Appeal from the United States District Court for the District of New Jersey. D.C. Civil No. 92-1137.
Before: Sloviter, Chief Judge, Hutchinson and Seitz, Circuit Judges.
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.
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 Jersey, 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 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.
Joint Appendix ("JA") 38 (Ordinance #78-3).
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 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 situations; and provide unto the City economic benefits . . . .
Salem Blue Collar Workers Association ("Association"), 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 enforcement of the ordinance. They alleged that the ordinance 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 judgment. The district court held that the ordinance did not violate either constitutional provision and granted summary judgment to defendants. Plaintiffs' appeal followed.
A. The Privileges and Immunities Clause
The Privileges and Immunities Clause of the United States Constitution provides that "the 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 state on the basis of citizenship. See Paul v. Virginia, 75 U.S. (8 Wall.) 168, 180, 19 L. Ed. 357 (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 ordinances. United Bldg. & Constr. Trades Council v. Mayor & Council of Camden, 465 U.S. 208, 214-15, 79 L. Ed. 2d 249, 104 S. Ct. 1020 (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.
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 Camden case. There the Court stated that "it is true that New Jersey citizens not residing in Camden will be affected by the ordinance as well as out-of-state citizens. And it is true that the disadvantaged New Jersey residents 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 members who lived outside the State of New Jersey and others who might live outside the state but for the ordinance.*fn1 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 standing 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 discrimination bears a close relation to them," Toomer v. Witsell, 334 U.S. 385, 396, 92 L. Ed. 1460, 68 S. Ct. 1156 (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 Commission, 436 U.S. 371, 56 L. Ed. 2d 354, 98 S. Ct. 1852 (1978), "only 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, ...