author: King, J. C. C.,

text:
    JULIA A. CRIST AND AMERICA MERCADO, ON BEHALF OF THEMSELVES, AS PARENTS AND GUARDIANS OF THEIR CHILDREN AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS, v. THE NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES AND THE JUVENILE AND DOMESTIC RELATIONS COURT OF CAMDEN COUNTY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided April 25, 1974.

      Mr. Carl S. Bisgaier for plaintiffs (Mr. Allen S. Zeller and Mr. Wayne Bryant, of counsel; Camden Regional Legal Services, Inc.).

      Mr. Charles R. Parker for defendants (Mr. William F. Hyland, Attorney General of New Jersey and Mr. George F. Kugler, Jr., former Attorney General).
   King, J. C. C.,

Temporarily Assigned. This is an action instituted to test whether indigent parents who are threatened with removal of children from the home by a public agency are constitutionally entitled to counsel free of charge under the Federal Constitution. The Attorney General opposes plaintiffs, urging that the right to free counsel in this context is not a fundamentally protected right under the federal Due Process Clause or the Equal Protection Clause, and contends that the matter is one of exclusively legislative and/or executive concern. Although the question is one of first impression in New Jersey, the issue has been the subject of substantial judicial consideration in other jurisdictions.

This suit was precipitated by actions commenced by the Division of Youth and Family Services (DYFS) against the various plaintiffs under N. J. S. A. 30 :4C-1 et seq. Concerned with “Dependent and Neglected Children,” this chapter expresses the public policy of the State to be: “* * * that the preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare. * * *” N. J. S. A. SO :4C — 1. In this instance the proceedings for custody of the children of the various plaintiffs were commenced by DYFS under N. J. S. A. 30:4C-12, which provides for a proceeding in the Juvenile and Domestic Relations Court before placing a child in the Division’s custody for a period of up to six months. Such an order may be extended in a summary hearing upon application by the Division and notice to the parents. This chapter further provides that the Division may proceed in an appropriate situation to obtain an order terminating parental rights and committing the child to the guardianship and control of the Division. N. J. S. A. 30:4C-20. There is no provision in the chapter providing for court-appointed counsel for indigent parents.

This action is brought by four plaintiffs who have been the subject of proceedings under the statute. On December 18, 1972 plaintiff Crist’s child was removed from her home under an order of the Juvenile and Domestic Relations Court. In April and May of 1973 ten children were removed from plaintiff Mercado’s home as a result of agency action. Plaintiff Crist’s child was returned on July 20, 1973. Two of plaintiff Mercado’s children still remain in foster placement. The Tazewells’ seven children were removed pursuant to court order on February 15, 1974. On February 16, 1974 five children wore returned but two children remain in foster care, and the Tazewells have requested a court dato for formal hearing on the custody issue. All plaintiffs are represented in this proceeding by Camden Regional Legal Services, Inc., which office asserts that it is without the funds or facilities to represent all persons similarly situated. Camden Regional Legal Services, Inc. asserts that its office should not be required to represent indigent persons entitled to court-appointed counsel as a matter of right. All parties have moved for summary judgment on the pleadings and affidavits. Both plaintiff Crist and plaintiff Mercado have heretofore been represented by Camden Regional Legal Services during the custody proceedings already concluded. Plaintiffs Tazewell remain unrepresented in the custody proceeding and are awaiting a hearing. Plaintiffs Tazewell clearly have standing to raise the question presented.

Where the party does not rely on any specific statute authorizing invocation of the judicial process, the question of standing depends upon whether the party has alleged such a “personal stake in the outcome to the controversy,” Baker v. Carr, 369 U. S. 186, 204, 82 S. Ct. 691, 7 E. Ed. 2d 663, 678, as 1:o ensure that “the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.” [Sierra Club v. Morton, 405 U. S. 727, 732, 92 S. Ct. 1361, 1364, 31 L. Ed. 2d 636 (1972)]

Plaintiff Crist would seem to have no standing because hex child was returned. As to her this action is dismissed. Since plaintiff Mercado may not in fact be able to secure the continued representation of Camden Regional Legal Services, Inc., and two of her children remain in the temporary custody of the State, she would appear to have the requisite standing to maintain this action.

The claim here presented has been the subject of a number of decisions in other states during the past seven or eight years, undoubtedly the product of the “poverty law explosion” and the United States Supreme Court’s recognition of an expanded class of fundamental rights not specifically enumerated in the Bill of Rights, e. g., Griswold v. Connecticut, 381 U. S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965). The first decision touching on the problem was Chambers v. District Court of Dubuque Cty., 261 Iowa 31, 152 N. W. 2d 818 (Sup. Ct. 1967) see also Orcutt v. State, 173 N. W. 2d 66 (Iowa Sup. Ct. 1969). In a proceeding to terminate parental rights under a 1965 Iowa statute the parent had been provided with free counsel at the trial level as required by the statute. While the statute was silent as to the right to free counsel and a free transcript on appeal, the court found that both such rights inured to the parent, basing its decision on state grounds of statutory construction. In Chambers the Iowa Supreme Court felt that In re Gault, 387 U. S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), strengthened its grounds for decision, but specifically avoided a finding of federal constitutional compulsion.

Next follows the decision of the Supreme Court of Minnesota, In re Karren, 280 Minn. 377, 159 N. W. 2d 402 (1968). The parent had failed to retain custody of the child and petitioned the Supreme Court of the state for an order compelling the court below to provide a transcript of the trial proceedings for appeal purposes at public expense. The parent had been represented by the Legal Aid Society, which also provided counsel for her appeal, so there was no right to counsel issue. Plaintiff was a welfare client and the welfare department actually acquiesced in her application to compel the department to expend monies on the transcript. The Minnesota Supreme Court relied on Chambers v. District Court of Dubuque Cty., supra, and stated: “We are of the opinion that the circumstances here compel a finding as a matter of law that a transcript is a necessity which must bo paid for out of appropriate welfare funds.” (at 403).

Again, the basis for decision was controlled by the state court’s interpretation of the local statutory scheme where no specific section of the statute provided for a free transcript, and the grounds for decision were not of a federal constitutional nature. The Minnesota court, mirroring the Iowa court in Chambers, did mention its sensitivity to the Gault decision, stating:

Although the [GaiiW] court did not find it necessary to decide whether an indigent delinquent must be furnished a free transcript, the opinion strongly underscores the necessity for according litigants in juvenile court all of the procedural due process customarily granted to defendants in criminal court. [Td. at 404]

One month after In re Karren, supra, the Oregon Supreme Court issued ihe first opinion clearly placing the indigent parent’s right to free counsel on a federal constitutional basis. State v. Jamison, 251 Or. 114, 444 P. 2d 15 (1968). In holding that where the parent in a termination proceeding is indigent, counsel must be supplied at public expense as a matter of due process, the court expressed the reasons for being so motivated:

The permanent termination of parental rights is one of the most drastic actions the state can take against its inhabitants. It would be unconscionable for the state forever to terminate the parental rights of the poor without allowing such parents to be assisted by counsel. Counsel in juvenile court must bo made available for parents and children alike when the relationship of parent and child is threatened by the state, [at 17]

Once more Gault was a springboard for the court’s finding. The Oregon court indicated that “the indigent are frequently the least able to cope with government in its official functions.” Id. This observation concerning the tremendous imbalance between the parties in such a grave matter most certainly accords with this court’s own personal experience in dealing with these matters. The Oregon court also was unimpressed by the civil-criminal dichotomy as controlling the denial of counsel below remarking, “the consequences of the denial of counsel are as serious as they are in most criminal prosecutions.” Id.

The trend was temporarily reversed by a decision of an intermediate court of appeal in California in 1970. Robinson v. Kaufman, 8 Cal. App. 3d 783, 87 Cal. Rptr. 678 (D. Ct. App. 1970), cert. den., 402 U. S. 964, 91 S. Ct. 1624, 29 L. Ed. 2d 128 (1971), found no statutory or constitutional right to appointed counsel for either parent or child in a dependency or termination of rights proceeding. The court was unimpressed by Gault, choosing to limit its impact to situations where the traditional criminal sanction of incarceration against the child could be imposed. Essentially the case was considered by the California' court as no different than a routine child custody battle between parents.

The United States Supreme Court denied a petition for certiorari in that case over dissents by Mr. Justice Black and Mr. Justice Douglas. Kaufman v. Carter, 402 U. S. 964, 91 S. Ct. 1624, 29 L. Ed. 2d 128 (1971). It is clear from the dissenting opinions that these two members of the court felt that the right of counsel in this type of proceeding was of a compelling and fundamental character which should' be recognized under the Due Process and Equal Protection Clauses. Justice Douglas remarked: “Courts ought not be a private preserve for the affluent.” 402 U. S. 964, 91 S. Ct. 1624, 29 L. Ed. 2d 127. Of course, denial of certiorari by the Supreme Court is not authoritative in any sense as to its ultimate attitude on the merits of the decision of the California court .below. Maryland v. Baltimore Radio Show, 338 U. S. 912, 919, 70 S. Ct. 252, 94 L. Ed. 562 (1950) ; Hughes Tool Co. v. Trans World Airlines, 409 U. S. 363, 93 S. Ct. 647, 34 L. Ed. 2d 577 (1973).

The decision of the intermediate California court in Robinson v. Kaufman, supra, was followed in In re T, 25 Cal. App. 3d 120, 101 Cal. Rptr. 606 (D. Ct. App. 1974). The court again stressed the civil-criminal dichotomy and refused to be influenced by the Gault approach. However, a California Federal District Court refused to accept the two state-court rulings as persuasive on federal constitutional grounds and held that the parent was entitled to free counsel as a matter of federal right. The court felt the inherent gross imbalance of expertise created a fundamentally unfair situation and that the only state interest was in avoiding expense, which is not a compelling local interest. Cleaver v. Wilcox, 40 U. S. L. W. 2658 (N. D. Cal. 1972) (otherwise unreported).

In 1972 the problem was considered by the Court of Appeals of New York, In re B, 30 N. Y. 2d 352, 334 N. Y. S. 2d 133, 285 N. E. 2d 288 (1972). The parent was indigent and the case reached this high court on the question of waiver of her right to counsel. No provision appeared in the controlling statute requiring the appointment of counsel for an indigent parent. The court found no waiver of counsel present. On the issue of the right to appointed counsel the court appeared to assume that such right existed. Indeed, from the opinion it is difficult to conclude that any opposition on this point was made by the attorney-general of the state w'ho appeared on the appeal, and the actual party in interest, the Commissioner of Social Welfare Services of Westchester County, did not dispute the parents’ right to have free counsel. Chief Judge Fuld stated:

In our view, an indigent parent, faced with the loss of a child’s society, as well as the possibility of criminal charges is entitled to the assistance of counsel. A parent’s concern for the liberty of the child, as well as for his care and control, involves too fundamental an interest and right to be relinquished to the State without the opportunity for a hearing, with assigned counsel if the parent lacks the means to retain a lawyer. To deny legal assistance under such circumstances would ■ — • as the courts of other jurisdictions have already held [citations omitted] — constitute a violation of his due process rights and, in light of the express statutory provision for legal representation for those who can afford it, a denial of equal protection of the laws as well. [334 N. Y. S. 2d at 136, 285 N. E. 2d at 290]

In 1973 the highest courts of Nebraska and Maine followed the New York Court of Appeals in recognizing the right to assigned counsel as fundamental. To support its view, the Maine high court carefully reviewed its concept of the compelling constitutional history, ranging from Meyer v. Nebraska, 262 U. S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1922) (right to teach German language to children in grade school) to Pierce v. Society of Sisters, 268 U. S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1924), where, in upholding the right to educate children in a parochial school, Justice McEeynolds stated: “The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations” (268 U. S. at 535, 45 S. Ct. at 573); to Stanley v. Illinois, 405 U. S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972). The practical problems of litigation with unrepresented parents was well recognized in the Maine opinion which said as follows:

In a neglect proceeding the full panoply of the traditional weapons of the state are marshalled against the defendant parents. The Department is designated to represent the State at the hearing but may, at its option, request that the County Attorney represent the State as he would in criminal prosecutions. The Department has access to public records concerning the family, the services of professional social workers to investigate the family situation and to give testimony at the hearing and the Department’s representative at the hearing has knowledge and experience in legal proceedings, subpoena powers, familiarity with the law of evidence, and the ability to examine witnesses.
The crucial issues in a neglect proceeding may be difficult to grasp and consequently difficult to refute for an uneducated and unsophisticated layman. The expert testimony presented by the Department may include that of psychologists whose jargon is usually beyond the understanding o£ the ordinary person. The statement in Powell v. Alabama, 287 U. S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932), that “even the intelligent and educated layman has small and sometimes no skill in the science of law’’ would apply to neglect proceedings in the same manner as it applied to criminal prosecutions. The average parent would be at a loss when faced with problems of procedure, evidence, or with cross-examination. Statistical studies conducted in other jurisdictions indicated markedly different results between neglect proceedings where the parent has assistance of counsel and those proceedings where the parent is without counsel. See Note, Child Neglect : Due Process for the Parent, 70 Colum. D. Rev. 405, 476 (1970). We agree with the Oregon Supreme Court that for most parents involved in neglect actions “the entire proceedings [are] incomprehensible.” State v. Jamison, 251 Or. 114, 444 P. 2d 15 (1968).
The neglect proceeding is accusatory inasmuch as the Department is attempting to demonstrate that the parents’ conduct has failed to measure up to a socially and legally acceptable norm. Indeed, testimony as to conduct resulting in a finding of neglect might also be the basis of criminal prosecution.
In criminal prosecutions where imprisonment was to be imposed, the parent would be entitled to counsel under Argersinger v. Hamlin, 407 U. S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972). We cannot dismiss the possibility that a parent appearing in a neglect hearing without the assistance of counsel might make self-incriminatory statements that could result in a criminal prosecution. [Danforth v. State Dept. of Health & Welfare, Me., 303 A. 2d 794, 799 (Sup. Jud. Ct. 1973)]

Kelying principally on tiro New York Court of Appeals, tke Nebraska high court recognized the procedural due process right to appointed connsel. In interest of Friesz, 190 Neb. 347, 208 N. W. 2d 259 (Sup. Ct. 1973).

Also of interest to the court are certain statistics available from a study of child neglect cases published in 4 Columbia Journal of Law and Social Problems 230, 242-3 (1968). These statistics show the following conclusions:

Parents

Disposition Represented l>y Counsel Counsel

Children placed outside

the home. 18.2% 40.6%

Discharged under court

supervision. 45.4% 39.6%

Discharged without court

supervision. 9.1% 5.0%

Petition dismissed after

findings. 9.1% 3.0%

. Other. 18.2% 11.8%

The conclusions to be draw from these statistics are aptly drawn by the following commentator.

Since there is no evidence indicating that the average respondent who can retain counsel is better or less neglectful than one who cannot, the conclusion seems inescapable that a significant number of cases against unrepresented parents result in findings of neglect solely because of the absence of counsel. In other words, assuming a basic faith in the adversary system as a method of bringing the truth to light, a significant number of neglect findings (followed in many cases by a taking of the child from his parents) against unrepresented indigents are probably erroneous. It would be hard to think of a system of law which works more to the oppression of the poor than the denial of appointed counsel to indigents in neglect proceedings. [Note: “Ohild Neglect: Due Process for the Parent,” 70 Columb. L. Rev. 465, 476 (1970)]

New Jersey courts have recognized the parent’s fundamental interest in tbe care and custody of children. These statements demonstrate a degree of sensitivity to the relationship which, in conjunction with the stated statutory purpose of “preserving and strengthening family life . . . ,” N. J. 8. A. 30:4C-1, merit consideration in evaluating the magnitude of the alleged fundamental involved. In a contested adoption proceeding Judge Lewis stated:

The name of an adopted child and his right of inheritance are changed and the biological ties with his parents are forever foreclosed by a judgment of adoption. Such an action is of the first magnitude and should be sanctioned only after serious consideration of the consequences. * * * The child’s relationship with the parent is of such significance that all doubts are to be resolved against its destruction. [In re N., 96 N. J. Super. 415, 425 (App. Div. 1967)]

This language was specifically quoted with approval by an unanimous Supreme Court in a contested adoption decision, In re Adoption of Children by D, 61 N. J. 89, 93 (1972).

The Supreme Court commented, when allowing an application over the parent’s religions objections, to transfuse a baby: “Concodedly, freedom of religion and the right of parents to the care and training of their children are to be accorded the highest possible respect in onr basic scheme.” State v. Perricone, 31 N. J. 463, 412 (1962). The right of the parents to the integrity of the family, absent a proven compelling governmental interest, is well established under state law.

The United States Supreme Court clearly recognized that the parent’s rights to custody of children and the protection of the integrity of the family from arbitrary governmental action was one of fundamental constitutional dne process in Stanley v. Illinois, 405 U. S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972). The court required the State of Illinois to provide an administrative hearing to establish the unfitness of a parent prior to removing children from the cnstody of their unwed father. The Illinois procedure had presumed the unwed father unfit and made no provision for notice or a hearing on the subject of fitness. Justice White noted the growth of the Court’s protection of the integrity and privacy of the family as follows:

The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children “come[sJ to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.” Kovacs v. Cooper, 336 U. S. 77, 95, 69 S. Ct. 448, 458, 93 L. Ed. 513, 527, 10 A. L. R. 2d 608 (1949) (concurring opinion.)
The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed “essential,” Meyer v. Nebraska, 262 U. S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042, 1045, 29 A. L. R. 1446 (1923), “basic civil rights of man.” Skinner v. Oklahoma, 316 U. S. 535, 541, 62 S. Ct. 1110, 1113, 86 L. Ed. 1655, 1660 (1942), and “[r]ights far more precious . . . than property rights,” May v. Anderson, 345 U. S. 528, 533, 73 S. Ct. 840, 843, 97 L. Ed. 1221, 1226 (1953) “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can either supply nor hinder.” Prince v. Massachusetts, 321 U. S. 158, 166, 64 S. Ct. 438, 442, 88 L. Ed. 645, 652 (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra, 262 U. S. at 399, 43 S. Ct. at 626, 67 L. Ed. at 1045, the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra, 316 U. S. at 541, 62 S. Ct. at 1113, 86 L. Ed. at 1660, and the Ninth Amendment, Griswold v. Connecticut, 381 U. S. 479, 496, 85 S. Ct. 1678, 14 L. Ed. 2d 510, 522 (1965) (Goldberg, J., concurring).
Nor has the law refused to recognize those family relationships unlegitimized by a marriage ceremony. The Court has declared unconstitutional a state statute denying natural, but illegitimate, children a wrongful death action for the death of their mother, emphasizing that such children cannot be denied the right of other children because familial bounds in such cases were often as warm, enduring, and important as those arising within a more formally organized family unit. Levy v. Louisiana, 391 U. S. 68, 71-72, 88 S. Ct. 1509, 1511, 20 L. Ed. 2d 436, 439 (1968). [405 U. S. at 651, 652, 92 S. Ct. at 1212, 31 L. Ed. 2d at 558-559]

The right to counsel question was not pressed in Stanley but the court made it clear that “at the least, Stanley’s interest in retaining custody of his children is cognizable and substantial.” 405 U. S. at 652, 92 S. Ct. at 1213, 31 L. Ed. 2d at 559. The state was held to have no interest in separating the family without a fitness hearing, and Justice White noted that “[i]f Stanley is a fit father, the state spites its own articulated goals when it needlessly separates him from his family.” Id.

The question then becomes whether this court, when dealing with an apparently universally recognized fundamental right, should hold that due process and equal protection require the extension of that right to encompass appointed counsel for indigent parents. The fabric of local law appears to strongly suggest that it should. Our courts have been most solicitous in requiring the appointment of counsel in matters of serious legal consequence to the economically unfortunate. The court is not convinced that the anticipated benevolence and social expertise of DYFS, or the label of “civil proceeding” as opposed to criminal, should control over the need for a meaningful and counseled adversary hearing in such serious a matter.

Obviously, the persons most likely to be subjected to a termination of parental rights or custody proceeding are frequently on the lesser end of the scale of intelligence and resourcefulness. Sometimes these termination proceedings may be a preliminary forum to a criminal proceeding against the parents. In some instances it is necessary to deal with a compendium of sociological, psychological, or medical data, well beyond the ken of the ordinary layman. For the State to intrude permanently or only temporarily in a manner designed to disassemble the nuclear family, society’s most basic human and psychological unit, without affording counsel and guidance to a class of society’s least equipped adversaries strikes the court as a fundamental deprivation of procedural due process. This principle was discussed by the Supreme Court of this State in Rodriguez v. Rosenblatt, 58 N. J. 281 (1971), which anticipated the decision of the United States Supreme Court in Argersinger v. Hamlin, 407 U. S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972):

The importance of counsel in an accusatorial system such as ours is well recognized. If the matter has any complexities the untrained defendant is in no position to defend himself and, even where there are no complexities, his lack of legal representation may place him at a disadvantage. The practicalities may necessitate the omission of a universal rule for the assignment of counsel to all indigent defendants and such omission may be, tolerable in the multitude of petty municipal court cases which do not result in actual imprisonment or in other serious consequence such as the substantial loss of driving privileges. But, as a matter of simple justice, no indigent defendant should be subjected to a conviction entailing imprisonment in fact or other consequence of magnitude without first having had due and fair opportunity to have counsel assigned without cost, [at 295]

These cases involved relatively short terms of confinement for disorderly persons offenses. The court in Rodriguez extended the right to free representation to “other serious consequence such as the substantial loss of driving privileges,” and also spoke of “imprisonment in fact or other consequence of magnitude.” It is difficult to conceive of the loss of driving privileges to be more serious than the loss of one’s children. Indeed, it is difficult to consider many consequences of greater magnitude than the loss of one’s children. Therefore, this court holds that indigent parents subjected to dependency proceedings looking towards temporary custody or permanent termination of parental rights are entitled to counsel free of charge.

Since the proceeding for temporary custody is frequently a prelude to a petition to terminate parental rights, or failure in a temporary custody proceeding may permanently discourage further interest in a final termination proceeding, there is equal justification for legal representation at the earlier, temporary state of the proceeding.

The controlling legislation defines the term “welfare services” to include consultation, counselling and utilization of available resources” for the purpose of determining and correcting or adjusting matters and circumstances which are endangering the welfare of a child, and for the purpose of promoting his proper development and adjustment in the family and the community.” N. J. S. A. 30:4C-2. The statute further provides for the financial sharing of costs, exclusive of medical costs, between the state and county on a 75%-25% ratio. Thus, the Legislature has by statute allocated the burden of the expense incurred by DYES in fulfilling its statutory function. It would therefore seem most appropriate that the DYES compensate necessarily required counsel to represent the indigent parents in this proceeding, and the Division is ordered to do so. See State v. Rush, 46 N. J. 399, 414 (1966), in which the Chief Justice stated that the expense of defense counsel was a “necessary expense” of the prosecution and was the burden of the county, the political entity required by law to prosecute crimes. “Within that category must fall the expense of providing counsel for an indigent accused, without which a prosecution would halt and inevitably fail under Gideon v. Wainwright, supra, 372 U. S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799.” Id. at 414-415. The expense of counsel for the parents will therefore be borne by DYBS according to the statutory scheme encompassing other “necessary expenses,” and counsel shall be appointed by the Juvenile and Domestic Delations Court upon the request of plaintiffs.

The ruling is to apply prospectively only. Where the child has been removed by a temporary order the parents are entitled to counsel at a further hearing for continued custody or termination of parental rights. In those situations where rights have previously been terminated and a new and hopefully permanent psychological environment established for the child, the court feels that the effect on the administration of justice as well as the potential conflicts which could be generated for the children outweighs the desirability of retroactivity. Cf. Stovall v. Denno, 388 U. S. 293, 297, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); see Goldstein, Freud & Solnit, Beyond the Best Interests of the Child. (The Bree Press, 1973). Summary judgment is entered against DYBS.


source: Caselaw Access Project

author: Milmed, J. S. C.

license: Public Domain

text:
    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
    Decided April 30, 1974.

      Mr. Theodore A. Winard, Assistant Attorney General, and Mr. John F. Shoosmith, Jr., Deputy Attorney General, for defendant Civil Service Commission (Mr. William F. Hyland, Attorney General of New Jersey, attorney).

      Mr. Irvin L. Solondz and Mr. Frank B. O’Neill for plaintiff.

      Mr. Donald S. Coburn, Assistant Corporation Counsel of the City of Newark, for defendant City of Newark (Mr. Donald E. King, Corporation Counsel, attorney).

      Mr. John W. Noonan for individual defendant Fire Captains and Professional Fire Officers Association, Local 1860, I. A. F. F., AFL-CIO (Messrs. Noonan & Flynn, 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:11-13, 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 ease 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 ease 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.

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 appointed to fill a vacancy in a fire department or force resulting from the granting of a leave of absence as provided by law, in municipalities where Title 11 (Civil Service) is in operation, requiring the person temporarily appointed to be a resident of New Jersey.

Additionally, the new legislation, as it pertains to firemen, repealed N. J. S. A. 40A:14-10, 40A:14-11 and 40A:14-11.1. N. J. S. A. 40A:14-10 related to waiver of requirements for residency in certain cases. N. J. S. A. 40A:14-11 related to the appointment of a member of a fire department and force in municipalities not operating under Title 11 (Civil Service) and having a population of more than 5,000 and less than 30,000 where the member was not a resident of the municipality for at least six months preceding his appointment. N. J. S. A. 40A:14-11.1 related to the appointment of a member of a fire department or force of a municipality having a population of less than 5,000 where the member was not a resident of the municipality for the previous six months.

On the present motion to dismiss the latest amended complaint in this action, the .allegations set forth therein must of course be accepted as true, Ridgefield Parle v. Bergen Cty. Bd. of Taxation, 31 N. J. 420, 425 (1960), app. dism. 365 U. S. 648, 81 S. Ct. 834, 5 L. Ed. 2d 857 (1961), and plaintiff is entitled to the benefit of every favorable inference of fact. Di Cristofaro v. Laurel Grove Memorial Park, 43 N. J. Super. 244, 252 (App. Div. 1957).

“There is a strong presumption that a statute is constitutional,” Harvey v. Essex Cty. Bd. of Freeholders, 30 N. J. 381, 388 (1959); General Electric Co. v. Passaic, 28 N. J. 499, 510 (1958), app. dism. 359 U. S. 1006, 79 S. Ct. 1146, 3 L. Ed. 2d 987 (1959); In re Loch Arbour, 25 N. J. 258, 264-265 (1957), and the court “should so construe it as to render it constitutional if it is reasonably susceptible to such a construction.” In re Freygang, 46 N. J. Super. 14, 27 (App. Div. 1957), aff’d 25 N. J. 357 (1957). See also, Daly v. Daly, 21 N. J. 599, 604 (1956); Woodhouse v. Woodhouse, 17 N. J. 409, 416 (1955); 2A Sutherland, Statutory Construction (4th ed. Sands, 1973), § 56.04 at 408. “The courts will incline to a construction favoring the validity of a statute unless its invalidity plainly appears.” Lynch v. Edgewater, 8 N. J. 279, 290-291 (19-51).

At the outset it should be noted that the challenged provisions of chapter 3 of the Laws of 1972 (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) terminating and prohibiting municipal residency requirements for firemen further the fundamental constitutional right to travel. See Shapiro v. Thompson, 394 U. S. 618, 89 S. Ct. 1322, 22 L. Ed 2d 600 (1969); Krzewinski v. Kugler, 338 F. Supp. 493 (D. N. J. 1972).

As previously indicated, plaintiff contends that the statute (chapter 3 of the Laws of 1973) 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 as it applies only to firemen and policemen and not to other municipal employees. In Harvey v. Essex Cty. Bd. of Freeholders, supra, the Supreme Court observed:

In deciding whether an act is general or special, it is what is excluded that is the determining factor and not what is included. Budd v. Hancock, 66 N. J. L. 133, 135-136 (Sup. Ct. 1901). If no one is excluded who should be encompassed, the law is general. Another requirement of a general law is that it must affect equally all of a group who, bearing in mind the purposes of the legislation, are distinguished by characteristics sufficiently marked and important to make them a class by themselves. [30 N. J. at 389]

See also, 3 Sutherland, op. cit., § 40.02 at 140.

As pointed out by Judge Gfoldmann in his opinion for the Appellate Division in In re Freygang, 46 N. J. Super. 14 (App. Div. 1957), aff’d 25 N. J. 357 (1957),

The Legislature is necessarily accorded a broad discretion in the area of permissible classification. City of Passaic v. Consolidated Police, etc., Pension Fund Commission, above, 18 A. J. [137], at page 146; State v. Guida, 119 N. J. L. 464, 466 (E. & A. 1938). Within the range of this discretion the Legislature may enact a statute as a general law which operates “equally upon all of a group of objects which, having regard to the purposes of the Legislature, are distinguished by characteristics sufficiently marked and important to make them a class by themselves.” City of Burlington v. Pennsylvania R. Co., above, 104 N. J. L. [649], at page 654; Gundaker Central Motors, Inc. v. Gassert, 23 N. J. 71, 80 (1956). The term “general law,” as Chief Justice Beasley said in Van Riper v. Parsons, 40 N. J. L. 1, 8 (Sup. Ct. 1878), does not import universality in the subjects or operation of such law. It has been said that a law is general if it embraces all and excludes none whose conditions and wants render such legislation equally appropriate to them as a class. Wanser v. Hoos, above, 60 N. J. L. [482], at page 525. [23]

See also, Roe v. Kervick, 42 N. J. 191, 233 (1964); State v. Garden State Racing Ass’n, 136 N. J. L. 173, 177 (E. & A. 1947).

In Roe Justice Francis, in his opinion for the Supreme Court, noted that

A law is “general” (1) if the class of subjects established, recognized or regulated is distinguished by characteristics sufficiently marked and important to make it a class by itself, and (2) if it encompasses all of the subjects which reasonably belong within the classification, and does not exclude any which naturally belong therein. A law is private, special or local if it arbitrarily or unnaturally excludes any subject which should be included. Harvey v. Essex County Board of Freeholders, 30 N. J. 381, 389 (1959). [42 N. J. at 233]

Here the challenged provisions of chapter 3 of the Laws of 1972 are in general terms. They are not restricted to any locality and operate equally upon all persons within the class (firemen) to which they relate. The challenged provisions are accordingly general and not special legislation. Van Riper v. Parsons, 40 N. J. L. 123, 125 (Sup. Ct. 1878). And see, Van Riper v. Parsons, 40 N. J. L. 1 (Sup. Ct. 1878). The statutory classification of policemen and firemen is not arbitrary or illusory. It is an entirely reasonable classification extending to all and excluding none who appropriately comprise the class. See Passaic v. Consolidated Police, etc., Pension Fund Comm’n, 18 N. J. 137 (1955); N. J. State Police Ass’n v. Mayor, etc., Irvington, 121 N. J. Super. 321 (App. Div. 1972); In re Freygang, supra, 46 N. J. Super, at 24-25.

The challenged statutory provisions being general legislation, plaintiff’s contention that they violate Art. IV, § VII, par. 9, clauses (5), (8) and (13) of the State Constitution is untenable, since the constitutional inhibitions set forth in these clauses are applicable only to “private, special or local laws,” the same paragraph 9 expressly providing, in part, that “The Legislature shall pass general laws providing for the eases enumerated in this paragraph * * Lynch v. Edgewater, supra, 8 N. J. at 293; In re Freygang, supra, 46 N. J. Super, at 25.

Plaintiff places substantial stress upon the fact that the prior statutes (N. J. S. A. 40:46-14 and 40:47-5) in effect at the time of promulgation of the promotional list in June 1968, requiring firemen, as a condition of employment and continued employment, to be bona fide residents of the employing municipality, “have heretofore been consistently upheld by both the state and federal courts,” citing Kennedy v. Newark, 29 N. J. 178 (1959), upholding the validity of an ordinance of the City of Newark requiring all municipal officers and employees to reside in the city as a condition for continued employment; Mercadante v. Paterson, 111 N. J. Super. 35 (Ch. Div. 1970), aff'd 58 N. J. 112 (1971), equating “residence” as used in N. J. S. A. 40:46-14 and 40:47-5 with domicile; and Krzewinski v. Kugler, 338 F. Supp. 492 (D. N. J. 1972), finding a compelling state interest justifying the residency requirement for policemen and firemen, the enforcement of which requirement “would be penalizing the right to travel to a substantial degree.”' It is, however, clearly within the power of the Legislature to change its enactments from time to time in order to effectuate a change in public policy. N. J. Const. (1947), Art. IV, § I, par. 1; N. J. Sports & Exposition Auth. v. McCrane, 61 N. J. 1, 8 (1972), app. dism., 409 U. S. 943, 93 S. Ct. 270, 34 L. Ed. 2d 215 (1972). Thus, 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). New residence requirements were enacted by N. J. S. A. 40A:9-1 (L. 1971, c. 200, § 1). And the following year statutory and local requirements of municipal residency for firemen were rendered inoperative by the provisions of chapter 3 of the Laws of 1972 challenged in this litigation.

A new legislative policy in this field, binding upon local governments, has accordingly been established, 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. “It is axiomatic that municipal bodies in this State have no powers other than those delegated by the Legislature, and must perform their prescribed activities within the statutory ambit.” Scatuor-chio v. Jersey City Incinerator Auth., 14 N. J. 72, 85 (1953). See also, Wagner v. Newark, 24 N. J. 467, 474 (1957); Bucino v. Malone, 12 N. J. 330, 345 (1953); Ringlieb v. Parsippany-Troy Hills Tp., 59 N. J. 348, 351 — 352 (1971); Skarbnik v. Spina, 125 N. J. Super. 87, 94 (Law Div. 1973). “Whether the State alone should act or should leave the initiative and the solution to local government, rests in legislative discretion.” Inganamort v. Fort Lee, 62 N. J. 521, 528 (1973).

Municipal corporations are merely political subdivisions of the State and the legislative control over them is almost unlimited. * * * The Legislature may grant and withdraw municipal powers generally * * *. [Becker v. Adams, 37 N. J. 337, 340 (1962)]

Plaintiff further argues that the challenged statutory provisions contravene Art. VII, § I, par. 2 of the State Constitution of 1947 in that they provide for preference in appointment and promotion of a resident over a nonresident in any instance in which the resident and nonresident achieve the same final average in the test for the position. N. J. S. A. 40A:14-9.3 and 40A:14-9.4. As previously indicated, any such future tie-breaking preference may not diminish, reduce or affect preferences granted to veterans pursuant to law. Art. VII, § I, par. 2 of the State Constitution provides:

Appointments and promotions in the civil service of the State, and of such political subdivisions as may be provided by law, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitiye; except that preference in appointments by reason of active service in any branch of the military or naval forces of the United States in time of war may be provided by law.

The objective oi this provision is the insulation of the appointment of persons to offices or positions in the classified service against considerations of politics, personal favoritism or partisanship in any form. Walsh v. Dept. of Civil Service, 32 N. J. Super. 39, 43 (App. Div. 1954); Falcey v. Civil Service Comm’n, 16 N. J. 117, 122 (1954). The challenged provisions of the new legislation which accord a preference to a resident over an equally qualified nonresident do not contravene the constitutional mandate of appointments and promotions according to merit and fitness. Nor does such a preference in any way offend the Civil Service objective of guarding against considerations of politics, personal favoritism or partisanship in appointments to positions in the classified service of the Civil Service. Where merit is equal, the tie-breaking preference provided for in the challenged legislation is not unreasonable.

Plaintiff further argues that the challenged statutory provisions contravene Art. IV, § VII, par. 3 of the State Constitution of 1947, and Art. I, § 10, cl. 1 of the Constitution of the United States in that they impair the ob’igation of an employment contract existing between plaintiff fireman and the City of Newark and the Civil Service Commission. In this regard plaintiff contends that such contract consisted in part of Civil Service regulations and state statutes requiring municipal residence, under which the fireman’s competition, not only in initial employment but in promotion as well, was limited to other bona fide residents of the municipality, and that plaintiff accepted the residency requirement and in seeking promotion acted on that basis. The argument is without merit. It is well settled that “the terms and conditions of public service in office or employment rest in legislative policy rather than contractual obligation, and hence may be changed except of course insofar as the State Constitution specifically provides otherwise.” Spina v. Consolidated Police, etc.. Pension Fund Comm'n, 41 N. J. 391, 400 (1964). See also, Turner v. Passaic Pension Comm’n, 112 N. J. L. 476, 480 (Sup. Ct. 1932); Phelps v. State Bd. of Education, 115 N. J. L. 310, 314 (Sup. Ct. 1935), aff’d o. b. 116 N. J. L. 412 (E. & A. 1936), aff’d 300 U. S. 319, 57 S. Ct. 483, 81 L. Ed. 674 (1937); Kenny v. Hudspeth, 59 N. J. L. 320, 322 (Sup. Ct. 1896), aff’d 59 N. J. L. 504 (E. & A. 1896); 3 Antieau, Municipal Corporation Law (1965), § 22.09 at 238.

Plaintiff additionally argues that the challenged statutory provisions which terminate municipal residency requirements for firemen are not retroactive in their operation. The clear language of the legislation says otherwise. Municipalities are not merely prohibited in the future from establishing municipal residency requirements for firemen as a condition of employment for the purpose of original appointment, continued employment, promotion, or for any other purpose, but any ordinance, resolution, rule, regulation, order or directive establishing such requirements, “in existence on the effective date” of L. 1972, c. 3, “or passed” thereafter, is rendered void and of no force and effect. N. J. S. A. 40A:14-9.1. To the extent that N. J. S. A. 40A:9 — 1 (L. 1971, c. 200, § 1, effective July 1, 1971) requires firemen to reside in the municipality in which they are employed as such, it is repugnant to the provision of N. J. S. A. 40A: 14-9.2 (L. 1972, c. 3, § 2, effective February 15, 1972) which makes nonresident applicants eligible for appointment to the municipal fire department and force “notwithstanding the provision of any statute, law, ordinance, rule or regulation to the contrary”; and to the extent of such repugnancy N. J. S. A. 40A.14-9.2 operates to repeal N. J. S. A. 40A: 9-1. State v. Vineland, 72 N. J. Eq. 289, 290, 291 (Ch. 1906), aff’d 72 N. J. Eq. 862 (E. & A. 1907); Asbury Park Press v. Asbury Park, 19 N. J. 183, 196-197 (1955). As stated in State v. Vineland, supra:

The principle upon which subsequent legislation will operate to repeal prior legislation without an express repealing clause has been frequently considered by the courts of this state and is well defined. Where there are two acts on the same subject, the rule is to give effect to both, if possible. If the tioo acts are repugnant in any of their provisions, the later act operates to repeal the earlier to the extent of the repugnancy. Where two acts are not in express terms repugnant, if the later act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the earlier act, it will operate as a repeal of that act. [72 N. J. Eq. at 290-291, emphasis added]

By another of the statutory provisions challenged in this litigation the Legislature clearly evidenced its intention to abolish the municipal residency requirement for firemen appointed prior to February 15, 1972, the effective date of chapter 3 of the Laws of 1972, who continue to serve in such position on and after February 15, 1972. Thus, under N. J. S. A. 40A:14-9.7 (L. 1972, c. 3, § 7) firemen serving pursuant to the provisions of any act repealed by chapter 3 of the Laws of 1972 “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.” Accordingly, where, as here, the Legislature explicitly manifests an intent to apply the statute retroactively, the court “must treat it in conformance with that intent.” Howard Savings Institution v. Kielb, 38 N. J. 186, 193 (1962). See also, 82 C. J. S., Statutes, § 434 at 1008-1009.

Finally, plaintiff argues that even if the challenged statute is held to be constitutional and retroactive, such holding would not be dispositive of the issue of alleged fraud raised by plaintiff, i. e., that certain of defendant firemen certified false addresses on their applications for employment and the promotional examination. Plaintiff in his complaint alleges, among other things, that “Numerous defendant firemen have been promoted from the said promotional list before the plaintiff by certifying that they resided at addresses within the City of Newark, thereby meeting the eligibility requirements in effect at that time and since; whereas they in fact resided elsewhere without the municipality”; and that bcause of such false certifications they must be removed from the employment list and from Civil Service employment and their promotions vacated.

N. J. S. A. 11:23-l, among other things, requires an applicant for a Civil Service examination to state his residence and postoffice address. Under N. J. S. A. 11:23-2 and N. J. A. C. 4:1-8.14, respectively, the Chief Examiner and Secretary of the Civil Service Commission may, among other things, refuse to certify an eligible person for appointment or remove from the employment list the name of an eligible person when the applicant has made a false statement of any material fact or has practiced or attempted to practice any deception or fraud in his Civil Service application, examination or in securing his eligibility or appointment. Under the new legislation, however, municipal residence is no longer material, except for those involved in a tie after February 15, 1972, the effective date of L. 1972, c. 3. To the extent that these statutory and Administrative Code provisions pertain to a municipal fire department and force and authorize or mandate refusal of certification for appointment, or removal from the employment list, of an otherwise eligible person who is a nonresident of the municipality and whose true domicile is not set forth in the Civil Service application, they are (except in the case of a tie-breaking preference after February 15, 1972) repugnant to and must yield to the overriding latest legislative policy enunciated in chapter 3 of the Laws of 1972, i. e., that lack of municipal residency shall not bar a fireman from original appointment to or continued employment or promotion in any municipal fire department and force, N. J. S. A. 40A:14-9.1, 40A :14-9.2 and 40A: 14-9.7.

When a subsequent enactment covering a field of operation coterminous with a prior statute cannot by any reasonable construction be given effect while the prior law remains in operative existence because of irreconcilable conflict between the two acts, the latest legislative expression prevails, and the prior law yields to the extent of the conflict. [1A Sutherland, Statutory Construction (4th ed., Sands, 1972), § 2309 at 223-224]

Senate Bill 355 of 1972 (which became L. 1972, c. 1) was pending in the Legislature when Senate Bill 452 of 1972 (which became L. 1972, c. 3) was introduced oil January 24, 1972. Senate 355 was approved February 7, 1972 and by its terms took effect immediately and applied “retroactively” to January 11, 1972, continuing “in effect until March 3, 1972.”

This statute provided that:

No proceeding, claim or suit shall be brought or action taken for disciplinary purposes or removal or suspension from office against a member of a municipal police or paid or part-paid fire department or force during the period beginning on January 11, 1972 and continuing through March 3, 1972, on the grounds of violation of or failure to comply with the municipal residency requirement of any statute, law, ordinance, rule or regulation. [L. 1972, c. 1, § 1]

The clear legislative intent of this measure was to prohibit disciplinary, removal or suspension proceedings against any municipal policeman or fireman during the period beginning January 11, 1972 and continning through March 3, 1972, on grounds that the policeman or fireman violated or failed to comply with any municipal residency requirement then in force and effect — apparently to permit time for legislative consideration and action on Senate 452 calling for the retroactive extinction of municipal residency requirements for municipal policemen and firemen.

With the enactment of chapter 3 of the Laws of 1972 effective February 15, 1972, municipal residency requirements for firemen came to an end. The provisions of then existing statutes, ordinances, rules or regulations requiring municipal residency for appointment, continued employment or promotion for firemen in a municipal fire department and force were accordingly superseded by the new legislation, putting an end to the authority or duty of the Chief Examiner and Secretary of the Civil Service Commission (except in the case of a tie-breaking preference thereafter) to refuse to certify an eligible fireman for appointment or to remove an eligible fireman from the employment list who is not a resident of the municipality and whose true domicile is not set forth on the Civil Service application. See Belvidere v. Warren R. R. Co., 34 N. J. L. 193 (Sup. Ct. 1870), Beasley, C. J., dism. on a procedural ground, 35 N. J. L. 584 (E. & A. 1871); State v. Passaic, 36 N. J. L. 382 (Sup. Ct. 1873); 82 C. J. S., Statutes, § 437 at 1011.

Plaintiff has no valid claim to any vested right either in the municipal residency requirement of N. J. S. A. 40A:9-1 or in the authority or duty of the Chief Examiner and Secretary of the Civil Service Commission under N. J. S. A. 11:23-2 and N. J. A. C. 4:1-8.14 to impose the sanctions just referred to against a nonresident fireman whose true domicile is not stated on the Civil Service application. Turner v. Passaic Pension Comm'n, supra, 112 N. J. L. at 480-481; Spina v. Consolidated Police, etc., Pension Fund Comm’n, supra, 41 N. J. at 400; 1A Sutherland, op. cit. § 23.34 at 283. Both the municipal residency requirement and the authority or duty to impose the sanctions (except in the ease of A tie-breaking preference after February 15, 1972) have been extinguished by the challenged provisions of the new legislation. Except as to any such sanction which may have been previously imposed and fully executed, they have been blotted out as completely as if they had never existed, ending all proceedings pending under them on the effective date of chapter 3 of the Laws of 1972. 82 C. J. S., Statutes, § 434 at 1008-1009; see also, Neel v. Ball, 6 N. J. 546, 551 (1951); Eureka Printing Co. v. Division of Employment Security, etc., 21 N. J. 383, 392-393 (1956); 2 Sutherland, op. cit., § 41.04 at 253.

The provisions of the new legislation challenged by plaintiff, 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, are constitutional. The legislation is general and not special. It does not impinge upon the civil service provisions of the State Constitution or the provisions of the State or Federal Constitution prohibiting legislation impairing the obligation of contracts. Its provisions abolishing municipal residency requirements for firemen are retroactive, applying equally to all firemen without regard to the time of their appointment or promotion, and are dispositive of the issue of alleged fraud raised by the plaintiff.

The latest amended complaint in this action fails to state a claim upon which relief can be granted. An order dismissing it will be entered.

      The statute provides similar preferences for firemen in municipalities wherein Title 11 is not operative but in which appointments and promotions are based upon merit as determined by suitable tests. N. J. S. A. 40A :14-9.5 and 40A :14-9.6, respectively.

      Whether expressly or impliedly, since the prior act “may be just as effectively repealed by implication as by express designation.” 1A Sutherland, Statutory Construction (4th ed., Sands, 1972), § 23.07 at 219.

      See Vanderwart v. Dept. of Civil Service, 19 N. J. 341, 350 (1955), referring to R. S. 11:23-2 in its form prior to its amendments. See also, Bingham, v. Dept. of Civil Service, 77 N. J. Super. 459, 465 (App. Div. 1962), aff’d 40 N. J. 330 (1963).

      L. 1972. c. 1. § 2.


author: Furman, J. S. C.

text:
    OAKWOOD AT MADISON, INC., A CORPORATION OF THE STATE OF NEW JERSEY, BEREN CORPORATION, A CORPORATION OF THE STATE OF NEW JERSEY, DOROTHY MAE SHEPARD, LOUVENIA ALSTON, WILLIAM BAYLIS, BRENDA SMITH, LIZZIE WALKER AND GERALDINE YORK, PLAINTIFFS, v. THE TOWNSHIP OF MADISON AND THE STATE OF NEW JERSEY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided April 29, 1974.

      Mr. Frederick G. Mezey and Mrs. Lois Thompson, of the New York bar, admitted pro hac vice, for plaintiffs (Messrs. Mezey & Mezey, attorneys).

      Mr. Richard, F. Plechner, for defendant Township of Madison.
   Furman, J. S. C.

Madison Township amended its 1910 zoning ordinance, effective October 1, 1913, between the decision of this court holding the 1910 zoning ordinance invalid (reported in 111 N. J. Super. 11 (1911) and the resolution by the Supreme Court (certif. granted, 62 N. J. 185 (1912)) of an appeal from that decision. The Supreme Court remanded to this court for a trial, retaining jurisdiction, in accordance with appellate procedural law that an appellate court determines the legal validity of the zoning ordinance in effect at that time. Tidewater Oil Co. v. Mayor, etc., Carteret, 44 N. J. 338, 341 (1965).

This court held in the earlier decision that:

In pursuing the valid zoning purpose of a balanced community, a municipality must not ignore housing needs, that is, its fair proportion of the obligation to meet the housing needs of its own population and of the region. Housing needs are encompassed within the general -welfare. The general welfare does not stop at each municipal boundary. Large areas of vacant and developable land should not be zoned, as Madison Township has, into such minimum lot sizes and with such other restrictions that regional as well as local housing needs are shunted aside, [at 20, 21]

The precedents relied on include Chief Justice Vanderbilt's opinion in Duffcon Concrete Products v. Cresskill, 1 N. J. 509, 513 (1949), recognizing regional needs as a proper consideration in local zoning. A zoning ordinance prohibiting heavy industry anywhere within the municipality was sustained in Buffcon, but only under the circumstance that “in the same geographical region, there is present a concentration of industry in an area peculiarly adapted to industrial development and sufficiently large to accommodate such development for years to come * * [at 515]

In Fanale v. Hasbrouck Heights, 26 N. J. 320 (1958) Chief Justice Weintraub, in upholding a prohibition by zoning ordinance against any new multi-family housing, noted:

There of course is no suggestion that the county is so developed that Hasbrouck Heights is the last hope for a solution, and hence we do not have, the question whether under the existing statute the judiciary could resolve a crisis of that kind, [at 328-329]

DeSimone v. Greater Englewood Housing Corp. No. 1, 56 N. J. 428, 442 (1970), and Andrews v. Ocean Tp. Board of Adjustment, 30 N. J. 245, 251 (1959), recognized that the serving of regional as well as local needs by> respectively, public multi-family housing and a parochial school were “special reasons” supporting zoning variances under N. J. S. A. 40:55-39(d).

Presumptively, the Supreme Court would have recognized the general welfare as overriding and struck down the ordinances under review in Duffcon and in Fanale if, respectively, there had not been adequate industry or adequate multifamily housing nearby.

As a parallel, this court, finding desperate housing needs in the county and region, held that the Madison Township zoning ordinance was invalid because it failed to provide for the township’s fair share of housing to meet the housing shortage. Whatever general welfare benefits might be served within the township by population limitations (the conceded objective), these were overridden and the general welfare in balance thwarted by exclusionary zoning restrictions against new low and moderate income housing.

Factually, a crisis in housing needs continues; most severe for those of low and moderate incomes, and a disadvantaged population remains trapped in the ghettoes of the central cities. The issue thus is whether the amended zoning ordinance of Madison Township provides for the township’s fair share of new low and moderate income housing as well as of new high income housing.

Some preliminary clarifications may be appropriate. The region, the housing needs of which must be reasonably provided for by Madison Township, is in the view of this court, not coextensive with Middlesex County. Rather, it is the area from which, in view of available employment and transportation, the population of the township .would be drawn, absent invalidly exclusionary zoning. Less than 1% of the Madison Township residents who are employed have their jobs within the township. But the township is bisected by arterial highways, including the Garden State Parkway, and by a commuter railroad with stations in adjoining municipalities. Access to employment even at some distance is practicable by automobile, bus and railroad. 50% of the work force is employed in Middlesex County, 15% in New York Ctiy, 10% in Essex County and the balance in nearby New Jersey counties, including 7% in Monmouth, County to the south.

In determining the township’s fair share of housing in all income ranges, the breakdown of population by yearly income according to the 1970 census is relevant. Only 12% of the township’s households (both families and persons living alone) had incomes below $6627, 19% had incomes from $6627 to $9936, 24% had incomes from $9936 to $13,088, 27% had incomes from $13,088 to $19,236 and 18% had incomes above $19,236, as compared in each quintile to 20% of ' the State’s households. Unquestionably, high costs of commutation to work have tended to reduce the township’s proportion of low-income earners below that of nearby urban and industrial centers.

Madison Township comprises approximately 25,000 acres. Its' population is 8% of Middlesex County but its vacant developable land is nearly 20%, about 11,00o out of 56,000 acres throughout the county. Despite zoning restrictions which this court held invalid, the township’s population upsurge continued from 1970 to 1973, up by 5000 or 11%. But only 6% of the building permits issued in the county were issued in the township during that period. Projected housing needs for the township are for 750 to 1000 units a jrear into the 1980’s, 500 to 600 of those low and moderate-income units according to testimony on both sides.

The 1973 zoning amendments were extensive, enlarging both total acreage available for housing and housing capacity. Under the 1970 ordinance about 5,500 acres of vacant developable land were zoned R40 with one-acre minimum lot size, and about 2500 acres of vacant developable land were zoned R80 with two-acre minimum lot size. These totals were amended to about 4500 acres in R40, and 325 acres in R80. Minimum total floor space limitations in R40 and R80 were deleted; minimum floor space limitations per room were established in all residential zones. An B15 zone was created with 15,000 square foot minimum lot size, on the outskirts of areas of high density population. The available land in El 5 is about 500 acres. The B20 zone with 20,000 square foot minimum lot size was expanded by about 500 acres.

Cheesequake State Park; the Old Bridge sands, an underground water resource largely owned by the City of Perth Amboy; Burnt Fly Bog, the meadowlands adjacent to Deep Bun, and the Earitan Bay beachfront were rezoned from E80 io EP, Becreation-Preservation.

Under the 1070 ordinance the multi-family housing zone, designated AF, was limited to a new housing capacity of about 700 units, with a bedroom per development ratio of 80% one bedroom and 20% two bedroom, and a maximum density of 12 units per acre. Both the bedroom ratio and maximum density restrictions were deleted by the 1973 amendments, which fixed a 10,000 square foot per acre maximum. Flexibility to meet varying demands, efficiency to multi-bedroom apartments, was the objective, according to the township planner. But the undisputed testimony was that builder’s profits arc maximized in apartment units with one or no bedroom. This court must therefore accept the forecast by plaintiffs’ expert that, without a maximum unit density per acre, construction of efficiency and one-bedroom units will dominate.

The multi-family housing capacity available under the 1970 ordinance was realized by new construction in the intervening years. In 1973 three new AF districts were established and existing AF districts enlarged to a total of about 120 additional acres.

New innovative techniques in planning and zoning were introduced by the amendments under review — planned unit developments (N. J. S. A. 40:55 — 54 et seq.) and cluster zoning (N. J. S. A. 40:55-30 et seq.; Chrinko v. So. Brunswick Tp. Planning Bd., 77 N. J. Super. 594, 601 (Law Div. 1963)).

Three extensive areas near important highways, over 600 acres each, were zoned PUD. Two of the areas are not served by water and sewer utilities. Three options are available to PUD developers, Class I between 150 and 300 acres, Class II between 300 and 500 acres, and Class III above 500 acres. PUD tracts may be enlarged from adjoining districts by not more than 15%, within the discretion of municipal authorities. PUD approval procedure is protracted ■ — ■ up to one year in the estimate of the township planner.

Class I PUD must have 30% detached single-family houses, Class II 17.5% and Class III 12.5%. Single-family lot sizes must average 15,000 square feet with a minimum of 12,000 square feet. Multi-family housing is allowed (garden apartments and townhouses or attached single-family houses), in all PUD classes, and high-rise, 'high-density apartments up to seven stories high in Classes II and III. The maximum housing units per acre are 3y2 in.Class I, 4j^ in Class II and 5 in Class III, with reductions if streets, water or sewer utilities must be built. Minimum percentages of total land area are fixed for commercial, other nonresidential and community service uses, including schools to be built by the developer, and for developed and undeveloped open spaces.

• Cluster zoning is optional as an incentive to higher density development in the R40 and R 80 zones, and in the RP zone contiguous to R40 or R 80. Cluster development limits are 25 acres to 150 acres. 20% must be common open space. Another 20% may be dedicated for public purposes with the consent of the developer, allowing him to reduce minimum lot sizes for detached single-family houses from 18,000 to 12,000 square feet in R40 and from 36,000 to 18,000 square feet in R80. Townhouses may be built only in R40, and only if the developer has dedicated 20% of total land area for public purposes. The density limits without a dedication for public purposes are 11/3 times normal density of one acre in IMO and 1 2/3. times normal density of two acres in E80. The density limits increase according to a formula based on the percentage of land dedicated for public purposes; for example, to 1 2/3 times normal density in E40 and twice normal density in E80, if 20% has been so dedicated.

Computation of additional bousing capacity available under the 1973 amendments must be guesswork because of uncertainty about the utilization of the E40 and E80 cluster options, whether any utilization at all and, if so, according to what development patterns. PUD and AP housing potential also will hinge upon development patterns among various alternatives.

The township planner projected an additional housing capacity of about 15,000 units providing for an additional population of 47,000 as a result of the zoning changes in 1973. His estimates are creditable except as to E40. .Even with substantial utilization of the cluster option the additional population potential in R40 should be no more than 10,000 rather than the township planner’s estimate of 18,000.

Significantly, the township planner conceded that there is virtually no potential for low-income housing and no incentives in the ordinance or amendments to build low or moderate-income housing. He defined low income as up to $7000 a year, and moderate income as up to $10,000 a year. In those categories, in his view, a family can afford to bujr a dwelling at twice annual income or pay rent of about one-fourth animal. income. He testified to some moderate-income housing potential in PUD Class II garden apartments and townhouses (about 10% within reach of moderate-income families), but not in PUD Class II and Class III high-rise apartments. Garden apartments and townhouses in E40 clusters, and one-bedroom apartments in A"E, would be economically feasible, in Ms estimate, for about half the State’s households; new single-family houses in R15 and R20 for about 30%.

To recapitulate, the high-density R7 and RIO zones are largely developed at present but would provide about 1500 new housing units, including two-family houses in R7, open to moderate but not low-income. Some moderate income condominiums may be built in the AR zone, multi-family housing for senior citizen's, which has about 65 acres available for development. New single-family housing in the R15 and R20 zones is barred by prohibitive costs to about 70% of the State’s households, in the PUD zone, and in the R40 and R80 zones, in clusters, to about 80%, and in the R40 and R80 zones, not in clusters, to about 90%. Households with average incomes are at the lower limit of those who can afford multi-family housing in PUD Class II, R40 clusters and AP. While uncertainty exists as to the number of new multifamily housing units for moderate income which may be built in these zones, an overall projection of 10%, or 1000 to 1500 units, is realistic.

Of the total 20,000 to 30,000 housing units which may be built in Madison Township under the 1970 zoning ordinance as amended, about 3500 at most would be within the reach of households with incomes of $10,000 a year, the upper limit of moderate incomes, and virtually none within the reach of households with incomes of $9000 a year or less. This contrasts with the present township population, approximating 12% low income and 19% moderate income. Of the vacant developable land in residential zones over 80% is zoned R40 and R 80, only about 4% R7 and R10.

The zoning objective in 1970 of an elite community of high income families with few children is maintained by the 1973 amendments. The advances towards moderate-income housing opportunities are token, towards low-income housing opportunities nil.

The township asserts that because of high land and construction costs'Zoning for low-income single-family housing is impossible. Even without governmental subsidies, however, multi-family housing may be provided for low and moderate-income families. Incentives may be set, such as extra density for low and moderate-income units. Low and moderate-income single-family housing is an illusion on one and two-acre lots, a hope on 7500 to 15,000-square-foot lots.

Without the rigidity of a mathematical formula this court holds that Madison Township’s obligation to provide its fair share of the housing needs of its region is not met unless its zoning ordinance approximates in additional housing unit capacity the same proportion of low-income housing as its present low-income population, about 12%, and the same proportion of moderate-income housing as its present moderate-income population, about 19%. The amended zoning ordinance under review falls palpably short and must be struck down in its entirety.

No opinion is rendered as to ecological and environmental factors apparently justifying the RP, R80 and to some extent R40 zones. The record on ecological and environmental factors was meager before the municipal authorities, but extensive depositions relevant to these subjects were stipulated into the record before this court. Concededly, ecological and environmental problems have no bearing except in Burnt Ply Bog, the Old Bridge sands, Raritan Bay beachfront, the salt marshes back of Raritan Bay and the four water courses running northwesterly through the township into South River. Ample land ouside these areas is available, including specifically the AP districts and their environs and much of R40, within which the township can meet its obligation to provide its fair share of its own and the region’s housing.

Judgment for the plaintiffs.

      An aerial photography study suggests that this acreage estimate should be revised downward.

      Exclusive of large single-family tracts in AF, which may be subdivided.

      The Director of County Planning estimated moderate income as up to $32,000 a year.