Amicus Curiae Brief — United Building & Constr. Trades Council of Camden Cty. v. Mayor and Council of Camden

Office - Supreme Cour

RIE os

MAY 28 1963

IN THE

SUPREME COURT OF THE UNITED STRTBBE® & stevag

CLERK

NO. 81-2110

October Term, 1981

UNITED BUILDING AND CONSTRUCTION TRADES

COUNCIL OF CAMDEN COUNTY AND VICINITY,

Appellant,

V.

MAYOR and COUNCIL OF THE CITY OF CAMDEN,

and THE DEPARTMENT OF THE TREASURY OF

THE STATE OF NEW JERSEY,

Appellees.

ON APPEAL FROM THE SUPREME

COURT OF NEW JERSEY

Wayne S. Henderson

New England Legal Foundation

55 Union Street

Boston, Massachusetts 02108

Y (617) 367-0174

or Amicus Curiae

QUESTIONS PRESENTED

In an effort to alleviate local unemployment,

the City of Camden adopted an ordinance which

absolutely excludes out-of-state workers from a

minimum of 40% of all jobs in a major segment of

the public and private construction industry in

Camden, and limits those employment

opportunities to persons who have been domiciled

in the City for a continuous 12-month period.

1. Does the ordinance violate the

protection afforded to nonresidents by the

interstate Privileges and Immunities Clause to

pursue their liveiihoods in other states free from

discrimination?

2. Does the durational residency aspect of

the ordinance infringe upon the right to travel

interstate, and thereby violate the Equal

Protection Clause of the Fourteenth Amendment?

NO. 81-2110

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

UNITED BUILDING AND CONSTRUCTION TRADES

COUNCIL OF CAMDEN COUNTY AND VICINITY,

Appellant,

V.

MAYOR and COUNCIL OF THE CITY OF CAMDEN,

and THE DEPARTMENT OF THE TREASURY OF

THE STATE OF NEW JERSEY,

Appe .

ON APPEAL FROM THE SUPREME

COURT OF NEW JERSEY

MOTION OF NEW ENGLAND LEGAL FOUNDATION

A A

New England Legal Foundation, pursuant to

Rule 36.1 of the Rules of the Supreme Court,

respectfully moves this Court for leave to file its

brief amicus curiae, bound with this Motion, in

support of the Appellant.

New England Legal Foundation (NELF) is a

non-profit, public interest law foundation,

organized and existing under the laws of the

Commonwealth of Massachusetts for the purpose

of engaging in litigation on matters affecting the

economic and constitutional interests of the people

and businesses of New England. NELF has long

been interested and involved in the constitutional

and public policy issues surrounding the proper

roles of the states vis-a-vis the federal government

and each other. The Foundation has consistently

supported the proposition that it is essential to the

maintenance of our Federal Union that no state,

nor any of its political subdivisions, may possess

the power to impose economic bavriers to the free

flow of interstate commerce, or to adopt

protectionist measures designed to favor local

residents at the expense of the citizens of its

neighbors.

NELF has previously participated as an

amicus party in Kevin H. White v. Massachusetts

Council of Construction Employers, __—iU.S.

51 U.S.L.W. 4211 (February 28, 1983), in

which a similar municipal residents hiring

preference was upheld against a Commerce Clause

challenge. NELF's brief amicus curiae therein

argued the invalidity of the hiring preference for

local residents under both the Commerce Clause

and the Privileges and Immunities Clause of

Article IV, section 2.

The amicus believes that equality of

economic opportunity is a right fundamental to

achieving the unity of purpose and freedom of

enterprise which are central to our democratic

form of government, and which are embodied in

the Privileges and Immunities Clause of the

Federal Constitution. The denial of employment

opportunity based solely upon the circumstance of

residence violates these vital constitutional

guarantees.

The construction trades are particularly

threatened by a residency-based hiring quota as is

established by the City of Camden offence et

issue herein. The business of construction relies

upon a work force which is both highly specialized

and skilled and is necessarily mobile. Its mobility

is dictated by the irregular nature of the work

itself. And the limited availability of construction

work within any single municipality requires the

construction worker — particularly if a skilled

specialty worker -- to commute to varying job

sites which shift continually upon completion of

each project. To impose a residency requirement

upon a construction worker would eliminate a

significant measure of his employment

opportunities. And to demand of construction

contractors a hiring quota based upon residence

would necessitate a separate core work force in

each locality, at an unavoidable increase in the

cost of construction and at the inevitable expense

of the quality of the finished construction project,

all due to a mandate to hire with regard not to

qualification, but to residence. The amicus

opposes this intrusion upon long-recognized and

3 vital constitutional guarantees. N

For the foregoing reasons, New England

Legal Foundation respectfully requests that this

Court grant leave to file the accompanying brief in

support of the Appellant.

By its attorney,

Wayne S. Henderson

New England Legal Foundation

55 Union Street

Boston, Massachusetts 02108

(617) 367-0174

TABLE OF CONTENTS

STATEMENT OF NMr ERES 1

INTRODUCTION AND SUMMARY OF

ARG UN 2

ARG ung 10

I. THE CITY OF CAMDEN'S ORDINANCE

A *

A

RESIDENTS ON THE BASIS OF

THEIR RESIDENCY IS VIOLATIVE

OF THE PRIVILEGES AND —

IMMUNITIES CLAUSE ---------++-- 10

A. The Pri and Immunities Clause

as to

tment

ts se eeneeeeeee 10

B. The Pri and Immunities

to

0 =) te ts From

a

C. That the Camden Ordinance

Lien Exeluc Sor New

ersey Residents, or t It

D. The Camden Ordinance

ts From

Jobs Fails to Pass Serutiny

Il. THE 2 E-YEAR OA TIONAL

ee ee ee 38

CONCLUSICoůohnſ?Cſ, — 41

TABLE OF AUTHORITIES CITED

Austin v. New Ham 420 U.S. 656

9 0 0 5 0 6 0 % % % „ „ „„ „%% „0 2,14,24

Baldwin v. G. A. E. Seelig. Inc., 294 U.S.

enn 11

Baldwin v. Montana Fish and Game

Commission, 436 U.S. 371 (1978) .eVwoeres 11,18

City of Trenton v. New Jersey, 262 U.S.

erer eee 60 0.0 6 21

e Communications Company v.

tro .

USLW. 1144 Wanuary 15,1982)......... 21

Dean Milk Co. v. Ma 340 U.S. 349

Massachusetts Council of Construction

m V. te ass. 425

E. , rev'd on other gr nds

sub nom., White v. Mass. Council o

i m 7 — . ——

(February 28, 10663 18

MeC v. Philadelphia Civil Service

mmission, . 645 (1976). .......-. 37

Mullaney v. Anderson, 342 U.S. 415 (1952)...... 17

N iny Constructors, Inc. v. Krause,

* * A.

er.. 8,18

GT Sdaccesivcccsvcccceceses 18,29,31

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

„ „ „ „ „ „ „ „ „ 25. , 33,34, 40

Smith v. Texas, 233 U.S. 630 (1914) cocccese 36,37

State v. Wylie, 516 P. 2d 142 (Alaska 1973)... . 40

Takahashi v. Fish & Game Commission,

‘ YRyTYyYT7oOve ree 33

Toomer v. Witsell, 334 U.S. 385 (1948)... 2, 17,27

White v. Massachusetts Council of

m +

(February 28, 1983) 8,25

PERE TE cn . ceevencesens 25n.,26

Zobel v. Williams, _U.S.__, 102 8. Ct.

eee eee 10,38, 41

Constitutional and Statutory Provisions

United States Constitution:

Commerce Clause, Article I, 88, el. 3. 16

Privileges and Immunities Clause,

Article IV, 82, elILIl assim

e

Annotated Code, Article 21,

Miscellaneous

Antieau, "Paul's Perverted Privileges or the

True Meaning of the Privileges and

Immunities Clause of Article Four,"

9 Wm. & Mary L. Rev. 1 (1967) ......... lin.

Articles of Confederation, Article IV, §1

/ ² ˙ͤVK—»—˙·˙ 0 12, 12n.

nnn 13n.

R. Howell, The Privileges and Immunities of

State Citizenship (1919) lin.

Journal of the Continental Congress (1777)

(Library of Congress ed. 1907) 13n.

Note, "Municipal Employees Residency

Requirements and Equal Protection,"

84 Lale L. J. 1684 (197) 40

Note, "The Privileges and Immunities

Clause: A Reaffirmation of Fundamental

Rights," 33 U. Miami L. Rev. 691

DE i 6 5 66 0's 6046600460 06006000% 12n.

The Federalist, Nos. 7, 11, 22 (Hamilton),

42 (Madison) (J. Cooke ed. 1961) 14,15

L. Tribe, American Constitutional Law

Pb cceceseesercocaceececus 12n., 28n.

J. Varat, "State Citizenship and Interstate

Equality,” 48 U. Chi. L. Rev. 487

(rh i SERS IRS err "eer lin.

:

af

NO. 81-2110

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

UNITED BUILDING AND CONSTRUCTION TRADES

COUNCIL OF CAMDEN COUNTY AND VICINITY,

Appellant,

v.

MAYOR and COUNCIL OF THE CITY OF CAMDEN,

and THE DEPARTMENT OF THE TREASURY OF

THE STATE OF NEW JERSEY,

Appellees.

ON APPEAL FROM THE SUPREME

COURT OF NEW JERSEY

BRIEF OF NEW ENGLAND LEGAL FOUNDATION,

AS A At, A ANT

STATEMENT OF INTEREST

This brief amicus curiae is filed contingent

on the allowance of the foregoing Motion for Leave

to File said brief. The interest of the amicus

curiae in this case is set forth in that Motion.

INTRODUCTION AND SUMMARY OF ARGUMENT

The interstate Privileges and Immunities

Clause was intended "to help fuse into one Nation a

collection of independent, sovereign States,"

Toomer v. Witsell, 334 U.S. 385, 395 (1948), by

establishing a "norm of comity" in the treatment of

the citizens of the several states, making

nonresidence an improper basis for locating a

special burden, Austin v. New Hampshire, 420 U.S.

656, 662 (1975). This policy of comity is of

importance not only to individual rights to

nondiscriminatory treatment, but also to the

structural balance essential to the concept of

federalism. Id. When the right of economic

opportunity in the pursuit of a livelihood — a right

held "fundamental" to the Privileges and

Immunities Clause — is implicated, the

Constitution places limitations upon the extent to

which employment opportunities may be biased

against a nonresident by reason of his nonresidency

alone. Hicklin v. Orbeck, 437 U.S. 518, 525 (1978).

Only when nonresidents are shown to be a "peculiar

source of the evil" intended to be remedied, and

only when the discrimination practiced bears a

"substantial relationship" to the evil nonresidents

present, is a scheme discriminatory on the basis of

residence permitted. Id. at 526-28.

In seeking to alleviate local unemployment by

barring out-of-state workers from 40 percent of all

public works construction jobs and a significant

segment of the private construction market, the

City of Camden has acted in clear violation of that

fundamental principle of comity. It has attempted

to isolate itself from a problem common to all

states, protecting its own residents from

competition by denying to nonresidents their right

to compete on an equal footing in the Camden

construction market.

The Camden ordinance at issue herein

establishes a mandatory quota for the employment

of City residents on every construction project for

which the City "spends funds derived from any

publie source," or where the City "confers a direct

financial benefit" in excess of $50,000.00! On

T The grant of a property tax abatement is

excluded. A 54-55. The ordinance is set forth in

its entirety as Appendix C, at A36-58 (record

references are to the Appendix to the

Jurisdictional Statement herein). In relevant part

it provides as follows:

Wherever the City of Camden spends

funds derived from any public source for

construction contracts or where the City

of Camden confers a direct financial

benefit upon a party, but excluding 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

residential housing of four (4) units or

more. [A54-55].

C. Developer/Contractor's Contracting

Obligations.

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 (40%) of the entire

labor force be residents of the City of

Camden. [A56].

I. Definitions.

5. Resident of the City of Camden is

any person who has been domiciled in the

City of Camden for a continuous period

each such project at least 40% of the entire labor

force must be City residents. Several points are

worthy of note. First, the ordinance is without

reference to job qualifications. Its requirements,

therefore, must be met regardless of the level of

skill of the job applicant. The contractor must hire

according to the applicant's place of residence, and

then presumably provide him the training necessary

to render him of use on the workforce. The

inevitable result of such a measure is to increase

the cost of doing business for a contractor who

performs work within the scope of the ordinance.

Second, the measure applies on its face not only to

public works construction projects financed solely

Ftnote Continued

of twelve (12) consecutive months prior

to the application for employment and

continues as a domiciliary of the City of

Camden during the period 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. [A38].

by the City, but also apparently to private

development projects induced by federal "public"

funds which the City merely administers, as well as

to "the development and construction of all

residential housing of four (4) units or more," A55,

regardless of their funding sources.

Third, the 40% requirement is merely a

minimum level of compliance. The

developer/contractor must "make every effort" to

employ local residents. A56. The effect upon

nonresidents, therefore, is to foreclose the

availability of at least 40%, and perhaps far more,

of the affected employment opportunities. Fourth,

the ordinance's application to "the entire labor

force," A56, and to “all contractors and sub-

contractors," A40, A46, extends its reach far

beyond those parties immediately in contract with

the City. Its impact is by no means limited to

persons in some sense "employees" of the City.

And fifth, the ordinance mandates not simply a

preference, but a quota, a measure even more

intrusive of personal rights. A quota demands that

a contractor affirmatively recruit employees

satisfying the residence requirement, rather than

merely give preference to a Camden applicant over

an equally qualified nonresident.

This is not a case wherein a municipality is

determining the dispensation of governmental

benefits according to appropriately drawn

distinctions. It is, instead, an instance of

governmental intrusion into the contractual

relationships between private parties, in order to

carry out a purpose which is plainly protectionist

of local economic interests. The City is choosing

which persons, among the class of construction

workers comprised of both residents and

nonresidents, may compete for employment within

a certain segment of the private construction

industry. The ordinance requires that City

residents be eligible for 100% of the construction

jobs, while any nonresident of the City, including

any nonresident of the State, is limited in

eligibility at most to only 60% of those positions.

While the Commerce Clause may provide no

prohibition against such a restriction to the extent

that it is applied strictly to wholly city-funded

public works projects, White v. Massachusetts

Council of Construction Employers, ___ U.S.

51 U.S.L.W. 4211 (February 28, 1983), the

interstate Privileges and Immunities Clause

proscribes any such discriminatory scheme which

fails the two-part test set forth in Hicklin. The

City of Camden has offered no justification for

singling out nonresident employees of the

construction industry to bear the burden of

alleviating the City's unemployment problems. Nor

has it demonstrated the likelihood that its

discrimination is appropriately drawn to

accomplish that end.

It is clear that a state law, such as the New

Jersey statute invalidated in Neshaminy

L- v. Krause, 181 N.J. Super. 367,

437 A. 2d 733 (Ch. Div. 1981), which grants an

absolute job preference to state residents on all

public works construction projects, violates the

Privileges and Immunities Clause. To accept

Camden's argument that it should nonetheless be

immune from scrutiny when it adopts an ordinance

designed to further that same end would allow the

cities and towns of any state to accomplish what

the state itself cannot. The ordinance can find no

protection from constitutional attack in the fact

that, by drawing a residence-based classification

along city lines rather than state lines, it

accomplishes an even greater discrimination.

The Camden ordinance is, moreover,

repugnant to the equal protection principles of the

Fourteenth Amendment. The City's 12-month

durational residency requirement for eligibility for

the construction jobs at stake distinguishes

between its long-term residents and recent arrivals

on the basis of the exercise of the fundamental

right of interstate travel. Such a discriminatory

provision must be judged according to the most

10

stringent measure of equal protection analysis.

Zobel v. Williams, _U.S.__, 102 8. Ct. 2309

(1982). The City has failed to establish a valid

governmental interest sufficiently compelling and

adequately served to justify the ordinance.

ARGUMENT

I. THE CITY OF CAMDEN'S ORDINANCE

RESIDENTS ON THE BASIS OF THEIR

A. The Privil and Immunities Clause

Was a to Provide Protection

t tment, Based

tate n m

Pursuits.

It has been an essential and overriding

attribute of our national structure that there be

explicit limitations upon the power of each state to

create unnecessary distinctions between residents

and nonresidents in the exercise of rights

considered of fundamental importance to national

citizenship. These limitations were inspired both

by the concern for that social and political

7

a

11

cohesion necessary and "basic to the maintenance

or well-being of the Union," Baldwin v. Montana

Fish_and Game Commission, 436 U.S. 371, 388

(1978), and by the desire to establish a free and

unfettered national economy, in order to promote

commercial productivity as well as to thwart "the

mutual jealousies and aggressions of the States,

taking form in customs barriers and other

economic retaliation." Baldwin v. G.A.F. Seelig,

e., 294 U.S. 511, 522 (1935).

This principle of non-discrimination on the

basis of residence finds its origins well prior to the

creation of the Union itself.? In the Fourth of the

2 Parat, "State ‘Citizenship’ and Interstate

Equality,“ 48 U. Chi. L. Rev. 487 n. 1 (1981): In

1976, even before the American colonies became

States, a committee of the Continental

appointed to propose articles of confederation,

drafted two articles protecting the inhabitants of

one colony from discrimination by another. See,

Antieau, "Paul's Perverted Privileges or the

Meaning of the Privileges and Immunities Clause of

Article Four," 9 Wm. & Mary L. Rev. 1, 2-5 (1967).

English law protective of "alien friends" is traced

to the Magna Carta in R. Howell, The Pri

and Immunities of State Citizenship 9-13 (1918).

According to Howell, by the time of the Articles of

12

Articles of Confederation, designed "to secure and

perpetuate mutual friendship and intercourse

among the people," the Framers sought to provide

for a basic equality of treatment among the

citizens of the different States with regard to

Ftnote Continued

Confederation, "independently of any

constitutional provision, the citizens of the

thirteen original states were entitled to the

enjoyment of a considerable class of privileges

upon removal from their own to another State." Id.

at 13. In his view, the constitutional provisions

were drafted to extend the scope of these

protections and render them more secure. Id. See

also, L. Tribe, American Constitutional Law 427

(1978) (American tradition of "natural law" evcived

during the 17th and 18th centuries, holding implied

limitations upon governmental authority intrudiag

upon “natural rights" reserved to the people); Note,

"The Privileges and Immunities Clause: A

Reaffirmation of Fundamental Rights," 33 U.

Miami L. Rev. 691, 694-96 (1979).

13

individual rights and commerce. In the area of

individual rights, that anti-discrimination principle

was later carried over into the comity article of

the Constitution, in the Privileges and Immunities

J Article IV of the Articles of Confederation

provided:

The better to secure and perpetuate

mutual friendship and intercourse among

people of the different states in this

union, the free inhabitants of each of

these states, paupers, vagabonds and

fugitives from justice excepted, shall be

entitled to all privileges and immunities

of free citizens in the several states; and

the people of each State shall have free

ingress and regress to and from any

other State, and shall enjoy therein all

the privileges of trade and commerce,

subject to the same duties, impositions,

and restrictions, as the inhabitants

thereof respectively; provided, that such

restrictions shall not extend so far as to

prevent the removal of property,

imported into any State, to any other

State of which the owner is an

inhabitant; provided also, that no

imposition, duties, or restriction, shall

be laid by any State on the property of

the United States, or either of them.

9 Jo of the Continental 908-

90 ary o . 1907);

quoted in Hicklin v. Orbeck, 437 U.S. 518,

532 n. 16 (T.

14

Clause of Article IV, 4 in briefer form but with no

change in substance or intent, unless "to strengthen

the force of the Clause in fashioning a single

nation." Austin v. New Hampshire, 420 U.S. at

661 (footnote omitted).

The interest in ensuring unrestricted trade

among the states created another major impetus

for the drafting of the Constitution, in part out of

a recognition that the economic interests of the

nation as a whole, and of each individual state as a

consequence, lay in the establishment of such a

truly national market. The Federalist, No. 11, (A.

Hamilton) (J. Cooke ed. 1961) p. 71; see, id., No.

42, (J. Madison) p. 283; cited in Reeves v. Stake,

447 U.S. 429, 448 (1980) (Powell, J., dissenting).

But the Framers were also concerned over the

fractionalizing forces of economic competition

7 The Privileges and Immunities Clause holds

that: "The Citizens of each State shall be entitled

to all Privileges and Immunities of Citizens in the

several States." Art. IV, §2, cl. 1.

15

between the states, evidenced in discriminatory

tax or regulatory burdens upon the commercial

intercourse between them. Each state might, it

was feared,

pursue a system of commercial

polity peculiar to itself

[ which] would occasion

distinctions, preferences, and

exclusions, which would beget

discontent.... We should be

rea to denominate injuries

characterizes the commercial

part of America,...would [not

likely] pay much respect to

those regulations of trade, by

which particular states might

endeavor to secure exclusive

benefits to their own citizens.

The infractions of these

regulations on one side, the

efforts to prevent and repel

them on the other, would

naturally lead to outrages, and

these to reprisals and wars.

The Federalist, No. 7, (A.

Hamilton) (J. Cooke ed. 1961)

pp. 39-40 (emphasis in original);

and see, id. No. 22, (A.

Hamilton) p. 137; No. 42, (J.

Madison) p. 283.

16

These principles have consistently informed

judicial consideration of state action which

establishes a _ discrimination between the

commercial interests of in-state and out-of-state

residents. As a result, a state law establishing an

employment preference for in-state residents has

been held violative of the Privileges and

Immunities Clause, based upon the anti-

discrimination and federalist principles found in

ease precedents both under that constitutional

provision and under the "mutually reinforcing"

Commerce Clause. Hicklin, 437 U.S. at 531-34.

B. The Privileges and Immunities Clause

Applies to the Exclusion of Out-of-State

esidents From a Major ment of the

Camden Construction Market.

It has long been recognized that the

Privileges and Immunities Clause "plainly and

unmistakably secures and protects the right of a

citizen of one state to pass into any other State of

the Union for the purpose of engaging in lawful

commerce, trade, or business without molestation."

17

Ward v. Maryland, 12 Wall. 418, 430 (1870). What

has become the modern understanding of the reach

of the Privileges and Immunities Clause was first

set forth in Toomer v. Witsell, 334 U.S. 385 (1948),

in which a South Carolina law limiting commercial

access by nonresidents to migratory shrimp within

state waters was struck down. The Toomer Court

began its analysis from a recognition that one of

the privileges which the Clause guarantees to a

nonresident is that of doing business within a state

"on terms of substantial equality with the citizens

of that State.“ Id. at 396. Federal and state

courts have also applied the Privileges and

Immunities Clause to strike down statutes which

require higher costs for commercial enterprise by

nonresidents, Mullaney v. Anderson, 342 U.S. 415

(1952) (license fees for commercial fishermen);

which unnecessarily inhibit a nonresident's

opportunity to engage in his chosen profession,

Piper v. Supreme Court of New Hampshire, 539 F.

Supp. 1064 (D. N.H. 1982) (residency requirement

18

for applicants for admission to the bar), and cases

cited; and which restrict the availability to

nonresidents of employment in public works

construction, Salla v. County of Monroe, 423

N.Y.S. 2d 878, 399 N.E. 2d 909 (1979), cert. den.

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

Neshaminy Constructors, Inc. v. Krause, supra;

Mass. Council of Construction Employers v.

White, 384 Mass. 446, 425 N.E. 2d 346 (1981), rev'd

on other grinds sub nom, White v. Mass. Council of

Construction Employers, U.S. 5 81

U.S. L. W. 4211 (February 28, 1983). While access to

recreational hunting has not been considered a

"fundamental" right, Baldwin v. Montana, supra, "a

nonresident's right to pursue a livelihood in a State

other than his own [is] a right that is protected by

the Privileges and Immunities Clause." Id. at 386

(citations omitted). See also, Hicklin, 437 U.S. at

524, and cases cited.

19

C. That the Camden Ordinance _ Also

Excludes Some New Jersey Residents, Or

That it May Not Violate the Commerce

Clause, Does Not Immunize it From

Privileges and Immunities Clause

Analysis.

The City argues that because New Jersey

residents living outside Camden are excluded along

with out-of-state residents from the construction

projects subject to the City's ordinance, the

ordinance should be considered immune from

review under the Privileges and Immunities Clause.

But the Privileges and Immunities Clause provides

no basis for a distinction between the action of a

state and the action of a municipality which is

equally inimical to the purposes of the Clause.

By its very terms, the Privileges and

Immunities Clause confers a personal right. It is

not confined to discriminatory actions of a state,

but ensures that no person shall suffer prejudice by

reason of his state of residence. The purpose of

the provision is "to place the citizens of each State

upon the same footing with citizens of other

20

States, so far as the advantages resulting from

citizenship in those States are concerned.”

Hicklin, 437 U.S. at 524; quoting Paul v. Virginia,

75 U.S. (8 Wall.) 168, 180 (1869).

There is nothing in the identity of a

municipality, as distinct from a state, which

renders its governmental actions any the less

subject to federal constitutional provisions which

set forth individual rights attendant upon national

citizenship. The purposes of the Privileges and

Immunities Clause are no less implicated when the

discrimination is accomplished against out-of-state

residents by means not of a state law, but of a

municipal ordinance. When a municipality acts, it

does so by virtue of the measure of state authority

with which it is clothed. Its existence is purely

derivative, as are the powers by which it governs.

A city has no sovereign power, ours being strictly a

"dual system of government." Parker v. Brown,

317 U.S. 341, 351 (1943).

21

All sovereign authority "within

the geographical limits of the

United States" resides either

with "the Government of the

United States, or [with] the

States of the Union. There

exist within the broad domain

of sovere two.

may be cities, counties,

and other organized bodies with

limited legislative functions,

but they are all derived from,

or exist in, subordination to one

or the other of these." United

States v. Kagama, 118 U.S. 375,

379 (1886) Cenphesis added).

Community Communications Com v. City of

Boulder, -. U.8s. 50 U.S.L.W. 4144, 4147

(January 13, 1982). A city, like a county, is "the

creature of the state exercising and holding powers

and privileges subject to the sovereign will." City

of Trenton v. New Jersey, 262 U.S. 182, 187 (1923).

"What would be unconstitutional if done directly by

the State can no more readily be accomplished by a

county at the State's direction." Memorial

Hospital v. Maricopa County, 415 U.S. 250, 256

(1974).

22

If the state be powerless to enact a measure

discriminatory against out-of-state residents, so

also is its subsidiary. To hold the City of Camden

to have the power to enact by ordinance a measure

prohibiting all non-New Jersey residents from

engaging in commerce within the City would be to

grant the City a greater constitutional power than

has its parent, the State. Such a holding would also

enable a collection of similar ordinances by every

municipality in New Jersey to accomplish the same

result which by state statute would be deemed in

violation of Article IV. The result would be both

illogical and contrary to the principles motivating

the Privileges and Immunities Clause.

Nor is it fatal to the analysis that the

measure in question draws its discrimination not at

the state boundary, but at the city line. Cf., Dean

Milk Co. v. Madison, 340 U.S. 349 (1951). Were

each city authorized similarly to enact preferential

measures prohibiting out-of-city residents from a

certain sector of employment, the effect felt by an

23

out-of-state resident would be no different than

from a state-wide requirement. He is denied the

opportunity to compete equally for employment

simply because of his place of residence. In-state

residents as a class stand in a preferred position

with regard to any and all such city-drawn

discriminations, as some in-state residents (those

who are in-city residents) may qualify for every

position, while out-of-state residents qualify for

none of the restricted positions.

Moreover, out-of-state residents suffer from

the same lack of political access to municipal

decision-making as they do to state government. It

is this absence of political accountability which has

long been held an important consideration in

enforcing the protections of the Privileges and

Immunities Clause. Since burdened nonresidents

are not represented in the legislative halls of the

state imposing the burden, judicial acquiescence in

schemes establishing special burdens upon

nonresidents would compel them to seek redress

24

through their own state; but "to prevent retaliation

was one of the chief ends sought to be

accomplished by the adoption of the Constitution."

Austin v. New Hampshire, 420 U.S. at 662-63,

quoting Travis v. Yale & Towne Mfg. Co., 252 U.S.

60, 82 (1920). By making nonresidence an improper

premise for locating a special burden, the

Privileges and Immunities Clause implicates "not

only the individual's right to nondiscriminatory

treatment, but also, perhaps more so, the

structural balance essential to the concept of

federalism." Austin, 420 U.S. at 662. As great a

threat is posed to that concept of federalism by a

retaliatory measure enacted to neutralize the City

of Camden's scheme — whether enacted state-wide

by Pennsylvania or New York® or city-wide by

Philadelphia or Wilmington — as if created in

3" Waryland has, in fact, already enacted an

openly retaliatory measure which prohibits public

works construction employment to a resident of

any state whose laws prohibit public works

construction employment of Maryland residents.

Md. Ann. Code, Art. 21, 88-503 (1981).

25

response to a discriminatory state law.

The limited exemption from Commerce

Clause application established for a municipal

residents hiring preference on entirely city-funded

construction projects, White v. Mass. Council,

supra,® provides no protection from Privileges and

8 Based upon the record in White, the Court

also found no Commerce Clause violation in the

application of the hiring preference to federally

funded projects, with whose regulatory

requirements the Boston provision was held to

"sound a harmonious note.“ 51 U.S. L. W. at 4213.

The record herein provides no indication what

federal programs are affected by the Camden

ordinance, which on its face applies broadly to all

projects on which the City "spends funds derived

from any public source.“ 454. The ordinance

would apparently, then, apply at least to those

federal programs referenced in White. Whether

the federal government may authorize the

infringement of a personal right held fundamental

under the Privileges and Immunities Clause is a

question held in White to be unresolved. Id. at

4214, n. 1 (Blackmun, J., cone. in part). Congress

is clearly without authority to enlist a state in a

joint program which authorizes the state's violation

ee ee OL

394 U.S. 618, 641 (1 ting

v. Morgan, 384 U.S. 641, 651 n. 10

the same reasoning would seem to apply

to the personal rights protected by the Privileges

and Immunities Clause.

26

Immunities Clause analysis for the Camden

ordinance. White served to define the implied

contours of the dormant Commerce Clause, and

not to interpret personal rights held fundamental

under a specific constitutional provision. The

Camden ordinance, moreover, by its reference to

"the development and construction of all

residential housing of four (4) units or more," A55,

clearly extends its reach into the private

construction market, an area which the decision in

White does not immunize even from Commerce

Clause scrutiny.

D. The Camden Ordinance Exel

nts rom cly

tion ails to Pass ul

1

Denne

Clause. :

When the fundamental right of economic

opportunity in the pursuit of a livelihood is

implicated, the Privileges and Immunities Clause

places limitations upon a state's power to bias

those employment opportunities in favor of its own

27

residents. Hicklin, 437 U.S. at 525. In Hicklin an

Alaska statute creating a hiring preference for

qualified residents (as distinct from the Camden

ordinance at issue herein, whose quota requirement

offers no regard for qualifications) in construction

work associated with the State's oil and gas

resources was unanimously declared

unconstitutional. Citing the two-part test first set

forth in Toomer,’ the Court held that there had

been no showing that nonresidents were "a peculiar

source of the evil" which the statute was enacted

to remedy — namely, Alaska's high rate of

unemployment. Moreover, even if that showing

The South Carolina statute requiring a higher

license fee for nonresident commercial fishermen

was struck down by the Court in Toomer, as it

created a discrimination based upon residence that

was without substantial reason beyond the mere

fact of nonresidence. The State failed to establish

a sufficiently uni and demonstrable link

between the state terests served and the

discrimination practiced. The Court required

— to indicate that nonresidents "constitute

a peculiar source of evil at which the statute is

aimed," and that practical and less restrictive

alternatives are unavailable. Id., 334 U.S. at 398-

99.

28

were to be accepted as sufficient, the

discrimination effected by the statute against

nonresidents did not bear a substantial relationship

to the particular "evil" they were said to represent.

The across-the-board grant of employment

preference to all residents, employed as well as

unemployed, was not properly tailored to the

statutory purpose of reducing unemployment. 437

U.S. at 526-28.

The Camden ordinance creates precisely the

sort of residence-based bias of employment

opportunities which Hicklin and its predecessors

found to interfere with a personal right held

fundamental under the Privileges and Immunities

Clause. The City can satisfy neither part of the

requisite two-prong test.8 While the alleviation of

local unemployment may be a legitimate local

8 The burden of satisfying the test lies with the

governmental entity which has created the

residence-based discrimination. Hicklin, 437 U.S.

at 526-27. See also, L. Tribe, American

Constitutional Law 411 (1978).

29

concern, it is insufficient to justify a

discriminatory scheme in the absence of any

demonstration that out-of-state residents are a

peculiar source of unemployment within the City.

Salla v. County of Monroe, supra (state-wide

employment preference on public works

construction projects offends the Privileges and

Immunities Clause).

There is no unique link, no "substantial

relationship," Hicklin, 437 U.S. at 527, between the

interest served and the discrimination practiced.

The ordinance does not draw its quota in terms of

unemployed residents, but only residents. If an

employed resident should take a job provided to

him by the mandated hiring quota, and leave behind

a position not among those covered by the

ordinance, or one from out-of-state, the

unemployed resident gains no benefit. This type of

untargeted employment preference was considered

by the Hicklin Court to bely the stated purpose of

alleviating unemployment. Id. at 527-28. The City

30

also touts the retention of economic benefits

generated by expenditures of tax dollars, and the

reward of those who funded them, but these are

nothing more than impermissible state purposes

descendent from the state ownership doctrine long

ago discounted as an absolute justification for

state action intruding upon fundamental individual

rights. Hicklin, 437 U.S. at 528-29.

Not only is the ordinance poorly focused on

its stated goals, it is in fact likely to result in

consequences harmful to the economy and to

consumers and taxpayers. Even as the ordinance

causes a shift in unemployment to outside city and

state boundaries, and discourages construction

workers in the exercise of their constitutionally

protected rights, it also inevitably results in higher

costs of public construction because of fewer

competitive bids, and increases costs for those

contractors who actually perform work covered by

the ordinance. The additional expense and

inefficiencies created by the mandatory

31

employment of inexperienced and less qualified

employees and the _ resultant organizational

disruption and inconvenience, will necessarily

increase costs to private developers subject to the

ordinance, as well as to the City and, hence, its

taxpayers. Cf., Salla, 423 N.Y.S. 2d at 882-83.

The unavoidable impact of such a program is likely

to be far more harmful to the economic plight of

the City and its residents than would be a program

designed to promote employment by providing job

training, encouraging new employment

opportunities, or even limiting available

employment opportunities to those who are

currently unemployed.

Far from creating a solution notable for its

positive impact upon employment opportunities and

its careful focus upon those most in need of its aid,

the City of Camden has produced a prohibitory

scheme whose blunderbuss approach favors all

residents, whether employed or not, and

disadvantages all nonresidents, regardless of their

32

own economic hardships. The consequences of the

Camden ordinance, at least as to a significant

percentage of construction empioyment

opportunities, hardly advance the "norm of

comity" which is the central purpose of the

Privileges and Immunities Clause.

ll. THE ONE-YEAR DURATIONAL RESIDENCY

REQUIREMENT OF “THE _ CAMDEN

ORDINANCE PENN THE

FUNDAMENTAL NH OF INTERSTATE

ENDS AND IS THEREFORE VIOLATIVE

A ECTION CLA

THE FOURTEENTH AMENDMENT.

A. The Camden Ordinance Infringes the

Right of Interstate Travel, and the

Ropropelate Equal Protection Test is

of Strict Scrutiny.

The Equal Protection Clause of the

Fourteenth Amendment prohibits action by state or

local government tainted either by a distribution of

benefits or burdens in a manner inconsistent with

fundamental rights, or by a prejudice against a

"discrete and insular" minority. United States v.

Carolene Products Co., 304 U.S. 144, 152 (1938).

The Clause provides that no state shall "deny to

33

any person within its jurisdiction the equal

protection of the laws.“ Amendment XIV, §1. In

so doing it announces a fundamental principle,

"that all persons lawfully in this country shall abide

‘in any state’ on an equality of legal privileges with

all citizens under non-discriminatory laws."

Takahashi v. Fish & Game Commission, 334 U.S.

410, 420 (1948).

Since the landmark exposition of the right to

travel in Shapiro v. Thompson, supra, this Court

has consistently held that durational residency

requirements penalizing the fundamental right to

travel interstate warrant the strictest form of

judicial scrutiny under equal protection analysis.

See also, Dunn v. Blumstein, 405 U.S. 330 (1972);

Memorial Hospital v. Maricopa County, supra.

This Court long ago recognized

that the nature of our Federal

Union and our constitutional

concepts of personal liberty

unite to require that all

citizens de free to travel

throughout the length and

34

breadth of our land uninhibited

by statutes, rules, or

regulations which unreasonably

burden or restrict this

movement.

Shapiro, 394 U.S. at 629.

The right to interstate travel, in the sense of

the right to migrate with the intent to settle and

abide, Memorial Hospital, 415 U.S. at 254-55, is

penalized by a state-drawn discrimination which

favors those who have chosen not to exercise that

right. A durational residency requirement which

prohibits certain citizens from receipt of welfare,

Shapiro, from voting, Dunn, or from receiving

medical care at county expense, Memorial

Hospital, for reason of their recent exercise of the

right to travel, will be struck down absent a

legitimate and compelling state interest which the

statutory scheme is drawn with precision to serve.

Dunn, 405 U.S. at 343.

The City of Camden has prohibited from at

least 40 percent of the employment opportunities

all persons, whether bona fide Camden residents or

35

not, who have lived in the City for less than the

one-year durational residency requirement. By

requiring new residents to reside in the City for a

fixed minimum period in order to be eligible for

employment opportunities available on an equal

basis to all other residents, the Camden ordinance

triggers the equal protection test of strict

scrutiny. Cf., Zobel v. Williams, supra.

The Camden ordinance is doubly suspect for

its infringement of another right — that of

employment opportunity — which, although not

recognized as fundamental“ in the current trend

of equal protection analysis, has long held a

protected place under the Fourteenth Amendment.

The right to work has been considered to be "of the

very essence of the personal freedom and

opportunity that it was the purpose of the

[Fourteenth] Amendment to secure." Truax v.

Raich, 239 U.S. 33, 41 (1915). The history of this

Court's prior consideration of that right has been

set forth by Justice Marshall in dissent in

36

Massachusetts Board of Retirement v. Murgia, 427

U.S. 307, 317 (1976):

Whether " ‘fundamental’ or not,

the right of the individual...to

engage in any of the common

occupations of life'" has been

repeatedly recognized by this

Court as falling within the

concept of liberty guaranteed

by the Fourteenth Amendment.

[citations omitted... And in

Smith v. Texas, 233 U.S. 630,

(1914), in invalidating a law

that criminally penalized

anyone who served as a freight

train conductor without having

previously served as a

brakeman, and that thereby

excluded numerous equally

qualified employees from that

position, the Court recognized

that "all men are entitled to

the equal protection of the law

in their right to work for the

support of themselves and

families." Id., at 641,

"Insofar as man is deprived of

the right to labor his liberty is

restricted, his capacity to earn

wages and acquire property is

lessened, and he is denied the

protection which the law

affords those who are

permitted to work. Liberty

means more than freedom from

servitude, and the

constitutional guarantee is an

assurance that the citizen shall

be protected in the right to use

37

his powers of mind and body in

any lawful calling.“ Id. at

636,... [citations omitted]

The right to earn a living admittedly does not

include the right to work for the government per

se. Murgia, at 313. But the application by the

court below of a minimal rational basis standard to

the Camden ordinance, at 427-28, misapprehends

the basis for the distinction drawn by this Court

between bona fide and durational residency

requirements. An appropriately defined and

uniformly applied requirement of bona fide

residency may be necessary to preserve a basic

conception of the political community, Dunn, 405

U.S. at 34-44, and may therefore be permissible in

the context of direct municipal employees. Cf.,

McCarthy v. Philadelphia Civil Service

Commission, 424 U.S. 645 (1976), and cases cited.

The Camden ordinance, however, presents two

significant distinguishing characteristics. Not only

does it reach far beyond immediate municipal

employees, by requiring residency of a given

7h

38

percentage of the entire construction work force,

persons who are by no means perceived as

representatives of the municipality in the way that

police, fire, public school, and government

employees are. But of even greater significance

under established constitutional precedent, the

durational aspect of the Camden ordinance renders

it subject to a substantially more stringent equal

protection analysis than the Court below provided.

B. The Camden Ordinance's Durational

Residence irement Fails the

tection Test of Strict tiny.

The distinction drawn by the Camden

ordinance between 12-month residents and those

more recently arrived serves no valid governmental

purpose sufficiently compelling to satisfy the

requisite equal protection test.

The justifications suggested by the court

below for the City's ordinance, at A27-28, are

either ill served by its discrimination, improper, or

of too little substance to warrant such an intrusion

39

into constitutionally protected areas. The

employment goal of the ordinance may not even be

achieved by its operation, much less achieved in a

manrer least likely to conflict with the

fundamental right to travel. Unemployment of

local residents may be remedied not at all, and if

so merely by chance, by a requirement that local

residents be hired regardless of their own current

employment status. While there may be a valid

local interest in upgrading human resources and in

reducing unemployment, the residency requirement

fails to do so except by deterring the in-migration

of nonresident construction workers. The

challenged provision offers no increase in the

number of available employment opportunities; it

simply limits the universe of those who may

compete for them. Even if a state or municipal

government were to attempt to ease its

unemployment problem by forcing employers to

discriminate against nonresidents — a policy whose

constitutional validity is at best dubious — the

40

means by which it does so must be more closely

tailored to aid the unemployed than is a measure

granting an across-the-board preference to local

residents regardless of employment status.

Hicklin, 437 U.S. at 527-28.

Nor may a state or locality discriminate in

the offer of public employment opportunities

merely to save money, State v. Wylie, 516 P. 2d

142 (Alas. 1973), the "public coffer" theory which

was rejected in Shapiro, 394 U.S. at 632-33. It is

not city residents alone who contribute to the

"public coffer" by means of sales, parking, and

othe’ taxes which apply to commuters. Note,

"Municipal Employees Residency Requirements,

and Equal Protection,” 84 Yale L.J. 1684, 1698

(1975). The ordinance’s hiring bias is not drawn to

favor only those who pay state or local taxes. A

recently arrived resident is as much a current

contributor to the public fise as is his 12-month

resident neighbor, and the reward of citizens for

past contributions is not a legitimate state

41

purpose. Zobel, 102 8. Ct. at 2313. There is,

moreover, an inherent unfairness in requiring an

employee, who provides a day's work for a day's

pay, also to contribute to the economy of the city

and to its tax base. Any governmental interest in

| such financial benefits "is slight compared to the

important interference with [the employee's]

private rights." Donnelly v. Manchester, 111 N.H.

50, 52-53, 274 A. 2d 789, 792 (1971).

CONCLUSION

Unemployment is an economic ill not of

local, but of national proportions, and is not solved

by governmental efforts to limit employment

opportunities according to political boundaries. A

state, or one of its political offspring, may not

simply export its unemployment by mandating the

hiring of its own residents, nor may it impose the

burden of alleviating unemployment solely upon the

construction industry.

42

The City of Camden, by absolutely excluding

nonresidents from even competing for, at a

minimum, 40 percent of the jobs in a major

segment of the construction industry, has adopted

a rule which not only discriminates on its face

against out-of-state residents purely on the basis

of their place of residence, but also imposes upon

them a burden which strikes at the very core of the

freedoms which the federal Privileges and

Immunities Clause was intended to protect. And

by discriminating in its treatment of residents

against those of shorter tenure than 12 months, the

Camden ordinance triggers a stringent equal

protection analysis which it does not survive. The

durational residency aspect of the ordinance fails

to serve a compelling governmental interest in a

manner least restrictive of constitutional liberties.

For the reasons stated hereinabove, the

amicus curiae, New England Legal Foundation,

submits that the judgment of the New Jersey

43

Supreme Court should be reversed, and that the

Camden resident hiring quota should be declared

unconstitutional.

Respectfully submitted,

Wayne S. Henderson

New England Legal Foundation

55 Union Street

Boston, Massachusetts 02108

(617) 367-0174

Counsel for Amicus Curiae

1

Dated: May 26, 1983