Thus, while isolated passages of the Court's opinion in the Camden case may appear to support plaintiffs' position 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 Privileges 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.
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 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 government 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 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 commercial 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 secretary 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 purview 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 application 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 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, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985); Schweiker v. Wilson, 450 U.S. 221, 230, 67 L. Ed. 2d 186, 101 S. Ct. 1074 (1981); Dandridge v. Williams, 397 U.S. 471, 483-87, 25 L. Ed. 2d 491, 90 S. Ct. 1153 (1970). "Legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." 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, 49 L. Ed. 2d 511, 96 S. Ct. 2513 (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, "if [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 practice it results in some inequality.'" Dandridge v. Williams, 397 U.S. 471, 485, 25 L. Ed. 2d 491, 90 S. Ct. 1153 (1970) (quoting Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 55 L. Ed. 369, 31 S. Ct. 337 (1911)). "There 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).
The Supreme Court has held that municipal residency ordinances similar to Salem's are not irrational per se. See McCarthy v. Philadelphia Civil Serv. Comm'n, 424 U.S. 645, 646, 47 L. Ed. 2d 366, 96 S. Ct. 1154 (1976); Detroit Police Officers Ass'n v. City of Detroit, 405 U.S. 950, 31 L. Ed. 2d 227, 92 S. Ct. 1173 (1972) (dismissing for lack of federal question appeal of decision by Supreme Court of Michigan rejecting equal protection challenge to municipal 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, 10 Cal. 3d 129, 514 P.2d 433, 109 Cal. Rptr. 849 (Cal. 1973), cert. denied, 415 U.S. 935, 39 L. Ed. 2d 493, 94 S. Ct. 1451 (1974); Kennedy v. City of Newark, 29 N.J. 178, 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 irrational. 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 rationally 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 residency ordinances on police officers); N.J. Stat. Ann. 40A:14-9.1 (firefighters); N.J. Stat. Ann. 18A:26-1.1 (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, 145 N.J. Super. 466, 368 A.2d 381, 386 (N.J. Super. Ct. App. Div. 1976). Moreover, the legislative history behind 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 mandated 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 minimum 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).
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.
Defendant 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.'" Bordenkircher v. Hayes, 434 U.S. 357, , 54 L. Ed. 2d 604, 98 S. Ct. 663, 668-69 (1978) (quoting Oyler v. Boles, 368 U.S. 448, 456, 7 L. Ed. 2d 446, 82 S. Ct. 501 (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, 62 L. Ed. 2d 307, 100 S. Ct. 295 (1979).
Otherwise, the mere fact that certain persons have been permitted to violate the ordinance or statute without prosecution does not preclude the government from enforcing it against others. Abrahams v. Civil Serv. Comm'n, 65 N.J. 61, 319 A.2d 483, 490 (N.J. 1974). Here plaintiffs have not adduced any evidence, nor do they allege that the City's failure to enforce the ordinance except against Stephen Scull was purposeful and intentional and "deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Bordenkircher, 98 S. Ct. 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 requirement 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 providing 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 ordinance. 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 authority 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 exceptions to it must not be casually created."
United States v. Rogers, 962 F.2d 342, 344 (4th Cir. 1992) (quoting Cheek v. United States, 498 U.S. 192, 111 S. Ct. 604, 609, 112 L. Ed. 2d 617 (1991)); accord, United States v. International Minerals and Chem. Corp., 402 U.S. 558, 29 L. Ed. 2d 178, 91 S. Ct. 1697 (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 application, 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, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972). Plaintiffs argue that this ordinance is void for vagueness because "the Mayor and Council have complete discretion in authorizing 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 officer or employee of the City of Salem to remain in the employ of the City without complying with the provisions hereof where: