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March 12, 1973

Marie SNEAD, Plaintiff,
DEPARTMENT OF SOCIAL SERVICES OF THE CITY OF NEW YORK, a governmental agency, et al., Defendants

The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, District Judge.

This three-judge court was convened to consider plaintiff's challenge to the constitutionality of section 72 of the New York Civil Service Law, *fn1" which governs leaves of absence for mentally unfit civil service employees. Plaintiff seeks a declaratory judgment of unconstitutionality, an injunction prohibiting defendants from taking any action thereunder and an order directing her reinstatement with back pay for the period of her involuntary leave of absence. The suit is brought under 42 U.S.C., section 1983, with jurisdiction predicated upon 28 U.S.C., sections 1331, 1343(3) and 1343(4).

Plaintiff is a social worker employed since 1965 in permanent civil service status by the Department of Social Services of the City of New York. The facts surrounding the imposition of the involuntary leave of absence and the relevant provisions of the challenged statute are set forth in the district court's opinion convening this court and need only be briefly summarized here. *fn2" Section 72(1) provides that when, in the judgment of an appointing authority, an employee is not mentally fit to perform his duties, it may require the employee to submit to a medical examination by a medical officer selected by the state or municipal civil service authority having jurisdiction. If the examining medical officer certifies that the employee is not mentally fit to perform his duties, the appointing authority may place the employee on leave of absence without pay, which may continue up to one year. Sections 72(2) and 72(3) provide, respectively, for a second examination at the request of the employee after the imposition of the leave of absence *fn3" and an appeal to the state or municipal civil service commission having jurisdiction. Plaintiff's appointing officer invoked section 72 by ordering her to appear for a medical examination on May 8, 1972. *fn4" The examining psychiatrist concluded that plaintiff was unfit to perform the duties of her employment and recommended that she be considered for medical leave of absence. Her appointing officer accepted this recommendation and on May 10 placed her on a one year leave of absence.

 The thrust of plaintiff's challenge to section 72 is that it authorizes civil service authorities to place employees in permanent civil service status on involuntary leaves of absence of up to one year, upon certification by a medical officer that they are mentally unfit to perform their duties without providing an adversary hearing prior to the effectuation of the enforced leave. *fn5" She contends that the leave of absence deprived her of a constitutionally protected right to liberty and property which may not, consistent with the due process clause of the Fourteenth Amendment, be infringed without a prior due process hearing. *fn6" Defendants respond that plaintiff was not deprived of any constitutionally protected interest and that even if she were, she was afforded all the process which is constitutionally required. They also raise procedural objections which, they contend, make it inappropriate for this court to reach the merits of the controversy at this time. Each of these questions must be examined in turn.


 Defendants urge that plaintiff should be required to exhaust the administrative remedy contained in section 72(3), which provides for an appeal to the state or municipal civil service commission having jurisdiction from the initial finding of mental unfitness or following a refusal to reinstate after a second medical examination. In a series of decisions over the last decade, however, the Supreme Court has held that exhaustion of administrative remedies is not required in cases brought under the Civil Rights Act. *fn7" It is true that in Eisen v. Eastman, *fn8" decided before Wilwording v. Swenson, *fn9" the Supreme Court's most recent pronouncement on the subject, a panel of our court of appeals read the prior cases as only eliminating the requirement of exhaustion of state administrative remedies where they are inadequate or resort to them would probably be futile. It is unnecessary to consider the vitality of Eisen in light of Wilwording, however, because the Eisen court emphasized the Supreme Court's statement in King v. Smith that a Civil Rights Act plaintiff "is not required to exhaust administrative remedies, where the constitutional challenge is sufficiently substantial . . . to require the convening of a three-judge court." *fn10" Indeed, in the present case there would seem to be little point in compelling plaintiff to exhaust the very procedures, including the appellate review, which she contends are constitutionally inadequate.


 Entirely apart from their contentions concerning exhaustion, defendants argue that this court should abstain from a decision on the merits in order to give the the state courts an opportunity to construe section 72 in the context of plaintiff's constitutional challenge. It is well established that where the meaning of a statute is fairly open to question and it is reasonably susceptible of a construction which would avoid the need for federal constitutional adjudication or at least fundamentally alter the constitutional issues presented, the state courts should be given an opportunity to pass upon it. *fn11" Considerations of federalism require "that federal judgment . . . be based on something that is a complete product of the State, the enactment as phrased by its legislature and as construed by its highest court." *fn12"

 The Supreme Court, however, has repeatedly emphasized that abstention should not be ordered merely to give state courts first opportunity to decide constitutional issues: "If the state statute in question, although never interpreted by a state tribunal, is not fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question, it is the duty of the federal court to exercise its properly invoked jurisdiction." *fn13" It has also cautioned that the price which must be paid for abstention is frequently piecemeal adjudication in many courts, which delays ultimate decision on the merits for an undue length of time. *fn14" With these principles to guide us, we consider the defendants' plea that this court abstain from deciding the constitutional issue.

 Defendants suggest that the state courts can construe section 72 in a manner which would eliminate or at least significantly modify plaintiff's constitutional challenge. They rely upon instances in which the New York Court of Appeals has, in the face of legislative silence, read hearing provisions into statutes to enable them to survive constitutional scrutiny. *fn15" In particular, they emphasize that that court's policy "has always been to construe statutes in such a manner as to uphold their constitutionality," *fn16" and that it "more than once read into a statute a requirement for the protection of a mentally ill person in order to save it from being stricken as unconstitutional." *fn17"

 However, the power of courts to breathe constitutional life into an otherwise questionable statute is not without its limitations. The legislative history which accompanies a statute cannot be ignored. The susceptibility of section 72 to a construction consistent with due process must be determined in the light of the statutory context of which it is a part. Prior to the enactment of section 72 in 1969, a proceeding against an alleged mentally ill employee was brought under section 75, which was of general application to all employees against whom disciplinary or other charges might be brought. That section provides for a hearing with written notice of the charges and the right to representation by counsel and to summon witnesses before the removal or disciplining of permanent civil service employees. *fn18" The authorities were of the view that the filing of disciplinary charges of incompetency under section 75, with the consequent dismissal of the employee on that basis after the hearing, was not an appropriate way to handle cases of mental incompetency, which presented a variety of problems. *fn19" Thus, the procedures mandated by section 72 must be viewed as a deliberate decision concerning the most desirable means of handling employees believed to be mentally ill. It is against this background that the feasibility of defendants' various suggestions whereby section 72 could be interpreted to save its constitutionality must be evaluated.

 The defendants, to sustain their claim that the statute is susceptible to a constitutionally valid construction, would bifurcate section 72. They suggest that the procedure provided there might be limited to instances where the alleged mental disability of the employee imposes a clear and immediate danger to others, which would not require a prior adversary hearing, an interpretation that might survive any constitutional challenge. *fn20" The argument proceeds further that in non-emergency instances the adversary hearing provided for by section 75 might be applied. However, this division of section 72 is not justified either by its language or legislative history. The statute was intended to apply to all instances of alleged mental disability, emergency and non-emergency. Moreover, plaintiff contends that were section 75 to be held applicable to non-emergency cases, it, too, would be constitutionally deficient, since subdivision (3) thereof permits, prior to an adversary hearing, suspension without pay for up to thirty days pending the hearing and determination of charges. Finally, even if section 72 were confined to emergency cases where a prior adversary hearing is not constitutionally required, it would still require substantial modification in order to provide a due process hearing subsequent to the effectuation of the compulsory leave of absence. The burden is currently upon the employee to appeal the finding of mental unfitness to the state or municipal civil service commission having jurisdiction, which "may conduct such inquiry as it deems necessary or desirable." *fn21" More importantly, the determination appealed from may only be reversed and reinstatement ordered if it was "arbitrary or unreasonable." *fn22"

 Defendants' other proposed constructions raise similar difficulties. For example, they urge that the New York courts could read into section 72 the requirement that employees must have an opportunity to challenge an adverse medical diagnosis before being placed on leave of absence. But, as noted earlier, section 72(1) is unambiguous on its face; it intentionally eliminated the due process hearing formally available under section 75 to those charged with mental unfitness. The suggestion that the state courts might rule that section 72 entitles employees to receive the medical reasons for being placed on involuntary leave also fails to provide adequate grounds for abstention. The thrust of plaintiff's constitutional attack, which is directed at the lack of a prior adversary hearing, would remain unaffected by such a construction. In short, defendants have failed to propose and this court is unable to discover a reasonable construction of section 72 which would avoid or fundamentally alter the constitutional questions presented. The various suggestions advanced by defendants as to how the New York courts could interpret section 72 to give it constitutional validity would require them to judicially redraft the statute in disregard of the clearly expressed legislative purpose to ...

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