Plaintiff Vornado, Inc., trading as Two Guys, the corporate successor of Two Guys from Harrison, Inc., brought this suit renewing its earlier challenge to the constitutionality of the Sunday Closing Law, N.J.S.A. 2A:171-5.8 et seq. (L. 1959, c. 119).
The genesis of the present action is the 1960 decision of the New Jersey Supreme Court in Two Guys from Harrison, Inc. v. Furman , 32 N.J. 199 (1960) (Two Guys), in which the court not only held that the then newly enacted Sunday Closing Law was facially constitutional, but also that it impliedly repealed prior Sunday-proscription legislation, thus constituting the sole general legislation addressed to prohibition of Sunday activities. Out of the whole panoply of possible commercial activity, that statutory prohibition proscribes only retail selling, and out of the whole panoply of possible commodities merchandised by retail selling, the statutory prohibition proscribes the sale of only five categories of items, to wit, clothing and apparel, building and lumber supply materials, furniture, home and office furnishings, and appliances for household, business or office use. The prohibition, moreover, applies only in those counties opting therefor by referendum, at latest count ten.*fn1 Thus 11 counties are virtually unrestricted in respect of the nature and breadth of the commercial activity which may be lawfully engaged in on Sunday, and the other ten are equally unrestricted except that goods within the five proscribed categories cannot be sold.
Despite its conclusion of facial validity, however, the court in Two Guys recognized the technical viability of plaintiff's constitutional attack based on the alleged arbitrariness and unreasonableness of the classification of proscribed goods. It thus held that plaintiff could not be denied an opportunity to try to sustain its heavy burden of proof of the arbitrariness of that classification in terms of what the court had concluded the constitutionally unobjectionable secular purpose of the law to have been. Accordingly, the court's disposition of the controversy then before it was to affirm the trial judge's denial of plaintiff's motion for summary judgment seeking adjudication of the facial unconstitutionality of the Sunday Closing Law, but to reverse the judge's grant of defendant's motion for judgment on the pleadings seeking to have the constitutional attack dismissed out of hand as being wholly without merit. A remand was therefore ordered so that plaintiff might adduce at a plenary hearing factual proofs compellingly demonstrating the arbitrariness of the five-category classification. Despite the opportunity so afforded, plaintiff did not then proceed. Now, 16 years later, it has again challenged the Sunday Closing Law by the filing of a new complaint. Although the present challenge is based on other constitutional grounds as well, the trial herein constituted, at least in part, the remand ordered over a decade and half ago.
The factual and legal framework within which the trial was conducted requires some further explanation. Plaintiff owns and operates in this State 27 multi-line discount department stores engaged in the retail sale of a vast variety of goods. Nineteen of these stores are located in counties which have adopted the Sunday Closing Law (closed counties). The eight stores located in the other counties (open counties) are fully open for business seven days a week. The stores in the closed counties, with the exception of the Newark store, are also open on Sunday, selling, however, only those goods which are not within one of the proscribed categories. Departments in the stores which handle proscribed
categories are physically roped off. Other retailers and, more particularly, multi-line discount operations similar to those of plaintiff's, responded to the Sunday Closing Law in essentially the same manner.
Prior to the peak of the Christmas shopping season of 1975 plaintiff determined that despite its 15 years of voluntary compliance with the Sunday Closing Law, the time was now ripe for its judicial reconsideration. Also anxious to test the manner in which the law would be enforced when flagrantly violated, plaintiff's plan of attack was to violate the law first and litigate later. Accordingly, it directed its stores in the closed counties to open all departments on Sunday, December 21. That action resulted in prosecutions by six municipalities: Hackensack, Lodi and Garfield in Bergen County, Kearny and North Bergen in Hudson County, and Vineland in Cumberland County. The following Sunday, December 28, 1975, and thereafter until December 1976, the stores in the closed counties reverted to their customary partially-open pattern.
This complaint was filed in January 1976. The relief sought was the enjoining of the six pending municipal prosecutions on the ground of the Sunday Closing Law's alleged unconstitutionality. The managers of the stores who were named as defendants in the municipal prosecutions joined as nominal parties plaintiff. The six municipalities which had initiated the prosecutions were joined with the Attorney General as parties defendant. Menswear Retailers of New Jersey, Inc., a voluntary association of specialty retailers interested in maintaining Sunday closing, was permitted to intervene as a party defendant. The municipal prosecutions were temporarily restrained from proceeding pending the conclusion of the litigation.
In this posture a pretrial was conducted from which essentially two constitutional issues emerged. The first was framed in terms of the question left open by Two Guys , namely, whether, as a matter of fact, the statutory classification of proscribed goods is reasonably related to the secular policies
sought to be advanced by Sunday closing. The second issue was whether the statute is unconstitutional because it is not susceptible to even-handed, fair or consistent enforcement. A third legal issue, conceded by all parties not to reach sufficient constitutional dimension to be able to result in invalidation of the statute but only to effect the viability of the pending municipal prosecutions, was also raised, namely, whether or not those prosecutions were the result of an arbitrary and unreasonable selective enforcement policy of the prosecuting municipalities.
Plaintiff's proofs with respect to the classification issue must be viewed in the light of the constitutionally acceptable purpose and policy of the 1959 Sunday Closing Law as painstakingly analyzed and definitively articulated by Two Guys. As this court understands the holding in Two Guys , that articulation proceeded from the premise that the First Amendment requires the Sunday Closing Law to be based on presently relevant secular considerations appropriately within the scope of the police power rather than on the frankly avowed, religiously-motivated underpinnings of the predecessor prohibitory legislation.*fn2 Delineation of the secular purpose of the Sunday Closing Law as found by the court in Two Guys , requires clear appreciation of what Two Guys specifically held the secular purpose not to be.
Preliminarily, it is clear that First Amendment establishment considerations would not have precluded the Legislature from compelling a day of rest for all citizens, qualified only by works of necessity and charity, since such legislation would have met the secular evil of "impairment of public health consequent upon uninterrupted labor." 32 N.J. at 218. While recognizing the constitutionality of such a purpose,
the court was nevertheless constrained to conclude that that was not the purpose of the Sunday Closing Law. It reached that conclusion inductively, reasoning that if the objective of the law were to prevent uninterrupted labor, then the arbitrariness of the five category proscription would be patent.*fn3 As the court reasoned, if uninterrupted labor were the "conception of the evil, we cannot fathom any reasonable basis for the differentiation in chapter 119 of the work area embraced in the sale of the items it proscribes from the work area it leaves untouched." 32 N.J. at 219. The court, therefore, following the constructional principle of sustaining the constitutionality of legislation wherever possible and having to reject, on equal protection grounds, an "uninterrupted labor" thesis, extracted from the Sunday Closing Law, based both on its express provisions and on its adjudicated status as an implied repealer of all prior Sunday legislation, an expression of a public policy intention to which the classification might presumably be rationally related.
That public policy was understood by the court to be the Legislature's quite proper concern with preserving the secular virtues of Sunday as a day for rest, leisure, ...