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Viviani v. Rogough of Bogota2/25/2002
a "costly" litigation and discovery process. Ante at __ (slip op. at 4) (Verniero, J., dissenting). The employee and his or her counsel cannot compete effectively against the considerable resources of governing bodies and their liability carriers. Both the difficulty in proofs and the prohibitive costs create a playing field that is more than uneven.
Finally, the trial court and the Appellate Division correctly discerned the legislative intent. I believe that the Legislature intended to allow a governing body to abolish an exempt firefighter's position in the case of wide-spread economic depression or mandatory retrenchment. However, I do not believe that the Legislature intended to allow abolition of a position for reasons of "economy" alone. N.J.S.A. 40A:14-65. The lower courts' views represent a fair balance of the conflicting interests. I recognize that this appeal presents a difficult and close legal question. The courts in Viviani v. Borough of Bogota, 336 N.J. Super. 578 (App. Div. 2001), and Roe v. Borough of Upper Saddle River, 336 N.J. Super. 566 (App. Div. 2001), presented principled positions for their competing views. However, the balance tilts in favor of plaintiff, given the legislative purpose of the statute to provide "enhanced job security" to "firefighters accept the dangers inherent in that work and give freely of their time and talent[.]" Ante at __ (slip op. at 5) (Verniero, J., dissenting). Because of that legislative purpose, and because firefighters take risks on a daily basis and do so without pay, any doubt in this matter should be resolved in favor of the firefighter.
In my view, this dispute presents an apt vehicle for the Legislature to address and remedy the majority's disposition.
CHECKLIST
REVERSE AND REMAND, AFFIRM
CHIEF JUSTICE PORITZ X. --
JUSTICE STEIN X. --
JUSTICE COLEMAN X. --
JUSTICE LONG -- X.
JUSTICE VERNIERO -- X.
JUSTICE LaVECCHIA X. --
JUSTICE ZAZZALI -- X.
TOTALS: 4-3
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