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ROMANO v. KIRWAN

March 4, 1975

Donald F. ROMANO, Plaintiff,
v.
William E. KIRWAN, Superintendent of the New York State Police, Defendant


Timbers, Circuit Judge, Curtin, Chief District Judge, and Burke, District Judge.


The opinion of the court was delivered by: CURTIN

CURTIN, Chief District Judge.

Plaintiff, a New York state policeman holding the rank of trooper, commenced this action under 28 U.S.C. ยงยง 1331(a) and 1343(3) alleging the unconstitutionality of the regulation setting standards for state police personal grooming, Section 4.18 of Part III of the New York State Police Manual. *fn1" After this court granted plaintiff's motion for the convening of a three-judge court, Romano v. Kirwan, Civil No. 1973-629 (W.D.N.Y. Apr. 24, 1974), testimony was heard on May 29, 1974. On June 20, 1974 the three-judge court heard oral argument on defendant's motion to dismiss the complaint. The following constitutes the single judge's findings of fact and the panel's conclusions of law drawn from those facts.

 Defendant makes several preliminary arguments which are without merit. The first is that plaintiff lacks standing. He is a New York state policeman subject to Section 4.18 and disciplinary proceedings for his alleged noncompliance are currently pending. The "threatened or actual injury" standard is clearly met. See Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968); Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962).

 Defendant also argues that plaintiff must be required to exhaust his administrative remedies, but exhaustion is excused because the challenge would be to the very person who promulgated the challenged regulation, and therefore would "certainly or probably" be a futile gesture. Eisen v. Eastman, 421 F.2d 560, 569 (2d Cir. 1969).

 Defendant argues that plaintiff has waived his right to bring this action because the Police Benevolent Association of the New York State Police, Inc. [PBA], the collective bargaining unit for the New York state police, has approved the challenged regulation. It is argued that the approval contained in a letter dated May 18, 1972 from William A. Thompson, President of the PBA (Exhibit 10), constitutes a waiver of plaintiff's rights under the standard set forth in D. H. Overmyer Co. v. Frick Co., 405 U.S. 174, 92 S. Ct. 775, 31 L. Ed. 2d 124 (1972). In that case the Supreme Court provided that an individual may waive a constitutional right by contract if the waiver was "voluntary, knowing, and intelligently made . . . or 'an intentional relinquishment or abandonment of a known right or privilege,' . . . ." 405 U.S. at 185-86, 92 S. Ct. at 782. Defendant has failed to prove a waiver under the above standard.

 Finally, defendant asserts that this is a proper case for the doctrine of abstention. Abstention should not be applied where there is no uncertainty or ambiguity in the state statute which might be clarified by state interpretation. See, e.g., Wisconsin v. Constantineau, 400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971). Further, there are no special circumstances here to justify the delay and additional expense derived from application of the abstention doctrine. Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 92 S. Ct. 1749, 32 L. Ed. 2d 257 (1972).

 Turning to the merits, all counsel agree with the panel that the instant case is controlled by Dwen v. Barry, 483 F.2d 1126 (2d Cir. 1973). The Dwen court held that the right of the individual to style his own appearance "is an ingredient of an individual's personal liberty" and is protected by the Due Process Clause of the fourteenth amendment. 483 F.2d at 1130. Thus, "any restriction on [the choice of personal appearance] must be justified by a legitimate state interest reasonably related to the regulation." 483 F.2d at 1130.

 The state interests advanced in support of Section 4.18 are: safety of the officer in carrying out his duties; a need to foster and maintain discipline among state policemen; and the necessity to present a favorable image in order to obtain public cooperation with the state police. *fn2" Agreeing that these are all legitimate state interests, the question remains whether the enumerated interests are reasonably related to Section 4.18.

 In 1962 the Division of State Police promulgated a regulation which provided that "[it] shall be the duty of each member of the Division to exercise proper care and give proper attention to his person, clothing and equipment to insure that he presents a neat, clean and businesslike appearance at all times." Section 8.5 of Part III of the New York State Police Manual. The Executive Committee of the Division of State Police initiated study of this section in 1970. On August 12, 1971 Deputy Chief Inspector of the Division of State Police, R. D. Quick, sent a memorandum to Chief Inspector J. C. Miller suggesting that there existed a need for more specific guidelines relating to personal appearance. Defendant's Ex. 5. Inspector Quick's memorandum was precipitated when he observed Trooper Romano, the plaintiff in this case, at a training class with "an unusual and extreme mustache, sideburns and long hair style." Id. In his memo suggesting a need for more specific guidelines relating to personal appearance, the inspector emphasized image and discipline, but did not discuss safety. Inspector A. L. Bardossi made a survey and proposed personal appearance guidelines in a memorandum to Chief Inspector G. L. Infante dated December 3, 1971, which was forwarded to Deputy Superintendent J. C. Miller. Defendant's Ex. 6. *fn3" In his report Inspector Bardossi commented:

 
Current hair styles have reached a point that their adoption by Division members, in their more extreme forms, is not acceptable to protecting the image desired by the Division. . . .
 
The Division is semimilitary in organization and a neat well-groomed appearance is fundamental to inspiring public confidence. In this respect our need to inspire a sense of pride and self-discipline in our members closely parallels those of the military.
 
The establishment of clear-cut guidelines serves two important functions:
 
a. Provides a criteria against which the individual member can measure his appearance.
 
b. Enables supervisory personnel to regulate and control the personal ...

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