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AUGUST v. BRONSTEIN

January 4, 1974

John W. AUGUST, Individually and on behalf of all others similarly situated, and Thomas Readous, Plaintiffs,
v.
Harry I. BRONSTEIN, Individually and as Chairman of the Civil Service Commission of the City of New York and as Director of the Department of Personnel of the City of New York, et al., Defendants


Bonsal, District Judge.


The opinion of the court was delivered by: BONSAL

BONSAL, District Judge.

Plaintiff August and plaintiff-intervenor Readous *fn1" seek a declaratory judgment declaring that Article V, section 6 of the New York State Constitution and section 85 of the New York Civil Service Law, McKinney's Consol. Laws, c. 7, which grant a 5-point preference in competitive Civil Service examinations to non-disabled veterans who have served in time of war, are unconstitutional and violate their right to travel and their right to equal protection of the laws as guaranteed by the Fourteenth Amendment to the United States Constitution. The complaint requests an injunction and damages. Plaintiffs' application for a 3-Judge Court was granted by Judge Griesa, and the 3-Judge Court was duly convened and a hearing was held on November 15, 1973.

 The challenged constitutional and statutory 5-point preference is granted only to individuals who were citizens of New York at the time of induction and who received an honorable discharge. While August and Readous received honorable discharges, August was a citizen of Connecticut and Readous a citizen of Michigan at the time of their inductions into the Armed Forces. Both subsequently became residents of the State of New York and applied to the Civil Service Commission of the City of New York for the position of School Custodian.

 Plaintiff August was born in New York and moved to Connecticut when he was 5 years old. He enlisted in the Armed Forces of the United States in 1941 at the age of 18 while he was living in Connecticut with his parents. He served in the Armed Forces from 1941 to 1945, and was honorably discharged. He has been a resident of the State of New York for the past 6 years. In 1972, August applied for the Civil Service position of School Custodian in the City of New York, took and passed the competitive examination, and was awarded 85.5 points, on the basis of his actual score of 80.5 plus the 5-point preference. He was placed as a School Custodian in Bronx, New York where he served with a satisfactory rating until January 4, 1973, at which time he was dismissed on the ground that he had not been entitled to the 5-point preference because he was not a resident of New York when he enlisted in the Armed Forces. This dropped his classification rating from No. 36 to No. 105.5.

 Plaintiff-intervenor Readous was a resident of Michigan when he was inducted into the Armed Forces on January 2, 1951 during the Korean conflict. After service in Germany, he received an honorable discharge on December 3, 1952. In 1955, he became a resident of the State of New York, where he has lived ever since. After almost 20 years of service as a custodial worker in the public schools, he took and passed the competitive Civil Service Examination for School Custodian given by the Board of Education of the City of New York, and was assigned to Public School 236 in the Bronx, from the Civil Service list. He served as Custodian from October 24, 1972 to April 13, 1973, when he was removed on the ground that his claim for a veteran's preference had been disallowed by reason of the fact that at the time of his entry into the Army he was not a resident of the State of New York. His subsequent appeal to the Civil Service Commission was denied on May 14, 1973. By reason of the disallowance of the 5-point preference, his classification rating dropped from No. 35 to No. 104.5.

 The New York Constitution, Article V, section 6, provides, to the extent here relevant:

 
"[Civil service appointments and promotions; veterans' credits] Appointments and promotions in the civil service of the state and all of the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive; provided, however, that any member of the armed forces of the United States who served therein in time of war, who is a citizen and resident of this state and was a resident at the time of his entrance into the armed forces of the United States and was honorably discharged or released under honorable circumstances from such service, shall be entitled to receive five points additional credit in a competitive examination for original appointment and two and one-half points additional credit in an examination for promotion . . . ."

 The New York Civil Service Law, section 85, provides to the extent here relevant:

 
"1. Definitions. (a) The terms 'veteran' and 'non-disabled veteran ' mean a member of the armed forces of the United States who served therein in time of war, who was honorably discharged or released under honorable circumstances from such service, who was a resident of this state at the time of entrance into the armed forces of the United States and who is a citizen and resident thereof at the time of application for appointment or promotion or at the time of retention, as the case may be.
 
* * *
 
"2. Additional credits in competitive examinations for original appointment or promotion. * * *
 
(2) Non-disabled veterans shall be entitled to receive five points additional credit in a competitive examination for original appointment and two and one-half points additional credit in a competitive examination for promotion."

 The State of New York first extended a Civil Service preference in 1894 to all veterans of the Civil War (N.Y. Const., Art. V, § 9). In 1919, following World War I, the New York State Legislature adopted concurrent resolutions to amend the Constitution to provide that honorably discharged veterans who were residents of New York when they entered the Armed Forces of the United States and served in time of war were to be given preference over all other persons except Civil War veterans in appointments to and promotions in competitive Civil Service examinations. The same resolutions were passed by the Legislature in 1921, but the proposed constitutional amendment failed of approval at the general election held that year. However, by Chapter 702 of the Laws of 1921, a new section was added to the New York Civil Service Law giving substantially the same preference.

 In 1929, the New York Constitution, Article V, section 6, was amended to provide a preference to all honorably discharged disabled veterans who were citizens and residents of New York when they entered the Armed Forces and who had served in wartime -- which amendment was incorporated in section 21 of ...


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