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J. LEE RANKIN v. ALBERT SHANKER (10/30/68)

COURT OF APPEALS OF NEW YORK 1968.NY.43323 <http://www.versuslaw.com>; 242 N.E.2d 802; 23 N.Y.2d 111 decided: October 30, 1968. J. LEE RANKIN, CORPORATION COUNSEL OF THE CITY OF NEW YORK, ON BEHALF OF THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, RESPONDENT,v.ALBERT SHANKER, INDIVIDUALLY AND ON BEHALF OF THE UNITED FEDERATION OF TEACHERS, LOCAL 2, AMERICAN FEDERATION OF TEACHERS, AFL-CIO, ET AL., APPELLANTS; J. LEE RANKIN, CORPORATION COUNSEL OF THE CITY OF NEW YORK, ON BEHALF OF THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, RESPONDENT, V. ALBERT SHANKER, INDIVIDUALLY AND AS PRESIDENT OF THE UNITED FEDERATION OF TEACHERS, LOCAL 2, AMERICAN FEDERATION OF TEACHERS, AFL-CIO, ET AL., DEFENDANTS, AND WALTER J. DEGNAN, INDIVIDUALLY AND AS PRESIDENT OF THE COUNCIL OF SUPERVISORY ASSOCIATIONS, ET AL., APPELLANTS Rankin v. Shanker, 30 A.D.2d 956, affirmed. Counsel Ralph R. Katz, Ernest Fleischman, Stephen F. Gordon and Martin R. Ganzglass for Albert Shanker and another, appellants. Max H. Frankle, Everett E. Lewis and Bernard Yaker for Walter J. Degnan and others, appellants. Counsel J. Lee Rankin, Corporation Counsel (Frederic S. Nathan, William M. Murphy and Laurence D. Cherkis of counsel), for respondent. Judges Scileppi, Breitel and Jasen concur with Chief Judge Fuld; Judge Burke dissents and votes to reverse in an opinion in which Judges Bergan and Keating concur, Judge Keating in a separate opinion in which Judges Burke and Bergan also concur. Author: Fuld


Rankin v. Shanker, 30 A.D.2d 956, affirmed.

Judges Scileppi, Breitel and Jasen concur with Chief Judge Fuld; Judge Burke dissents and votes to reverse in an opinion in which Judges Bergan and Keating concur, Judge Keating in a separate opinion in which Judges Burke and Bergan also concur.

Author: Fuld

 These appeals require us to pass upon a fundamental question of high importance in connection with the enforcement of the provisions of the recently enacted Taylor Law (L. 1967, ch. 392; Civil Service Law, art. 14, §§ 200-212). Are public employees or the unions which represent them entitled, as a matter of right, to trial by jury in a criminal contempt proceeding brought against them for alleged violation of section 210 (subd. 1) of that statute, in that (as to the employees) they engaged in a strike and (as to the organizations) they instigated, encouraged or condoned such strike? In the present case, the Corporation Counsel of the City of New York sought an order -- pursuant to section 211 of the Civil Service Law and sections 750 and 751 of the Judiciary Law -- to punish the defendants for criminal contempt, claiming that they had willfully disobeyed the restraining provisions of the temporary injunction issued by the Supreme Court on September 9, 1968. The defendants' demand for a trial by jury, based on their claim that they are entitled to such a trial as a matter of right by virtue of statutory and constitutional provisions, was rejected by Special Term, and its resulting orders were unanimously affirmed by the Appellate Division. The appeals are before us by leave of the latter court on certified questions.

The statutory provisions on which the several defendants rely are section 753-a of the Judiciary Law and section 808 of the Labor Law (formerly Civ. Prac. Act, § 882-a). Those sections, in substantially identical language, grant the right of jury trial in a proceeding to punish, as a criminal contempt, a failure or refusal to obey an injunction order granted "in any case involving or growing out of a labor dispute". It is urged by the defendants that the legislative design to apply those sections to strikes by public employees (§ 210, subd. 1) is demonstrated by the fact that, whereas the Legislature expressly provided that section 807 of the Labor Law*fn1 is inapplicable to injunctions to restrain violations of section 210 (subd. 1), no similar exclusionary language applies to section 808. We find no substance to this argument.

Our discussion of the statutory question may well begin by noting that a primary command to the judiciary in the interpretation of statutes is to ascertain and effectuate the purpose of the Legislature. In finding such purpose, one should look to the entire statute, its legislative history and the statutes of which it is made a part. (See, e.g., Matter of Hogan v. Culkin, 18 N.Y.2d 330, 335; Levine v. Bornstein, 4 N.Y.2d 241, 244; see, also, McKinney's Cons. Laws of N. Y., Book 1, Statutes, §§ 92, 95, 96, 97, 98, 111.) Section 807 and section 808 of the Labor Law (as well as Judiciary Law, § 753-a) are but the identically worded successors of a statutory provision enacted in the 1930s which constituted this State's Little Norris-LaGuardia Act (Civ. Prac. Act, § 876-a), named for its Federal prototype, the Norris-LaGuardia Act (47 U.S. Stat. 70; U. S. Code, tit. 29, §§ 101-115). Accordingly, in determining the reach of the new statutes, we find it highly significant that for the past three decades their predecessors have been held inapplicable to public employees. More specifically, the courts have ruled that such provisions -- both those restricting or limiting the issuance of labor injunctions and those granting the right of trial by jury in criminal contempt proceedings involving labor disputes -- apply solely to employees in private industry and not to those in public employment. (See United States v. Mine Workers, 330 U.S. 258, 298; Jewish Hosp. of Brooklyn v. "John Doe ", 252 App. Div. 581, 585; see, also, New York City Tr. Auth. v. Loos, 2 Misc. 2d 733, 742, affd. 3 A.D.2d 740; New York City Tr. Auth. v. Loos, 9 Misc. 2d 492, 493.) It is overly simplistic reasoning to assume that the Legislature, in excluding the provisions of section 807 from the application of the Taylor Law, but failing similarly to mention section 808, intended to grant the right of trial by jury to public employees, a right which they had never previously possessed under the latter section.

If it had been the design of the Legislature to grant such a right, that body would undoubtedly have done so expressly and unequivocally. There is nothing in the provisions under consideration relating to jury trials (Labor Law, §§ 807, 808; Judiciary Law, § 753-a) which discloses any concern with, or application to, public employment. In point of fact, when we look to the legislative history which preceded and accompanied the enactment of the Taylor Law, there is no suggestion that any one, in or out of the Legislature, proposed trial by jury in contempt proceedings for its violation. It is inconceivable, we suggest, that so vital and salient a feature would not have been enacted, let alone not mentioned, by the Legislature if there had been any design or desire to provide therefor. To accept the position of our dissenting brothers would ascribe to the Legislature an intention not only to override decisions on the books for upwards of 30 years, which denied the right to trial by jury to public employees (see supra, p. 115), but also to nullify the "old and well-known rule that statutes which in general terms divest pre-existing rights or privileges will not be applied to the sovereign without express words to that effect." (United States v. Mine Workers, 330 U.S. 258, 272, supra.)

The conclusion, therefore, is clear. The Taylor Law was never intended to, and does not, make provision for jury trials in contempt enforcement proceedings; the reference in the Taylor Law to section 807 cannot possibly create a right to a jury trial under section 808.

Nor do we find any basis for a claim that a denial of a jury trial in this case offends against any constitutional provision.

Contrary to the defendants' contention, to refuse a trial by jury to public employees or their representative organizations and to grant it to those in private industry does not violate the equal protection of the laws under the Constitution of either the United States or New York State. Ever since the enactment of the Norris-LaGuardia Act and our State's Little Norris-LaGuardia Act, the view has been uniformly and consistently held that a legitimate distinction between public and private employment is constitutionally permissible. This has been recognized, we note, with regard not only to the prohibition against strikes but also to the issue, now confronting us, affecting jury trials. (See United States v. Mine Workers, 330 U.S. 258, 298, supra ; Jewish Hosp. of Brooklyn v. "John Doe ", 252 App. Div. 581, 585, supra ; see, also, New York City Tr. Auth. v. Loos, 2 Misc. 2d 733, 742, affd. 3 A.D.2d 740, supra ; New York City Tr. Auth. v. Loos, 9 Misc. 2d 492, 493, supra.) Indeed, the Supreme Court, explicitly dealing with the problem in the Mine Workers case -- where the miners were governmental employees -- declared (330 U.S., at p. 298):

"Not only were the defendants fully informed that a criminal contempt was charged, but we think they enjoyed during the trial itself all the enhanced protections accorded defendants in criminal contempt proceedings. We need not treat these at length, for defendants, in this respect, urge only their right to a jury trial as provided in § 11 of the Norris-LaGuardia Act. But § 11 is not operative here, for it applies only to cases 'arising under this Act,' and we have already held that the restriction upon injunctions imposed by the Act do not govern this case. The defendants, we think, were properly tried by the court without a jury."

There is at least one vital reason why a jury trial is not appropriate or desirable in applying sanctions for violation of statutes regulating labor relations with public employees or their representative organizations. Prompt determinations, unencumbered by the long, drawn-out procedures involved in jury trials, are needed in criminal contempt proceedings under the Taylor Law in order to deter the continuance of paralyzing public strikes by visiting speedy punishment on the offenders.*fn2 It is not unreasonable to assume that the Legislature, which prohibited strikes by public employees, would provide every reasonable means for enforcement of that prohibition by giving the courts the powers necessary to bring about their early termination. Such strikes, if caused by firemen, could "overnight permit the destruction of a whole city", or if by policemen could "endanger the safety of millions of people and of all their possessions", or if called by sanitation workers could "almost overnight produce an epidemic threatening the lives of other millions of people." (Memorandum of Governor Dewey, approving Condon-Wadlin Act [L. 1947, ch. 391], N. Y. Legis. Ann., 1947, pp. 36-37.) And, we would add, if called by teachers in the New York City public school system, such strikes would not only deprive children of their fundamental and statutory right to a basic education -- thereby severely handicapping them in their efforts to attain higher education and future employment -- but it would also impair their respect for law.

Strikes by employees in certain private industries may, as Judge Keating notes in dissent (opn., p. 134), be just as paralyzing in their impact upon the public as strikes by workers in public employment. But the Legislature has not seen fit to legislate with regard to such strikes.*fn3 And, just as a classification is not deemed unreasonable which differentiates between strikes by public employees and employees in private industry,*fn4 so a classification may not be subjected to attack which denies a jury trial to public employees whose willful defiance of the prohibition against strikes, if not brought to an immediate end (without the delay occasioned by possibly long, drawn-out jury trials), might cripple a city. As the Supreme Court not too long ago had occasion to observe (McGowan v. Maryland, 366 U.S. 420, 425-426):

"Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." (Emphasis supplied.)

Certainly, a reasonable distinction may be drawn between public and private employment; reasonableness of a classification under constitutional standards is always influenced by time and circumstances. It is sufficient to note that, as of the present, legislative differentiation between public and private employees, insofar as ...


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