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Abramowitz v. Kimmelman

Decided: November 9, 1984.

STEPHEN ABRAMOWITZ, INDIVIDUALLY; REMUS REALTY CORP., A NEW JERSEY CORPORATION D/B/A ARCORP PROPERTIES; NATIONAL BRANDS OUTLET OF SECAUCUS, INC., A NEW JERSEY CORPORATION D/B/A N.B.O., THE NEW JERSEY CITIZENS FOR SUNDAY SHOPPING, AN ASSOCIATION NOT-FOR-PROFIT, AND BERTE INCORPORATED, A NEW JERSEY CORPORATION D/B/A BODY WORX, PLAINTIFFS,
v.
IRWIN I. KIMMELMAN, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, AND THOMAS F. X. SMITH, CLERK OF THE CITY OF JERSEY CITY, DEFENDANTS



Castano, J.s.c.

Castano

This is an action in lieu of prerogative writs challenging the constitutionality of a recent amendment, L. 1984, c. 160, to the Sunday Closing Law, N.J.S.A. 2A:171-5.8. The amendment grants to cities of the first class, in any county where Sunday sales are banned,*fn1 the opportunity to hold a municipal referendum to determine whether such sales should be permitted in that city despite the county-wide prohibition.

Until the amendment, the option to stay open or to close uniformly was determinable in the State on a county-wide basis only. Since the amendment does not do away with county-wide referenda even in those counties in which cities of the first class are located, the citizens of the first class cities are now given two opportunities to vote on the issue. The citizens of the other municipalities in the same counties still have only one.

Plaintiffs contend that, as a consequence, the statute as amended offends constitutional "equal protection" safeguards in several respects. The say that (1) it erodes the fundamental right to vote by producing inequality in the voting power of residents of first class cities and residents of other municipalities

in the same county, (2) it creates a classification which bears no relationship to the purpose of the law, and (3) it is special legislation. I disagree. While obviously some disparity in treatment results, as it inevitably does whenever any classification is made, any imbalance here does not rise to the level of constitutional infirmity. The classification is neither arbitrary nor capriciously exclusive.

I

The action was instituted pursuant to R. 4:69-1 but with a verified complaint and order to show cause which sought an interlocutory injunction to prevent the City Clerk of Jersey City from placing the newly-created municipal referendum on the ballot in the general election of November 6.

The original plaintiffs were Stephen Abramowitz, a resident of Secaucus; Remus Realty Corp., a developer of a large tract of property in Weehawken and West New York; the New Jersey Citizens for Sunday Shopping, an association comprised of approximately 175 retail establishments organized for the specific purpose of repealing the Sunday closing laws in Hudson and Bergen counties, and National Brands Outlet of Secaucus.

Abramowitz and Berte Incorporated withdrew as plaintiffs before the evidential hearing and Kathleen Biggiani, a resident of North Bergen, was added as a plaintiff to avoid any issue as to standing.

Before election day, Assignment Judge Burrell Ives Humphreys denied the injunctive relief in an extensive bench opinion in which he found that the plaintiffs had not established a reasonable likelihood of success on the merits, a balance of equities in their favor, an urgent necessity or irreparable harm. Both the Appellate Division and the Supreme Court denied plaintiffs' motion for leave to appeal.

The referendum, therefore, remained on the ballot and the voters in Jersey City on November 6 elected to repeal Sunday closing in their municipality by a 38,340 to 13,437 margin.

The following day this court heard argument on summary judgment motions of the defendants and also conducted a plenary hearing on the only evidentiary issue. The matter was treated in a summary fashion because, unless a court intervenes, Jersey City merchants automatically will be able to open their doors on Sunday, November 18, nine days hence. N.J.S.A. 2A:171-5.15.

Except for the issue of whether Jersey City is distinguishable demographically or socio-economically from the other municipalities in Hudson County, the critical facts are not in dispute. In fact, the parties submitted an extensive stipulation of census and fiscal data which has been incorporated into this opinion.

II

Pursuant to N.J.S.A. 2A:171-5.8, Sunday closing in New Jersey has been governed by county referenda since 1959.

In all counties except Hudson and Bergen, the voters have chosen to do away with the ban. In Hudson, the decision to stay closed has been reiterated several times over the years and was most recently confirmed in the November 1980 general election by a margin of 72,152 to 66,974.

The issue then remained dormant until June of this year when two identical bills on the subject were introduced in the Senate and the Assembly. Under both, Sunday sales would have been permitted without prior referendum approval in any regional shopping mall constructed pursuant to a redevelopment agreement in any city of the first class within a county in which Sunday sales were otherwise prohibited.

The statement to each bill indicated that its purpose was to attract large shopping malls to cities of the first class to "create much needed employment opportunities for residents and increase city tax revenues." Supposedly they were intended

to exempt from the provisions of the Sunday Closing Law a regional shopping mall scheduled for construction as part of a commercial ...


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