Appendix — Salem Blue Collar Workers Ass'n v. City of Salem

la

APPENDIX

Filed August 25, 1994

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 93-5622

SALEM BLUE COLLAR WORKERS ASSOCIATION

and STEPHEN SCULL,

Appellants,

Vv.

City oF SALEM; LEON JOHNSON, Mayor of the City of

Salem; JoHN BURKE, Common Council Member of the

City of Salem; RoBERT Davis, Common Council Mem-

ber of the City of Salem; RoBERT ELK, Common Coun-

cil Member of the City of Salem; BETSY ERHARDT,

Common Council Member of the City of Salem; EARL

GAGE, Common Council Member of the City of Salem;

RoBERT JOHNSON, Common Council Member of the

City of Salem; DoNALD SHARP, Common Council Mem-

ber of the City of Salem; JosEPH WEAVER, Common

Council Member of the City of Salem, individually and

in their official capacities,

Appellees.

Appeal from the United States District Court

for the District of New Jersey

D.C. Civil No. 92-1137

ee

2a

Argued May 2, 1994

BEFORE: SLOVITER, Chief Judge, HUTCHINSON

and SEITZ, Circuit Judges.

Filed: August 25, 1994

OPINION OF THE COURT

SEITZ, Circuit Judge.

I.

Plaintiffs appeal a final order of the district court

granting summary judgment to defendants in a civil rights

action attacking the constitutionality of a city ordinance

requiring employees of the city, with certain exceptions,

to live therein. Our review is plenary.

II.

The individual plaintiff (“Scull”) was employed by the

City of Salem, New Jersey (“City”) as a laborer. He

moved his residence from the city to suburban New Jer-

sey, giving as his reason the health, safety, and welfare

of his family. He was notified that such action was in

violation of the city’s residential requirement and he would

be terminated if he did not correct the situation. Scull

would not comply and this action to bar his discharge

followed.

Section 2 of the Salem Municipal Residency Ordinance

recites that

Except as otherwise provided by law, all full-time

permanent and full-time, part-time officers and em-

ployees hereinafter to be employed by the City of

Salem, are hereby required as a condition of their

employment to have their place of abode in the City

of Salem and be a bona fide domiciliary therein.

Joint Appendix (“JA”) 38 (Ordinance #78-3).

3a

The preamble to the ordinance cites the following

reasons for the requirement:

Whereas, said residency will not only reduce the high

unemployment rate in the City, but will also improve

relations among City employees; enhance the quality

of employee performance by greater personal knowl-

edge of conditions and problems in the City; promote

a feeling of greater personal interest in the City’s

progress; reduce the possibility of tardiness and ab-

senteeism; provide a ready availability of trained

manpower for emergency situations; and provide

unto the City economic benefits. . . .

JA 25.

Salem Blue Collar Workers Association (“Associa-

tion”), the collective bargaining agent for the blue-collar

and clerical employees of the City of Salem, and Scull

filed a four-count complaint in the district court seeking,

inter alia, declaratory and injunctive relief barring en-

forcement of the ordinance. They alleged that the ordi-

nance violates the Privileges and Immunities Clause of

Article IV, §2 and the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitution.

The parties, then filed cross-motions for summary judg-

ment. The district court held that the ordinance did not

violate either constitutional provision and granted sum-

mary judgment to defendants. Plaintiffs’ appeal followed.

Il.

A. The Privileges and Immunities Clause

The Privileges and Immunities Clause of the United

States Constitution provides that “[t]he Citizens of each

State shall be entitled to all Privileges and Immunities of

Citizens in the several States.” U.S. Const. art. IV, § 2.

The purpose of the Clause was to foster a national union

by discouraging discrimination against residents of another

4a

state on the basis of citizenship. See Paul v. Virginia, 75

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

Despite the language of the Clause embracing “each

State,” the United States Supreme Court has recently held

that the Clause may include municipal residency ordi-

nances. United Bldg. & Constr. Trades Council v. Mayor

& Council of Camden, 465 U.S. 208, 214-15 (1984).

The Court’s rationale for this expansive reading of the

Clause is based on the relationship between the state and

its municipality: since a municipality is granted its power

to act from the state, it is as subject to the Clause as the

state would be.

1. Standing

The district court granted summary judgment to the

City on Scull’s privileges and immunities claim because

it concluded that he lacked standing. Salem Blue Collar

Workers Ass’n v. City of Salem, 832 F. Supp. 852, 856

(D.N.J. 1993). In so concluding, the district court relied

on language in the Supreme Court’s opinion in the Cam-

den case. There the Court stated that “[i]t is true that

New Jersey citizens not residing in Camden will be af-

fected by the ordinance as well as out-of-state citizens.

And it is true that the disadvantaged New Jersey resi-

dents have no claim under the Privileges and Immunities

Clause.” Id. at 217 (citing The Slaughter-House Cases,

83 U.S. (16 Wall.) 36, 74-75 (1872)). The implication

from this language is that individual New Jersey residents

have no standing to challenge a New Jersey municipal

ordinance. The district court’s ruling here is consistent

with the Supreme Court’s analysis in Camden. Thus,

Scull lacked standing to assert a privileges and immunities

claim.

In contrast to its ruling in regard to Scull, the district

court concluded that the Association had standing on its

privileges and immunities claim because the complaint

alleged that the Association was comprised, inter alia, of

5a

members who lived outside the State of New Jersey and

others who might live outside the state but for the ordi-

nance.’ Salem, 832 F. Supp. at 856. The Court in

Camden. noted that one of the member associations that

belonged to the Council in Camden had “at least some

members who reside outside New Jersey,” 465 U.S. at

212 n.4, and thus had standing. On that basis we agree

with the district court’s ruling on the Association’s stand-

ing and proceed to its privileges and immunities claim.

2. Privileges and Immunities Clause Analysis

A valid privileges and Immunities claim requires proof

of two elements: (1) whether the interest or right being

burdened is “fundamental” and thus, protected by the

Clause, see The Slaughter-House Cases, 83 U.S. at 76;

and (2) if it is, whether there are “substantial” reasons

for the discrimination and “whether the degree of dis-

crimination bears a close relation to them.” Toomer v.

Witsell, 334 U.S. 385, 396 (1948).

We first decide whether the right being burdened—

direct public employment—is one that is “fundamental.”

As the Supreme Court stated in Baldwin v. Fish & Game

1The district court reasoned that because the City did not

challenge the allegation in its answer to plaintiffs’ complaint, it is

to be taken as true and thus the Association has standing. The

City in its answer stated that it did not possess the knowledge

or information to dispute the plaintiffs’ allegation regarding the

Association’s claim to having out-of-state members. The City’s

answer to that allegation constitutes a denial under the Federal

Rules of Civil Procedure. See F.R.C.P. 8(b) (“If a party is with-

out knowledge or information sufficient to form a belief as to the

truth of an averment, the party shall so state and this has the

effect of a denial.”). However, plaintiffs did submit an affidavit

from Mr. Paul Ledford, President of the Association, in which

Mr. Ledford certified that the Association includes out-of-state

members. JA 162-63 73. As this matter was before the district

court on summary judgment, the City could not rest on what

amounted to a pleading denial to create an issue cf material fact

on the standing issue. Thus, the Association was entitled to prevail.

6a

Commission, 436 U.S. 371 (1978), “[o]nly with respect

to those ‘privileges’ and ‘immunities’ bearing upon the

vitality of the Nation as a single entity must the State

treat all citizens, resident and nonresident, equally.” Jd.

at 383. The Court’s formulation of the controlling stand-

ard is but the beginning of analysis.

Up to this point in time, the Supreme Court has dealt

only with prohibitions involving the practice of trades and

businesses—private employment. See, e.g., Supreme Court

of N.H. v. Piper, 470 U.S. 274 (1985) (the practice of

law);°? Hicklin v. Orbeck, 437 U.S. 518 (1978) (occupa-

tions downstream from state-owned oil and gas interests) ;

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

shrimp fishing); Ward v. Maryland, 79 U.S. (12 Wall.)

418 (1871) (merchants); cf. Baldwin, 436 U.S. at 388

(rejecting argument that recreational moose hunting is a

fundamental right deserving of the Clause’s protection).

The focus of our analysis is on the proposition that the

right to pursue a “common calling” is within the purview

of the Privileges and Immunties Clause. Hicklin v. Or-

beck, 437 U.S. at 524 (stating that the “protection of the

Clause is strongly supported by this Court’s decisions

holding violative of the Clause state discrimination against

2The Court in Piper rejected arguments that lawyers are not

protected by the Clause holding, inter alia, that the “ ‘activities of

lawyers play an important part in commercial intercourse.’” Piper,

470 U.S. at 281 (quoting Goldfarb v. Virginia State Bar, 421 U.S.

773, 788 (1975)). The Piper Court quoted Justice Bushrod Wash-

ington’s opinion in Corfield v. Coryell, 6 F. Cas. 546 (No. 3,230)

(CCED Pa. 1825), in an attempt to define what “fundamental

rights” are protected by the Clause:

The right of a citizen of one state to pass through, or to reside

in any other state, for purposes of trade, agriculture, profes-

sional pursuits, or otherwise; to claim the benefit of the writ

of habeas corpus; to institute and maintain actions of any

kind in the courts of the state; to am hold and dispose of

property, either real or personal .

Piper, 470 U.S. at 281 n.10 (quoting Corteld, 6 F. Cas. at 552).

7a

nonresidents seeking to ply their trade, practice their occu-

pation, or pursue a common calling within the State”);

Toomer, 334 U.S. at 403 (commercial shrimping is within

the scope of the Clause).

Because of the commercial nature of the term “common

calling,” early Court decisions looked to the Commerce

Clause for guidance in their analyses, citing the “mutually

reinforcing relationship between the Privileges and Im-

munities Clause of Article IV § 2, and the Commerce

Clause.” Hicklin, 437 U.S. at 524.° In White v. Massa-

chusetts Council of Construction Employers, Inc., 460

U.S. 204 (1983), the Court reviewed, under the Com-

merce Clause, the constitutionality of an executive order

issued by the Mayor of Boston that required all construc-

tion projects funded in whole or in part by city funds

to employ a work force at least half of whom were resi-

dents of the city. The Court held that the City was acting

in a proprietary capacity and was a market participator,

not a market regulator, and therefore was not in violation

of the restraints of the Commerce Clause. It is significant

to note that in dicta the Court said that the executive

order affected the contractual relationship between the

contractors and their employees, and as such, the em-

ployees were actually “working for the city.” Jd. at 211

n.7. Thus, they did not have the benefit of the Privileges

and Immunities Clause when Boston favored its own

citizens.

3 The Court noted that the origin of both clauses is found in

the Fourth Article of the Articles of Confederation. In relevant

part, that Article states:

The better to secure and perpetuate mutual friendship and

intercourse among the people of the different states in this

union, the free inhabitants of each of these states . . . 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....

Hicklin, 437 U.S. at 582 n.16.

In Camden, the Supreme Court came close to deciding

the issue of whether public employment is a “fundamental”

privilege protected by the Privileges and Immunities

Clause. Camden involved a challenge to a city ordinance

that required at least 40% of the employees of the con-

tractors and subcontractors working on city projects to be

Camden residents. The Court stated that the threshold

determination was “whether an out-of-state resident’s in-

terest in employment on public works contracts in another

State is sufficiently ‘fundamental’ to the promotion of in-

terstate harmony so as to ‘fall within the purview of the

Privileges and Immunities Clause.’” Camden, 465 U.S.

at 218 (quoting Baldwin, 436 U.S. at 388).

The Court refused to “mechanically” adopt the Com-

merce Clause analysis used in White. Id. at 219.4 The

Association contends that the Court’s rejection of the

White rationale signals a rejection of the public/private

distinction in the area of employment. Closer scrutiny

of the Court’s reasoning in Camden, however, suggests

otherwise.

Despite the Court’s refusal to apply the White analysis,

the public/private distinction survives as we read the

Camden decision. Camden first stated that the pursuit of

a common calling is a fundamental privilege protected by

the Clause, id. at 219, but then drew a clear distinction

between public and private employment by stating that

“[p]ublic employment . . . is qualitatively different from

employment in the private sector; it is a subspecies of the

broader opportunity to pursue a common calling,” id.

Although Camden refers to public employment as a

“subspecies” of “common callings,” the public/private dis-

tinction can be justified on the basis of the history of the

language associated with the clauses. The Privileges and

4 The Court declined to address the merits of the privileges and

immunities challenge in White because the lower court did not

reach the issue. Camden, 465 U.S. at 214 n.7.

9a

Immunities Clause traces its origin to the language em-

ployed in the Fourth Article of the Articles of Confedera-

tion. That Article used terms that were referable to pri-

vate employment, e.g., “trade” and “commerce.” See

David S. Bogen, The Individual Liberties Within the Body

of the Constitution: A Symposium: The Privileges and

Immunities Clause of Article IV, Case W. Res. L. Rev. 794,

831 (1987) (suggesting that “[d]espite uncertainty, one

function of article IV . . . remained clear: it prohibited

states from imposing any restriction not applicable to resi-

dents on nonresidents engaged in trade or commerce”).

When the articles of the Constitution were drafted, the

language of both the Privileges and Immunities Clause and

the Commerce Clause was taken from the Fourth Article

of the Articles of Confederation. It is on this historical

basis that the distinction between public and private em-

ployment remains viable here. See Thomas H. Day, Note,

Hiring Preference Acts: Has the Supreme Court Rendered

Them Violations of the Privileges and Immunities Clause?,

54 Fordham L. Rev. 271, 278 (1985) (discussing the dis-

tinction the Court has drawn between private and govern-

ment employment); see also Bogen, supra at 856 (stating

that “[t]he right to engage in a trade or business is a

privilege or immunity of citizenship”); Mark P. Gergen,

The Selfish State and the Market, 66 Tex. L. Rev. 1097.

1129 (1988) (noting that early cases striking down state

laws under the Privileges and Immunities Clause involved

the “core privileges of trade and commerce”).

Based on this historical foundation, we ask whether

private or public employment is implicated by Scull’s em-

ployment with the City of Salem. Our analysis turns on

the nature of the employment relationship between em-

ployer and employee, not the character of the job being

performed.

The Court in Camden held that a private employment

relationship existed there. In Camden the contractors and

10a

subcontractors were working under contract to the City

and being paid in part or whole with city funds. White

suggested that the employees of the contractors could be

considered to be “working for the city” and therefore,

have no claim. The Camden Court, however, refused to.

apply White’s Commerce Clause reasoning citing the em-

ployees’ right to “seek employment with . . . private em-

ployers.” Id. at221 (emphasis added) .°

Our case is distinguishable by comparing the direct and

indirect nature of the government employment. The em-

ployment in our case is directly with the governmental

entity—there is no intervening private employment as

there was in White, where the contractors and subcontrac-

tors were under contract to the City of Boston, but the

individual employees were under contract to the contrac-

tors and subcontractors. The Camden court recognized

this distinction when it concluded that “[t]he opportunity

to seek employment with such private employers is ‘suffi-

ciently basic to the livelihood of the Nation,’ ... as to

fall within the purview of the Privileges and Immunities

Clause even though the contractors and subcontractors are

themselves engaged in projects funded in whole or part by

the city.” Id. at 222 (quoting Baldwin, 436 U.S. at 388).

We agree with the district court in this case that the

public/private distinction has not been abandoned. Based

on our reading of the Supreme Court cases in this area,

we hold that direct public employment is not a privilege

or fundamental right protected by the Privileges and Im-

munities Clause of Article Four.

5 As the district court correctly noted, the Court’s holding in

Camden that there was private employment is “consistent with the

_Court’s view that the Commerce Clause focuses on the perspective

of the state or local government while the Privileges and Immuni-

ties Clause focuses on the perspective of the individual.” 8382

F. Supp. at 860 n.4; see generally Bogen, The Privileges and

Immunities Clause, supra.

lla

In light of our holding that there is no fundamental

right implicated here, it is unnecessary for this court to

discuss the second issue of “substantial relatedness.” ®

B. Equal Protection Challenge

Plaintiffs argue in the alternative that the ordinance,

as it is applied by the City, violates the Equal Protection

Clause of the Fourteenth Amendment.

At the outset, plaintiffs concede that the “rational basis”

test is to be used in the analysis of their due process claim

because the ordinance does not affect a fundamental right,

see Massachusetts Bd. of Retirement v. Murgia, 427 U.S.

307, 313 (1976), and does not discriminate against a

suspect class.

The Equal Protection Clause directs that “all persons

similarly situated should be treated alike.” City of Cle-

burne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439

(1985). To withstand constitutional scrutiny under the

rational basis test, the classifications created by the legis-

lation “must be rationally related to a legitimate govern-

mental purpose.” Id. at 446.

* We note that the Supreme Court has stated that “the privileges

and immunities clause is not an absolute.” Toomer, 334 U.S. at

396. Further, the Court has pointed out that the “States should

have considerable leeway in analyzing local evils and in prescribing

appropriate cures,” id., but the court must determine whether non-

residents are the source of the evils that do exist and whether the

actions taken by the states are reasonably related to curing them,

id.; see Mullaney v. Anderson, 342 U.S. 415, 418 (1952). As was

the case in Camden, there was no trial, thus there were no find-

ings of fact. If we had held public employment to be within the

scope of the Clause, remand would have been necessary to permit

the district court to make findings on this issue. See Camden,

465 U.S. at 223.

T Although Scull does not have standing to challenge the ordi-

nance as violative of the Privileges and Immunities Clause, he does

have standing to assert an equal protection challenge.

12a

The Supreme Court has held that municipal residency

requirements for maintaining employment are not irra-

tional. McCarthy v. Philadelphia Civil Serv. Comm'n,

424 U.S. 645, 647 (1976); see also Detroit Police Officers

Ass'n v. City of Detroit, 405 U.S. 950 (1972) (dismissing

appeal for failure to present a substantial federal question

by challenging a Detroit residency requirement for police

officers), dismissing appeal from 190 N.W.2d 97 (Mich.

1971) (en banc). The Supreme Court of New Jersey has

also held that municipal residency requirements do not

violate equal protection guarantees. Kennedy v. City of

Newark, 148 A.2d 473 (N.J. 1959) (rejecting a state

constitutional challenge); Trainor v. City of Newark, 368

A.2d 381 (N.J. Super. Ct. App. Div. 1976).

Despite the foregoing principles, plaintiffs have raised

several equal protection challenges which we will address

in turn.

1. State Law Exceptions

The City’s residency ordinance states that all officers

and employees of the City are to be residents but the New

Jersey Legislature has enacted several statutes that ex-

empt certain employees from municipal residency require-

ments.*° These exemptions appear to leave the residency

8In particular, N.J.S.A. 40A:14-9.1 exempts firefighters, N.J.S.A.

40A:14-122.1 exempts police officers, and N.J.S.A. 18A:26-1.1 ex-

empts teachers from the residency requirements. Lastly, some

officer posts and appointed positions may be held by nonresidents.

N.J.S.A. 40A:9-1.1 (nonresident may be appointed director of

public safety); N.J.S.A. 40A:9-11 (nonresident may be counsel,

attorney, engineer, health officer, auditor or comptroller of the

municipality). See also, Municipal Residency Ordinance #78-3

(exempting certain positions requiring specialized education and

talent and those individuals “grandfathered” in under the ordi-

nance) (JA 38-39).

The City contended in its brief, and at oral argument, that these

exemptions should not be considered applicable to the City of

Salem. As a. “technical” matter, the City does not have any paid

firefighters so the state exemption does not apply. Further, the

13a

requirement applicable only to blue-collar and clerical

employees of the City.

Although the governing state statutes exempt many

employees from the ordinance, their validity is not before

this court. Thus, we focus, as the district court did, solely

on whether there is a “rational basis” for the City’s

residency requirement. The controlling issue is whether a

legitimate governmental purpose is served by the classifi-

cation of the ordinance, keeping in mind that we will

only set aside the ordinance’s classifications “if no grounds

can be conceived to justify them.” McDonald v. Board of

Election Comm'rs, 394 U.S. 802, 809 (1969). An ex-

amination of the purposes set forth in the preamble to

the ordinance under attack reveal grounds to support the

ordinance, e.g., “provide unto the City economic benefits”.

We conclude that it serves a legitimate governmental pur-

pose.

2. Grandfather Clause Exception

Section 3(d) of the Municipal Residency Ordinance

exempts from the residency requirement “[a]ny person

employed by the City who resides outside the City as of

the date of the adoption of this ordinance.” JA 39. Ap-

pellants claim that this is an irrational application of the

residency requirement.®

City does not employ any teachers or librarians in the context

required for those exemptions to apply. Lastly, che City avers that

although there is an exemption for the Public Safely Director, the

City does not have such a position.

® Appellants offer as an example Mr. Kenneth Homan, Scull’s

former supervisor. Mr. Homan was “grandfathered” in because

he began working for the City prior to the enactment of the City

ordinance. Appellants suggest that Mr. Homan should have been

living in the City as required by the state law at that time that

required all “officers” reside within their respective municipalities.

See N.J.S.A. 40A:9-1 (repealed June 30, 1978). It is interesting

to note, however, that even if Mr. Homan was not “grandfathered”

in under the new ordinance, he would have been exempt from the

14a

The Supreme Court has approved of “grandfather”

clauses that protect individuals and interests from changes

in the law that would destroy established reliance on

previously valid regulations and laws. See City of New

Orleans v. Dukes, 427 U.S. 297 (1976) (upholding in

the face of an equal protection challenge a grandfather

clause that exempted certain street vendors from new

regulations in the French Quarter). Further, we note

that at least two courts of appeals have upheld the valid-

ity of such clauses under a rational basis analysis. Lorenz

v. Logue, 611 F.2d 421, 423 (2d Cir. 1979) (per

curiam) (“By not applying [the residency requirement]

to pre-1978 employees who never received any warning

of a residency requirement when they took their jobs,

the City protected these employees’ legitimate expecta-

tions.” (emphasis in original)); Simien v. City of San

Antonio, 809 F.2d 255, 257 (Sth Cir. 1987) (“The

grandfathering of other employees based on the length of

their employment is a constitutional means to gradually

achieve a workforce that resides in the city.”). We also

conclude that the exemption of those employees who were

employed prior to the adoption of the ordinance and who

lived outside the City does not render the ordinance un-

constitutional.” We find no irrationality in this grand-

father clause.

ordinance by virtue of N.J.S.A. 40A:9-11, which exempts “health

officers.” As Mr. Homan was Superintendent of the municipal

water supply and waste water treatment facility and required to be

licensed as a health officer pursuant to N.J.S.A. 26:1A-41, he

would be exempt. See generally N.J.S.A. 26:1A-7 (granting the

State Department of Health jurisdiction over matters relating to

sewage and waste water).

10 The ordinance’s grandfather exemption is not absolute, how-

ever. Section 3(d) states that if the grandfathered employee “sub-

sequently makes his residence within the City [he] shall not be

exempt from the requirements of this ordinance.”

15a

C. Fourteenth Amendment Due Process Challenges

Plaintiffs raised five claims of due process violations

under the Equal Protection Clause in the district court.

The district court held that each was without merit and

granted summary judgment to the City. Appellants’ brief

presents only two of the original five claims for our

review.

1. Selective Enforcement

Plaintiffs claim that although the ordinance had been

in effect for more than fourteen years at the time of

Scull’s notice of violation, there was an absence of evi-

dence that it was invoked, which they argue shows that it

was being selectively enforced against Scull. The City,

however, provided evidence of enforcement of the ordi-

nance against an employee who chose to reside outside

of the City. JA 188-91. Because the City was able to

negate the appellants’ claim that the ordinance was never

enforced, the district court properly granted summary

judgment. The appellants have not met their burden,

which requires them to offer evidence “that the [munici-

pality] intentionally and purposefully discriminated against

[Scull] by failing to prosecute other similarly situated

persons.” United States v. Torquato, 602 F.2d 564, 570

(3d Cir.), cert. denied, 444 U.S. 941 (1979). Thus the

City was entitled to summary judgment.

2. Notice of the Requirement

Plaintiffs next contend that Scull had not been given

written or oral notice of the residential requirement when

he was appointed to his position. The record, however,

contains evidence that copies of the ordinance were posted

in work areas so as to give notice to employees. JA

186. We note further that Scull was given ample time

11 Despite our hesitation to point to such hearsay evidence, we

recognize that the summary judgment record contains an unchal-

lenged affidavit of Mr. Thomas G. Smith, Sr., Salem’s Municipal

16a

and opportunity to avoid termination once he had been

given notice of his violation.” Our review of the record

reveals that Scull has failed to raise an issue of material

fact that would require a reversal of the district court’s

grant of summary judgment.

IV.

We will affirm the district court’s order granting the

defendants’ summary judgment and denying plaintiffs’

motion for summary judgment.

Administrator, that states that Scull contacted the president of

the Association prior to moving out of the City to inquire into the

requirements of the ordinance. JA 183. Mr. Smith’s affidavit avers

that the president disclosed that Scull contacted him and that the

inquiry was revealed during grievance proceedings that took place

prior to this suit. Id.

12 Scull was given an initial period of ten days to correct his

situation by his employer but this period was later extended to

six months. Ultimately, the time requirement was stayed pending

the outcome of these proceedings.

17a

SLOVITER, Chief Judge, dissenting.

It is ironic that notwithstanding the intent of the Privi-

leges and Immunities Clause to “fuse into one Nation a

collection of independent, sovereign States,” Toomer v.

Witsell, 334 US. 385, 395 (1948), the motivation to

retain privileges for one’s own citizens has remained

strong. Thus, the history of the Privileges and Immuni-

ties Clause, albeit somewhat sparse, consists of a series

of cases in which obstacles erected by parochialism but

sought to be justified in the name of valid local interests

generally have been found wanting when measured against

the goal of national unity.

The issue before us is apparently one of first impression

for an appellate court: whether the Clause applies to

statutes burdening purely public employment. Because I

conclude, contrary to my colleagues, that it does apply,

I respectfully dissent.

I.

The majority bases its holding that the Privileges and

Immunities Clause is inapplicable in this case on its con-

clusion that “direct public employment is not a privilege

or fundamental right protected by the Privileges and

Immunities Clause of Article Four.” Maj. Typescript Op.

at 10. It recognizes that the Supreme Court cases have

dealt only with private employment in this context. The

majority infers, however, based on language it quotes

from the Court’s opinion in United Building & Construc-

tion Trades Council v. Mayor & Council of Camden,

465 U.S. 208 (1984) (hereinafter Camden), that the

Supreme Court was establishing an unwavering distinc-

tion between private and public employment. However,

Camden, rather than providing the basis for a restrictive

ruling, is a case that significantly expanded the scope of

the Privileges and Immunities Clause by applying it to

restrictions placed on employment of nonresidents by

private employers on publicly-funded work projects.

Therefore, I believe that the majority’s conclusion does

not follow from Camden.

18a

There can be no question that among the privileges

encompassed in the Privileges and Immunities Clause is

that of employment. The centrality of commerce among

the protections provided by that Clause is well-established,

notwithstanding the focus of the Court in an early dis-

cussion on other attributes of citizenship. In Paul v.

Virginia, the Court stated the purpose of the 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. It relieves them from the disabilities

of alienage in other States; it inhibits the discrimi-

nating legislation against them by other States; it

gives them the right of free ingress into other States,

and egress from them; it insures to them in other

States the same freedom possessed by the citizens of

those States in the acquisition and enjoyment of

property and in the pursuit of happiness; and it se-

cures to them in other States the equal protection of

their laws. It has been justly said that no provision

in the Constitution has tended so strongly to consti-

tute the citizens of the United States one people as

this.

75 US. (8 Wall.) 168, 180 (1869).

Thus, although equality of commercial opportunities

among citizens of different states was primarily seen as

the function of the Commerce Clause, there were early

cases that relied on the Privileges and Immunities Clause

to strike state statutes that discriminated against efforts of

nonresidents to ply their trade. See, e.g., Blake v. Mc-

Clung, 172 U.S. 239 (1898) (invalidating state law

which granted preference to resident creditors of insolvent

foreign corporations); Ward v. Maryland, 79 U.S. (12

Wall.) 418 (1871) (striking Maryland statute which

established discriminatory licensing fee scheme based on

residency for the sale of out-of-state goods).

19a

Justice Brennan has dated the analytical framework

used in the modern cases applying the Clause to Toomer

v. Witsell, 334 U.S. 385 (1948), holding violative a

South Carolina statute requiring nonresidents to pay a

shrimp harvesting licensing fee one hundred times greater

than that charged residents. See also Mullaney v. An-

derson, 342 U.S. 415 (1952) (invalidating commercial

fishing licensing fee which was ten times greater for non-

residents than for residents of Alaska).

Although the majority rationalizes its holding on the

survival of a public/private distinction, in fact the Su-

preme Court has consistently rejected public ownership

of assets as a sufficient justification in itself for discrimi-

natory rules. In Hicklin v. Orbeck, 437 U.S. 518 (1978),

Alaska sought to justify its preference for employing

Alaska residents in projects developing Alaskan oil or

gas on the ground that “the oil and gas that are the sub-

ject of Alaska Hire are owned by the State.” Jd. at 528.

The Supreme Court-rejected that contention, stating, “[w]e

do not agree that the fact that a State owns a resource,

of itself, completely removes a law concerning that re-

source from the prohibitions of the Clause.” Jd.

Even in the one recent Supreme Court case to uphold

a state preference, i.e., Montana’s rule charging its resi-

dents a lower fee than charged to nonresidents for a

license to hunt elk for sport, the Court noted that despite

the early cases giving states the right to preserve their

wildlife bounty for their citizens alone, “[i]n more recent

years . . . the Court has recognized that the States’ inter-

est in regulating and controlling those things they claim

to ‘own,’ . . . is by no means absolute.” Baldwin v. Fish

& Game Comm'n of Montana, 436 U.S. 371, 385 (1978).

The Court cautioned that “a State’s interest in its wildlife

and other resources must yield when, without reason, it

interferes with a nonresident’s right to pursue a livelihood

in a State other than his own, a right that is protected

by the Privileges and Immunities Clause.” Jd. at 386.

Thus, the rationale that the Court used in sustaining

20a

Montana’s licensing scheme was that elk hunting was not

a “basic and essential activit[y], interference with which

would frustrate the purposes of the formation of the

Union,” id. at 387, rather than one based on public

ownership of the wilderness and its bounty.

It was in this stage of the analytic development of the

Clause that the Court decided Camden, a decision note-

worthy on several grounds. Before that decision, the

Court had not applied the Privileges and Immunities

Clause to municipal ordinances. In Camden, the Court

ruled that because “a municipality is merely a political

subdivision of the State from which its authority derives

. what would be unconstitutional if done directly by

the State can no more readily be accomplished by a city

deriving its authority from the State.” 465 U.S. at 215.

Moreover, it rejected the New Jersey Supreme Court’s

conclusion “that the Privileges and Immunities Clause

does not apply to an ordinance that discriminates solely

on the basis of municipal residency.” Id. The Court

applied a common sense approach, recognizing that “[a]

person who is not residing in a given State is ipso facto

not residing in a city within that State.” Id. at 216-17.

Therefore, “an out-of-state citizen who ventures into New

Jersey will not enjoy the same privileges as the New Jersey

citizen residing in Camden.” Id. at 217. Thus, the Cam-

den ordinance was subject to constitutional review under

the Clause at the behest of out-of-state residents.

The other landmark ruling to emerge from the Camden

opinion was, of course, the holding that the City of

Camden’s hiring preference ordinance, requiring that at

least forty percent of the employees of contractors and

subcontractors working on city construction projects be

Camden residents, was subject to the strictures of the

Privileges and Immunities Clause. The ruling was par-

ticularly noteworthy because the preceding year the Court

sustained an analogous executive order of the mayor of

Boston against a challenge under the Commerce Clause.

See White v. Massachusetts Council of Constr. Employ-

2la

ers, Inc., 460 U.S. 204 (1983). The Court explained,

however, that “the fact that Camden is merely setting

conditions on its expenditures for goods and services in

the marketplace [which defeated the Commerce Clause

challenge in White] does not preclude the possibility that

those conditions violate the Privileges and Immunities

Clause.” Camden, 465 U.S. at 220.

Accordingly, the Court turned to the “threshold mat-

ter” of “whether an out-of-state resident’s interest in em-

ployment on public works contracts in another State is

sufficiently ‘fundamental’ to the promotion of interstate

harmony so as to ‘fall within the purview of the Privileges

and Immunities Clause.’” Jd. at 218 (citation omitted).

The majority and I differ in our interpretation of the

Court’s analysis in response to this query.

The Court first stated that “[c]ertainly, the pursuit of a

common calling is one of the most fundamental of those

privileges protected by the Clause.” Jd. at 219. It con-

tinued, in the sentence the majority finds dispositive,

“[p]Jublic employment, however, is qualitatively different

from employment in the private sector; it is a subspecies

of the broader opportunity to pursue a common calling.”

Id. The Court then noted that it had held there is no

fundamental right to government employment for purposes

of the Equal Protection Clause, citing Massachusetts Bd.

of Retirement v. Murgia, 427 U.S. 307, 313 (1976)

(per curiam), and referred to its decision in White hold-

ing that the Commerce Clause did not preclude such

municipal favoritism of residents in employment.

Notwithstanding all of the above, the Court proceeded

to hold that the Privileges and Immunities Clause was

applicable. The Court distinguished the Commerce Clause

analysis from that applicable to the Privileges and Im-

munities Clause, stating that “[i]t is discrimination against

out-of-state residents on matters of fundamental concern

which triggers the Clause, not regulation affecting inter-

state commerce.” Id. at 220. I read the Court’s opinion

in Camden as holding that notwithstanding the inapplica-

22a

bility of other clauses of the Constitution to a municipal

residency requirement, such a requirement trenches on

the raison-d’etre of the Privileges and Immunities Clause.

Consistent with its decision in Hicklin, the Camden

Court rejected the argument that the public ownership of

the assets used for the municipal projects immunized the

residency requirement from Privileges and Immunities

scrutiny, noting that in its earlier cases it had concluded

“that the State’s interest in controlling those things it

claims to own is not absolute.” Jd. at 221. It continued,

Much the same analysis, we think, is appropriate to

a city’s efforts to bias private employment decisions

in favor of its residents on construction projects

funded with public moneys. The fact that Camden

is expending its own funds or funds it administers

in accordance with the terms of a grant is certainly

a factor—perhaps the crucial factor—to be con-

sidered in evaluating whether the statute’s discrimi-

nation violates the Privileges and Immunities Clause.

But it does not remove the Camden ordinance com-

pletely from the purview of the Clause.

Id. (emphasis added).

The Camden opinion suggests, even if it does not ac-

tually hold, that even a direct municipal residency require-

ment or preference for municipal employment will be sub-

ject to scrutiny under the Privileges and Immunities

Clause. Although the Court did indeed comment that

“(t]he opportunity to seek employment with [private con-

tractors and subcontractors engaged in public works] is

‘sufficiently basic to the livelihood of the Nation’. . . as

to fall within the purview of the Privileges and Immuni-

ties Clause even though the contractors and subcontrac-

tors are themselves engaged in projects funded in whole

or part by the city,” id. at 221-22 (citation omitted), this

does not signify that when faced with a direct employ-

ment issue, the Court would accept the distinction made

by the majority.

23a

The expansive reading the Court gave to the Clause

Suggests to the contrary, particularly in light of the un-

disputed fact that in recent times, as public employment

continues to expand, nearly one-sixth of all jobs in New

Jersey, as well as one-fifth of those throughout the coun-

try, are held by public employees. App. at 138-44 (citing

data from Bureau of Labor Statistics, U.S. Dept. of Labor,

Employment, Hours, and Earnings, States and Areas,

Data for 1987-1992 384 (1992) (documenting that of a

total of 3,493,100 nonfarm employees in New Jersey,

566,700 or 16.2% were government employees and that

nationally, of a total of 89,930,000 nonfarm employees,

18,379,000 or 20.4% were government employees) ). In

terms of its economic importance, it can hardly be doubted

that government employment surpasses shrimp fishing,

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

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

trade of foreign goods, Ward v. Maryland, 79 U.S. (12

Wall) 418 (1871), and the practice of law, Supreme

Court of Virginia v. Friedman, 487 U.S. 59 (1988);

Supreme Court of New Hampshire v. Piper, 470 U.S. 274

(1985), all trades sufficiently fundamental to warrant the

Clause’s protection.

I do not suggest that a residence requirement for

municipal employees necessarily violates the Privileges and

Immunities Clause. This is, as the Court noted in

Camden, only the first step. Once it is determined that

the Privileges and Immunities Clause is applicable, the

court must then apply the Toomer analysis, under which

it must be determined whether there is a “substantial rea-

son” for the difference in treatment and “whether the de-

gree of discrimination bears a close relation” to those

reasons. See Toomer, 334 U.S. at 396. The majority’s

analysis pretermits that inquiry. The result is that a sub-

stantial number of jobs will be permanently foreclosed

from out-of-state residents for what may be insubstantial

reas~ns. This is a resu't that T believe is incompatible with

the Privileges and Immunities Clause.

24a

II.

The appellants do not challenge the legal principle

eunciated by the majority that municipal residency re-

quirements for public employment do not on their face

violate the Equal Protection Clause. Their objection is a

different one, in that they pose a challenge to the ordi-

nance as it has been applied. Essentially their claim is

that the cumulative effect of the various exemptions from

the residency requirement, both statutory and in practice,

makes any distinction between residents and nonresidents

arbitrary or irrational.

Thus, the appellants argue that “a classification whose

relationship to an asserted goal is so attenuated as to

render the distinction arbitrary or irrational” cannot be

deemed rational. Appellants’ Brief at 37 (citing City of

Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432,

446 (1985)). I do not understand the majority to chal-

lenge the contention that in the main it is the clerical and

blue collar workers of the city who are required to be

Salem residents, while employees who are better connected

politically, such as police, supervisors, and other white

collar workers, work for the city but reside outside of its

borders. The majority explains that each of the exemp-

tions has a justifiable explanation, such as an exemption

pursuant to state statute or a legitimate grandfather clause.

The majority’s analysis, however, fails to take into con-

sideration the cumulative effect of the exemptions. Even

if each exemption is itself explicable, together they pro-

duce a patchwork of exemptions that throw into question

the rationality of the scheme.

I am, above all, troubled by the allegation that the

residency requirement lay dormant until applied against

appellant Scull when he questioned the conduct of a

volunteer firefighter at the scene of a fire. See App. at

173. I find the majority’s response, that the residency

requirement was also enforced against another employee,

unpersuasive. Nonetheless, because I believe that this is

25a

an appropriate case for decision of the still undecided

question of the applicability of the Privileges and Im-

munities Clause to public employment, I rest on that

ground alone for my position that the order of the district

court should be reversed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

26a

[Filed Sep. 13, 1993]

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Civil No. 92-1137

SALEM BLUE COLLAR WORKERS ASSOCIATION

and STEPHEN SCULL,

Plaintiffs,

v.

THE City OF SALEM; Mayor and COMMON COUNCIL

OF SALEM; MAYOR LEON JOHNSON; CITY OF SALEM

COMMON COUNCIL MEMBERS, JOHN BURKE; ROBERT

DAviIs; ROBERT ELK; BETSY ERHARDT; EARL GAGE;

ROBERT JOHNSON; DONALD SHARP; and JOSEPH

WEAVER, individually and in their official capacities,

Defendants.

OPINION

GERRY, Chief Judge

This lawsuit challenges the City of Salem’s municipal

residency ordinance, which requires city employees to

reside in the city. Plaintiffs claim that this ordinance vio-

lates the Privileges and Immunities Clause of Article IV

of the United States Constitution in addition to various

other provisions of the United States and New Jersey Con-

stitutions. Plaintiffs are the Salem Blue Collar Workers

Association, the collective bargaining agent for blue collar

and clerical workers employed by the City of Salem, and

Stephen Scull, a laborer for the City and member of the

union who has been threatened with termination because

he lives outside the city. They seek declaratory relief,

p-eliminary and permanent injunctive relief, and damages

against the City of Salem and various officials thereof.

27a

The case is presently before the court on cross-motions

for summary judgment.

I. Facts

The following facts are undisputed. The Salem residency

ordinance was enacted in 1978 and provides that

all full-time permanent and full-time, part-time offi-

cers and employees hereinafter to be employed by the

City of Salem are hereby required as a condition of

their employment to have their place of abode in the

City of Salem and be a bona fide domiciliary therein.’

The ordinance has been interpreted by the City to apply

only to those hired or apvointed after its effective date,

thus effectively “grandfathering” those who were previ-

ously employed by the City and live elsewhere. The ordi-

nance authorizes the Mayor and Common Council “for

good and sufficient cause” to waive the ordinance where

residence outside of the city is required due to the health

of the employee, due to the nature of the employment, or

where “specialized talent or technique is required, such as

professional services of engineers or accountants.”

The ordinance further requires that as “a condition of

employment, each and every employee or prospective

employee shall be required to execute an affidavit, in [a]

form prescribed by the Mayor and Common Council,

setting forth .. . that [the] employee is domiciled in the

City.” It also provides that any employee who is not a

resident is to be given “a ten (10) day notice setting

1 At the time the ordinance was enacted, all elected and appointed

officers of municipalities in New Jersey were required to be resi-

dents of such municipalities by virtue of state law, N.J. Stat. Ann.

40A:9-1. A few months later, however, that statute was repealed

and replaced by N.J. Stat. Ann. 40A:9-1.3, which provides that

“the governing body of any local unit may by resolution or ordi-

nance, as appropriate, require, subject to the provisions of this

act, all officers and employees employed by the local unit after the

effective date of this act to be bona fide residents therein.”

28a

forth the charge that the employee is not a bona-fide

resident” and therefore faces discharge.

Since the ordinance’s enactment in 1978, no one has

been fired for failure to comply with it.? It has never

been discussed or negotiated with the Union, and there

is no reference to it in the parties’ collective bargaining

agreement. The Mayor and Common Council have never

promulgated an affidavit regarding residency nor required

any employee or prospective employee to execute such

an affidavit, as provided for in the ordinance. The City’s

standard employment application asks for the prospective

employee’s address and includes a certification as to the

accuracy of the information provided. The application

does not indicate that all employees are required to be

city residents, and the City provides nothing in writing to

any new employee prior to hiring that indicates that

municipal employment is conditioned on city residency.

The City’s police officers, firefighters, and public school

teachers * are exempted from the ordinance by operation

of state law. See N.J. Stat. Ann. 40A:14-122.1 (preclud-

ing imposition of municipal residency ordinances on police

officers); N.J. Stat. Ann. 40A:14-9.1 (firefighters); N.J.

Stat. Ann. 18A:26-1.1 (teachers). Additionally, many

skilled and supervisory personnel have been informally

exempted from the ordinance; but none of these em-

ployees have sought or received official waivers from the

Mayor and City Council.

2 Defendants have submitted an affidavit stating that in 1991 the

Municipal Administrator confronted an employee who worked for

the City as a clerk typist with an allegation that she no longer

resided in the City, in violation of the ordinance. According to the

affidavit, she chose to resign rather than face charges under the

ordinance.

3 Defendant contends that teachers are not municipal employees,

but are instead employed by the Salem Board of Education, which

is an autonomous agency.

29a

Plaintiff Salem Blue Collar Workers Association is the

collective bargaining agent for blue collar and clerical

employees of the City of Salem. Some members of the

Association live outside the State of New Jersey. Addi-

tionally, other members of the Association might be will-

ing to reside outside the State of New Jersey but for the

City’s residency ordinance.

Plaintiff Stephen Scull was hired by the City as a

laborer on November 20, 1989, at which time he was a

resident of the city. He was not asked to sign an affidavit

evidencing that he was a resident of the city, nor was he

informed by any city official of the residency requirement.

At some time thereafter, Mr. Scull moved out of Salem to

another location in New Jersey because of concern for

the health and safety of his children. On January 31,

1992, Kenneth Homan, Superintendent of the Salem

Water and Sewerage Department, told Mr. Scull that

because he was residing outside the city he was in viola-

tion of the municipal residency ordinance. He was in-

formed that he had thirty days in which to correct the

violation, at which time termination proceedings would

begin.

On March 9, 1992, the Salem Blue Collar Workers

Association filed an Unfair Practice Charge and an Order

to Show Cause before the New Jersey Public Employment

Relations Commission, contending that the City of Salem

violated the New Jersey Employer-Employee Relations

Act, N.J. Stat. Ann. 34:13A-5.4(a)(1) & (5). On

March 17, 1992, plaintiffs filed this action pursuant to 42

U.S.C. § 1983 and the Declaratory Judgment Act, 28

U.S.C. § 2201. On April 9, 1992, the City agreed to be

temporarily restrained from disciplining Stephen Scull or

any other member of the Salem Blue Collar Workers

Association for any violation of the residency ordinance

until further order of the New Jersey Public Employment

Relations Commission. Action on the Association’s un-

fair practice charge before the Commission was postponed

30a

indefinitely pending the outcome of plaintiffs’ constitu-

tional challenge in this court.

Il. Discussion

Under Fed. R. Civ. P. 56, summary judgment is appro-

priate only if all the probative materials of record “show

that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(c). See, e.g., Hersh v. Allen

Products Co., 789 F.2d 230, 232 (3d Cir. 1986); Lang v.

New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir.

1983). Although the record before us contains numerous

disputes as to issues of fact, none of these are material

to the legal analysis of plaintiffs’ claims. Thus, based

on the undisputed facts presently before the court, we

conclude as a matter of law that all of plaintiffs’ claims

must fail.

Plaintiffs primarily rest their challenge on the Privileges

and Immunities Clause of Article IV of the United States

Constitution, but they also make arguments under the

Equal Protection and Due Process Clauses of the Four-

teenth Amendment and the equivalent clauses of the New

Jersey Constitution. We address each claim in turn.

A. Article IV Privileges and Immunities Clause

The Privileges and Immunities Clause of Article IV

states that “[t]he citizens of each State shall be entitled to

all Privileges and Immunities of Citizens in the several

States.” The Clause was intended to foster a national

economic union by limiting a state’s power to discrim-

inate against residents of other states. See, e.g., Supreme

Court of N.H. v. Piper, 470 U.S. 274, 280 (1985);

Toomer vy. Witsell, 334 U.S. 385, 395-96 (1948); Paul

v. Virginia, (8 Wall) 168, 180 (1869). The Supreme

Court has relied on the Privileges and Immunities Clause

to invalidate a variety of state statutes that place un-

reasonable burdens on out-of-state citizens and whose sole

- tie SRO

3la

basis for classification is place of residency. See, e.g.,

Piper, 470 U.S. 274 (New Hampshire’s residency require-

ment for admission to the bar); Hicklin v. Orbeck, 437

U.S. 518 (1978) (Alaskan statute requiring all contracts

in connection with construction of Alaskan oil and gas

pipelines to give preference in hiring to Alaskan resi-

dents); Austin v. New Hampshire, 420 U.S. 656 (1975)

(commuter income tax imposed only on out-of-state resi-

dents who work in state); Doe v. Bolton, 410 U.S. 179

(1973) (state statute prohibiting abortions performed on

out-of-state residents); Mullaney v. Anderson, 342 U.S.

415 (1952) (statute of Territory of Alaska charging non-

residents forty-five dollars more for commercial fishing

license than residents); Toomer, 334 U.S. 385 (South

Carolina statute requiring non-residents to pay one hun-

dred times more for commercial shrimp license than resi-

dents); Ward v. Maryland, 79 U.S. (12 Wall) 418

(1871) (Maryland statute requiring only non-resident

merchants to obtain license to practice their trade, charg-

ing higher fees to non-resident than to resident merchants,

and prohibiting merchants from using non-resident sales-

men to sell goods in Baltimore).

Even though a municipal ordinance, such as Salem’s,

discriminates against in-state residents who live outside

the city in addition to out-of-state residents, the Supreme

Court has held that the Privileges and Immunities Clause

is no less applicable to laws that discriminate on the

basis of municipal residency than it is to laws that dis-

criminate on the basis of state residency. See United Bldg.

& Constr. Trades Council v. Mayor & Council of Cam-

den, 465 U.S. 208, 215-218 (1984). In so holding, the

Court noted that while “[in-state] residents at least have

a chance to remedy at the polls any discrimination against

them[,] [o]ut-of-state citizens have no similar opportu-

nity.” Id. at 217 (citations omitted). Accordingly, out-of-

state residents burdened by a municipal residency ordi-

nance must be accorded the protections of the Clause.

32a

Thus, while the Court held that municipal residency

ordinances are subject to challenge under the Clause, it

also made clear that such a challenge may only be brought

by out-of-state residents. “(T]he disadvantaged [in-state]

residents have no claim.” Id. at 217. The complaint al-

leges that plaintiff, Stephen Scull, lives outside Salem

but inside the State of New Jersey. Accordingly, as an

in-state resident, he has no claim against the Salem ordi-

nance under the Privileges and Immunities Clause. Sum-

mary judgment on his claim will therefore be granted in

favor of defendants.

The Salem Blue Collar Workers Association asserts

that it has members who live outside the state as well as

members who might live outside the state but for the

ordinance. Since this factual assertion remains unchal-

lenged by defendants, the union does have standing to

assert a Privileges and Immunities Clause claim. See id.

at 212, n.4 (Privileges and Immunities Clause challenge

to municipal ordinance cognizable where plaintiff union

“has at least some members who reside outside New Jer-

sey”). Accordingly, we proceed to consider whether the

union’s rights under the Clause are violated by the Salem

ordinance.

The first step in determining whether a statute or ordi-

nance violates the Privileges and Immunities Clause is to

inquire “whether the ordinance burdens one of those Priv-

ileges and Immunities protected by the Clause.” United

Bldg. & Constr. Trades Council, 465 U.S. at 218. Not all

discrimination against out-of-state residents is prohibited.

It is only with respect to those ‘privileges’ and ‘immunities’

that are “sufficiently basic to the livelihood of the Nation”

and that “bear[] on the vitality of the Nation as a single

entity,” Baldwin v. Fish & Game Comm'n, 436 U.S. 371,

383, 388 (1978), that “a State must accord residents

and nonresidents equal treatment.” Piper, 470 U.S. at

279. States are, for example, free to restrict voting rights

to those who are citizens, and free to require those who

33a

run for public office to be citizens. See Baldwin, 436 U.S.

at 383. Additionally, the Supreme Court has held that

it is permissible for a state to charge more to a non-

resident than to a resident for a recreational elk-hunting

license, because elk-hunting is not a “means of a liveli-

hood” and thus not fundamental to a national economic

union. See id. at 388.

On the other hand, statutes that burden the ability of

non-residents “to ply their trade, practice their occupa-

tion, or pursue a common calling within the State,” Hick-

lin v. Orbeck, 437 U.S. 518, 524 (1978), repeatedly have

been held to come within the purview of the Clause. It is

plaintiffs’ contention that the Salem ordinance falls within

this category. Defendants argue, however, that ordinances

that burden public employment are fundamentally distin-

guishable from ordinances that burden private employ-

ment, and that only the latter come within the purview

of the Clause.

No court has directly addressed this question of whether

the Clause applies to statutes burdening purely public

employment. Those cases that have found employment

to be protected by the Clause have generally involved

government regulation of private employment. See, e.g.,

Supreme Court of Va. v. Friedman, 487 U.S. 59 (1988)

(practice of law); Piper, 470 U.S. 274 (same); Mullaney

v. Anderson, 342 U.S. 415 (1952) (commercial fishing);

Toomer, 334 U.S. 385 (commercial shrimp harvesting);

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

chants); O’Reilly v. Board of Appeals, 942 F.2d 281

(4th Cir. 1991) (driving taxi cabs); Silver v. Garcia,

760 F.2d 33 (1st Cir. 1985) (insurance consulting);

Tangier Sound Watermen’s Assoc. v. Douglas, 541

F. Supp. 1287 (E.D.Va. 1982) (commercial fishing).

Additionally, the language used to describe the nature of

the privileges and immunities protected by the Clause

often uses words such as “commerce,” “commercial,”

“trade,” and “business,” which seem to suggest private

34a

commercial activity as opposed to public or government

employment. For example, the fourth article of the Arti-

cles of Confederation, from which the Privileges and

Immunities Clause was derived “with no change of sub-

stance or intent,” Austin v. New Hampshire, 420 U.S.

656, 660-61 (1975), specifically referred to “the privileges

of trade and commerce.” Additionally, the Supreme Court

has characterized the activities covered by the Clause as

“lawful commerce, trade or business,” Ward v. Maryland,

79 U.S. (12 Wall) 418 (1871), and “doing business,”

Toomer v. Witsell, 334 U.S. 385, 396 (1948).

None of this is dispositive, of course. We cite these

cases not as conclusive precedent, but simply to illustrate

an apparent underlying assumption in the cases interpret-

ing the Privileges and Immunities Clause that the types of

“trades,” “occupations,” and “common callings” with

which the Clause is concerned are those that are directly

involved with the private realm of business and commerce

rather than the public realm of government. This supposi-

tion has been borne out by the Supreme Court’s treatment

of the public/private distinction in two more recent cases

analyzing claims under the Clause, Supreme Court of

New Hampshire v. Piper, 470 U.S. 274 (1985), and

United Bldg. & Constr. Trades Council v. Mayor and

Council of Camden, 465 U.S. 208 (1984). While not

directly on point, the Court’s reasoning in these two

cases rests on the precept that purely public employment

is outside the reach of the Clause.

In Piper the Court considered the applicability of the

Clause to the practice of law in the context of a challenge

to a rule restricting admission to the bar to state residents.

The language of that opinion indicates that it was the

private nature of the employment involved that rendered

it subject to Privileges and Immunities Clause scrutiny.

The Court concluded that the practice of law was a “privi-

lege” within the meaning of the Clause because it is “im-

portant to the national economy” and because “the ‘activi-

OM at aA tna Shh Pepi sm rhe

35a

ties of lawyers play an important part in commercial

intercourse.” Id. at 281 (emphasis added) (quoting

Goldfarb v. Virginia State Bar, 421 USS. 773, 788

(1975).

The Court rejected an argument that the Clause should

be inapplicable to lawyers because they are “officer[s] of

the court” who “exercise[] state power on a daily basis,”

not because it took issue with the proposition that jobs

involving the “exercise of state power” should be exempt

from scrutiny under the Clause, but rather because it

viewed lawyers more as private businessmen than public

servants. Id. at 283. “We conclude that a lawyer is not

an ‘officer’ [of the court] within the ordinary meaning of

that word. He ‘makes his own decisions, follows his own

best judgment, collects his own fees and runs his own

business.” Jd., (quoting In re Griffiths, 413 U.S. 717,

728-29 (1973)). Thus, the Court’s reasoning in Piper

rested on an assumption that purely public employment

was not a “privilege” or “immunity” protected by the

Clause.

In United Bldg. & Constr. Trades Council v. Mayor

and Council of Camden, 465 U.S. 208 (1984) (“the

Camden Case”), the Supreme Court considered whether

employment by private contractors working on public

works projects came within the purview of the Clause.

In order to understand the Court’s reasoning in this case,

one must first be familiar with another Supreme Court

case decided just one year previously, White v. Massachu-

setts Council of Constr. Employers, 460 U.S. 204 (1983).

White involved a Commerce Clause challenge to an execu-

tive order of the Mayor of Boston requiring fifty percent

of all jobs on construction projects funded by that city

to be filled by city residents. In deciding whether the

Commerce Clause was implicated by such a regulation,

the Court found it important to determine whether the em-

ployment affected was private or public. The Commerce

Clause imposes restraints on economic regulation of pri-

vate parties by individual states. Thus, where a state acts

36a

as a “market regulator” (i.e. telling private employers who

they can hire), the Commerce Clause is implicated. Where

a state acts instead as a “market participant” (i.e., in

hiring its own employees), the Commerce Clause is not

implicated. See id. at 207. The Court held that the em-

ployees affected by the Boston executive order, even

though working for private contractors, were essentially

public employees since they were paid by city funds.

Therefore, since Boston was acting as a market partici-

pant rather than a market regulator, it was not subject

to the restrictions of the Commerce Clause. Id. at 215.

In the Camden case, the Supreme Court considered a

very similar ordinance in the City of Camden, New Jersey,

which required forty percent of the employees of private

contractors and subcontractors working on city construc-

tion projects to be Camden residents. This time, however,

the challenge was based on the Article IV Privileges and

Immunities Clause rather than the Commerce Clause.

The defendants, invoking White, argued that those affected

were essentially public employees and that the preference

for residents was therefore constitutionally acceptable.

The Court rejected this argument, “declin[ing] to transfer

mechanically into [the context of the Privileges and Im-

munities Clause the analysis from White, which was]

fashioned to fit the Commerce Clause,” id. at 219, and

ultimately concluded that the type of employment bur-

dened by the Camden ordinance was “one of those Privi-

leges and Immunities protected by the Clause,” id. at 218,

221.

That holding is not controlling here since the case be-

fore us involves direct government employment rather

than employment by government contractors. In holding

that the quasi-public employment at issue in the Camden

case was protected by the Clause, the Supreme Court did

not conclusively answer the question we face: whether

purely public employment is embraced by the Clause. An

examination of the reasoning employed by the Court to

reach its holding, however, should shed some light on that

37a

question. Did the Court conclude that the employment

burdened by the Camden ordinance came within the Clause

because all employment, whether private or public, comes

within the Clause—or because it was distinguishable from

purely public employment?

Plaintiffs and defendants interpret the Court’s reason-

ing differently on this score, and both parties have been

able to find language in the opinion to support their op-

posing arguments. Plaintiffs argue that the Supreme’

Court’s refusal to apply the White analysis in the Camden

Case means that the public/private distinction has no

relevance to Privileges and Immunities Clause analysis,

and that burdens on all types of cinployment, whether

private or public, implicate the Clause. Defendants argue

that the Court’s rejection of White was not a wholesale

rejection of the public/private distinction itself, but merely

a refusal to adopt the specific criteria set forth in White

for determining whether a particular employment is more

properly characterized as public or private. According to

their interpretation, the Court found the Clause to apply

to the Camden ordinance because it found employment

by government contractors to be more properly charac-

terized as private than public in this context. For the

reasons set forth below, we find defendants’ reading of

the opinion more persuasive.

The Court began its analysis in the Camden case with

two observations, which are critical to an understanding

of its subsequent reasoning. First it stated that “[p]ublic

employment .. . is qualitatively different from employ-

ment in the private sector.” Jd. at 219. It then went on

to state, “[i]t can certainly be argued that for purposes of

the Privileges and Immunities Clause everyone affected

by the Camden ordinance is also ‘working for the city’

and, therefore, has no grounds for complaint when the

city favors its own residents.” Id. (emphasis added).

These initial observations set up two percepts on which

the subsequent analysis rests. The first is that the distinc-

tion between public and private employment is significant.

38a

The second is that someone who is in fact “working for

the city” (a public employee) has no grounds for com-

plaint under the Privileges and Immunities Clause; in

other words, purely public employment is outside the

purview of the Clause.

It is the passage immediately following this second

observation on which plaintiffs rely most heavily for their

argument that the Supreme Court viewed the private/

public employment distinction as irrelevant to the Privi-

leges and Immunities Clause analysis.

But we decline to transfer mechanically into this

context an analysis fashioned to fit the Commerce

Clause. Our decision in White turned on a distinc-

tion between the city acting as a market participant

and the city acting as a market regulator. The ques-

tion whether employees of contractors and subcon-

tractors on public vorks projects were or were not,

in some sense, working for the city was crucial to

that analysis. The question had to be answered in

order to chart the boundaries of the distinction. But

the distinction between market participant and mar-

ket regulator relied upon in White to dispose of the

Commerce Clause challenge is not dispositive in this

context. The two Clauses have different aims and

set different standards for state conduct.

Id. at 219-20. The Court went on to explain that the

market participant/regulator distinction is important in

the Commerce Clause context because the purpose of

that Clause is to avoid conflict between federal and state

regulation. The Privileges and Immunities Clause, on the

other hand, while also aimed at prohibiting barriers to

commerce between the individual states, is rooted more

in the individual’s right to travel from state to state to

pursue her livelihood. Id. at 220. Thus, while the Com-

merce Clause focuses on the actions of the state or mu-

nicipality (as either market regulator or market partici-

pant), the Privileges and Immunities Clause focuses on

39a

the right of the individual employee to pursue her liveli-

hood.

Plaintiffs read this passage as rejecting entirely any

consideration of the distinction between public and private

employment in the context of the Privileges and Immuni-

ties Clause. A better reading of this passage, however,

interprets it not as rejecting the private/public employment

distinction entirely, but rather as rejecting the particular

approach the Court took in White to decide whether em-

ployment by private contractors using public funds con-

stituted public or private employment. Nowhere in this

passage did the Court use the words “public” or “private.”

Rather, it discussed the “distinction between the city act-

ing as a market participant and the city acting as a

market regulator.” Jd. at 219. This was the test the

Court devised in White to draw the line between pubiic

and private employment. In refusing to apply the White

test to the Camden case, the Court was simply saying that

the line between public and private would not necessarily

be drawn in the same place when the Privileges and Im-

munities Clause was at issue as when the Commerce

Clause was at issue.

Later in the opinion, the Court stated:

The fact that Camden is expending its own funds. . .

in accordance with the terms of a grant is certainly

a factor—perhaps the crucial factor—to be consid-

ered in evaluating whether the statute’s discrimina-

tion violates the Privileges and Immunities Clause.

But it does not remove the Camden ordinance com-

pletely from the purview of the Clause... .

Id. at 221. “The fact that Camden is expending its own

funds” under the White analysis is what would have

made it a market participant and what therefore would

have pushed the employment at issue over the line into

the public sphere. In the Camden case, while it was a

factor to be considered, “the fact that Camden [was]

expending its own funds” was not enough in itself to

40a

render the employment public and thus did not completely

remove it from the purview of the Clause.

Finally, the language used by the Court in conciuding

its analysis indicates that it was ultimately the private

nature of the employment at issue in the Camden case

that brought it within the purview of the Privileges and

Immunities Clause. According to the Court, “[t]he op-

portunity io seek employment with such private employ-

ers is ‘sufficiently basic to the livelihood of the Nation’

as to fall within the purview of the Privileges and Im-

munities Clause even though the contractors and subcon-

tractors are themselves engaged in projects funded in

whole or part by the city.” Id. at 221-22 (emphasis

added) (quoting Baldwin v. Mont. Fish & Game Comm'n,

436 U.S. 371, 388 (1978). Thus, the same type of

employment that the Court considered public for pur-

poses of the Commerce Clause was considered private

for purposes of the Privileges and Immunities Clause.*

The Court’s original precept that those who are in fact

“working for the city’ have no cause to complain re-

mained true, but the test for determining whether some-

one is working for the city had changed.

Thus, while isolated passages of the Court’s opinion in

the Camden case may appear to support plaintiffs’ posi-

tion when read out of context, a careful reading of the

case as a whole demonstrates that the Court did not view

the public/private distinction as irrelevant to the Privi-

leges and Immunities Clause analysis. Rather, the Court’s

reasoning rested on a presumption that purely public

employment would be beyond the reach of the Clause.

4This is consistent with the Court’s view that the Commerce

Clause focuses on the perspective of the state or local government

while the Privileges and Immunities Clause focuses on the perspec-

tive of the individual. See supra at 16. Thus, from the perspective

of the Cities of Boston or Camden, the employment involved in

these two cases would appear public, since the cities were disburs-

ing public funds. From the perspective of the employee hired by

a private contractor, however, the employment would appear private.

4la

Such a precept is consistent with the Clause’s purposes

of preventing barriers to free trade and commerce between

the states and creating a single economic union. There

are significant differences between a state imposing re-

Strictions on its own workers—as any employer has cer-

tain latitude to do—and a state forcing private employ-

ers to impose restrictions on their employees. The latter

involves government restraint on the liberty of the private

employers affected, and additionally has a much broader

and more comprehensive impact on free trade and com-

merce between the states. Thus, the type of state regula-

tion of private employment that is typically struck down

under the Clause imposes a blanket burden on all persons

attempting to pursue a certain livelihood. The Salem

ordinance, in contrast, only affects those people seeking

employment with one small employer in the state: the

City of Salem. When Maryland charges more for a com-

mercial fishing license to out-of-state residents than to

state residents, anyone from out of state wishing to pursue

fishing as a livelihood in Maryland is burdened. When,

on the other hand, the City of Salem chooses to impose

a residency requirement on clerical employees, all out-of-

state residents wishing to pursue a livelihood as a secre-

tary in New Jersey are not burdened. Indeed, the vast

majority of secretarial jobs in the state remain open to

out-of-state residents. Thus, commerce as a whole is not

significantly affected.

Whether municipal employment comes within the pur-

view of the Privileges and Immunities Clause presents an

issue of first impression. Because Supreme Court dicta

indicates that public employment is not subject to the

protections of the Clause, and because we find that appli-

cation of the Clause in a situation such as this—where

the jobs affected represent a negligible percentage of the

State’s total job market—would be antithetical to the

purposes and policies that animate it, we hold that the

employment burdened by the Salem residency ordinance

is not a “privilege” or “immunity” within the meaning

42a

of the Clause. Summary judgment is therefore granted

in favor of defendants on this claim.

B. Equal Protection Challenge

Plaintiffs also challenge the ordinance under the Equal

Protection Clause of the Fourteenth Amendment. Since

the ordinance does not affect a fundamental right® or

discriminate against a protected group for purposes of

equal protection analysis, plaintiffs acknowledge that the

ordinance must be measured against the least strict of the

equal protection standards: the rational basis test. See,

e.g., City of Cleburne v. Cleburne Living Center, Inc.,

473 U.S. 432, 439-41 (1985); Schweiker v. Wilson, 450

U.S. 221, 230 (1981); Dandridge v. Williams, 397 US.

471, 483-87 (1970). “[L]egislation is presumed to be

valid and will be sustained if the classification drawn by

the statute is rationally related to a legitimate state in-

terest.” City of Cleburne, 473 U.S. at 440. Thus, the

burden rests on those challenging the classification to

show that it is not rationally related to its purpose. See

New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per

curiam ).

“The State may not rely upon a classification whose

relationship to an asserted goal is so attenuated as to

render the distinction arbitrary or irrational.” City of

Cleburne, 473 U.S. at 446. On the other hand, “[i]f [a]

classification has some ‘reasonable basis,’ it does not

offend the Constitution simply because the classification

‘is not made with mathematical nicety or because in prac-

tice it results in some inequality.” Dandridge v. Wil-

liams, 397 U.S. 471, 485 (1970) (quoting Lindsley v.

Natural Cargonic Gas Co., 220 U.S. 61, 78 (1911)).

“[T]here is no constitutional requirement that regulations

must cover every class to which they might. be applied.”

Wardwell v. Board of Educ., 529 F.2d 625, 629 (6th

Cir. 1976).

5 See United Bldg. & Constr. Trades Council, 465 U.S. at 219 (no

fundamental right to government employment).

43a

The Supreme Court has held that municipal residency

ordinances similar to Salem’s are not irrational per Sse.

See McCarthy v. Philadelphia Civil Serv. Comm'n, 424

U.S. 645, 646 (1976); Detroit Police Officers Ass’n v.

City of Detroit, 405 U.S. 950 (1972) ( dismissing for lack

of federal question appeal of decision by Supreme Court

of Michigan rejecting equal protection challenge to mu-

nicipal residency ordinance); see also Wardwell, 529 F.2d

at 628; Ahern v. Murphy, 457 F.2d 363 (7th Cir. 1972);

Ector v. City of Torrance, 514 P.2d 433 (Cal. 1973),

cert. denied, 415 U.S. 935 (1974); Kennedy v. City of

Newark, 148 A.2d 473 (N.J. 1959). Plaintiffs, however,

do not argue that the classification between residents and

non-residents inherent in any residency ordinance is irra-

tional. Rather, they make a more particularized claim

that the Salem ordinance is irrational to the extent that

it contains so many exceptions and loopholes: police

Officers, fire fighters, and teachers are exempted; as well

as many supervisory officials. They argue that there is

no rational reason why clerical and blue collar workers

should be required to be Salem residents, while virtually

every other employee is exempted. Moreover, they argue

that the exemption of employees hired before 1978, under

the grandfather provision of the ordinance, is not ra-

tionally related to any legitimate purpose.

The exemptions of police officers, firefighters, and

teachers are not written into the Salem ordinance itself,

but rather are mandated by state law. See N.J. Stat. Ann.

40A:14-122.1 (precluding imposition of municipal resi-

dency ordinances on police officers); N.J. Stat. Ann.

40A:14-9.1 (firefighters); N.J. Stat. Ann. 18A:26-1.1

6 These supervisory officials include the superintendent of the

Water and Sewerage Department, the city building officer, the city

engineer, the municipal attorney, a judge of the Salem Municipal

Court, and the city’s chief financial officer. There is a dispute

between the parties as to whether or nct the city administrator

resides in the city.

44a

(teachers). Since these classifications are created by state

statutes, rather than the municipal -ordinance, it is not

clear that they are properly challenged in this lawsuit

which is against the municipality only. See Trainor v.

City of Newark, 368 A.2d 381, 386 (N.J. Super. Ct.

App. Div. 1976). Moreover, the legislative history be-

hind these statutes indicates that they were passed because

municipal residency requirements made the recruitment

of new employees more difficult. See id. at 475. This is

a legitimate purpose to which the exemption of police

and fire fighters is rationally connected.

The exemptions of supervisory officials are not man-

dated by state law, although some such exemptions are

explicitly permitted by state statute.’ The exemption of

‘these positions also meets the rational basis test, however,

since such positions require people with special education

and skills who may not be available among the pool of

Salem residents. ,

Finally, the distinction created by the grandfather clause

between employees hired before and after 1978 serves a

rational purpose by protecting the legitimate expectations

of those hired before the residency ordinance’s enactment,

who had no warning of it prior to accepting municipal

employment. We therefore find that it withstands mini-

mum scrutiny as well. We are not alone in so holding.

See Lorenz v. Logue, 611 F.2d 421, 423 (2d Cir. 1979);

Wardwell v. Bd. of Educ., 529 F.2d 625, 629 (6th Cir.

1976).

7 See N.J. Stat. Ann. 40A:9-1.1 (a “municipality may . . . appoint

to office of director of public safety a nonresident of said munici-

pality”) ; N.J. Stat. Ann. 40A:9-1.2 (same for municipal treasurer) ;

N.J. Stat. Ann. 40A:9-11 (“A nonresident of any municipality may

hold office as counsel, attorney, engineer, health officer, auditor, or

comptroller of such municipality”); N.J. Stat. Ann. 2A:8-7 (“A

magistrate who is an attorney at law need not be a resident of

the municipality or municipalities to which the jurisdiction of the

court extends’).

45a

C. Due Process Challenges

Plaintiffs assert five claims which they characterize as

Fourteenth Amendment Due Process challenges to the

ordinance. On the basis of the undisputed facts presently

before us we find each of these claims is without merit as

a matter of law.

Plaintiffs’ first claim alleges “selective enforcement” of

the Salem residency ordinance. They assert that since the

ordinance’s enactment in 1978, Salem has not attempted

to enforce it except against plaintiff, Stephen Scull.* De-

fendant contests the factual accuracy of this assertion;

but even assuming plaintiffs’ version of the facts to be

correct, we find no constitutional violation.

It is well-established that “ ‘the conscious exercise of

some selectivity in enforcement is not in itself a federal

constitutional violation’ so long as ‘the selection was [not]

deliberately based upon an unjustifiable standard such as

race, religion, or other arbitrary classification.’” Borden-

kircher v. Hayes, 434 U.S. 357, 668-69 (1978) (quoting

Oyler v. Boles, 368 U.S. 448, 456 (1962)). To state

such a claim, there must be evidence of intentional and

purposeful discrimination on the part of the government.

United States v. Torquato, 602 F.2d 564, 570 (3d Cir.),

cert. denied, 444 U.S. 941 (1979).° Otherwise, the mere

fact that certain persons have been permitted to violate

the ordinance or statute without prosecution does not

8 We note that although plaintiffs characterize their claim as a

due process violation, claims of selective prosecution are usually

analyzed under equal protection standards.

® Although Bordenkircher, Oyler, and Torquato involved selective

prosecution of a criminal statute, we find application of the same

standard dispositive in this case. If there is any difference between

the standards for selective enforcement of civil and criminal stat-

utes, it must be that the government is held to a higher degree of

scrutiny in the criminal context since the deprivation at stake is

so much more severe. Accordingly, to the extent we find that the

City has not violated the more stringent crimina] standard, we can

be sure that it has not violated the civil standard.

46a

preclude the government from enforcing it against others.

Abrahams vy. Civil Serv. Comm’n, 319 A.2d 483, 490

(N.J. 1974). Here plaintiffs have not adduced any evi-

dence, nor do they allege that the City’s failure to enforce

the ordinance except against Stepren Scull was purpose-

ful and intentional and “deliberately based upon an un-

justifiable standard such as race, religion, or other arbi-

trary classification.” Bordenkircher, 434 U.S. at 669.

Therefore, we find no constitutional violation.

Plaintiffs’ second argument is that the City committed

a due process violation by its failure to provide Stephen

Scull with written or oral notice of the residency require-

ment at the time he was hired. First, we note that this

is not a standard procedural due process claim challenging

the government’s removal of an entitlement without pro-

viding notice and an opportunity to be heard. Plaintiffs

do not dispute that Stephen Scull was provided advance

notice and an opportunity to be heard regarding the

City’s intent to terminate him for violation of the ordi-

nance. Rather, they argue that due process standards

required the City to give Mr. Scull notice of the ordinance

before he was hired. Plaintiffs have offered no legal au-

thority in support of this argument. In the absence of any

authority to the contrary, we must adhere to the age-old

maxim that ignorance of the law is no excuse. That rule

“is ‘deeply rooted in the American legal system,’ and ex-

ceptions to it must not be casually created.” United

10 The Supreme Court has only “recognized certain very limited

circumstances in which a State’s reliance on the maxim that a

man may be presumed to know the law is not consistent with the

restrictions imposed by the Constitution on legislative action.”

Texaco v. Short, 454 U.S. 516, 545 (1982) (Brennan, J. dissenting).

Thus, in Lambert v. California, 355 U.S. 225 (1957), the Court

held that a municipal ordinance which made it an offense for any

convicted felon to remain in the city for more than five days with-

out registering with the police violated due process standards when

applied to someone who neither knew nor could reasonably be

expected to know of her legal obligation. Critical to the Court’s

holding in that case, however, was the fact that the defendant had

47a

States v. Rogers, 962 F.2d 342, 344 (4th Cir. 1992)

(quoting Cheek v. United States, 111 S.Ct. 604, 609

(1991)); accord, United States v. International Minerals

and Chem. Corp., 402 U.S. 558 (1971). Thus, to the

extent that notice of the residency requirement prior to

hiring was constitutionally required, we hold that the

existence of the statute itself was sufficient to provide such

notice.

Third, plaintiffs argue that the ordinance is void for

vagueness. A law will be struck down on vagueness

grounds where it “lacks explicit standards for its applica-

tion, and this impermissibly delegates basic policy matters

to [government officials] for resolution on an ad hoc and

subjective basis, with the attendant dangers of arbitrary

and discriminatory application.” Grayned v. City of

Rockford, 408 U.S. 104, 108 (1972). Plaintiffs argue

that this ordinance is void for vagueness because “the

Mayor and Council have complete discretion in authoriz-

ing exemptions from Salem’s resident preference, [and]

the City has failed to adopt standards for the granting of

such exemptions.” "’ In fact, however, the Mayor and

Council do not have “complete discretion” because the

statute itself sets forth explicit standards for the granting

of exemptions. The ordinance states:

EXCEPTIONS. The Mayor and Common Council

are hereby authorized in their discretion for good

and sufficient cause being shown, to permit any offi-

cer or employee of the City of Salem to remain in

the employ of the City without complying with the

provisions hereof where:

been given no opportunity to comply with the law and avoid its

penalty upon first being made awere of its existence. Jd. at 229.

In this case, Stephen Scull has been given the option of moving

back into Salem to comply with the municipal residency ordinance.

See Affidavit of Thomas G. Smith, 14; Affidavit of Stephen

Scull, { 6.

1! Plaintiffs’ brief at 58.

48a

[a] The health of any officer or employee neces-

sitates residence outside the City limits;

[b] The nature of employment is such as to re-

quire residence outside the City;

[c] Specialized talent or technique is required

such as professional services of engineer [sic] or ac-

countants

Indeed, the New Jersey Supreme Court has held that a

municipal residency ordinance worded nearly identically

to this one would not be impermissibly vague. In Abra-

~ hams v. Civil Serv. Comm'n, 319 A.2d 483 (N.J. 1974),

the exceptions provision of a Newark residency ordinance

was challenged on vagueness grounds under the United

States Constitution. That ordinance contained categories

for exemptions nearly identical to [a] and [b] above, in

addition to a third category permitting an exemption

where “[s]pecial circumstances attach.” Id. at 484. The

court held the last category void for vagueness, but found

the first two categories sufficiently specific to adequately

guide the discretion of the responsible officials. Id. at

489-90. Moreover, the court noted that had the third

category specified the meaning that city officials attributed

to the words “special circumstances,” it would also have

been sufficient to withstand the vagueness challenge. The

“meaning” the court referred to was strikingly similar to

section [c] of the Salem ordinance: “special talent or

technique which is necessary for the operation of govern-

ment not found among Newark residents.” Id. We agree

with the New Jersey Supreme Court that this language

provides sufficient limits on official discretion to survive a

vagueness challenge.

Fourth, plaintiffs make a cursory attempt to invoke the

substantive due process right to intra-state travel recently

recognized by the Third Circuit in Lutz v. City of York,

899 F.2d 255, 270 (3d Cir. 1990). We fail to see how

the holding in Lutz offers any support to plaintiff’s claim,

however. There the court held that the right “to move

freely about one’s neighborhood or town . . . is indeed

49a

‘implicit in the concept of ordered liberty’ and ‘deeply

rooted in the Nation’s history,’” and thus subject to sub-

stantive due process protection. Id. at 268 (quoting

Palko v. Connecticut, 302 U.S. 319, 325 (1937) and

Moore v. City of East Cleveland, 431 U.S. 494, 503

(1977)). The court further held that a municipal ordi-

nance outlawing “cruising” (consisting of “driving re-

peatedly around a loop of certain major public roads

through the heart of the city,” id. at 256) burdened this

right and was therefore subject to intermediate scrutiny.

We see no reason to presume that the limited right recog-

nized by the Third Circuit in that case, to move freely

about one’s neighborhood, would encompass the right that

plaintiffs claim here: to commute from outside Salem to

a job with the Salem government. Accordingly, we find

this claim to be without merit as well.

Fifth and finally, plaintiffs argue that the City of Salem

acted ultra vires in enacting the ordinance and that it is

therefore void. According to this argument, the City of

Salem is a creature of the state legislature and therefore

has no powers beyond those provided by the state. Be-

cause state law provides that an employee who violates a

municipal residency ordinance shall be given six months

to resume residency before termination procedures begin,

see N.J.S.A. 40A:9-1.5, plaintiffs argue that Salem’s ordi-

nance, which provides only ten days’ notice, is ultra vires.

See City of Trenton v. New Jersey, 262 U.S. 182, 187

(1923). Plaintiffs characterize this as a federal due proc-

ess violation but do not cite any authority for that char-

acterization.

Defendant argues that Salem’s ordinance pre-dates N.J.

Stat. Ann. 40A:9-1.5, and therefore is not bound by it.

Indeed, the statute states at N.J. Stat. Ann. 40A:9-1.9,

The provisions of this act shall apply to all residency

requirements adopted on and after the effective date

of this act. Nothing herein shall be construed as to

alter, abrogate, repeal or otherwise affect any resi-

50a

dency requirement in effect in any local unit by

ordinance . . . on the effective date of this act [June

30, 1978].

Plaintiffs argue in response that since the enabling legisla-

tion under which Salem’s ordinance was originally en-

acted has now been repealed, the City must comply with

the current statutory provision, but they offer no author-

ity for this proposition. In the absence of any such au-

thority we are understandably disinclined to disregard the

apparently clear import of the statuory language cited

above. Accordingly, we find this claim without merit as

well.

Finally, plaintiffs assert that to the extent the ordinance

violates the federal constitution it also violates the state

constitution. Since we find no federal constitutional viola-

tion, and plaintiffs have given us no reason to believe that

the New Jersey Constitution’s reach is broader than that

of the federal constitution with respect to these claims,

summary judgment is also granted to defendants with

respect to plaintiffs’ claims under the New Jersey Con-

stitution.

Ill. Conclusion

For the reasons set forth above, we find that there

are no disputed issues of material fact and that as a mat-

ter of law Salem’s residency ordinance does not violate

the Privileges and Immunities Clause of Article IV, the

Equal Protection or Due Process Clauses of the Four-

teenth Amendment to the United States Constitution, or

any provisions of the New Jersey Constitution. We there-

fore grant summary judgment in favor of defendants as

to all counts.

/s/ John F. Gerry

JOHN F. GERRY

Chief Judge

DATED: September 13, 1993

S5la

[Filed Sep. 13, 1993]

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Civil No. 92-1137

SALEM BLUE COLLAR WorKERS ASSOCIATION

and STEPHEN SCULL,

Plaintiffs,

Vv.

THE CITY OF SALEM; Mayor and CoMMoN COUNCIL

OF SALEM; Mayor LEON JouHNsSON; CITY OF SALEM

COMMON COUNCIL MEMBERS, JOHN BURKE; ROBERT

Davis; ROBERT ELK; BETSY ERHARDT; EARL GAGE:

ROBERT JOHNSON; DONALD SHARP; and JosEPH

WEAVER, individually and in their official capacities,

Defendants.

ORDER

This matter having come before the court on motion

by plaintiffs for summary judgment and cross-motion by

defendants for summary judgment, and the court having

considered the submissions of the parties, and for good

cause shown;

It is, this 13th day of September, 1993, hereby

ORDERED that plaintiffs’ motion is DENIED and de-

fendants’ motion is GRANTED. Summary judgment is

therefore entered in favor of defendants on all counts.

/s/ John F. Gerry

JOHN F. GERRY

Chief Judge

52a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 93-5622

SALEM BLUE COLLAR WORKERS ASSOCIATION;

and STEPHEN SCULL,

Appellants,

Vv.

THE CiTy OF SALEM; LEON JOHNSON, Mayor of the City of

Salem; JOHN BURKE, Common Council Member of the

City of Salem; RoBERT DAvis, Common Council Mem-

ber of the City of Salem; RoBERT ELK, Common Coun-

cil Member of the City of Salem; BETsy ERHARDT,

Common Council Member of the City of Salem; EARL

GAGE, Common Council Member of the City of Salem;

ROBERT JOHNSON, Common Council Member of the

City of Salem; DONALD SHARP, Common Council Mem-

ber of the City of Salem; JosEPH WEAVER, Common

Council Member of the City of Salem, individually and

in their official capacities, Appellees.

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 92-cv-01137)

53a

SUR PETITION FOR REHEARING

PRESENT: SLOVITER, Chief Judge, BECKER,

STAPLETON, MANSMANN, GREEN-

BERG, HUTCHINSON, SCIRICA,

COWEN, NYGAARD, ALITO, ROTH,

LEWIS, McKEE, and SEITZ,* Circuit

Judges

The petition for rehearing filed by appellants in the

above captioned matter having been submitted to the

judges who participated in the decision of this court and

to all the other available circuit judges of the circuit in

regular active service, and no judge who concurred in the

decision having asked for rehearing, and a majority of

the circuit judges of the circuit in regular active service

not having voted for rehearing by the court in banc, the

petition for rehearing is denied.

Judge Mansmann would grant rehearing.

By the Court,

/s/ William D. Hutchinson

Circuit Judge

Dated: Sep. 28, 1994

* Hon. Collins J. Seitz, United States Circuit Judge, was limited

to voting for panel rehearing.

54a

AN ORDINANCE REQUIRING CITY OF SALEM

EMPLOYEES TO BE RESIDENTS OF THE

CITY OF SALEM, IN THE STATE OF

NEW JERSEY, AS A CONDITION

OF EMPLOYMENT

WHEREAS, the rate of unemployment in the City of

Salem is among the highest in the State of New Jersey;

and

WHEREAS, by reason thereof it is in the best interests

of the residents of the Ctiy of Salem, that its officers and

employees be residents of said City; and

WHEREAS, it is acknowledged that such a residency

requirement as a condition of employment is proper and

advantageous to the City of Salem; and

WHEREAS, said residency will not only reduce the

high unemployment rate in the City, but will also improve

relations among City employees; enhance the quality of

employee performance by greater personal knowledge of

conditions and problems in the City; promote a feeling

of greater personal interest in the City’s progress; reduce

the possibility of tardiness and absenteeism; provide a

ready availability of trained manpower for emergency sit-

uations; and provide unto the City economic benefits;

NOW THEREFORE, BE IT ORDERED by the Mayor

and Common Council of the City of Salem, in the County

of Salem, State of New Jersey, as follows:

SECTION 1: RESIDENT DEFINED. For the pur-

pose of this ordinance a resident is a person permanently

domiciled within the City of Salem; a domicile which has

not been zdopted with the intention of taking up or claim-

ing a previously residence within the City.

SECTION 2: RESIDENCE REQUIRED. Except as

otherwise provided by law, all full-time permanent and

full-time, part-time officers and employees hereinafter to

be employed by the City of Salem, are hereby required as

55a

a condition of their employment to have their place of

abode in the City of Salem and be a bonafide domicilary

therein.

SECTION 3: EXCEPTIONS. The Mayor and Com-

mon Council are hereby authorized in their discretion for

good and sufficient cause being shown, to permit any of-

ficer or employee of the City of Salem to remain in the

employ of the City without complying with the provisions

hereof where:

[a] The health of any officer or employee necessitates

residence outside the City limits;

[b] The nature of employment is such as to require

residence outside the City;

[c] Specialized talent or technique is required such

as professional services of engineer or accountants;

[d] Any person employed by the City who resides

outside the City as of the date of the adoption of this

ordinance; such person who subsequently makes his resi-

dence within the City shall not be exempt from the re-

quirements of this ordinance.

SECTION 4: COMPLIANCE.

[a] Failure of any officer or employee, except as

provided by law, to comply with this regulation shall be

deemed, regardless of tenure or Civil Service status, suf-

ficient cause for removal or discharge from the service

of the City;

[b] The Mayor and Common Council of the City of

Salem or its duly authorized agent is hereby authorized to

investigate into the residency of any officer, employee, or

appointee of the City and to require said officer, employee,

Or appointee to produce proof of bona-fide residence

within the City of Salem;

[c] As a condition of employment, each and every

employee or prospective employee shall be required to

56a

execute an affidavit, in form prescribed by the Mayor and

Common Council, setting forth, inter alia, that said em-

ployee is domiciled in the City of Salem;

[d]} Any municipal officer, employee, or appointee

shall be given a ten [10] day notice setting forth the

charge that the employee is not a bona-fide resident of the

City of Salem and shall be discharged on account thereof.

Said notice shall provide that the employee shall be en-

titled to a full hearing on account of said employee’s resi-

dency and said notice shall set forth the time and place

when said hearing shall be held.

SECTION 5: SEVERABILITY. In the event any

section of this Ordinance shall be declared to be illegal

or unconstitutional by a Court of competent jurisdiction,

such declarations shall not in any manner prejudice the

enforcement of the remaining provisions.

This ordinance shall take effect according to law.

/s/ Kenneth R. Lewis

KENNETH R. Lewis

Mayor

ee Ee ee ee ee ee ae ee re ee en ee en ee a

57a

NOTICE

Notice is hereby given that the foregoing ordinance was

introduced at a regular meeting of the Mayor and Com-

mon Council of the City of Salem, held on Monday,

March 6, 1978, and at a regular meeting to be held on

Monday, March 20, 1978, at 7:30 p.m., said Mayor and

Common Council will hold a public hearing at the Free-

holders Room of the Salem County Court House, 94

Market Street, Salem, New Jersey, to consider said or-

dinance for final passage.

/s/ Lee M. Munyon

LEE M. MUNYON

Recorder

58a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 93-5622

SALEM BLUE COLLAR WORKERS ASSOCIATION

and STEPHEN SCULL,

Appellants,

Vv.

CiTYy OF SALEM; LEON JOHNSON, Mayor of the City of

Salem; JOHN BuRKE, Common Council Member of the

City of Salem; ROBERT Davis, Common Council Mem-

ber of the City of Salem; RoBERT ELk, Common

Council Member of the City of Salem; BETSy ERHARDT,

Common Council Member of the City of Salem; EARL

GaGE, Common Council Member of the City of Salem;

ROBERT JOHNSON, Common Council Member of the

City of Salem; DONALD SHARP, Common Council

Member of the City of Salem; JosEPH WEAVER, Com-

mon Council Member of the City of Salem, individ-

ually and in their official capacities,

Appellees.

Appeal from the United States District Court

for the District of New Jersey

D.C. Civil No. 92-1137

Present: Sloviter, Chief Judge, Hutchinsoz and Seitz,

Circuit Judges

JUDGMENT

This cause came on to be heard on the record from

the United States District Court for the District of New

Jersey and was argued by counsel on May 2, 1994.

ay

59a

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said

District Court entered September 15, 1993, be, and the

same is hereby affirmed. Costs taxed against appellants.

All of the above in accordance with the opinion of this

Court.

ATTEST:

/s/ P. Douglas Sisk

Dated: August 25, 1994 Clerk