Motion to Dismiss or Affirm — United Building & Constr. Trades Council of Camden Cty. v. Mayor and Council of Camden

No. 81-2110

N THE

Supreme Court of the United States

October Term, 1941

UNITED BUILDING AND CONSTRUCTION TRADES

COUNCIL OF CAMDEN COUNTY AND VICINITY,

Petitioner,

’

MAYOR and COUNCIL OF THE CITY OF CAMDEN and

THE DEPAKIMENT OF THE TREASURY OF THE

STATE OF NEW JERSEY

Responde nits,

On Appeal From the Supreme Court of New Jersey

BRIEF IN OPPOSITION

see +e, .

Citv Attorne

(jy# -s ‘fe

f

Attorney for Respondents

international Printing Go., 711 So. Gem St, Pile. Pa. 19°48 — Tel. (216) 727-4711

QUESTION PRESENTED

Whether a municipal affirmative action ordinance,

which requires, in part, that 40% of the workers in public

works construction contracts be city residents, is designed

to alleviate the social and economic hardships of the

citizens of the municipality, and does not bar employment

opportunities for residents of neighboring states, violates

the Commerce, Privileges and Immunities, or Equal Pro-

tection Clauses of the U. S. Constitution.

(i)

TABLE OF CONTENTS

DD scccdovcvceseccccaseseesevenssapestaneteute

CONSTITUTIONAL Provisions, ORDINANCE AND STATUTE

Te ee

rs PD cnc us d0cveces cosebdvscenenoebenee

Be ED GD ccccccececccosesencsconoseends

I. The New Jersey Supreme Court Correctly Held That

the Camden Ordinance Is Immune From Privileges

aod Immunities Clause Analysis Since the Ordinar~«

Affects More In-State Residents Than Out-of-State

PEED Secctcdvceccséxentseebnsiogseaeuadaual

Il. The Camden Ordinance Does Not Violate the Com-

PD ss cccecdebs 60eedensssauannneel

A. The New Jersey Supreme Court Correctly Viewed

the City as a Market Participant and the Ordi-

nance Is Therefore Immune From Commerce

GED GRD cccvecccccescscvosentessease

B. The Court's Denial of Certiorari in the Present

Case Will Not Conflict With the Court's Grant

of Certiorari in Mass. Council of Construction

Employers, inc. v. Mayor of Boston Since the

Facts Surrounding the Boston Executive Order

oonwo od 8D WwW

Ss

TABLE OF CONTENTS (Continued)

Page

III. The New Jersey Supreme Court Correctly Held That

the Camden Residency Requirement Does Not Vio-

late the Equal Protection Clause Since It Does Not

Impermissibly Burden the Right to Interstate Travel 21

ER eS SR Ee eS DN angie EE 25

(iii)

TABLE OF AUTHORITIES CITED

Cases: Page

Allied Stores of Ohio v. Bowers, 358 U. S. 522 (1959) ...... 21

American Yearbook Co. v. Askew, 339 F. Supp. 719 (M. D.

Fla.), aff d. mem., 409 U. S. 904 (1972) ..........005.. 16

Brown v. Anderson, 202 F. Supp. 96 (D. Alaska 1962) ..... 14

City of Camden v. Skokowski, 5S N. J. 304, 441 A. 2d 741

PE wich ldilwubdied then <imnakedvadeemeekenemess <a 23

Commonwealth v. Snyder, 152 Pa. St. 630, 38 Atl. 356 (1897) 13

Construction and General Laborers Union Local 563 v. City

of St. Paul, 270 Minn. 427, 134 N. W. 2d 26 (1965) .... 13

District No. 1 Pacific Coast District, M. E. B. A. v. Ward, 505

Pe See GE CU. BR Wee. BEGR) ccccsccccecccccvecen l4

Dunn v. Blumstein, 405 U. S. 330 (1972) ................. 22, 23

Edwards v. California, 314 U. S. 160 (1941) .............. 24

Edwards v. Leaver, 102 F. Supp. 698 (D. R. I. 1952) ...... 14

Erznoznick v. City of Jacksonville, 422 U. S. 205 (1975) .... 2

Exxon Corp. v. Governor of Maryland, 437 U. S. 117 (1978) .17, 18

Gordon v. Committee on Character and Fitness, 48 N. Y. 2d

266, 397 N. E. 2d 1309, 422 N. Y. S. 2d 641 (1979) ..... 14

Gospodnovich v” Clements, 108 F. Supp. 234 (E. D. La.

1951), app. dismissed, 344 U. S. 911 (1953) ........... 14

Graffty v. City of Rushville. 107 Ind. 502, § N. E. 609 (1886) 13

Hicklin v. Orbeck, 437 U. S. 518 (1978) ............. 9, 12, 14, 15

H. P. Hood & Sons, Inc. v. DuMond, 336 U. S. 525 (1949) .._ 10

Hughes v. Alexandria Scrap, Inc., 426 U. S. 794 (1976)

10, 15, 16, 17, 18

Jones v. Helms, 452 U. S. 412 (1961) .................05. 22

Kahn v. Shevin, 416 U. S. 351 (1974) ................000- 23

K. S. B. Tech. Sales Curp. v. North Jersey District Water

Supply, 75 N. J. 272, 381 A. 2d 774 (1977) ............ 10

Massachusetts Board of Retirement v. Murgia, 427 U. S. 307

SEE. 6ie dedsehouseteescucsenhneccdneencaeseusmetn ll

TABLE OF AUTHORITIES CITED (Continued)

Cases (Continued): Page

Mass. Council of Construction Employers, Inc. v. Mayor of

Boston, — Mass. —, 425 N. E. 2d 6 (1951), cert.

granted sub nom. White v. Mass. Council of Construci >:

Emp’ ‘ees, — U. S. —, 102 S. Ct. 1273 (No. 81-1003,

EEE ee are ee nee De Pye pr 10, 13, 18, 19, 21

McCarthy v. Philadelphia Civil Service Commission, 424 U. S.

ED <0 ivi cedandevecatadekacdesinwkaleuenaes 11, 21

Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974)

22, 23

Mullaney v. Anderson, 342 U. S. 415 (1952) .............. 14

Neshaminy Constructors, Inc. v. Krause, 151 N. J. Super. 367,

Gr AB. BS TED (CA. Boe. BOGR) ......cccccsccscccccces 14

Paul v. Virginia, 75 U. S. (8 Wall.) 165 (1869) ............ 12

Perkins v. Lukens Steel Co., 310 U. S. 113 (1940) .......... 16

Philadelphia v. New Jersey, 437 U. S. 617 (1978) .......... 18

Reeves, Inc. v. Stake, 447 U. S. 429 (1980) ....... 10, 16, 17, 19, 20

Salla v. County of Monroe, 48 N. Y. 2d 514, 399 N. E. 2d 909,

423 N. Y. S. 2d 878 (1979), cert. denied sub nom. Abrams

m1 Belin, GORD. B GED CIEBB) nn oc cccccvccccsccsconss 14

Shapiro v. Thompson, 394 U. S. 615 (1969) ......... 11, 21, 22, 23

Sheley v. Alaska Bar Association, 620 P. 2d 640 (Alaska 1980) 14

Sosna v. Iowa, 419 U. S. 393 (1975) ......... cece ecenes 22, 23

Stallard v. South Dakota Board of Bar Examiners, 530 F.

Supp. 155 (D. S. D. 1088) ........ceccecececccccees 14

State v. Mercer, 132 Md. 263, 103 Atl. 570 (1918) ......... 13

State v. Nolan, 108 Minn. 170, 122 N. W. 255 (1909) ...... 13

Strauss v. Alabama State Bar, 520 F. Supp. 173 (N. D. Ala.

DE disc educueweshe ibe bebes cspenesekeseuueemeen 14

Toomer v. Witsell, 334 U. S. 385 (1948) ........ 0. cece eee 14

Ward Baking Co. v. City of Fernandina, 29 F. 2d 789 (S. D.

ME cctaponcceccccsceccnccccosevecseeuanennee 13

Ward v. Maryland, 79 U. S. (12 Wall.) 418 (1871) ........ 14

(v)

TABLE OF AUTHORITIES CITED (Continued)

Statutes and Rules: Page

U. S. Supreme Court Rule 17, 28 U.§.C. A. .............. 113

i ee , ov acd. dedce¥ bu ovens pavucuuauiel 2

IED 6.550 cn cscs wn cale co dnceusndiawen §

ED cicks cclobssdbetdnd andes iecmbetamadeas 5

See ee IED cv cccincvecucesoccouends Guueuaees 5,8

ES 5 ene ane anaes Ay. 5

=n a's wa uc wee ies euiecmadwend einen 5

United States Constitution:

INTE Ie au vodncdascceunéunmanecacsaml 3, 9, 18

ENG dis vonewcusesesacétcéwsciue 3,19

Fourteenth Amendment ............................. 3, 22

(vi)

No. $1-2110

Supreme Court of the United States

Ocrozex Term, 1%]!

UNITED BUILDING and CONSTRUCTION TRADES

COUNCIL OF CAMDEN COUNTY and VICINITY,

Petitioner,

v.

MAYOR and COUNCIL O” THE CITY OF CAMDEN

and THE DEPARTMENT OF THE TREASURY

OF THE STATE OF NEW JERSEY.

Respondents.

Ow Appeal From THe Supreme Court or New Jersey

BRIEF IN OPPOSITION

Petitioner brought this action to appeal that portion

of the final judgment of the Supreme Court of New Jersey,

dated February 15, 1982, upholding the validity, under

the United States Constitution, of 2 municipal ordinance

passed by the City of Camden, and approved by the

State of New Jersey, which requires that at least 40 per-

cent of the employees hired by private contractors en-

gaged in public works construction projects for the City

be municipal residents for one year prior to employment.

This Brief in Opposition is submitted to demonstrate that

the New Jersey Supreme Court correctly interpreted the

United States Supreme Court's prior decisions in uphold-

ing the validity of this ordinance and that the Petitioner

has failed to show a sufficient basis, as indicated in U. S.

Sup. Ct. Ruie 17, 285 U. S. C. A., for this Court to review

the lower court’s decision.

(1)

2 Brief in Opposition

OPINION BELOW

The opinion of the Supreme Court of New Jersey,

dated February 1%, 1952 is reported at 88 N. J. 317

(1982), and is reproduced in the Petitioner's Jurisdictional

Statement as Appendix A.

JURISDICTION

The judgment of the Supreme Court of New Jersey

was entered on February 15, 1942. Petitioner's Notice of

Appeal and Jurisdictional Statement was filed within 90

days of that date. Petitioner invokes this Court's juris-

diction under 28 U. S. C. 4 1257/2). See, Erznoznik v.

City of Jacksonville, 422 U.S. 205, 207 n. 3 (1975).

Brief in Opposition 3

CONSTITUTIONAL PROVISIONS, ORDINANCE

AND STATUTE INVOLVED

United States Constitution, Article IV, § 2, Cl. 1:

“The citizens of each State shall be entitled to

al] the Privileges and Immunities of Citizens in

the several States.”

United States Constitution, Article I, 4 8, Cl. 3:

“The Congress shall have Power... to regulate

Commerce .. . among the several States...”

United States Constitution, Fourteenth Amendment,

$1:

i

“No State shall .. . deny to any person within

its jurisdiction the equal protection of the laws.”

The Ordinance of the City of Carden at issue is set

forth in its entirety as Appendix C in the Petitioner's Juris-

dictional Statement. In relevant part, it states:

“Wuereas, the City Council of the City of Camden

recognizes its lega! and moral obligation to promote

and preserve the economic well-being of all citizens

of the City of Carden; and

Wuereas, the City Council of the City of Camden

in viewing the present economic conditions which

confront minority citizens within the City of Camden

and said minority citizens make up a significant por-

tion of the population of the City of Camden; and

Wuereas, the present economic conditions nation-

wide do affect, in an adverse fashion, the economic

well-being and status of minority citizens of the City

of Camden in such a way as to elevate the amount

of unemployment within the City of Camden above |

the levels that exist County-wide and State-wide; and

Wuereas, the City Council of the City of Camden

has been informed that unemployment State-wide is

4 Brief in Opposition

8.1% and County-wide is 7.6%. The unemployment

figures for the City of Camden, as given to the City

Council by the Department of Labor of the United

States, are 11.5%. However, at the last figures re-

corded by the State of New Jersey Department of

Labor Affirmative Action Office, unemployment

among Black Americans was 15.4% and unemployment

among Hispanic-Americans was 15.6%. The latter

figures as to Black and Hispanic unemployment were

as of the end of 1977 and the Department of Labor

has informed the City Council of the City of Carden

that these particular figures have increased signif-

icantly making the problem of unemployment even

more grave, than that which existed when the figures

were compiled; and

Wuereas, the City Council of the City of Camden,

by the adoption of an Affirmative Action Program,

seeks to relieve the problem of unemployment among

its residents and citizens and seeks to promote the

growth of minority involvement in construction and

obtaining contracts for minority-owned businesses;

and

Wuenreas, the City of Camden, in concert with the

State of New Jersey and the Federal Government,

supports the concept of seeking to grant a definite

portion of all construction trade-related contracts and

jobs, funded by local, state and/or federal monies,

to minority contractors and employees; now, therefore

Be Ir Onpatep by the City Council of the City of

Camden, as follows:

Il. Applicability of Ordinance

Wherever the City of Camden spends funds

derive. from any public source for construction

contracts or where the City of Camden confers

Brief in Opposition 5

a direct financial benefit upon a party, but ex-

cluding the grant of a property tax abatement,

the fair market value of which exceeds $50,000.00,

the provisions of this ordinance shall apply .

The provisions of this ordinance shall also apply

to the development and construction of all resi-

dential housing of four (4) units or more.

C. IV. Developer/ Contractor's Contracting Obliga-

tions

b. The developer/ contractor, in hiring for jobs,

shall make every effort to employ persons

residing within the City of Camden but, in

no event, shall less than forty per cent (404 )

of the entire labor force be residents of the

City of Camden.

I. Definitions

5. Resident of the City of Camden is any person

who has been domiciled in the City of Cam-

den for a continuous period of twelve (12)

consecutive months prior to the application

for employment and continues as a domi-

ciliary of the City of Camden during the

term of employment or contract. For the

purpose of this ordinance a resident must be

a domicile (sic) of the City of Camden

expressing an intention to make this City

his permanent place of residence.”

This municipal ordinance was approved by the Chief

Affirmative Action Officer of the Department of the

Treasury, State of New Jersey, acting pursuant to N. J.

S. A. 10:5-32 and W(c) and N. J. A. C. 17:27-65.

1. Petitioner's Jurisdictional Statement, A62-63 (hereinafter

App. ——_).

6 Brief in Opposition

STATEMENT OF THE CASE

A. Factual History

Respondents (“the City”) seek to oppose Petitioner's

request for review of a judgment of the Supreme Court

of New Jersey (Petitioner's Jurisdictional Statement, Al-

32) upholding a Camden ordinance which requires that

40% of the workers of public works construction contracts

for the City be city residents.’

The City of Camden is located in Southern New

Jersey, across the Delaware River from Philadelphia. The

total population of Camden, as reported by the 1980

census, is 54,910." This number represents a marked de-

cline from the 102,551 figure reported in the 1970 census.*

During that same tec year period, unemployment in-

creased from 6.34° in 1970 to 10.3%* in 1980. These

figures clearly indicate that the City of Camden has been

subjected to the same type of social and economic decline

that has plagued many of the major urban areas of the

United States. Once considered the political and social

capitol of South Jersey, the City has been fighting a con-

stant battle with the major urban problems of high un-

empluyment, increasing crime, and the flight of business

to more attractive areas.

2 Camden Revised Ordinances, MC +1653, § CIV, ¢b.

3. Source: 199%) Census of Housing and Population, U. S.

Department of Commerce, Bureau of the Census. Issue Date:

March, 1981.

4. Source: 1970 U. S. Census, PAC (1)-159, table P-2, pp.

55-92. U.S. Department of Commerce, Bureau of the Census.

5. Source: 1970—Office of Demographic and Economic Analy-

sis, Bureau of Labor Force Statistics, Division of Planning and

Research, N. J. Department of Labor.

6. Source: 195)—“New Jersey Employment and the Economy,”

Division of Planning and Research, N. J. Department of Labor.

Brief in Opposition 7

In an effort to promote community pride in its public

works construction projects, increase employment oppor-

tunities for its citizens, and improve the economic position

of its citizens, the City enacted City Ordinance MC-1650,

entitled “An Ordinance To Establish An Affirmative Action

Program In Connection With Construction Contracts To

Be Performed For Or On Behalf Of The City of Camden.”*

This ordinance was further amended by MC-1653, which

contains the challenged 40% residency requirement.” The

ordinance also provides for a minority hiring goal of 25%.

That provision is not in dispute in this appeal.

The express purpose of the ordinance is to “pre-

serve the economic well-being of all citizens of the City

of Camden,”* .. . “relieve the problem of unemployment

among its residents and citizens and . . . promote the

growth of minority involvement in construction.” ””

In enacting this ordinance, Camden City Council

carefully considered the official unemployment statistics

compiled by the Department of Labor of the United States

and the New Jersey Department of Labor Affirmative

Action Office.’ Those statistics revealed that unemploy-

ment in the City exceeds both the national and state un-

employment rates. Moreover, since the national unem-

ployment rates for blacks and Hispanics were both greater

than doubl: the overall national unemployment rate,”* and

7. App. 36-53.

5. App. 54-58.

9. App. %, © 1.

10. Id. at © 5.

ll. App. 36-37.

12. The national unemployment rate for 1990 was 7.1%.

Source: “Employment and Earnings,” L-2.41/2.26/1, U. S. De-

partment of Labor, Bureau of Labor Statistics, Date: January,

1951. The unemployment rates for Black-Americans and Hispanic-

Americans is contained in the preamble to Ordinance MC-1650,

and reported at App. 36-37.

8 Brief in Opposition

since these two groups comprise more than 70% of the

City’s total population,” it follows that the City’s unem-

ployment picture is even more dismal than the official

statistics suggest.

B. Procedural History

The ordinance was enacted pursuant to the 1975

amendments to the New Jersey Law Against Discrimina-

tion. L. 1975, C. 127, N. J. S. A. 10:5-31 to 3. The rele-

vant section of that statute, N. J. S. A. 10:5-36/c), au-

thorizes state and local agencies to design their own

affirmative action programs to meet local needs and submit

them to the State Treasurer for approval. Upon approval,

that program wil] then effectively serve the same function

as the State Affirmative Action Program.

The City designed such a program which was ac-

cordingly approved by the Chief Affirmative Action

Officer of the New Jersey Treasury Department on Novem-

ber 24, 1980."* Petitioner challenged both the constitu-

tionality of the ordinance and the administrative procedure

by which it was approved. Petitioner filed an appeal

with the New Jersey Superior Court, Appellate Division.

On June 19, 1981, the New Jersey Supreme Court ac-

cepted the appeal by direct certification, pursuant to New

Jersey Court Rule 2:12-1. On February 19, 1982, the

Court unanimously upheld the constitutionality of the

City ordinance as well as the validity of the administrative

approval procedure.”

13. The New jersey Supreme Court noted that “the black

population represents 53.0% of Carden City .. .” and “19.2% of

Camden City residents identify themselves as being of Hispanic

origin.” App. 10.

14. App. ©.

15. App. 21.

4

Brief in Opposition 9

MEANING OF THE DECISION BELOW

The court held that the ordinance did not violate

either the Privileges and Immunities, Commerce, or Equal

Protection Clauses of the U. S. Constitution.”

The court ruled that the ordinance did not violate

the Privileges and Immunities Clause since it affected more

state residents than non-residents.’ In determining

whether the Privileges and Immunities Clause could bar

the City ordinance, the New Jersey high court looked to

the specific purpose of the clause as expressed in the Con-

stitution, and interpreted by this Court, most recently in

Hicklin v. Orbeck, 437 U. S. 518 (1978). Since the ordi-

nance did not “aim primarily at out-of-state residents”

but only placed thern on the “same footing” * with other

New Jersey residents, the Court determined that it did

“not violate any privilege of state citizenship.” ”

This holding is not a redefining of the Privileges and

Immunities Clause, as Petitioner contends, but is merely

an application in accord with this Court's interpretation

of Article IV, Section 2 of the Constitution. Even though

some non-residents may be affected, the crucial factor is

that any potential burden is assurned by more New Jersey

residents than non-New Jersey Residents.

The ordinance was also upheld by the court in the

face of a Commerce Clause challenge. While again using

the language and analysis of this Court, the lower court

felt that since the City was merely assuming the role of

a market participant rather than a market regulator, it

16. App. 22-28.

17. App. 28.

18. Id.

19. Hicklin, 437 U.S. at 524

20. App. 26.

10 Brief in Opposition

should be immune from Commerce Clause analysis." The

court followed its own case law, which was fashioned

after this Court's ruling in Alexandria Scrap, supra, and

Reeves, Inc. v. Stake, 447 U. S. 429 (1980), in deciding

that the City should be entitled to “favor its own citizens

and choose the parties with whom it will deal.” *

The court determined that since the City is not regu-

lating the flow of commerce between private parties in the

national marketplace,” it is not, in fact, a market regu-

lator.”

Petitioner nevertheless contends that the City is regu-

lating the hiring practices of private employers and should

be subject to Commerce Clause analysis as a market

regulator. This contention is without merit. Although

Petitioner may choose to avoid the hiring requirements

of the ordinance by refusing to pursue public works con-

tracts with the City, this should not automatically subject

the ordinance to Commerce Clause scrutiny. In addition,

Petitioner has failed to support its claim that the ordinance

places an impermissible burden on either Petitioner indi-

vidually or the national marketplace.

The Court should also keep in mind that denial cf

certiorari in the present case wil] not reflect on the Court's

decision to review Mass. Council of Construction Em-

ployers, Inc. v. Mayor of Boston, — U. 8. —, 425 N. E. 2d

3A6 (1981), cert. granted sub nom. White v. Mass. Council

of Construction Employees, 102 S. Ct. 1273 ( No. 81-1003,

1982). The social and economic conditions of the City

21. See Hughes v. Alexandria Scrap, Inc., 426 U. S. 794 (1976).

22. App. 23-24. See K. S. B. Tech. Sales v. North Jersey Dist.

Water Supply, 75 N. J. 272, 298, 381 A. 2d 774, 787 (1977).

23. See H. P. Hood & Sons, Inc. v. DuMond, 336 U. S. 525,

535 (1°29).

24. App. 22.

Brie’ in Opposition 11

of Camden are sufficiently different frorn the Boston situ-

ation to allow this Court to treat the cases separately and

affirm the decision of the New Jersey Supreme Court.

The New Jersey Court also held that since there is

no infringement on the fundamental right to travel, as

recognized in Shapiro v. Thompson, 394 U. S. 618 (1969),

the ordinance did not violate the Equal Protection Clause.”

The Court likened the ordinance to residency require-

ments for municipal employees, see McCarthy v. Phila-

delphia Civil Service Commission, 424 U. S. 645 (1976),

and found a rational relationship between the residency

requirement and the advancement of the City’s public

welfare.”

The court also followed Supreme Court precedent in

rejecting the notion of a fundamental right to work. See

Massachusetts Board of Retirement v. Murgia, 427 U. S.

307 (1976). Since there is no fundamental right in-

volved, and since a rational relationship exists between

the residency requirement and the advancement of the

City’s public welfare, the court concluded that the ordi-

nance does not violate the Equal Protection Clause.”

25. App. 27.

26. Id.

27. App. 28.

12 Brief in Opposition

ARGUMENT

I. The New Jersey Supreme Court Correctly Held That

the Camden Ordinance Is Immune From Privileges

and Immunities Analysis Since the Ordinance Affects

More In-State Residents Than Out-of-State Residents

In upholding the City’s residency requirement for

workers in public works construction contracts, the New

Jersey Supreme Court correctly ruled that the Privileges

and Immunities Clause “is not invoked to strike down

local ordinances that favor city residents.”** That court's

decision reflects the traditional application of the Privi-

leges and Immunities Clause by the Supreme Court. This

Court recognized early that the purpose of the Privileges

and Immunities Clause is “to place the citizens of each

state upon the same footing with citizens of other states,

so far as the advantages resulting from citizenship in

those states are concerned.” Hicklin v. Orbeck, supra, 437

U. S. at 524 quoting Paul v. Virginia, 75 U. S. (8 Wall.)

168, 180 (1869). For this reason, Petitioner's request for

certiorari on these grounds must be dismissed.

The present case does not offer the type of discrimi-

nation which the Privileges and Immunities Clause was

intended to proscribe. Indeed, the New Jersey Supreme

Court noted that the ordinance not only places New Jersey

residents on the “same footing” as non-New Jersey resi-

dents, but “. . . most certainly affects more New Jersey

residents not living in Camden than it does out-of-state

residents.” Petitioner has failed to establish facts to

dispute this finding.

28. App. 26.

29. Id.

Brief in Opposition 13

Similarly, the Supreme Court for the Commonwealth

of Massachusetts held that an executive order requiring

no less than 50% of the workers on public works contracts

be Boston residents was not violative of the Privileges

and Immunities Clause. Mass. Council of Construction

Employers, Inc. v. Mayor of Boston, supra. The under-

lying rationale of this ruling was that “the discrimination

adversely affects citizens of the Commonwealth as well.”

Id. at 354.

In light of this concurrence in constitutional inter-

pretation by the Supreme Judicial Courts of New Jersey

and Massachusetts, Petitioner has failed to meet its burden

of establishing a conflict between higher courts. See

U. S. Supreme Court Rule 17, 28 U. S.C. A. Moreover,

the cases cited by Petitioner may be distinguished on

several grounds. Those cases involve either an absolute

bar imposed by localities upon non-residents,” a state law

that offers an absolute preference to state residents, or a

state law which places an impermissible burden upon non-

residents." The City of Camden Affirmative Action Ordi-

30. Ward Baking Co. wv. City of Fernandina, 29 F. 2d 789

(S. D. Fla. 1928) (ordinance directing non-resident bakeries de-

livering within the city to pay a higher license tax than resident

bakeries); State v. Mercer, 132 Md. 263, 103 Atl. 570 (1918)

(higher licensing fees imposed only on non-residents); State v.

Nolan, 108 Minn. 170, 122 N. W. 255 (1909) (city ordinance ex-

cluding bona fide residents from provisions of regulations on

peddlers); Commonwealth v. Snyder, 182 Pa. St. 630, 38 Atl. 356

(1897) (peddlers license fee not imposed on county residents);

Graffty v. City of Rushville, 107 Ind. 502, 8 N. E. 609 (1886)

(license ordinance which applied only to peddlers who are non-

city residents and to goods manufactured outside of the county);

cf., Construction and General Laborers Union Local 563 o. City of

St. Paul, 270 Minn. 427, 134 N. W. 2d 26 (1965) (local ordinance

a all municipal contractors to employ only county resi-

31. The following cases all represent instances of state laws

which have been struck down for impermissibly discriminating

14 Brief in Opposition

nance fits into none of these categories. Although the

Camden ordinance has the effect of giving a limited pref-

erence to Camden residents, it does not absolutely bar the

participation of either non-Camden or non-New Jersey

residents. The ordinance actually provides that up to

60% of the employment opportunities generated by public

works construction contracts, may be filled by non-

Camden residents, both in-state and out-of-state.

Petitioner relies mainly upon the Supreme Court's

recent ruling in Hicklin v. Orbeck, supra, in which Alaska’s

across-the-board hiring statute was found violative of the

Privileges and Immunities Clause. The absolute bar on

out-of-state residents found in Hicklin does not exist in

the Camden ordinance. Hence, this Court’s analysis in

that instance is inapplicable in the present case. Peti-

tioner has further failed to provide additional authority

31. (Cont'd. )

against an out-of-state resident’s involvement in the commercial

fishing industry, see e.g. Toomer v. Witsell, 334 U. S. 385 (1948);

Mullaney v. Anderson, 342 U. S. 415 (1952); Brown v. Anderson,

202 F. Supp. 96 (D. Alaska 1962); Gospodnovich v. Clements,

108 F. Supp. 234 (E. D. La. 1951), app. dismissed, 344 U. S. 911

(1953); Edwards v. Leaver, 102 F. Supp. 698 (D. R. I. 1952);

marketing of produce, Ward v. Maryland, 79 U. S. (12 Wall.)

418 (1871); employment on oil and gas pipelines, Hicklin ov.

Orbeck, supra; ferry boat engineer officer, District No. 1 Pacific

Coast District, M. E. B. A. v. Ward, 505 F. Supp. 98 (W. D. Wash.

1951) and public works construction, Salla v. County of Monroe,

48 N. Y. 2d 514, 399 N. E. 2d 909, 423 N. Y. S. 2d 878 (1979),

cert. denied sub nom. Abrams v. Salla, 446 U. S. 909 (1980);

Neshaminy Constructors, Inc. v. Krause, 181 N. J. Super. 367, 437

A. 2d 733 (Ch. Div. 1951); admission to the bar, Stallard

Dakota Board of Bar Examiners, 530 F. Sup». 155 ( )

Strauss v. Alabama State Bar, 520 F. Supp. 173 (N. D. Ala. 1981);

Sheley v. Alaska Bar Association, 620 P. 2d 640 (Alaska 1980)

Gordon v. Committee on Character and Fitness, 48 N. Y. 2d 266,

397 N. E. 2d 1309, 422 N. Y. S. 2d 641 (1979).

Brief in Opposition 15

which would support its dernand for Supreme Court re-

view on this issue.

There is no factual basis, either in the record or estab-

lished by Petitioner in its brief, to rebut the clear and

obvious intent of the Camden ordinance not to diserim-

inate against out-of-state residents. Respondents urge

that the holding of the New Jersey Supreme Court must

stand. Petitioner has failed to establish any high court

decisions which conflict with the New Jersey and Mas-

sachusetts Courts on these facts. Therefore, Respondents

request that the Petition for Certiorari be denied. The

question raised by Petitioner is one that has been con-

clusively resolved by recent decisions. It does not merit

review by our highest Court.

Il. The Camden Ordinance Does Not Violate the Com-

merce Clause.

A. The New Jersey Supreme Court Correctly Viewed

the City as a Market Participant and the Ordi-

nance Is Therefore Immune From Commerce

Clause Scrutiny.

The New Jersey Supreme Court held that since “the

City of Camden is not regulating the flow of commerce

between private parties .. . [it] is acting in the role of

market participant, not market regulator.” In establish-

ing the “market participant” concept, this Court stated

that “the Commerce Clause responds principally to state

taxes and regulating measures impeding free private trade

in the national market place.” Hughes v. Alexandria

Scrap, 426 U. S. at 807-808. The Camden ordinance

represents no such tax or regulatory measure, nor has

Petitioner shown an impermissible burden on interstate

trade.

32. App. 22.

16 Brief in Opposition

The state program in Alexandria Scrap, supra, was

designed to remove abandoned automobiles from the

state’s roadways and junkyards, and “imposed more exact-

ing documentation requirements on out-of-state than

in-state processors.” Reeves, Inc. v. Stake, 447 U. S. at

434A. In Reeves, the state-owned cement plant “reaffirmed

its policy of supplying all South Dakota customers first and

to honor al] contract commitments, with the remaining

volume allocated on a first come, first served basis.” Id.

at 432. Camden's ordinance is certainly much less rigid

than the two programs described above. Yet this Court

ruled that both Maryland and South Dakota were merely

acting as market participants and, as such, were entitled

to make demands that would otherwise have been im-

permissible for a governmental entity acting in a regu-

latory capacity.

The City, like the states of Maryland and South

Dakota, has assurned a proprietary capacity “ but, unlike

those states, continues to offer commercial opportunities

to out-of-state construction firms. As this Court stated

in Perkins v. Lukens Steel Co., 310 U. S. 113 (1940),

“(like private individuals and businesses, the Govern-

ment enjoys the unrestricted power to produce its own

supplies, to determine those with whom it will deal, and

to fix the terms and conditions upon which it wil] make

needed purchases.” Id. at 127. The Court continued

this policy in Alexandria Scrap, supra, and concluded

“Injothing in the purposes animating the Commerce

Clause prohibits a State, in the absence of congressional

33. See also American Yearbook vo. Askew, 339 F. Supp. 719

(N. D. Fla. 1972) (three-judge District Court upholding a Florida

statute requiring the State to obtain needed printing services from

in-state shops. “[S]tate proprietary functions” are exempt from

Commerce Clause scrutiny. Id. at 725. This Court affirmed surm-

marily, 409 U. S. 94 (1972).

Brief in Opposition 17

action, from participating in the market and exercising the

right to favor its own citizens over others.” Id. at 810.

Petitioner maintains that the Camden ordinance regu-

lates the hiring practices of private contractors. This is a

misapplication of the market participant/regulator con-

cept as well as a misinterpretation of the ordinance. The

City has not established inflexible hiring regulations for

private construction firms, as Petitioner tontends, but

merely requires that contractors show a preference towards

Camden residents when the project is substantial and is

located in the City of Camden. By establishing a mini-

mum cost requirement of $50,000, the City has focused

only on those projects which would involve additional

work crews, and which should not affect steady hands.

Keeping in mind that the regular employment of construc-

tion firms often varies with the number and size of their

projects, the City simply requires that these firms employ

some Camden residents when additional workers are

needed. The ordinance is a reasonable compromise: it

does not preclude the employment of out-of-state residents

and it does, indeed, serve a valid public purpose.

In addition, the fact that the Respondents in Alexan-

dria Scrap, supra, and the Petitioner in Reeves, supra,

suffered substantial hardship “ had little or no effect in

the Court's determination that the respective states were

market participants. In both cases the Court followed the

principal that the Cornmerce Clause “protects the inter-

state market, not particular interstate firms... .” Exxon

bounty-eligible hulks than during the six months preceding the

elective date of the amendment. 426 U. S. at 801 n. 11. The

Petitioner in Reeves, after being turned away by the South Dakota

cement plant, was forced to cut production by 76%. 447 U. S. at

432.

18 Brief in Opposition

Corp. v. Governor of Maryland, 437 U.S. 117, 127 (1978).

The Petitioner in the present case has provided no evi-

dence of hardship with respect to the interstate market or

to Petitioner itself. In short, this is not “the kind of action

with which the Commerce Clause is concerned.” Hughes

v. Alexandria Scrap, 426 U. S. at 805.

B. The Court's Denial of Certiorari in the Present

Case Will Not Conflict With the Court's Grant

of Certiorari in Mass. Council of Construction

Employers, Inc. v. Mayor of Boston Since the

Facts Surrounding the Boston Executive Order

and the Camden Ordinance Are Substantially

Different for Purposes of Commerce Clause

Analysis.

The Supreme Court has granted certiorari to Mass.

Council of Construction Employers, Inc. v. Mayor of Bos-

ton, supra, cert. granted sub nom. White v. Mass. Council

of Construction Employees, — U. 8. —, 102 S. Ct. 1273

(No. 81-1033, 1982). The Massachusetts Suprerne Court

compared the Boston Executive Order and the factual

record before it with the Court's analysis of the Cormmerce

Clause in prior judicial decisions.” As reflected in the

authorities cited in § II (A), supra, Commerce Clause

analysis requires a pairing of the facts of each case with

the aim of the Commerce Clause.

The court in Mass. Council, supra, relied on a state-

ment of agreed facts in determining that a significant im-

pact would be felt by the interstate construction firms.”

The present case offers no such agreement or record of

injury to any of the interested parties. Commerce Clause

review by this Court would therefore be limited to review

35. See Philadelphia v. New Jersey, 437 U. S. 617 (1978),

Hicklin 0. Orbeck, supra, Reeves, Inc. v. Stake, supra.

36. 425 N. E. 2d 354.

Brief in Oppoation 19

of the Camden ordinance on its face. (See Procedural

History under Statement or THE Case.) Consequently,

the decision to deny or grant certiorari in the present case

must be based upon a full analysis of the factors set forth

in $1 (A), supra. Thus, the granting of certiorari in

Mass. Council, supra, should not be viewed by Petitioner

as a carte blanche reason for this Court to grant certiorari

in the present case.

A further distinction between the two cases is that

the $50,000 minimurn cost requirernent allows for the

hiring of additional employees on major construction sites.

The Boston order, however, requires a minimum hiring

requirement of Boston reside:.ts on al] construction projects

within the city.”

Moreover, the Massachusetts court held that the

order was overly broad for its express purposes. The

Court stated>

“the extensive preference for local residents contained

in the executive order cannot come within the excep-

tion outlined by Reeves because it sweeps so broadly.

In Reeves, the existence of a genuine shortage of

concrete necessitated some form of rationing. The

State’s choice of favoring its own citizens was a ra-

tional means of allocation which recognized the

special interests of local taxpayers.” ”

37. The relevant portion of the mayor's order is as

“(1) On any construction project funded in whole or in part

City funds, or funds which, in accordance with a federal grant or

otherwise, the City expands or administers, and to which the City

is a signatory to the construction contract, the worker hours on

craft-by-craft basis shal] be performed, in accordance with

contract documents established herewith, as follows: “a. at

30% by bona fide Boston residents”. 425 N. E. 2d at 347

W. Id. at BS.

:

20 Brief in Opposition

Similarly, the Carnden ordinance should be viewed as a

rational means to combat its profound unemployment

problem. The City is not passing judgment on either the

propriety of the Boston executive order or the decision of

the Massachusetts Supreme Court, but given the high

rate of unernmployment in Camden, with no sign of future

relief, the City’s ordinance is the most reasonable ap-

proach to deal with this unique situation. The City sub-

mits that the particularities of the extreme circumstances

in Camden should clearly distinguish the present case

frorn the Massachusetts case.

This distinction is illustrated by the following sta-

tistics. Unemployment in Boston in 1980 was recorded

at 6.2%." The unemployment rate in Camden in that

same year was 10.3%." The population in Boston in 1980

was recorded at approximzetely 563,000 residents, with

blacks and Hispanics comprising approximately 163,000

or 29% of the total population.’ The black and Hispanic

population in Camden, as noted above, is more than 70%

of the total population. With the national unemployment

rates for blacks and Hispanics more than double the na-

tional rate, it is clear that an Affirmative Action Program

is necessary in Camden. Therefore, this Prograrn should

fall within the exception outlined by Reeves, supra, and

the ruling of the New Jersey Supreme Court should be

upheld.

For the foregoing reasons, the City respectfully sub-

mits that (1) Petitioner has not sustained its burden of

showing sufficient reason for this Court to review the

41. Source: 199) Census of Housing and Population, U. S.

Department of Commerce, Bureau of the Census.

Brief in Opposition 21

New Jersey Supreme Court's ruling, and (2) the unem-

ployment situation in Camden is substantially different

from that in Boston to allow this Court to dismiss the

present case without reflecting on its prior grant of cer-

tiorari in the Massachusetts case.

It is also respectfully submitted that the present case

would be distinguishable from any affirmance of Mass.

Council, supra. Alternatively, if Mass. Council, supra, is

reversed, then the New Jersey Supreme Court decision

would still be in accord with that ruling.

Ill. Tie New Jersey Supreme Court Correctly Held That

the Camden Residency Requirement Does Not Vi-

olate the Equal Protection Clause Since It Does Not

Impermissibly Burden the Right to Interstate Travel.

The New Jersey Supreme Court rejected Petitioner's

claim that the Camden ordinance impermissibly burdens

the fundamental right to interstate travel. See, e.g.

Shapiro v. Thompson, supra. The court likened the dura-

tional residency requirement to the type of bona fide

residency requirement that this Court upheld in McCarthy

v. Philadelphia Civil Service Commission, supra. And

since the “right to employment on a local public works

project .. .”“ is not a fundamental right, the New Jersey

court concluded that the rational relationship between

the residency requirement and the need for economic

revitalization is sufficient for upholding the ordinance.

Allied Stores of Ohio v. Bowers, 358 U. S. 522, 528 (1959).

Petitioner contends that the court's ruling ignored

this Court’s recognition of the fundamental right to inter-

state travel in Shapiro v. Thompson, supra. For purposes

of Equal Protection analysis, however, the cases relied on

by Petitioner are significantly different from the present

42. App. 28.

22 Brief in Opposition

case. See Shapiro, supra; Dunn v. Blumstein, 405 U. S.

330 (1972): Memorial Hospital v. Maricopa County, 415

U. S. 250 (1974). The Camden ordinance, while re-

quiring 40% employment of those individuals who have

resided in Camden for 12 months or longer, does not

involve the absolute durational residency requirement of

the aforementioned cases. As discussed above, the ordi-

nance still provides as much as 60% employment oppor-

tunities to non-Camden residents. Thus, it does not fol-

low that this ordinance requires a person to choose

between travel and access to employment opportunities.

Dunn, 405 U. S. at %A2. In short, the ordinance does

not “penalize citizens for exercising their constitutional

right to travel.” Jones v. Helms, 452 U. S. 412, 420-421

(1981).

It should be emphasized that the New Jersey Supreme

Court did not ignore the difference between durational

and bona fide residency requirements, but merely recog-

nized that this case was not subject to a durational resi-

dency type of analysis. Since no fundamental right was

jeopardized, the New Jersey court correctly ruled that the

Camden ordinance does not offend the Equal Protection

Clause of the Fourteenth Amendment.

Petitioner also acknowledges that this Court has up-

held durational residency requirements, see, e.g., Sosna

v. lowa, 419 U. S. 393 (1975) when the government

service requested is not a “basic necessity of life.”

Memorial Hospital v. Maricopa County, 415 U. S. at 259.

Petitioner then asserts, without any factual or case sup-

port, that public employment is a basic necessity of life

and is thus more akin to non-emergency medical care or

welfare assistance than to divorce. For constitutional

analysis, however, Petitioner should be expected to offer

something more substantial than mere assertions equating

public employment with welfare assistance. As this Court

Brief in Opposition 23

wrote in Sosna, the common element of Shapiro, Dunn,

and Maricopa County, “was that the durational residency

requirements they struck down were justified on the basis

of budgetary or record keeping considerations which were

held insufficient to outweigh the constitutional claims of

the individuals.” Sosna v. lowa, 419 U. S. at 406.

Moreover, the City’s residency requirement, like

“Iowa's residency requirement may reasonably be justified

on grounds other than purely budgetary considerations or

administrative convenience.’ Id. at 407; cf. Kahn vt.

Shevin, 416 U. S. 351 (1974). The severity of the un-

employment problem in Camden, as recognized by the

New Jersey Supreme Court in City of Camden v. Skokow-

ski, 88 N. J. 304, 441 A. 2d 741 (1982), required that some

action be taken to alleviate Camden’s dire situation. The

Camden City Council, in responding to this need, enacted

the challenged ordinance for the social and economic

advancement of its citizens while still providing employ-

ment opportunities for non-residents. And, unlike in

Sosna, supra, where non-residents faced a delay in the

administration of government services, non-residents in

the present case are not subject to any waiting period.

In addition, the Camden ordinance does not “ir-

retrievably [deprive| all residents who have lived in

Camden less than a year of the opportunity to pursue

their chosen livelihood.” Petitioner again fails to sup-

port this assertion. These non-residents do, in fact, enjoy

access to employment opportunities generated by the

public works construction contracts.

Moreover, the fact that unemployment is a national

problem does not preclude municipalities from invoking

their police power to deal with <erious individual prob-

lems. The City recognizes that a State is not able “to

43. Petitioner’s Jurisdictional] Statement at 44.

24 Brief in Opposition

isolate itself from the difficulties common to all of them

by restraining the transportation of persons and property

across its borders.” Edwards v. California, 314 U. S. 160,

173-174 (1941). But the City ordinance results in no

such restriction. It is a reasonable compromise which

offers employment opportunities to non-residents while

attending to its local weeds.

In the absence of any tangible evidence supporting

the contentions that the Camden City Council has over-

reached ts powers in enacting this ordinance, and that

the New Jersey Supreme Court's decision is contrary to

this Court's decisions, the City respectfully submits that

this ruling should be upheld and should not be granted

review by this Court.

Brief in Opposition 25

CONCLUSION

For the foregoing reasons, Respondent respectfully

requests that this Court deny certiorari in the present case.

Petitioner has failed to establish a sufficient basis for re-

view. However, Respondent respectfully reserves the

right to submit a brief presenting a full discussion of the

issues if this Court does grant certiorari.

Respectfully submitted,

N. THomas Foster

City Attorney

Office of City Attorney

13th Floor, City Hall

Camden, New Jersey 08101

(609) 757-7170

Attorney for Respondents