Decided: October 21, 1977.
JOHN E. PALAGONIA, PLAINTIFF-RESPONDENT,
CITY OF NEWARK AND EMPLOYEES RETIREMENT SYSTEM OF THE CITY OF NEWARK, DEFENDANTS-APPELLANTS
Bischoff, Kole and Gaulkin.
[153 NJSuper Page 257]
We affirm the judgment below essentially for the reasons expressed in the trial court's opinion, 142 N.J. Super. 363 (Ch. Div. 1976), except as follows: We express no view as to whether the court correctly applied the "strict scrutiny" test in invalidating this particular gender-based classification as unconstitutional. For even if a less rigorous standard is used, the classification is unconstitutionally discriminatory and the conclusion reached by the court below is correct. See Califano v. Goldfarb , 430 U.S. 199, 97 S. Ct. 1021, 51 L. Ed. 2d 270 (1977); Kalina v. Railroad Retirement Bd. , 541 F.2d 1204 (6 Cir. 1976), aff'd by mem. op., 431 U.S. 909, 97 S. Ct. 2164, 53 L. Ed. 2d 220 (1977).
We note that the cases of Silbowitz v. Sec't of Health, Education and Welfare , 397 F. Supp. 862 (S.D. Fla. 1975), and Jablon v. Sec't of Health, Ed. and Welfare , 399 F. Supp. 118 (D. Md. 1975), cited by the court below, have been affirmed by memorandum opinions of the United States Supreme Court. 430 U.S. 924, 97 S. Ct. 1539, 51 L. Ed. 2d 768 (1977). The appeal to the United States Supreme Court of the case of Coffin v. Sec't of Health, Ed. and Welfare , 400 F. Supp. 953 (D. C. 1975), also relied on below, was dismissed by that court. 430 U.S. 924, 97 S. Ct. 1539, 51 L. Ed. 2d 789 (1977).
We have also considered appellants' contention that the "benefits under the statute do not give greater benefits to a male and his widow than to a female [retired] employee." We have concluded that it plainly is without merit, even in the light of the proofs presented as to the comparison between the benefits that would be received by the "average" female retired employee and the "average" retired male employee and his widow. Cf. Moss v. Sec't of Health, Ed. and Welfare , 408 F. Supp. 403, 410 (D.C.M.D. Fla., 1976).