International Organization of Masters, Mates & Pilots v. Andrews

• Citation: 831 F.2d 843
• Decision Date: 29 October 1987
• Docket Number: II-X,No. 86-3727,86-3727
• Parties: , 56 USLW 2274 INTERNATIONAL ORGANIZATION OF MASTERS, MATES & PILOTS; Pacific Maritime Association, a labor organization; Kurt K. Petrich; Robert W. Seidman, et al., Plaintiffs-Appellants, v. Eleanor ANDREWS, Commissioner of Administration of the State of Alaska; Richard J. Knapp, Commissioner of the Department of Transportation and Public Facilities of the State of Alaska; Martin Nusbaum, Director of Administrative Support of the Division of Marine Highway Systems of the State of Alaska; John Does, officers of the State of Alaska, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 843

831 F.2d 843

1988 A.M.C. 1517, 56 USLW 2274

INTERNATIONAL ORGANIZATION OF MASTERS, MATES & PILOTS;

Pacific Maritime Association, a labor

organization; Kurt K. Petrich; Robert

W. Seidman, et al., Plaintiffs-Appellants, v. Eleanor ANDREWS, Commissioner of Administration of the State

of Alaska; Richard J. Knapp, Commissioner of the Department

of Transportation and Public Facilities of the State of

Alaska; Martin Nusbaum, Director of Administrative Support

of the Division of Marine Highway Systems of the State of

Alaska; John Does II-X, officers of the State of Alaska,

Defendants-Appellees.

No. 86-3727.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 7, 1987.

Decided Oct. 29, 1987.

Richard S. Oettinger, Seattle, Wash., for plaintiffs-appellants Intern. Organization of Master, Mates & Pilots, and Pacific Maritime Ass'n.

Kelby D. Fletcher, Seattle, Wash., for plaintiffs-appellants Petrich, et al.

Jam Hart DeYoung, Anchorage, Alaska, for defendants-appellees Andrews, et al.

Appeal from the United States District Court for the District of Alaska.

Before WRIGHT, FARRIS and BEEZER, Circuit Judges.

BEEZER, Circuit Judge:

The International Organization of Masters, Mates & Pilots (IOMM & P) and members of the Inland Boatman's Union (the Petrich plaintiffs) appeal from judgment upholding an Alaska statute granting cost of living wage adjustments to resident, but not nonresident employees of the Alaska Marine Highway System (AMHS). The district judge held that AS 23.40.210 does not violate the Privileges and Immunities Clause, the right to travel, the Commerce Clause, or the Equal Protection Clause. We affirm. ¹

I Background

The State of Alaska owns and operates the Marine Highway System. AMHS vessels call regularly at Seattle. The AMHS is the only surface transportation connecting many communities along the Alaska coast. The IOMM & P represents deck officers employed by AMHS. Kurt Petrich and other named plaintiffs in this action are employed as deck hands for AMHS and are represented by the IBU. The IBU is not a party to this action. Both the IOMM & P and the Petrich plaintiffs (hereafter collectively referred to as "Appellants") include Washington resident employees of AMHS.

Alaska Statute 23.40.210 requires that every labor agreement between public employers in Alaska and any labor organization provide that wages of nonresident employees not increase until the difference between wages paid to residents and wages paid to nonresidents "reflects the difference between the cost of living in Alaska and living in Seattle, Washington." The purpose of AS 23.40.210 is to encourage Alaska residents to seek employment with AMHS. AS 23.40.210 has been incorporated into current labor agreements between AMHS and the IOMM & P and AMHS and the IBU.

Appellants sued under 42 U.S.C. Sec. 1983 for declaration that AS 23.40.210 and corresponding provisions of labor agreements violated the Privileges and Immunities Clause of Article IV, the right to travel, the Commerce Clause, and the Equal Protection Clause. ² The district court upheld AS 23.40.210 against the constitutional challenges. Int'l Org. of Masters, Mates & Pilots v. Andrews, 626 F.Supp. 1271 (D.Alaska 1986).

II Jurisdiction and Standard of Review

The district court had jurisdiction under 28 U.S.C. Sec. 1343. We have jurisdiction under 28 U.S.C. Sec. 1291. This appeal presents mixed questions of fact and constitutional law. We review the district court's determinations de novo. ACORN v. City of Phoenix, 798 F.2d 1260, 1263 (9th Cir.1986)

III Analysis

Appellants claim that AS 23.40.210 violates the Privileges and Immunities Clause of Article IV, Section 2, the Commerce Clause, and the right to travel as embodied in the Constitution. We address each argument in turn.

A. Privileges and Immunities

Article IV, Section 2, Clause 1 of the Constitution provides that "Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." The purpose of this clause is,

to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States, and egress from them; it insures to them in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws. It has been justly said that no provision in the Constitution has tended so strongly to constitute the citizens of the United States one people as this. Hicklin v. Orbeck, 437 U.S. 518, 524, 98 S.Ct. 2482, 2486-87, 57 L.Ed.2d 397 (1977) (quoting Paul v. Virginia, 8 Wall. 168, 180, 19 L.Ed. 357 (1869)).

This clause seeks to ensure the unity of the several states by protecting those interests of nonresidents which are " 'fundamental' to the promotion of interstate harmony." United Bldg. and Constr. Trades Council v. City of Camden, 465 U.S. 208, 218, 104 S.Ct. 1020, 1028, 79 L.Ed.2d 249 (1984). 42 U.S.C. Sec. 1983 embodies individual rights cognizable under this provision.

To assess the appellants' privileges and immunities claim we determine first whether AS 23.40.210 burdens such fundamental rights. Camden, 465 U.S. at 218, 104 S.Ct. at 1027. If it does, we determine next whether the state's reason for discriminating between residents and nonresidents is "substantial" and "whether the degree of discrimination bears a close relation to [that reason.]" Camden, 465 U.S. at 222, 104 S.Ct. at 1029.

The appellants claim that AS 23.40.210 burdens their interest in pursuing employment with AMHS. A nonresident's right to "ply [a] trade, practice [an] occupation, or pursue a common calling within the State" is a fundamental right protected by the privileges and immunities clause. Hicklin 437 U.S. at 524, 98 S.Ct. at 2487. However, whether public employment is a fundamental right within the Privileges and Immunities Clause remains unsettled. Camden, 465 U.S. at 219-20, 104 S.Ct. at 1028-29.

We need not decide the question whether public employment is subject to the requirements of the Privileges and Immunities Clause because the appellants have not shown that they are prevented or discouraged by the State from pursuing employment with AMHS. Unlike state practices which have been struck down, the Alaska statute does not limit the number of nonresident workers, Camden, 465 U.S. 208, 104 S.Ct. 1020, 79 L.Ed.2d 249 (1984), favor the hiring of Alaskan workers, Hicklin, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1977), or make employment with AMHS unprofitable for nonresidents. Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed.2d 1460 (1948). In fact, AS 23.40.210 enhances nonresidents' prospects for employment by making nonresident labor less expensive and more attractive than competing resident labor.

Furthermore, the appellants have not shown that AS 23.40.210 undermines interstate comity and economic unity that the clause was designed to engender. See, e.g., Camden, 465 U.S. at 218, 104 S.Ct. at 1027. This statute, designed to provide equity between the wages of Alaskan and non-Alaskan workers, is not one which pressures other states to legislate or retaliate in response. See Austin v. New Hampshire, 420 U.S. 656, 666-67, 95 S.Ct. 1191, 1198-99, 43 L.Ed.2d 530 (1975). The Alaska statute in no way interferes with interstate relations or with the freedom of nonresidents to seek employment with or residence in Alaska.

B. Right to Travel

Appellants claim that AS 23.40.210 burdens the rights of both residents and nonresidents to travel. Although the source of the right to travel is obscure, it is protected by the Equal Protection Clause of the Fourteenth Amendment. Zobel v. Williams, 457 U.S. 55, 60 n. 6, 102 S.Ct. 2309, 2312 n. 6, 72 L.Ed.2d 672 (1981) (The "right to travel analysis refers to little more than a particular application of equal protection analysis.")

Nonresident employees do not have standing to challenge AS 23.40.210 based on their right to travel because their freedom to leave Seattle is not affected by the statute. Only one of the Petrich plaintiffs, David Lisle, has standing to assert that AS 23.40.210 violates his right to travel. Lisle is the only resident appellant who has sworn that he "would like to live elsewhere [than Alaska], but [has] avoided moving in large part due to the wage differential required by statute and the collective bargaining agreement." See Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 264, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977) (standing requires a showing of "at least a substantial probability" that the relief sought would remedy the alleged injury.)

The Supreme Court has held that states may not violate the constitutional right to travel by conditioning public benefits or political rights on a term of residency. See, e.g., Zobel, 457 U.S. 55, 102 S.Ct. 2309, 50 L.Ed.2d 450 (1982) (invalidating Alaska's dividend distribution plan based on years of residency); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (invalidating residency requirement for voting); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (invalidating residency requirement for welfare benefits); Memorial Hosp. v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974) (invalidating residency requirements for indigent medical care); Attorney General v. Soto-Lopez, 476 U.S. 898, 106 S.Ct. 2317, 90 L.Ed.2d 899 (1986) (invalidating veteran hiring preference based on residence at time of military service). However, states may condition nonessential benefits and rights, such as lower college tuition, Vlandis v....