ELR Citation: ELR 20284
No(s). 85-5342 (3d Cir. Dec 19, 1985)

The court holds that, on their face, provisions of the New Jersey Solid Waste Management Act designed to protect the waste disposal business from infiltration by organized crime by subjecting license applicants to disclosure, investigation, and fingerprinting requirements do not violate the federal constitutional rights of privacy and freedom of association. The court first holds that the validity of each of the challenged provisions must be evaluated separately. Applying New Jersey law on the issue of severability, the court holds that the district court erroneously invalidated the entire statute after it determined that a single provision was unconstitutional. The court then adopts the state's narrow construction of this provision, which provides for disqualification of an applicant if a person required to be listed in a disclosure statement has a criminal record. Although regulations require that every employee of an applicant be listed in the disclosure statement, the state construes the disqualification provision as applicable only to certain key members of the company.

Turning to the facial validity of the challenged provisions, the court first holds that a provision requiring applicants to demonstrate their competence in the handling of solid or hazardous waste is unquestionably valid. The court next holds that the requirement that persons required to be listed in the disclosure statements submit to fingerprinting, the provision authorizing the Attorney General to receive criminal justice information from the Federal Bureau of Investigation, and the use of disclosure statements in conducting investigations do not violate the right of privacy guaranteed by the federal constitution. The required disclosures were of unprotected public information. Even if the required disclosures were of private information, New Jersey's strong interest in the qualifications of applicants outweighs the privacy interests. While the information required by regulation to be disclosed in a personal history form may fall within the protected zone of privacy, the issue is not ripe in an action challenging the facial validity of the statute. The court then rejects challenges that two provisions of the statute are so vague that they violate due process. First, the definition of a "key employee," those employees whose background can cause disqualification of a company, is sufficiently clear that discriminatory enforcement is not likely. Second, the challenge to a provision that apparently requires disqualification if a person listed in a disclosure statement has pursued a gainful activity deemed by the state to be antisocial, while more substantial, is not ripe for review given the posture of the case.

Finally, the court holds that the provisions that set out the criteria under which applicants are disqualified do not violate federal constitutional rights of association in either of its two recognized forms. First, these provisions do not involve protected intimate associations, which apply only to family-like relationships. Second, the disqualification provisions do not infringe on the freedom of group association. Applying strict scrutiny, the court finds that New Jersey has a compelling state interest, unrelated to the supression of ideas, in keeping the waste disposal business free from the influence of organized crime. This interest is advanced by disqualification of persons convicted of specified crimes, persons charged with crimes, persons with bad reputations for integrity, and persons who have earned their living by antisocial activity. Further, the state's goal cannot be achieved through less intrusive means. The freedom of association challenge to the disqualification criteria based on antisocial activity, like the privacy right challenge, is not ripe.

Counsel for Appellants
Andrea M. Silkowitz, Deputy Attorney General
Richard J. Hughes Justice Complex, CN112, Trenton NJ 08625
(609) 292-8740

Counsel for Appellees
Brendan T. Byrne, Kenneth L. Winters
Carella, Byrne, Bain & Gilfillan
6 Becker Farm Rd., Roseland NJ 07068-1739
(201) 994-1700