On certification to the Superior Court, Appellate Division.
The opinion of the court was delivered by: Justice LaVECCHIA
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
In re: Contest of November 8, 2011 General Election of Office of the New Jersey General Assembly, Fourth Legislative District (A-58-11)(069853)
Decided February 16, 2012
LaVECCHIA, J., writing for a majority of the Court.
This appeal considers a challenge to the November 8, 2011 election of Gabriela Mosquera for the New Jersey General Assembly, Fourth Legislative District. Shelley Lovett, who received the next highest number of votes, challenged the election alleging that Mosquera was ineligible because she failed to meet the one-year durational residency requirement set forth in Article IV, Section 1, Paragraph 2 of the New Jersey Constitution. Complicating the matter is the decision and accompanying order in Robertson v. Bartels, 150 F. Supp. 2d 691 (D.N.J. 2001), wherein a federal trial court had concluded that the durational residency requirement of the State Constitution violates the Fourteenth Amendment of the United States Constitution and had enjoined the New Jersey Attorney General and Secretary of State from enforcing the provision's one-year durational residency requirement for eligibility for General Assembly office.
The Fourth Legislative District consists of nine municipalities located in portions of Camden and Gloucester Counties. Mosquera has lived in New Jersey since early childhood. She first became a resident of the Fourth District shortly after purchasing a home in Gloucester Township on December 29, 2010. Mosquera stated that she did not purchase the home with the intent to run for office in the Fourth District, and that she made a determination to run as a Democratic candidate for the Assembly sometime in 2011.
Lovett, who ran as a Republican candidate for the Assembly, testified that she had lived in Gloucester Township for approximately thirty-two years prior to the 2011 election. After the June 2011 primary, she "heard a rumor" that Mosquera had not been a resident of Gloucester a full year prior to the November 2011 election, but she did not litigate Mosquera's compliance with the residency requirement at that time because she did not have the money or resources to do so.
In the November 8, 2011 election, Paul D. Moriarty, a Democrat, and Mosquera were the candidates who received the most votes for the Fourth District's two Assembly seats, 21,086 and 19,907, respectively. Lovett received the third highest total, 14,351 votes. On December 1, 2011, Lovett filed an election challenge petition pursuant to N.J.S.A. 19:29-1 to -14, alleging that Mosquera was not constitutionally qualified to represent the Fourth District because she had lived in the District less than one year prior to her election. Mosquera moved to dismiss, but stipulated that she did not meet the residency requirement. The Attorney General stated that her position had always been that the provision was constitutional, but that her office considered itself to be enjoined from enforcing the provision by Robertson and, accordingly, had advised candidates that you can be a candidate without the one year residency restriction.
At the conclusion of a hearing on January 5, 2012, the trial court issued an order annulling Mosquera's certificate of election, setting aside the November 8, 2011 election as to Mosquera only, and enjoining Mosquera from taking office. It directed that the vacancy created by its order be filled within 35 days of January 10, 2012, by an interim successor who is a member of the Democratic Party, selected by the appropriate members of the Democratic county committees, and that the remainder of the term be filled in the next general election in November 2012. On January 7, 2012, the trial court issued a detailed amended opinion. The trial court stated that it was applying the intermediate scrutiny test, held that the residency requirement was constitutional, rejected Mosquera's claim that the challenge was barred by the doctrine of laches, and determined that the Robertson injunction did not bar its consideration of the dispute. It further declined to hold that its ruling was solely prospective. The trial court also considered the appropriate remedy, finding that Mosquera was the "incumbent" because it was her election that was challenged. Applying the relevant statutes, the trial court concluded that Mosquera had vacated the office and that the Democratic Party should therefore select the person to fill the seat. The trial court noted that that remedy would effectuate the will of the voters of the Fourth District to the extent possible.
Thereafter, the Appellate Division granted Mosquera's emergent motion to stay the trial court's order and ordered expedited briefing. The panel's order was based on its finding that Mosquera was likely to succeed on the merits of her claim that the trial court's decision should apply only prospectively.
Lovett filed a motion for emergent relief with this Court. This Court entered an interim order on January 10, 2012, vacating the Appellate Division's order and temporarily reinstating the order entered by the trial court. On January 13, 2012, this Court, on its own motion, certified this case, ordered expedited briefing, and stayed the judgment of the trial court insofar as it directed the selection of an interim successor.
HELD: The New Jersey Constitution's durational residency requirement for members of the General Assembly does not violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; this decision is not a new ruling and the Court therefore declines to limit this judgment to prospective application; and, because Mosquera was the incumbent at the time of the vacancy, the Democratic Party, with which Mosquera was affiliated at the time of the election, will select an interim successor for the vacant seat. Further, in construing the vacancy-filling provisions the Court recognizes that Mosquera would meet eligibility requirements for appointment as interim successor, if she were selected by her party.
1. The fundamental issue in this case is the validity of the durational residency requirement for membership in the New Jersey General Assembly. The relevant provision states:
No person shall be a member of the General Assembly who shall not have attained the age of twenty-one years and have been a citizen and resident of the State for two years, and of the district for which he shall be elected one year, next before his election. [ N.J. Const. art. IV, § 1, ¶ 2.]
Almost every state has enacted similar durational residency requirements for state legislators. It is undisputed that Mosquera did not meet the durational residency requirement at the time she ran for office. She, however, contends that the requirement violates the Equal Protection Clause of the Fourteenth Amendment. On the question of whether this Court is barred from considering the constitutional question at all in light of the Robertson decision, a state court is not barred from addressing federal constitutional questions about state statutes, and perforce federal constitutional challenges to our State Constitution, notwithstanding a lower federal court ruling on the subject. While comity requires that this Court give due respect to the holding of the federal district court in Robertson, the Court conducts an independent analysis of the constitutionality of Article IV, Section 1, Paragraph 2, which has never been brought into question by any previous state court judgment. (pp. 14-17)
2. The starting point for any equal protection analysis is to determine the standard of review, or level of scrutiny, that should be applied to the challenged classification. In Robertson, the federal court applied strict scrutiny in the context of an equal protection challenge to the durational residency requirement to run for the General Assembly and declared that the requirement ran afoul of equal protection. A canvassing of the case law throughout the country reveals a general consensus that a less rigorous analysis should apply to requirements that candidates live in a district or municipality for a particular duration. Robertson stands alone in its application of the strict scrutiny standard. Intermediate scrutiny is the generally accepted test around the nation, except when courts have found the rational basis test to be suitable, and it is the test used in this State for analyzing allegations of unfair demarcations between durational residency requirements for office. The Court holds that the intermediate scrutiny test is the appropriate standard for use in the instant analysis. Robertson's use of strict scrutiny undermines its analysis and, consequently, its persuasiveness. (pp. 17-32)
3. Having identified the appropriate standard of review, that standard must now be applied to the facts of this case. Specifically, the Court must determine whether the durational residency requirement is "reasonably and suitably tailored to further legitimate governmental objectives." The parties have identified three state interests served by the durational residency requirement: it ensures that voters have time to develop a familiarity with the candidate; it ensures that the candidate can become familiar with the constituents and the issues facing the people to be represented; and it operates as a curb on carpet-bagging. The Court finds that the durational residency requirement advances these state interests more than sufficiently to surpass a facial constitutional challenge. (pp. 32-43)
4. The Court also rejects Mosquera's as-applied challenge to the durational residency requirement -- a challenge that she bases exclusively on her demonstration of familiarity with district constituents and issues as a result of her work in the district. Mosquera's connections to the Fourth Legislative District in no way parallel those which a federal court found to be sufficient to establish that a residency requirement was unconstitutional as applied in another case. There, the candidate had worked in the ward he sought to represent for almost twenty years and had lived in the municipality his entire life. By contrast, Mosquera's first contact with the district came in early 2010 when she began working as an assistant to the Mayor of Gloucester Township and she commuted from a non-adjacent legislative district. More importantly, the Court relies on the reasoning of a recent case in which the federal district court described the difficulties inherent in making case-by-case determinations as to when a candidate's connections with a region have become sufficient to support an as-applied challenge and unequivocally upheld a state's right to impose clear durational residency requirements. (pp. 43-45)
5. Moreover, the Court recognizes that although there might exist a significant issue in the context of an as-applied challenge where a candidate has been disadvantaged by a change in district lines due to reapportionment, that is not in this record. The possibility of that arising is not relevant in a facial challenge, nor is it the basis of Mosquera's as-applied challenge. Thus, the Court's finding that the New Jersey durational requirement is constitutional facially and as-applied to Mosquera is fully in alignment with the Court's standard approach to deciding cases raising questions of constitutionality. (pp. 45-49)
6. Mosquera argues that any state court determination that the durational residency requirement does not violate equal protection should receive only prospective application in light of Robertson's decade-earlier holding pronouncing otherwise. This Court's holding is not new in any sense that compels its restriction to future cases. The durational residency requirement has a more than 200-year history that has never been questioned in the State court system. That a federal court has reached a contrary conclusion does not make this holding new, because this Court has always retained the independent ability to reach its own decision on the constitutional question. (pp. 49-55)
7. The Court turns to the question of remedy for the filling of the vacancy created by the order declaring Mosquera's election null and void. Construing the relevant statutes in a sensible and harmonious way, and by looking to other provisions in Title 19, the Court determines that Mosquera is the "incumbent," and therefore it is the appropriate county committee of the Democratic Party, with which she is affiliated, that makes the appointment to fill the vacancy. (pp. 55-62)
8. In the Court's view, this case cannot end here but rather must proceed further. In view of the complicated situation presented by the outstanding federal injunction against the Attorney General and the Secretary of State, the parties should apply to the federal district court or file a petition for a writ of certiorari to the United States Supreme Court to resolve the lingering principled conflict that exists between this declaration of the constitutionality of Article IV, Section 1, Paragraph 2 of the New Jersey Constitution and the federal injunction, as well as the practical effects of the differing conclusions. (pp. 63-67)
The judgment and order of the Superior Court, Law Division is AFFIRMED.
CHIEF JUSTICE RABNER, DISSENTING, joined by JUSTICES LONG and ALBIN, expresses the view that the durational residency requirement raises serious constitutional concerns during redistricting years, and that even if it is constitutional, basic principles of equity and federalism require that the decision be applied prospectively in light of the unique circumstances of this case.
JUSTICES HOENS and PATTERSON; and JUDGE WEFING (temporarily assigned) join in JUSTICE LaVECCHIA's opinion. CHIEF JUSTICE RABNER filed a separate, dissenting opinion in which JUSTICES LONG and ALBIN join.
JUSTICE LaVECCHIA delivered the opinion of the Court.
This matter involves the November 8, 2011 election for the New Jersey General Assembly representatives for the Fourth Legislative District. Gabriela Mosquera received the second highest number of votes, but her election was challenged, in timely fashion under the election statutes, by Shelley Lovett, the candidate who had the third highest number of votes. Lovett alleged that Mosquera was ineligible because she failed to meet the one-year durational residency requirement for the office set forth in Article IV, Section 1, Paragraph 2 of the New Jersey Constitution. Complicating the matter was the decision and accompanying order in Robertson v. Bartels, 150 F. Supp. 2d 691 (D.N.J. 2001), wherein a federal trial court had concluded that Article IV, Section 1, Paragraph 2 of our State Constitution violates the Fourteenth Amendment of the United States Constitution and had enjoined the New Jersey Attorney General and Secretary of State from enforcing the provision's one-year durational residency requirement for eligibility for General Assembly office.
Before the state trial court, all parties agreed that state courts were not bound by the Robertson injunction and therefore were not precluded from considering the election contest on the eligibility grounds raised. The trial court concluded that the durational residency requirement withstood both facial and as-applied constitutional challenges and declared Mosquera's election null and void because she was not a resident of the district for one year prior to the date of her election as required by the New Jersey Constitution. The court's order annulled her election, declared a vacancy in the seat for which she had been the incumbent as a result of the November 8, 2011 election, and directed that the vacancy be filled by the process established under Article IV, Section 4, Paragraph 1 of the New Jersey Constitution, and its implementing legislation, N.J.S.A. 19:27-11.2. Pursuant to that process, the county committee of Mosquera's political party would select an interim successor to fill the office until a special election for the office was held at the next general election.
The procedural history that brought this case on its expedited path to this Court will be recited in detail hereafter. In its present posture, the case presents three main questions. First, does the durational residency requirement to run for the New Jersey General Assembly found in Article IV, Section 1, Paragraph 2 of the New Jersey Constitution violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution? Second, in the event we determine that the New Jersey Constitution's durational residency requirement does not violate the Equal Protection Clause, must, or should, that holding be made prospective in light of Robertson's holding? And, third, if this Court determines that the durational requirement is constitutional and need not be limited to prospective application, what remedy is available in the circumstances that have occurred in the Fourth Legislative District?
Our determination of those questions leads us to affirm the judgment of the trial court. We hold that the New Jersey Constitution's durational residency requirement for members of the New Jersey General Assembly is to be tested in accordance with the intermediate scrutiny standard, rather than the strict scrutiny analysis employed by the federal court in the Robertson decision. Given the application of an erroneous standard to a record that included flawed facts, it is not surprising that the federal court reached a conclusion that is, at best, questionable; however, the fact remains that the decision is squarely at odds with other rulings concerning durational residency requirements. Accordingly, we are not persuaded by the determination in Robertson when performing our own analysis of the federal equal protection question presented.
Our independent analysis of the constitutional question leads us to conclude that the durational residency requirement is constitutional, a conclusion fully in accord with case law around the country that has recognized the validity of durational residency requirements. And, our decision respects and effectuates the will of the people of New Jersey to impose, through a state constitutional requirement, a durational residency requirement for state legislative office.
We further conclude that our decision is not a "new" ruling as there has never been a state court judgment finding that our constitutional requirement violates equal protection. That the federal court reached a contrary conclusion in Robertson that appears erroneous and is out of sync with decisions of other federal and state courts in cases reviewing equal protection challenges to intrastate durational residency requirements for office, does not render our judgment "new." We therefore decline to abrogate our 235-year-old State Constitution's requirement by limiting the effect of our judgment through prospective application.
On the issue of remedy, we conclude, as did the trial court, that the position is vacant and that Mosquera was the incumbent at the time of the vacancy. Therefore, the constitutional and statutory procedures for filling this vacancy will permit the county committee of the party with which Mosquera was affiliated during her election -- the Democratic Party -- the opportunity to select an interim successor for the vacant seat. Under our construction of the vacancy-filling provisions, Mosquera would meet eligibility requirements for appointment as the interim successor if selected by her party. And, finally, we are satisfied by the representation of the Attorney General that the Secretary of State and the Attorney General will not run afoul of the injunction issued in Robertson when performing the tasks associated with filling the seat declared vacant by operation of the trial court's judgment, now affirmed by this Court.
That said, this matter must not end here. In view of the complicated situation presented by the outstanding federal injunction directed at the Attorney General and the Secretary of State, the parties should either apply to the federal district court or should petition the United States Supreme Court for a writ of certiorari in order to resolve lingering conflicts that exist between our declaration of the constitutionality of Article IV, Section 1, Paragraph 2 of the New Jersey Constitution and the injunction. It is beyond our power to modify or dissolve that injunction and we do not purport to do so here. But it is our duty to interpret and enforce our Constitution and that we have done. We rely on the parties to bring to the federal courts the questions about the continued effect, if any, to be given to the Robertson injunction.
The Fourth Legislative District that is at the center of this dispute consists of nine municipalities located in portions of Camden and Gloucester Counties and has an estimated population of approximately 224,000. Prior to the 2011 General Election, the Fourth District was represented in the General Assembly by Paul Moriarty, a Democrat, and Domenick DiCicco, a Republican. Following the 2011 reapportionment, DiCicco was no longer a resident of the Fourth District and therefore did not seek re-election in the district.
Mosquera has lived in New Jersey since early childhood. Prior to 2010, she lived in Union City, Trenton, Hamilton, North Bergen, and Deptford, none of which is in the Fourth District. She attended college at Seton Hall University and The College of New Jersey, both located outside of the Fourth District. Mosquera worked on the staff of a member of the Assembly representing the Fifth District and for the Assembly Democratic Office in Trenton. On January 4, 2010, she commenced employment as an assistant to the Mayor of Gloucester Township, a municipality assigned to the Fourth District both before and after the 2011 legislative reapportionment. That employment brought her into direct contact with the Fourth District for the first time.
On November 13, 2010, Mosquera, at the time a resident of Maple Shade, a municipality then assigned to the Seventh Legislative District, entered into a contract to purchase a home in Blackwood, Gloucester Township. The purchase of Mosquera's Gloucester home, which for the first time made her a resident of the Fourth District, was finalized at a closing on December 29, 2010. She moved to Gloucester Township immediately thereafter. In February 2011, Mosquera changed her driver's license to her Gloucester Township address and voted as a resident of that municipality in the local fire district election. Mosquera testified that she did not purchase her Gloucester Township home with the intent to run for office in the Fourth District. She stated that she decided to run because of "an opportunity that was brought to me -- to my attention in 2011. I can't recall when specifically."
Mosquera testified that she does not recall exactly when in 2011 she commenced her run for the General Assembly. She coordinated her campaign with the campaigns of Senator Fred Madden and Assemblyman Moriarty. She testified that, in the course of her campaign, she campaigned virtually every night after work and on weekends, making telephone calls, knocking on doors and attending events. And, she met thousands of residents in visits to most of the municipalities that comprise the Fourth District.
Lovett, who ran as a Republican candidate for the Assembly, testified that at the time of the 2011 Assembly election, she had lived in Gloucester Township for approximately thirty-two years. After the June 2011 primary, she "heard a rumor" that Mosquera had not been a resident of Gloucester Township a full year prior to the November 2011 election. Lovett testified that she did not litigate Mosquera's compliance with Article IV, Section 1, Paragraph 2 of the New Jersey Constitution at that time because she "didn't have the money or the resources to do so."
The General Election was held on November 8, 2011. The results of that election were as follows:
Paul D. Moriarty (Democrat) 21,086 Gabriela Mosquera (Democrat) 19,907 Shelley Lovett (Republican) 14,351 Patricia Fratticioli (Republican) 14,000 Tony Celeste (Independent) 1,767
On December 1, 2011, three weeks after the election, Lovett filed an Election Challenge Petition pursuant to N.J.S.A. 19:29-1 to -14, alleging that Mosquera was not constitutionally qualified to represent the Fourth District in the Assembly because she had lived in the District less than one year prior to her election. Lovett sought an order "[d]eclaring Petitioner Lovett duly elected to the office of New Jersey Fourth District General Assembly," declaring Mosquera "not duly elected" to that office, and assessing costs.
Lovett's petition for emergency relief was denied by the trial court without prejudice. Mosquera moved to dismiss the petition, and the trial court held a hearing on December 19, 2011. At the outset of that hearing, the parties stipulated that Robertson, supra, was entitled to deference but was not binding on the trial court. Mosquera stipulated that she did not meet the one-year durational residency requirement and that this case did not present circumstances in which a candidate's residency became an issue because her municipality had been removed from her district by virtue of reapportionment. Further, the Attorney General represented that she considered herself enjoined by Robertson from enforcing Article IV, Section 1, Paragraph 2 of the New Jersey Constitution. Following the testimony of Mosquera and Lovett and the argument of counsel, the trial court denied the motion to dismiss and scheduled a second day of hearing for January 5, 2012. On that hearing date, the Attorney General stated that her position had "always been that the constitutional provision was constitutional," but that her office considered itself to be "enjoined from enforcing [the provision]" by Robertson and, accordingly, had advised candidates that "you can be a candidate without the one year residency restriction."*fn1
At the conclusion of the proceeding on January 5, 2012, the trial court issued an order annulling Mosquera's certificate of election, setting aside the November 8, 2011 election in the Fourth District as to Mosquera only, and enjoining Mosquera from taking office. It directed that the vacancy created by virtue of its order be filled by an election to take place, in accordance with the procedure outlined in N.J.S.A. 19:27-11.2, at the next General Election on November 6, 2012. It further ordered that the vacancy should be filled "within 35 days of January 10, 2012, by an interim successor who is a member of the Democratic Party, selected by the appropriate members of the Democratic County Committees." The court retained jurisdiction and, on January 7, 2012, issued a detailed amended opinion setting forth the basis for its January 5, 2012 order. Relying on Matthews v. City of Atlantic City, 84 N.J. 153 (1980), the court applied an intermediate scrutiny test to Article IV, Section 1, Paragraph 2. It concluded the provision to be constitutional on the ground that it furthers legitimate state interests and is reasonably and suitably tailored to those interests. The court stated that it would be "presumptuous" for it to strike down a provision "which has been in New Jersey's Constitution since 1776, and has been considered and approved by New Jersey's voters in 1844, 1947, and 1966." The trial court held that the residency requirement is constitutional as applied to the 2011 District Four General Assembly election, rejected Mosquera's claim that Lovett's challenge was barred by the doctrine of laches, and held that the Robertson injunction did not bar its consideration of the dispute. It declined to hold that its ruling was solely prospective.
The trial court also considered the appropriate remedy. Construing the term "incumbent" in N.J.S.A. 19:29-1 ("[t]he term incumbent means the person whom the canvassers declare elected") to mean "the candidate whose election is challenged," it found that N.J.S.A. 19:29-9 compelled the annulment of Mosquera's certificate of election, creating a vacancy. Applying N.J.S.A. 19:27-11.2, which requires that a vacancy be filled "within 35 days by a member of the political party of which the person who vacated the office was the candidate at the time of his election thereto," the trial court concluded that Mosquera had "vacated the office," and that the Democratic Party should therefore select the person to fill the seat. The trial court noted that that remedy would effectuate the will of the voters of the Fourth District to the extent possible.
Immediately following the trial court's January 5, 2012 order, Mosquera asked the trial court to stay that order and filed a notice of appeal and motion for emergent relief in the Appellate Division. On January 9, 2012, the trial court denied Mosquera's motion for a stay. That day, the Appellate Division heard oral argument on Mosquera's application for a stay and for emergent relief. It granted the motion to proceed on an emergent basis and granted Mosquera's emergent application for a stay of the trial court's opinion and denial of a stay. The Appellate Division order resulted in staying the trial court's order that had annulled the certificate of election and had enjoined Mosquera from taking the oath of office. The Appellate Division also ordered briefing on an expedited basis. The panel's order was based on its finding that Mosquera was likely to succeed on the merits of her claim that the trial court's decision upholding the constitutionality of the residency requirement should apply only prospectively.
On January 9, 2012, Lovett filed a motion for emergent relief in this Court. The following day, this Court vacated the Appellate Division panel's order and temporarily reinstated the relief that had been granted by the trial court. In re Contest of Nov. 8, 2011 Gen. Election of Office of N.J. Gen. Assembly, Fourth Legislative Dist., ___ N.J. ___ (2012). On January 11, 2012, Lovett filed a notice of cross-appeal in the Appellate Division. On January 13, 2012, Lovett moved before the trial court to stay that portion of the trial court's January 5, 2012 order that directed that the vacancy created by the annulment of Mosquera's certificate of election be filled with a person selected by the Democratic Party. The same day, this Court, on its own motion, certified this case, see R. 2:12-2, ordered expedited briefing, and stayed the judgment of the trial court insofar as it directed the selection of an interim successor. In re Contest of Nov. 8, 2011 Gen. Election of Office of N.J. Gen. Assembly, Fourth Legislative Dist., ___ N.J. ___ (2012).
We turn first to the fundamental issue in this case, which concerns the validity of the durational residency requirement for membership in the New Jersey General Assembly that is found in Article IV, Section 1, Paragraph 2 of the New Jersey Constitution. That paragraph provides as follows:
No person shall be a member of the General Assembly who shall not have
attained the age of twenty-one years and have been a citizen and
resident of the State for two years, and of the district for which he
shall be elected one year, next before his election. [N.J. Const. art.
IV, § 1, ¶ 2.]
Contrary to the Robertson court's mistaken impression that the
durational residency requirement is of recent vintage, the requirement
can be traced back to the earliest days of the Republic. The first New
Jersey Constitution, signed on July 2, 1776, contained a one-year
residency requirement for members of the General Assembly.*fn2
The 1844 Constitution preserved the one-year durational
requirement.*fn3 The requirement is not unusual. As
the trial court explained,
[a]lmost every state has enacted durational residency requirements for state legislators. Forty-four states, and the United States Constitution, require candidates for the legislature to have residence of a year or more. Like the federal constitution, and most states, New Jersey has provided such residency requirements for both houses of the legislature. [(citations omitted).]
It is undisputed that Mosquera did not meet the durational residency requirement at the time she ran for office. She, however, contends that the requirement violates the Equal Protection Clause of the Fourteenth Amendment, which provides that no state "shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. She raises both a facial and an as-applied challenge.
On the threshold question of whether we are barred from considering the constitutional question at all in light of the Robertson decision, the parties agree that a federal district court's ruling on the subject does not preclude the courts of the State of New Jersey from also ruling on whether the Equal Protection Clause of the Fourteenth Amendment bars enforcement of our State Constitution's durational residency requirement for membership in the General Assembly.
Their concession is in accord with previous case law, which also clearly recognizes that a state court is not barred from addressing federal constitutional questions about state statutes, and perforce federal constitutional challenges to our State Constitution, notwithstanding a lower federal court ruling on the subject. See State v. Coleman, 46 N.J. 16, 36-37 (1965), cert. denied, 383 U.S. 950, 86 S. Ct. 1210, 16 L. Ed. 2d 212 (1966) (noting that state courts and federal trial and intermediate appellate courts occupy comparable positions in respect of federal constitutional questions and declining to follow Court of Appeals's resolution of federal constitutional question); see also State v. Norflett, 67 N.J. 268, 286-87 (1975) (noting same when declining to regard three-judge federal district court's holding as controlling on constitutionality of state statute). While comity requires that we give due respect to the holding of the federal district court in Robertson, ultimately the courts of this state, up to and including this Court, and the trial and intermediate federal courts possess an independent ability to address federal constitutional issues:
In passing on federal constitutional questions, the state courts and the lower federal courts have the same responsibility and occupy the same position; there is parallelism but not paramountcy for both sets of courts are governed by the same reviewing authority of the Supreme Court. [Coleman, supra, 46 N.J. at 36.]
Thus, mindful of the judgment of the federal court in Robertson, we conduct an independent analysis of the constitutionality of Article IV, Section 1, Paragraph 2, which never has been brought into question by any previous state court judgment.
We begin with Mosquera's contention that the durational residency requirement is facially unconstitutional.
Just last term, this Court addressed the standard to be applied when considering a facial challenge to the constitutionality of a statute or other legislative provision. See Whirlpool Props., Inc. v. Dir., Div. of Taxation, 208 N.J. 141 (2011). We held, in the context of a facial challenge to a tax statute, that the long-standing test set forth in United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987), governed our analysis. Whirlpool, supra, 28 N.J. at 176-77. Thus, a statute must be upheld "if it can be shown to operate constitutionally in some, even if not all or most, instances." Id. at 156 (citing Pfizer Inc. v. Dir., Div. of Taxation, 24 N.J. Tax 116, 123-24 (Tax 2008); Gen. Motors Corp. v. City of Linden, 150 N.J. 522, 532 (1997)).
At the same time, we recognized that some members of the United States Supreme Court have called the Salerno standard into question. Compare City of Chicago v. Morales, 527 U.S. 41, 55 n.22, 119 S. Ct. 1849, 1858 n.22, 144 L. Ed. 2d 67, 79-80 n.22 (1999) (expressing majority's belief that Salerno has "never been the decisive factor in any decision of this Court," while refusing to "resolve the viability of Salerno's dictum") with City of Chicago, supra, 527 U.S. at 81, 119 S. Ct. at 1871, 144 L. Ed. 2d at 95 (Scalia, J., dissenting) (adhering to Salerno's test in which party bringing facial challenge must show that challenged provision is "invalid in all its applications").
Nevertheless, the United States Supreme Court, in more recent cases, continues to apply Salerno and has also set out a second standard for analyzing facial challenges with which "all [justices] agree" -- whether "the statute has a 'plainly legitimate sweep.'" Wash. State Grange v. Wash. State Rep. Party, 552 U.S. 442, 449, 128 S. Ct. 1184, 1190, 170 L. Ed. 2d 151, 160 (2008) (quoting Washington v. Glucksberg, 521 U.S. 702, 740 n.7, 117 S. Ct. 2302, 2305 n.7, 138 L. Ed. 2d 772, 800 n.7 (1997) (Stevens, J., concurring in judgments)). Under the latter standard, the Court continues to consider whether hypothetical constitutional applications of the challenged statute exist. Id. at 456-57, 128 S. Ct. at 1194, 170 L. Ed. 2d at 164-65 (rejecting facial challenge to law governing primary elections in which challengers raised associational right claims where Court could hypothesize constitutional formulation for primary ballot). The Court stressed that, when confronted with a facial challenge, a court "must be careful not to go beyond the statute's facial requirements and speculate about 'hypothetical' or 'imaginary' cases" under which the statute might present constitutional problems. Id. at 450, 128 S. Ct. at 1190, 170 L. Ed. 2d at 160 (citation omitted).
Despite the uncertainty surrounding the Salerno standard, New Jersey law has always been clear -- a statute is "presumed constitutional and . . . 'is not facially unconstitutional if it operates constitutionally in some instances.'" Whirlpool, supra, 208 N.J. at 175 (quoting Linden, supra, 150 N.J. at 532). That standard applies, with the fullest of force, when considering a federal constitutional challenge to a provision in the New Jersey Constitution. In mounting its challenge to the majority's analysis, the dissent attacks our use of Salerno, but points to only one case, from the Federal Circuit Court of Appeals, that lends anemic support the dissent's way, but even it does not reject Salerno. See post at ___ (citing Berkley v. United States, 287 F.3d 1076, 1090 n.14 (2002)) (slip op. at 9). At the same time, the dissent sidesteps, without elaboration, two more recent circuit court decisions that undercut the dissent's epiphany on the subject since issuance of our opinion in Whirlpool. See post at ___ (slip op. at 9). At bottom, the dissent cannot demonstrate that there is precedent for abandonment of the Salerno standard and, therefore, has no basis for criticizing its use in this matter. In this challenge, we stand by the unanimous determination in Whirlpool to continue applying Salerno when "[w]e see no ready or clear indication that the Supreme Court has signaled its abandonment." 208 N.J. at 176.
Thus, with that standard as our measure, we turn to the federal equal protection challenge at issue in this case.
It is well-settled that "the equal protection clause does not require the state to treat all persons alike." Price v. Cohen, 715 F.2d 87, 91 (3d Cir. 1983) (citing Tigner v. Texas, 310 U.S. 141, 147, 60 S. Ct. 879, 882, 84 L. Ed. 1124, 1128 (1940)). "To establish a violation of the equal protection clause, a plaintiff must show that the allegedly offensive categorization invidiously discriminates against the disfavored group. The level of deference shown to the state-created categories varies according to the group discriminated against and the right or interest infringed." Id. at 91-92. The starting point for any equal protection analysis is to determine the standard of review, or level of scrutiny, that should be applied to the challenged classification. See, e.g., Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S. Ct. 2326, 2331, 120 L. Ed. 2d 1, 12 (1992); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313, 320 (1985).
Previous case law of this Court has applied an intermediate scrutiny analysis to an equal protection challenge to a durational residency requirement to run for a specific municipal office. In Matthews, supra, 84 N.J. at 155, this Court considered a statutory requirement that candidates for election to the Board of Commissioners of Atlantic City have resided in the city for two years prior to the election. The statute applied to some New Jersey municipalities, but not to others. Ibid. Applying the intermediate scrutiny test, the Court struck down the residency requirement because the State had not justified "why voters in some municipalities may vote only for candidates satisfying a two-year residency requirement while voters in other municipalities are not so restricted." Id. at 173. Importantly, in determining that intermediate scrutiny was the correct standard to apply, the Matthews Court found that durational residency requirements do not "directly interfere with the exercise of the fundamental right to vote," id. at 168, but have a significant indirect effect on "the voter's freedom of choice," id. at 169.
In contrast, in Robertson, the federal court applied strict scrutiny in the context of an equal protection challenge to the durational residency requirement to run for the General Assembly of the New Jersey Legislature and declared that the requirement ran afoul of equal protection. Robertson, supra, 150 F. Supp. 2d at 698.
Against that backdrop, we address the standard that should apply in the instant matter.
Determining the proper level of scrutiny requires identification of the personal liberty interests implicated by the durational residency requirement and an assessment of the extent to which the requirement burdens those interests.
In the event that a classification directly burdens a fundamental personal liberty interest, it is beyond dispute that strict scrutiny applies in an equal protection challenge. See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 31, 93 S. Ct. 1278, 1296, 36 L. Ed. 2d 16, 42 (1973); Graham v. Richardson, 403 U.S. 365, 375-76, 91 S. Ct. 1848, 1853-54, 29 L. Ed. 2d 534, 534-35 (1971); Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 626, 89 S. Ct. 1886, 1889-90, 23 L. Ed. 2d 583, 589 (1969); Shapiro v. Thompson, 394 U.S. 618, 634, 89 S. Ct. 1322, 1331, 22 L. Ed. 2d 600, 615 (1969). However, classifications that do not implicate a fundamental liberty interest, or that affect a fundamental liberty interest in only an indirect way, are not similarly guaranteed that highest level of scrutiny. Courts around the country have assessed liberty interests impacted to various degrees by durational residency requirements, and those decisions provide guidance in our analysis of this matter.
That said, the analysis rightfully begins with a pair of foundational Supreme Court cases decided in 1972 that generated the language and conceptual tools ensuing courts have used to analyze equal protection challenges involving durational residency requirements. Those cases clarified that the standard to be applied is based on the personal ...