Greenwald v. Frank

• Decision Date: 30 October 1972
• Citation: 337 N.Y.S.2d 225,40 A.D.2d 717
• Parties: , 5 Empl. Prac. Dec. P 8641 In the Matter of Daniel GREENWALD, etc., Appellant, v. Louis J. FRANK, Commissioner of Police of the County of Nassau, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 225

337 N.Y.S.2d 225

40 A.D.2d 717, 5 Empl. Prac. Dec. P 8641

In the Matter of Daniel GREENWALD, etc., Appellant, v. Louis J. FRANK, Commissioner of Police of the County of Nassau, et al., Respondents.

Supreme Court, Appellate Division, Second Department.

Oct. 30, 1972.

Before LATHAM, Acting P.J., and GULOTTA, BRENNAN, BENJAMIN and SHAPIRO, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to article 78 of the CPLR (which, upon the parties' stipulation, was treated as an action for a declaratory judgment) to annul and cancel Rule 22 of Article VIII of the Rules and Regulations of the Nassau County Police Department, petitioner appeals from a judgment of the Supreme Court, Nassau County, 70 Misc.2d 632, 334 N.Y.S.2d 680, entered July 19, 1972, which dismissed the petition.

Judgment modified, on the law, by striking therefrom the decretal provision dismissing the petition and substituting therefor a provision adjudging said Rule 22 valid. As so modified, judgment affirmed, with costs to respondents.

The rationale of the modest regulation in question, concerning personal appearance, setting forth rules as to haircuts, sideburns, mustaches and beards, is that there should be neatness and discipline in a large quasi-military organization such as the Nassau County Police Department so that the general public will have respect for the members of the Department. In our opinion this regulation does not raise issues which rise to the dignity of constitutional questions.

LATHAM, Acting P.J., GULOTTA, BRENNAN and BENJAMIN, JJ., concur.

SHAPIRO, J., dissents and votes to declare the portion of the rule in issue to be unconstitutional, with the following memorandum:

In this action for a declaratory judgment ¹ the Special Term found that 'the petitioner has not demonstrated that a triable issue exists concerning the relationship of his determining his own personal appearance while in uniform to that of the public interest. Therefore, Louis J. Frank, Commissioner of Police of the County of Nassau, and the Police Department of the County of Nassau are entitled to summary judgment declaring the regulation in its present form valid' (Matter of Greenwald v. Frank, 70 Misc.2d 632, 639, 334 N.Y.S.2d 680, 688).

In his petition, which was begun by him both in his individual capacity as a member of the Police Department of Nassau County and as president of the Nassau County Patrolmen's Benevolent Association ² on behalf of all others similarly situated, petitioner alleges that he 'desires to have sideburns which are below the bottom of his ear lobe, a moustache which extends over the top of his upper lip and beyond the corners of his mouth, and a beard or goatee' and that the rule adopted by the Police Department which prohibits him from doing so is an arbitrary, capricious and unreasonable restriction on his personal choice of appearance, interferes with his personal life while off duty and is in violation of his statutory and constitutional rights.

That portion of the rule adopted by the Police Department which is here attacked provides as follows ³ 'Personal Appearance--The provisions of Article VIII, Rule 22 of the rules and regulations pertaining to sideburns shall be adhered to and in no case shall sideburns extend to a point below 3/4 of an inch above the bottom of the ear lobe. All provisions relating to moustaches, beards and haircuts shall be strictly conformed with.

'Moustaches--A short and neatly trimmed moustache may be worn, but shall not extend over the top of the upper lim or beyond the corners of the mouth.

Beards, Goatees--Male personnel shall be clean shaven when reporting for duty. Beards or goatees shall not be worn while on duty. A growth of whiskers shall be permitted while on duty for medical reasons only when approved by the Chief Surgeon.'

Respondents contend that the rules in question are within the power granted the Commissioner, as such, to promulgate regulations governing grooming standards. In opposition to the petition the Commissioner asserts that those accepting appointment as policemen in the Nassau County Police Department agree to abide by its rules and regulations, 'which were reasonably enacted for the promotion of order and discipline,' and that while petitioner, as a private individual, 'might have a constitutionally-protected right to freedom of appearance'--'within prescribed limits', he has no 'constitutional right to be a police officer, and to ignore the Rules and Regulations concerning appearance reasonably enacted by the Police Department.' The Commissioner also conclusorily contends that the rule 'is reasonable and necessary to create a uniform appearance among police officers of Nassau County and to insure that each officer has a professional appearance, which is essential to engendering public confidence and respect.'

Special Term determined (1) that a policeman is a public employee with unique characteristics, (2) that therefore his right to determine his personal appearance may be limited and circumscribed, because it is a concern of the Police Department in the maintenance of discipline, and (3) that a policeman's personal appearance while in uniform has a direct relationship to the public interest, concern and confidence. Special Term, therefore, granted summary judgment declaring the police rules in question valid although the judgment, as entered, instead of so declaring, dismissed the petition (see Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 393, 183 N.E.2d 670, 679).

What is really here involved is the propriety of the reaction by the Commissioner to a major widespread change in custom with respect to men's habits of dress.

Carnaby Street and the Beatles have wrought vast changes in the appearance of the American male, a change which, though viewed with alarm by many, has undeniably altered long standing customs of male appearance. Thus the wearing, by men, of hair often longer than that usually worn by women, and flowing moustaches and beards, is now commonplace in our society. As a result, a substantial number of cases involving the right of an individual to determine his personal appearance have come before the courts.

The first cases challenging the wearing of long hair by males arose in the schools when educational authorities sought to impose standards of length for hair which barred the Beatle hairdo from the public school classroom (Zachry v. Brown, D.C., 299 F.Supp. 1360; Breen v. Kahl, 419 F.2d 1034, cert. den. 398 U.S. 937, 90 S.Ct. 1836, 26 L.Ed.2d 268). While the results varied, what finally emerged from these cases and from other litigation which developed when some public officials sought to impose on their employees similar standards of conformity was a judicial recognition that there is a constitutional right to determine one's own personal appearance and that, therefore, the State bears the burden of establishing substantial justification for any regulation it may impose which limits that right (see Crews v. Cloncs, 7 Cir., 432 F.2d 1259, 1264; Richards v. Thurston, 1 Cir., 424 F.2d 1281; Breen v. Kahl, Supra; Lindquist v. City of Coral Gables, D.C., 323 F.Supp. 1161.) ⁴ As Mr. Justice Meyer pointed out in Matter of Hunt v. Board of Fire Comrs. of Massapequa Fire Dist., 68 Misc.2d 261, 267--269, 327 N.Y.S.2d 36, 43--45, there are more than 50 hair cases dealing with whether there is a constitutional right to determine one's own hair style and the weight of authority is that this right is to a fundamental liberty for violation or limitation of which the State must establish substantial justification. In that case the court ruled that the respondent fire department showed no factual justification for limiting the length of sideburns and other facial hair worn by members of the fire department and, in doing so, rejected the argument that the fire department was a para-military organization in which it was important to its functioning that discipline and uniformity of appearance be maintained. (See, also, to the same effect, Lindquist v. City of Coral Gables, D.C., 323 F.Supp. 1161, Supra.) 323 F.Supp. 1161, Supra.) subject of the constitutional right of a student to wear his hair long is Arnold v. Carpenter, 459 F.2d 939 (7th Cir., 1972), where Circuit Judge Kiley, speaking for the majority, said in a footnote (pp. 941--942):

Our problem would be simple were it not for the fact that, despite the weight of authority in the decided cases holding that the State must establish substantial justification for interfering with the right of governmental employees to determine their own hair style, it is also well settled that the courts have consistently refused to apply this test to members of the armed forces, even though they be only part-time members enlisted in the National Guard (Anderson v. Laird, 437 F.2d 912, cert. den. 404 U.S. 865, 92 S.Ct. 68, 30 L.Ed.2d 109; Gianatasio v. Whyte, 426 F.2d 908, cert. den. 400 U.S. 941, 91 S.Ct. 234, 27 L.Ed.2d 244). In the latter case the plaintiff, a member of the National Guard, claimed that his long hair was essential to his regular civilian job, but the court found against him on the ground that it was reluctant to interfere with the discretion of the military in such matters.

It was on the rationale of these decisions involving the military and Matter of Taxter v. Looney (Supreme Court, Nassau County, Index No. 13898/69, Feb. 6, 1970) and Dwen v. Barry, D.C., 336 F.Supp. 487 that Special Term leaned heavily in this case in upholding the propriety of the respondent Police Department's rules barring sideburns below the ear, long moustaches, and beards. In Matter of Taxter v. Looney (supra) Mr. Justice Levine dismissed a petition attacking such a rule saying in part:

'The limited restraint imposed by uniform grooming standards on certain individual members would appear to be entitled to less consideration than the overall benefit to be derived by the appearance of the...