Client Update: New Jersey First Act Ruled Unconstitutional

A recent decision from the Superior Court of New Jersey held that the New Jersey First Act (“Act”) and its residency requirements are unconstitutional in their present form.

As you may know, the Act mandates that most public officers and employees, with limited exceptions, maintain their principal place of residence in New Jersey. See N.J.S.A. 52:14-7. The limited exceptions apply to certain temporary or per-semester higher education teaching staff members and to those persons who are employed full-time by the State but spend a majority of their time working outside the State. For all other public employees required to maintain their principal place of residence in New Jersey, the Act contains a waiver provision, which provides in pertinent part that “[a]ny person may request an exemption from the provisions of this subsection on the basis of critical need or hardship from a five-member committee hereby established to consider applications for such exemptions.” N.J.S.A. 52:14-7.

In Somerville Bd. of Educ. v. Drake, Docket No. SOM-L-465-19 (decided Feb. 11, 2021), the Defendant Rebecca Drake (“Drake”), a teaching staff member in the Somerville School District (“District”), was terminated from employment because in or about August 2017, she moved from her principal residence in New Jersey to Pennsylvania. Prior to moving to Pennsylvania, Drake sought a waiver but her request was denied. She subsequently submitted a second waiver request (after she had already been living in Pennsylvania), which was ultimately granted. Nevertheless, in or about March 2018, the District advised Drake that by her having moved to Pennsylvania prior to obtaining a waiver, she was in violation of the Act. Drake was given the option to resign or the District would pursue legal action to separate her from employment. Drake refused to submit a letter of resignation and, thus, in or about April 2018, the District filed suit against Drake to separate her from employment.

After responsive pleadings had been filed, Drake filed a motion to dismiss (or, in the alternative, a motion for summary judgment) and the District filed a cross-motion for same. On or about February 11, 2021, the Court issued an opinion granting Drake’s motion for summary judgment and dismissing the complaint, holding as follows:

• “The Court finds that the N.J. first Act’s waiver provision does violate due process principles in that the standards applicable to waiver requests [are] unconstitutionally vague. The statutory standard of ‘critical need or hardship’ provides only a vague standard that is likely subject to a different interpretation by virtually every person who considers it.”
• Because the waiver provision is inextricably linked to the remainder of the Act, the entire Act is unconstitutional.
• The Court declined to rewrite the Act (either in its entirety or as to the waiver provision), instead, holding “that the matter should now be left to the Legislature as to whether the Act is amended to be constitutionally compliant, or whether other action is taken by the Legislature.”
• The remainder of Drake’s challenges to the constitutionality of the Act were denied and the question of whether Drake’s conduct violated the Act was deemed moot because the Act had been adjudged unconstitutional.

Presently, the District has not appealed the decision and, thus, public employers must be mindful of the Court’s holding in Drake prior to separating a public employee from employment because the employee violated the Act’s residency requirements.

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