This suit claims sex discrimination in connection with employment. Plaintiff has ignored all statutory remedies and relies entirely upon alleged violations of the New Jersey and the United States Constitutions as a basis for her claims.
Nancy Lloyd was appointed a special police officer by defendant Borough of Stone Harbor on September 8, 1973. She acted as a full-time dispatcher for its police department until May 8, 1977 when she became a part-time dispatcher. On August 28, 1978 she resigned. While serving as a special officer she received
weapons training and occasionally participated in narcotic raids involving female suspects. She also processed female prisoners for the department.
In July 1974 the police department received applications from Nancy Lloyd and others for employment as regular police officers. The Public Safety Committee of Stone Harbor, consisting of three members of the borough council, met in December 1974 to consider them. About 20 persons had applied for two job openings. Lloyd's background made her a strong candidate for the job; among other things, she was a graduate of the University of Tampa, from which she received an associate's degree in sociology with emphasis upon criminology. The chief of police and three sergeants attended the meeting and discussed the various applications. About ten of them, including Nancy Lloyd's were rejected at the initial meeting. The choices were narrowed further at subsequent meetings and on January 24, 1975 the committee recommended two male applicants for the positions, a recommendation which was accepted by the borough council.
Nancy Lloyd's husband, Daniel Lloyd, was a regular police officer in Stone Harbor. On June 2, 1977 he was served with written charges involving a claimed breach of disciplinary rules. On the next day plaintiff filed a second application for employment as a regular police officer, a position for which there were two openings. In September of that year the Public Safety Committee considered Lloyd's application and others. Her application was rejected; two male applicants were employed. On January 3, 1978 a third male was hired as a regular police officer.
Plaintiff filed this suit on August 16, 1978. She seeks damages by way of back pay and a mandatory injunction directing the defendants to employ her as a regular police officer.
A. The Constitutional Provisions
The Fourteenth Amendment to the Federal Constitution provides, in part:
No state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Art. I, para. 1 and para. 5 of the New Jersey Constitution, (1947) provide like rights.
All persons are by nature free and independent and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property, and of pursuing and obtaining safety and happiness.
No person shall be denied the enjoyment of any civil or military right, nor be discriminated against in the exercise of any civil or military right, nor be segregated in the militia or in the public schools, because of religious principles, race, color, ancestry or national origin.
This court has the power to enforce these constitutional rights, whether or not implementing legislation has been adopted. Bivens v. Six Unknown Named Agents , 403 U.S. 388, 393, 91 S. Ct. 1999, 2003, 29 L. Ed. 2d 619 (1971); Peper v. Princeton University , 77 N.J. 55, 76 (1978); T & M Homes v. Mansfield , 162 N.J. Super. 497, 505-506 (Law Div.1978).
Plaintiff claims that her constitutional right to be free of discriminatory employment practices has been invaded. That claim involves a property right. Peper v. Princeton, supra at 79-80. Like all property rights, it is not absolute, but is subject to the reasonable exercise of the police power. David v. Vesta Co. , 45 N.J. 301, 311 (1965). "Equally fundamental with the private right is that of the public to regulate it in the common interest". Nebbia v. New York , 291 U.S. 502, 523, 54 S. Ct. 505, 510, 78 L. Ed. 940 (1934). Thus, time and procedural restrictions may be placed upon the exercise of constitutional rights; they will not be invalidated so long as they are reasonable. State v. McKnight , 52 N.J. 35, 48 (1968); State v. Boyd , 165 N.J. Super. 304, 309, (App.Div.1979); Montville v. Block 69 , 74 N.J. 1, 8 (1977); State v. Schmid , 84 N.J. 535, 561 (1980). However, a state statute which frustrates the enforcement of a federal right
B. Exhaustion Requirements
(1) State Remedies; The Law Against Discrimination
Nancy Lloyd was not obliged to proceed with a direct constitutional suit. She could have proceeded under N.J.S.A. 10:5-1 et seq. , the Law Against Discrimination, which provides:
All persons shall have the opportunity to obtain employment . . . without discrimination because of . . . sex . . . . [ N.J.S.A. 10:5-4]
Her failure to pursue this remedy invited the defense contention that her suit is barred since, as a general rule, a suit will not be entertained unless administrative remedies have been exhausted. Playcrafters v. Teaneck , 177 N.J. Super. 66, 73 (App.Div.1981); Garrow v. Elizabeth General Hospital , 79 N.J. 549, 561-562 (1979). However our courts have held that the remedies provided by the Law Against Discrimination are not exclusive. In Kiss v. Community Affairs Dep't , 171 N.J. Super. 193, 198 (App.Div.1979), a discrimination suit was entertained under the Civil Service Act although the discrimination statute was available. Gray v. Serruto , 110 N.J. Super. 297, 306-307 (Ch. 1970), held that a discrimination suit based directly upon the New Jersey Constitution was maintainable, although it ignored available administrative procedures. The statute itself provides in § 27 that
Consequently, plaintiff's failure to invoke the Law Against Discrimination is no bar to this suit, under the State Constitution. For the same reason, the suit based upon the Federal Constitution is not barred.
There is an additional reason which denies application of the exhaustion requirement to a federal constitutional civil rights suit when that requirement addresses state remedies.
The United States Supreme Court and other federal courts have held expressly that state administrative remedies need not be exhausted in connection with suits brought under the federal Civil Rights Act, 42 U.S.C.A. § 1983. In Ellis v. Dyson , 421 U.S. 426, 95 S. Ct. 1691, 44 L. Ed. 2d 274 (1975) the Court said:
Exhaustion of state judicial or administrative remedies . . . was ruled not to be necessary, for we have long held that an action under § 1983 is free of that requirement. [at 432-433, 95 S. Ct. at 1695]
To the same effect are: McNeese v. Board of Education , 373 U.S. 668, 671, 83 S. Ct. 1433, 1435, 10 L. Ed. 2d 622 (1963); Damico v. California , 389 U.S. 416, 417, 88 S. Ct. 526, 19 L. Ed. 2d 647 (1967); King v. Smith , 392 U.S. 309, 312, 88 S. Ct. 2128, 2130, 20 L. Ed. 2d 1118 (1968); Hochman v. Board of Education , 534 F.2d 1094, 1097 (3 Cir.1976); but see, Patsy v. Florida International Univ. , 634 F.2d 900 (5 Cir.1981). If § 1983 suits may be maintained while ignoring available state remedies, ...