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

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No. 94-1107

In The

Supreme Court of the United States

October Term, 1994

¢

SALEM BLUE COLLAR WORKERS ASSOCIATION

AND STEPHEN SCULL,

Petitioners,

THE CITY OF SALEM AND MAYOR AND

COMMON COUNCIL OF THE CITY OF SALEM, et al.,

Respondents.

+

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The Third Circuit

4

BRIEF IN OPPOSITION

+

Davip J. Puma, ESQ.

Counsel of Record

Waters, SHERMAN & Puma, P.A.

107 West Broadway

Salem, New Jersey 08079

(609) 935-2244

Attorneys for Respondents

Me BESTAVAILABLE COPY | Mmeeaae

COUNTER-STATEMENT OF QUESTION PRESENTED

Whether the decision of both the District Court and

the Court of Appeals that a municipality enacted, fairly

applied, continuous post-employment municipal resi-

dency requirement, applicable only to direct employees

of the municipality, engaged in providing traditionally

re: ognized local governmental services, does not burden

a i.ght so fundamental to the national union as to involve

a “privilege” or “immunity” protected by Article IV, Sec-

tion II of the United States Constitution, presents an issue

on which this Court should grant a writ of certiorari.

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TABLE OF CONTENTS

Page

COUNTER-STATEMENT OF QUESTION PRESEN-

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COUNTER-STATEMENT OF THE CASE............

REASONS FOR DENYING THE WRIT - SUMMARY

CF ARORPNUS 43 00-40 cd dngienwedvanssecdserests

I SALEM’S MUNICIPAL RESIDENCY ORDI-

NANCE DOES NOT VIOLATE THE PRIVILEGES

AND IMMUNITIES CLAUSE OF THE UNITED

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TABLE OF AUTHORITIES

Page

CASES

Abrahams v. Civ. Serv. Comm., 65 N.J. 61, 319 A.

4 ee herr er reer ee 23

Andre v. Village of Maywood, 561 F. 2d 48 (7th

Rea a ies ares Seige Pea ey renee 23

Baldwin v. Montana Fish & Game Comm., 436

U.S. 371, 56 L. Ed. 2d 354, 98 S. Ct. 1852 (1978)

SR OLE OPE ee eee eee eee ee 15, 16, 17

Blake v. McClung, 172 U.S. 239, 43 L. Ed. 432, 19 S.

ee er Tee Teer ree er Teer oe 16

Canadian Northern R. Co. v. Eggen, 252 U. S. 553,

GAL. Ge. 715, 4 S. Ct. 402 (1920)... . 0. eee eee 16

Hicklin v. Orbeck, 437 U. S. 518, 57 L. Ed. 2d 397,

2 ee ee eh, See 16, 23, 2

Kansas City FOP v. Kansas City, 620 F. Supp. 752

I I ao ines desk ew Few SUN Os eee cenes 24

Kennedy v. Newark, 2 N.J. 178, 148 A.2d 473

ES Ee rer ee ee ee eee ee 2

Lines v. City of Topeka, 223 Kan. 772, 577 P. 2d 42

OOP er ee eer ee eee eee eee 23

Lorenz v. Logue, 611 F.2d 421 (2d Cir. 1979) ........ 26

Massachusetts Bd. of Retirement v. Murgia, 427

U.S. 307, 49 L. Ed. 2d 520, 96 S. Ct. 2562 (1976) .... 22

McCarthy v. Philadelphia Civil Service Comm'n,

424 U.S. 645, 47 L. Ed. 2d 366, 96 S. Ct. 1154

eg iiy ch sa ansa bein os 23, 29

iv

TABLE OF AUTHORITIES — Continued

Page

Neshaminy Constructors, Inc. v. Krause, 181 N.]J.

Super. 376, 437 A.2d 733 (Ch. Div. 1981), mod-

ified 187 N.J. Super. 174, 453 A.2d 1359 (App.

a rte rere ee eee ae Poe ee ee 23

Paul v. Virginia, 8 Wall. 168, 19 L. Ed. 357 (1869).... 24

Supreme Court of New Hampshire v. Piper, 470

U.S. 274, 84 L. Ed. 2d 205, 105 S. Ct. 1272 (1985) .... 18

Toomer v. Witsell, 334 U. S. 385, 92 L. Ed. 1460, 68

hs as ee RG a bs sins ow wha eae e wou 18, 25

United Building & Construction Trades Council of

Camden and Vicinity v. Mayor and Council of

City of Camden, 465 U.S. 208 (1984).......... passim

White v. Massachusetts Council of Construction

Employers, Inc., 460 U. S. 204, 75 L. Ed. 2d 1,

ee es ee CE hia oka ois ee ees 20, 21

CONSTITUTION

Article IV, Section II, United States Constitution

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STATUTES AND RULES

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N.J.S.A.

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N.J.S.A.

N.J.S.A.

N.J.A.C.

N.J.A.C.

TABLE OF AUTHORITIES —- Continued

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No. 94-1107

¢

In The

Supreme Court of the United States

October Term, 1994

e

SALEM BLUE COLLAR WORKERS ASSOCIATION

AND STEPHEN SCULL,

Petitioners,

Vv.

THE CITY OF SALEM AND MAYOR AND

COMMON COUNCIL OF THE CITY OF SALEM, et al.,

Respondents.

+

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The Third Circuit

+

BRIEF IN OPPOSITION

+

COUNTER-STATEMENT OF THE CASE

The Petitioners in this matter are the Salem Blue

Collar Workers Association (the “Union”) which is a

labor organization representing clerical and blue collar

workers employed by the City of Salem, and Stephen

Scull (“Scull”) a member of the Union.

The Respondents are the City of Salem! and the

Mayor and Council Members of its governing body in

their personal capacities.

In 1978 the City of Salem adopted Ordinance 78-3

which requires that all employees “hereinafter to be

employed” are required to be residents of the City (54a -

reference is to Petitioners’ Appendix, page 54). There is

no allegation by Petitioners of any technical impropriety

with respect to the passage of the Ordinance. Further-

more, it is clear that by 1978 it was well settled in New

Jersey that municipalities could adopt residency ordi-

nances pursuant to the police power and that state stat-

utes on the subject and the civil service laws did not

operate to pre-empt the adoption of such ordinances.

Kennedy v. Newark, 2 N.J. 178, 184-189, 148 A.2d 473

(1959).

At the time of the adoption of the Saiem Residency

Ordinance in 1978, most elected and appointed officers of

municipalities in New Jersey were required to be resi-

dents by virtue of N.J.S.A. 40A:9-1, which was enacted by

the New Jersey Legislature in 19712. After the adoption of

1 The City of Salem is a small town located in Salem County

New Jersey which has a population of approximately 6,883. See

1992 Official Directory of Salem County citing the 1990 U. S.

Census.

2 The 1971 statute did not apply to employees, only

“elected and appointed officers”. The statute also contained

exceptions. It read as follows: “Except in the case of county

administrator, counsel, attorney, engineer, health officer, audi-

tor, comptroller, appointed tax collector, elected assessors who

have received tenure under P.L. 1967, c. 44. s. 7 (C. 54:1-35.31),

appointed tax assessor, or members of boards of assessors or as

the Salem Ordinance, N.J.S.A. 40A:9-1 was repealed by

the New Jersey Legislature and replaced with N.J.S.A.

40A:9-1.3 through N.J.S.A. 40A:9-1.10. The new statutory

scheme made residency of officers and employees discre-

tionary with the municipality and established certain

mandatory provisions to be inserted into municipal resi-

dency ordinances adopted after the effective date of the

statutes. The new statutory scheme perpetuated all of the

Original exceptions to the 1971 statute (see N.J.S.A.

40A:9-11) and other exceptions were added by later stat-

utes.

Petitioner Scull was hired as a laborer by the City on

November 20, 1989 (29a). The position of “laborer” does

not require passage of any civil service merit examination

and thus Petitioner Scull did not have to apply for

employment through the New Jersey Department of Per-

sonnel. Petitioner Scull did however fill out a standard

form employment application used by the City in which

he stated that he resided in the City of Salem at the time

and basically had been a resident all his life, even attend-

ing Salem High School.

On January 31, 1992, a letter was written by Kenneth

L. Homan, Scull’s immediate supervisor, indicating that a

otherwise provided by law, every person holding an office, the

authority and duties of which relate to a county only, or to a

municipality only, shall reside within said county or munici-

pality, as the case may be.”

3 This is significant because applicants for employment

positions with the City receive notice of its residency require-

ments from the New Jersey Department of Personnel pursuant

to N.J.A.C. 4A:4-2.11(c).

residency ordinance violation was alleged and that Scull

should respond within thirty days or termination pro-

cedures would begin (29a). Scull immediately filed a

grievance with respect to the violation. When the griev-

ance was denied, but before civil service termination

procedures were instituted, the Petitioners filed this suit

and also filed an unfair practice charge with the New

Jersey Public Employment Relations Commission. The

City voluntarily joined in a consent order pursuant to

which it was temporarily restrained from disciplining

Scull for violating the Residency Ordinance until the

challenges were resolved (29a).

Although both parties moved before the District

Court to dispose of all issues presented in the case by

summary judgment, it was acknowledged by both parties

that there were some facts in dispute, but that the facts

upon which the parties differed were not material, the

District Court agreed (30a). The first area of dispute is

whether Mr. Scull had actual knowledge of the residency

requirement before he moved out of Salem. In his Affi-

davit filed with the summary judgment motion, Scull

implies that he never knew of Salem’s residency require-

ment (JA 173). Mr. Smith, the former City Administrator

says in his Affidavit that the Union President revealed

during the proceedings on the grievance filed by Scull,

that he was approached by Scull who inquired as to the

City’s residency requirement before he moved out of

Salem (JA 183-14).

The City contends that if not actual knowledge, Scull

at least had constructive knowledge of the continuing

residency requirement. The various Affidavits submitted

before the District Court clearly show that the Residency

Ordinance was “common knowledge” amongst the Union

members and other employees. A copy of the Ordinance

has been posted on the bulletin board in the Salem

Municipal Building for years (JA 186-24). Moreover, Mr.

Homan, the Supervisor who hired Scull, says that it is his

practice to notify all employees at the time of hire of the

Residency Ordinance and that he would not have hired

Scull if he had not been a Salem resident and did not

understand that he must stay a Salem resident (JA 178-2).

The second area of dispute is Petitioners’ allegation

that the City has taken no steps to enforce its Ordinance

since its adoption in 1978, has allowed numerous

e.nployees to violate the Ordinance with impunity, and

now seeks to enforce its Ordinance only to punish Scull. I

believe that this area of contention between the parties is

more of a difference on how one chooses to characterize

the facts, versus an actual factual dispute.

Consider these facts. The City registered its Ordi-

nance with the New Jersey Department of Personnel as

required by N.J.S.A. 40A:9-1.3. Since Salem has adopted

the provisions of the New Jersey “Civil Service” code (i.e.

N.J.S.A. 11A:1-1 et seq.) the Department of Personnel

administers merit examinations and compiles the lists of

eligible candidates from which the City hires employees.

In 1984 the City fired a secretary on the basis of its

Residency Ordinance. When the secretary challenged the

Ordinance, the City defended and was successful (See

Supplemental Certification and Newspaper Article from

1984 attached thereto, JA 188). The City was obviously

conscious of its residency requirement in the appoint-

ment of its first ever municipal or City Administrator in

1988. Although it could have exempted the Administrator

pursuant to N.J.S.A. 40A:9-136 it chose not to and made

that clear to the appointee (JA 182 J 9 & 10). Prior to the

violation by Mr. Scull there is clear evidence that the City

had confronted an employee with her alleged violation of

the Ordinance. That employee chose to resign, however,

if she had not the City would have taken the appropriate

steps to terminate her due to the Ordinance violation (JA

182 ¥ 11). When Scull’s supervisor brought the violation

of the Residency Ordinance to the attention of City Coun-

cil, the City instructed him to notify Mr. Scull in writing

to comply or face termination proceedings (JA 179 { 3).°

4 Petitioners allege that “the City Administrator overseeing

the ordinance” being enforced against Mr. Scull is a Salem Resi-

dent (Pb 5, footnote 4). This allegation surfaced for the first time

in an Affidavit by the President of Petitioner Union made on

January 7, 1993, and filed with the summary judgment motion

before the District Court (JA 165 J 15) in order to bolster the

Union’s claim that the City selectively enforced the Ordinance.

Prior to that time neither the Union nor any other person had

ever raised this allegation or complained in any way to the

Mayor and Council. Upon receiving the January 7, 1993 Affi-

davit the City Attorney immediately advised both the Mayor

and Council, and the City Administrator of the charges in writ-

ing. The City Administrator adamantly denied the allegations

and made an Affidavit on February 5, 1993 to the contrary (JA

180). Shortly thereafter the City decided to eliminate the posi-

tion of City Administrator for budgetary reasons, which action

effectively terminated the individual holding that position.

5 The District Court chose to completely ignore all of these

facts, stating simply: “Since the ordinance’s enactment in 1978,

no one has been fired for failure to comply with it” (28a). This

was due no doubt to the District Court’s intention to accept all

Petitioners’ allegations as true in granting the City’s cross

motion for summary judgment.

The City sought no special retribution against Mr.

Scull, indeed it offered to allow him six (6) months to

comply with the Ordinance. If he had done so the inci-

dent would have been forgotten (JA 183 J 14). When Scull

refused, and in connection with the Union instituted suit

to invalidate the Ordinance, the City resolved to defend

its Residency Ordinance against the attack at great

expense. Yet it still held open its offer to Mr. Scull if the

suit was dismissed by an acceptable voluntary settlement.

Moreover the City voluntarily agreed not to fire or other-

wise discipline Scull until the challenges to the validity of

the Ordinance were resolved (JA 44).

Petitioners’ allegation that the City has allowed

numerous employees to violate the Ordinance is also a

mis-characterization. All officers or employees of the City

of Salem who are not residents are within one of the

following three classifications: (1) those who were non-

resident employees prior to adoption of the Ordinance

and thus are “grandfathered”; (2) those who are exempt

from the Ordinance by the application of pre-emptive

state statutes; or (3) those who, notwithstanding Peti-

tioners’ assertions, are not City employees but are

employees of autonomous agencies.

The first class is clear enough. It includes those who

were employed and were not residents at the time of the

adoption of the Ordinance in 1978. This includes for

example, Mr. Homan, Petitioner Scull’s supervisor.®

6 Mr. Homan is certainly “grandfathered” because the date

of his appointment (1957) precedes the Ordinance and he was a

non-resident at the time of adoption and he has continued to be

a non-resident (Homan Aff. 42). However, it is noted that Mr.

The second class is divided into two subcategories.

The first is specific positions exempt by pre-emptive state

statutes. These include counsel, attorney, engineer’,

health officer, auditor and comptroller (N.J.S.A.

40A:9-11); police® (N.J.S.A. 40A:14-122.1); treasurer

(N.J.S.A. 40A:9-1.2); and municipal court judge (N.J.S.A.

Homan would be exempted from the Ordinance as a “health

officer” by virtue of N.J.S.A. 40A:9-11. As the Superintendent of

a municipal water supply and waste water treatment facility,

Mr. Homan must maintain a license issued to him by the New

Jersey Department of Health. See N.J.S.A. 26:1A-1 et seq. and

specifically N.J.A.C. 8:6-1.1.

7 It is arguable that Salem need not avail itself of the statute

in relation to its municipal attorney and engineer. In both

instances the City’s contract is with a professional service cor-

poration the office of which is located in Salem. It is however

admitted that the members of these firms who primarily pro-

vide legal and engineering services to the City are not Salem

residents.

8 Although Salem Police Officers, like all other municipal

police in New Jersey are exempt from municipal residency

requirements pursuant to N.J.S.A. 40A:14-122.1 they are subject

to a mandatory continuing requirement of residency within the

State of New Jersey by N.J.S.A. 40A:14-122.8; certain age mini-

mums and maximums by N.J.S.A. 40A:14-127; as well as a

plethora of other statutory requirements. See generally N.J.S.A.

40A:14-122. It should also be noted that the state statute exempt-

ing police officers from municipal residency does not extend to

“special police officers” or the “chief of police”. Salem has

applied its residency requirement to the so called special police

officers and to its Chief of Police. It should also be noted that

recently Bill A-2053 entitled “ Authorizing municipal ordinances

requiring residency for new police and firefighters” was spon-

sored in the New Jersey Assembly. The New Jersey League of

Municipalities has issued a statement officially endorsing the

Bill. See NJLM Legislative Bulletin, September, 1993.

2A:8-7).2 The second subcategory involves situations

where although the position is not specifically exempt,

the interaction between two separate pre-emptive state

statutes produces the same result. For example, the City

recently appointed a non-resident Construction Code

Official. Pursuant to N.J.S.A. 52:27D-126(a) Salem must

employ a Construction Code Official. Since Salem is a

“civil service” jurisdiction and the position of Construc-

tion Code Official is a “classified” position, Salem must

select a candidate from a list of persons eligible for that

position as promulgated by the New Jersey Department

of Personnel in accordance with N.J.S.A. 11A:1-1 et seq.

The Department of Personnel will allow Salem to fill the

position with a non-resident only if no other residents

qualify. In the case of the Construction Code Official that

is what occurred. The position became open. The Depart-

ment of Personnel advertised the positions availability

and educational pre-requisites, administered an examina-

tion and promulgated a list of eligible candidates from

which Salem could fill the position. No Salem residents

qualified. The City then appointed the number one candi-

date on the list. A similar situation arose with respect to

9 There are other statutory exemptions such as N.J.S.A.

40A:14-9.1 which prohibits municipal residency requirements

for paid firefighters. This statute is cited by Petitioners (Pb 4,

footnote 3) however Salem has no paid firefighters. All Salem

firefighters are volunteers who are all residents of the town.

10

the City’s Chief Financial Officer!® (see N.J.S.A.

40A:9-140.10).

The third and final class involves employees whom

the Petitioners seek to attribute to the City of Salem but

actually are employees of autonomous agencies. These

include the teachers and superintendent of schools

employed by the Salem Board of Education (a regional

institution) and the librarians of the Salem Free Public

Library System. Petitioners correctly indicate that

N.J.S.A. 18A:26-1.1 prohibits requiring teachers to be resi-

dents (Pb 4, footnotes 3 and 4), however that proscription

applies to boards of education, not municipalities. The

City of Salem employs no teachers, school superinten-

dents or librarians.

Thus although Salem’s Ordinance appears to allow

the Mayor and Council “to permit any officer or

employee of the City of Salem to remain in the employ of

the City without complying” with the Ordinance for cer-

tain specified reasons, it is submitted that the City has

never exercised this reserved power. The few non-resi-

dent employees it has are exempt because they fit into

one of the three classifications set forth above. No

employee has been “informally exempted from the ordi-

nance” as suggested by Petitioners (Pb 4).

Finally, Petitioners’ allegation that “most .. . [of

Salem’s] municipal supervisory personnel” (Pb 4) and

10 Petitioners refer to “Salem’s Financial Officer” (Pb 4,

footnote 3). However, the actual position is “Chief Financial

Officer”. It is a part time position pursuant to a professional

service contract.

11

policy-makers are exempt from the Residency Ordinance

is incorrect. Realistically in a small town such as Salem

the positions which one would consider to be “super-

visory” or “policymaking” are limited. They would

include of course the Mayor and members of the Com-

mon Council. In Salem these positions are in fact held by

City residents. The City Administrator is a “policymak-

ing” position. Pursuant to N.J.S.A. 40A:9-136, the City

could have exempted its Administrator from the resi-

dency requirement. Salem decided to apply its residency

requirement to its Administrator before it eliminated that

position. One might classify the positions of City Clerk,

Police Chief, Street Department Superintendent, Tax

Assessor, Housing Officer, and Zoning Officer as “super-

visory” or “policymaking” positions. These positions

carry with them various discretions, responsibilities and

independence pursuant to law. In the case of Salem all are

residents subject to the City’s continuing residency

requirement.

REASONS FOR DENYING THE WRIT -

SUMMARY OF ARGUMENT

This case concerns the applicability of the Privileges

and Immunities Clause of Article IV, Section II of the

United States Constitution to a municipal ordinance,

applicable only to direct employees of the. municipality,

engaged in providing traditional local governmental ser-

vices, which require such employees to maintain resi-

dency in the municipality during their employment.

Petitioners assert that this Court’s decision in United

Building & Construction Trades Council of Camden and

12

Vicinity v. Mayor and Council of City of Camden, 465 U.S.

208 (1984) mandates application of the Privileges and

Immunities Clause to such local residency requirements.

It is however clear that the decision does not support

Petitioners’ assertion, but in fact supports the opposite

conclusion as reached by Chief Judge Gerry of the United

States District Court for the District of New Jersey and

the Third Circuit Court of Appeals. The distinction is

clearly evident in the fact that the enactment in question

in the Camden case burdened private employment while

the enactment in this case relates only to direct public

employees of the municipality.

The conclusion of both lower courts is consistent

with the Clause’s purposes of preventing barriers to free

trade and commerce between the states and creating a

single economic union. As noted by the District Court:

There are significant differences between a

state imposing restrictions on its own workers —

as any employer has certain latitude to do - and

a state forcing private employers to impose

restrictions on their employees. The latter

involves governmental restraint on the liberty of

the private employers affected, and additionally

has a much broader and more comprehensive

impact on free trade and commerce between the

states. Thus, the type of state regulation of pri-

vate employment that is typically struck down

under the Clause imposes a blanket burden on

all persons attempting to pursue a certain liveli-

hood. 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

13

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 liveli-

hood as a secretary in New Jersey are not bur-

dened. 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 . . . we find that applica-

tion 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 poli-

cies that animate it... (41a).

Petitioners have failed to demonstrate that the writ of

certiorari should be granted, given the standards set forth

in this Court’s rule 10.1. The decision of the Court of

Appeals in this matter is not in conflict with the decision

of another court of appeals of the United States, or any

other court, on the same matter. Moreover, contrary to

Petitioners’ assertions, the decision of the Court of

Appeals in this case is not in conflict with this Court’s

decision in the Camden case; it is supported by it.

I SALEM’S MUNICIPAL RESIDENCY ORDINANCE

DOES NOT VIOLATE THE PRIVILEGES AND

IMMUNITIES CLAUSE OF THE UNITED STATES

CONSTITUTION

Petitioners’ argue that Salem’s Residency Ordinance

violates the Privileges and Immunities Clause of Article

IV, Section II of the United States Constitution (Pb 8).

14

That Clause provides that “The citizens of each State shall

be entitled to all Privileges and Immunities in the several

States”.

Although municipal residency ordinances have con-

sistently been upheld as against a seemingly endless

number of alleged constitutional infirmities there appears

to be no specific reference in any of the cases that such

ordinances do not offend the Privileges and Immunities

Clause. Thus Petitioners endeavor to create a novel argu-

ment, without any specific precedent and without any

regard to the numerous precedents upholding the consti-

tutionality of such ordinances, that would if accepted

invalidate not only Salem’s residency ordinance, but all

such municipal residency requirements nationwide.!!

Application of the Privileges and Immunities Clause

to a governmental distinction based on residency entails

a two-step inquiry. “As an initial matter the Court must

decide whether the ordinance burdens one of those privi-

leges and immunities protected by the Clause.” United

Building & Construction Trades v. Camden, 465 U.S. 208,

218, 79 L. Ed. 2d 249, 104 S. Ct. 1020 (1984). Not all forms

of discrimination against citizens of other States are con-

stitutionally suspect. Id. at 218. Thus this Court has

stated:

It has not been suggested, however, that state

citizenship or residency may never be used by a

11 The form of government under which Salem is organized

leaves the issue of municipal residency to the discretion of the

governing body. In some New Jersey municipalities, state stat-

utes now require municipal residency. For example see N.J.S.A.

40A:60-6(b) relating to “boroughs”; and there are others.

15

State to distinguish among persons. Some dis-

tinctions between residents and non-residents

merely reflect the fact that this is a Nation com-

posed of individual States, and are permitted;

other distinctions are prohibited because they

hinder the formation, the purpose, or the devel-

opment of a single Union of those States. Only

with respect to those “privileges” and “immu-

nities” bearing upon the vitality of the Nation as

a single entity must the State treat all citizens,

resident and non-resident, equally. Baldwin v.

Montana Fish & Game Comm., 436 U.S. 371, 383,

56 L. Ed. 2d 354, 98 S. Ct. 1852 (1978).

Thus as a threshold matter, this Court must deter-

mine whether an out-of-state resident’s!? interest in

12 Only non-New Jersey residents would have standing to

challenge Salem’s ordinance under the Privileges and Immu-

nities Clause. New Jersey residents residing outside of Salem

have no standing under the Clause; the theory being that they

have a chance to remedy the intrastate distinction through the

political process while out-of-state residents have no similar

opportunity. See United Building & Constr. Trades v. Camden, 465

U.S. 208, at 217 citing Slaughter-House Cases, 16 Wall 36, 77, 21 L.

Ed. 394 (1873). Petitioners allege that the Union has members

who “reside outside the State of New Jersey” (See paragraph 3

of Plaintiffs’ Complaint JA 9). However, no evidence of this was

put before the District Court, other than Petitioners’ allegation.

The District Court mistakenly resolved the issue of standing in

favor of Petitioners, believing that the allegation of out-of-state

members contained in the Complaint “remains unchallenged by

defendants” (32a). The said allegation in the Complaint was not

the subject of an admission in the Answer thereto. See para-

graph 3 of the Answer (JA 30). The Third Circuit upheld the

District Court’s decision in this regard citing to an affidavit of

the Union President filed with their summary judgment motion

(5a, footnote 1).

16

employment opportunities with local governments in the

process of providing traditional local governmental ser-

vices “is sufficiently fundamental to the promotion of

interstate harmony so as to fall within the purview of the

Privileges and Immunities Clause.” United Building &

Constr. Trades v. Camden, 465 U.S. 208, 218, 79 L. Ed. 2d

249, 104 S. Ct. 1020 (1984) citing Baldwin at 436 U.S. 388

and Canadian Northern R. Co. v. Eggen, 252 U.S. 553, 560,

64 L. Ed. 713, 40 S. Ct. 402 (1920); and Blake v. McClung,

172 U.S. 239, 248, 43 L. Ed. 432, 19 S. Ct. 165 (1898).

This is where Petitioners’ novel theory fails. There is

no fundamental right to be a municipal government

employee which is protected by the Privileges and Immu-

nities Clause.!* That such a right is not fundamental to

13 In Section I of the argument in their Brief, Petitioners

spend considerable effort to establish that the Privileges and

Immunities Clause of the Constitution is entirely based on the

Fourth article of the Articles of Confederation (Pb 10). The

District Court and Court of Appeals agreed with this proposi-

tion but correctly noted that the said provision in the Articles of

Confederation referred to “the privileges of trade and com-

merce” (34a and 9a). This observation by both lower courts is

important, in terms of consistency, with the observation by both

courts that the cases that have found employment to be pro-

tected by the Clause have generally involved government regu-

lation of private employment. Petitioners simply ignore the

clear import of these correct observations and, without any

support, state: “The fact that eighteenth century America was

characterized by concerns over trade and commerce and public

employment was virtually non-existent, by no means evidences

that the Privileges and Immunities Clause was intended to pro-

tect only certain occupations and not others” (Pb 12). Petitioners

further attempt to respond to the observations of the lower

courts in this regard by stating that the Articles of Confedera-

tion did not “refer to the practice of law, medicine, driving a taxi

17

interstate harmony is clearly evidenced by the long exis-

tence and judicial tolerance of municipal government

residency requirements. The rights protected by the

Clause are “confined” to those most basic and have been

described as follows:

The inquiry is, what are the privileges and

immunities of the citizens in the several states?

We feel no hesitation in confining these expres-

sions to those privileges and immunities which

are, in their nature, fundamental; which belong

to the citizens of all free governments; and

which have at all times, been enjoyed by the

citizens of the several states which compose this

Union, from the time of their becoming free,

independent, and sovereign.

What these fundamental principals are, it would

perhaps be more tedious than difficult to enu-

merate. They may, however, be all compre-

hended under the following general heads:

Protection by the government; the enjoyment of

life and liberty, with the right to acquire and

possess property of every kind, and to pursue

and obtain happiness and safety; subject nev-

ertheless to such restraints as the government

may justly prescribe for the general good of the

whole. Baldwin v. Montana Fish & Game Comm.,

436 U.S. 371, 385, 56 L. Ed. 2d 354, 98 S. Ct. 1852

(1978).

cab, or operating as an insurance consultant but the exclusion of

nonresidents from these positions or services is equally viola-

tive of the Clause” (Pb 12, footnote 3). The obvious infirmity

with Petitioners retort is that all of the cited advocations repre-

sent endeavors of private trade or commerce and not traditional

public employment roles.

18

In light of the foregoing, one can clearly distinguish a

municipal residency preference in filling positions neces-

sary to provide traditional local governmental services

from the 1948 South Carolina statute that required non-

residents to pay a fee of $2500.00 to shrimp commercially

while residents of that state only had to pay $25.00 in

Toomer v. Witsell, 334 U.S. 385, 92 L. Ed. 1460, 68 S. Ct.

1156 (1948); or the Alaska statute which required that all

contracts in connection with the construction of the Alas-

kan oil and gas pipelines contain a provision requiring

the employment of qualified Alaskan residents in prefer-

ence to non-residents in Hicklin v. Orbeck, 437 U.S. 518, 57

L. Ed. 2d 397, 98 S. Ct. 2482 (1978); or the proscriptions

against allowing lawvers, insurance agents and other pro-

fessionals to practice in a state unless such professional

was a bona fide resident of the state; see Supreme Court of

New Hampshire v. Piper, 470 U.S. 274, 84 L. Ed. 2d 205, 105

S. Ct. 1272 (1985).

These decisions and the many others cited by Peti-

tioners center around the creation and protection of “a

national economic union” (Piper at 470 U.S. 280) based

upon a fundamental “privilege” of citizens of one State to

do business in another State on terms substantially equal

with that State’s citizens. There is nothing in Toomer,

Hicklin, or Piper which suggests that employment by

municipalities engaged in providing traditionally recog-

nized local government services is a protected privilege

which is fundamental to interstate harmony, economic or

otherwise.

Moreover, the decision in United Building & Constr.

Trades v. Camden, 465 U.S. 208, 79 L. Ed. 249, 104 S. Ct.

1020 (1984) upon which Petitioners principally rely to

19

support their novel theory is clearly distinguishable. That

case involved a City of Camden Ordinance which

required that at least 40% of the employees of private

contractors and subcontractors working on City construc-

tion projects be Camden residents. The Supreme Court of

New Jersey held that the Privileges and Immunities

Clause could not be applied to a municipal ordinance as

opposed to an enactment of the state, and that the Clause

would not apply to a distinction based solely on munici-

pal residency because it was not aimed primarily at out-

of-state residents. 88 N.J. 317, 443 A.2d 148 (1982). This

Court reviewed and reversed that decision, holding that

the Clause does apply to municipal as well as state enact-

ments and that enactments which draw distinctions

solely on municipal residency are not immune from the

Clause.

Thus the Court went on to analyze whether the Cam-

den ordinance burdened one of those privileges and

immunities protected by the Clause. It phrased the issue

as follows:

As a threshold matter, then, we must determine

whether an out-of-state resident’s interest in

employment 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.” Id. at 218-219.

In deciding that a fundamental right critical to inter-

state harmony was involved the Court stated:

The opportunity to seek employment with such

private employees is sufficiently basic to the

20

livelihood of the Nation. Jd. at 221. (Emphasis

added).

Certainly the pursuit of a common calling is one

of the most fundamental of those privileges pro-

tected by the Clause. Id. at 219.

Thus it is clear that the Court in United Building &

Constr. Trades v. Camden, was focussing on what it

referred to as Camden's “efforts to bias private employ-

ment decisions in favor of its residents on construction

projects funded with public moneys.” Id. at 221.

(Emphasis added.) The Camden ordinance dealt with pri-

vate employers and employees providing services which

are not thought of as traditional governmentally pro-

vided services (i.e. construction). This is clearly distin-

guishable from Salem’s Ordinance which deals with

direct employees of a public employer seeking to provide

services traditionally provided by local governments.

Indeed, this Court in United Building & Constr. Trades

v. Camden, specifically declined to consider the Camden

ordinance as involving public employees in its Privileges

and Immunities analysis. This Court had done so in White

v. Massachusetts Council of Construction Employers, Inc., 460

U.S. 204, 75 L. Ed. 2d 1, 103 S. Ct. 1042 (1983) which

involved a virtually identical enactment as that in the

Camden case, however the analysis in White was solely

under the Commerce Clause and did not involve the

Privileges and Immunities Clause.'4 Under the “market

participant vs. market regulator” analysis called for by

14 Note that this Court in White ultimately upheld the pub-

lic construction residency requirement as against the Commerce

Clause challenge.

———— ou» ee |

21

the Commerce Clause in White this Court held that every-

one employed on a city public works project is, “in a

substantial if informal sense, working for the city”. Id. at

460 U.S. 211, 75 L. Ed. 2d 1, 103 S. Ct. at 1042. In United

Building & Constr. Trades v. Camden, the Court specifically

declined to treat the employees affected by Camden’s

ordinance as public employees stating:

It 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. But we

decline to transfer mechanically into this context an

analysis fashioned to fit the Commerce Clause. Our

decision in White turned on a distinction

between the city acting as a market participant

and the city acting as a market regulator. The

question whether employees of contractors and

subcontractors on public works 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 mar-

ket participant and market regulator relied upon

in White to dispose of the Commerce Clause

challenge is not dispositive in this context. Id. at

219-220. (Emphasis added.)

Unlike the facts in United Building & Constr. Trades v.

Camden, in the case at bar there is no question that all

employees affected by the Salem Ordinance are working

for the City as public employees. Thus as stated by this

Court in the above excerpt the Petitioners have “no

grounds for complaint when the City favors its own

22

residents”. The rational was alluded to by this Court in

the following passage:

Certainly, the pursuit of a common calling is one

of the most fundamental of those privileges pro-

tected by the Clause . . . Many, if not most, of

our cases expounding the Privileges and Immu-

nities Clause have dealt with the basic and

essential activity . . . Public employment, however,

is qualitatively different from employment in the

private sector; it is a subspecies of the broader

opportunity to pursue a common calling. We

have held that there is no fundamental right to

government employment for purposes of the Equal

Protection Clause. Massachusetts Bd. of Retire-

ment v. Murgia, 427 U.S. 307, 313, 49 L. Ed. 2d

520, 96 S. Ct. 2562 (1976) (per curiam). Cf.

McCarthy v. Philadelphia Civil Service Comm’‘n,

424 U.S. 645, 47 L. Ed. 2d 366, 96 S. Ct. 1154

(1976) (per curiam) (rejecting equal protection

challenge to municipal residency requirement

for municipal workers.) Id. at 219. (Emphasis

added.)

Although the decision in United Building & Constr.

Trades v. Camden is clearly distinguishable from the case

at bar since it involved private employees, it should

nevertheless be noted that this Court did not strike down

Camden’s ordinance under the Privileges and Immunities

Clause. It simply held that the Clause applied to the

ordinance. The decision as to whether the ordinance vio-

lated the Clause was remanded to the New Jersey

Supreme Court, but a decision was never rendered

because the case settled.!5 Id. at 223. Thus Petitioners

15 Indeed this Court seemed to indicate that Camden’s

ordinance might survive the scrutiny of the Privileges and

———— ee

23

have no precedent to support the proposition that even a

municipal residency requirement in connection with pub-

lic construction contracts violates the Privileges and

Immunities Clause, much less precedent to support their

position that a municipal residency requirement imposed

on actual municipal employees providing traditional

local government services violates the Clause.'®

Also relevant to this inquiry are the many cases

which have upheld municipal residency ordinances

against challenges based upon the “right of interstate

travel”. McCarthy v. Philadelphia Civ. Serv. Comm., 424 U.S.

645, 647, 96 S. Ct. 1154, 1155, 47 L. Ed. 2d 366 (1976);

Abrahams v. Civ. Serv. Comm., 65 N.J. 61, 319 A.2d 483

(1974); Lines v. City of Topeka, 223 Kan. 772, 779, 577 P. 2d

42 (1978); Andre v. Village of Maywood, 561 F.2d 48, 52-53

Immunities Clause. It distinguished Camden’s ordinance from

the “Alaska Hire” statute invalidated in Hicklin, supra, stating:

“we invalidated the [Alaska Hire] Act as an attempt to force

virtually all businesses that benefit in some way from the eco-

nomic ripple effect of Alaska’s decision to develop its oil and

gas resources to bias their employment practices in favor of the

State’s residents. No similar “ripple effect” appears to infect the

Camden ordinance. It is limited in scope to employees working

directly on city public works projects.” Id. at 223.

16 Petitioners may attempt to rely on the unpublished opin-

ion in 1st Westco Corp. v. School District of Philadelphia, under

docket no. 91-2727 in the United States District Court for the

Eastern District of Pennsylvania (JA 145) and the case of

Neshaminy Constructors, Inc. v. Krause, 181 N.J. Super. 376, 437

A.2d 733 (Ch. Div. 1981), modified 187 N.J. Super. 174, 453 A.2d

1359 (App. Div. 1982) cited therein; but both of those cases dealt

with a law requiring state, not municipal residency and, as such,

were not “limited in scope”. See preceding footnote.

24

(7th Cir. 1977); and Kansas City FOP v. Kansas City, 620 F.

Supp. 752, 755 (D. C. Kan. 1984). For certainly if munici-

pal residency requirements do not interfere with the right

of “interstate travel” they do not interfere with “inter-

state harmony”. The two concepts seem related as even

the earliest cases interpreting the purpose of the Privi-

leges and Immunities Clause focus on “free ingress into

other States, and egress from them...” Paul v. Virginia, 8

Wall. 168, 19 L. Ed. 357 (1869).

Finally, even if this Court were to reverse the deci-

sion of the lower Court and make new law by finding

that an out-of-state resident’s interest in employment

opportunities with local governments in the process of

providing traditional local governmental services “is suf-

ficiently fundamental to the promotion of interstate har-

mony so as to fall within the purview of the Privileges

and Immunities Clause”,!” Petitioners’ cause must still

fail. The second inquiry used by the Courts recognizes

17 This is exactly what Petitioners advocate in their Brief.

Under Petitioners’ theory all municipal residency ordinances

would be subject to the Clause and each municipality through-

out the country would have to defend its ordinance in a separate

fact sensitive court proceeding. Petitioners characterize this

result as rational compared to the “artificiai distinction” result-

ing from the decision by both lower Courts that the Clause is

inapplicable to traditional municipal residency requirements

(Pb 13). Obviously the reverse is true, since the individual resi-

dency ordinances of various municipalities throughout the

nation share common rationals and methods of implementation.

This is particularly true in states like New Jersey where munici-

pal residency ordinances are now facilitated by state enabling

statutes which authorize such ordinances and require the ordi-

nance to contain certain mandatory provisions (see N.J.S.A.

40A:9-1.3 to 40A:9-1.10).

25

that the Clause does not preclude distinctions based on

residency where the governing body can demonstrate

that “(i), there is a substantial reason for the difference in

treatment; (ii) the discrimination practiced against non-

residents bears a substantial relationship to the State’s

objective.” Piper, 470 U.S. at 284; United Building & Constr.

Trades Council, 465 U.S. at 222; Hicklin, 437 U.S. at 525-526.

This Court has stated that governmental units

“should have considerable leeway in analyzing local evils

and in prescribing appropriate cures.” Toomer v. Witsell,

supra, at 396, 92 L. Ed. 1460, 68 S. Ct. 1156. This caution is

particularly appropriate when a governing body is

merely setting conditions on the expenditure of funds it

controls. See United Building, supra, at 221, 79 L. Ed. 2d, at

260.

In United Building & Constr. Trades v. Camden, supra,

the Court summarized the test as follows:

The inquiry in each case must be concerned with

whether such reasons do exist and whether the

degree of discrimination bears a close relation to

them. Id. at 222.

In the case of Salem’s Ordinance, the reasons therefor

are stated in its preamble (54a).!§ These reasons have

18 Contrary to Petitioners’ assertions to the Third Circuit,

the City did not fail to “demonstrate a substantial reason” for its

Ordinance, nor did it fail to show that the Ordinance “furthers

the achievement of [its] objectives”. Petitioners assertion that

“the City offered no support that its residency ordinance has

resulted in actual benefits” is also unwarranted. These are

merely Petitioners’ characterizations. The District Court made

no such findings. The fact is the City came forward with prima

26

sufficed to uphold municipal residency requirement ordi-

nances against constitutional challenges based upon the

Fourteenth Amendment which contains the same “privi-

leges and immunities” reference as Article IV, Section II.

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

Moreover, Petitioners’ assertion that Salem’s Ordi-

nance is not “closely tailored” to the legitimate ends

sought to be achieved is erroneous. The Ordinance

requires all officers and employees to be residents and

allows for exceptions only when specialized talent; the

nature of the employment; or an employee’s health is

involved. It contained a “grandfather” clause to soften its

immediate impact and yet achieve its goals through natu-

ral attrition. The fact that unemployed and unskilled

residents receive no Official preferences in the City’s hir-

ing practices is mainly a function of the New Jersey Civil

Service merit examination system which governs the

City’s employment process.

+

facia evidence on all these issues in support of the Ordinance,

thereby shifting the burden to Petitioners. If the District Court

had denied the City summary judgment tho City most certainly

would have been permitted to retain expert witnesses to con-

duct studies and analysis to support its arguments at trial.

a a a

27

CONCLUSION

For the foregoing reasons, Respondents contend that

the petition for a writ of certiorari should be denied.

Respectfully submitted,

Davip J. Puma, Esa.

Council of Record

Waters, SHERMAN & Puma, P.A.

107 West Broadway

Salem, New Jersey 08079

(609) 935-2244

Attorneys for Respondents