Winkler v. Spinnato

• Decision Date: 28 December 1987
• Parties: Ernest WINKLER, et al., Appellants, v. Joseph E. SPINNATO, etc., et al., Respondents, The State of New York, Intervenor-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 530

523 N.Y.S.2d 530

134 A.D.2d 66

Ernest WINKLER, et al., Appellants, v. Joseph E. SPINNATO, etc., et al., Respondents The State of New York, Intervenor-Respondent.

Supreme Court, Appellate Division Second Department.

Dec. 28, 1987.

Giaimo, Vreeburg & Rosen, Forest Hills (Joseph O. Giaimo, of counsel), for appellants.

Peter L. Zimroth, Corp. Counsel, New York City (Pamela Seider Dolgow and Ronnie Dane, of counsel), for respondents.

Robert Abrams, Atty. Gen., New York City (Christopher Hall, Richard G. Liskov and Hugh B. Weinberg, of counsel), for intervenor-respondent.

Before BRACKEN, J.P., and BROWN, NIEHOFF and KOOPER, JJ.

BRACKEN, Justice Presiding.

On this appeal, we determine that the State of New York, in enforcing its traditional policy of requiring certain employees of local governments to reside within or near the political unit in which they serve, may draw a distinction between those public employees who have violated local residency requirements by living outside the State, and those public employees who have violated such laws by residing in unsanctioned locations within this State. Although the imposition of more stringent measures of enforcement upon the former class of public servants may be perceived as a form of discrimination against a group of persons based solely upon State residence, we conclude that that discrimination is founded upon a valid exercise of the State's authority to require its own employees, or the employees of any of its political subdivisions, to reside within this State. In our opinion, this discrimination based solely on State residence has a rational basis so as to conform with the principles of the Equal Protection Clause (U.S. Const., 14th Amend.; N.Y. Const. art. 1, § 11). Such discrimination, moreover, does not violate the Privileges and Immunities Clause (U.S. Const., art. IV, § 2, cl. 1). Therefore, the arguments advanced by the plaintiffs-appellants that certain recent amendments to the New York State Public Officers Law (Public Officers Law §§ 3[19], 30[5-a]; L.1986, ch. 509, §§ 1, 2, eff. July 22, 1986) are unconstitutional, are without merit.

I

The plaintiffs in this action are firefighters employed by the Fire Department of the City of New York (hereinafter the fire department). Several of them do not reside within the State of New York, but live instead in New Jersey, Connecticut, or Pennsylvania. Several other plaintiffs aver that while they personally maintain a residence within this State, and within the areas described in Public Officers Law §§ 3(9) and 30(5), their wives and children reside in homes located outside this State.

By action commenced in November 1986 the plaintiffs sought a judgment declaring that Public Officers Law §§ 3(19) and 30(5-a), are unconstitutional as applied to them. The plaintiffs relied upon the Equal Protection and Due Process Clauses of the Federal and State Constitutions (U.S. Const., 14th Amend.; N.Y. Const., art. I, §§ 6, 11) as well as the Privileges and Immunities Clause of the Federal Constitution (U.S. Const., art. IV, § 2, cl. 1). ¹

In addition, the plaintiffs sought a judgment declaring that any particular firefighter who maintains a residence in one of the counties delineated in Public Officers Law §§ 3(9) and 30(5) may not be presumed to be in violation of the residency requirements contained in those statutes solely upon the ground that the firefighter's spouse and children reside outside the State. The plaintiffs allege that their employers have utilized that presumption and have arbitrarily decreed that for purposes of applying the residency rule, a firefighter does not reside in or "inhabit" a particular place unless the firefighter's spouse and children reside at the same location.

The plaintiffs further sought an injunction (1) permanently enjoining the defendants from acting to dismiss them from their positions pursuant to the challenged provisions of the Public Officers Law, and (2) permanently enjoining the defendants from dismissing any one of the plaintiffs by reason of the residence of that plaintiff's family outside the State.

After issue was joined, the plaintiffs made a motion for summary judgment and for a preliminary injunction. The defendants responded with a cross motion to dismiss the complaint pursuant to CPLR 3211(a)(7). Both the motion and the cross motion were denied, but the court granted summary judgment to the defendants pursuant to CPLR 3212(b). This appeal followed.

II

Public Officers Law § 3(1) provides that "[n]o person shall be capable of holding a civil office who shall not, at the time he shall be chosen thereto * * * be a citizen of the United States, a resident of the state, and if it be a local office, a resident of the political subdivision or municipal corporation of the state for which he shall be chosen * * * or within which his official functions are required to be exercised". Pursuant to § 30(1)(d) of the Public Officers Law, a public office is deemed to have become vacant as soon as its incumbent ceases to be an inhabitant of the State or political subdivision of which he was required to be a resident at the time he was chosen.

The scope of the general residency requirement embodied in those provisions has undergone a gradual process of erosion in recent years. Public Officers Law § 3 is now replete with special exemptions for variously defined classes of public officers. None of these exemptions goes so far as to eliminate the requirement of United States citizenship, and only very few of the exemptions permit the officeholder to reside outside of this State (see, e.g., Public Officers Law §§ 3[3], [3-a], [7] [allowing attorneys who live in another state but who practice in this State to serve as notaries public or as commissioners of deeds in the City of New York] ). However, the requirement of local residence has been waived, upon various conditions, for a wide variety of local public officers.

The exemption applicable to New York City firefighters is contained in Public Officers Law § 3(9), which provides as follows:

"9. Neither the provisions of this section, nor of any general, special or local law, charter, code, ordinance, resolution, rule or regulation requiring a person to be a resident of the political subdivision or municipal corporation of the state for which he shall be chosen or within which his official functions are required to be exercised, shall apply to the appointment of a paid member of the uniformed force of a paid fire department or to the appointment of any person employed in a department of correction in the correction service classification of the classified civil service, or to the appointment of officers and inspectors who are employees of a department of health of any city of over one million population who resides (a) in the county in which such city is located; or (b) in a county within the state contiguous to the county in which said city is located; or (c) in a county within the state contiguous to such city; or (d) in a county within the state which is not more than fifteen miles from said city."

This exemption was enacted over 25 years ago (L.1962, ch. 976, § 1), and has the effect of requiring New York City firefighters to reside either within the city limits, or within any one of six suburban counties (Nassau, Suffolk, Westchester, Rockland, Orange, and Putnam) located within the State of New York. Public Officers Law § 30(5) contains a parallel exemption.

III

After it became evident that several New York City firefighters were violating the requirements of Public Officers Law §§ 3(9) and 30(5) the fire department issued a series of orders (Order No. 41 dated April 2, 1986, and Order No. 46, dated April 11, 1986) pursuant to which all firefighters who believed themselves to be in violation of the residency laws were required to so notify the Inspector General, move into a lawful county by May 30, 1986, and have their families move into a lawful county by September 1, 1986, unless, "as a result of special circumstances, the member legitimately resides at a domicile different from that of his or her family". Nicholas Mancuso, as President of the Uniformed Firefighters Association, joined by other plaintiffs, made an application to the Supreme Court, New York County for an order postponing the enforcement of the fire department Order Nos. 41 and 46, which application was denied by Justice Baer in an order dated May 13, 1986.

Realizing that enforcement of the residency laws was about to begin in earnest, and that such enforcement would result in personal hardship to a large number of New York City firefighters, as well as other affected municipal employees, the State Legislature amended Public Officers Law §§ 3 and 30 so as to in effect grant a qualified reprieve to residency-law violators. Specifically, the Legislature added subdivision 19 to Public Officers Law § 3, and also added subdivision 5-a to Public Officers Law § 30 (L.1986, ch. 509, §§ 1, 2). Public Officers Law § 3(19) provides as follows:

"19. Any person who resides in this state and who is currently employed as a member of the police force, a paid member of the uniformed force of a paid fire department or department of corrections in the correctional service classification of the classified civil service, of a city of over one million population, shall be exempt from the provisions of subdivisions one, two and nine of this section upon compliance with the procedure set forth in this subdivision. Any person seeking to benefit from the exemption created by this subdivision shall notify his respective employer in writing of said intention within thirty days from the effective date of this subdivision and shall specify his then current residence address. The exemption created by this subdivision shall be applicable only to said actual designated residence and not to any residence that any subject currently employed member may thereafter...