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March 24, 1976

BERNARD J. LAKRITZ as Director of the Bureau of Maintenance and Operation of the Division of School Buildings of the Board of Education of the City of New York; WILLIAM GLEESON as Civil Engineer in the Office of Maintenance and Operation of the Division of School Buildings of the Board of Education of the City of New York; HUGH J. McLAREN, Jr. as Executive Director of the Division of School Buildings of the Board of Education of the City of New York; JOSEPH A. KRATONI as Executive Director of the Division of Business and Administration of the Board of Education of the City of New York; IRVING ANKER as Chancellor of the Board of Education of the City of New York; THE BOARD OF EDUCATION OF THE CITY OF NEW YORK; JOHN T. CARROLL as Director of Construction of the City of New York; HARRISON J. GOLDIN as Comptroller of the City of New York; LOUIS J. LEFKOWITZ as Attorney-General of the State of New York; LOUIS L. LEVINE as Industrial Commissioner of the State of New York; and HUGH G. CAREY as Govenor of the State of New York, Defendants C.D.R. ENTERPRISES, LTD., et al., Plaintiffs, v. THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, Defendant. ULYSEUS C. PAINTING & G.C. CORP., et al., Plaintiffs, v. BERNARD J. LAKRITZ as Director of the Bureau of Maintenance and Operation of the Division of School Buildings of the Board of Education of the City of New York, et al., Defendants

The opinion of the court was delivered by: GURFEIN

GURFEIN, Circuit Judge:

These two actions involve challenges to the constitutionality of Section 222 of the New York Labor Law, which provides that in the construction of public works, preference in employment must be given to citizens of the State of New York who have resided in New York for at least twelve months.

 Until August 9, 1975, § 222 provided that in the construction of public works by the state or a public entity, preference in employment was to be given to citizens of the State of New York who have been residents for at least six months, and that persons other than citizens of the State of New York may be employed when such citizens are not available. *fn1"

 Section 222 was amended by Chapter 848 of the Laws of 1975, effective August 9, 1975. The amended statute provides that preference in employment must be given to citizens of the State of New York who have been residents of the state for at least twelve consecutive months. It further provides that whenever the unemployment rate in a statistical metropolitan sampling area (SMSA) in New York State is determined by the federal Labor Board Bureau of Labor Statistics to be six per cent or more for a period of three consecutive months, preference in that SMSA shall be given first to the qualified citizens of the state who have been residents of such SMSA for twelve consecutive months, the preference to continue until the unemployment rate for such SMSA shall be below six per cent for three consecutive months. It also provides that persons other than citizens of the State of New York or residents of SMSA may be employed when such citizens or residents are not available. *fn2"

 In the first case, plaintiff C.D.R. Enterprises, Ltd. ("C.D.R.") is a painting contractor, the primary source of whose business is painting contracts awarded to it by New York governmental agencies. Plaintiff Felix T. Gloro is the president of C.D.R., and plaintiff Charles D'Aleo is its secretary. Plaintiff Daniel Olivo is a legal resident alien, who has resided in New York County for over a year. He is employed by C.D.R. as a painter, and alleges that he wishes to do work on New York governmental contracts, but has not been assigned any such work by C.D.R. because of its concern over the possible application of § 222.

 The parties have stipulated that C.D.R. was awarded an $85,000 contract by defendant Board of Education of the City of New York ("Board") to paint Public School No. 61, located in the Bronx. This contract provided that the contractor must strictly comply with all applicable provisions of the New York Labor Law, and that the Board may declare the contractor to be in default if it has violated any provision of the contract.

 In April 1975, C.D.R. hired Laudalino Rosabal ("Rosabal"), a registered resident alien, as a painter, and assigned him to paint at Public School No. 61, where he worked for several weeks. Thereafter, C.D.R. was given written notice by the defendant to appear before its Board of Review on a charge of default of contract. When C.D.R. appeared, the Board of Review submitted papers which indicated that Rosabal was an alien. The Board further stated that Rosabal's employment was in violation of § 222. Plaintiffs allege that the Board intends to make a determination that C.D.R. committed a default of contract by employing Rosabal, and that the Board intends to cancel C.D.R.'s contract and to disqualify C.D.R. and its principals from all future bidding on contracts with the Board, by reason of this default.

 In the second case, the plaintiffs, Ulyseus C. Painting & G.C. Corp. ("Ulyseus"), Laconia Painting Corp., Stratos Contracting Corp., Astoria Painting Co., Inc. and Hellas Contracting Corp., are painting contractors whose principal source of business is contracts to paint school buildings for the Board. It has been stipulated that plaintiff Ulyseus assigned Dimitrios Papadimitiriou, Andreas Andreoulakis, Dimitrios Firinlos, Alex Kapayiandes and Timotheos Vlachos, who are permanent resident aliens lawfully admitted to the United States, to work on contracts it had with the Board. All of these aliens have resided in New York County for over a year, except for Vlachos, who resides in Nassau County, which is outside the New York City Area SMSA. *fn3" The other plaintiffs in this action also employ aliens to do painting for the Board.

 Plaintiffs allege that defendant John T. Carroll, Director of Construction of the City of New York, on June 23, 1975, sent a memorandum to all construction agencies directing that § 222 of the New York Labor Law be strictly enforced since the employment of aliens constitutes an economic detriment to citizens of New York. They further allege that the defendant Bernard J. Lakritz, Director of the Bureau of Maintenance and Operation of the Division of School Buildings of the Board of Education of the City of New York, sent a letter to each of the plaintiffs on July 14, 1975, threatening that contractors who employ alien labor will have their contracts declared void and will not be eligible for award of future Board contracts. It is further alleged that on August 18, 1975, the defendant William Gleeson ("Gleeson"), a civil engineer employed in the Office of Maintenance and Operation of the Division of School Buildings of the Board of Education, told the attorney for the plaintiffs that he would cancel all contracts of employers who employed aliens, and that on the next day Gleeson appeared at a job site where one of the plaintiffs was engaged in performing a contract for the Board of Education and told its president to stop work because it was allegedly violating § 222.

 Plaintiffs in both actions contend that Section 222 of the Labor Law is unconstitutional in that it violates the equal protection and due process clauses of the Fourteenth Amendment. The plaintiffs in the second action also contend that § 222 interferes with a comprehensive scheme enacted by Congress in the exercise of its exclusive power over immigration, that it violates the Supremacy Clause, the right to travel, and the privileges and immunities clauses of Article IV and of the Fourteenth Amendment, and that it is unconstitutionally vague.

 Plaintiffs requested that a three-judge court be convened, that Section 222 of the New York Labor Law be declared unconstitutional, and that the defendants be enjoined from cancelling the plaintiffs' contracts and from taking any action to enforce the statute or any rules and regulations promulgated thereunder. Jurisdiction is invoked under 28 U.S.C. §§ 1331 and 1343.


 The lawfully admitted resident alien who is denied employment because a citizen is preferred is almost as much the object of discrimination as the resident alien who is denied the right to employment at all. He has been classified as a person who need not receive the equal protection of the laws because of his status. Yet a resident alien is surely a "person" within the meaning of the due process and equal protection clauses. Yick Wo v. Hopkins, 118 U.S. 356, 369, 30 L. Ed. 220, 6 S. Ct. 1064 (1886); Truax v. Raich, 239 U.S. 33, 39, 60 L. Ed. 131, 36 S. Ct. 7 (1915); Takahashi v. Fish & Game Commission, 334 U.S. 410, 420, 92 L. Ed. 1478, 68 S. Ct. 1138 (1948); Graham v. Richardson, 403 U.S. 365, 371, 29 L. Ed. 2d 534, 91 S. Ct. 1848 (1971); Sugarman v. Dougall, 413 U.S. 634, 641, 37 L. Ed. 2d 853, 93 S. Ct. 2842 (1973); In re Griffiths, 413 U.S. 717, 719-20, 37 L. Ed. 2d 910, 93 S. Ct. 2851 (1973). Since a lawfully admitted resident alien is a "person" within the protection of the Fourteenth Amendment, a statute which puts him in a class with less privileges than a citizen of the state requires close judicial scrutiny. Graham v. Richardson, supra, 403 U.S. at 371-72. As Mr. Justice Blackmun said in Graham, "[aliens] as a class are a prime example of a 'discrete and insular' minority (see United States v. Carolene Products Co., 304 U.S. 144, 152-153, n. 4, 82 L. Ed. 1234, 58 S. Ct. 778 (1938)) for whom such heightened judicial solicitude is appropriate." 403 U.S. at 372. *fn4" Since the classification is invidious on its face, "close judicial scrutiny" would require us to find a compelling justification for the statute. See In re Griffiths, supra, 413 U.S. at 721-22 (Powell, J.).

 The Supreme Court in recent years has rejected certain justifications for the different treatment of resident aliens. The earlier cases, see Heim v. McCall, 239 U.S. 175, 60 L. Ed. 206, 36 S. Ct. 78 (1915); Crane v. New York, 239 U.S. 195, 60 L. Ed. 218, 36 S. Ct. 85 (1915), rested on two constitutional doctrines that were closely related. The first was that a substantial constitutional difference existed between a right and a privilege. The second was that a special public interest could support a discriminatory classification. The interrelation of the two concepts is illustrated by Judge Cardozo's reasoning in People v. Crane, 214 N.Y. 154, 108 N.E. 427 (1915). There, relying on the doctrine that special public interest permitted the exclusion of aliens from public works by a state in order to give preference to its citizens, he acknowledged that the foundation of the public interest doctrine was that "[whatever] is a privilege, rather than a right, may be made dependent on citizenship." 214 N.Y. at 164, 108 N.E. at 430.

 But as Mr. Justice Blackmun pointed out in Graham v. Richardson, supra, 403 U.S. at 374, the Supreme Court "has rejected the concept that constitutional rights turn upon whether a government benefit is characterized as a 'right' or as a 'privilege'" (citing cases beginning with Sherbert v. Verner, 374 U.S. 398, 404, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963), and including Shapiro v. Thompson, 394 U.S. 618, 627 n.6, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969)).

 In Graham, which involved the right to welfare assistance, the Court held that even though getting enough food to live could be considered a privilege, public assistance could, nevertheless, not be denied a resident alien. The next question is obviously whether his right to work is not as much protected as his right to eat. In Sugarman v. Dougall, supra, the Court held in an eight-to-one decision (Mr. Justice Rehnquist dissenting) that New York could not constitutionally prevent resident aliens from working in the competitive class of the civil service of the state.

 In Sugarman, the state at least had the argument that the civil servant participates directly in the formulation and execution of government policy, an argument that does not apply to an alien, employed by a private contractor, who paints walls. Closely scrutinizing the statute, the Court in Sugarman rejected that argument. But cf. Town of Milton v. Civil Service Commission, 365 Mass. 368, 312 N.E.2d 188 (Mass. 1974) (durational residency requirement for police officers upheld because of necessity that policemen become familiar with the community).

 The Court then turned to the state's argument that "a State constitutionally may confine public employment to citizens." 413 U.S. at 643 (emphasis added). It decided that the "special public interest" doctrine was no more applicable to justify denial of the right to work in public employment than it had been to deny welfare assistance in Graham v. Richardson, supra.

 Mr. Justice Blackmun said in language that is controlling here:


"We perceive no basis for holding the special-public-interest doctrine inapplicable in Graham and yet applicable and controlling here. A resident alien may reside lawfully in New York for a long period of time. He must pay taxes. And he is subject to service in this country's Armed Forces. . . . The doctrine, rooted as it is in the concepts of privilege and of the desirability of confining the use of public resources, has no applicability in this case. To the extent that Crane, Heim and Clarke intimate otherwise, they were weakened by the decisions in Takahashi and Graham, and are not to be considered as controlling here." 413 U.S. at 645.

 "Here" means in cases involving public employment unless the particular requirement of a specified job supports a compelling interest. See, e.g., Town of Milton v. Civil Service Commission, supra.

 The Constitution means what the Supreme Court says it means at a given time. The inferior federal courts must follow, in good conscience, the doctrines expounded by the Court. Constitutional law depends not on precise verbiage but on the evolution of doctrine to fit the times. It is not the function of the inferior federal courts to declare new doctrines or to find new meaning in the Constitution unless the controversy compels it. At the same time it is not the function of the federal courts to rely on older precedents based on articulated premises which have since been rejected in later decisions. See Healy v. Edwards, 363 F. Supp. 1110, 1117 (E.D. La. 1973) (three-judge court), vacated and remanded to consider possible mootness, 421 U.S. 772, 95 S. Ct. 2410, 44 L. Ed. 2d 571 (1975). Crane and Heim are not simply moribund; we believe they are dead. Otherwise the results in Graham and Dougall could not have been reached.

 The issue before us is not whether the New York statute can survive constitutional attack based on the Crane-Heim approach but whether the later cases of Graham, Dougall and In re Griffiths can properly be distinguished.

 The determination of whether there is a constitutional distinction between a "preference" and an "exclusion" cannot be based on the superseded doctrine of Crane. The state has a duty to all its lawful residents, resident alien or citizen. It must try to see to it that they do not starve, that they have equal access to state public employment, as well as membership in the Bar, and that they have equal access to private employment. Truax v. Raich, supra. Its duty to reduce unemployment is as much a duty to the alien as to the citizen for the very reasons stated by Mr. Justice Blackmun and Mr. Justice Powell. See State v. Wylie, 516 P.2d 142, 149 (Alaska 1973). *fn5" Discrimination against a class of "persons" (resident aliens) who are house painters has even less justification to support it than discrimination against the same class (resident aliens) for managerial positions in the civil service.

 Once the class is "suspect" its separate classification invites as close judicial scrutiny as would racial or religious discrimination. One could scarcely contend that a state might grant a "preference" in public employment to whites over blacks or Protestants over Catholics, or perhaps even to men over women, because of the problem of unemployment.

 Nor can the contention be sustained that because others than resident aliens, namely, citizens with less than twelve months residence, are also not preferred for employment, the statute is saved. It is probably true that most statutes which discriminate against aliens discriminate against them exclusively. But the addition of another wrong can hardly make a right. Shapiro v. Thompson, supra, determined that a twelve-month durational residency requirement for receipt of welfare benefits infringed the constitutionally protected right to travel, and while we need make no determination on the matter here, there is no reason to suppose that New York has a right to impede the employment of a New Jersey citizen who has recently moved to New York. *fn6" See York v. State, 53 Hawaii 557, 498 P.2d 644 (1972); State v. Wylie, supra (preference in public hiring based on residence held unconstitutional).

 The cases upholding veterans' preference for appointments to civil service jobs are distinguishable. There is a compelling public interest to "compensate [veterans] in some measure for the disruption of a way of life . . . and to express gratitude for such [military] service." Russell v. Hodges, 470 F.2d 212, 218 (2 Cir. 1972) (Friendly, J.). There is no basis comparable to military service to support a preference in employment for a citizen against a resident alien.

 We follow the principle recognized by the three-judge court in Dougall v. Sugarman, 339 F. Supp. 906, 909 (S.D.N.Y. 1971), where Judge Tenney boldly took the position:


"Taken together, Graham and Takahashi sufficiently weaken the value of Crane and Heim as precedents for upholding state laws denying aliens government employment, and, therefore, those cases can be viewed as implicitly overruled and no longer law." *fn7"

 We think his prophetic judgment was sustained by the Supreme Court in their affirmance.


 The Court held in Graham v. Richardson, supra, 403 U.S. at 376-80, that the discriminatory classification by the states of lawfully resident aliens with regard to welfare violates the Supremacy Clause, U.S. Const., art. VI, cl. 2, since immigration and regulation of aliens is vested exclusively in the federal government. As the Court said in Takahashi v. Fish & Game Commission, supra, 334 U.S. at 419, "[the states] can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states." The Court in Graham emphasized that "aliens lawfully within this country have a right to enter and abide in any State in the Union 'on an equality of legal privileges with all citizens under non-discriminatory laws.' Takahashi, 334 U.S. at 420." 403 U.S. at 378. *fn8" See also Truax v. Raich, supra, 239 U.S. at 42. And the Court recently, in upholding a California statute barring employment of aliens not entitled to lawful residence in the United States against a claim that it violated the Supremacy Clause, noted that "[of] course, state regulation not congressionally sanctioned that discriminates against aliens lawfully admitted to the country is impermissible if it imposes additional burdens not contemplated by Congress." DeCanas v. Bica, 424 U.S. 351 n.6, 96 S. Ct. 933, 47 L. Ed. 43, 44 U.S.L.W. 4235, 4237 (1976) (emphasis added). We agree with Judge Tenney's reasoning in Dougall v. Sugarman, supra, 339 F. Supp. at 910-11, where he relied on the Supremacy Clause as well as the equal protection clause of the Fourteenth Amendment to strike down a statute which discriminated against permanent resident aliens in civil service employment. See also Purdy & Fitzpatrick v. State, 71 Cal. 2d 566, 456 P.2d 645, 649-53, 79 Cal. Rptr. 77, 81-85 (1969) (rejecting the argument that conditions of unemployment in the state validated discrimination against lawfully admitted aliens).

 We can see no valid distinction between the arguments so ably presented by the Assistant Attorney General in this case and the arguments she made before the Supreme Court in Sugarman v. Dougall, supra.

 The defendant public officers and the Board of Education will be enjoined from cancelling contracts with the plaintiffs and will be permanently enjoined from enforcing Section 222 of the New York Labor Law and the regulations promulgated thereunder insofar as they grant a preference in employment to citizens over aliens who are lawfully admitted residents.




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