Foley v. Connelie

(2) the any is restrained from ac- deemed to be Union cannot be individuals Such tivity respect employees with of the Act. those purposes employees petitioner compels recognize po- we the Board’s which Accordingly, reaffirm employees prospective those as representatives manage- of members or sition the Union bargaining members of it is further not be accorded ment (footnotes omit- ordered that the Act.” under rights

ted). (3) by abide the determination Union declaring NLRB the customer service of the Accordingly respon in this case employees managerial employees. paragraph under actions dent's step but one petitioner are contract with on Notice. Submit Order including managerial employees toward step preclud unit. That bargaining

in its prohibits their inclusion law employer. upon the consent of

except Swift, language of the NLRB

In the to be em

supra they “cannot be deemed purposes implementing of

ployees” for Further the contract. paragraph FOLEY, Individually Edmund more, explicit language pursuant persons similarly behalf of all other provisions paragraph the contract situated, Plaintiff, operative until the Union not become 111 do representation rights in unit of claims By letter yet covered. employees CONNELIE, Individually William G. ex June Union court dated Superintendent capacity his as sought that its “has not pressly stated Smith, Police, New A. York State S. by the NLRB.” not seek certification does capacity Individually and in his/her terms the contract its own does not Thus Director of Personnel the New York employer what the to do Union obligate Police, Defendants. requests. (MP). 75-Civ. 4548 No. incorporated language This is also 164(a) Court, which reads as follows: United District States U.S.C. § D. New York. S. “(a) Nothing prohibit any herein shall in- supervisor employed as a from dividual July a member remaining of a becoming employer no organization, but sub- labor subchapter compelled

ject shall be herein individuals defined as su-

to deem employees purpose

pervisors as local, law, relating either national or

any bargaining.”

to collective finds that resolution of the

The court in the to show

issues raised order cause disposes petition

effectively itself. petition- grants judgment

The court

er. The court orders that hereby is restrained

(1) the Union be and petitioner’s managerial organizing purpose representing for the

employees bargaining part of the Union’s

them as it is further ordered

unit and Weiss, City, New York

Jonathan plaintiff. Lefkowitz, Gen., York Atty.

Louis J. New defendants; Gordon, City, Judith A. City, New York of counsel. MANSFIELD, Judge, Before Circuit WERKER, Judges. District POLLACK OPINION WERKER, Judge. District Foley, Edmund Plaintiff a citizen of the Ireland, Republic living in the State alien, lawfully New York as an admitted permanent residence in the United applied appoint- Plaintiff for an States. trooper as a York state ment New and was permission competitive refused to take the because examination he is not a United brought citizen. Plaintiff this suit States class action for a declaration as a that Sec- 215(3) of the Executive Law of the of New York insofar as it excludes employment aliens from as New York state troopers equal protec- violation of the tion clause of the fourteenth amendment of the Constitution of the United States and injunction against for an its enforcement. purported class is identified as the plaintiff and all other alien residents applied of New York who have will position trooper, for the of state will be permission who have been or refused competitive to take the examination and who have been or will be denied considera- grounds tion for the on the alienage. Connelie, foreign citizenship and become are William G. an American

The defendants Superin- capacity in his as citizen. individually and Police, and New York State

tendent early As Smith, capacity individually and in his A.S. held that aliens are “persons” within the Personnel of the New York as Director meaning Fourteenth Amendment Police. protected are thus the Equal Protec against have entered into several tion Clause parties The ac discriminatory state agreed Hopkins, 356, First have Yick Wo v. tion. 118 6 stipulations. U.S. 1064, proceed (1886). as a class action 30 L.Ed. 220 action should S.Ct. That hold the Foley representa- is the many Edmund has been affirmed times since and and that they agreed longer open dispute. to that class. Second is no In re tive of Grif fiths, 717, 2851, should be convened. 413 93 37 three-judge court U.S. S.Ct. L.Ed.2d agreed plaintiff (1973); Sugarman Dougall, that the v. parties also 910 413 The U.S. 634, 2842, competitive (1973); the examina- 93 37 to take S.Ct. L.Ed.2d 853 permitted 20, Richardson, September 365, 1975. On v. Graham 403 91 tion scheduled U.S. 19, 1848, (1971); the Milton 29 September 1975 Honorable L.Ed.2d 534 Takaha S.Ct. incorporat- Commission, which Fish entered an order shi v. & Game 334 Pollack 410, 1138, agreement as to the exami- 68 92 parties’ the S.Ct. L.Ed. 1478 proviso the additional the nation with Supreme The Court has on four recent implemented and no results not be test opportunity had an to occasions examine the rights attach therefrom unless and until prohibitions aliens, employment against Judge Pollack also entered court so directs. of the statute consideration under attack 30, authorizing 1975 on December an order begin must with a here discussion of those as a class action with proceed the action four cases. representative requiring plaintiff as Sugarman v. 93 Dougall, In convening three-judge of a court. the (1973), 37 L.Ed.2d the Su- hearing April of this matter on Upon the 53(1) invalidated section preme Court agreed to submit the parties York Civil Law New Service which made court on the record as it had matter to the any person who was not a citizen of the a final on that date1 for constituted been ineligible appointment United States merits, parties on the and both resolution branch of the New York competitive right any to offer additional waived Relying on civil service. Graham Rich- set For the reasons out below we evidence. ardson, constitutionality 215(3). uphold Supreme L.Ed.2d 534 Court clas- 215(3) York Executive Law § New sified aliens as “discrete and insular mi- 1972) (McKinney pertinent part: reads in nority” and thus held that classifications appointed shall be person “No New alienage on based strict scru- police force unless he York State shall be tiny. The Court stated that there were of the United a citizen States.” power apply narrow limits a state’s exclusively laws to alien clearly statute excludes aliens from inhabitants. See The Commission, v. Fish & troopers,2 as state Takahashi Game employment admittedly 92 L.Ed. 1478 strictly adheres to its U.S. Court, evaluating statute, If an alien wishes to The in looked mandate. become a trooper give substantiality he up York state must his of the state’s interest New port Summary Judg- of Plaintiffs The record consists of Plaintiffs Verified Motion 1. thereto; Complaint, Complaint Amended with the ment and the exhibits attached De- thereto; Complaint; Amended exhibits attached Plaintiffs order to fendant’s Answer to the Support Memorandum in Affidavit. show cause and and William G. Connelie’s Temporary Restraining Motion for a Plaintiffs Order; Affidavit; Foley’s Edmund Plaintiffs also New York Public Law 3-b See Officers Reply Sup- in (Supp.1975). Memorandum and Memorandum competitive determined the results of a narrowness of enforcing it and in examination, was the branch was which the discrimination which within limits non-citizens. members of this excluded defining clear Court was confined. variety were in a employed branch wide suspect classification and alienage as a jobs including clerks, typists, file and sani- jus- interest to requiring a tationmen. it. upon based tify any discrimination However, properly case commenting statute, on the the court bar, equally important to distin- case legislative pointed out that it was not “a circumstances that the factual guish scheme bars some all aliens from Sugarman and those Court confronted closely defined limited classes of today recognize us and to are before employment on a uniform and consistent explic- limits which Sugarman basis.” U.S. at holding. put itly on its (emphasis added). To contrary, Supreme Court found that statutory scheme within which sec- The prohibition of the employment the state’s 53(1) included created New York applied many positions with re- four classes.3 The was service of first civil spect proffered to which the justifi- state’s higher executive, exempt class munic- an little, any, had if relationship. cation At positions judicial offices ipal time, on, pro- the same the Court went might be found im- which an examination applicable posi- was hibition at all to positions The in this in- class practicable.4 that would seem naturally tions to fall others, clude, among Counsel the Gover- purpose. within state’s asserted We nor, Lottery, Execu- Director mean, plaintiff’s this to contrary take Superintendent tive Assistant state, position, upon proper show- Banks, and the Coordinator Non-Public interest, of a could means Services.5 The second was a non- School precisely statute, of a drawn exclude all competitive positions, class included which employment. aliens from certain classified, not otherwise for which a com- majority opinion explicitly: The stated practica- would not be petitive examination appointment recognize was but for which made “We interest in ble State’s estab- lishing government, non-competitive examination.6 Included in own form chauffeurs, limiting positions participation govern- class this were such as in that locksmiths, ment to those who are within ‘the janitors, pruners and the tree basic conception political of a departments agencies, community.’ all as well Blumstein, 405 Dunn 344 positions many specific depart- as various [92 (1972). S.Ct. L.Ed.2d third 274] The class consisted of un- ments.7 recognize, too, pow- We the State’s broad positions whose could not be skilled laborers political community.” er to define its competitively,8 such examined for as farm- Dougall, supra, at hands, helpers, parking lot kitchen attend- 642— at 93 S.Ct. 2848. ants, citizenship monitors.9 The school requirement inapplicable opinion was all of the sig- The Court’s contains other two in each these branches. positions nificant statements which the limit show branch, qualification to which was reach: fourth (McKinney NYCRR, complete listing, Appen- New Civil Service 3. York Law For a see 4 7. 1973). (1975). dix 2 4. 41. Id. (McKinney 8. New York Service Law Civil 43§ 1973). many complete listing positions For a 5. class, NYCRR, Appendix in this see 4 included NYCRR, complete listing, Appen- see 4 For a 9. dix 3 (McKinney Law 42§ New York Civil Service 6. 1973). meaning tional of that term.” that, 350 U.S. at not hold on the basis of an do “[W]e . determination, 459. an alien

individualized . . . em- may not be refused case is Hampton The third v. Mow Sun on the basis of noncitizen- ployment, even Wong, 48 L. refusal to hire . . . rests ship, if the in which Ed.2d state interests that relate legitimate on invalidated Civil Service qualifications particular position for a regulation10 which excluded aliens from only that a flat ban . . We hold employment in the federal civil service. Al employment positions of aliens in on the though holding was based on the fifth little, any, if that have relation to a fourteenth, amendment rather than on the interest, legitimate with- cannot State’s with Sugarman it is consistent in that scrutiny stand under the Fourteenth proscribes sweeping prohibition a broad hiring prohibition Amendment.” aliens. every job in reached the federal civil serv ice; attempt identify no had been made to hold that a “Neither do we positions those sensitive citizen not, appropriately in an defined class of ship appropriate legiti would be “an require citizenship positions, qualifi- as a requirement.” mate Id. at office.” Id. at cation for fact, 1895. Court was careful to note original that one of the defendants to the opinion by concluded its reiterat- The Court action, Service, longer the Postal was no position “alienage its that itself is a playing appellate an active role in the liti reasonably employed factor that could be in gation response because in to “recent Fed ” defining ‘political community.’ litigation” promulgated it had regu eral case, Griffiths, In the second In re any that limited exclusion lation of aliens to 717, 2851, 93 S.Ct. 37 L.Ed.2d 910 U.S. high or “sensitive” level of the Service. (1973), Supreme the Court overturned a 13, at 97-98 & n. 96 S.Ct. Id. 1895. disqualified statute which Connecticut regulation Hampton The at issue in was taking aliens from the state bar examina- adopted by the Civil Service Commission carefully examined the tion. Court itself, by Congress. or not President It lawyer role of the nature of his significant present purposes for our that is light in profession heavy burden im- assumed, deciding, without the Court that justify depriving on the state to posed “Congress and the President have the con- employment opportunities. aliens Con- power impose requirement stitutional sought justify position by necticut adopted.” the Commission has At that establishing link between the fact of citi- 114, 96 at 1910. S.Ct. zenship powers responsibilities and the gov- The Commission identified several attorneys carry as officers of the court. ernmental interests which or the President rejecting In this as basis for discrimina- Congress might justi- consider sufficient to aliens, the ting against Court stated em- It fy the exclusion. could enhance the phatically lawyers that “are not officials of negotiating President’s in treaties government by being lawyers.” virtue of enabling him to offer by employment 729, at 93 S.Ct. at 2858. The Court U.S. particular foreign country citizens of a States, v. heavily relied on Cammer United exchange for certain desired concessions. 399, 456, 100 L.Ed. 474 might It also serve as an inducement distinguished which between law- qualify resident aliens to for naturalization. persons engage as who in a yers, private exclusion, which accords with interna- and court officials such as “mar- profession, policy foreign law and the of most tional shals, bailiffs, judges court clerks or . has been in effect since 1883. Fi- countries appropriate as officers within the conven- nally, since it was exclude [who serve] 10. C.F.R. 338.101 note, however, important positions which sensitive from those expressly opinion again qualified its Court loyalty, the exclusion undivided

required it had in classify as : identify the need to obviated reducing thereby positions' suggest, particular not however those do “We expense. State, As to territory government, effort or local administrative interests, Government, certainly the Court may the last of Federal but all properly permitted the Com- some in deter- were not be discretion held rejected argu- business, mining the circumstances which it under mission’s employ aliens or jobs ac- whether aliens classifying civil service will ment partake pub- benefits or nature was receive sensitive cording same basis as lic resources citi- that a concern for adminis- task an onerous Id. justified zens.” efficiency convenience trative However, it im- wholesale exclusion. It is within of these four context the Court did assume to note that portant must statutory that we examine the eases identified interests “that the national challenged plaintiff prohibition here. The adequately support would the [Commission] analyzing argues that in the interest assert- by Congress or explicit determination an sub- papers the state we must all exclude noncitizens the President judicial ject alienage use of to close At the federal service.” Richardson, Graham v. scrutiny. 91 S.Ct. L.Ed.2d recent is Exam- The fourth and most case said Court Graham Engineers, ining Board of Architects and at 1852: 91 S.Ct. - Otero, de Surveyors Flores example [ajliens prime as a class are a (1976) -, 49 L.Ed.2d 65 (see minority and insular’ a ‘discrete invalidated a which statute Co., Products United States Carolene permits Rico Puerto United 152-153 n. 4 [58 civil practice privately citizens to States 783-784, (1938)) 82 L.Ed. for whom 1234] justifications engineers. Three were of- heightened judicial appro- solicitude is [a] support statute: the prevent the fered priate. Spanish-speaking influx of “uncontrolled” applied the have the Consequently, courts engineering into Puerto the field in scrutiny compelling strict state interest Rico, prevailing to raise low standard of the involving' test cases the “discrete and provide and the client of a civil living, minority” of insular aliens. engineer an assurance of financial account- However, Sugar the in Court building engineer if a for which ability the Dougall, 634, 646, seq., man v. et responsible collapses years within ten 37 L.Ed.2d 853 articulat -, Id. at S.Ct. 2264. construction. exception ap broad ed an otherwise rejecting considering In and the suffi- scrutiny to stat plication of the strict test reasons, the ciency of these Court articulat- minority. dealing utes with alien It following the standard: not interfere indicated that Courts should governmental interest claimed to “[T]he power to exclude with the states’ “historic is to justify the be careful- discrimination participating in demo aliens from [those] ly examined to determine whether that cratic institutions” which the Courts and substantial, and and legitimate interest rely people ordinarily protect minority on to whether means inquiry must be made rights. striking the stat and individual goal adopted necessary achieve it, the that Court declared it ute before Id. precisely and drawn.” usurp “responsibility states’ should not Court the same mode of anal- operation followed and for the establishment supra qualifica had v. Sugarman Dougall, as it in as well as the ysis government, own Griffiths, supra, appropriately designated In re class and in as discussed tions of an repeatedly. those cases It holders.” above cited office occupations community common of the is of majority, Justice Writing for very personal essence of the “scrutiny freedom stated that the Court’s Blackmun opportunity that it was purpose demanding” where it is faced not be so will Amendment to secure.” 239 constitu the exercise “State’s with We that at 10. believe the state including the state’s prerogatives,” tional in special composition has a interest persons qualifications to set power justifies exempting force which executive, “important nonelective holding of ordinary occupations from the class judicial positions.” Sugar legislative, which aliens cannot be excluded. 2850; 647, 648, man, supra at 93 S.Ct. at Blumstein, 330, 344, 92 Dunn designed such as spe- Positions these are Thus, it is 31 L.Ed.2d preservation cifically pro- for the direct that aliens as a class are unlike other clear rights tection of the constitutional of all insular minorities.” The “discrete and Su persons within New York These are State. recognized the strict preme Court positions nonelective delicate executive scrutiny applied unthinkingly test cannot be perform- made more so the fact that the rights privileges involve an of the members is largely unsuper- ance processes in participation alien’s democratic It is our conclusion vised. this is an corresponding “important erosion of the no nonelective without a executive . citizenship. position” partici- and these “officers who The classification of directly pate . . . execution alienage, suspect purposes, may for some public policy perform of broad dealing when the state is with permissible go represent- functions that to the heart of government participants. and its democratic government.” Sugarman ative Although vigi the courts must be 2842, 2850, protecting minority certain interests lant This is a L.Ed.2d 853. situation citi- where processes political provide where do not suf zenship bears vital and essential relation- protection, processes the political ficient proper performance ship to opened par not be to alien themselves trooper. of a state duties judicial vigilance. ticipation A Accordingly, the Court need not reasonably state can curtail the par alien’s quite the statute under review ticipation government, in state but it can scrutiny applied to statutes the close rights privileges not curtail Graham, Sugarman and Griffiths. How ordinarily result from such participation, test, ever, applying the even stricter absent interest. finds that the statute does not clash trooper of state necessarily requirements of the Constitution. with participation in government entails Where a state asserts degree as to such a overshadow the fact justify statutory discrimi state interest to eligibility for that govern- is a classification, suspect based on a nation normally mental benefit available to mem- very substantial state in must establish political of the community. bers The state terest; pursue a means to it cannot choose trooper’s job is not included in the class of burdens unnecessarily interest occupations “common community” activi constitutionally protected or restricts equal which the shelter of the protection preci with must be drawn ty; the statute clause has been held to extend for the bene- legitimate meet ob and tailored to sion fit of aliens. v. is a less restrictive jectives; finally, if there 37 L.Ed.2d 853. adequately that will alternative available Raich, is not a case like Truax This em the state must accomplish purposes, 7, 60 (1915) L.Ed. 131 in Blumstein, 405 U.S. ploy Dunn v. it. which a state denied aliens lawfully resid- 31 L.Ed.2d ing within the state the ordinary means of earning living. The Court there held that statutory framework of which Sec- right to work for a living in and 215(3) part relatively simple “[t]he tion 2 of the provided officer” in- of “state the arbitrariness and contain does (McKinney the Civil Public Law which characterized New York Officers consistency York. the state 1952) police Law of New seems to include and Service interpreted by the it has been so State York Executive 31 of the New Section Attorney Op.Atty.Gen., St. General. 1972) provides that (McKinney Law opinion That differentiat- Dept. 430 division of the execu- be a police shall state the members and officers of the ed between Execu- Article 11 of the department. tive hand and their clerks police on one state Division of Police. entitled State tive Law is stenographers on the other. and organi- which detail the includes sections It of the zation, duties benefits powers, police force is the New The state provides: Police. Section State jurisdic- with police York force statewide duty superintend- of the “It shall be police to effect are authorized tion. State police and of members of ent of the state without warrants. The with and arrests prevent and detect police state protect the and visit- police Governor state They apprehend criminals. crime troopers foreign dignitaries. State subject to the call of the shall also be are carry weapons duty when on must empowered co-oper- and are governor duty. do so while off State authorized department any other ate with twenty-four on call members are police They or with local authorities. state ac- day appropriate and must take hours a arrest, power to without a shall have they criminal con- any time observe warrant, person committing at- any or ade- believe that the state has duct. We presence commit within their tempting to officers demonstrated that these quately peace of the view a breach or other or responsibilities. awesome bear law, to serve and execute violation of charged with the enforce- police are arrest or search issued warrants of law, profession private not in a ment of authority and to exercise all other proper of themselves and their and for the benefit powers peace officers of the state of clients, people but for the benefit of Any such warrants issued New York. Their large of the of New York. may of the state be exe- any magistrate the extent except are statewide powers any part of the by them cuted approval gover- or of the that the direction according the tenor thereof without sup- can act required they before nor is But shall not exercise indorsement. within the limits of rioting or disorder press any city within the limits of powers any city. rioting except by suppress disorder governor upon direction highly sensi police officer has A state mayor city with the request of perform properly delicate role. To tive governor. Any approval member “personally commit function he must be his sergeant may of the rank of or above and enforce proper application ted any take pre-arraignment bail from de- the United States.” of the laws of ment in the fendant amounts and under the Gordon-Nikkar, 518 F.2d United States police circumstances and conditions (5th 1975). This court believes Cir. bail” take the role strong similarity is a between there policeman played by juror respon- Furthermore the state recog often society, and it has been our powers for enforcement of all sible govern and the federal game pro- nized that states inspectors imposed duties jus compelling which ment have a interest tectors under the conservation law11 and service. excluding jury performing respect the duties with to tifies Gordon-Nikkar, supra; imposed by and instruments property found United States Smith, (D.Md. personal property F.Supp. law.12 The 134 definition Perkins v. 370 (McKinney Law 225 § New York Executive 12. 226. § 11. Id. X972).

897 1974) court), aff’d, (three-judge self-preservation. A state interested in 913, 2616, 96 49 (1976). L.Ed.2d 368 employing cannot afford risk of as a Jury Commission, trooper person Carter v. See state whose inclination 320, 518, (1970). laws justly L.Ed.2d 549 of the state and feder- spirit and enthu- government al whose significant, We it is though feel not dis- for the traditions of siasm customs and positive, twenty-nine that at least other possi- life state doubts. His American numerous foreign states13 and countries14 allegiance foreign sovereign to a is more ble citizenship requirement have enacted give adequate rise to doubt until than police of the state or national members important an time as alien makes the said, force. As Justice Jackson “The once becoming a citizen. The step naturalized path mere fact that a beaten one is a may harbor as to that state serious concern persuasive following reason for it.”15 commitment to the United individual’s prac- use cannot frequent While validate a and the enforcement of its statutes States protec- tice violative of equal otherwise thus has a and Constitution. The state clause, prevalence tion we believe justifies interest which its deci- probative this of the exist- requirement to exclude sion aliens. profound legitimate ence state in e., ability i. the concern asserts interest: about The dissent the State properly showing of an to execute alien func- made no that an alien would police tions likely up of a state officer. This is a than a to live less citizen disregarded. which cannot be easily policeman’s equitably concern oath to enforce against citizens. laws both aliens and factor compels One further the court Actually, the state has enumerated several adopt conclusion. police The state distinguish alien sta- characteristics responsible detecting pre- force is citizen These factors tus from status. must venting not common crime but also necessarily loyalties create and thus divided subversion, quell- incitement to and the riot ability faithfully the alien’s ful- diminish equal protec- disorders. The policeman’s responsibilities. fill a certainly deny most does not clause citizenship, limit right force to an alien is each state Until admitted enjoys special whom it believes will be most persons privileges those he and bears cer supplied (1969). addition, 13. A verification of information Ann. § Code 27-11-11 yielded and the FBI citizenship court defendants other states have enacted a following § statutes: Alaska Stat. 39.05.010 requirement regulation; rule or the defend- (1974); (1962); Ariz.Rev.Stat.Ann. 38-201 § have informed that at ants the court least (1964); 42—406 Fla.Stat.Ann. § Ark.Stat.Ann. Maine, Maryland and have each done Nebraska 943.13(2) (Supp.1976); Ga.Code Ann. 92A- § § so. (1972); (1968); Hawaii 78-1 § Rev.Stat. 121, (1965); ch. 307.9 Ind.Admin. § Ill.Rev.Stat. See, Act, g., Aliens 9 & 10 14. e. Restriction Regs. (47-848)-l (1967); Rules and Iowa Code amended Aliens § c. Geo. (1949); Ann. 80.15 Kan.Stat.Ann. 74-2113 § § Act, (1955); Employment Ordi Eliz. c. Ky.Rev.Stat. 16.040(2)(c) (Supp.1975); § 59-244, (1959) (France); No. Art. nance (Supp.1974); § Mass.Gen.Laws Ann. ch. Bundeskeamtengesitz, 7(1) (1953) (Germany); § (Supp.1975); (1967); 28.4 § Mich.Stat.Ann. Stato, Impiegati degli delto Art. Statuto Civili (1972); Ann. 45-3-9 § Miss.Code Mo.Rev.Stat. Koninkrijk (Italy); (1) voor het Grondwet 2: (1969); Ann. 31- § § 43.060 Mont.Rev.Codes Nederlanden, 5(2) (Netherlands); Bun Art. der 105(3)(a)(v) (Supp.1975); Nev.Rev.Stat. 281.- § desgesetz der Bun uker das Dienstverhaltnis 060(1) (1975); N.H.Rev.Stat.Ann. 106-B:20 § desbeamten, (1927) (Switzerland). See Art. 2 (Supp.1975); (Supp. N.J.Rev.Stat. 53:1-9 § Branch, generally De Public Administration 1975); (1972); § N.M.Stat.Ann. 39-2-6 N.D. Affairs, partment of Economic Social Unit 39-03-04(4) (Supp.1975); Cent.Code Ohio § Nations, Service Laws Handbook of Civil (1974); 124.22 Okl.Stat.Ann. tit. § Rev.Code and Practices. 2-105(a) (Supp.1975); § Or.Rev.Stat. 181.- § 260(l)(a) (1971); Pa.Stat.Ann. tit. Jackson, Law- (1962); (1970); Full Faith and Credit —The Ann. R.I.Gen.Laws 42-28-10 Constitution, (1974); yer’s S.D.Compiled 45 Col.L.Rev. Laws Ann. Clause § 3-7-9 Tex. 4413(9)(2) (1966); art. Utah Rev.Civ.Stat.Ann. 898 uphold his to ability reflect on and affect shared citizens. These burdens not

tain country, laws of this to which allegiance his continu burdens betoken privileges and only insured after is naturalization and allegiance country of his nation consequent of the removal above-enumerat- alien “retains claim ality. The resident quite foreign to a state. The state ties citizenship diplo to of his upon the state allegiance that rightly observes conflicts of on his behalf.” Hari matic intervention glaring respect to would be most with 580, 585, Shaughnessy, 342 72 siades duty policeman as a state to make alien’s 512, 517, (1952). 96 L.Ed. 586 See also immigra- of arrests violators federal Immigration Harper, Laws United C. laws, participate to in the Governor’s States, VII, (3d at 1(a) 1975). 567 ed. Part § provides protection for Detail which country’s powers that He is to of visiting dignitaries, and taxation, Borchard, foreign Governor to conscription Dip and E. investigations having into matters Abroad, conduct of Protection Citizens 13§ lomatic government security, to do with to (1927). obliged He not be at 22-23 to foreign security involving at events 23, provide against fight country, Art. 1907 Olympics visitors such as the 1980 Winter Hague Respecting Convention the Laws Placid, Land, be held Lake New York. of War on 36 and Customs Stat. 2301-2302, any military or in confrontation The dissent describes con- potential such neutral, concerning country which that 4 theoretical, offering as an alterna- flicts as Moore, 3648, Digest, J. International Law § suggestion “theory” the that an tive alien eligible Aliens at 52-53 “especially would be careful” to enforce the States draft if have United immi against fellow aliens laws in order avoid status, 1611.2(a), C.F.R. grant § 32 an appearance partiality of curtail immigrant may pursu obtain an exemption anyone of would the activities who cast 1101, treaty, change ant to cf. 8 U.S.C. § disgrace group. on aliens as a The notion non-immigrant, his status U.S.C. policeman would be that an alien state 1257(a). § very tougher suggests on fellow aliens ought type partiality police of the state government power The federal has the avoid, carefully argument and the alien, deport g., resident e. U.S.C. alien would be concerned about an 1251, Landon, 524, Carlson v. 342 U.S. § image general group of aliens indeed 525, (1951); expel L.Ed. 547 him theoretical, implausible. if not This alter- hostilities country in the event of with the sug- final “theory” native dissent’s nationality, Borchard, his supra, of at § that aliens would enforce the laws gestion 109; to less drastic take measures policemen as citizen state just do are far detention, prohibition concentration or outweighed by the compelling arguments of areas, residence in certain defined Borch- restricting in favor of the state to citizens 113; ard, to deny re-entry him and, job of protecting the sensitive when country, g., e. if he leaves the U.S.C. required, arresting and citizens alike. 1182(a)(20). We find that the state substantial loyalty The results from limbo compelling requiring interest period for a rules continues least these the state to be members of force years, and it is not for five 8 U.S.C. § interest mainte- citizens and is the question support for such preserva- nance order to effect the period. Mandel, time Kleindienst See the political including tion of structure L.Ed.2d prosecution detection and prevention, Harisiades, (1972); supra; Lem Moon crime.16 States, Sing v. United finding 39 L.Ed. The resi- inter- est, however, one inquiry alien’s status is that cannot but dent does conclude Moreover, erroneously ample There is the dis- dissent decries the absence evidence. criteria, support majority opinion. accepted, sent’s if would eliminate the evidence to MANSFIELD, Judge is Circuit suspect (dissenting). classification at issue. where a not The state must choose a means which There is not a shred of in evidence constitutionally pro- unnecessarily burdens indicate, of this case to much record less Judge pointed As activity. tected Winter properly tested, prove, that a selected and concurring opinion in Perkins v. out in his alien compe- trained resident would be less Smith, group whose supra, perform to tent than a citizen the duties of commitment to a for- continued and natural trooper, New York state which admitted- would not with eign sovereign interfere an nature, paramilitary are in ly or mem- enthusiastic and unconditional enforcement plaintiff present of the class bers would public policy impossible our is laws and security loyal risk or be poorer less Only by taking identify. positive step to performance than citizens in the prior allegiance to renounce his does the contrary, country duties. On the those this affirmatively demonstrate the focus alien practice considered resident aliens loyalty, of his Constitution has vest- qualified obligated to be but to Congress authority exclusive to perform analogous duties in our armed United Constitu- naturalize citizens. States services. The New York has failed tion, I, Art. Cl. Thus court completely its heavy to sustain burden un- is no less drastic alternative believes there Equal der Protection Clause demon- Finally, the court finds that the available. strating that the exclusion of noncitizens which excludes all aliens statutory scheme policemen service necessary from as state police within the state positions all protect to some substantial interest. state drawn as precisely is as force Accordingly, I must respectfully dissent. requires. interest It is as close to hornbook law as constitu tional law can ever be that resident aliens Blumstein, Dunn 405 U.S. v. longer no group bereft protec are of the (1972), recognized 31 L.Ed.2d 274 Equal Protection or Clause other power the state has to establish a provisions of the Constitution. theOn con residency requirement preserve to fide bona trary, vulnerability because of their to dis conception basic commu political its based on minority crimination their status nity. power We hold also enables inability protect their interests constitutionally a state establish citi through political process, resident aliens zenship requirement require where that Equal entitled under the are Protection intimately related ment to a judicial to a careful Clause examination pow Each state broad state interest. has a any deny efforts rights. them their political, er to community define its alienage, based on like “[Classifications participation government limit in its race, nationality those based on are in those who within community. herently suspect close judi 634, 642-43, scrutiny. . Accordingly, cial . . . 2842, 37 L.Ed.2d 853. We thus power ‘the of a state to laws uphold the constitutionality Section exclusively to alien inhabitants as a class 215(3) of York the New Executive Law and ” is confined within narrow limits.’ Gra judgment grant summary defend Richardson, ham v. ants. 1848, 1852, 29 L.Ed.2d Submit quoting Order. Takahashi Fish Comm’n, & Game citizenship requirement jurors, loyal confirmed less per- to the State than citizens officials, city assemblymen, and state F.B.I. (dis. sic.) op. formance of duties.” those This agents, congressmen, senators and even the theory compel would New York State’s argues, dissent believe President. The we erro- compulsion to be manned aliens. The tested, neously theoretically: properly “[A] requires admit one admission of all. We be- resident would selected and trained alien [not] citizenship requirement lieve that is even perform competent duties less . apt more under these circumstances. security poorer present a risk or be would [not] community,” id. at 410, 420, 1138, remainder of the by the U.S. 68 S.Ct. 92 L.Ed. 334 1905, accordingly held (footnotes omitted). 102, S.Ct. (1948) The strict 96 1478 scrutiny Equal judicial deprived liberty under which the of without aliens the rule places Clause such classifications Protection law. process of due course, demands, that the of classification of resident heightened protection This by supported a substantial state interest be the that interests reflects realization aliens’ necessary protect than be no broader to they not be treated as distasteful should interest. that society upon our but rather intruders consistently emphasized “The Court has it, participants though in welcome even a adopts suspect clas- that political rights full they the reserved lack heavy justifi- ‘bears a burden of sification citizens, aliens, like “Resident for citizens. cation,’ Florida, McLaughlin taxes, economy, in support the serve pay 283, 290,13 184,196 S.Ct. L.Ed.2d 222] [85 Forces, myriad in and contribute the Armed which, though variously (1964), a burden society. appropriate It is ways to our other formulated, the to meet requires heavy it burden when that the State bear proof. of In order to certain standards opportuni- deprives employment them of classification, justify suspect use of a the Id., 722, at 2855. 413 U.S. at 93 S.Ct. ties.” purpose that or a State must show are, might like be added that To this constitutionally permissi- both interest is citizens, obligated obey the laws of this substantial, and that its use of ble and The fact that an individual bears the land. ‘necessary . the classification not, therefore, status of resident alien does accomplishment’ purpose or rejects imply that he the laws and values of In safeguarding of its interest.” re States; indeed, even those aliens United Griffiths, 717, 721-22, 93 S.Ct. U.S. fervently support who most those laws and (foot- (1973) 37 L.Ed.2d 910 must, to become citizens desire with rela- omitted). judicial positions, partici- for officers who process as to make him a formulator of formulation, pate directly in the execu- government policy”.) tion, public policy per- review of broad or Important as are state policemen —and go that form functions the heart of for that matter policemen other the—to representative government.” Id. at security State, and well being of the 93 S.Ct. at 2850. proper function is political neither poli- nor involved, positions When such were Justice cy-making. Their task is not to elect or continued, only Blackmun the would State legislate but to enforce the gov- law. The required be to make the showing lesser that policy implemented ernmental by them is “citizenship bears some rational relationship out, detail, set in considerable in the crimi- special particular demands of the York, nal laws of New duty which it is their id., quoting Dougall position,” Sugarman, carrying to enforce. In out that clearly- F.Supp. (S.D.N.Y.1971) (Lum policy defined the policeman state performs J., bard, concurring). which part duties for the most are essen- language quoted When this Sugar- from nature, tially ministerial in g., patrol- e. light man is viewed in the of the Court’s ling highways of guarding of other it, reasoning behind the class of executive prevent violators; areas to crime and detect officers to which it clearly would protection of state officials and build- one. The suggestion narrow Court’s that ings; the control of vehicular traffic on might prescribe citizenship State highways; state the furnishing emergen- of some offices without showing special of aid; cy expressly was first upon missing persons; need based searches for the State’s obligation preserve “to conception investigation crimes, basic suspected of or political community.” of a committed, Dunn v. Blum response complaints or for stein, 330, 344, reasons; other making of arrests and Voting 31 L.Ed.2d legislat warrants; execution of interrogation of paradigmatic examples of participa suspects, arraignment defendants, political tion in a community; require evidence, the collection and furnishing of aliens, by persons definition not mem including expert testimony. political bers of that community, be allowed performance In the of these and other to exercise these functions would be to policemen, course, similar duties are not beyond recognition erode concept of a They automatons. do exercise some discre political system and of citizenship. Similar law may, tion in enforcement which par ly, high officials, some executive such as situations, ticular be said to rise to the level governors, members, cabinet and heads of limited, interstitial policymaking, see agencies, necessarily possess such broad del Davis, generally K. Police Discretion egated powers they inevitably and However, their activities hardly can be re properly “politically” by making act basic garded political as a going function “to the policy shape choices which the future of the representative heart of government.” Sug political community, in this instance the supra, arman Though of New York. top poli State cy-making are, course, officials at 2850. recog New York State itself ultimate ly under the control of the legis voters and nizes that policeman individual state lators, practical as a matter such officials properly not a law policy-maker compa foreign dignitaries protection for high offi legislator or executive to a

rabie Placid.2 Olympics at Lake Winter rein, cial; rather is given free but he is not and or chain of command by a controlled a noncitizen assumption that The State’s itself describes ganization to- might partiality show policeman state affidavit, (Connelie “para-military.” arguable as a fellow aliens be ward his (regu 478.7 9A N.Y.C.R.R. 4).¶ also See psychological sociological and matter discipline importance emphasizing lation plausible no more but it is speculation, force). in state assumption: opposite theory than policeman would be the noncitizen short, range of offices whatever the laws to enforce careful especially within those held to be embraced ultimately aliens, any to avoid not against fellow with the intimately connected State’s so partiality prevent but also to appearance may, that the with- processes political bringing dis- lawbreaker the alien need, man- showing compelling out simply aliéns, including police- upon all grace only, the filled citizens date Or, might simply be assumed that man. being policeman, one which of state policemen and citizen will noncitizen settled state law application of involves the diligence in in their attitudes and differ formulation of new law or than the rather persons, against laws all enforcing the Sugarman them. not one of Since policy, is police officers do black and white much as provides thus no basis for Dougall, supra, v. in their appreciably to differ appear ap- stringent standard to be lessening the including problems, police toward attitudes statutory judicial review of the plied upon Wilson, Think- ones. See J. racially-related from the disqualification noncitizens present In the ing About Crime 106 force, must bear the the State State case, precisely these remain all of theories disquali- showing that the heavy burden if assume just theories. Even we that: necessary safeguard a substan- is fication general matter of plausible them to be as a In re compelling state interest. See tial or any em- supported by none is speculation, Griffiths, 721-22, supra, 413 evidence in the record. pirical 2851; Richardson, supra, 403 v. Graham by the the classification created Were 375, showing 1848. No 215(3) in its enactment of legislature § state made in this case. has been not to be viewed as a Executive Law dis- down to whether the The issue boils according to clear “suspect” one of aliens from the force is in qualification decisions, g., Sugarman Dougall, v. e. that the New necessary to assure any sense ; Griffiths, supra; In re Graham supra faithfully perform will Police York State Richardson, legislature might es supra, the attempts provide The duties. State review necessi cape the stricter standard of by suggesting that necessary link rely upon tating judicial intervention and country loyalty toward his presumed alien’s up ground theories as a of these one partiality to- nationality possible and his according to the looser holding its action may create a conflict See, fellow aliens g., ward his basis criterion. e. William rational as, 488-89, variety Co., 483, in a of situations Optical of interest v. Lee son policeman (1955); Railway a noncitizen state example, when 99 L.Ed. 563 75 S.Ct. York, upon Agency to assist federal authorities Inc. v. New Express is called 109-10, laws, L.Ed. 533 immigration to defend the enforcing insurrection, generally Developments in the provide against or to See State 3,000 only 200 such easily members of the force made doubted how often even these It can potential likely Though conflicts seen potential in 1974. Other to arise. arrests conflicts instance, perceived instance, argu- by State, those State —for stressed at oral troopers provide having might securi- if noncitizen arise from ment the difficulties clearly Olympics required ty policeman avoida- Winter were at the noncitizen —are avoiding assignment aliens, through Superin- of noncitizen illegal the affidavit ble arrest troopers to such duties. the more than states tendent Connelie Protection, only aliens temporarily present Equal Harv.L.Rev. the Unit Law— (1969). However, diplomats, students, States: 1082-87 since the business or pleasure travelers, id.; and the like. minority has here acted to exclude a See 1101(a)(15). permanent U.S.C. § The special protection by Equal resi accorded dent plaintiff aliens who are the class in Clause, the State must assume Protection this case are to the draft to the heavy coming burden forward with citizens, same extent as App. see 50 U.S.C. assumption merely evidence that is not 453; 1611.1(a)(2), (3), (4); 31 C.F.R. plausible but rests on a foundation of fact supra, 413 U.S. at speculation. rather than of 93 S.Ct. which suggests that Con attempted not even to make showing such a gress perceive does not the same security idea that a support resident alien risks from the aliens involved here likely would be less than a citizen to live up suggested by majority. The status of policeman as a to his oath enforce the enemy aliens wartime mentioned by the against persons, all alien or otherwise. law majority simply irrelevant to this case. réquired failure to make the State’s hostile If relations existed between the showing is not remedied the majority particular United States and a alien’s coun of a opinion’s hodge-podge citation of stat- try nationality, this could be taken into utes and other materials concerning various part account as of the “individualized deter aspects legal status of aliens. Far mination” of the alien’s eligibility for em showing majority argues, as the that a ployment permitted by Sugarman v. Dou permanent resident alien suffers from a gall, supra, 646-47, 413 U.S. at materials, loyalty,” “limbo of these insofar Griffiths, supra, 2842. See In re 413 U.S. at are relevant at all present 722 n. 93 S.Ct. 2851. But the statute case, point toward the per- conclusion that presently under review does not limit the are, manent resident aliens group, as a as disability permanent of resident aliens to law-abiding loyal as citizens and could those unusual situations where a conflict of safely employed as state troopers. be The loyalties might Rather, conceivably exist. notes, majority instance, for that aliens are it bars all resident aliens from the state subject deportation. However, deporta- police, including immigrat those who have permanent tions of resident aliens —the ed to the United States from countries class in this plaintiff case —are exceedingly long enjoyed which have the most cordial rare, impossible so rare that it is say that relations with this may, nation. We for permanent potential a resident alien’s de- instance, judicial take possi notice that the portability poses any obstacle employ- to his bility of a war between the United States ment. some 4.2 million aliens were (the and Ireland homeland of the named permanent residents of the United States. plaintiff) exceedingly slim. Report 1975 Annual Immigration Finally, by noting may that aliens “claim Naturalization During Service 112. the diplomatic the protection” of country their 1,716 year, only aliens who had entered the nationality, majority of seemingly seeks country “immigrant” with such an status imply they would somehow be im- deported required were or to leave the improper perform- mune from dismissal for country. Id. at 98. also Sugarman See policemen. ance of their duties as Nothing, Dougall, supra, 413 U.S. at 93 S.Ct. course, of could be further from the truth. “diplomatic protection” The involved majority’s reference to the Selective merely foreign inquiry consulate’s into a seemingly laws to suggest Service a Con involving nationals, situation one of its judgment gressional permanent resi immunity prosecution reserved for may pose security problems dent aliens Aliens, diplomats. accredited other than —is misguided. provision cited, also diplomats, accredited are regularly prose- 1611.2(a), laws, C.F.R. excludes from the draft cuted if break the and would noncitizenship, hire, or if refusal subject to dismissal from be similarly discharge, legitimate rests on state grounds. proper on posts police qualifications that relate to for interests resident aliens are some No doubt there particular or to characteris- reasonably might create backgrounds whose added) employee.” (Emphasis tics of dedication the laws to their as doubt force, Police on the State noncitizen Once State, whose just as there are citizens would, course, trooper provide suspi- similar would backgrounds disciplinary chain command same by the provided authority Under cions. counterparts to as- as his citizen sanctions see N.Y. Exec. Law legislature, faithfully performed his duties. that he sure Superintendent Connelie of 215(3), citizenship requirements The fact pro- already employs selection Police State uncommon, policemen, while not applicants who out citizen to weed cedures hardly among universal states under- police work. These unsuitable appear the conclusion that such individual lines procedures, ap- training selection and same applicants of noncitizen and the evaluations pro- applicants, all would equally to plied discipline likely Police are normal State assuring with the means vide fully protect the State’s interest hav- loyalty and only those aliens whose diligent force.4 loyal State Police ques- work were not suitability members of would become tionable case-by-case Police force.3 Such qualifications par-

determination the flat ban applicants, opposed to

ticular State, employed by noncitizens now implicitly approved

was Dougall, supra, 646-47, 2850: an on the basis of that, do not hold

“[W]e determination, individualized an alien refused, from, discharged not be employment, even on the basis of applicant See, g., Po- The fact that the the State e. Ariz.Rev.Stat.Ann. Police. background rig- undergo 38-201; checks and 4.434; lice must Mich.Stat.Ann. § R.I.Gen. distinguishes procedures orous selection this states, (1956). Twenty-six e. Laws 42-28-28 Gordon-Nikkar, 518 case from United States v. California, Wisconsin, Maryland, g., have Smith, 1975), (5th and Perkins F.2d 972 370 Cir. apparent statutory citizenship requirement, no although docketed, (D.Md.1974), F.Supp. appeal have some of these states estab- L.Ed.2d 426 (1974), through regu- requirement lished such a rule upheld citizenship where the courts re- survey spot A conducted the Federal lation. quirements jurors. jur- Given the fact the Investigation request at the of this Bureau must, necessity, through be selected ors rather required by citizenship was court indicated that expedited procedures, method police agencies majority surveyed, of the by the although safeguarding the State its interest Highway the California State jurors knowledge having with demonstrated Boston, Patrol, police departments to the laws are to is and dedication Mass, Haven, least, At New Conn. this procedures. by relying on the naturalization importance of citizen- data indicates that believe, however, There is no reason to policemen ship requirements for procedures State Police selection would be less appraisals in and locali- procedures different various states effective than the naturalization determining heavy proof resting given applicant burden of if a noncitizen un- ties. Given likely support faithfully case, derstands York in this the fact that on New State, insofar forego laws of the nation police agencies such number of citizen- through proce- can ever be determined apparent injury ship requirements without dures. on the their interests casts considerable doubt necessity for, of, constitutionality and thus the statutory New York states 4. Besides have requirement. citizenship requirements members of notes in the exceptions, remain status tively few The fact that the Constitution demands years before be- alien for five of resident rights protection of resi- solicitous eligible coming for naturalization. U.S.C. again by is once dent aliens illustrated unable, 1427(a). they are often Thus Hampton in very recent decision v. Mow pen the stroke of simply Wong, "Sun oath, “give up” their status taking of an Supreme L.Ed.2d 495 where immediately change or it Ameri- upheld challenge, brought under gives The record in this case no can citizen. Clause, the Fifth Amendment’s Due Process plaintiff is the named not in indication that to a Civil Commission rule Service precisely this situation.1 barring from most federal civil serv- aliens opinion gives lip majority service positions. While the Court acknowl- ice principles established but then seeks these “paramount power edged the federal over application to circumvent naturalization,” immigration id. at reasoning present case the citizen- ap- and therefore of state ship requirement stringent standard of review to plied a less demanding policeman exempt from the federal rule than would to state rules this to other classifi- applied of review standard affecting challenged Equal aliens under the alienage. The basis for based Clause, cations it nonetheless Protection found language be approach is said to certain government support interests advanced in justify in the rule insufficient its “im- (1973), where, who, persons 37 L.Ed.2d pact on an identifiable class of itself, ruling that the ban entirely apart from rule are al- the course disadvantages employment not service contained ready shared from civil year residency requirement, plaintiff he will be 1. Counsel advises is, fact, ineligible plaintiff presently for natu- old to for the State Police after he too yet Brief, p. 10). (Reply has because he met the five- been naturalized. ralization 53(1) violated the N.Y.Civil Service Law are properly acting politi as leaders of the Clause, Blackmun, Equal Protection Justice community cal may reasonably thus eight members of the writing for required to be members of it. These are Court, that the Court would not re- stated persons to whom the Sugarman opinion severely citizenship requirement so view referred as those might who reasonably be required to be citizens. See also re Grif holding “persons impor- state elective or fiths, supra, 413 U.S. at at 2858 executive, legislative, tant nonelective (“one so close political to the core of the

Case Details

Case Name: Foley v. Connelie

Court Name: District Court, S.D. New York

Date Published: Jul 8, 1976

Citation: 419 F. Supp. 889

Docket Number: 75-Civ. 4548 (MP)

Court Abbreviation: S.D.N.Y.