The opinion of the court was delivered by: Bissell, Chief Judge
This matter comes before the Court on its Order to Show Cause, dated February 13, 2002, why Lester J. Elliott ("Mr. Elliott") should not be entitled to equitable relief, despite the City of Newark's ("the City") objection to his appointment as a police officer on the ground that he was not a resident of Newark in August 2000 when he reapplied for that position at the Court's direction. Argument on the Order to Show Cause was held on March 20, 2002. This is the latest in a series of judicial interventions in this matter since Mr. Elliott began seeking this Court's assistance in securing an appointment to the City's police force. The Court has previously determined that Mr. Elliott is a class member in the above-referenced litigation, which was concluded pursuant to a court-approved Consent Decree ("the Consent Decree"), entered March, 4, 1987, and is entitled to certain rights thereunder. *fn1
Mr. Elliott is seeking appointment pursuant to a Consent Decree that concluded a civil rights class action based on allegations of the City's racial discrimination in hiring police officers. The Consent Decree mandates that class members be placed on a preferential hiring list for police officer positions as they open up; in essence, these individuals are given priority over other applicants. It may be fairly said that this priority scheme is the cornerstone of the settlement agreement, for it directly addresses the class members' principal grievance, that is, that they were denied appointment on the basis of unlawful discrimination. In exchange for Newark's promise to follow the consent Decree's priority scheme, the class members relinquished their right to pursue further their claims against the City. The City now seeks to deny a class member the benefits of this bargain on the basis of a purported residency "requirement."
Questions concerning the validity and applicability of the City's purported requirement must be resolved in the context of certain New Jersey statutes that define the metes and bounds of the proper use of residence in initial police hiring. Since 1972, New Jersey has prohibited a municipality from making residency a requirement for appointment to its police force. N.J.S.A. 40A:14-122.1 (West 2002) (alternately, "Section 14-122.1" or "the 1972 Statute"). *fn2 The pivotal term employed in the 1972 Statute is "requirement." When used in an employment setting, this word, under its ordinary meaning, is synonymous with a qualification or sine qua non, an indispensable condition, in hiring for a particular position.
In sharp contrast to a qualification is the concept of priority in hiring. Priority denotes a preference, one that is accorded to one group over another. A somewhat elementary illustration underscores the difference between these terms. If a grocery list stated that priority among different kinds of fruit should be given to apples over oranges, this would mean that the list's writer would prefer to have apples and, also, that oranges are an acceptable alternative if no apples are available. Were the list to say that apples are a requirement, or a qualification, the purchase of oranges rather than apples would not be acceptable.
A grasp of the different meanings of these terms, i.e., qualification and priority, is critical to a proper understanding of New Jersey Statute § 40A:14-123.1a, which became effective on December 21, 1976. N.J.S.A. 40A:14-123.1a (West 2002) (alternately, § 14.123.1a" or "the 1976 Statute"). Under the 1976 Statute, which is titled "Police departments; priority of eligibility in accordance with residence for initial appointment," the first paragraph reads: "In any municipality of this State, before any person shall be appointed as a member of the police department and force, the appointing authority may classify all the duly qualified applicants for the position or positions to be filled in the following classes...." 40A:14-123.1a (emphasis added). It then goes on to assign priority to residents of the municipality (Class I), other residents of the county in which the municipality is situated (Class II), other residents of the State (Class III); and all other "qualified applicants" (Class IV). 40A:123.1a.
Fundamentally, § 14-123.1a does not alter § 14-122.1's prohibition on making residency in the municipality a requirement in police hiring. This is manifest from the fact that the term "qualified" is used in the 1976 Statute to describe applicants in all Classes, not just the municipal residents in Class I. Thus, the plain meaning of the 1976 Statute's terms indicates that the 1972 Statute remains fully in force. Rather than abrogating the 1972 Statute's prohibition on making municipal residency a qualification, the later provision merely permits municipalities to prefer some qualified applicants over others. Furthermore, this priority system is not imposed on municipalities; it is voluntary.
Under this analysis of New Jersey law, it is abundantly clear that a municipality cannot impose a municipal residency requirement on initial police hiring. Rather, at most, a municipality's use of residency in the hiring of new police officers is limited to the specific tiered preference system set forth in § 14-123.1a.
Judging from its papers and argument on the February 13, 2002 Order to Show Cause, the City fails to recognize, in general, the relationship between the 1972 and 1976 Statutes as discussed above and, in particular, the underlying differences between the concepts of qualifications and preferences in hiring. Such is apparent from the first sentence of its memorandum of law, which reads: "Mr. Elliott is not qualify [sic] to become a police officer candidate of the City of Newark Police Department because he is [sic] not a bone [sic] fide resident of the city at the time he completed his application." (Newark's Br. at 5) (emphasis added). *fn3 That the City regards non- residence as a bar to police appointment was reinforced repeatedly at oral argument.
The City makes three arguments in support of its view that municipal residency may be considered as a requirement to initial police appointment. First, it argues that the policies underlying the 1976 Statute operate as an effective repeal of the 1972 Statute. This argument is singularly unpersuasive. Had the legislature thought it either wise or expedient to repeal the 1972 Statute, it would have done so., either through express repeal or by employing more expansive language in the 1976 Statute. Significantly, the City does not assert - because it cannot - that the language of the later statute invalidates the earlier one. *fn4
Second, the City argues that a Newark-wide referendum, held on November 2, 1976, should be taken as establishing a tiered preference system for police employment consistent with the 1976 Statute. This argument is also flawed. The referendum in question concerned whether the City's long-standing residency requirement for all municipal posts should apply prospectively. It did not seek to establish any sort of priority system for police hiring. Moreover, it is not reasonable to attach any greater significance to the referendum inasmuch as the 1976
Statute permitting a tiered system did not become effective until seven weeks after that referendum was held.
Third, the City maintains that it is entitled to assert that municipal residence is a requirement, a "condition precedent" to employment in the City's counsel's words, because experience has shown that the supply of Class I applicants for open positions is never exhausted, which means that residence is a de facto requirement in police hiring. Putting aside for now whether the City has adduced any facts to support this position, all that need be said on this point is that it is negated by the clear and plain language of the governing law. N.J.S.A. 40A:14-122.1 and 123.1a (West 2002). When pressed at argument to identify some principle or rationale that would entitle the City, in its effort to deny appointment to Mr. Elliot, to assert a position that was clearly precluded by the law, counsel proclaimed that the City was simply ignoring and abandoning the requirement of 122.1 and, like other municipalities, was "kind of doing their thing." (Tr. Mar. 20, 2002 at 24:14-19. See also, id. at 5: 1-6). The Court declines to depart from the unmistakable import of the governing statutes on such an infirm basis.
Stripped of all its erroneous assertions that municipal residence can serve as a qualification for police officer hiring, the City's position is, at best, that it may deny Mr. Elliott's appointment because it would rather follow the permissible priority scheme described in the 1976 Statute rather than the one mandated in the Consent Decree. The Court's discussion of the merits of this contention is organized around the following issues: (1) whether, as a threshold matter, the City is entitled to raise in these proceedings the 1976 Statute's priority scheme as a bar to Mr. Elliott's appointment; (2) assuming the City may assert the 1976 Statute's priority scheme, whether ...