New Jersey Residency Requirements May Be Destined for the Supreme Court: Part II

Despite a string of legal opinions, the federal courts and the New Jersey courts still do not see eye-to-eye on New Jersey’s residency requirement. Hanging in the balance is the election of Assemblywoman Gabriela Mosquera.

Most recently, U.S. District Court Judge Dickinson R. Debevoise, the same judge who decided Robertson v. Bartels, again concluded that New Jersey’s state constitutional residency requirement was invalid, at least when it comes to redistricting years. He refused a request from the Attorney General’s Office to vacate the long-standing injunction in its entirety.

Instead, the judge modified it to apply only to years where there is legislative redistricting. As the decision notes, given that redistricting takes place seven months prior to an election, candidates displaced from their former districts “do not even have the opportunity to satisfy the one-year residency requirement.”

Debevoise’s opinion highlights the tension between the two courts when it comes to New Jersey’s residency requirement. The federal judge was clearly not happy that the New Jersey Supreme Court tried to make an end-run around his injunction. “[T]he New Jersey Supreme Court’s ruling on the constitutionality of the one-year durational residency requirement in the face of this Court’s 2001 ruling enjoining its enforcement amounts to an improper collateral attack,” he wrote.

The federal judge even questioned whether the court was authorized to address the issue in the first place. He cited the U.S. Supreme Court’s ruling in Cooper v. Aaron, 358 N.J. 1 (1958), which said, “No state legislator or executive or judicial officer can … annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments.”

“While the Court noted that it was unable to vacate the injunction, it nonetheless found that it could independently uphold the durational residency requirement and enjoin Mosquera from taking office,” Debevoise said. “That position is untenable because it, in effect, nullifies this Court’s prior injunction.”

Despite the federal court decision, there is still some legal uncertainty about its impact on the New Jersey Supreme Court’s decision. With regard to New Jersey’s residency requirement, the injunction still stands, at least in part. With regard to Mosquera, she may still be required to run in a special election this November.

If both sides are not satisfied, they may file a petition for a writ of certiorari to the United States Supreme Court to resolve what the New Jersey Supreme Court called “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.”

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

New Jersey Residency Requirements May Be Destined for the Supreme Court: Part II