Utility Contractors Ass'n v. City of Worcester

• Decision Date: 23 December 2002
• Docket Number: No. CIV.02-11877-NG.,CIV.02-11877-NG.
• Citation: 236 F.Supp.2d 113
• Parties: UTILITY CONTRACTORS ASS'N OF NEW ENGLAND, INC., W. Walsh Company, Inc., I.W. Harding Construction, Inc., and Dennis Dugan, Plaintiffs, v. CITY OF WORCESTER, Defendant.
• Court: U.S. District Court — District of Massachusetts

236 F.Supp.2d 113

UTILITY CONTRACTORS ASS'N OF NEW ENGLAND, INC., W. Walsh Company, Inc., I.W. Harding Construction, Inc., and Dennis Dugan, Plaintiffs, v. CITY OF WORCESTER, Defendant.

No. CIV.02-11877-NG.

United States District Court, D. Massachusetts.

December 23, 2002.

Richard D. Wayne, Brian E. Lewis, Hinckley, Allen & Snyder, Boston, MA, for Utility Contractors Ass'n of New England, Inc., W. Walsh Company, Inc., I.W. Harding Construction, Inc., Dennis Dugan, Plaintiffs.

David M. Moore, Worcester, MA, for City of Worcester, Defendant.

MEMORANDUM AND ORDER

GERTNER, District Judge.

This is a case brought under the Privileges and Immunities Clause of Article IV of the United States Constitution to challenge the City of Worcester's use of a "Residency Requirement Ordinance" in its public works projects. The Residency Requirement Ordinance requires that all private contractors or subcontractors on such projects allocate 50% of their total employee work hours to Worcester residents. The plaintiffs seek a preliminary injunction to stay enforcement of the ordinance while this case is pending.

There are serious issues on both sides of this case. On the one hand, the City emphasizes Worcester's depressed financial situation and the importance of giving jobs to its residents, many of whom are anxiously awaiting the outcome of this case. The City also underscores the impact of a delay in the current municipal building project — the construction of a new vocational school. The project is reputedly one of the largest public works projects in the City's history, and the school is desperately needed.

The plaintiffs point to the fact that the ordinance obviously disadvantages citizens from outside of Worcester and from other states, presumably including citizens with equally pressing needs. Their interests are not technical or unimportant. They derive from the Privileges and Immunities Clause of the Constitution, which guarantees to every citizen of the country all the rights and privileges enjoyed by every other citizen. The Privileges and Immunities Clause played and continues to play a critical role in "fus[ing] into one Nation a collection of independent, sovereign States." Toomer v. Witsell, 334 U.S. 385, 395, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948).

Furthermore, plaintiffs maintain that if enjoining this residency preference leads to the disruption of existing projects, it is because the City failed to follow the overwhelming case law invalidating similar residency preferences, and specifically, failed to heed the concerns plaintiffs brought to the City five months ago.

While it is troubling to see this important project delayed, and to upset the expectations of Worcester residents, the law gives me no choice. The cases could not be clearer. The constitutional issues could not be more significant. In the absence of legally sufficient evidence from the town to justify the ordinance at this stage of the proceedings, an injunction must issue. For the reasons set forth below, I GRANT the plaintiffs' motion.

I. FACTS/PROCEDURAL HISTORY

The residency requirement ordinance ("RRO") at issue in this case dates back to 1984 and is found in Chapter 2, Section 32 of the City of Worcester's Revised Ordinances:

On any project for the construction, reconstruction, installation, demolition, maintenance or repair of any building, or public work, costing in excess of twenty-five thousand dollars, to be funded in whole or in part by city funds, or funds which, in accordance with a federal or state grant, program, or otherwise, the city expends or administers, ... the provisions of this section shall apply and the same shall be referenced in every invitation to bid for such project and[] the following paragraphs shall be contained in every resulting contract therefrom:

"It shall be a material breach of this contract if the contractor and each subcontractor on a craft-by-craft basis shall not at all times provide at least fifty percent of the total employee worker-hours in each trade, at every tier, to be performed by bona fide residents of the city of Worcester."

Contractors are further required to make reference to this provision and its requirements in contracts with subcontractors, who must in turn notice the requirement in all their dealings with subcontractors. Section 35(d) of Chapter 2, Worcester's "Responsible Employer Ordinance," ("REO") lists the penalties for a contractor's noncompliance with the RRO, which include suspension from work on the project, withholding of payment by the City, permanent removal from the project, or an assessment against the contractor for each week that the contractor fails to comply. The City may waive the residency requirement upon a contractor's showing that compliance is not feasible, despite its bona fide efforts. Rev. Ordinances for the City of Worcester c. 2, § 32(c).

The plaintiffs in this case include (1) the Utility Contractors Association of New England, Inc. ("UCANE"), self-described as "a non-profit corporation that represents more than 100 union and non-union contractors who are principally engaged in public construction in the Commonwealth of Massachusetts and other New England states, as well as more than 100 materialmen, suppliers, and associate members;" (2) two construction contracting companies, W. Walsh Company, Inc. and I.W. Harding Construction, Inc.; and (3) Dennis Dugan, a citizen of New Hampshire. The complaint pleads that Dugan and the contractor plaintiffs all regularly work on the type of municipal public works projects that, if done in Worcester, would fall within the scope of the RRO.

In August 2002, the plaintiffs adopted the view that the RRO and REO were unconstitutional. After several letters from counsel to City officials failed to elicit the desired response from the City — elimination of the residency requirement — the plaintiffs filed suit in Massachusetts Superior Court of Norfolk County on September 3, 2002. The complaint sought a declaration that the RRO was unconstitutional. On September 9, 2002, the City announced a bid specification for the construction of a new vocational school building, a project reputed to be one of the largest public works projects in the City's history. Consistent with Worcester policy, the announcement gave notice of the residency requirement. The defendants removed the case to federal court on September 24, 2002.

The City initially planned to open bids for the school project on November 26, 2002, and on November 25 the plaintiffs moved for a temporary restraining order that would suspend the RRO. As it happened, the City had, for other reasons, pushed back the bid-opening date to December 3, 2002. The parties appeared on November 6 for a hearing on the temporary restraining order, which the court allowed until December 11, 2002. On that date the parties reappeared to argue whether the existing temporary restraining order should stay in place as a preliminary injunction.

II. DISCUSSION

To prevail on a motion for a preliminary injunction, the plaintiffs must satisfy the Court (1) that they are likely to succeed on the merits of their claims; (2) that irreparable harm will follow absent entry of an injunction; (3) that the benefits flowing from the injunctions will, on balance, outweigh the burdens imposed; and (4) that the injunction comports with the public interest. Coastal Fuels of Puerto Rico, Inc. v. Caribbean Petroleum Corp., 990 F.2d 25, 26 (1st Cir.1993); Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir.1991). The showing of a strong likelihood of success on the merits, if made, is a point in the plaintiffs' favor in the balancing of interests. Concrete Mach. Co. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 612-13 (1st Cir.1988); AccuSoft Corp. v. Mattel, Inc., 117 F.Supp.2d 99, 102 (D.Mass.2000).

A. Likelihood of Success on the Merits

The Privileges and Immunities Clause gives constitutional assurance that "The Citizens¹ of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." U.S. Const. art. IV, § 2, cl. 1. It is the purpose of the Clause to protect, inter alia, the rights of citizens to pursue a common calling, to hold and dispose of property, and to petition in the courts of states in which they do not reside. Baldwin v. Fish & Game Comm'n of Montana, 436 U.S. 371, 383, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978) (citing Ward v. Maryland, 12 Wall. 418, 79 U.S. 418, 421-22, 20 L.Ed. 449 (1871) (common calling); Blake v. McClung, 172 U.S. 239, 249, 19 S.Ct. 165, 43 L.Ed. 432 (1898); and Canadian N. Ry. v. Eggen, 252 U.S. 553, 563, 40 S.Ct. 402, 64 L.Ed. 713 ("reasonable" access to courts)).² The Supreme Court has held that, to the extent they disadvantage out-of-state residents as a class, residency requirement ordinances like the one at issue in this case can run afoul of the Privileges and Immunities Clause. United Bldg. & Constr. Trades Council of Camden & Vicinity v. Mayor & Council of the City of Camden, 465 U.S. 208, 216, 104 S.Ct. 1020, 79 L.Ed.2d 249 (1984) (hereinafter "Camden").

The Camden case involved a Camden, New Jersey ordinance that required contractors to assign 40% of their work-hours to Camden residents. The defendants argued —unsuccessfully to the Third Circuit —that the Clause should not apply because it did not disadvantage only out-of-state residents; nonresidents of Camden who lived in New Jersey were on the same unequal footing as out-of-staters. The Court rejected this position, stating flatly, "We have never read the Clause so literally as to apply it only to distinctions based on state citizenship." Id. By definition, a municipal residency requirement disfavors out-of-state residents as a class, with the result that "whether the exercise of a privilege is conditioned on state residency or on municipal residency [an out-of-stater] will just as surely be excluded." Id. at 217, 104 S.Ct. 1020.

There is simply no...