# THE MECHANICAL CONTRACTORS ASSOCIATION OF NEW JERSEY, INC. v. STATE OF NEW JERSEY

> District Court, D. New Jersey · May 28, 2021

URL: https://www.frixlaw.com/law-library/cases/10270707

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** May 28, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10270707

## How later opinions describe it (automated extraction)

- holding that restraints on judicial review have added force “where the legislature must necessarily engage in a process of line-drawing”
- holding that the only permitted inquiry “is whether the legislature rationally might have believed that the predicted reaction would occur or that the desired end would be served”

## Opinion text

*FOR PUBLICATON*

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

THE MECHANICAL CONTRACTORS
ASSOCIATION OF NEW JERSEY, INC., et
al.,

Plaintiffs, Civil Action No. 3:19-cv-18976 (FLW)

v. OPINION

STATE OF NEW JERSEY, et al.,

Defendants.

WOLFSON, Chief Judge:
Plaintiffs, the Mechanical Contractors Association of New Jersey, Inc. (“MCANJ”), and
MMC Contractors, sue the State of New Jersey, the New Jersey Attorney General, and the New
Jersey Division of Consumer Affairs (collectively, “Defendants”) for Equal Protection, Due
Process, Privileges and Immunities, and Commerce Clause violations. Plaintiffs challenge a 1%
ownership requirement to register as a “bona fide representative” for a heating, ventilating, air
conditioning, and refrigeration (“HVACR”) contractor, which is necessary for the contractor to
work in the State. See N.J.S.A. § 45:16A-2. Before the Court are cross-motions for summary
judgment. For the following reasons, Plaintiffs’ motion is DENIED, Defendants’ motion is
GRANTED, and all claims are DISMISSED.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
MCANJ is a trade association representing HVACR contractors. See Pl. Statement of
Undisputed Material Facts (“SUMF”), ¶ 1. MMC is a national contractor specializing in large-
scale HVACR projects. Id. ¶¶ 2-3. Defendants are various State entities. Id. ¶ 2. In 2007, the New
Jersey Legislature passed the Heating, Ventilation, Air Conditioning and Refrigeration License
Law, which comprehensively regulates HVACR contractors. See N.J.S.A. § 45:16A-1, et seq.
Relevant here, the Act requires any contractor performing HVACR work in New Jersey to appoint
a “licensed Master” as a “bona fide representative.” See id. § 45:16A-2. At the time it was passed,
a bona fide representative:

in the case of a sole proprietorship, was the owner of the business; in the case of a
partnership, was a partner in the business; in the case of a limited liability company,
was a manager; or in the case of a corporation, was an executive officer.

Id. The bona fide representative accepts service of process within New Jersey, id. § 13:32A-
5.2(a)(2), and consents to liability for monetary penalties arising out of shoddy work or delays on
behalf of the contractor. Id. § 13:32A-5.2(a)(3).
In 2018, the Legislature amended the definition of bona fide representative to mean a
“licensed Master”:
who has not less than one percent ownership of the issued and outstanding stocks
in a corporation, or not less than one percent ownership of the capital of a
partnership, or not less than one percent ownership of any other legal entity engaged
in HVACR contracting in this State.

Id. § 45:16A-2. According to Plaintiffs, Governor Murphy signed the amendment to “protect
consumers by ensuring that companies performing work in New Jersey have a sufficient nexus
with our State and are readily accessible and responsive to customers they serve here.” Pl. Br., at
18; Pl. SUMF, ¶ 52. Besides this statement, Plaintiffs claim, there was no evidence before the
Legislature “demonstrating how adding an ownership requirement . . . protects the health, safety
and welfare of the public in a way that the prior licensing requirement [did not].” Pl. SUMF, ¶ 61.
Instead, Michael Maloney, President of the New Jersey State Pipe Trades, gave the following
testimony to the Assembly Regulated Professions Committee to justify the amendment:
There is no accountability among the [bona fide representatives]. A company can
change their [bona fide representative] like he or she changes their shirts. When
ownership is involved, it’s a whole different ball game. Now the BFR has stock in
the company in this this proposal it is only 1% and not 10% and it is only a matter
of time before big box stores, of which I will not name, will . . . be able to solicit
anyone who is licensed to act as their BFR and in that scenario would wipe out the
mom and pop . . . HVACR contractors . . . . Along with ownership requirements,
you now have someone who is responsible for the company’s actions, good or bad.
By the way, for your information, the 10% ownership requirement for the plumbing
contractor law has been around since 1968 and it works.

Id.
In the same bill, the Legislature exempted companies whose business is not primarily
HVACR work (as defined by a percentage of revenue) and publicly traded companies from the
ownership requirement:
A “bona fide representative” means, with respect to a corporation, partnership, or
other firm or legal entity engaged in HVACR contracting in this State which
generates more than 65 percent of its gross revenue from sources other than
HVACR contracting, or with respect to a publicly-traded corporation, including its
wholly-owned subsidiaries, whose principal business in this State is HVACR
contracting: in the case of a sole proprietorship, the owner; in the case of a
partnership, a partner; in the case of a limited liability company, a manager; or in
the case of a corporation, an executive officer.

N.J.S.A. § 45:16A-2. Governor Murphy purportedly justified the exemptions on the grounds that
“the magnitude, presence, and resources of [ ] large, publicly-traded corporations ensure that they
will be accessible and accountable to New Jersey consumers.” See Pl. SUMF, ¶ 53.
Plaintiffs sued on October 15, 2019, contending that the ownership requirement is
unconstitutional under the Equal Protection Clause, Due Process Clause, Privileges and
Immunities Clause, and Commerce Clause. See ECF No. 1; Pl. SUMF, ¶ 6. Plaintiffs moved for
summary judgment one year later on all claims, see ECF No. 21, which Defendants answered with
a cross-motion seeking to dismiss the Complaint. See ECF No. 22. In Plaintiffs’ view, the
ownership requirement irrationally blocks “licensed Masters” who do not own at least 1% of an
HVACR contractor from registering as a bona fide representative, treats out-of-state HVACR
contractors and “licensed Masters” differently than in-state ones, and unduly restricts interstate
commerce. See Pl. Br., at 2-4. Defendants argue that the ownership requirement is rationally
related to legitimate state interests, imposes “identical requirements” on residents and
nonresidents, and presents no “local obstacle” to national trade. See Def. Br., at 6.

II. LEGAL STANDARD
Summary judgment is appropriate where “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits if any, . . . demonstrate the
absence of a genuine issue of material fact” and that the moving party is entitled to a judgment as
a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (quotations omitted); Fed.
R. Civ. P. 56(a). An issue is “genuine” when “a reasonable jury could return a verdict for the non-
moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material”
when it “might affect the outcome of the suit under the governing law.” Id. The court construes all
facts in the light most favorable to the nonmoving party, see Boyle v. Cty. of Allegheny Pa., 139

F.3d 386, 393 (3d Cir. 1998), whose evidence “is to be believed,” and makes “all justifiable
inferences . . . in [its] favor.’” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004); see
also Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007).
The moving party “always bears the initial responsibility of informing the district court of
the basis for its motion.” Celotex, 477 U.S. at 323. That party may discharge its burden by
“showing — that is, pointing out to the district court — that there is an absence of evidence to
support the nonmoving party’s case when the nonmoving party bears the ultimate burden of
proof.” Singletary v. Pa. Dep’t of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001) (quotations and
citations omitted). The nonmoving party must then identify, by affidavits or otherwise, specific
facts showing that there is a triable issue. Celotex, 477 U.S. at 324. To do so, the nonmoving party
“may not rest upon the mere allegations or denials of the . . . pleading[s].” Saldana v. Kmart Corp.,
260 F.3d 228, 232 (3d Cir. 2001) (quotations omitted). Instead, “[it] must make a showing
sufficient to establish the existence of [every] element essential to [its] case, and on which [it] will
bear the burden of proof at trial.” Cooper v. Sniezek, 418 Fed. App’x. 56, 58 (3d Cir. 2011)

(quotations and citations omitted). “While the evidence that the non-moving party presents may
be either direct or circumstantial, and need not be as great as a preponderance, [it] must be more
than a scintilla,” Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005), and
conclusory declarations, even if made in sworn statements, will not suffice. See Lujan v. Nat’l
Wildlife Fed’n, 497 U.S. 871, 888 (1990).
III. DISCUSSION
Plaintiffs challenge the 1% ownership requirement under various constitutional provisions:
Equal Protection because it provides part-owner “licensed Masters” with preferential treatment;
Due Process because it prevents non-owner “licensed Masters” from pursuing their profession;

Privileges and Immunities because it imposes a restriction not common to any other state; and,
finally, the Commerce Clause because it burdens interstate commerce. I address each in turn.
A. Equal Protection Claim

i. Standard of Scrutiny

The Fourteenth Amendment prohibits a state from “deny[ing] to any person within its
jurisdiction the equal protection of the laws.” U.S. CONST. AMEND. XIV. “The purpose . . . is to
secure every person within the State’s jurisdiction against . . . arbitrary discrimination.” Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (citations omitted). Where a statute intentionally
singles out an “identifiable group” based on a protected characteristic, such as race, it is subject to
strict scrutiny. Gratz v. Bollinger, 539 U.S. 244, 270 (2003). Where a statute draws lines based on
a “quasi-suspect” characteristic, such as sex, it is subject to intermediate scrutiny. Clark v. Jeter,
486 U.S. 456, 461 (1988). Where a statute neither “burdens a suspect group or a fundamental
interest,” Vance v. Bradley, 440 U.S. 93, 96-97 (1979), as here, it is subject to rational basis review.
Romer v. Evans, 517 U.S. 620, 632 (1996); Hassan v. City of New York, 804 F.3d 277, 298 (3d

Cir. 2015). Both parties acknowledge rational basis as the applicable test.
Rational basis review is “very deferential,” Newark Cab Ass’n v. City of Newark, 901 F.3d
146, 156 (3d Cir. 2018), and “a paradigm of judicial restraint.” F.C.C. v. Beach Commc’ns, Inc.,
508 U.S. 307, 313 (1993). “The general rule is that legislation . . . will be sustained if [it is]
rationally related to a legitimate state interest.” City of Cleburne v. Cleburne Living Ctr., 473 U.S.
432, 440 (1985) (citations omitted). “Any reasonably conceivable state of facts” will do, and there
is a “strong presumption validity.” Heller v. Doe, 509 U.S. 312, 319-20 (1993); Allied Stores of
Ohio, Inc. v. Bowers, Inc., 358 U.S. 522, 528 (1959) (stating that this has “long been settled” even
where a classification is otherwise “discriminatory”). It is also “entirely irrelevant” whether the

“conceived” facts or reasons “actually motivated the legislature” when it passed the law, Beach,
508 U.S. at 515, or have “a foundation in the record,” Heller, 509 U.S. at 321, and “those attacking
the . . . [legislation] have the burden ‘to negative every conceivable basis which might support it.’”
Id. (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)). Not only that,
“a legislature . . . [need not] actually articulate at any time the purpose or rationale supporting its
classification,” Nordlinger v. Hahn, 505 U.S. 1, 15 (1992); United States Railroad Retirement Bd.
v. Fritz, 449 U.S. 166, 179 (1980) (“[T]his Court has never insisted that a legislative body articulate
its reasons for enacting a statute.”), the absence of “legislative facts” explaining a classification
“has no significance,” Nordlinger, 505 U.S. at 15, and courts almost always “accept at face value
. . . rationales constructed after the fact.” Hancock Indus. v. Schaeffer, 811 F.2d 225, 237-38 (3d
Cir. 1987). A legislature’s decision to write a classification into a statute, in short, is not subject to
any “courtroom fact-finding,” but may be based on rational post-hoc “speculation unsupported by
evidence or empirical data.” Beach, 508 U.S. at 515; Vance, 440 U.S. at 111; Minnesota v. Clover
Leaf Creamery Co., 449 U.S. 456, 464 (1981).

Courts must be highly deferential because rational basis review “is not a license . . . to
judge the wisdom, fairness, or logic of legislative choices,” Heller, 509 U.S. at 319, or to act as a
“superlegislature,” New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam), and “judicial
intervention is generally unwarranted no matter how unwisely [a court] may think a political
branch has acted.” See Vance, 440 U.S. at 97. “Only by faithful adherence to this guiding principle
. . . is it possible to preserve to the legislative branch its rightful independence and its ability to
function.” Lehnhausen, 410 U.S. at 364 (quotations and citation omitted). For these reasons, “it
should come as no surprise that the Court hardly ever strikes down a policy as illegitimate under
rational basis scrutiny.” Trump v. Hawaii, 138 S. Ct. 2392, 2420 (2018). “On the few occasions

[the Court] ha[s] done so, a common thread has been that the laws at issue lack any purpose other
than a ‘bare . . . desire to harm a politically unpopular group.’” Id. (quoting Dep’t of Agric. v.
Moreno, 413 U.S. 528, 534 (1973)) (omission in original); Romer, 517 U.S. at 634 (striking down
a law because “its sheer breadth [was] so discontinuous with the reasons offered for it” that it
seemed “inexplicable by anything but animus”). A state is entitled to especially “wide latitude”
over social and economic policy because “[t]he Constitution presumes that even improvident
decisions will eventually be rectified by democratic processes.” City of Cleburne, 473 U.S. at 440.
ii. Application
Turning to the present case, New Jersey’s 1% ownership requirement survives rational
basis review, and does not fit the pattern or circumstances the Supreme Court has emphasized in
striking down statutes.1 Defendants, first, assert various legitimate state interests. One interest is
“to quell the amount of [] unlicensed practice complaints” for HVACR contractors, of which there
were apparently 39 between 2016 and 2020. Def. Br., at 9-10, Exs. A-B. Another interest is to

“provide greater accountability” and deter “license lending.” Id. at 10. The Legislature also sought
to encourage “greater oversight and supervision,” particularly in light of 552 alleged complaints
against HVACR contractors “under the previous definition of bona fide representative.” Id. at 10-
11, Exs. A-B; id. at 14 (“The New Jersey Legislature sought to deal with an ongoing public health,
safety and welfare concern by incentivizing a bona fide representative, via an ownership
requirement, to provide greater oversight and assume the requisite supervision concerning the
practice of HVACR contracting.”). And it appears that New Jersey has for decades required
plumbers to maintain a 10% ownership stake in a contractor, which has purportedly resulted in
fewer total complaints compared to electricians, for whom no such requirement exists. Id. at 22

n.4.
Plaintiffs do not claim that these interests are necessarily illegitimate. They instead insist
that the ownership requirement is not rationally related to them. While their concern is that some
“licensed Masters” will be unable to register as bona fide representatives going forward, and some
contractors will be unable find such representatives in order to do business in New Jersey, that
potentiality does not render the License Law unconstitutional under Equal Protection principles.

1 The first step in any Equal Protection case is to identify the challenged classification. See Murillo
v. Bambrick, 681 F.2d 898, 906 (3d Cir. 1982) (stating that a court must “identify with particularity the
precise classification alleged to be irrational”). That is straightforward here: the face of the statute
distinguishes between non-owner “licensed Masters” and “licensed Masters” with a 1% stake or more in an
HVACR contractor.
As Defendants observe, the ownership requirement bears a discernable “relationship to legitimate
state interests,” Trump, 138 S. Ct. at 2421, and cannot be deemed “divorced from any factual
context,” Romer, 517 U.S. at 637, because it may encourage employees to advance the goals of
the HVACR contractor for which they are an agent above other, competing ends. For example, the
law could provide a “disincentive” to license lend, which HVACR contractors presumably wish

to mitigate so as not to lose customers or generate complaints to the State Board, or a financial
incentive to respond more effectively to consumer concerns impacting the business.
This is essentially the logic behind all equity-based compensation schemes, which can
reduce agency costs by aligning employee and company interests. See, e.g., In re Telxon Corp.
Sec. Litig., 67 F. Supp. 2d 803, 814 (N.D. Ohio 1999) (describing, in the context of lead plaintiff
motions in a class action, how “divergence of financial interests creates significant agency costs”);
Michael C. Jensen & William H. Meckling, Theory of the Firm: Managerial Behavior, Agency
Costs and Ownership Structure, 3 J. FIN. ECON. 305, 308 (1976) (explaining that “[t]he principal
can limit divergences from his interest by establishing appropriate incentives for the agent . . . to

limit the aberrant activities of the agent,” such as stock compensation) (emphasis omitted).
Plaintiffs may strongly disagree with the theory that part ownership improves performance and
efficiency, or firmly believe that in these circumstances it will not achieve the consumer protection
the Legislature intends. Assuming arguendo that Plaintiffs’ position has some merit, it is
nonetheless not a reason to strike down the statute, as states “are not required to convince the courts
of the correctness of their legislative judgments,” particularly in non-sensitive social/economic
areas such as this. Clover Leaf, 449 U.S. at 464. Simply, I may only “look behind the face of the
[statute] to the extent of applying rational basis review,” Trump, 138 S. Ct. at 2420, which does
not reach the merits of a legislature’s policy choices, Heller, 509 U.S. at 319, or the effectiveness
of its judgments in that arena, see Harold v. Richards, 334 F. Supp. 3d 635, 643 (E.D. Pa. 2018),
and I am “compelled under rational-basis review to accept [ ] generalizations even when there is
an imperfect fit between means and ends.” Heller, 509 U.S. at 321; Metropolis Theatre Co. v.
Chicago, 228 U.S. 61, 69-70 (1913) (“The problems of government are practical ones and may
justify, if they do not require, rough accommodations.”). Beyond even that, the fact that the

assumptions underlying Defendants’ rationale are disputed is fatal to Plaintiffs’ position that the
License Law is irrational. See, e.g., Clover Leaf, 449 U.S. at 469 (“Since in view of the evidence
before the legislature, the question clearly is at least debatable, the Minnesota Supreme Court erred
in substituting its judgment for that of the legislature.”) (quotations and citation omitted); Doe v.
Pa. Bd. of Prob. & Parole, 513 F.3d 95, 117 (3d Cir. 2008) (Ambro, J., dissenting) (“If the question
is at least debatable, the Commonwealth’s classification survives rational basis review.”) (quoting
Clover Leaf).
Stated differently, it is conceivable that the Legislature designed the ownership
requirement to invest bona fide representatives in the pecuniary success of the HVACR contractor

with which they are associated, on the belief that such a compensation structure will (1) preempt
problems that arise when the contractor and the representative have different incentives/interests,
(2) check potential self-dealing, laziness, or incompetence, (3) use the unique information the bona
fide representative has to the benefit of the HVACR contractor on the whole, (4) ensure contractors
hire good stewards or fiduciaries, since they will be unlikely to give just any “licensed Master” a
financial stake in their company, and (5) reduce complaints to the State.2 Between “opposed views

2 Perhaps, also, the Legislature adopted the ownership requirement for bona fide HVACR
representatives for the same reasons as plumbers in 1987. See Beach, 508 U.S. at 317 (“Congress borrowed
§ 602(7)(B) from pre-Cable Act regulations, and although the existence of a prior administrative scheme is
certainly not necessary to the rationality of the statute, it is plausible that Congress also adopted the FCC's
earlier rationale.”).
of public policy,” the Legislature here determined that citizens in need of HVACR services will
be better served by this arrangement, and I cannot second-guess that logic, even if it were flawed.
Accord N. Dakota State Bd. of Pharmacy v. Snyder’s Drug Stores, Inc., 414 U.S. 156, 166-67
(1973) (“A standing criticism of the use of corporations in business is that it causes such business
to be owned by people who do not know anything about it. Argument has not been supposed to be

necessary in order to show that the divorce between the power of control and knowledge is an evil
. . . . it still would be possible for a stockholder . . . to take no hand in the company’s affairs. But
obviously he would be more likely to observe the business with an intelligent eye.”).
At this point, my inquiry could be at “its end.” Beach, 508 U.S. at 314; Hancock Indus.,
811 F.2d at 237. I will nevertheless explain why Plaintiffs’ arguments fall under their own weight.
In general, Plaintiffs do not “apply anything resembling rational basis review,” but something far
more searching. Trump, 138 S. Ct. at 2421. Plaintiffs begin by poking holes in the “license lending”
statistics on which Defendants rely. See, e.g., Pl. Rep. Br., at 4-5. Whatever the merits of their
critique, under rational basis review, I must take Defendants’ factual assumptions at face value,

not scrutinize their data to determine whether it really warrants a policy change or actually
supports the inference that stock ownership will reduce complaints about HVACR contractors.
See, e.g., Alexander v. Whitman, 114 F.3d 1392, 1406 (3d Cir. 1997) (holding that the only
permitted inquiry “is whether the legislature rationally might have believed that the predicted
reaction would occur or that the desired end would be served”). “A State [] has no obligation to
produce evidence to sustain the rationality of a statutory classification” anyway, Heller, 509 U.S.
at 320, and the relevant question where such evidence exists is not whether the “disputed [ ] fact
is more likely than not to be true,” as Plaintiffs wish, but whether it could “reasonably be conceived
to be true by the governmental decisionmaker.” Vance, 440 U.S. at 99.
Plaintiffs next argue that the procedures to become a “licensed Master” guarantee the same
level of consumer protection as the ownership requirement, making it redundant. See Pl. Br., at 19.
Similarly, Plaintiffs argue that New Jersey already imposes personal liability on “licensed
Masters,” see N.J.S.A. § 13:32A-5.3(a)(4), which achieves the same goal as the ownership
requirement: a strong financial incentive to do good work. Pl. Br., at 19-20. Even if Plaintiffs are

correct that the ownership requirement imposes an unnecessary barrier to entry without a
corresponding public benefit, that does not suffice under rational basis review. A legislative action
is not irrational simply because legislators take a “belt and suspenders” approach to a perceived
problem. See, e.g., Luft v. Evers, 963 F.3d 665, 677 (7th Cir. 2020) (“[A statute does not lack a
rational basis], as the district judge believed, because redundant requirements in statutes—such as
current ID + proof of enrollment—are invariably irrational. Many a lawyer prefers a belt-and-
suspenders approach.”); United States v. Carona, 660 F.3d 360, 368-69 (9th Cir. 2011) (“That
some wear a belt and suspenders does not prove the inadequacy of either to hold up the pants, but
only the cautious nature of the person wearing the pants.”) (citation omitted); Pena v. Lindley, 898

F.3d 969, 981 (9th Cir. 2018) (calling this “just good, old-fashioned common sense”). The same
is true for Plaintiffs’ contention that the ownership requirement produces “job disenfranchisement”
for bona fide representatives who have acted as agents for HVACR contractors for years without
incident. See Pl. Br., at 22. That may indicate an “unwise” policy but certainly not irrationality
through the lens of the Equal Protection Clause. The problem is, “[w]hile different [ ] requirements
might also further [the State’s] valid goals, it is for the legislature, not the courts, to balance the
advantages and disadvantages.” Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 487 (1955).
A state law may even “exact a needless, wasteful requirement,” as Plaintiffs allege here, without
violating rational basis. Id.
Plaintiffs next argue that Defendants in fact designed the ownership requirement to protect
“mom and pop” HVACR contractors and punish “big box stores.” See Pl. Br., at 18. This also does
not suffice to strike down the statute. As a rule, “the court has no occasion to inquire into the
subjective motives of the decisionmakers.” Hancock Indus., 811 F.2d at 237-38. “The court will
only inquire deeper where circumstances suggest that the legislators could not possibly have been

motivated by the proffered purpose.” Associated Builders & Contractors, E. Pennsylvania
Chapter, Inc. v. Cty. of Northampton, 376 F. Supp. 3d 476, 498 (E.D. Pa. 2019), aff’d sub nom.,
808 Fed. App’x. 86 (3d Cir. 2020). The Supreme Court has overturned statutes before on this basis,
if there are clear discrepancies between the face of the legislative history and the government’s
litigation position. See, e.g., Clover Leaf, 449 U.S. at 463 n.7; Moreno, 413 U.S. at 536;
Weinberger v. Wiesenfeld, 420 U.S. 636, 648 n.16 (1975); Jimenez v. Weinberger, 417 U.S. 628,
634 (1974); Eisenstadt v. Baird, 405 U.S. 438, 449 (1972).
Plaintiffs here do not point to any circumstances that “force” me to doubt Defendants’
stated interests in this litigation. Clover Leaf, 449 U.S. at 463. First, Governor Murphy’s signing

statement in which he emphasized a “nexus” between bona fide representatives and New Jersey
so as to enhance responsiveness and accessibility is not a stand-in for legislative intent. See Gibson
v. Superintendent of New Jersey Dep’t of L. & Pub. Safety-Div. of State Police, No. 02-5470, 2009
WL 900854, at *4 (D.N.J. Mar. 31, 2009) (“[S]igning statements need not be afforded significant
weight in an analysis of legislative history.”). Even if I took the Governor’s statement to reflect
the Legislature’s intentions, and considered it on this motion to that extent, its substance arguably
supports, rather than belies, Defendants’ litigation position, which by definition means that the
License Law survives rational basis review. Accord Vance, 440 U.S. at 112 (“[T]he very fact that
[facts] are ‘arguable’ is sufficient, on rational-basis review, to ‘immuniz[e]’ the [legislative] choice
from constitutional challenge.”); Hancock Indus., 811 F.2d at 238 (“[I]t is not enough for one
challenging a statute on equal protection grounds to introduce evidence tending to support a
conclusion contrary to that reached by the legislature.”). The same is true of Maloney’s testimony
before the Assembly Regulated Professions Committee in which he stated that the ownership
requirement would bring “accountability” to bona fide representatives, prevent HVACR

contractors from changing their “licensed Masters” “like . . . their shirts,” discourage “big box
stores” from simply “solicit[ing] anyone who is licensed,” which would hurt “mom and pops,” and
ensure “licensed Masters” are “responsible for the company’s actions.” Pl. SUMF, ¶ 61. Not only
is it speculative to attribute committee testimony from a witness to the Legislature on the whole,
but the substance of Maloney’s statements can be squared with Defendants’ litigation position.
Third, even if I granted interpretive weight to both the Governor’s and Maloney’s
comments, assumed further that they contradict Defendants’ stated interests, and accepted that
they constitute the Legislature’s real goals, Plaintiffs would still fail to sustain their burden. Under
rational basis review, it is not enough to point to another potential reason for a law. Plaintiffs must

show that Defendants’ purported reason is “not even a conceivable basis.” Associated Builders,
375 F. Supp. 3d at 496. The fact that Defendants were possibly motivated by other factors does
not establish that Defendants’ alleged purposes are inconceivable.
Additionally, Plaintiffs argue that Defendants have not sustained their burden of proof,
stating repeatedly that Defendants “completely failed to show how a 1% ownership requirement
will protect the public health, welfare, and safety.” Pl. Br., at 19. But Plaintiffs are mistaken as to
which party bears the burden on rational basis review. Defendants need not explain to the Court
why their ownership requirement passes constitutional muster. Plaintiffs must explain why it does
not. See, e.g., Archer v. York City Sch. Dist., 227 F. Supp. 3d 361, 377 (M.D. Pa. 2016), aff’d, 710
Fed. App’x. 94 (3d Cir. 2017) (“Plaintiffs’ evidence must indicate that Defendants’ actions were
not rationally related to any legitimate government purpose.”); Montanye v. Wissahickon Sch.
Dist., 327 F. Supp. 2d 510, 520 (E.D. Pa. 2004) (“[Plaintiffs] will have to offer an ascending
quantum of proof [at summary judgment] that defendants’ actions were not rationally related to a
legitimate government purpose.”).

Plaintiffs’ remaining arguments are all equally unconvincing. They stress that “[t]here is
nothing in the Legislative history” to support Defendants’ contentions. See Pl. Br., at 20. But the
absence of evidence or legislative facts has “no significance.” Beach, 508 U.S. at 315. Neither
must a legislature ever “actually articulate . . . the purpose . . . supporting its classification.”
Nordlinger, 505 U.S. at 15; Fritz, 449 U.S. at 179. Plaintiffs also appear to argue that the ownership
requirement is irrational because it disproportionately harms them compared to other “licensed
Masters” who can afford to buy into an HVACR contractor. See Pl. Br., at 22. Short of membership
in a protected class, however, “mere disparate impact is insufficient to make out a claim” under
the Equal Protection Clause. See, e.g., In re Am. Family Enters., 256 B.R. 377, 426 (D.N.J. 2000)

(“Even assuming, arguendo, that the $ 40 threshold has a disparate impact on lower income Class
Members, it would not constitute a denial of equal protection, as the threshold has a rational
basis.”) (citing Black v. Sec’y of Health & Hum. Servs., 93 F.3d 781, 787-89 (Fed. Cir. 1996)).
Absent a protected characteristic, or a bare desire to harm certain people who are already politically
vulnerable, courts will uphold government action “even if the law seems unwise or works to the
disadvantage of a particular group, or if the rationale for it seems tenuous.” Romer, 517 U.S. at
632 (citations omitted).
Further, Plaintiffs argue that I should infer that the ownership requirement is irrational
based on the exceptions for publicly traded companies and companies whose primary business is
not HVACR work. See Pl. Br., at 21. According to Plaintiffs, “[i]f the new definition of bona fide
representative was changed to truly protect the health, safety and welfare of the public then, if
anything, it should not have excluded individuals whose primary business is not HVACR work
and [who are] therefore less experienced.” Id. Plaintiffs’ position lacks merit: the exceptions are
not extensive enough to raise an inference of irrationality, or to suggest that Defendants’ stated

interests cannot conceivably be the Legislature’s real ones. Accord Eisenstadt, 405 U.S. at 449
(holding that a Massachusetts statute limiting access to contraceptives to married couples was “so
riddled with exceptions that [the purported purpose of] deterrence of premarital sex [could not]
reasonably be regarded as its aim”). Defendants have also represented that “[p]ublicly traded
corporations are answerable to stockholders, thereby providing the economic incentive necessary
to ensure the HVACR work is performed consistent with the public health, safety and welfare,”
which is a conceivable basis for the statute’s exception. Def. Br., at 15. That theory cannot be
tested on rational basis review.
Plaintiffs contend that, in any event, the ownership requirement does not have a rational

basis because, of the 209 professions in New Jersey, 205 do not require licensed persons to own
stock. Whether or not that makes perfect sense, the point is that a court cannot throw out lines a
legislature draws merely because a plaintiff disagrees (as a matter of social policy or economics)
with where the line falls. See Fritz, 449 U.S. at 179 (holding that restraints on judicial review have
added force “where the legislature must necessarily engage in a process of line-drawing”); Beach,
508 U.S. at 315 (“Defining the class of persons subject to a regulatory requirement . . . inevitably
requires that some persons who have an almost equally strong claim to favored treatment be placed
on different sides of the line, and the fact [that] the line might have been drawn differently at some
points is a matter for legislative, rather than judicial, consideration.”) (quotations and citation
omitted); Williamson, 348 U.S. at 489 (“The problem of legislative classification is a perennial
one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions
and proportions, requiring different remedies. Or so the legislature may think. Or the reform may
take one step at a time, addressing itself to the phase of the problem which seems most acute to
the legislative mind. The legislature may select one phase of one field and apply a remedy there,

neglecting the others.”).3
Finally, according to Plaintiffs, the ownership requirement is irrational because no other
state treats “licensed HVACR Masters” that way. What Plaintiffs suggest here is that
“[d]iscriminations of an unusual character especially suggest careful consideration to determine
whether they are obnoxious to the constitutional provision.” Louisville Gas & Elec. Co. v.
Coleman, 277 U.S. 32, 37-38 (1928); Romer, 517 U.S. at 633. Even if New Jersey is an outlier in
the sense Plaintiffs describe, rational basis review does not demand uniform laws across states.
That New Jersey is the only state to impose an ownership requirement in its HVACR licensure
scheme does not ipso facto give rise to a violation.

In all, without expressing any view on the soundness of the ownership requirement for
bona fide representatives, Defendants have set forth a sufficient justification to survive rational
basis review. I simply cannot “judge the wisdom or desirability of legislative policy determinations
made in areas that neither affect fundamental rights nor proceed along suspect lines; in the local

3 I also note that rational basis does not require a legislature to draw perfect lines. See,
e.g., Schumacher v. Nix, 965 F.2d 1262, 1273 (3d Cir. 1992) (“And at least under rational basis review, it
is clear that states may draw classifications with substantially less than mathematical exactitude, even
though, in practice, such classifications result in some inequality.”) (quoting Dandridge v. Williams, 397
U.S. 471, 485 (1970)); Metropolis Theater, 228 U.S. at 69-70 (“To be able to find fault with a law is not to
demonstrate its invalidity. It may seem unjust and oppressive, yet be free from judicial interference.”). The
broad deference that rational basis review provides “recogni[zes] that the process of democratic political
decisionmaking often entails the accommodation of competing interests, and thus necessarily produces laws
that burden some groups and not others.” Rogin v. Bensalem Twp., 616 F.2d 680, 687 (3d Cir. 1980).
economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot
stand consistently with the Fourteenth Amendm[en]t.” Dukes, 427 U.S. at 303 (citations omitted).
Plaintiffs, in turn, cannot prevail by suggesting that they could write a superior piece of legislation,
as “the Constitution does not require the [government] to draw the perfect line nor even to draw a
line superior to some other line it might have drawn. It requires only that the line actually drawn

be a rational line.” Armour v. Indianapolis, 566 U.S. 579, 685 (2012). Contrary to Plaintiffs’
assertions, even if there is ample reason to believe that the Legislature’s judgment in passing the
ownership requirement is incorrect, their claim still fails, because the requirement is not “truly
arbitrary.” Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 613 (2008) (Stevens, J., dissenting)
(“[T]he Equal Protection Clause proscribes arbitrary decisions—decisions unsupported by any
rational basis—not unwise ones. Accordingly, a discretionary decision with any ‘reasonably
conceivable’ rational justification will not support an equal protection claim; only a truly arbitrary
one will.”). Certainly, it is not “a classification of persons undertaken for its own sake, something
the Equal Protection Clause does not permit.” Romer, 517 U.S. at 635.

B. Substantive Due Process Claim
Plaintiffs claim that the ownership requirement also violates the Due Process Clause. The
Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property,
without due process of law.” U.S. CONST. AMEND. XIV. A statute violates due process if it infringes
on “a fundamental right comprised within the term liberty,” in which case strict scrutiny applies,
or has no rational basis. Sammon v. N.J. Bd. of Med. Exam’rs, 66 F.3d 639, 645 (3d Cir. 1995);
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846-47 (1992) (“The choice of a standard
of review . . . turns on whether a ‘fundamental right’ is implicated.”). Turning to the License Law
at issue, “it is important to focus on what it does and does not do.” Sammon, 66 F.3d at 644. The
law does not prohibit “licensed Masters” from performing HVACR work, but merely regulates the
circumstances under which they may act as bona fide representatives for HVACR contractors.
Such (rather minimal) “restrictions on the right to practice [in] a profession receive rational basis
review rather than higher scrutiny.” Id. at 646 (collecting cases); B&G Constr. Co., Inc. V. Dir.,
OWCP, 662 F.3d 233 (3d Cir. 2011) (“[I]n order to prove that a statute adjusting the burdens and
benefits of economic life violates substantive due process, [a challenger] must show that [the

legislature] acted in an arbitrary and irrational way by enacting the legislation.”); see also
Ferguson v. Skrupa, 372 U.S. 726, 730-31 (1963) (“Legislative bodies have broad scope to
experiment with economic problems.”). In any event, although Plaintiffs vaguely gesture at a
fundamental right to engage in “the common occupations of life,” they do not substantively dispute
that rational basis review governs their due process challenge.
As in the equal protection context, where rational basis review is appropriate, a statute
complies with the Due Process Clause if “(1) there is a legitimate state interest that (2) could be
rationally furthered by the statute.” N.J. Retail Merch. Ass’n v. Sidamon-Eristoff, 669 F.3d 374,
398 (3d Cir. 2012). Due process differs from equal protection only in that “the focus of due process

analysis is not whether the [defendant] has irrationally distinguished between similarly situated
classes, but whether it was irrational for the [defendant] to have passed the law at all and to have
applied it to [the plaintiff].” Rogin, 616 F.2d at 689; Associated Builders, 376 F. Supp. 3d at 513.
The analysis is otherwise identical. See Sammon, 66 F.3d at 646-47 (describing similarities).
Accordingly, based on the foregoing analysis, Plaintiffs’ Due Process claim fails for the same
reasons as their Equal Protection claim.
C. Privileges and Immunities Claim
Next, Plaintiffs claim that the ownership requirement violates the Privileges and
Immunities Clause. See Pl. Br., at 27. The Fourteenth Amendment provides that “[n]o State shall
make or enforce any law which shall abridge the privileges and immunities of citizens of the
United States.” U.S. CONST. AMEND. XIV. Citing Supreme Court of New Hampshire v. Piper, 470
U.S. 274 (1985), and Tetra Techs., Inc. v. Harter, 823 F. Supp. 1116, 1124 (S.D.N.Y. 1993),
Plaintiffs insist that they have “the right to engage in legitimate professional activity throughout
the United States without geographical restrictions.” Pl. Br., at 27-28. And, because no other state
apparently requires a “licensed Master” to own any amount of stock to register as a bona fide

representative for an HVACR contractor, they conclude that New Jersey’s License Law is
unconstitutional.
Assuming for the purposes of this motion that HVACR services “bear[] on the vitality of
the Nation as a single entity,” Baldwin v. Montana Fish & Game Comm’n, 436 U.S. 371, 383
(1978), such that the Privileges and Immunities Clause applies, Plaintiffs’ position is erroneous.
“[L]ike many other constitutional provisions, the Privileges and Immunities Clause is not an
absolute.” Toomer v. Witsell, 334 U.S. 385, 396 (1948) (“States should have considerable leeway
in analyzing local evils prescribing appropriate cures.”). “If a state statute or regulation imposes
identical requirements on residents and nonresidents alike and it has no discriminatory effect on

nonresidents, it does not violate the Privileges and Immunities Clause.” Lutz v. City of York,
Pa., 899 F.2d 255, 263 (3d Cir. 1990); Tolchin v. Supreme Ct. of the State of N.J., 111 F.3d 1099,
1111 (3d Cir. 1997). Even where a statute discriminates along these lines, it is valid if “(i) there is
a substantial reason for the difference in treatment; and (ii) the discrimination practiced against
nonresidents bears a substantial relationship to the State’s objective.” Piper, 470 U.S. at 284.
Here, both resident and nonresident “licensed Masters” seeking to “practice their
occupation within the State of New Jersey,” Pl. Br., at 27, must comply with New Jersey’s
ownership requirement if they wish to register as a bona fide representative for an HVACR
contractor. N.J.S.A. § 45:16A-2 draws no distinctions otherwise, and imposes no special burden
on out-of-state persons who work as “licensed Masters” in New Jersey, not even incidental ones.4
See Tolchin, 111 F.3d at 1111–12 (“[W]e must distinguish between incidental discrimination
against nonresidents and discrimination that imposes too heavy a burden.”). Plaintiffs err because
they assert—without ever demonstrating—that a mere difference in legal regime, compared to
other states, constitutes a difference in treatment for out-of-staters. Far from that, under the

Privileges and Immunities Clause, whatever requirements a state chooses to impose on its own
citizens, it must impose them on out-of-state citizens too, and vice versa, unless there is a
“substantial reason” for differential treatment that bears a “substantial relationship” to a state
“objective.” Piper, 470 U.S. at 284. What is more, to the extent that Plaintiffs challenge the
ownership requirement as to HVACR contractors such as MMC—which, as a Missouri
corporation, “can [allegedly] operate in every State except New Jersey” unless it gives its New
Jersey bona fide representatives 1% in stock, see Pl. Br., at 27—“the Privileges and Immunities
Clause has been interpreted not to protect corporations.” Tennessee Wine and Spirits Retailers
Ass’n v. Thomas, 139 S. Ct. 2449, 2460-61 (2019); Western & Southern Life Ins. Co. v. State Bd.

of Equalization of Cal., 451 U.S. 648, 656 (1981); Hemphill v. Orloff, 277 U.S. 537, 548-50 (1928).
For these reasons, there is no Privileges and Immunities Clause violation at hand here.
D. Commerce Clause Claim
Finally, Plaintiffs claim that the ownership requirement violates the Commerce Clause.
The Constitution provides that “Congress shall have Power . . . to regulate Commerce . . . among
the several States.” U.S. CONST. ART. I, § 8. Although framed as a positive grant of Congressional
power, Article I also contains “an implied limitation on the power of the States to interfere with or
impose burdens on interstate commerce,” often called the “dormant” Commerce Clause. Western

4 It also does not appear that New Jersey permits only residents to become “licensed Masters” in the
state. See generally N.J.S.A. 45:16A-1, et seq.
& Southern Life, 451 U.S. at 652. The dormant Commerce Clause “prohibits economic
protectionism—that is, regulatory measures designed to benefit in-state economic interests by
burdening out-of-state competitors.” New Energy Co. of Indiana v. Limbach, 486 U.S. 269, 273
(1988); Tennessee Wine, 139 S. Ct. at 2459.
To determine whether a statute violates the dormant Commerce Clause, courts first ask

“whether heightened scrutiny applies, and, if not, then . . . whether the law is invalid under the
Pike v. Bruce Church, Inc., 370 U.S. 139 (1970), balancing test.” American Express, 669 F.3d at
373. Heightened scrutiny is appropriate where a law “directly regulates or discriminates against
interstate commerce.” C&A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 390 (1994). In
such a case, the state bears the burden of proof, and a court may strike down the law without further
inquiry. See Brown-Forman Distillers Corp. v. New York Liquor Auth., 476 U.S. 573, 578-79
(1986); Maine v. Taylor, 477 U.S. 131 (1986). On the other hand, under Pike, “[w]here the statute
regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate
commerce are only incidental, it will be upheld unless the burden imposed on such commerce is

clearly excessive in relation to the putative local benefits.” 397 U.S. at 142 (citation omitted).
Because in purpose and effect the License Law treats all HVACR contractors doing work in New
Jersey the same, whether they are based in-state or out-of-state, I apply Pike. Accord Heffner v.
Murphy, 745 F.3d 56, 74 (3d Cir. 2014) (“[W]e cannot agree that the [ ] ownership provisions
‘erect a barrier’ protecting in-state interests from out-of-state competition that would trigger
heightened scrutiny.”). Plaintiffs devote much of their briefs to explaining what the heightened
standard of review is, see Pl. Opp., at 14-17, but they never argue why it should apply in this case.
Plaintiffs instead repeat their contention that the requirement does not sufficiently further “local
interests,” id. at 18-19, and rely on cases where courts balance “local need[s]” against the impact
of “seemingly neutral requirement[s],” which is Pike in so many words. See id. at 16-17 (quoting
Tetra Tech., 823 F. Supp. at 1123-24, for how to analyze situations where “no discrimination is
involved”).
The ownership requirement here survives Pike scrutiny. While there is perhaps an
incidental burden on Plaintiffs’ particular form of commerce—in that an HVACR contractor must

give up a portion of the company to a “licensed Master” to do business in New Jersey, and a
“licensed Master” who cannot become a part-owner will not be a bona fide representative, losing
whatever the ensuing benefits are—that quite simply “creates no incidental burdens on interstate
commerce.” Instructional Sys., Inc. v. Computer Curriculum Corp., 35 F.3d 813, 827 (3d Cir.
1994) (emphasis added). Even if it did, the burden would not be “clearly excessive” under Pike:
1% is a relatively small fraction of ownership, HVACR contractors may otherwise utilize local
“Licensed Masters” the same as before, and “Licensed Masters” may continue to work in New
Jersey (and elsewhere) without issue.
Plaintiffs’ arguments to the contrary do not carry water. At bottom, they disagree with the

way in which New Jersey law now requires HVACR contractors to operate. But the Commerce
Clause does not protect Plaintiffs’ preferred business arrangement. See, e.g., Exxon Corp. v.
Governor of Md., 437 U.S. 117, 127-28 (1978) (rejecting “[the] notion that the Commerce Clause
protects the particular structure or methods of operation in a [ ] market . . . . [T]he Clause protects
the interstate market.”); McBurney v. Young, 667 F.3d 454, 469 (4th Cir. 2012)
(rejecting dormant Commerce Clause challenge where state law “prevent[ed] [plaintiff] from
using his ‘chosen way of doing business,’ but [did] not prevent him from engaging in business in
the [State]”); Heffner, 745 F.3d at 76 (same). Plaintiffs likewise do not like that the License Law
may end up favoring some “mom and pops” over “big box stores.” Yet, again, while that may
burden Plaintiffs’ current or desired business practices, the Commerce Clause does not protect
“particular interstate firms . . . from prohibitive or burdensome regulations.” Exxon, 437 U.S. at
128 (citing Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 806 (1976)).
Similar to the Privileges and Immunities Clause, the dormant Commerce Clause is not a
mandate for uniform national policies, just non-discriminatory state policies, and the inquiry ends

once it is clear that no such discrimination exists. See, e.g., Tennessee Wine, 139 S. Ct. at 2460
(describing the importance of “removing state trade barriers”); Granholm v. Heald, 544 U.S. 460,
472 (2005) (“The mere fact of nonresidence should not foreclose a producer in one State from
access to markets in other States.”); Hughes v. Oklahoma, 441 U.S. 322, 325-326 (1979)
(describing how the dormant Commerce Clause helps “avoid the tendencies toward economic
Balkanization that had plagued relations among the Colonies and later among the States under the
Articles of Confederation”); Dean Milk Co. v. Madison, 340 U.S. 349, 356 (1951) (cautioning
against low-level trade wars, which “invite a multiplication of preferential trade areas destructive
of the very purpose of the Commerce Clause”). Plaintiffs’ dormant Commerce Clause claim fails

for these reasons.
IV. CONCLUSION
Plaintiffs’ Equal Protection claim fails because New Jersey’s 1% ownership requirement
for bona fide representatives has a rational basis. Plaintiffs’ Due Process claim fails for the same
reason. Plaintiffs’ Privileges and Immunities claim and dormant Commerce Clause claim fail
because the ownership requirement neither discriminates against out-of-state HVACR contractors
or “Licensed Masters,” nor imposes more than an incidental burden on interstate commerce. I
GRANT Defendants’ Motion for Summary Judgment, DENY Plaintiffs’ cross-Motion, and
DISMISS all claims.
DATED: May 28, 2021 /s/ Freda L. Wolfson
Hon. Freda L. Wolfson
U.S. Chief District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10270707. Public record. Not legal advice.