In re Robert Brown, Police Sergeant (PM0622N), City of Salem, 458 N.J. Super. 284 (App. Div. 2019). As discussed here, in general, appellate courts will not review issues that were not raised in the court below. In this opinion by Judge Fisher today, though, the Appellate Division made an exception to that general rule.
The case involved the process by which the City of Salem fills vacant sergeant positions in its police force. Plaintiff Robert Brown, an African-American who had been employed by the City as a police officer for fifteen years, alleged disparate treatment by the City in its promotions to fill the sergeant positions. There were two occasions, in 2014 and 2016, where the opportunity was opened up for such promotions. In those instances, the City was obligated to select for promotion at least one of the top three finishers on a list. The first time, he placed fourth on the list, and a Caucasian officer who finished first was chosen for promotion. The second time, Brown was ranked second, but the City promoted the first, third, and fourth place finishers. The first and third place finishers were Caucasian, while the fourth was African-American.
Brown filed an appeal to the Civil Service Commission. Brown and the City made written submissions that disputed facts surrounding the seniority and performance of Brown and the other officers. Without holding a hearing, the Commission ruled in favor of the City. Brown appealed to the Appellate Division.
Judge Fisher rightly recognized that the Commission’s decision receives a presumption of reasonableness on appeal, and that the scope of the Appellate Division’s review of that decision was limited. But the panel found “merging from the disputed facts and circumstances here an air of pretextuality not easily disregarded.” Because the factual disputes should have been addressed at a hearing, Judge Fisher found the Commission’s action to be arbitrary, capricious, and unreasonable. The panel thus reversed that ruling.
The Commission and the City argued that Brown had not previously asserted that the City’s bypassing of Brown for promotion was based on unlawful discrimination. They urged the Appellate Division not to consider that newly-raised issue. But Judge Fisher observed that ” the jurisprudential rule that appellate courts should not consider facts or arguments not previously presented or raised is not always applicable,” and he cited cases in which the Supreme Court had put aside that rule in order “to accomplish a just result.” Brown benefited from that flexibility in this instance, since the “air of pretextuality” that the panel found resulted directly from its willingness to consider the question of discrimination for the first time on appeal.