Abrahams v. Civil Service Commission

319 A.2d 483, 65 N.J. 61, 1974 N.J. LEXIS 162

• Court: Supreme Court of New Jersey
• Decided: May 8, 1974
• Status: Published

Opinions

The opinion of the Court was delivered by

Conford, P. J. A. D., Temporarily Assigned.

The pri-

mary question on this appeal is whether the Newark ordinance requiring continued residence in the city as a condition of employment by the city of officers and employees, held valid by this court in Kennedy v. City of Newark, 29 N. J. 178 (1959), is now to be held violative of the federal constitution by virtue of anything held in, or logically compelled by, the decision of the United States Supreme Court in Shapiro v. Thompson, 394 U. S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969). Our determination is in the negative.

Appellant Mrs. Abrahams began working in the Newark Law Department as a secretary in 1966, when a resident of Union. She had given a Newark address when applying for the position. In 19’67 she moved to Newark, and back to Union in 1970. In 1970 the corporation counsel notified all secretaries and clerical personnel in his department that anyone not a resident of the city by January 1, 1971 would be subject to dismissal. When applicant failed to return to the city, disciplinary proceedings were instituted against her, resulting in her termination as of May 21, 1971. She thereupon filed an appeal to the Civil Service Commission.

The Newark ordinance, originally adopted in 1932, exempts from its requirement of continued residence any persons, in the discretion of the Director of any department, “for good cause shown”, where (a) the health of the person “necessitates” residence outside of the city; (b) the nature of the employment is such as to require residence outside the city; and (c) “Special circumstances attach permitting residence outside of the city limits.” The 1970 enforcement effort in the Newark Law Department did not extend to the lawyer-employees because of the provisions of the statutory predecessor of N. J. S. A. 40A:9-1.¹

Before the Civil Service Commission appellant made the contentions: (a) that the ordinance was an unconstitutional restriction of her right to travel; (b) the “special circumstances” exception was void for vagueness and insufficient standards; (c) the ordinance had been discriminatorily enforced against her. The hearing officer of the Commission raised the added issue whether appellant had shown “special circumstances”, her contentions being that she could not afford apartment rents in Newark, the crime rate was high, and she would have to take her son out of school in Union. On the question of selective enforcement, appellant adduced evidence that in addition to the nine attorneys in the Law Department, 21 persons, out of a statistical sample of 142 employees in various city departments studied, were nonresidents.

The hearing officer of the Commission ruled he could not decide the constitutional issue. He held the ordinance had not been selectively enforced as it had been uniformly enforced in the Law Department, where appellant was employed, and he concluded that the reasons advanced by the appellant for not residing in the city were not sufficient. He advised a dismissal of the appeal. The Civil Service Commission adopted the report and recommendation.

An appeal to the Appellate Division was certified by us prior to the hearing by that tribunal. 63 N. J. 561 (1973).

The instant ordinance was attacked in broad terms by Newark employees in Kennedy v. City of Newark, supra. It was charged that the ordinance contravened Article I, par. 1 of the 1947 Constitution which reads:

All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.

The court, in an opinion by Chief Justice Weintraub, sustained the ordinance, saying (29 N. J. at 183):

“Quite obviously the rights there proclaimed are not absolute. They are qualified by the police power vested in government for the common good.

The question is not whether a man is free to live where he will. Rather the question is whether he may live where he wishes and at the same time insist upon employment by government.”

The court said the answer to the last question depended upon whether there was a rational basis for the residence requirement in furtherance of the public welfare, (at 183). It found such a rational basis in that:

* * * Government may well conclude that residence will supply a stake or incentive for better performance in office or employment and as well advance the economy of the locality which yields the tax revenues. That our Legislature has long assumed the existence of authority so to legislate upon a broad basis appears from statutes referred to hereinafter. Such expressions as may be found uniformly reject claims of constitutional infirmity. Kaplan, Civil Service (1958), p. 49; 2 Antieau, Municipal Corporation Law (1955), § 13.06, p. 236; 3 McQuillin, Municipal Corporations (3d ed. 1949), § 12.59, p. 240. (at 184)

The objectors in Kennedy also assailed the ordinance as an unreasonable exercise of power, citing such reasons for moving out of the city as personal health and inability to find satisfactory living quarters, but the court found that unreasonableness was not clearly established (at 185).

Kennedy was recently reaffirmed by this court in Merca-dante v. City of Paterson, supra.

I.

Appellant contends that Kennedy is superseded by Shapiro v. Thompson, supra, which assertedly recognized as a “fundamental right” the right to travel — a right which cannot be impaired or restrained except on a showing of a “compelling state interest”. It is contended that the residence restriction in the Newark ordinance infringes on the right of Newark employees to “travel” in the sense of changing their places of residence from Newark to beyond the city limits. We find the argument insubstantial. The Supreme Court was at pains in Shapiro, and has been even more so in later cases, including, very recently, Memorial Hospital v. Maricopa County, 415 U. S. 250, 94 S. Ct. 1076, 39 L. Ed. 2d 306 (1974), to make clear that the holding in Shapiro was not applicable to bona fide continuing residence requirements as distinguished from pre-qualifying durational residence requirements. See 394 U. S. at 636, 638, n. 21, 89 S. Ct. 1322.

In Shapiro the court held that a state could not constitutionally impose a requirement for receipt of welfare payments that the applicant be a resident of the state for a year. The prerequisite offended the Equal Protection Clause in that it created two classes of needy residents “indistinguishable from each other except that one is composed of residents who have resided a year or more, and the second of residents who have resided less than a year, in the jurisdiction. On the basis of this sole difference the first class [was] granted and the second class [was] denied welfare aid upon which, may depend the ability * * * to obtain the very means to subsist — food, shelter, and other necessities of life”. 394 U. S., at 627, 89 S. Ct., at 1327.

The court might well have subsumed the deprivation under the fundamental right of an indigent resident to physical survival. But in the light of the court’s conclusion that the very purpose of the regulation was to deter immigration into the state by indigents, 394 U. S., at 628-630, 634, 89 S. Ct. 1322, it chose to characterize the right impaired in terms of the “chilling” effect of the law on would-be migrants who would be deterred by the prospect of destitution consequent upon not finding employment during the one-year waiting period —■ thereby impinging on the “fundamental” right of interstate travel.² A countervailing “compelling” state interest in the law was necessary, but absent. 394 U. S., at 627, 89 S. Ct. 1322.

In any event, the fact that the right to travel represented only a limited aspect of Shapiro and that there was no intent therein to affect the validity of residence requirements not of a durational nature is made perfectly clear by the recent comment on Shapiro by the Supreme Court in Memorial Hospital v. Maricopa County, supra (415 U. S. at 254, 255, 94 S. Ct. at 1080, 39 L. Ed. 2d at 313):

The right of interstate travel has repeatedly been recognized as a basic constitutional freedom. Whatever its ultimate scope, however, the right to travel was involved in only a limited sense in Shapiro. The Court was there concerned only with the right to “[migrate], with intent to settle and abide” or, as the Court put it, “to migrate, resettle, find a new job and start a new life.” 394 U. S., at 629, 89 S. Ct., at 1328. Even a bona fide residence requirement would burden the right to travel, if travel meant merely movement. But, in Shapiro, the Court explained that “[t]he residence requirement and the one year waiting period requirement are distinct and independent prerequisites” for assistance and only the latter was held to he nneon-sütutional. 894 U. S., at 636, 89 S. Ct., at 1332. Later, in invalidating a durational residency requirement for voter registration on the basis of Shapiro, we cautioned that our decision was not intended to “east doubt on the validity of appropriately defined and uniformly applied bona fide residence requirements.” Dunn v. Blumstein, 405 U. S. 330, 342 n. 13, 92 S. C. 995, 31 L. Ed. 2d 274 (1972). (Emphasis added.)

A foreshadowing of the rejection by the Supreme Court in Memorial Hospital of any idea that Shapiro threatened the validity of simple continuous residence requirements, state or municipal, founded on a rational basis, came in the litigation by the Detroit police over the continuous residence requirement for police by that city — Detroit Police Officers’ Ass’n v. City of Detroit, 385 Mich. 519, 190 N. W. 2d 97 (S. Ct. 1971). The ordinance was sustained by the state court on the traditional equal protection test that the classification bore a reasonable (rational) relationship to the object of the legislation. The United States Supreme Court dismissed an appeal “for want of a substantial federal question”, 405 U. S. 950, 92 S. Ct. 1173, 31 L. Ed. 2d 227 (1972), in spite of the fact that the appellant’s brief asserted that “* * * the right to live where a citizen chooses is a fundamental personal liberty that cannot be abridged by a mere showing that a residency ordinance may be reasonably related to a proper city purpose”. See Goldstein, “Residency Requirements Eor Municipal Employees : Denial of a Right to Commute ?” 7 U. San Francisco L. Rev. 508, 530 n. 77 (1973).

In Memorial Hospital, supra, the court found the “travel” rationale of Shapiro to call for striking down a durational residence test for free hospital care for the indigent, that rationale extending to penalization of interstate travel after it occurred as well as to chilling its exercise beforehand. 415 U. S. at 258, 94 S. Ct. at 1082, 39 L. Ed. 2d at 315. Although the residence requirement was applicable in terms to the county where the hospital was situated, the court held that the effect nevertheless was to penalize the interstate migration of the particular individual whose hospitalization gave rise to the litigation, thus coming within the Shapiro rule and calling for a showing of a justificatory state interest of “compelling” dimensions. Id., at 253-261, 94 S. Ct. at 1080-1083, 39 L. Ed. 2d at 313, 315. The court expressly left open the matter of any distinction between interstate and intrastate travel in this regard.³ Id., 255, 256, 94 S. Ct. at 1081, 39 L. Ed. 2d at 313.

The California Supreme Court even prior to Memorial Hospital rejected the notion that Shapiro precludes a simple continuous residence requirement for municipal employment. Ector v. City of Torrance, 10 Cal. 3d 129, 109 Cal. Rptr. 849, 514 P. 2d 433 (1973),⁴ cert. den. 415 U. S. 935, 94 S. Ct. 1451, 39 L. Ed. 2d 493 (1974). The issue was the validity of a city charter which required all officers and employees of the city to become residents within six months of their employment except that the city could waive the requirement as to appointive officers or employees “having technical, special or professional knowledge or abilities”. Among other things, the plaintiff charged that the city was required to show a “compelling” governmental interest to support the charter provision in view of its impairment of the “fundamental” “right to travel”, citing Shapiro and other federal cases. The court rejected the argument. It first took the position that the dismissal for want of a substantial federal question by the Supreme Court in the Detroit Police case, supra, signified the absence of any equal protection deficiency in a municipal employee residence requirement. (109 Cal. Rptr. at 852, 514 P. 2d at 436). In that regard it also cited Ahern v. Murphy, 457 F. 2d 363 (7th Cir. 1972). Furthermore, it saw the substance of plaintiff’s claim, realistically, as simply a “right to commute” from home outside the city to place of employment in the city, 109 Cal. Rptr. at 852, 514 P. 2d at 436, not comparable with the right to “migrate among the several states”, vindicated in Shapiro as against a state law which would frighten a would-be migrant with the prospect “of being denied welfare if a job is not immediately available”. Id., 109 Cal. Rptr. at 852, 514 P. 2d at 436-437.

The California court also distinguished Shapiro, as well as the federal appellate decisions in King and Cole, both supra, as invalidating not a continuing residence requirement as such but a durational residence requirement — one which subjected a new resident to a substantial waiting period before he could apply for such essentials of living to impecunious people as welfare benefits or access to public low-cost housing. 109 Cal. Rptr. at 853, 514 P. 2d at 437. As to the plaintiff’s assertion that the charter impinged on his general right to establish his home where it best suited him, and on the personal privacy inherent in such decisions, Justice Mosk responded with a quotation of Chief Justice Weintraub’s aphorism in Kennedy, quoted above, that “The question is not whether a man is free to live Where he will. Rather the question is whether he may live where he wishes and at the same time insist upon employment by government”. (29 N. J. at 183). 109 Cal. Rptr. at 853, 514 P. 2d at 437.

The court found that a municipal employment residence requirement bears a rational relationship to one or more legitimate state purposes and is therefore valid under the traditional equal protection test, citing Kennedy, supra, among numerous other decisions on the point. 109 Cal. Rptr. at 852, 514 P. 2d at 436.

We are in thorough accord with the views of the California Supreme Court in Ector as thus summarized.

Appellant relies on Krzewinski v. Kugler, 338 F. Supp. 492, 497-498 (D. N. J. 1972) and Donnelly v. City of Manchester, 111 N. H. 50, 274 A. 2d 789 (S. Ct. 1971). Both of these cases are in point, as involving municipal employment residence requirements. Both cite Shapiro as authority for the view that such requirements impair the right to travel. Krzewinski imposed upon the municipality the burden of demonstrating a “compelling” state interest to justify the impairment but found such an interest to exist (where the residence requirement was as to police officers); Donnelly did not in terms impose the compelling state interest test but rather weighed the “reasonableness of a restriction upon private rights” against the “importance of the public benefit” (274 A. 2d, at 791), and found the restriction invalid.

Both Krzewinski and Donnelly suffer as precedents pertinent here in the light of their failure to appreciate the limited effect of Shapiro, as explicated subsequently in Memorial Hospital, (a) as elevating the right of travel to “fundamental” status only in respect of the right of migration between states; and (b) as expressly abnegating any hostile view of the validity of a simple (non-durational) residence requirement in an appropriate case.

When the thesis of impairment of a “fundamental” right of travel by a municipal employment residence requisite is seen as stripped of supporting federal constitutional precedent, and it is appraised on its inherent merits, it is found to lack weight. The undeniable general right of people to live near but outside the boundaries of a city in whose government they aspire to be employed is, realistically, not equatable with the right to travel throughout the land vouchsafed by the federal constitution to all United States citizens, Paul v. Virginia, 75 U. S. (8 Wall.) 168, 19 L. Ed. 357 (1869); nor even, sensibly conceived, with the right to travel at all, but rather, as bluntly stated in Kennedy, merely the common right to live where one will. The same applies to city employees residing in the city but aspiring to move elsewhere, yet near enough to commute to their city jobs. The “right” involved is subordinate to a rational municipal policy to restrict employment to residents.

There are any number of conceivable rational warrants in municipal public policy to justify vetoing the desire of the municipal employee to live outside the city while working for it. Justice Mosk in Ector, supra, listed those advanced in various adjudicated cases and by the amici in that case (109 Cal. Rptr. 852, 514 P. 2d 436):

Among the governmental purposes cited in these decisions or now urged by amici curiae are the promotion of ethnic balance in the community; reduction in high unemployment rates of inner-city minority groups; improvement of relations between such groups and city employees; enhancement of the quality of employee performance by greater personal knowledge of the city’s conditions and by a feeling of gz-eater personal stake in the city’s progress; diminution of absenteeism and tardiness among municipal personnel; ready availability of trained manpower in emergency situations; and the general economic benefits flowing from local expenditure of employees’ salaries.

Several of the thus listed local policy interests, not mentioned in the 1959 climate of the Kennedy opinion, are expressly relied upon by the City of Newark in the instant litigation, and we deem them pertinent in today’s crisis of the cities. We have particular reference to the interest of a city like Newark in promoting employment of its residents, rates of unemployment therein substantially exceeding general levels. In short, there are one or more substantial rational justifications for the policy of such an ordinance sufficient to outweigh such adverse impact as it may have either upon aspirants to municipal employment or those already in the municipal employ.

It should be emphasized that this court does not take sides in the broad policy debate whether restrictive residential ordinances of this type, on the whole, do more harm than good in today’s urbanized society. See Goldstein, op. oit. supra (7 U. San Francisco L. Rev. at 509-510). The statutory local option in the case of employees (as distinguished from officers) vests the policy choice in the municipal legislature, not the courts. Some municipalities, like Newark, have deemed it consonant with local policy to exercise the option.⁵ We hold they may validly do so free of any constitutional interdiction. We adhere to Kennedy.

II.

Appellant asserts, and we agree, that the “special circumstances” exception in the ordinance is void for absence of “adequate standards to guide the discretion” of the responsible official. Moyant v. Paramus, 30 N. J. 528, 553 (1959); 5 McQuillin, Municipal Corporations (1969) § 18.12, p. 362 et seq. There is not the remotest clue in the language of the exception, or in the remainder of the ordinance, to suggest what “special circumstances” the draftsman of the provision had in mind. The opacity of the language stands in contrast with the specificity of the other two exceptions, viz., where the health of the employee or the nature of the employment requires outside residence.

The city argues that the specific interpretation said to be uniformly accorded the special circumstances exception, pursuant to its construction by the city corporation counsel, eliminates the facial vagueness of the standard. The meaning attributed to the provision by that official was, “special talent or technique which is necessary for the operation of government not found among Newark residents/5 Were that standard expressed in the ordinance it would probably suffice. See Ector v. City of Torrance, supra (109 Cal. Rptr. at 854, 514 P. 2d at 438). But we cannot supply, on the basis of an ad hoc construction by the corporation counsel, what neither the language nor the general setting of the critical provision against the background of the ordinance expresses or fairly implies. The generality of this exception affords leeway for gross abuse in the even-handed administration of the residence requirement. The exception is invalid.

We find no reason, however, to strike the whole ordinance because of the invalidity of a relatively minor provision of the entirety. Cf. Yanow v. Seven Oaks Park, Inc., 11 N. J. 341, 360-362 (1953). The remainder of the ordinance is severable and survives.

Ill

We cannot find a sufficiently clear demonstration by appellant of discriminatorily selective enforcement of the ordinance against her. The ordinance was invoked against another secretarial employee in the Law Department at the same time as against appellant. The mere fact that the director of the Law Department undertook a thorough enforcement of the residence requirement in his own department in 1970 does not, absent any evidence of a deliberate policy of non-enforcement by the directors of the other city departments, or by the city administration as a whole, establish invidious discriminatory enforcement by the city as against appellant. Cf. Kennedy v. City of Newark, supra, where, despite a showing that in 1955 585 employees were in violation of the ordinance (29 N. J. at 183) and that the City admitted that up to that time no one had been discharged for non-residence (Id. at 192), the city was not barred from commencing to enforce the ordinance on January 1, 1957. The court said (Ibid.) : “There is no evidence of a studied policy not to enforce the ordinance * * *. Quite obviously, the missing link is official knowledge of violations of the ordinance. One may suspect some laxity, but the testimony is barren of proof."

The general rule is that a municipality is not precluded or estopped from enforcing an ordinance merely because certain persons have been permitted to violate it without prosecution. 56 Am. Jur. 2d Municipal Corporations (1971) § 421, p. 460; and see Oyler v. Boles, 368 U. S. 448, 456, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962). While appellant did establish here that upon a random selection of 142 employee records (we may take judicial notice that the City has a far greater number of employees than that) 21 persons, exclusive of nine excepted lawyers, were found to be nonresidents, there was no evidence that their department heads knew them to be such; nor that non-resident employees in other departments had not been discharged in the past. And for all this record shows to the contrary, the employing officers of the city may in the past have disqualified non-resident applicants for city employment. The corporation counsel testified that he had done so in his department. The burden of demonstrating such individous discriminatory enforcement of the ordinance by the city as would render it powerless to enforce it against appellant is upon her, and the burden has not been met.

Yeedless to say, our holding in this regard will be no excuse for continued non-enforcement of the ordinance in the future if in fact that has been the case in the past. There are both civil and criminal sanctions for willful nonfeasance in office.

The order of the Civil Service Commission is affirmed; no costs.

1 This statute, effective July 1, 1971, and its predecessor, N. J. S. A. 40:46-14, require that “officers” of municipalities reside therein. The latter contained an exception for “counsel, attorney, engineer or health officer”. A. J. 8. A. 40A :9-l excepts, in addition, an “auditor or comptroller”. Under L. 1972, c. 3, Secs. 1 and 11, municipalities are forbidden to require policemen or firemen to reside in the municipality. N. J. S. A. 40A:14-9.1 and 40A:14-122.1. Policemen and firemen were considered “officers” within N. J. S. A. 40:46-14. Mercadante v. City of Paterson, 111 N. J. Super. 35, 38 (Ch. D. 1970), aff’d 58 N. J. 112 (1971).

Appellant has not raised any question as to the construction of any of these statutes or as to the validity of the exceptions or exemptions contained therein, either separately or taken in conjunction with the Newark ordinance.

2 The constitutional sources of the right to travel are discussed in Note, “Residence Requirements after Shapiro v. Thompson, 70 Colum. L. Rev. 134, 137-39 (1970).

3 Two federal appellate courts bave assumed that a durational residence requirement not serving a compelling state interest would fall, on the impairment of travel theory, even if the requirement was as to municipal rather than state residence. So held in Cole v. Housing Authority of City of Newport, 435 F. 2d 807 (1st. Cir. 1970) as to a two-year residence requirement for admission to tenancy in public housing, and in King v. New Rochelle Municipal Housing Authority, 442 F. 2d 646 (2d Cir. 1971), cert. den. 404 U. S. 863, 92 S. Ct. 113, 30 L. Ed. 2d 107 (1971), as to a similar five-year requirement. These cases may well be correct in result, although from Memorial Hospital, supra, it would appear they were incorrect in interpreting Shapiro as proclaiming a “fundamental right” in respect of intrastate travel. The same may be said as to Eggert v. City of Seattle, 81 Wash. 2d 840, 505 P. 2d 801 (S. Ct. 1973), which held invalid, on travel grounds, a preference for municipal employment for those residing in the municipality at least one year.

4 The California Court of Appeal had held to the contrary. 28 Cal. App. 3d 293, 104 Cal. Rptr. 594 (1973).

5 The pervasiveness of that policy is indicated by the fact that employees (as distinguished from officers) are required to be residents in 55.7% of the employing municipalities throughout the country. Goldstein, op. cit. supra (7 San Francisco L. Rev. at 511, n. 11). In many additional municipalities the requirement extends also to officers, appointed or elected. Ibid.

Hanson v. Unified Sch. Dist. No. 500, Wyandotte Cty., Kan., 364 F. Supp. 330 (D. Kan. 1973) holds invalid, on equal protection grounds only, a school district regulation requiring school teachers to reside in the district. This, like Donnelly v. City of Manchester, supra, is probably a minority view.