Birkeland v. State

• Decision Date: 31 August 1982
• Parties: Leif BIRKELAND, etc., et al. v. STATE of New York et al.
• Court: New York Supreme Court

Page 297

456 N.Y.S.2d 297

116 Misc.2d 1

Leif BIRKELAND, etc., et al. v. STATE of New York et al.

Supreme Court, Special Term Queens County, Part 1.

Aug. 31, 1982.

Joseph A. Faraldo, Kew Gardens, Faden & Goldmacher, P.C., Beth J. Goldmacher, Westbury, for plaintiffs.

Asst. Sol. Gen. Daniel Cohen, Atty. Gen. Robert Abrams, New York City, for defenda State.

Paul A. Feigenbaum, New York City, Paula Kennedy, Asst. Deputy Counsel to the Office of Court Admin., Long Beach, for defendant Evans.

Richard Gaba, Mineola, for defendants-intervenors Vincent P. Mallamo, et al.

Roemer & Featherstonhaugh, Albany, for Civil Service Employees Ass'n, et al.

Joram J. Aris, Riverdale, filed brief amicus curiae.

SOL R. DUNKIN, Justice.

In this action to declare Chapter 846 of the Laws of 1980 in violation of Article V, Section 6, of the New York State Constitution and for additional coercive relief, plaintiffs move for summary judgment. Intervenors-defendants Mallamo et al. cross-move to amend their answer. Plaintiffs in three consolidated federal court actions related to the action herein cross-move for permission to submit an amicus curiae brief.

The facts leading up to this action are as follows: In 1976, the Unified Court Budget Act (ch. 966 of the Laws of 1976, Judiciary Law, § 39) was passed. It provided for the State takeover of court functions previously performed by the political subdivisions of the State and the transference of all employees previously on the payroll of the subdivisions to the State payroll. It further directed the Chief Administrative Judge of the Courts of the State of New York to prepare a uniform classification structure for all nonjudicial court officers and court employees. The structure was ultimately adopted in May of 1979 and was effective retroactively to April of 1977.

As a result of the restructuring of the court system few, if any, examinations for employment were given between 1976 and 1979. During that period, a large number of provisional appointments were made, most of them to positions which were ultimately determined to be competitive. In adopting Chapter 846, the legislature determined that since "in the tenth judicial district [encompassing Nassau and Suffolk Counties] more than forty percent of positions classified in the competitive class [were] provisionally filled, * * * that there [would be] a severe danger that a disruption of court service [would] occur, [and] that the vast majority of present incumbents by their training and experience in their positions have acquired invaluable expert knowledge and skill in the performances of [their] duties, * * * it is essential that means be provided to continue as permanent employees qualified incumbents serving provisionally in positions in such district." (Section 1.) Thus, the legislature "granted permanent competitive class status, without probationary period or further examination" to these provisional employees "if they have been employed in or performed the duties of such position for one year prior to the effective date hereof." (Section 2.) Plaintiffs thereafter commenced this action for a declaration that Chapter 846 of the Laws of 1980 contravenes Article V, Section 6, of the New York State Constitution.

In support of their motion for summary judgment, plaintiffs argue that Article V, Section 6, prohibits permanent civil service employment without the passing of a competitive civil service examination, that the forty percent figure advanced by the legislature as justification for Chapter 846 was no longer accurate in 1980 since many examinations had just been completed or were scheduled, that eligible lists were to some extent in existence and that if the law is found to be constitutional defendants could forever ignore the dictates of the State Constitution. Defendants contend that the State Constitution confers discretionary power in the legislature to deal with exceptional circumstances, that the existence of exams and/or eligibility lists is not probative on the issue of constitutionality and that a presumption of legality attends a legislative enactment.

The provision of the Constitution of the State of New York said to be contravened by Chapter 846 is Article V, Section 6, which provides in relevant part that "[a]ppointments and promotions in the civil service of the state * * * shall be made according to merits and fitness to be ascertained, as far as practicable, by examinations which, as far as practicable, shall be competitive." The disagreement between the parties to this action concern the construction of the phrase "as far as practicable". Plaintiffs advance the interpretation that the phrase requires all positions in the civil service to be filled by competitive examinations unless it is impracticable to design such an examination, that is, where a written examination cannot test for "merit and fitness". Defendants argue that the phrase cannot be construed so narrowly. They adopt the construction that the use of a competitive examination, while clearly the favorite and preferred method of providing for civil...