393 Mass. 1201 | Mass. | 1984
To the Honorable the Senate of the Commonwealth of Massachusetts:
The Justices of the Supreme Judicial Court respectfully submit their responses to the questions set forth in an order adopted by the Senate on July 3, 1984, and transmitted to this court on July 25, 1984.
The order also indicates that grave doubt exists as to the constitutionality of the bill, if enacted into law, and requests our opinion on these questions:
“1. Would the enactment of said bill which, in part, mandates that private contractors on state funded projects in critical unemployment areas shall employ commonwealth residents in at least eighty percent of the employment positions covered by the contract or subcontract violate the United States Constitution, Art. IV, Sec. 2, cl. 1, or Article XII of part 1 of the Massachusetts Constitution?
“2. Would the enactment of said bill which, in part, mandates that private contractors on state funded projects in critical unemployment areas shall employ commonwealth residents in at least eighty percent of the employment positions covered by the contract or subcontract violate the United States Constitution, Art. 1, Sec. 8, cl. 3?”
We first examine the bill under the privileges and immunities clause (art. 4, § 2, cl. 1) of the United States Constitution: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The terms “citizen” and “resident” are “ ‘essentially interchangeable’ . . . for purposes of analysis of most cases under the . . . Clause . . . .” Hicklin v. Orbeck, 437 U.S. 518, 524 n.8 (1978). The clause was intended to fuse a collection of independent States into one nation and was designed to ensure that a citizen of one State who ventures into another State is accorded the same privileges enjoyed by the citizens of that State. See Toomer v. Witsell, 334 U.S. 385, 395 (1948). The pending bill, according to its title, is intended “to increase opportunities for Massachusetts residents on state-funded projects.”
We observe initially that the bill would burden a protected privilege because the opportunity to seek employment with private contractors and subcontractors engaged in public works projects is “sufficiently basic to the livelihood of the Nation” as to be within the scope of the clause. United Bldg. & Constr. Trades Council v. Mayor of Camden, 465 U.S. 208, 221 (1984), quoting Baldwin v. Montana Fish & Game Comm’n, 436 U.S. 371, 388 (1978). See Hicklin v. Orbeck, 437 U.S. 518, 524-525 (1978).
The analytical framework which guides our review under the clause is that established in Toomer v. Witsell, supra, and later applied in both Hicklin v. Orbeck, supra, and in United Bldg. & Constr. Trades Council v. Mayor of Camden, supra at 222-223.
We now consider whether there is a substantial reason for the discrimination beyond the fact of residence in another State. We have before us no record of legislative findings, indeed no factual record of any kind. The proposed statutory preference for Commonwealth residents, applicable to at least eighty per cent of the positions covered by a governed contract or subcontract, would be triggered by a finding by the Commissioner of Labor and Industries (commissioner) that critical unemployment conditions exist in an employment area and that employment opportunities for Commonwealth residents “are decreased due to the employment of nonresidents ... in that area . . . .”
If we assume that a substantial reason beyond nonresidence were shown, the question at issue would then become that of determining whether the degree of discrimination bears a close relationship to that reason.
Our conclusion is consistent with those reached in other jurisdictions. The Washington Supreme Court held that a requirement in all contracts let by the State or any county or city for certain projects that the contractor or subcontractor must employ either ninety-five or ninety percent residents violated the clause. Laborers Local 374 v. Felton Constr. Co., 98 Wash. 2d 121 (1982). A New Jersey court, reviewing a requirement that preference be given to residents in certain construction contracts awarded by the State or other public bodies, determined it to be in conflict with the clause. Neshaminy Constructors, Inc. v. Krause, 181 N.J. Super. 376 (1981). In addition, a New York statute mandating preferential employment of residents on public works projects was held to be a violation of the clause. Salla v. County of Monroe, 48 N.Y.2d 514, 518 (1979), cert. denied sub nom. Abrams v. Salla, 446 U.S. 909 (1980) (focusing, in part, on the absence of a “unique link between the interest served and the discrimination practiced”).
We next consider whether and to what extent the Commonwealth’s proprietary interest in State-funded contracts may render the discrimination nonviolative of the clause. The bill would apply to State-funded projects and the preference requirement would be applicable to contracts and subcontracts. In contrast, the statute at issue in Hicklin applied “to all employ
In Massachusetts Council of Constr. Employers, Inc. v. Mayor of Boston, 384 Mass. 466, 477-478 (1981), the court rejected a contention that the absolute employment preference
We have sought to fulfil our responsibility to conduct this inquiry with an appropriate regard for the principle that the Commonwealth “should have considerable leeway in analyzing local evils and in prescribing appropriate cures.” See Toomer v. Witsell, supra at 396. We recognize this leeway as being an essential component of our Federal system. Nevertheless, we have also been guided by the underlying purpose of the privileges and immunities clause. We have sought to discern the appropriate relationship between such constitutional values as protection of nonresidents and respect for State autonomy.
For the reasons set forth above, we conclude, and in response to question 1 state, that the bill would, if enacted into law, violate the privileges and immunities clause, art. 4, § 2, cl. 1, of the United States Constitution. As a result, we beg to be excused from answering the remaining question.
The foregoing opinion and answer is submitted by the Chief Justice and the Associate Justices subscribing hereto on the 4th day of October, 1984.
We invited interested persons to file briefs on or before August 31, 1984, and we acknowledge the assistance of a brief from the New England Legal Foundation.
We assume that the bill is intended, at least in part, to alleviate unemployment because it would take effect only in areas of critical unemployment conditions. We expect that a bill intended merely to increase employment opportunities would not need to be structured as this one is.
The court followed this pattern of inquiry in Massachusetts Council of Constr. Employers, Inc. v. Mayor of Boston, 384 Mass. 466, 473-478 (1981), in which the court concluded that a statutory preference for residents for certain positions in hiring on State-funded construction projects conflicted with the clause. Certiorari was granted to consider whether the commerce clause prevented the city of Boston from giving effect to an executive order by the mayor and the judgment was reversed. The United States Supreme Court did not review that portion of the opinion based upon the privileges and immunities clause. White v. Massachusetts Council of Constr. Employers, Inc., 460 U.S. 204, 206 (1983).
The court also employed this pattern in upholding a challenge to the constitutionality of our rule that an attorney seeking admission to the bar on motion must be a resident. Matter of Jadd, 391 Mass. 227 (1984). See also Matter of Gordon, 48 N. Y.2d 266 (1979) (statute prohibiting admission to the bar absent proof of six months’ residence violates clause).
The bill defines “[c]ritical unemployment conditions” as “the occurrence of a rate of unemployment within an employment area . . . which is equal to or greater than one hundred and twenty percent of the average rate of unemployment in the commonwealth or in the United States, whichever is lower, during the same period.”
There is no assurance that the finding will not be merely conclusory. It is possible that the unemployment rate in an area may vastly exceed the percentage of positions held by nonresidents, and that the types of positions held by nonresidents may be different in nature from those for which Massachusetts residents are both available and appropriately trained. It is also possible that employment of nonresidents might be the result of such factors as too few trained applicants in the local labor force rather than the cause of unemployment in the local area, so that the level of local unemployment may not be directly related to the employment of nonresidents. In short, a conclusory finding might not show that nonresidents are a “peculiar source of the evil.”
The Hicklin Court spoke of a “reasonable relationship” (id. at 526), but this is not necessarily part of the Toomer standard.
See also Rubin v. Glaser, 83 N.J. 299, 305-306 (1980), and Lung v. O’Chesky, 94 N.M. 802, 804 (1980), in which the relationships were found to be sufficiently close.
The strength of the proprietary interest argument is reduced if, as the bill would permit, the “State-funded project” were financed only in part by Commonwealth funds.