# Motion to Dismiss or Affirm — United Building & Constr. Trades Council of Camden Cty. v. Mayor and Council of Camden > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0013%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion to Dismiss or Affirm - **Published:** January 1, 1984 - **Citation:** 465 U.S. 208 ## Text 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 : 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 “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