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

COURT OF APPEALS OF NEW YORK


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.

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.)

[23 N.Y.2d 111 Page 115]

    --> 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

[23 N.Y.2d 111 Page 119]

    --> 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 restrictions on their right to strike and to jury trials are concerned, is reasonable.

The defendants' further contention that the Federal Constitution (art. III, § 2; 5th, 6th, 14th Amdts.) requires that they be accorded a trial by jury is likewise without merit. Bloom v. Illinois (391 U.S. 194), contrary to the defendants' argument, does not stand for the proposition that the Fourteenth Amendment guarantees the right to a jury trial in every contempt proceeding in State courts. The decision in Bloom is plainly limited in its application to "serious" crimes in contradistinction to "petty" offenses (e.g., p. 197; see, also, Dyke v. Taylor Implement Co., 391 U.S. 216, 220; DeStefano v. Woods, 392 U.S. 631, 633). In the Dyke case (391 U.S. 216, supra), for instance, the Supreme Court, after observing that it had not drawn a precise line "between punishments that can be considered 'petty' and those that cannot be", went on to say that "it is clear" -- from its decision in Cheff v. Schnackenberg (384 U.S. 373) -- "that a six-month sentence is short enough to be 'petty.'" In the case before us, it is sufficient to point out that the maximum punishment to which the individual defendants are subject -- if found guilty -- is 30 days in jail and a fine of $250 (Judiciary Law, § 751, subd. 1).

Nor does the penalty to which defendant unions are subject -- a fine of $10,000 a day or one fifty second (1/52) of the total amount of annual membership dues, "whichever is the lesser" (Judiciary Law, § 751, subd. 2, par. [a])*fn5 -- render the contempt a "serious" crime. The determination, whether it is serious or petty under the decisions, turns not on the amount of the fine which may be imposed but solely on the length of the prison sentence. (See Ex parte Wilson, 114 U.S. 417, 428; People v. Bellinger, 269 N. Y. 265, 271; Matter of McKinney v. Hamilton, 282 N. Y. 393, 397.) Consequently, as the cases reveal, the fine, even though sizeable in amount,*fn6 furnishes no valid criterion for the defendants' claim that the contempt charged against them constitutes a serious crime. Further, even if the amount of the permissible fine had any relevance, the fine -- which in the last analysis must be borne by the union membership (see, e.g., Martin v. Curran, 303 N. Y. 276, 281) -- is actually small, amounting, at most, to no more than a member's weekly union dues for each day of the contempt.

In sum, then, we find that no constitutional or statutory right of the defendants will be transgressed by a trial of the criminal contempt charge without a jury.

    --> The orders appealed from should be affirmed, without costs, and the questions certified answered in the negative.

Disposition

Orders affirmed, etc.

Burke, J. (dissenting). The order seeking to place these defendants in contempt is predicated on the Public Employees' Fair Employment Act, more popularly known as the Taylor Act (Civil Service Law, §§ 200-212), and article 19 of the Judiciary Law (Judiciary Law, §§ 750-781). Section 210 of the Taylor Act specifically provides that a public employee who condones, causes or instigates a strike "shall be subject to the disciplinary penalties provided by law for misconduct, in accordance with procedures established by law." (Civil Service Law, § 210; emphasis added.) Such procedures are contained in the Judiciary Law and Labor Law. The defendants have demanded a trial by jury in this matter, contending that such a trial is available to them as a matter of right by virtue of various statutory provisions (Judiciary Law, § 753-a; Labor Law, § 808), and that a denial of a trial by jury would be unconstitutional. For the reasons stated below, I am of the opinion that a trial by jury is mandated in this instance.

In support of their contention that they have a statutory right to a trial by jury, defendants rely in part upon section 753-a of the Judiciary Law. It is there stated, in clear and unequivocal terms, that: "Notwithstanding any inconsistent provision of law, where the alleged contempt is punishable under section seven hundred fifty and/or section seven hundred fifty-three and arises out of a failure or refusal to obey any mandate of a court contained in or incidental to an injunction order granted by such court in any case involving or growing out of a labor dispute, no punishment, prescribed by either of such sections, shall be meted out except after a trial by jury to which the defendant shall be entitled as a matter of right". Whether that provision is here applicable depends on three factors: first, is the contempt here punishable under either of the above-mentioned sections; second, did this injunction involve or grow out of a labor dispute; finally, is the punishment sought prescribed by either section. Since the order seeking to place these defendants in criminal contempt is predicated on section 750 of the Judiciary Law, it is axiomatic that the first and third requirements of section 753-a are indeed satisfied in this case. The sole basis for denying a jury trial under this section is to conclude that the injunction involved did not arise from a labor dispute.*fn1 The court below has relied upon decisions from lower courts in this State which, while construing other statutes in a different era, have held that there can be no labor dispute within the meaning of particular statutes where public employees are involved. Since it is not disputed that, absent such an interpretation of section 753-a, the court would determine that a labor dispute did in fact exist in this situation, I merely conclude that under section 753-a of the Judiciary Law defendants are given an unqualified right to a trial by jury in this instance, notwithstanding any inconsistent provisions of law.

A parallelism is drawn between section 753-a of the Judiciary Law and sections 807 and 808 of the Labor Law in an effort to sustain the contention of the Corporation Counsel that a "labor dispute" cannot exist under the Judiciary Law, when public employees are involved. Sections 807 and 808 of the Labor Law comprise an article in themselves entitled "Injunctions in Labor Disputes". Of these two sections, only 807 has been held not to apply to public employees; the one case purporting to reach that same conclusion under section 808 does so merely by dictum, has never been followed, and was not the source of any significant commentary. (New York City Tr. Auth. v. Loos, 9 Misc. 2d 492.)

Section 807 provides in effect that no injunction or restraining order involved in or growing out of a labor dispute shall be issued until a hearing has been held. This section's predecessor, like the predecessor of section 753-a of the Judiciary Law, was enacted in 1935. Shortly thereafter, the New York Labor Relations Act was enacted. (Labor Law, §§ 700-716.) In that act, the Legislature specifically declared that its provisions were not to apply to either public employees or employees of nonprofitmaking hospitals (Labor Law, § 715). The very year

    --> that act was enacted, the Appellate Division had before it the case of Jewish Hosp. of Brooklyn v. "John Doe " (252 App. Div. 581), wherein the sole question was whether the predecessor of section 807 applied to a charitable corporation such as the Jewish Hospital. The court in holding 807 inapplicable began by summarizing the various maxims of construction pertaining to the State and its political subdivisions to show that section 807 might not apply as these entities were not specifically included, despite the statute's encompassing terms. The court proceeded by demonstrating how the legislative purpose behind granting a hearing prior to the issuance of a restraining order had no relation to charitable corporations and their employees. Finally, the court relied upon the provisions in the Labor Relations Act. "Both statutes should be read together and reconciled as far as possible in an effort to read the mind of the Legislature. [Citations omitted.] In enacting both statutes the Legislature recognized labor's right to strike and to resort to peaceful picketing and other lawful activities free from interference by the courts * * * The Labor Relations Act -- unlike the instant statute -- expressly provides it shall not apply 'to employees of the State * * * or to employees of charitable, educational or religious associations or corporations'" (252 App. Div. 581, 586). This same rationale produced a similar decision in New York City Tr. Auth. v. Loos (2 Misc. 2d 733): "The procedural requirements of section 876-a of the Civil Practice Act [now Labor Law, § 807] have no application to these public employees. Also, the individual defendants plainly have no rights under the State Labor Relations Law for section 715 of the Labor Law specifically provides that such act shall not apply to public employees generally [citations omitted]" (p. 742). Finally, in a recent decision involving the biennial confrontation with the Transport Workers Union, it was stated: "It has been settled that 'public employees' can and should be enjoined from striking and that the provisions of section 807 are not applicable to such employees." (Manhattan & Bronx Surface Tr. Operating Auth. v. Quill, 48 Misc. 2d 1021, 1022.)

Each of these decisions is inapplicable to the present litigation. Each decision recognizes that, where employees are prohibited from striking, it is indeed improvident to require a time-consuming hearing before a restraining order may be issued against the acknowledged illegal strike. Thus, it is no mere accident that the Legislature, in enacting the Taylor Act, devoted a separate section to the application for injunctive relief. (Civil Service Law, § 211.) This new section not only reflects the holdings of the cases mentioned above but is also compatible with the general purpose of the act -- "to protect the public by assuring, at all times, the orderly and uninterrupted operations and functions of government." (Civil Service Law, § 200.) It does not follow, the cases do not so hold, and the Taylor Act does not so provide, that the public interest is also served by denying public employees the right to a trial by jury. Moreover, before the Taylor Act was adopted, the Legislature, in 1963, made several amendments to the State Labor Relations Law, with the explicit intention of conferring rights upon the employees in nonprofitmaking hospitals. (See, e.g., Labor Law, §§ 715-716.) Thus, the underlying reason for the rule in both Jewish Hospital and Loos (supra) has been overturned by the Legislature, and the decisions have been effectively overruled. It is, therefore, error to declare, as the court below has done, that since the Legislature "must have been aware of the prior judicial interpretation of those sections as not embracing disputes involving public employees, the Legislature may be taken to have acquiesced in that interpretation."*fn2

Section 808 of the Labor Law is admittedly similar in language to section 753-a of the Judiciary Law. This marked uniformity between the statutes, when coupled with the decision in New York City Tr. Auth. v. Loos (9 Misc. 2d 492, supra), is said to provide a precedent for the denial of the trial by jury in this case. In Loos, the court stated that neither section 808 nor section 753-a confers a right to a trial by jury where the "labor dispute" is between public employees and their government. However, in that case, the court concluded that there was no evidence on which the defendant could be adjudged guilty of contempt. Hence, the question of whether a jury trial was required, while discussed by that court, was not instrumental in the court's decision. Moreover, the sole basis for suggesting that there is no statutory basis for a jury trial for a contempt by public employees was the previous decision in Loos, which dealt with the necessity of a hearing prior to the issuance of a restraining order (2 Misc. 2d 733, supra). As the Legislature in 1963 conferred rights upon certain public employees, thereby negating the holding in the first Loos decision, it follows that any extension of the Loos rationale was also negated. This is confirmed by an analysis of specific provisions of the Taylor Act.

The act begins by reciting that "The Legislature of the state of New York declares that it is the public policy of the state and the purpose of this act to promote harmonious and cooperative relationships between government and its employees and to protect the public by assuring, at all times, the orderly and uninterrupted operations and functions of government. These policies are best effectuated by (a) granting to public employees the right of organization and representation, (b) requiring the state, local governments and other political subdivisions to negotiate with, and enter into written agreements with employee organizations representing public employees". (Civil Service Law, § 200.) Following a section devoted to the definition of the terms of the act, there are two sections conferring upon the public employee the right to organize and the right to be represented for purposes of collective bargaining "with their public employers". (Civil Service Law, §§ 202, 203.) It is thus abundantly clear that the purpose of the Taylor Act was to enlarge the rights of public employees and to acknowledge the existence of an employer-employee relationship in the area of public employment. It is readily apparent that this new approach to the status of a public employee is totally inapposite to the philosophy prevailing at the time of the Loos and Jewish Hospital of Brooklyn decisions. It is undisputed that the Taylor Act acknowledges the applicability of the Judiciary Law when injunctions are to be enforced. "If an order of the court enjoining or restraining such violation does not receive compliance, such chief legal officer shall forthwith apply to the supreme court to punish such violation under section seven hundred fifty of the judiciary law." (Civil Service Law, § 211.)*fn3 It is apparent that this reference to the Judiciary Law was directed to all of article 19. It is also apparent, from all of the above, that the injunction in this case is one "involving or growing out of a labor dispute" within the meaning of section 753-a of the Judiciary Law. The alternative conclusion, adopted today, implies that the Legislature in enacting the Public Employees' Fair Employment Act intended section 753-a of the Judiciary Law to apply to that act, except where public employees are involved.

The Taylor Law, through its reference to the Judiciary Law, clearly intended that public employees and their representatives should have the right to a trial by jury in the present situation. Just as the amendments to the Labor Relations Law evidence an intent to increase the rights of employees in charitable hospitals, the purpose of the Taylor Act, as expressed therein, demonstrates an enlightened approach toward employer-employee relations in this area. Here, as in Jewish Hosp. of Brooklyn v. "John Doe " (252 App. Div. 581, 586, supra), "Both statutes should be read together and reconciled as far as possible in an effort to read the mind of the Legislature."

The majority proffers many reasons why a jury trial may not be appropriate or desirable in this case. Thus, referring in part to the legislative history of an act since repealed, we are told that a jury trial might precipitate "the destruction of a whole city", "endanger the safety of millions", and "produce an epidemic". I do not comprehend how the mere presence of a jury in a criminal contempt case can cause such disaster. However, the reasons advanced by the majority do serve to bring to mind the knowledgeable words of Mr. Justice Holmes: "Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment." (Northern Securities Co. v. United States, 193 U.S. 197, 400.)

Were this case to involve simply a question of statutory construction, it would be unnecessary to go beyond the analysis of the statutory provisions already discussed, since that analysis fairly compels the conclusion that those statutes provide for a jury trial of a criminal contempt alleged to have been committed by public employee unions and their officers. But, an additional issue is raised by the contrary construction of those statutes. The issue is of a constitutional dimension since it involves a purported statutory discrimination between public and private employees in relation to their respective rights to such a jury trial. Initially, it should be emphasized that public employees, qua public employees, are not to be regarded as inhabitants of a constitutional limbo in which they are relegated to a "watered-down version of constitutional rights." (Garrity v. New Jersey, 385 U.S. 493, 500; Keyishian v. Board of Regents, 385 U.S. 589.) Furthermore, this proposition remains true even in the face of the dire perils of strikes by public employees. A teacher no more forfeits his constitutional rights when it is alleged that he is engaged in an illegal strike than does any individual citizen forfeit them when it is alleged that he has committed some heinous crime. We harbor no doubts as to the very serious character of the threat to the public inherent in strikes by public employees. It is precisely in times when the public interest is so seriously threatened that courts must heed the caution voiced by Chief Judge Cardozo: "Historic liberties and privileges are not to bend from day to day 'because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment' * * * are not to change their form and content in response to the 'hydraulic pressure' * * * exerted by great causes." (Matter of Doyle, 257 N. Y. 244, 268, quoting Holmes, J., in Northern Securities Co. v. United States, 193 U.S. 197, 400-401.) Suffice it to say that the issue here is whether the defendants have a statutory right to a jury trial and the major consideration in arriving at a negative conclusion on that issue is the constitutional infirmity of such a conclusion and the emphasis on the perils of public employee strikes merely serves to becloud the true issue to be resolved here.

Both the United States (14th Amdt.) and the New York State Constitutions (art. I, § 11) provide that no person shall be deprived of the equal protection of the law. Cases too numerous for citation have applied this constitutional mandate in a wide variety of situations and the United States Supreme Court has succinctly stated the applicable criteria: "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 * * * A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." (McGowan v. Maryland, 366 U.S. 420, 425-426; emphasis added.) The emphasized portion of that opinion succinctly states the constitutional infirmity flowing from the majority's construction of the statutes so as to deny defendants a right to trial by jury. Although it is true, as the majority states (p. 116), "that a legitimate distinction between public and private employment is constitutionally permissible", it must be borne in mind that a classification which is constitutionally impeccable for one purpose may be constitutionally infirm for another (Gulf, Colorado & Santa Fe Ry. v. Ellis, 165 U.S. 150). Thus, a classification of unions and their members in terms of their employment in the public, as against the private, sector may well be reasonably related to a legislative objective of prohibiting strikes which interfere with essential public services. We are here faced, however, not with legislation barring strikes by public employees, but with legislation which, as construed, denies a jury trial in a criminal contempt proceeding against public employees arising from the alleged violation of a court order issued in a labor dispute with a governmental employer, but which grants such a jury trial to employees in the private sector who are also charged with violating a court order. Each is charged with the same violation and the fact that one is employed by the Board of Education, while the other is employed by some private educational system or institution, has no bearing whatever on the procedural method by which his accountability for the alleged violation is to be determined. Is there any governmental interest which requires that the Board of Education employee have his guilt or innocence determined by a Judge without a jury, whereas the employee of the private educational system or institution may have his guilt or innocence determined by a jury? No such interest has been demonstrated in this case and characterizations of the jury-trial process as "long" and "drawn-out" cannot serve to supply such an interest.*fn4 Furthermore, in terms of the time and circumstances within which it is insisted this legislation must be viewed, it is clear that this is a time when the right to a jury trial is increasingly being recognized as being "fundamental to the American scheme of justice" (Duncan v. Louisiana, 391 U.S. 145, 149). In view of this, is it reasonable to ascribe to the Legislature an intent to sacrifice such a fundamental aspect of our system of justice to the demands of expedience? So, too, the circumstances of the recent history of public employer-employee labor relations would seem to indicate that the legislators, as practical, realistic men, realized that the very resort to the court and its process in such situations often tends to exacerbate and inflame an already critical situation and has even, in the recent past, itself become a key obstacle to the resolution of such disputes and the re-establishment of the sought-after harmony and co-operation between public employers and their employees. In the face of these facts, is it reasonable to say that the Legislature could reasonably have concluded that the withholding of a right so universally recognized as an integral part of our system of administering justice would hasten the end of such public employee labor disputes? The time and the circumstances provide a rather clear-cut answer to that question. The conclusion is inescapable that, in the language of McGowan (supra), the distinction between public and private employees, in the context of the right to jury trial, is "wholly irrelevant" to the achievement of the legislative objectives expressed in the Taylor Act. (Cf. the equal protection analysis in Baxstrom v. Herold, 383 U.S. 107, 111-112.) Indeed, the legislative objectives sought to be achieved by the enactment of the Taylor Act are not difficult to establish since the Legislature saw fit to verbalize its objectives in the statute itself: "The legislature of the state of New York declares that it is the public policy of the state and the purpose of this act to promote harmonious and cooperative relationships between government and its employees and to protect the public by assuring, at all times, the orderly and uninterrupted operations and functions of the government." (Civil Service Law, § 200; emphasis added.) It is difficult, if not impossible, to conceive of any way in which the denial of a jury trial, in a criminal contempt proceeding brought against a public employees' union and its officers and arising from a dispute with a governmental employer, is in any way relevant to or productive of harmony and co-operation or how it could possibly be relevant to the assurance of the orderly and uninterrupted operations and functions of the government. The issue involved goes merely to the procedure to be invoked when a labor dispute has already occurred and has resulted in a court order which has allegedly been violated and simply has no bearing whatever on the effectuation or frustration of the expressed legislative objectives. This is

particularly apparent when it is recognized that the matter of jury trial arises only after events have occurred which necessitate a resort to the court and its mandates in an effort to enforce compliance which has allegedly not been voluntarily forthcoming. Nor is it conceivable that the denial of such a right, especially when it is granted in criminal contempt proceedings arising from private labor disputes, could effectuate the objectives of harmony and co-operation and uninterrupted government operations in the future. Governmental entities can show no vital or even nonvital interest which will be served by denying these defendants a jury trial. In the face of the obvious lack of relevant connection between the public-private employee distinction as to the right to a jury trial and the objectives sought to be achieved by the legislation of which the denial of a right to jury

trial is purportedly a part, there is a rather clear-cut deprivation of the equal protection of the law to which both public and private employees are entitled. It should need no citation of case or treatise to establish the proposition that a particular enactment, at the time it is challenged, either meets or does not meet the requirements of the fundamental document under which it must find its ultimate validity. Either the statutes involved in this case, as construed, accord public employees the equal protection of the law or they deprive public employees of such equal protection.

In light of the serious constitutional deprivation of equal protection involved in the majority's construction of these statutes, it is difficult to understand why some rather fundamental canons of statutory construction were apparently ignored in arriving at that construction. While we recognize that the "primary command to the judiciary in the interpretation of statutes is to ascertain and effectuate the purpose of the Legislature", we also recognize that "A construction of a statute is favored which makes it operate equally on all classes of persons and avoids unjust discrimination." (McKinney's Cons. Laws of N. Y., Book 1, Statutes, § 147; Matter of Meyer, 209 N. Y. 386.) The mere comparison of the respective rights of the public and private employee resulting from the majority's construction amply demonstrates that this canon played no part in that construction. Even more critically in point is the canon which asserts that "statutes must be construed to avoid not only the conclusion that they are unconstitutional, but also to avoid any grave doubts upon that score." (McKinney's Cons. Laws of N. Y., Book 1, Statutes, § 150; Courtesy Sandwich Shop v. Port of N. Y. Auth., 12 N.Y.2d 379, 389; Matter of Coates, 9 N.Y.2d 242, 253; Matter of Vanderbilt, 281 N. Y. 297, 313.) Even assuming, arguendo, that the majority's construction of the statutes so as to deny the public employee the right to a jury trial of a criminal contempt is supportable simply as a matter of construction, the resulting constitutional infirmity of that construction requires that the court implement these canons to obviate those infirmities. It is axiomatic that the Judiciary should take great care in ascribing a particular intent to the Legislature in enacting a particular statute. It is equally axiomatic that such care should be redoubled when the intent sought to be ascribed to the Legislature carries with it a burden of unconstitutionality. The lack of such care is acutely apparent here since there is available to the court a construction which is eminently reasonable, if not compelled, as well as free from constitutional objections.

Since we find that the defendants are entitled to a jury trial under the statutes of this State and since a contrary construction of those statutes raises a grave constitutional question as to the deprivation of the equal protection of the law, we would reverse the orders of the Appellate Division which affirmed the denial of appellants' right to a jury trial.

Accordingly, the orders of the Appellate Division should be reversed and the certified questions should be answered in the affirmative.

Keating, J. (dissenting). Although I concur in most of Judge Burke's opinion and would construe the Taylor Law as granting a right to trial by jury here in order to avoid reaching a serious constitutional question (Kent v. Dulles, 357 U.S. 116), I prefer to rest my dissent primarily on the constitutional mandate involved. In light of the majority's treatment of this point, I find it desirable to outline briefly the basis of my conclusion that, even if the Taylor Law does not provide a right to trial by jury to the appellants, the "equal protection" clause of the Fourteenth Amendment does.

The "equal protection" clause stands as a guardian and protector of minorities of every kind against every form of irrational discrimination. It is manifestly far easier, politically, to pass legislation which touches adversely only a small group. The "equal protection" clause seeks to control this tendency by requiring the Legislature to extend its classification to all persons or groups fairly within the legislative policy. Justice Jackson in his concurring opinion in Railway Express v. New York (336 U.S. 106, 112-113) recognized this fundamental purpose of the "equal protection" clause when he wrote: "The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected."

Later on in the opinion he summarized his views in a particularly apt phrase: "[We] are much more likely to find arbitrariness in the regulation of the few than of the many" (336 U.S., p. 113). I would examine the issue raised by this appeal in light of Justice Jackson's analysis of the "equal protection" clause.

In the case upon which the majority rely (United States v. Mine Workers, 330 U.S. 258, 298), the "equal protection" point was not even raised. Moreover, the case was decided in a day when the importance of the "equal protection" clause, as a vital tool in the preservation of a just society, was only then beginning to be felt.

The question is not whether public employees differ from private employees or whether the former may not strike, while the latter may, but whether the differences between them are pertinent to the subject with respect to which the classification is made, to wit, the right to trial by jury (Baxstrom v. Herold, 383 U.S. 107, 111). More precisely, the issue here is whether the denial of a jury trial is necessary to the functioning of the Taylor Law. The "one vital reason" offered by the majority to justify the lack of a jury trial requirement, where public employees or their representative organizations are involved, is an alleged need for "Prompt determinations" "in criminal contempt proceedings under the Taylor Law" "unencumbered by the long, drawn-out procedures involved in jury trials" "in order to deter the continuance of paralyzing public strikes by visiting speedy punishment on the offenders." (Majority opn., p. 117.) In contrast to almost every other criminal statute, however, the Taylor Law postpones the enforcement of all of its penalties against the union until after all appeals are exhausted (Judiciary Law, § 751, subd. 2, par. [d], cl. [i]). While it is conceivable that the appellate process could terminate prior to the end of the strike, this has yet to happen. Therefore, in the case of the union, the purported justification for denying a jury trial has no application at all.

In the case of the short jail terms provided by the statute as punishment against union leaders, and which can be imposed immediately, it is of crucial significance that, in three major strikes against the City of New York since the Taylor Law was enacted, the city found it impossible effectively to enforce the short jail sanction to end the strikes.*fn* The same situation prevailed for 20 years under the Condon-Wadlin Act (L. 1947, ch. 391). Therefore, while the Legislature has the right to experiment, we are here dealing with a situation where the reasons offered for drawing the distinction have been shown by historical precedent to have no basis.

When it is remembered that employees of private utilities have the power to plunge one of the great cities of the world into total darkness or complete silence, that employees of privately owned railroads and shipping lines have the power to deprive the residents of that city of vital food and fuel, that private sanitation workers, who carry away a substantial portion of the refuse in New York City, have the power to endanger the health of millions of its inhabitants and that thousands of other workers, carrying out activities vital to the life and safety of the city, may demand a trial by jury if they are charged with violation of a court order restraining a strike, the fallacy in the reasoning which would deny a jury trial to these defendants is readily exposed. References to the dangers to the children from the teachers' strike, real as those dangers may be, are not a substitute for a penetrating analysis of the labels "public" and "private" employees. In my view, the "public"-"private" distinction cannot be maintained as a constitutionally viable difference with respect to the right of a jury trial.


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