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SALEM BLUE COLLAR WORKERS ASSN. v. CITY OF SALEM

September 13, 1993

SALEM BLUE COLLAR WORKERS ASSOCIATION and STEPHEN SCULL, Plaintiffs,
v.
THE CITY OF SALEM; MAYOR and COMMON COUNCIL OF THE CITY OF SALEM; MAYOR LEON JOHNSON; 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.



The opinion of the court was delivered by: JOHN F. GERRY

 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 violates 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 Constitutions. 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, preliminary and permanent injunctive relief, and damages against the City of Salem and various officials thereof. 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 officers 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. *fn1"

 The ordinance has been interpreted by the City to apply only to those hired or appointed after its effective date, thus effectively "grandfathering" those who were previously employed by the City and live elsewhere. The ordinance 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 forth the charge that the employee is not a bona-fide resident" and therefore faces discharge.

 The City's police officers, firefighters, and public school teachers *fn3" are exempted from the ordinance by operation of state law. See N.J. Stat. Ann. 40A:14-122.1 (precluding 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 employees have sought or received official waivers from the Mayor and City Council.

 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. Additionally, other members of the Association might be willing 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 violation of the municipal residency ordinance. He was informed 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 unfair practice charge before the Commission was postponed indefinitely pending the outcome of plaintiffs' constitutional challenge in this court.

 II. Discussion

 Under Fed. R. Civ. P. 56, summary judgment is appropriate 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.

 A. Article IV Privileges and Immunities Clause

 The Privileges and Immunities Clause of Article IV states that "the 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 discriminate against residents of other states. See, e.g., Supreme Court of N.H. v. Piper, 470 U.S. 274, 280, 84 L. Ed. 2d 205, 105 S. Ct. 1272 (1985); Toomer v. Witsell, 334 U.S. 385, 395-96, 92 L. Ed. 1460, 68 S. Ct. 1156 (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 unreasonable burdens on out-of-state citizens and whose sole basis for classification is place of residency. See, e.g., Piper, 470 U.S. 274, 84 L. Ed. 2d 205, 105 S. Ct. 1272 (New Hampshire's residency requirement for admission to the bar); Hicklin v. Orbeck, 437 U.S. 518, 57 L. Ed. 2d 397, 98 S. Ct. 2482 (1978) (Alaskan statute requiring all contracts in connection with construction of Alaskan oil and gas pipelines to give preference in hiring to Alaskan residents); Austin v. New Hampshire, 420 U.S. 656, 43 L. Ed. 2d 530, 95 S. Ct. 1191 (1975) (commuter income tax imposed only on out-of-state residents who work in state); Doe v. Bolton, 410 U.S. 179, 35 L. Ed. 2d 201, 93 S. Ct. 739 (1973) (state statute prohibiting abortions performed on out-of-state residents); Mullaney v. Anderson, 342 U.S. 415, 96 L. Ed. 458, 72 S. Ct. 428 (1952) (statute of Territory of Alaska charging non-residents forty-five dollars more for commercial fishing license than residents) Toomer, 334 U.S. 385, 92 L. Ed. 1460, 68 S. Ct. 1156 (South Carolina statute requiring non-residents to pay one hundred times more for commercial shrimp license than residents); Ward v. Maryland, 79 U.S. (12 Wall) 418, 20 L. Ed. 449 (1871) (Maryland statute requiring only non-resident merchants to obtain license to practice their trade, charging higher fees to non-resident than to resident merchants, and prohibiting merchants from using non-resident salesmen 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 discriminate on the basis of state residency. See United Bldg. & Constr. Trades Council v. Mayor & Council of Camden, 465 U.S. 208, 215-218, 79 L. Ed. 2d 249, 104 S. Ct. 1020 (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[,] out-of-state citizens have no similar opportunity." Id. at 217 (citations omitted). Accordingly, out-of-state residents burdened by a municipal residency ordinance must be accorded the protections of the Clause.

 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. "The disadvantaged [in-state] residents have no claim." Id. at 217. The complaint alleges 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 ordinance under the Privileges and Immunities Clause. Summary 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 unchallenged 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 Jersey"). 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 ordinance violates the Privileges and Immunities Clause is to inquire "whether the ordinance burdens one of those Privileges 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, 56 L. Ed. 2d 354, 98 S. Ct. 1852 (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 run for public office to be citizens. See Baldwin, 436 U.S. at 383. Additionally, the Supreme Court has held that it is ...


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