Smith v. City of Newark

• Decision Date: 30 April 1974
• Citation: 128 N.J.Super. 417,320 A.2d 212
• Parties: Ernest SMITH, individually and on behalf of all other persons similarly situated, Plaintiff, v. The CITY OF NEWARK et al., Defendants.
• Court: New Jersey Superior Court

Page 417

128 N.J.Super. 417

320 A.2d 212

Ernest SMITH, individually and on behalf of all other persons similarly situated, Plaintiff, v. The CITY OF NEWARK et al., Defendants.

Superior Court of New Jersey Law Division.

April 30, 1974.

Theodore A. Winard, Asst. Atty. Gen. and John F. Shoosmith, Jr., Deputy Atty. Gen., for defendant Civil Service Commission (William F. Hyland, Atty. Gen., attorney).

Irvin L. Solondz and Frank B. O'Neill, Newark, for plaintiff.

Donald S. Coburn, Asst. Corp. Counsel of the City of Newark, East Orange, for defendant City of Newark (Donald E. King, Corp. Counsel, Newark, attorney).

John W. Noonan, Newark, for individual defendant Fire Captains and Professional Fire Officers Ass'n, Local 1860, I.A.F.F., AFL--CIO (Noonan & Flynn, Newark, attorneys).

MILMED, J.S.C.

The Attorney General by his motion on behalf of defendant Civil Service Commission to dismiss the latest amended complaint in this action brings up for review the constitutionality of the provisions of chapter 3 of the Laws of 1972 which eliminate municipal residency as a prerequisite for appointment, continued employment or promotion for municipal firemen. N.J.S.A. 40A:14--9.1 to 40A:14--9.8, inclusive, and N.J.S.A. 40A:14--10.1 and 40A:14--13, as amended. Similar provisions relating to municipal policemen are contained in the same statute.

Plaintiff, a resident of the City of Newark employed by its Fire Department, commenced this class action on behalf of resident Newark firemen who took a competitive examination for promotion to the position of fire captain. Plaintiff placed 61st on the list. Since the promulgation of the list in June 1968 'the first thirty-five or more' persons named therein, some of whom did not meet the residence requirements of N.J.S.A. 40:46--14 and 40:47--5 and Newark Municipal Ordinance 2:14--1 then in effect, have been promoted to fire captain.

Initially the City of Newark and the Director of the Newark Fire Department were named as defendants. The promotional list was preserved by order of the trial court pending determination of plaintiff's complaint. Plaintiff was granted leave to file an amended complaint adding the State Civil Service Commission as an additional party defendant, and thereafter the Professional Fire Officers Association, Local 1860, I.A.F.F., AFL--CIO, was permitted to intervene. Subsequently the then trial judge entered an order making all fire captains of the city party defendants. Plaintiff's then amended complaint sought, among other things:

(a) a determination that all promotions of nonresident firemen from the list be declared void;

(b) injunctive relief requiring defendants to terminate employment of those firemen holding the position of captain or listed for promotion who were not in compliance with the residence requirements of N.J.S.A. 40:46--14 and 40:47--5 and Newark Municipal Ordinance 2:14--1, then in effect;

(c) to require the promotion of plaintiff and others similarly situated to the position of fire captain.

On February 15, 1972, while the litigation was pending, chapter 3 of the Laws of 1972 became effective, containing certain provisions (N.J.S.A. 40A:14--9.1, 40A:14--9.2 and 40A:14--9.7) which retroactively abolish municipal residency requirements for appointment, continued employment or promotion for municipal firemen. Thereupon, on the basis of the new legislation, counsel for certain of the defendants moved for a dismissal of the complaint. The trial judge at the time dismissed the complaint 'as being moot by virtue of the enactment' of the cited 1972 statute, reserving to plaintiff the right to file a new complaint challenging the constitutionality of that legislation and to raise the issue of misrepresentation of residence, I.e., that certain firemen had procured their appointments by falsely representing their residences.

Plaintiff appealed from the judgment of the trial court. The Appellate Division reversed and remanded the proceeding, holding that the pending litigation provided a vehicle wherein the additional issues urged by plaintiff could be litigated. The fire captain's promotional list for the city was revived and extended pending determination of plaintiff's proposed further amended complaint, which plaintiff did thereafter file. Following the remand, the case was assigned to this court for hearing and disposition.

Plaintiff's latest amended complaint reasserts his initial position, challenges the constitutionality of chapter 3 of the Laws of 1972, and asserts fraud on the part of certain of defendant firemen in certifying false addresses on their applications for employment and the promotional examination. The Attorney General contends that the amended complaint fails to state a claim upon which relief may be granted.

In opposing the pending motion to dismiss, plaintiff urges that chapter 3 of the Laws of 1972 violates Art. IV, § VII, pars. 7 and 8, and clauses (5), (8) and (13) of par. 9 of the New Jersey Constitution (1947) in that it constitutes 'special' legislation: creating, increasing or decreasing the emoluments, term or tenure rights of public officers or employees; granting an exclusive privilege, immunity or franchise to individuals, and regulating the internal affairs of municipalities, since the statute applies only to firemen and policemen and not to other municipal employees. Plaintiff also contends that the statute violates other constitutional provisions, I.e., Art. VII, § I, par. 2 of the State Constitution (relating to appointments and promotions in the civil service), and Art. IV, § VII, par. 3 of the State Constitution and Art. I, § 10, cl. 1 of the Constitution of the United States (prohibiting legislation impairing the obligation of contracts). Beyond this, plaintiff suggests that the statute is not retroactive in its operation and that in any event it has no dispositive effect upon the issue of alleged fraud.

The pertinent provisions of legislation (N.J.S.A. 40:46--14, 40:47--5 and Newark City Ordinance 2:14--1) in effect at the time of promulgation of the promotional list in June 1968, relied upon by plaintiff, required firemen, as a condition of employment and continued employment, to be bona fide residents of the employing municipality. N.J.S.A. 40:46--14 and 40:47--5 were repealed by chapters 200 and 197, respectively, of the Laws of 1971 (N.J.S.A. 40A:9--22 and 40A:14--176), effective July 1, 1971. Residence requirement provisions were, however, enacted by L.1971, c. 200, § 1, N.J.S.A. 40A:9--1, in the following form Except in the case of counsel, attorney, engineer, health officer, auditor or comptroller, or as otherwise provided by law, every person holding an office, the authority and duties of which relate to a county only, or to a municipality only, shall reside within said county or municipality, as the case may be.

Any person holding or attempting to hold any such office in a county or municipality in violation hereof, may be ousted in a proceeding in lieu of prerogative writ.

L.1972, c. 3, N.J.S.A. 40A:14--9.1 et seq., effective February 15, 1972, among other things renders inoperative statutory and local requirements of municipal residency for firemen.

N.J.S.A. 40A:14--9.1 provides:

No municipality shall pass any ordinance, resolution, rule, regulation, order or directive, making residency therein a condition of employment for the purpose of original appointment, continued employment, promotion, or for any other purpose for any member of a paid fire department and force or paid member of a part-paid fire department and force, and any such ordinance, resolution, rule, regulation, order or directive in existence on the effective date of this act or passed hereafter shall be void and have no force or effect.

N.J.S.A. 40A:14--9.2 provides:

In any municipality wherein Title 11 (Civil Service) of the Revised Statutes is operative, applicants for appointment to the paid fire department and force or as paid members of the part-paid fire department and force who are not residents of the municipality shall be eligible for appointment thereto notwithstanding the provision of any statute, law, ordinance, rule or regulation to the contrary.

N.J.S.A. 40A:14--9.3 and 40A:14--9.4 provide respectively for future preference in appointment and promotion to a paid or part-paid fire department and force, in municipalities wherein Title 11 (Civil Service) is operative, of a resident over a nonresident in any instance in which the resident and nonresident achieve the same final average score in the test for the position, provided such preference does not diminish, reduce or affect preferences granted to veterans pursuant to N.J.S.A. 11:27--1 et seq. or any other provision of law. ¹

N.J.S.A. 40A:14--9.7 provides:

Any person serving as a member of a paid fire department and force or paid member of a part-paid fire department and force pursuant to the provisions of any act repealed by this act shall continue to serve in such position and need not comply with any residency requirement which may have been a condition of his continued employment thereunder.

N.J.S.A 40A:14--9.8 provides:

Every member of a paid fire department and force and every paid member of a part-paid fire department and force shall be a resident of the State of New Jersey while serving in such position. Members appointed after the effective date of this act shall be residents of New Jersey at the time of their appointment and thereafter unless otherwise provided herein.

N.J.S.A. 40A:14--10.1, as amended, eliminates municipal residency requirements for any person discharged or released from the military service and who makes application to a municipality for appointment to a fire department and force, requiring such applicant to become a resident of New Jersey within six months from the date of appointment. And N.J.S.A. 40A:14--13, as amended, eliminates the municipal residency requirement for any person temporarily...