Di Maggio v. Brown

• Decision Date: 06 April 1967
• Parties: , 225 N.E.2d 871 In the Matter of Anthony DI MAGGIO et al., Appellants, v. Leo BROWN, as Commissioner of the Department of Marine and Aviation of the City of New York et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 161

279 N.Y.S.2d 161

19 N.Y.2d 283, 225 N.E.2d 871

In the Matter of Anthony DI MAGGIO et al., Appellants, v. Leo BROWN, as Commissioner of the Department of Marine and Aviation of the City of New York et al., Respondents.

Court of Appeals of New York.

April 6, 1967.

David Scribner and Joan Stern Kiok, New York City, for appellants.

J. Lee Rankin, Corp. Counsel (Eric J. Byrne and Seymour B. Quel, New York City, of counsel), for respondents.

Norman L. Faber and Alan H. Levine, New York City, for New York Civil Liberties Union, amicus curiae.

BURKE, Judge.

Over 100 ferryboat officers, all duly appointed to their respective job titles pursuant to the State Civil Service Law and employed on ferries operated by the Department of Marine and Aviation of the City of New York, instituted this article 78 proceeding to review a determination of that municipal agency which found that they were in violation of section 108 of the Civil Service Law, Consol.Laws, c. 7 (the Condon-Wadlin Act) and which imposed certain penalties in accordance with Condon-Wadlin. ¹ After the proceeding was transferred from the Supreme Court, New York County, to the Appellate Division, First Department, the determination of the Commissioner was confirmed without opinion (25 A.D.2d 818, 269 N.Y.S.2d 954 (1966)).

In our opinion there was more than substantial evidence to support the findings of the hearing officer, adopted by the Commissioner, that between May 4, 1965 and June 8, 1965 petitioners were indeed engaged in a 'strike' as that term is defined in subdivision 1 of section 108 of the Civil Service Law. We further conclude that the sanctions imposed by the Commissioner, such as loss of pay, loss of previously accrued vacation pay, demotion in title and part-time reemployment, were authorized by or permissible under the statute and were imposed in compliance with the necessary procedures (notice and hearing) required by Condon-Wadlin.

Petitioners claim that Condon-Wadlin is unconstitutional on its face because it constitutes a bill of attainder, imposes excessive fines and inflicts cruel and unusual punishment. None of the these allegations is sustainable. In Pruzan v. Board of Educ. (9 N.Y.2d 911, 217 N.Y.S.2d 86, 176 N.E.2d 96 (1961)) the constitutionality of Condon-Wadlin was at least impliedly asserted. Moreover, it cannot reasonably be said that the law constitutes a bill of attainder, 'a legislative act which inflicts punishment without a judicial trial.' (Cummings v. State of Missouri, 4 Wall. (71 U.S.) 277, 323, 18 L.Ed. 356 (1866).) There is no constitutional provision which vests one with the right to governmental employment, or which bars the imposition of reasonable and necessary limitations and conditions on such employment. Consequently, a statute which incorporates such limitations on governmental employment cannot be construed as a bill of attainder. There is numerous authority to the effect that it is against public policy for public employees to strike, and many courts have held that such a strike is unlawful, illegal and may be restrained and enjoined. (See, for example, Norwalk Teachers' Assn. v. Board of Educ., 138 Conn. 269, 83 A.2d 482, 31 A.L.R.2d 1133 (1951); City of Detroit v. Division 26 of Amalgamated Assn., of Street, Electric Railway & Motor Coach Employees of America, 332 Mich. 237 (1952), app. dsmd. 344 U.S. 805, 73 S.Ct. 37, 97 L.Ed. 627 (1952); Cleveland v. Division 268 of Amalgamated Assn. of St. Electric R.R. & Motor Coach Employees of America, 90 N.E.2d 711, 41 Ohio O. 236 (Ohio Comm.Pleas., 1949); New York City Tr. Auth. v. Loos, 2 Misc.2d 733, 154 N.Y.S.2d 209 (Sup.Ct., 1956), affd. 3 A.D.2d 740, 161 N.Y.S.2d 564 (1st Dept., 1957); Matter of Weinstein v. New York City Tr. Auth., 49 Misc.2d 170, 267 N.Y.S.2d 111 (Sup.Ct., 1966); Blaikie v. Lindsay, 49 Misc.2d 612, 268 N.Y.S.2d 356 (Sup.Ct., 1966); see also Matter of Donaldson v. Brown, 24 A.D.2d 714, 263 N.Y.S.2d 431 (1st Dept., 1965).)

In the Detroit case we are treated to a full-blown analysis of the background and purpose of such statutes barring strikes by public employees (see 332 Mich. 237, 245--253, 51 N.W.2d 228), and the Michigan Supreme Court ruled that their Hutchinson Act, similar to Condon-Wadlin, was clearly constitutional since there was no common-law right to strike on behalf of public employees, since the law did not constitute a bill of attainder, and since the statute only imposed reasonable limitations and restrictions on the privilege of public employment.

Relevant hereto is the Federal counterpart of our State law (U.S.Code, tit. 5, §§ 118p and 118r (now U.S.Code, tit. 5, § 7311; U.S.Code, tit. 18, § 1918)). In light of all the criticism caused by the procrastination of our Legislature in alleviating the harsh penalties contained in the Condon-Wadlin Act, ² it is interesting to note the severity of the Federal statutes. Section 7311 contains an absolute bar from any further employment of the striking employee by the Federal Government, contrary to our State law which expressly provides for re-employment under certain conditions (§ 108, subd. 5). Furthermore, under the Federal system the penalties for this unlawful conduct are criminal in nature (U.S.Code, tit. 18, § 1918). While such severe prohibition may seem unduly harsh, its constitutionality is apparently not disputed. (See Amell v. United States, 384 U.S. 158, 86 S.Ct. 1384, 16 L.Ed.2d 445 (1966); Tennessee Val. Auth. v. Local Union No. 110 of Sheet Metal Workers International Association of Louisville, Ky., 233 F.Supp. 997 (W.D.Ky., 1962).)

In view of the plethora of authority to this effect (with none to the contrary), it cannot reasonably be said that Condon-Wadlin is unconstitutional on its face, as a bill of attainder or otherwise.

This brings us, however, to petitioners' final two contentions that, even if the statute be considered valid, As applied it deprives them of equal protection of the law contrary to the equal protection clause of the Federal Constitution, first as a matter of law, and second as a matter of fact, warranting at least a hearing where 'invidious discrimination' in the application of the statute to petitioners can be proven.

Petitioners' unequal protection argument stems from the United States Supreme Court decision in Yick Wo v. Hopkins (118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886)) where it was alleged that a regulatory ordinance, valid on its face, was unconstitutional As applied to the petitioner in violation of the equal protection clause of the Constitution. As is well known, the court in that case held that by unequal application of a statute the municipal government could not do indirectly what it was forbidden to do directly, and that the ordinance regulating laundries was applied in a discriminatory fashion against the Chinese solely because of their race and nationality. (118 U.S., supra, pp. 373--374, 6 S.Ct. 1064.)

It is averred that under Yick Wo the petitioners have shown (or can show) 'illegal discrimination' in the application of Condon-Wadlin to them by the Department of Marine and Aviation, or more generally by the City of New York. It is within the realm of common knowledge that the 'automatic' penalty provisions of Condon-Wadlin have never been enforced (with but two exceptions) over an almost 20-year period, in which the strikes by public employees have been too numerous to recall or record in this opinion (a random list would include strikes by transit workers, firemen, sanitation employees, teachers, ferry workers on other occasions, social workers, practical nurses, city-employed lifeguards, doctors and public health nurses, etc.). With this factual background Stipulated to by the respondent, petitioners claim that, Prima facie, they have illustrated purposeful discrimination in the application of Condon-Wadlin to them, based upon their relatively small size and insignificant bargaining power, coupled with a favoritism by the Department of Marine and Aviation for Local 333 (the representative of all the ferry workers). We cannot agree.

Yick Wo has been interpreted and applied in many instances by both the Supreme Court and other courts, and the test to be used in determining whether there exists a violation of the equal protection clause of the Constitution has been refined to the point of clarity and preciseness.

'The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. This may appear on the face of the action taken with respect to a particular class or person * * * or it may only be shown by extrinsic evidence showing a discriminatory design to favor one individual or class over another not to be inferred from the action itself * * *. But a discriminatory purpose is not presumed * * * there must be a showing of 'clear and intentional discrimination' * * *.' (Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 401, 88 L.Ed. 497 (1944); citations omitted.)

'The prohibition of the Equal Protection Clause goes no further than the indivious discrimination.' (Williamson v. Lee Opt. Co. of Okl., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955).)

And one need prove more than mere nonenforcement as against other violators:

'(T)he conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Therefore grounds supporting a finding of a denial of equal protection were not alleged.' (Oyler v. Boles, 368 U.S. 448, 456, ...