompt a flood of lawsuits from Second Amendment advocates, forcing states and cities to defend all sorts of gun control and registration rules against accusations that local laws infringe the right to bear arms. Such suits can be expected to shuttle between federal appeals courts and the Supreme Court in the coming years as the contours of the individual right to bear arms is sharpened and established.

This column is for informational purposes only, and is not intended as legal advice.

First published in New Jersey Municipalities, Volume 88, Number 2, February 2011

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