Abrahams v. Civil Service Commission

ABRAHAMS, APPELLANT, LOUISE v. CIVIL SERVICE COM- MISSION OF THE STATE OF NEW JERSEY AND CITY NEWARK, OF RESPONDENTS.

Argued May November 1973 Decided Elliot M. cause for Mr. Baumgart argued appellant Ben-Asher, Baumgart attorneys). (Messrs. Lester, Counsel, Althear A.

Mr. Assistant Corporation City (Mr. of Newark argued cause respondent Walls, William H. New- Counsel Corporation ark, attorney). opinion by Court was delivered D.,

Conford, P. J. A. The pri- Temporarily Assigned. or Newark mary this is whether the question appeal con city dinance continued requiring dition of employment of officers and by employees, Newark, 29 held valid this Kennedy court N. J. 178 is now to be federal (1959), held violative by in, constitution virtue of or com held anything logically the pelled by, decision of the United Supreme States in 394 U. Thompson, S. S. Ct.

L. Ed. 2d 600 in Our determination the negative. Mrs. Abrahams in the Newark

Appellant began working Law in when a Department secretary as resident Union. She had a Newark when given address applying Newark, the In 19’67 position. moved and she back to Union in In 1970 corporation counsel secre- notified all taries and clerical in anyone his personnel department not a resident of city by 1971 would sub- January ject to dismissal. When failed to applicant return to city, disciplinary proceedings her, were instituted against in her termination as resulting 1971. She May there- an filed the Civil upon appeal to Service Commission. Newark ordinance, The originally adopted in ex- from its empts continued residence any per- sons, in the discretion the Director any department, “for cause shown”, health good (a) where of the person “necessitates” residence city; outside of the (b) nature employment is such residence outside require city; (c) “Special circumstances attach permitting limits.” The 1970 enforcement outside of to the Law not extend Department

effort in the Newark did provisions statutory because of the lawyer-employees N. A. 40A:9-1. S. predecessor made the the Civil Commission appellant Before Service ordinance was an unconstitutional (a) contentions: that the travel; circum- her (b) “special restriction of void for insufficient exception vagueness stances” en- standards; discriminatorily had been the ordinance (c) Commission officer hearing forced her. against “special added whether had shown appellant raised the issue circumstances”, she could not her being contentions Newark, high, rate was afford crime apartment rents in Union. her son out of school and she would to take have adduced enforcement, appellant On the of selective question Law nine in the attorneys evidence that addition to the of 142 sample out of statistical Department, persons, non- studied, were city departments various residents. he could not Commission ruled hearing officer of the had constitutional issue. He held the ordinance

decide the en- uniformly enforced as it had been selectively not been was em- forced the Law where Department, appellant and he concluded that the reasons advanced ployed, July statute, 1, 1971, predecessor, N. J. S. 1This effective its A. :46-14, require municipalities reside therein. The 40 that “officers” of exception attorney, engineer “counsel, an latter contained excepts, addition, A. J. health officer”. 8. A. 40A :9-l in an “auditor municipalities comptroller”. L. c. Under Secs. 1 and municipality. require policemen or firemen in the are forbidden to reside . A. 40A and J. S. 40A:14-9.1 and :14-122.1. Policemen N firemen were considered “officers” within N. A. Mer J. S. 40:46-14. Super. Paterson, 1970), (Ch. 111 N. J. D. 38 cadante (1971). N. J. aff’d 58 any question Appellant has not construction raised as validity exceptions or ex- statutes or as to the of the of these conjunction therein, separately emptions in contained either or taken ordinance. the Newark were not sufficient. He for residing appellant of the The Civil Com- appeal. dismissal Service advised and report mission recommendation. adopted to the Division Appellate by An was certified us appeal N. J. by tribunal. hearing prior The instant ordinance was attacked broad terms by Newark, in Kennedy Newark supra. It was I, the ordinance Article contravened charged of the which par. Constitution reads: persons independent, All are nature free and and have certain rights, among enjoying natural and unalienable which are those defending liberty, acquiring, possessing, protecting and and life and property, pursuing obtaining safety happiness. and of an court, in Justice opinion by Weintraub, Chief sus- N. ordinance, tained saying 183): obviously rights proclaimed They “Quite there are not absolute. qualified by police power government vested the com- for good. mon question is not whether a is free to man live he will. where question may Rather is whether he live he wishes where upon employment by government.” the same insist time The court said the answer to the last depended question upon whether there was a rational basis the residence welfare, (at furtherance of public a rational It found such in that: basis * * * may supply Government well conclude that residence will performance employment stake or incentive better in office or economy locality yields and as well advance the which tax Legislature long our revenues. That authority has assumed the existence of legislate upon appears so to a broad basis from statutes expressions uniformly referred to hereinafter. Such be found reject infirmity. Kaplan, (1958), claims Civil Service constitutional p. 49; Antieau, Municipal Corporation (1955), 13.06, p. Law § Municipal ; McQuillin, Corporations (3d 12.59, 1949), 236 3 p. ed. § 184) (at as also assailed the ordinance Kennedy in objectors such reasons citing exercise of power,

an unreasonable inability health as city out moving personal but court found that satisfactory living quarters, find established clearly (at was not unreasonableness in Merca- by reaffirmed this was court Kennedy recently Paterson, v. City supra. dante

I. Kennedy is superseded contends that Appellant assertedly which recognized Shapiro v. Thompson, — a which right to travel a right” as “fundamental showing restrained except cannot or impaired be is contended that the resi interest”. state “compelling on the infringes Newark ordinance in the dence restriction “travel” in the sense of chang of Newark beyond from Newark their residence ing places The Su insubstantial. find the argument limits. We even Shapiro, and has been at pains preme Memorial cases, recently, so later including, very more County, 415 U. S. Ct. S. Hospital Maricopa holding L. Ed. to make clear that the (1974), bona continuing was not Shapiro applicable fide dura from distinguished pre-qualifying requirements 636, 638, S. See U. tional residence requirements. n. Ct. 1322. S. held could not constitu- the court

tionally receipt pay- welfare impose a resident of the state for a ments that applicant offended the Protection Clause year. prerequisite Equal created two classes residents “indis- needy it from other that one is except composed each tinguishable more, who have resided a and the second year residents who have than a year, juris- of residents resided less in the the basis of this sole difference the first diction. On class second and the class denied welfare granted [was] [was] * * * which, ability aid to obtain the upon may depend — food, shelter, to subsist and other very means necessities S., 89 627, Ct., of life”. 394 U. at S. at 1327.

The well court have subsumed the un- might deprivation der the fundamental anof resident to right indigent physi- cal survival. that But in the of the court’s conclusion light the very was to deter purpose immigration regulation S., 634, into the 89 628-630, state 394 U. at by indigents, Ct. 1322, S. it in chose to characterize the right impaired terms of the effect of law would-be mi- “chilling” on who would grants be deterred of destitution by prospect not the one- consequent upon during finding employment — n year “funda- waiting on the period thereby impinging mental” of interstate travel.2 A “com- right countervailing state law absent. pelling” in the but necessary, interest S., 627, U. at 89 S. Ct. 1322. In any event, the fact to travel right represented that a limited only there was no in aspect Shapiro that and tent therein to affect the residence validity requirements not of by nature is made clear perfectly durational recent in Me comment on Shapiro by Court Supreme morial U. S. at Hospital Maricopa County, supra (415 254, 255, 94 : 1080, S. Ct. at 39 L. Ed. 2d at 313) right repeatedly recognized interstate travel has been as a basic constitutional scope, however, freedom. Whatever its ultimate right only Shapiro. travel was involved in a limited sense in only right Court “[migrate], was there concerned with the or, put it, intent and migrate, abide” settle the Court “to job resettle, find a S., new start new life.” 394 U. at Ct., requirement S. at 1328. Even bona fide residence would bur- travel, merely den the if But, travel meant movement. Shapiro, explained the Court “[t]he that residence year waiting period requirement the one independent are distinct and prerequisites” only for assistance and the latter was held to he nneon- 2The constitutional sources of the to travel discussed in Note, Requirements Shapiro “Residence Thompson, after (1970). L. Colum. Rev. 137-39 Later, S., Ct., invalidat U. 89 S. sütutional. registration residency requirement on the ing for voter a durational intended Shapiro, that decision was our we cautioned basis of uniformly appropriately validity doubt on the “east defined Blumstein, requirements.” applied Dunn v. bona residence fide (Em 2d 274 31 L. Ed. n. 92 S. C. U. S. added.) phasis Supreme rejection by foreshadowing A threatened idea Memorial Hospital requirements, continuous validity simple basis, came a rational founded municipal, police the Detroit over the continuous by the litigation — Detroit for police residence requirement Detroit, 519, Ass’n 385 Mich. Police 190 Officers’ W. 2d N. 97 Ct. The ordinance was sustained (S. traditional test equal court the protection the state a relation the classification bore reasonable (rational) that to the States ship object legislation. the United a an “for Court dismissed want sub Supreme appeal 950, 405 U. 92 31 1173, stantial federal S. S. Ct. question”, Ed. 2d L. 227 fact (1972), spite of the that appel “* ** brief live a lant’s asserted that to where is a cannot personal liberty citizen chooses fundamental that a a residency be mere that ordinance abridged by showing city related to a reasonably proper purpose”. See Goldstein, “Residency Eor Em Municipal Requirements : a ?” San Fran Denial of to Commute 7 U. ployees Right 508, cisco L. 530 n. 77 Rev. (1973).

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

The California Supreme Court even to Memorial prior notion Hospital rejected the that Shapiro precludes simple continuous residence requirement municipal employ Torrance, Ector ment. v. City 3d 109 Cal. Cal. Rptr. 849, 514 P. cert. (1973),4 den. U. S. 94 S. Ct. L. Ed. 2d issue was the validity of a charter which all city officers required employees of the city become within six months residents of their employment could waive except city that requirement as to appointive officers or “having technical, special or professional knowledge abilities”. other Among plaintiff things, charged required to show a “compelling” governmental interest appellate 3Two federal courts bave assumed a durational resi requirement serving fall, dence state interest would impairment theory, on the of travel even was as if the municipal Housing rather in Cole v. than residence. So held Authority Newport, 1970) (1st. 435 F. 2d Cir. as to a 807 of of two-year requirement public tenancy for residence admission to in housing, King Housing Municipal Authority, and in New Rochelle (2d 1971), 863, 113, 442 F. 2d 646 cert. Cir. den. 404 U. S. 92 S. Ct. (1971), five-year requirement. 30 L. Ed. 2d as a 107 to similar These may result, although Hospital, cases well be in correct from Memorial supra, appear they Shapiro interpreting it would were in incorrect proclaiming right” respect as a “fundamental in intrastate of travel. may Eggert Seattle, same said to as Wash. 2d 81 (S. 1973), invalid, 505 P. 2d Ct. which held on travel grounds, preference municipal employment residing a those in year. municipality at least one Appeal contrary. 4The California Court had held to the 28 Cal. App. Rptr. 104 Cal. in view of impairment the charter its support provision travel”, Shapiro “fundamental” to “right citing rejected argument. federal cases. court other of a for want sub that the dismissal first took the position in De by Supreme federal stantial question case, Police the absence supra, equal troit signified residence in a deficiency municipal employee protection 436). P. 2d at Rptr. Cal. at (109 requirement. F. 2d 363 Ahern v. Murphy, it also cited regard substance Furthermore, saw the Cir. it 1972). (7th to com claim, simply “right as realistically, plaintiff’s employment place from outside the city mute” home 2d at not 852, 514 P. at Rptr. 109 Cal. city, in several among “migrate with the comparable law which a state states”, against as vindicated “of the prospect with a would-be migrant frighten would available”. immediately joba denied welfare if is being Id., 2d at 436-437. 109 Cal. 514 P. at Rptr. well Shapiro, as distinguished

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

requirement to one or more relationship valid legitimate purposes is therefore under the test, traditional protection Kennedy, supra, equal citing other among numerous decisions on the Cal. point. 514 P. Rptr.

We are in accord with thorough the views of the Cali- fornia Supreme Court in Ector as thus summarized. relies on Krzewinski 338 F.

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

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

When the thesis of impairment of “fundamental” of travel by municipal employment residence requi- site is seen as stripped federal supporting constitutional precedent, and it is appraised on merits, its inherent it is found to lack weight. The undeniable general right of in near the boundaries of a city to live but outside

people is, to be realisti- they aspire employed whose government travel cally, right throughout not with the equatable to to all land federal constitution United by the vouchsafed Paul citizens, States U. S. Virginia, (8 Wall.) L. Ed. even, conceived, with the sensibly nor (1869); Ken- all, rather, in bluntly to travel at stated but where one will. The nedy, the common to live merely in but city city same to applies employees residing elsewhere, to commute to yet to move near aspiring enough subordinate to their involved is city jobs. “right” resi- rational municipal policy employment to restrict dents. in rational warrants are number of conceivable

There of the municipal desire public policy justify vetoing while city working outside the municipal employee live Ector, in advanced it. in listed those Justice Mosk in that case various cases and the amici adjudicated by 852, 514 P. : Rptr. 436) Cal. Among governmental purposes or now cited in these decisions urged promotion balance in the amici curiae ethnic of inner-city community; unemployment high mi- rates of reduction nority groups; improvement groups and of relations between such city employee employees; performance quality enhancement of the of by greater personal knowledge city’s by a feel- of the conditions and ing gz-eater personal city’s progress; of diminution of stake in among personnel; ready municipal avail- absenteeism and tardiness ability manpower emergency situations; gen- and the trained flowing expenditure employees’

eral benefits from local economic salaries. the thus local men- policy interests,

Several listed are ex- Kennedy opinion, tioned in the climate of Newark in instant relied pressly upon by today’s and we deem them crisis litigation, pertinent have reference particular the cities. We interest residents, Newark in promoting employment like its substantially therein unemployment exceeding gen- rates or are one more substantial short, levels. there eral such an or- the policy justifications rational adverse as it impact such outweigh sufficient to dinance municipal employment upon aspirants have either municipal employ. in the already those sides not take that this court does should be emphasized restrictive residential debate whether in the broad policy harm whole, do more than of this type, ordinances oit. Goldstein, op. society. urbanized See today’s good 509-510). L. Rev. at stat U. San Francisco supra (7 distinguished (as case of employees local in the utory option in municipal legis vests choice the officers) policy from the Newark, like lature, courts. municipalities, not the Some exercise the consonant with local policy have deemed it so free of consti they may validly We hold do option.5 Kennedy. We interdiction. adhere to tutional II. asserts, and we the agree, “special

Appellant for ab circumstances” ordinance is void exception the sence of standards to the discretion” of guide “adequate Paramus, 30 N. J. Moyant official. responsible McQuillin, Municipal Corporations (1959); (1969) § et 18.12, remotest clue in the seq. There is not the p. or of the or the remainder of the exception, language dinance, what the drafts suggest “special circumstances” man of had in mind. The of the lan- provision opacity pervasiveness policy by 5The of that is indicated the fact that em ployees (as distinguished required officers) from residents employing municipalities throughout country. of the 55.7% op. Goldstein, supra (7 cit. San Francisco L. Rev. at n. municipalities many additional extends also to of ficers, appointed or elected. Ibid. 500, Wyandotte Cty., Kan., Hanson v. Sch. Dist. No. Unified Supp. (D. 1973) invalid, equal protection F. Kan. holds grounds only, regulation requiring a school district school teachers to This, Donnelly Manchester, reside in the like district. probably minority is view. stands contrast with the guage specificity of the other viz., two health exceptions, where the of the or employee the nature of the employment requires outside residence.

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

We find no to strike whole or dinance because of the minor invalidity relatively pro Inc., Park, vision of Yanow v. Oaks entirety. Seven Cf. 11 N. J. 360-362 The remainder of the or dinance is severable survives.

Ill We cannot find a clear sufficiently demonstration by appellant of selective enforcement of the discriminatorily ordinance her. ordinance was against against The invoked another secretarial in the Law the employee Department at same time as mere fact that the direc against appellant. The tor a of the Law undertook Department thorough enforce in ment the residence his own department in 1970 not, absent evidence does deliberate policy of non-enforcement the by the directors of other city depart- ments, or by city whole, the administration as establish in vidious enforcement discriminatory by city as against Newark, appellant. Kennedy City where, des Cf. pite that in 1955 585 violation employees were in showing N. J. ordinance and that ad 183) mitted that to that no had up discharged time one been non-residence barred from (Id. 192), city was not commencing January enforce the ordinance on The court said : “There is a studied (Ibid.) no evidence of * * Quite policy to enforce the ordinance *. obviously, link is official of the ordi missing violations knowledge nance. One but the is may suspect laxity, testimony some barren of proof." rule is that a is not general pre municipality

cluded or from an be estopped merely ordinance enforcing with cause certain it persons permitted have been to violate out 56 Am. Jur. prosecution. Municipal Corporations 2d Boles, 460; 368 U. S. (1971) p. Oyler and see § S. Ct. 7 L. Ed. While appellant did establish of 142 em here that random selection upon has records notice ployee (we may judicial take a far number of than greater employees that) persons, non lawyers, exclusive nine were found to be excepted residents, there no evidence that heads department their such; knew them to in nor that non-resident other had And departments discharged not been the past. for all this of contrary, record shows the employing ficers of have non-resi city may past disqualified dent coun applicants city employment. corporation sel testified that he had done so The bur department. his den of such individous en demonstrating discriminatory forcement of ordinance as would render it it powerless her, against appellant upon enforce has burden not been met. our will ex- say, holding

Yeedless in this be no regard cuse for continued non-enforcement of the ordinance if in future fact that has been the There past. case in the nonfeasance for willful sanctions and criminal both civil in office. no affirmed; Commission is Civil Service

The order of the costs. escape difficult It (concurring).

Clifford, on. blinders this case with that we are reviewing impression issue, we argue brief or elected not to plaintiff Since to our vision to examine do not resort peripheral turn with statutes ordinance question interaction from certain municipal excepting ante, n. 64, majority 1, 1) At footnote (p. requirement. 40:46-14, N. A. “officers” note of J. S. requiring takes “counsel, at excepting reside therein but municipalities officer;” successor statute health its torney, or engineer A. 1971, N. J. S. 40A:9-1. 1, excepting, effective July A. and N. J. S. an “auditor or addition, comptroller;” :14-122.1, 40A under which municipalities 40A:15-9.1 and are forbidden the residence impose police requirement firemen. The same footnote observes properly men or the construc raised as to any has not “[ajppellant question validity statutes or as to the of the ex any tion of of these therein, or contained either exemptions separately ceptions the, taken in with Newark conjunction ordinance.” has I deem it While the Court thus made the point, worth far affirm that at as vote to is con my least emphasizing there should not be read into it decision on cerned whether the residence here has been “uniformly when considered in connection the statutes applied” Memorial Hospital Maricopa referred above. See 250, L. County, U. S. S. Ct. Ed. Blumstein, 306, 313, Dunn v. U. S. quoting 31 L. 995, 1003, 274, 284, S. Ct. Ed. 2d n. very well be might argued pattern which emerges discrimination from that broader view of the ease would be most difficult to sustain under rational basis under a certainly test and state interest test. teachers, Some combinations come to mind: school peculiar secretaries, sanitation men and in legal physicians must live auditors, while city, policemen and firemen need not. I no more than a express curiosity mild why has not been question time, raised at the (speculating, same on whether plaintiff was apprehensive the battle winning (cid:127) — n but the war losing this declaration that the gaining ordinance in read with question, statutes, is unconsti- tutional, thereby prompting legislature to the ex- repeal statutes, emption response to which the of Newark an might thereafter pass all-embracing, uniformly applied, bona fide residence this requirement ordinance. On reflection seems attenuated but not inconceivable.).

I underscore our limited fur- perspective without dwelling ther on I it. concur and in judgment affirmance the Court’s opinion, given narrow which the posture issue is presented. I ashman,

P would declare the residence (dissenting). in- an ordinance unconstitutional on two it is grounds: (1) to travel suf- upon unsupported by the" fringement interest the restriction ficiently compelling justify State clause. I it is violation of (2) equal protection dissent from the majority opinion. therefore

I The enactment prescribes continuing require as a Its employment. in the condition of community ment Newark, v. City Kennedy was sustained in validity liberty N. J. 178 balancing personal against an em enact an ordinance residence in power requiring invoked the basis test. this Court rational ployer-city, * * * basis for a residence If there is a rational public welfare, the constitutional issue must be furtherance * * * legislative power (29 N. J. to ordain it. resolved in favor rationally could government quite thought their would perform conclude that reasonably an if had attach- conscientiously they tasks more

respective mere employment. which exceeded community ment to have and would greater motivated be more would Employees lived in the they well if duties their perform incentive be- city’s problems could not leave the They community. While this reasoning hours. working them after hind been validity its has sound, evaluating standard still altered. Newark, the United Kennedy to Subsequently of which classification “any held that Supreme

States right, exercise the constitutional] serves to penalize [a compelling govern necessary promote to to be unless shown Thompson, unconstitutional.” interest, is mental L. Ed. 2d 1331, 22 Ct. 89 S. S. 394 U. the to reconsider upon now called areWe 615 (1969). Shapiro. in set forth test of the light decision in Kennedy interest state compelling the recognized has Jersey New em has Constitution and Federal the test for purposes Justice Jacobs purposes. for State the doctrine braced Elections, Board County Mercer Worden stated in : (1972) 61 N. * r * just consequences, patently sound and so in its it is so Since aspects, adopt compelling broadest not state interest test its

we the pur- compliance only also for with Federal Constitution but for * * legislation poses and our State Constitution own we from our claims that have since retreated Newark interest test in Worden endorsement Board Elections. was noted County v. Mercer that Cahill, al., Robinson, et 62 N. J. et al. v. we (1973), rather our dissatisfaction elusive expressed concepts and “fundamental” interests. While rights “compelling” of the equal protection question presented our treatment embraced the terms of those the Court concepts, therein some reluctance the overall express accepting concept did N. for State constitutional J. at 491. Chief purposes. Justice Weintraub continued: briefly passing why prepared we note reason we are

accept concept purposes for . that State constitutional . . But we concept helpful right. have not found of a No “fundamental” one successfully purpose. proposi- has defined the term Even this right explicitly . tion plicitly guaranteed . that is “fundamental” it is or im- . if Constitution, immediately vulnerable, in the is right acquire property guaranteed hold is in the Federal surely Constitutions, likely and State is not a candi- preferred for such date And if a is found treatment. somehow “fundamental,” question be there remains the as to what State “compelling” there, too, any, light. little, is interest Mechanical we find if approaches problem judicial delicate intervention equal protection process only may under either the or the clauses due delay from divert court or meritorious issue consideration of it. Ultimately, weigh a court must nature the restraint or the public against apparent justification, denial and decide whether arbitrary. process, the State In that if the action circumstances sensibly require, may upon so the court call to demonstrate State public existence of need for sufficient the restraint the denial. * ** added). 491-492) (Emphasis J.N. In Robinson, the Court was justifiably hesitant to ground its holding upon the equal protection clause. As noted case, deciding “the equal protection clause if unmanageable it is called upon supply an- categorical (human swers to the vast area of needs, those which choosing must be met and single basis upon which the State must act.” 62 N. J. at 492. The Court went on to hold the then practice financing public education with local property taxes as violative of the State constitutional mandate for a and “thorough efficient system of free public schools.” 62 N. J. at 513. The Court was hot content an ground analysis of so complex pervasive an issue as the financing public education solely on the relatively stand- imprecise ards of the compelling interest test.

While the quoted passage Robinson v. Cahill indicates some dissatisfaction with ambiguities inherent in the com- pelling test, interest standard, it does not adopt new hut sets out what implicitly was the ultimate judgment nature of the restraint against for: weighing

called the traditional com- under either served. Judged purpose Robinson or the test suggested state interest test pelling Cahill, upheld Residence Ordinance cannot be Newark v. being of all employees required to the inclusion as broad City.1 live within « n * « yye say are no whose residence do not there justify enough place duty may important re not be near their place upon if but such restrictions of residence their striction permissible justify and all the broad inclusive this does not as to some * * * employees live all within limits. City Manchester, (Donnelly A. 2d 111 N. H. 1971)). (Sup. Ct. durational invalidated resi- Thompson, were They welfare aid eligibility.

dence requirements clause of the Fourteenth protection held to violate the equal fide residents of bona two classes by creating Amendment of residence. solely length on the basis * * * who [those first class On the basis this sole difference granted year [those second class more] have resided upon year] aid which welfare than a is denied resided less who have ability very depend means to obtain the of the families to ** * — food, shelter, U. S. and other necessities of life. subsist 22 L. Ed. at 89 S. Ct. an feature essential Deterrence “in-migration” of which could validity residence requirement, of assistance fiscal integrity justified protecting old residents on between new and programs, distinguishing community, to the basis of contributions made tax question holding 1This does not reach the of officers. N. J. S. A. 40A:9-1. See employees, As the distinction between officers see State Super. Indelicato, 1965) ; (Law McQuillin, N. J. Mu Div. nicipal Glasser, Jersey Corporations, 12.29-12.30; §§ “A New Mu nicipal Mystery: Office?’”, Rutgers A Law What Is ‘Public L. Rev. 503 the an facilitating planning budget, objective providing residence, the of fraud or en- minimizing possibility test early entry into labor force. couraging practical terms, excluded from the rele- period waiting poor re- This exclusion was an jurisdiction. impermissible vant on travel. striction ago recognized long our Federal the nature This Court concepts liberty personal unite to and our Union constitutional throughout length require all citizens be to travel free statutes, rules, regulations by of our land uninhibited or breadth unreasonably movement. burden or restrict this

which sible. year waiting 612, not Thus, serve 613). * ** ^[*] (394 purpose period, since that justification U. S. sjs deterring 629, 631, for the classification created sit purpose 89 S. Ct. at sh in-migration is constitutionally 1329, ^[*] L. Ed. 22 indigents # impermis 2d at one: can ^[*] “wall welfare out.” recipients is permissible not DeVos, 476 F. 2d 1973). Demiragh (2 405-406 Cir. Ct. 160, 62 8. Edwards v. 314 U. S. California, See L. Ed. 119 (1941). a involved durational rather than a continuing The former is condition requirement. precedent benefit, while the latter creates obtaining desired

condition which the bene- often be may upon obtaining met thereafter, fit or within some time condi- period but of one’s retention of benefit or The court position. tion validity disavowed intention specifically judge residence requirements. other durational or continuing period validity waiting imply or residence re We no view of the determining eligibility vote, eligibility quirements for tuition-free fish, practice profession, education, or a license to to hunt obtain requirements may promote in and so forth. Such upon penalties hand, other, on the terests the one right of constitutional travel. the exercise interstate n. 22 L. Ed. 2d at U. S. n. 89 S. Ct. at 83

The clause have been protection to travel equal right residency durational invalidating requirements the basis of v. New King for eligibility public housing, in the context 442 F. 646 Housing Authority, 2d (2 Rochelle Municipal Ed. Ct. L. 863, 113, 404 U. S. 92 S. 30 cert. denied Cir.), New Authority v. Housing 107 Cole (1971), 2d one’s exercising right Cir. 1970); 435 F. 2d 807 (1 port, Blumstein, 330, 995, 92 S. Ct. vote, 405 U. S. Dunn v. applications Ed. preference given L. 2d 274 (1972); Seattle, Wash. Eggert civil service positions, and an indigent’s 840, 1973); 505 P. 2d 801 Ct. (Sup. Hos care, Memorial medical non-emergency to receive 1076, 39 94 S. Ct. County, 415 U. S. pital Maricopa Ed. L. 2d 306 (1974). eases, requirement

As in durational residence the other County, Memorial Hospital Maricopa the discrimination new bona fide and old residents. was between a from and reimburse ease from the denial of transfer arose a for its care county hospital ment for services to private Arizona, had Maricopa County, of an who moved to indigent justified by from must be requirement New Mexico. The classification interest since the impinged state “constitutionally on the interstate guaranteed right Ct. at L. travel.” 415 U. S. at S. Ed. 2d directly While not the interstate- dealing distinction, intrastate travel court noted that such dis tinction would affect the before it. requirement ** * Appellant effectively penalized Evaro has his inter been although accomplished guise migration, this under county requirement. would be if What unconstitutional residence readily accomplished by directly done State can more no *' * * county S. at at the direction. U. Ct. State’s S. 39 L. Ed. 2d at relied on the Arizona Court’s construc- Supreme applicable tion the statute as to intrastate well in- as noted the yet inconsistency terstate migrants, applying while migrants being intrastate Memorial interstate migrants. so for doing from prohibited 256, n. County, 415 U. S. at v. Maricopa Hospital 313-314, n. 9.2 9, 39 L. Ed. 2d at 1081, n. S. Ct. at intrastate event, encompasses to travel as well as interstate travel. meaningless right would to travel between It to describe the personal precept liberty as not

states a fundamental of and to ac- knowledge right constitutional to travel within state. correlative * * * Municipal omitted], Housing (King [Footnote v. New Rochelle Authority, supra, 648). 442 F. 2d at Dulles, Kent v. 116, 125-126, 357 U. 78 Ct. 1113, S. S. 2 L. 1118, 1204, Ed. 2d. Krzewinski v. Kug 1210 (1958); ler, 338 F. 498 Supp. 492, (D. N. J. v. 1972); Wellford Battaglia, 143, 343 F. 147-148 Supp. aff’d, (D. 1972), Del. Collins, F. 485 2d 1151 Cir. F. 1973); v. 310 Karp Supp. 633-634 N. J. 627, Donnelly City v. Man (D. 1970); of chester, Seattle, 791; 274 A. supra, 2d at v. Eggert City of 840, 81 Wash. 505 P. 2d 804 Ct. The (Sup. 1973). where live one chooses right is inherently part any Manchester, See v. right Donnelly travel. 274 A. 2d at 791. right to travel is penalized effectively case

now before this Court inas those cases durational invoking requirements. is a clear deterrent city employee desiring to reside beyond the city limits. The ordinance forbids such on penalty movement Supreme Shapiro 2The specifically did not ascribe the right particular provision to travel Constitution, leading of the right personal one to liberty, believe that ais rather than a bene fit linked to the However, interstate commerce clause. even if the right extension, to travel was an purposes, for federal of- the com power, collectively merce cities accomplish be able to what prohibited doing. Eggert a state would be from Seattle, See infra, 804; Note, P. Requirements 2d at “Residence After Thompson,’’ (1970). 70 Col. L. Rev. in violation both the State3 of loss of employment It evident that residence require Federal Constitutions. is movement, if on interstate ments have an effect inhibiting from are precluded to the extent that nonresidents only seek also to they with the unless seeking employment no to show “It argument reside therein. requires occupations common to work for a living freedom personal community very is essence purpose that it was the opportunity [Fourteenth] Raich, Truax v. U. S. secure.” amendment limitation “Any L. 7, 10, 36 Ct. Ed. S. the achieve impedes for employment on the opportunity for the pur which is essential security, of economic ment & Fitz Purdy . .”. life, liberty happiness. suit State, 77, 86, 79 Cal. Rptr. 71 Cal. 2d patrick 654 (Sup. P. 2d Ct. seriously Newark ordinance conclusion my inter- and to travel constitutional with the

interferes scrutinize the State’s strictly leads me to which intrastate fails deter- majority perceive potential interest. The or- which the residence and resettling to migrating rent city’s in the presently to both those represents dinance with The city. seeking employment and those employ a herein prescribes ordinance continuing, mere fact that the ex- does not residence durational, rather than unconstitutionally interfering from potential it empt Goldstein, “Residency to travel. See with the generally, A Denial Of Municipal Employees: For Requirements Fran. L. Rev. 526- Commute?”, 7 U. San To Right laws single that “durational residence been noted It has who residents county fide state of bona out class constitutionally protected right, this recently exercised have Blumstein, Dunn directly.” such travelers penalize Const., I, ¶ 3N. J. Art. 1. 31 L. Ed. 2d at 92 S. Ct. at U. S. at defined and that “appropriately noted may,” residence bona fide

uniformly applied requirements the basic voters, necessary preserve “be in the case of could and therefore community, of a political conception at 343- 405 U. S. scrutiny.” withstand close constitutional has at 285. This Court 31 L. Ed. 2d S. Ct. local repre the “political philosophy already recognized resi continuing citizens . . .” in upholding sentation of the Evans, Krulish v. couneilmen. for ward dence requirement Battaglia, supra. 16 N. J. 203 (1943). Cf. Wellford re residence continuing no means suggested is Kugler, se Krzewinslci invalid. See per quirements supra. an em- faced with here is stenographer,

What we are from her who was dismissed city ployee government, or- with the residency of noncompliance because position an ex- based upon dinance. Her inability comply ac- rate, inability crime her find concern about the pressed her level, at her income attempt ceptable housing N. Union, who husband, with her lived in reconciliation misunderstood, emphasized Lest this be it should be to the is not an effort to urban justify flight this dissent suburbs an future of our cities. My abandonment of the However, it contrary. beliefs are to the is completely to wall in its em- city for the constitutionally permissible community. as a measure increase concern for the ployees of social ills with which the myriad plagued of re- does not serve to legitimize parochial concept in- to residents where stricting employment compelling so particularly terest is the standard This is judgment. where has its dissatisfaction Legislature expressed since in- where a more requirements terest has been shown to exist.4 Kugler, Supp. (D. 4 In 1972), Krzewinski F. 338 492 N. J. the applied compelling

court state interest test to N. J. A. S. 40:47- 86 considered basic were Shapiro, payments

In welfare County, Hospital Maricopa Memorial life. In of necessity 1083, L. Ed. 3d 359, S. Ct. at U. S. state as basic. The equally medical care deemed was was residence requirement the durational had not shown in furthering defensible” “legitimately for asserted as justification purposes interest. None — county’s fiscal integrity protecting the requirement dilution of services budget predictability, preventing and com- who contributed to the for residents have longtime taxes, inhibiting migration munity particularly by paying from up deterring indigents taking generally indigents, utilize medical facilities county solely residence in — of fraud satisfied the state’s burden prevention and necessity impinge constitutionally pro- justifying the interests. tected 5, requiring policemen municipality in firemen to and reside they following test, employed. and ree- which were up- cognizing travel, right to the fundamental nature of the the court necessity police held for a or fireman’s the statute. The officer’s identity physical community, presence, with the the effect of his residence, which were the benefits chance encounters follow from sufficiently compelling justify deemed right an interference with the to travel. long Legislative coming. relief N. J. A. was S. 40:47-5 repealed by (§ July 40A:14-176), L. c. 197 effective Furthermore, :14-122.1, J.N. S. A. 40A:14-9.1 and 40A effective §§ 15, 1971, prohibit municipalities February making from employment policemen. This therein expression condition firemen and imply legislative policy appears dissatisfaction with R. of Newark O. 2:14-1in reasons current residency policemen stronger requiring much for firemen personnel. for clerical Detroit Police Ass’n v. than those Officers’ Detroit, 1971), (Sup. N. 385 Mich. 190 W. 2d 97 Ct. dismissed, appeal S. S. 2d 227 405 U. Ct. L. Ed. majority distinguishable (1972), cited is from the ease now before this Court for the same reasons noted above for Krzewinski Kugler. police While officers have been held to “officers” of a Paterson, municipality, Super. Mercadante v. 111 N. (Ch. 1970), aff’d, residency require (1971), N. J. 112 Div. they for them be more valid if were considered em

ment even necessary compelling ployees, for the state interest realistic more meaningful. Newark, Kennedy supra, upheld In the Court of its constitutionality after the ordinance concluding rested several rational bases: * * * supply a Government well conclude that residence will employment performance or

stake better in office or and incentive economy locality yields as of well advance the which the the tax * * * 184). (29 N. revenues. J. at Torrance, Ector infra, the Court of Supreme California upon relied similar bases justify various constitutional infringement. Among governmental purposes cited in these or now decisions by

urged promotion amici in curiae are balance ethnic community; high unemployment inner-city in mi reduction rates of nority groups; improvement groups of relations between such city employees; quality employee performance enhancement of by personal greater city’s by knowledge of the conditions and a feel greater ing personal progress; city’s diminution stake among municipal personnel; ready absenteeism and tardiness avail ability manpower emergency situations; general of trained flowing expenditure employees’ economic benefits from local sal say goals legiti thse aries. We cannot that one more of is not a by municipal purpose rationally promoted employee mate in issue. Cal. here 3d at 109 Cal. Rptr. P. at 2d at

Let us evaluate the validity these state purposes. Just as it is unconstitutional apportion economic benefits accord to a citizen’s tax contribution, Shapiro v. Thompson, ing supra, U. S. at 633-634, 1330-1331, S. Ct. at L. Ed. rely cannot upon “public coffer” theory require residency recirculate salaries “within the economy of the municipality pays those salaries.” Krzewinski v. Kugler, 338 F. Supp. 498-499, n. 4. While recognizing compelling interest municipality firemen requiring policemen and live within borders, municipal of trained availability manpower emergencies was not considered legitimate justification. * * * response emergency police capacity and firemen for municipal residency necessarily by impaired bounds outside is not logically proximity plaintiffs argue, geographical because, cannot proximity municipal equated interest The state borders. fairly rationally might a time or dis much more be satisfied Setting computation. at the for bounds residence the tance radius proximity compelled and city by a state interest limits valid is not Kugler, Supp. arbitrary. at being (Krzewinski F. approaches 6). n. tardiness with absenteeism and concern

Similarly, Eclor’s for residence requirements, a rational basis cannot be even The interest. reduction alone a compelling provide let relates groups inner-city minority unemployment among that not the hires, and whom the those state- compelling The remaining live in the city. employees infringement constitutional ments this justify urged balance, relations between of improving the ethnic promotion for incentive and' and residents, enhancing employees ob- they may of While be desirable employees. performance all them col- individually one of them jectives, not interest as to transcend so an lectively present constitutional right. Kugler, supra, in Krzewinski v. noted

The court in 1967 taken in Newark place that had rioting looting and lawlessness to rooted deeply attributed "much this and 338 F. an force. . ." Supp. disrespect police absentee as compelling 499. Even after the court recognized residency policemen interests underlying requirements firemen, Krzewinski Kugler, supra, Legislature and L. N. J. S. A. 40A :14.9-1 enacted c. and Secs. :14-122.1, 40A from prohibiting municipalities and requir firemen their to reside within ing policemen employer not that it did consider their municipality indicating as to justify requirements. residence so compelling us Legislature now tells that even majority though The and firemen necessary policemen does deem it to require to reside in it still municipality, necessary compel for a to so reside. stenographer ling agree. Supreme do not jurisdictions Other an ordinance requir unconstitutional New held Hampshire school city, including of the all classified ing municipality granted live in their unless teachers, employer Manchester, N. H. Donnelly a special permit. he could permits A. 2d 789 Ct. Such (Sup. 1971). hardship, shortage “for financial only extreme granted court, 790.5 274 A. or health reasons.” housing, of private that some impairment rights while recognizing test: applied permitted, following * * * upon upon passing restriction reasonableness against rights importance public private benefit is balanced private sought be im- seriousness of the restriction * * * posed. A. 2d at where citizen to live noting every After and across boun- freely chooses and within he travel had no doubt that lines, the court it dary stated of restricted fundamental rights residence ordinance em- that some indicating While city employees. carefully “near of be duty” may whose residence their place ployees residence, a to restriction on their justify important enough not this did possibility justify the court noted that live all all inclusive “broad 274 A. at city within the limits.” 2d a school district Similarly, regula the court invalidated v. Hanson county residence within tion requiring Kan., No. F. Wyandotte Cty., Sch. Dist. Unified de 1973). Kan. While the court based its Supp. (D. clause, on a of the and dis equal protection cision violation at travel, an to it noted claimed infringement 332: provides exceptions (a) when: health 5The Newark ordinance employee city any or of the officer necessitates outside employment require

limits; (b) resi- the nature of the such to special limits; (c) per- city circumstances attach dence outside mitting limits. residence outside of the plaintiffs requires effect, regulation In board’s the school they rights desire. live and work where choose between their they Wyandotte County They may teach either outside live however, county. They may not, do school within the district [Citation omitted.] both. and “public argument rejecting “right-privilege” for salaries interest” in district revenues school expending residents, first noted the decreasing importance the court Robin- in Kansas. See of local revenues in school financing Cahill, con- son v. it out that supra. Secondly, pointed tribution of the local tax base was “infinitesimal residents to rights,” when the interference with compared plaintiff’s Manchester, F. Supp. Donnelly City supra (364 citing were certified 333). took note that teachers court is in the in the case before this Court (appellant Civil to teach Service) presumably would qualified anywhere the state. While the residence requirement one, laudable here was “much crude” classification too to meet the avowed purpose. person

No has vested right to be employed by the state. Y., See Slochower v. Board Ed. N. 555- U. S. 637, 639-640, 76 S. Ct. 100 L. Ed. 692, 699 (1956). The absence of a public however, employment, does give rise to a state’s ability to “condition privilege which it may deny on the altogether surrender of a constitu tional Kutcher v. right.” Housing Authority Newark, 20 J. 181, N. 188-189 Donnelly See Manchester, A. 791; Bagley Washing 2d District, ton Township Hospital 65 Cal. 2d Cal. 401, 405, 421 P. Rptr. Ct. (Sup. quarter-century, For at least this Court has made clear that even though person “right” governmental a has no to a valuable benefit though government may jleny even him the benefit reasons, upon govern number there are some reasons which the may may rely. person deny ment not not a benefit to a on a basis * * infringes protected constitutionally (Perry that his interests *. Sindermann, 593, 597, 2694, 2697, v. 408 U. S. 92 S. Ct. L. 33 Ed. 570, (1972)). 2d 577

91 Wilson, Accord, v. 96 N. J. Super. 592, 598 (Law DeStefano Div. 1967); Bagley Washington Township Hospital Dis trict, the exercise of supra. rights States penalize Forssenius, Harman v. 380 guaranteed by the Constitution. Ed. 14 L. 528, 1177, 1185, 1186, U. S. 85 540-541, S. Ct 50, 2d 58-59 (1965).

An that before question to this analogous Court was Torrance, passed in Ector v. upon City Cal. 28 App. 293, 3d 104 Cal. 594 Rptr. rev’d, Cal. (Ct. App. 1972), 129, 3d Cal. 514 P. Rptr. 2d 433 Ct. (Sup. 1973), cert. denied, U. S. Ct. L. Ed. S. While the residence was struck down by the of Appeal, it was the California upheld by Court. The Torrance Charter Supreme provided all or become officers residents or date of residents within six months of appointment their An for those with employment. exception provided technical, abilities. In special knowledge or professional applying Shapiro, interest test compelling state for an Court of did Appeal justification not find sufficient impingement upon beyond freedom to travel “right boundaries of the residential 104 Cal. purposes.” Rptr. 598. The court relied on Purdy & Fitzpatrick State, 79 Cal. P. 77, 456 2d 645 Rptr. Ct. Cal. (Sup. In a declaring statute unconstitutionality pro hibiting employment works, aliens in public Purdy court noted that the state may not condition public employ ment upon waiver of In order constitutional rights. avoid offending equal protection of the Four provision teenth Amendment, the state must establish that the classi fication constitutes means of necessary accomplishing interest, state legitimate Loving v. Virginia, U. S. 87 S. Ct. 18 L. Ed. 2d 1010 (1967), law interest, serves a Thompson. Ector, reversing holding the Court of Appeal the Supreme Court of California first relied upon specific

directive in the state constitution for charter providing cities, Torrance, prescribe such to for “qualifications” employees. Such constitutional is not existent right claim, New Jersey. as to the federal constitutional Secondly, what held did not include court that to travel right it termed a commute.” applied to It therefore “right Newark rational test, Kennedy basis citing Cal. noted that 852, at 514 P. 2d It also Rptr. at “the cultural rewards of international educational . of a travel . . are from routine daily trips not reaped Dulles, Kent v. commuter,” harassed metropolitan citing L. Ed. 2d 1204 U. S. 78 S. Ct. 109 Cal. P. 2d at 436. Rptr. is an over-simplification, however, to characterize the

right asserted herein as that com merely “harassed muter.” “It is the exercise of that initial migrate to a new assert, location which the wishes to employee Goldstein, that of daily travel to the municipality.” supra, 7 U. San Fran. L. Rev. at 527.

While on travel re- attempting clarify impact test, to invoke the state interest quired Court, in Memorial Hospital County, Maricopa v. Housing cites in Cole “perceptive opinion” Authority two-year Newport, supra, which low federally-aided for for requirement applicants rent was housing declared violative equal protection Cole clause. The court clarified what it felt was the Supreme Court’s of travel. concept * * * migration apparently uses “travel” the sense of Note, Shapiro Thompson: with intent to settle abide. See Constitution, Travel, Rev. Welfare N. Y. U. L. persons (1969). Thus, comparatively disadvantage laws travel- that per- ing advantage leaving benefits and then take Shapiro. example, suggested missible under For the Court resi- dency eligibility receive is a reasonable welfare one-year waiting period benefits but unconstitutional. Any Shapiro, supra 89 S. 22 L. Ed. 2d resi- Ct. thought penalize

dency requirement might if be to travel A “travel” is used in the of movement. resident of Maine vaca sense tioning Hampshire penalized might traveling for month New library Hampshire if of a card he could not obtain benefits in New during Nevertheless, residency requirement “pe his vacation. so nalizing” permissible probably Shapiro. kind of that travel under (Cole Housing Authority City Newport, [Footnotes omitted.] 811). supra, 435 F. 2d at Cole, question Shapiro, was whether the resi- dency because requirement penalized persons they have re- cently to migrated locality. The residence requirement imposed by the Newark ordinance directly affects one’s ability to abide,” intent to settle “migrate with while no having relationship to those taking temporary advantages of State If benefits. one works for a local government, the would allow majority the choice of where to he settle to made body, and not the individual. Such re- governing strictions a clear pose threat to migration by second causing dislocation when new arrivals or present find work in a government jurisdiction adjacent to that which have they decided settle. in Ector v. reversing Appeal decision Court Torrance, the Supreme Court of California misconstrued

of the law respect necessity impairment of rights. constitutional ** * Appellant necessarily prove wholly need not he was denied invokes,

rights he now but he must at least show that his exercise rights actually significantly impaired. of those Cal. 3d Rptr. 136, 853, at 109 Cal. at 514 P. 2d at is a “fundamental law” misunderstanding actual and require significant impairment Blumstein, travel. Dunn v. U. supra, S. at S. Ct. at 31 L. Ed. 2d 283. Thompson at did rest upon the denial of welfare finding actually that nor, deterred travel other historically, have to travel cases relied upon presence of actual deterrents. Dunn v. Blumstein, 405 U. 339-340, S. at 1001-1002, S. Ct. at L. Ed. 2d 282-283. In Shapiro v. Thompson, at U. S. 22 L. Ed. 2d at Court 634, 89 S. Ct. at

at which serves to penalize classification “any stated shown to be necessary unless right, pro- exercise of that interest, is unconstitu- governmental mote a Seattle, Eggert See original.) (Emphasis tional.” P. 2d at v. Maricopa Memorial Similarly, Hospital L. Ed. 1082, 39 at 415 U. 94 S. Ct. County, supra, S. medical care denial noted that of nonemergency to the may well an from very migrating inhibit indigent his Arizona, “clean air relief from disease dry, where and poverty.” could also relief from bring unemployment in- because of the fact one hesitate to travel held to medical care was to fall back on state for ability v. Memorial Hospital abe sufficient within penalizing Abrahams us, Mrs. County. In case now before Maricopa be- migrate her to right is told she can exercise being that limits of her employ- of loss yond only on penalty a direct evidence of ment. more is difficult to imagine to penalty deter travel.

The City’s essentially is in Ken- position expressed Newark, v. nedy City supra, to effect that residence a supplies necessary incentive for better performance and concern increased for the Newark employees community. it, centers, notes in its brief that like urban many is plagued ills, a of social by myriad including inadequate housing, care, and health well schools as as crime and high unemploy- minimized, levels. While these are not to be problems ment a mu- moving beyond resident penalizing from em- boundaries nonresidents nicipality’s barring constitutionally are not alternatives. permissible ployment must be less parochial range. Our outlook Weintraub, Court of Supreme Chief Justice Quoting City before in Ector v. them framed question California Torrance, follows: as question is not whether a man is free to live where he will. question may Rather is whether he live where he wishes at ** upon employment by government. the same time insist *. 136-137, Rptr. quoting Cal. 3d at at P. 2d Cal. at 437 Kennedy Newark, supra, 183). 29 N. I respectfully not whether a disagree. question man, is live, chosen a having insist place may upon employment aby rather, government, whether government but may an individual compel to live within its boundaries a condition of continued employment. question right [T]he before this is not Court whether man has a policeman simultaneously upon to be or fireman and insist his right wishes, he live where but rather whether the interests of a

municipality asking policeman or fireman to surrender his con migrate exchange job stitutional to travel for his sufficiently compelling justify working the creation of a class of (Krzewinski Kugler, supra, [Footnote immobiles. omitted.] Supp. F. City employees must choose between outside Newark living their retaining jobs not do city. They both. The ordinance penalizes the exercise of that initial migrate.

I fail to see the state interest involved herein as suf ficiently justify broad and all inclusive limitations imposed families in not them to allowing travel where they choose. That the residence ordinance now before this is potential deterrent would clearly penalize the right to travel to a substantial degree, clear. Manchester, Donnelly A. 2d 791; Krzewinski v. Kugler, 338 F. Supp. at 498.

I would hold the ordinance unconstitutional as an im- permissible restriction the right to travel in the absence of a sufficiently interest.

II I agree with the majority insofar as it holds the "special circumstances” exception of the ordinance void in the ah-

96 the whatsoever discretion guide

sence of standards however, the majority, in its Unlike of officials application. on the basis of down the entire ordinance I would strike section. this unconstitutional severability not contain

The Newark ordinance does is section one present Even where such clause clause. invalid, may be the ordinance an is declared of ordinance hatch the an escape in tobo if “without such invalidated an or entirely different have might adopted municipality etc., Bruns Mayor, Co. v. So. Dallenbach Sand dinance.” 1966). 221 Div. Ab 90 N. J. Super. (App. wick Twp., that clause, “it is. to be severability presumed sent an entirety.” be effective as intended the act to Legislature boken, Doto, Riccio v. Ho 69 v. 10 N. J. 318 (1952); State Com’rs, & Bd. 1903). N. J. L. 662 A. See (E. of J. Realty Co., Pk. v. A. 73 N. Super. S. Pater Ridgefield alone, however, This is not de 161 Div. (Ch. Anger of the issue. As stated this Court terminative Girt, v. N. J. 311 : meier (1958) Sea separability principle in aid The is of the intention law body inquiry lawmaking designed giver. is that whether the unitary enough fall It should stand as a whole. is not enactment severability fact; is severable in its event that act legislative partial invalidity within must also have been intention. interpretation legislative question and of is a intent whether particular provision invalid is so interwoven with the clauses as severability (there stand A was none it cannot clause alone. may “provides here) aid a rule of construction which sometimes such merely; determining But an aid not an that intent. it is inexorable Dorchy Kansas, S. 44 S. Ct. command.” State U. express declaration, (1924). uncon L. Ed. Absent such an provision validity of an stitutional does affect statute valid, provision enactment, if otherwise unless the two other intimately dependent upon each connected and other so adopted Legislature presumption would not have raise the object principal one of the statute without other. Where the objectionable with and the feature can excised constitutional impairment general purpose, the statute is out substantial operative except far fundamental as it contravene so law. Amboy Baptist Church Perth Greek Catholic St. John Gengor, Eg. (E. 1937) Doto, ; J. N. 121 N. & A. State of an inten is, the presumption then given The question as an whether entirety, act be effective tion that related intimately so exception circumstances” “special substantially will its excision to the whole ordinance that enactment. The ordinance of the purpose impair general Board of the all officers and first requires Newark, sub residents Commissioners section The second statutory exceptions. of course to ject au any department the director of of the ordinance grants residency thority compliance waive nature of health, employment, of (1) (2) for reasons very exceptions The first two circumstances. (3) special today majority which the The third exception, specific. number any could refer void for vagueness, declares nonresidence, or technical professional including reasons and gives shortages, personal problems ability, housing To re areas of discretion. directors broad department de from the this area of discretion director move the ordinance while would be to con partment retaining to health and nature of How exceptions employment. fine discretion which ever, absent the unfettered the “special ’ creates, clause circumstances” view of the presump was to tion that it be viewed its entirety, ordinance differing is a restrictive nature and so regulation effect from that enacted as to substantially justify down striking National Ins. Washington the whole ordinance. Co. v. Bd. of Review, 1 N. J. 545 Bd. Com’rs. v. A. Pater (1949); S. Co., N. 160-162. Realty supra, Super. at

Ill others, A failure to because lack of prosecute knowledge an allegation is not sufficient to sustain of discriminatory Boles, 368 U. Oyler 448, 456, S. 82 S. Ct. enforcement. 501, 506, 7 L. Ed. 2d (1962); Kennedy City Newark, 29 N. J. supra, Even the conscious exercise in enforcement selectivity of some is not necessarily con Boles, Oyler violation. stitutional U. S. at Ed. 453. L. 2d at This is not a situ- 456, 82 S. Ct. however, I with the in ation, join majority where can find- of of a “any the absence evidence deliberate of policy ing the directors of other by city departments, non-enforcement a whole. . . .” by or administration as One cannot this record is “barren of as contend seriously proof” Newark, v. the case in 29 N. Kennedy City was of that of majority The concedes random appellant’s of 142 a city employees, full found sampling (21) were 15% to be nonresidents in violation of apparent the ordinance. At no point the briefs or at oral argument was it demon- strated that any city-wide procedures existed either for the enforcement of the ordinance or the of granting exemptions. No city-wide directives or instructions were ever circulated. Enforcement pursued within the law solely department. Failure to enforce an ordinance does not in and of itself preclude enforcement. v. subsequent Kennedy New City of ark, supra, 29 N. J. at 191. In however, Kennedy, there was no evidence of a studied policy to enforce the ordinance and no evidence of official of knowledge violations. Such is not the case here. The link” “missing of v. Kennedy Newark is of

present here: official of violations of or knowledge Newark, dinance. Kennedy supra at 192. The of City’s records speak for themselves. hardly It can be con tended that the City was unaware other violations when the City’s records show that in a random more sampling, than of City employees were in violation of or 15% dinance.

The presumption validity municipal ordinances only by overcome clear showing arbitrariness or unreasonableness. Kozesnik v. Montgomery 24 N. J. Twp., But, (then Justice Hall Judge) noted Park, Edelstein Asbury N. J. 368, 390 Super. (App. Div. : 1958) motive, “The absence of or corrupt even faith, presence good does not alone preclude judicial ex- or made an offer remedy.”. Appellant animation has of proof sampling. Newark’s enforcement this discriminatory as to presumptive evidence, for deductive Circumstantial or as a basis reasoning issues, “a defined as mere the determination of civil is preponderance probabilities, and, therefore, a sufficient basis Co., Delaware, J. L. Jackson & N. decision.” L. W. R. (E. quality said, & A. it of cer As there need not have the logic; tainty, presumption grounded but it must be reason guess conjecture legal proof. mere cannot be substituted for persuasion burden evidence demonstrates is not sustained unless the pre inference, say, hypothesis offered as a rational probabilities according sumption grounded preponderance in a easy lay experience down to the common of mankind. is not precision just the line of demarcation between reasonable conjecture accepted inference and standard mere or surmise. persuasion be for triers of the facts is the determination that preponderance probably quantitative founded truth. A bare is not quality enough. lead reason The evidence must such as to ably given mind cautious to the conclusion. measure weight feeling probability is it en of the evidence “the which Metropolitan Bottling Co., genders.” Bornstein v. 26 N. J. 263 Wigmore (1958), citing (3d ed.) Sivak v. Evidence 2498. See § City Brunswick, (E. New 122 N. L. & A. Hospital (Joseph Ass’n, (1958)). v. Passaic 26 N. J. 574-575 of a violation xate combined showing Appellant’s 15% with admitted efforts at enforcement Connsel’s Corporation law the inference within the raise solely department arbitrary efforts were as to City’s enforcement so constitute rights discrimination in under derogation appellant’s Once clause. had established the protection appellant equal of nonenforcement with coupled knowledge by City inference officials, it burden to employee’s is come forward data, City conclusive but the is to show obligated what e., i. and expertise, is within its control the ordinance enforced and its officials in fact no fairly had being of violations. knowledge admonitions and of future

The time for enforce warnings Newark. Kennedy City after ment was statement to the effect that officials majority opinion “may in the have nonresident past disqualified applicants burden meet attempt belated

City employment” ma- has failed to sustain. That the which the proof as an today’s City against taking holding jority cautions is a nonenforcement” sorry apology “excuse for continued against impingement constitutional barriers leveling and the to the equal protection to travel laws. I reverse the decision of the Civil would Service Commis- Newark Residence sion hold the Ordinance unconstitu- tional.

For Hall, Sullivan Clifford affirmance—Justices Judges and Collester — 5. Conford For reversal—Justice Pashman — 1.

Case Details

Case Name: Abrahams v. Civil Service Commission

Court Name: Supreme Court of New Jersey

Date Published: May 8, 1974

Citation: 319 A.2d 483

Court Abbreviation: N.J.