Abrahams v. Civil Service Commission

• Decision Date: 08 May 1974
• Citation: 65 N.J. 61,319 A.2d 483
• Parties: Louise ABRAHAMS, Appellant, v. CIVIL SERVICE COMMISSION on the State of New Jersey and City of Newark, Respondents.
• Court: New Jersey Supreme Court

Page 61

65 N.J. 61

319 A.2d 483

Louise ABRAHAMS, Appellant, v. CIVIL SERVICE COMMISSION on the State of New Jersey and City of Newark, Respondents.

Supreme Court of New Jersey.

Argued Nov. 20, 1973.

Decided May 8, 1974.

Elliot M. Aumgart, East Orange, for appellant (Baumgart & Ben-Asher, East Orange, attorneys).

Althear A. Lester, Asst. Corp. Counsel, Newark, for respondent City of Newark (William H. Walls, Corp. Counsel of the City of Newark, Newark, attorney).

The opinion of the Court was delivered by CONFORD, P.J.A.D., Temporarily Assigned.

The primary 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, 148 A.2d 473 (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 1967 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 non-residents.

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, 310 A.2d 476 (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, 148 A.2d at 475):

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, 148 A.2d at 476). 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, 148 A.2d at 476)

The objections 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, 148 A.2d 473).

Kennedy was recently reaffirmed by this court in Mercadante v. City 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, --- U.S. ---, 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 (--- U.S. at ---, 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 be unconstitutional.

394 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 'cast 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.Ct. 995, 1003, 31 L.Ed.2d 274 (1972). (Emphasis added.)

A foreshadowing of the rejection by the Supreme Court in Memorial...