The opinion of the court was delivered by: WERKER
Plaintiff Edmund Foley, a citizen of the Republic of Ireland, is living in the State of New York as an alien, lawfully admitted for permanent residence in the United States. Plaintiff applied for an appointment as a New York state trooper and was refused permission to take the competitive examination because he is not a United States citizen. Plaintiff brought this suit as a class action for a declaration that Section 215(3) of the Executive Law of the State of New York insofar as it excludes aliens from employment as New York state troopers is a violation of the equal protection clause of the fourteenth amendment of the Constitution of the United States and for an injunction against its enforcement. The purported class is identified as the plaintiff and all other alien residents of the State of New York who have applied or will apply for the position of state trooper, and who have been or will be refused permission to take the competitive examination and who have been or will be denied consideration for the position on the grounds of alienage.
The defendants are William G. Connelie, individually and in his capacity as Superintendent of the New York State Police, and S. A. Smith, individually and in his capacity as Director of Personnel of the New York State Police.
The parties have entered into several stipulations. First they have agreed that the action should proceed as a class action and that Edmund Foley is the representative of that class. Second they agreed that a three-judge court should be convened. The parties also agreed that the plaintiff be permitted to take the competitive examination scheduled for September 20, 1975. On September 19, 1975 the Honorable Milton Pollack entered an order which incorporated the parties' agreement as to the examination with the additional proviso that the test results not be implemented and no rights attach therefrom unless and until the court so directs. Judge Pollack also entered an order on December 30, 1975 authorizing the action to proceed as a class action with plaintiff as its representative and requiring the convening of a three-judge court. Upon the hearing of this matter on April 15, 1976, the parties agreed to submit the matter to the court on the record as it had been constituted on that date
for a final resolution on the merits, and both parties waived their right to offer any additional evidence. For the reasons set out below we uphold the constitutionality of § 215(3).
New York Executive Law § 215(3) (McKinney 1972) reads in pertinent part:
"No person shall be appointed to the New York State police force unless he shall be a citizen of the United States."
The statute clearly excludes aliens from employment as state troopers,
and the State admittedly adheres strictly to its mandate. If an alien wishes to become a New York state trooper he must give up his foreign citizenship and become an American citizen.
As early as 1886, the Supreme Court held that aliens are "persons" within the meaning of the Fourteenth Amendment and are thus protected by the Equal Protection Clause against discriminatory state action. Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886). That holding has been affirmed many times since and is no longer open to dispute. In re Griffiths, 413 U.S. 717, 93 S. Ct. 2851, 37 L. Ed. 2d 910 (1973); Sugarman v. Dougall, 413 U.S. 634, 93 S. Ct. 2842, 37 L. Ed. 2d 853 (1973); Graham v. Richardson, 403 U.S. 365, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971); Takahashi v. Fish & Game Commission, 334 U.S. 410, 68 S. Ct. 1138, 92 L. Ed. 1478 (1948).
The Supreme Court has on four recent occasions had an opportunity to examine employment prohibitions against aliens, and consideration of the statute under attack here must begin with a discussion of those four cases.
In Sugarman v. Dougall, 413 U.S. 634, 93 S. Ct. 2842, 37 L. Ed. 2d 853 (1973), the Supreme Court invalidated section 53(1) of the New York Civil Service Law which made any person who was not a citizen of the United States ineligible for appointment to the competitive branch of the New York civil service. Relying on Graham v. Richardson, 403 U.S. 365, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971), the Supreme Court classified aliens as a "discrete and insular minority" and thus held that classifications based on alienage are subject to strict scrutiny. The Court stated that there were narrow limits on a state's power to apply its laws exclusively to alien inhabitants. See Takahashi v. Fish & Game Commission, 334 U.S. 410, 68 S. Ct. 1138, 92 L. Ed. 1478 (1948). The Court, in evaluating the statute, looked to the substantiality of the state's interest in enforcing it and to the narrowness of the limits within which the discrimination was confined. The Court was clear in defining alienage as a suspect classification and in requiring a compelling state interest to justify any discrimination based upon it. However, to apply this case properly to the case at bar, it is equally important to distinguish the factual circumstances that the Court confronted in Sugarman and those which are before us today and to recognize the limits which the Supreme Court explicitly put on its Sugarman holding.
The statutory scheme within which section 53(1) is included created a New York civil service of four classes.
The first was an exempt class of higher executive, municipal and judicial offices and positions for which an examination might be found impracticable.
The positions in this class include, Director of the State Lottery, Executive Assistant to the Superintendent of Banks, and the Coordinator for Non-Public School Services.
The second was a noncompetitive class which included positions, not otherwise classified, for which a competitive examination would not be practicable but for which appointment was made by non-competitive examination.
Included in this class were positions such as chauffeurs, janitors, locksmiths, and the tree pruners in all state departments and agencies, as well as various specific positions in many departments.
The third class consisted of unskilled laborers whose positions could not be examined for competitively,
such as farmhands, kitchen helpers, parking lot attendants, and school monitors.
The citizenship requirement was inapplicable to all of the positions in each of these branches. The fourth branch, qualification to which was determined by the results of a competitive examination, was the only branch which excluded non-citizens. The members of this branch were employed in a wide variety of jobs including typists, file clerks, and sanitationmen.
In commenting on the statute, the court pointed out that it was not "a legislative scheme that bars some or all aliens from closely defined and limited classes of public employment on a uniform and consistent basis." Sugarman v. Dougall, 413 U.S. at 639, 93 S. Ct. at 2846 (emphasis added). To the contrary, the Supreme Court found that the state's prohibition of the employment of aliens applied to many positions with respect to which the state's proffered justification had little, if any, relationship. At the same time, the Court went on, the prohibition was not applicable at all to positions that would seem naturally to fall within the state's asserted purpose. We take this to mean, contrary to plaintiff's position, that the state, upon a proper showing of a compelling interest, could by means of a precisely drawn statute, exclude all aliens from certain employment.
The majority opinion stated explicitly:
"We recognize a State's interest in establishing its own form of government, and in limiting participation in that government to those who are within 'the basic conception of a political community.' Dunn v. Blumstein, 405 U.S. 330, 344 [92 S. Ct. 995, 1004, 31 L. Ed. 2d 274] (1972). We recognize, too, the State's broad power to define its political community." Sugarman v. Dougall, supra, at 642-43, 93 S. Ct. at 2848.
The Court's opinion contains two other significant statements which show the limit of its reach:
"We do not hold that, on the basis of an individualized determination, an alien may not be refused . . . public employment, even on the basis of noncitizenship, if the refusal to hire . . . rests on legitimate state interests that relate to qualifications for a particular position . . . . We hold only that a flat ban on the employment of aliens in positions that have little, if any, ...