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LA Housing Ballot Measure Called Unconstitutional

A federal lawsuit claims that a “local hiring” provision in a ballot measure calling for more affordable housing that was approved by nearly two-thirds of Los Angeles voters in November violates the constitution.

LOS ANGELES (CN) — A federal lawsuit claims that a “local hiring” provision in a ballot measure calling for more affordable housing that was approved by nearly two-thirds of Los Angeles voters in November violates the constitution.

Ballot Measure JJJ, which proponents refer to as “Build Better LA,” declares that builders needing zoning changes or city approval for certain apartment or condominium projects must meet affordability and hiring requirements.

Specifically, they “must make a good-faith effort to ensure that at least 30 percent of all their respective workforces’ construction workers’ hours … shall be performed by permanent residents of the City of Los Angeles.”

At least 10 percent of those worker hours should come from people who have troubling finding jobs — such as the homeless, veterans, single parents and ex-criminals — and who also live within five miles of the project, the measure adds.

It also sets some worker training and pay standards.

In the lawsuit filed late last week, Jim Luke, a construction worker from Illinois, and the Golden State Environmental Justice Alliance, a nonprofit based near Riverside, claim those requirements set “an unconstitutional incentive for private contractors to discriminate in hiring construction workers against out-of-state residents.”

Measure JJJ won’t ease LA’s tight housing market “because it compels persons who wish to work on certain construction projects to relocate to the City and thereby compete with existing residents for the available housing stock,” Luke and the alliance say in their eight-page complaint.

Additionally, the “local hiring” provisions “will limit the number of out-of-state developers willing to undertake projects in Los Angeles. This will increase the cost of housing,” they assert.

“Not only is this bad public policy, it is unconstitutional,” they claim.

Labor unions, led by the Los Angeles County Federation of Labor, were the main proponents of Measure JJJ. In response to the lawsuit, Rusty Hicks, the federation’s executive secretary-treasurer, said in an email that “the Los Angeles City Attorney prepared the legal analysis for Prop JJJ and never raised this issue.”

Frank T. Mateljan III, a spokesman for the city attorney, said the office does not comment on pending litigation.

A representative of the Los Angeles Area Chamber of Commerce, a leading opponent of the ballot measure, was unable to respond to an inquiry about the lawsuit on Friday.

Voters approved the ballot measure with 64.8 percent of the vote on Nov. 8.

Last Monday, the Department of City Planning released new guidelines about how the affordable housing initiative will actually work.

The measure’s requirements only apply when a developer seeks a zoning change or general plan amendment to build a proposed multi-unit housing project. City officials now have limited authority to deny the change or amendment if the project would be near public transit, include a percentage of lower-cost units and be built in part by city residents.

For the higher-density projects targeted by Measure JJJ, those kinds of zoning adjustments are common. In 2015, developers asked the city planning department for changes in order to build 9,100 units, according to an economic analysis from the measure’s critics.

Luke and the environmental alliance say JJJ’s local hiring provisions violate the U.S. Constitution’s Commerce Clause and the Privileges and Immunities Clause, as well as workers’ equal protection rights under the 14th Amendment. They also violate sections of the California Constitution, including one protecting the right to interstate travel.

Under the Commerce Clause, a state or local government “may not benefit in-state economic interests by burdening out-of-state competitors,” the lawsuit says.

The hiring provisions in JJJ present “a classic case of ‘economic protectionism,’ and hence a violation of the Commerce Clause,” Luke and the alliance argue.

Constitutional scholar and UC Irvine School of Law Dean Erwin Chemerinsky said the Commerce and Privileges and Immunities Clauses have been applied to such hiring restrictions in the past.

“I think there are very serious constitutional concerns here,” Chemerinsky said in an interview, while stressing that he had not read the ballot measure or the lawsuit.

The main Commerce Clause case dealing with similar issues is White v. Massachusetts Council of Construction Employers Inc., from 1983, which held that state governments can give preference to in-state workers because they are not “market participants,” he said.

But other courts, including those in California, have used that decision to strike down laws requiring private employers to favor locals.

Under the Privileges and Immunities Clause, a state law cannot discriminate against citizens of another state without a “substantial reason” indicating that nonresidents “constitute a peculiar source of the evil at which the statute is aimed,” according to the Supreme Court’s 1984 decision, United Bldg. & Construction Trades Council of Camden County & Vicinity v. Mayor and Council of the City of Camden.

The lawsuit seeks a declaration that the local hiring provision violates the constitution and an injunction preventing its enforcement.

The plaintiffs’ attorney, Craig M. Collins of Blum Collins in Los Angeles, said it will be up to the court to decide whether to strike down the entire ballot measure or just the hiring rules.

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