On appeal from the Superior Court, Law Division, Camden County.
Botter, Pressler and O'Brien. The opinion of the court was delivered by Pressler, J.A.D.
This is an appeal from a summary judgment entered by the Law Division declaring N.J.S.A. 40A:14-122.1 unconstitutional. That statute prohibits a municipality from requiring police officers to reside within the municipality as a condition of employment. We reverse.
Plaintiff Ronald Booth was first employed as a police officer by defendant Township of Winslow in 1975. He did not then reside in the Township and has never since resided there except for a six-month period in 1979. In 1977 the Township adopted an ordinance requiring all municipal employees to reside in the municipality, affording those who did not a two-year period in which to become bona fide residents.
Plaintiff's employment was terminated by the Township in 1980 because of his non-compliance with the residency ordinance. Plaintiff, contending that the municipal residency requirement violated the preemptive provisions of N.J.S.A. 40A:14-122.1, brought this action seeking reinstatement and back pay. The Township asserted that the statute was unconstitutional on equal protection grounds because it was based on an irrational classification. It therefore contended that its ordinance was valid and enforceable, and it sought summary judgment so declaring.
Before dealing with the constitutional issue, we note that plaintiff has raised a threshold issue respecting the Township's standing to challenge the constitutionality of N.J.S.A. 40A:14-122.1. We agree that ordinarily a municipality, as a creature of the state, itself "has no privileges or immunities under the federal constitution which it may invoke in opposition to the will of its creator." Williams v. Mayor, 289 U.S. 36, 40, 53 S. Ct. 431, 77 L. Ed. 1015 (1933). And see Jersey City Redevelopment Agency v. Kugler, 111 N.J. Super. 50, 55 (App.Div.1970), aff'd 58 N.J. 374, 377 (1971); Borough of Glassboro v. Byrne, 141 N.J. Super. 19, 23 (App.Div.1976), certif. den. 71 N.J. 518 (1976). The Township, however, urges, and the trial judge agreed, that
standing should be accorded here because the Township is not seeking to protect its own constitutional rights but rather those of its other employees. It also argues that while it may not have standing to initiate a constitutional attack, it may do so defensively. We are satisfied that the standing question is at least debatable, and, as we concluded in Jersey City Redevelopment Agency v. Kugler, supra, "rather than debate the question * * * we deem it preferable in the public interest to settle the constitutional questions presented on their merits."
Having considered the legislative history of N.J.S.A. 40A:14-122.1 as well as subsequent legislative enactments addressing the question of municipal residency, we are satisfied that the challenged statute constitutes a valid exercise of legislative power.
N.J.S.A. 40A:14-122.1, enacted in 1972, provides that
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 police 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:14-9.1, simultaneously adopted, similarly provides in respect of fire fighters. The 1972 statute constituted a significant reversal of long-standing legislative policy requiring police officers to reside in the municipality which employed them as a condition both of initial appointment and continued service. See N.J.S.A. 40:47-3 and 5, repealed in 1971 by N.J.S.A. 40A:14-176 and readopted, respectively, as N.J.S.A. 40A:14-122 and 128. And see, generally, Kennedy v. City of Newark, 29 N.J. 178 (1959); Mercadante v. The City of Paterson, 111 N.J. Super. 35 (Ch.Div.1970), aff'd o.b. 58 N.J. 112 (1971). Krzewinski v. Kugler, 338 F. Supp. 492 (D.N.J.1972). Cf. Abrahams v. Civ. Serv. Comm., 65 N.J. 61 (1974). The Legislature explained this reversal of policy in the ...