Federal District Court finds section 4434(e)(1) of the Nonresident Workers Act Unconstitutional

Auto Marine, Inc. v. Sablan, Case No. CV-05-0042, District Court of the Northern Mariana Islands, October 2, 2007 (Munson, J.). A local water sports corporation challenged the constitutionality of a local statute which provided that certain jobs could not be filled by nonresident workers (taxi drivers, secretaries, bookkeepers, accounting clerks, messengers, receptionists, surface tour boat operators, bus drivers, and telephone switchboard operators). The corporation’s Filipino boat operators were arrested and subjected to deportation proceedings, even though they were employed pursuant to employment contracts approved by the Commonwealth Director of Labor, and criminal charges were brought against the corporation’s president for employing aliens who did not have lawful documentation and authority to be employed--all under the authority of 3 CMC 4434(e)(1). The Court found that 3 CMC 4434(e)(1), part of the Nonresident Workers Act (“NRWA”), was discriminatory on its face because the NRWA treats nonresidents differently from residents and citizens of the Northern Mariana Islands. In then determining the legitimacy of the statute despite its discriminatory nature, Judge Munson reviewed the purpose of the NRWA, which is “to provide a balanced and stable economy in the Commonwealth by providing residents a preference in employment….” (citation omitted) This provision of the statute, however, did not survive the equal protection challenge under a rational basis test. The Court found that, instead of providing a preference to resident workers, 3 CMC 4434(e)(1) “completely forecloses nonresident workers from employment in specific job classifications.” As a result, there is no prevention of impairment of local wages because the statute does not actually create temporary alien labor in the specific job classifications. The Government did not provide any further basis for why it chose to single out these specific job classifications, or why the Government should prevent certain positions from being filled if there are no available qualified resident workers. While the 9^th Circuit has in the past upheld the NRWA, it has also made clear at the same time that there is a “possibility that discrete elements of the CNMI's temporary worker program could violate the equal protection rights of nonresident workers.” See Sagana v. Tenorio, 384 F.3d 731, 741-742 (9th Cir. 2004). It would seem that the District Court has now identified one such violation.