On appeal from Superior Court of New Jersey, Law Division, Camden County, L-2302-98.
Before Judges Petrella, Kestin, and Alley.
The opinion of the court was delivered by: Petrella, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Submitted February 4, 2002
This appeal by Anthony Constantino challenges the consequence of retroactive federal legislation on State law as to enforcing the maximum age limit of thirty-five on a municipality in its hiring of law enforcement personnel. Constantino contends that he was not hired due to his age being over fifty during a three year period when states were not permitted by federal legislation to classify or discriminate on the basis of age. On cross-motions for summary judgment the judge granted defendants' motions and denied Constantino's motion for partial summary judgment. Constantino appeals the adverse rulings. He also argues that the federal legislation should only have prospective effect on N.J.S.A. 40:14-127 and that he should have been granted partial summary judgment. We reject Constantino's contentions and affirm. Despite his claim, subsequent federal law clearly had retroactive effect, and pre-existing and longstanding New Jersey law that specifically prohibited municipalities from hiring persons as police officers under age twenty-one or over age thirty-five once again became enforceable.
Constantino alleged discriminatory hiring practices based on age under New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 et seq. He claimed*fn1 that discrimination occurred on April 15, 1996 and August 19, 1996, when he was age fifty-five.
Constantino began working as a part-time police officer in the borough in 1986 and was reappointed yearly to the position by the mayor and council. In 1996 the borough sought to employ a full-time police officer. The borough hired as a full-time officer Anthony Giannini, then twenty-six years old, in April and hired another, Michael Merlino, age thirty-five, in August 1996.
Deposition testimony indicated that whenever there was a position open for a full-time police officer an advertisement would be placed in a newspaper and applications would be received. The chief of police would screen the applications and then recommend to the police committee, consisting of himself, the borough administrator and three council members, which candidates should be interviewed. Typically, between two and four names were recommended. The mayor would then interview these candidates. Upon completion of the interview process, the mayor would recommend to the council the name of the individual who should be hired. The council would then vote to hire one individual for each open position.
N.J.S.A. 40A:14-127 prohibits the hiring of police officers under the age of twenty-one and over the age of thirty-five. Because this statute was preempted for a period of time by the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. § 621 et seq., it has not always been enforceable. Constantino claims that he was not hired in April and August 1996 because of his age, and this was in violation of the ADEA. It was unclear whether Constantino ever formally applied for the full-time position or if he ever expressed interest to anyone in the borough of his intention to seek that position.
N.J.S.A. 40A:14-127, enacted in 1971 by P.L. 1971, c. 197, § 1, provides, "Except as otherwise herein provided, no person shall be appointed as a member or officer of the police department or force in any municipality who is under 21 or over 35 years of age." New Jersey had also in effect the Law Against Discrimination (LAD) (N.J.S.A. 10:5-1 et seq.),*fn2 which provided in N.J.S.A. 10:5-4:
All persons shall have the opportunity to obtain employment, and to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation, publicly assisted housing accommodation, and other real property without discrimination because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation or sex, subject only to conditions and limitations applicable alike to all persons. This opportunity is recognized as and declared to be a civil right.
The LAD also provides: "Nothing contained in this act or in P.L. 1945, c. 169 (C. 10:5-1 et seq.) shall be construed to require or authorize any act prohibited by law...." N.J.S.A. 10:5-2.1. Under these provisions a municipality could lawfully deny ...