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August 1, 1966

Sidney BRODY, and others named in the schedule annnexed to the complaint, Plaintiffs,
Thomas F. McCOY, as State Administrator and Secretary to the Administrative Board of the Judicial Conference of the State of New York, Defendant

The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge.

 By constitutional amendments and implementing statutes effective September 1, 1962, the State of New York undertook to establish a more nearly unified court system. The resulting dislocations and reclassifications of court personnel have led to a number of lawsuits by employees claiming to have been unlawfully disadvantaged. This is one of those controversies.

 The plaintiffs are twelve court clerks who have served for varying numbers of years in the State Supreme Court, County of Kings. The defendant Thomas F. McCoy, State Administrator and Secretary to the Administrative Board of the Judicial Conference of the State of New York, has been responsible inter alia for problems of job classification and reclassification attendant upon the revisions of the court system. *fn1"

 For some three years after inauguration of the unified court system, the staff of the Administrative Board conducted a classification survey of the state courts' non-judicial employees. Acting under a mandate to "make effective standards and policies for general application throughout the state," including "standards and policies relating to * * * [personnel] practices, title structure, job definition, classification, [and] qualifications" (N.Y. Judiciary Law, McKinney's Consol.Laws, c. 30, § 212), it found, and determined to correct, a difference between the existing classification systems for court clerks in New York (Manhattan) and Kings (Brooklyn) Counties. In Manhattan, there were two levels, Deputy Clerks and Assistant Deputy Clerks, with separate competitive examinations for each. In Brooklyn, where plaintiffs were and are employed, there was a single category, "Clerk, Grade B," and a single examination. The Board concluded that the two-level system should be extended to Brooklyn, and that both places should have categories to be known in ascending order as "Court Clerk I" and "Court Clerk II."

 According to defendant's affidavit, one method of accomplishing the change would have been to place all of the Brooklyn clerks in Grade I, and to give a promotional examination for Grade II, because it appeared that the pre-existing "one competitive examination taken in Brooklyn was equivalent to the lower position level competitive examination in Manhattan." Supplemental Affidavit of Thomas F. McCoy, p. 3. It was decided, however,

"that the most equitable method of applying the new two levels of titles would be by a formula which reflected the work done by the incumbents in the past. Therefore, the conversion formula which was adopted provided that any person who had performed 12 months of Court Clerk II work in the past would be classified as a Court Clerk II. The 12 months need not have been consecutively served, but could consist of interrupted periods. It was felt that this would be the fairest method." Id., pp. 3-4.

 Acting on this judgment, the Board proceeded to make an "individual evaluation" of each affected Brooklyn clerk. Id., p. 4. As a result, out of approximately 140 such clerks, it was determined that 15 (including the 12 plaintiffs herein) should be assigned to Grade I and the remainder to the higher Grade II. *fn2" It does not appear that any of those placed in Grade I will suffer a reduction in pay; indeed, it remains to be determined what the pay levels for the two grades will be. At the same time, it is conceded by defendant that there will sooner or later be higher pay, as well as higher status and responsibilities, for those in Grade II.

 The plaintiffs in this action have now been given formal notice that they will be classified in Grade I, effective on or shortly after August 1, 1966. *fn3" Far from agreeing that the conversion plan resulting in their new classification was the "fairest method," plaintiffs attack it as wholly arbitrary and contrary to the Federal Constitution on grounds to be considered below. Among the materials they marshal in support of their position is a seven-page letter of March 11, 1966, sent to defendant by Justice Walter R. Hart, Chairman of the Personnel Committee of the Kings County Supreme Court. Speaking for himself and the other Justices of his Court, Justice Hart pointed out that the entire staff of clerks, evidently including plaintiffs, had been assigned interchangeably over the years to duties both "in and out of courtrooms." *fn4" He noted that all had passed the same examination pursuant to the same civil service announcement and invitation, and that the test had "purportedly qualified them to perform any and all clerical duties" in the court. The new classification, he urged, should not turn upon the "accident of assignment" during their service in the single grade they formerly held. A determination on this basis, he protested, "is not only unjust but illogical." Moreover, he continued, the Administrative Board's distinction between service in a trial term and in other parts of the court was unsound; and he outlined in some detail the complexity and importance of clerks' duties in various non-trial parts. He acknowledged "that there may be a difference of opinion as to the relative importance of the work being performed by persons in different categories," but urged vigorously, for all of the justices, that all of the clerks should in fairness be given Grade II. In conclusion he said:

"It will be extremely difficult to explain satisfactorily to the ten or fifteen men who might be by a strict interpretation classified as Clerk 1 why they have not been classified as Clerk 2, but it would be far more difficult for the justices of this court to live with them under these circumstances, knowing that they have been treated unfairly and that their morale is shattered."

 Resting essentially upon the arguments eloquently made for them in the foregoing letter of Mr. Justice Hart, plaintiffs seek in this action to enjoin the Administrative Board's plan of conversion and reclassification. They invoke the jurisdiction of this court under 28 U.S.C. § 1331 and 42 U.S.C. § 1981 et seq., and assert that:

(1) Their reclassification will effect the kind of impairment of the obligation of contract forbidden by Article I, Section 10, of the Constitution.
(2) They are being denied the due process and equal protection of the laws guaranteed them by the Fourteenth Amendment.

 At this point plaintiffs have presented two motions: first, with the filing of their complaint, they moved for a preliminary injunction. Thereafter, they applied for the convening of a three-judge court. We deal with ...

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