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ULYSEUS C. PAINTING & G.C. CORP. v. LAKRITZ

March 24, 1976

ULYSEUS C. PAINTING & G.C. CORP.; LACONIA PAINTING CORP.; STPATOS CONTRACTING CORP.; ASTORIA PAINTING CO., INC.; HELLAS CONTRACTING CORP.; and ULYSEUS & SHALOM JOINT VENTURE, 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; 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.

 I

 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 ...


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