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January 5, 1977

Dilip V. KULKARNI, Plaintiff,
Ewald NYQUIST and Raymond Salman, Defendants. Aase JACKSON, Plaintiff, v. Ewald NYQUIST and Raymond Salman, Defendants.

The opinion of the court was delivered by: FOLEY

JAMES T. FOLEY, Chief Judge.


 In these actions there was submitted for decision, without oral argument, a motion in behalf of plaintiffs and cross-motion by defendants for summary judgment. Additionally, the plaintiffs seek a determination to maintain the actions as class actions and have filed a motion for such certification under Fed.R.Civ.Pro. 23(c)(1). This motion was also submitted without oral argument along with their motion for summary judgment. The two individual actions above, involving common questions of law and fact, were consolidated pursuant to Fed.R.Civ.Pro. 42(a) by stipulation of counsel.

 In my judgment, it is clear, summary judgment is appropriate in this case because the facts are largely undisputed and there remains only questions of law. The respective complaints of plaintiff Kulkarni, a civil engineer, and plaintiff Jackson, a physical therapist, are totally parallel in the sense that both allege that they are aliens and by virtue of this status were denied a license to practice their respective professions in New York State. Pursuant to the New York Education Law, Sections 7206.1(6) and 6534(6)* respectively, a requirement for professional licensure for each plaintiff is that they have United States citizenship, "or file a declaration of intention to become a citizen...." This requirement, the plaintiffs contend violates their rights, inter alia, under the equal protection clause of the Fourteenth Amendment.

 There is no dispute here that plaintiffs were denied a professional license for any reason other than failure to fulfill this citizenship requirement. Their qualifications in terms of education, experience, age, character, and capability to perform the duties of each profession are not in question in this litigation, nor are the statutory requirements mandating such requirements.

 The jurisdiction alleged is pursuant to 28 U.S.C. §§ 1331 and 1343 and the action is brought as authorized by 42 U.S.C. § 1983. Plaintiffs request, in their complaints, as well as by the motions under Fed.R.Civ.Pro. 23, designation of the consolidated actions as a single class action allowing plaintiffs to represent: "a class of lawful permanent resident aliens who have been, are being, or will be denied licenses to engage in the practice of essentially private professions solely because they are not United States citizens and [or] have not filed a declaration of intention to become a United States citizen." See respective Complaints at paragraphs 23.

 On the basis of this broadly categorized class, the plaintiffs seek the relief of a declaration of unconstitutionality and preliminary and permanent injunction against this citizenship requirement not only with respect to New York Education Law, Section 7206.1(6), which applies to plaintiff Kulkarni as an engineer, and Section 6534(6), which applies to plaintiff Jackson, as a physical therapist, but also with respect to identical requirements of citizenship for professional licensure under Sections: 6524(6) (physician); 6554(6) (chiropractor); 6604(6) (dentist); 6805(6) (pharmacist); 7324.1(6) (landscape architect); 7504.1(6) (certified shorthand reporter); and 7804(6) (masseur or masseuse).

 In my judgment, two questions of law are presented which may appropriately be determined pursuant to the motion by both sides for summary judgment, the answers to both being clear under settled case law. There is no dispute that the citizenship requirements have denied plaintiffs professional licenses, causing them injury. Thus, the first issue is whether the citizenship requirement of N.Y. Education Law, Sections 7206.1(6) and 6534(6), violates the Equal Protection clause of the Fourteenth Amendment. The Answer, I believe, has to be in the affirmative.

 Second, in light of the obvious unconstitutionality of these sections, may the plaintiffs represent by means of a class action other persons in other professions who are aliens and may be otherwise qualified for licenses under the remaining statutes cited supra and thereby also have the similar citizenship requirement declared in the other statutes unconstitutional? In my judgment plaintiffs cannot so represent other professions, and the motion for class action must be denied not only for a lack of standing on the part of these plaintiffs with respect to licensure of members of other professions, but also for failure to make any showing whatever of the numerosity in the other classes which they seek to represent.

 With respect to the First question, the law has been settled for quite a long time that a state may not restrict an alien, lawfully residing in the United States, from pursuing a livelihood because he is not a citizen or does not intend to become one. See Truax v. Raich, 239 U.S. 33, 42, 36 S. Ct. 7, 60 L. Ed. 131 (1915); Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 419, 68 S. Ct. 1138, 92 L. Ed. 1478 (1948).

 During its last term, the Supreme Court again addressed the question of the rights of aliens who lawfully reside in the United States to pursue their livelihood in government employment, Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S. Ct. 1895, 48 L. Ed. 2d 495 (1976) as well as in the private sector where a professional license by statute is a necessary prerequisite. Ex. Bd. of Eng., Arch. and Sur. v. Flores DeOtero, 426 U.S. 572, 96 S. Ct. 2264, 49 L. Ed. 2d 65 (1976).

 Indeed, the latter case could hardly be more on point factually and legally with plaintiff Kulkarni's challenge, since both involve refusal by government to license the private practice of civil engineering on the basis of alienage. The Supreme Court referred to these laws as the:

 kind of discrimination that the States have had the greatest difficulty in persuading this Court that their interests are substantial and constitutionally permissible, and that the discrimination is necessary for the safeguarding of those interests. Ex. Bd. of Eng., Arch. and Sur. v. Fiores DeOtero supra, 96 S. Ct. at 2282. The Court concluded that "the statutory restriction on the ability of aliens to engage in the otherwise lawful private practice of civil engineering is plainly unconstitutional." Id., at 2281. This reasoning applies with equal force to the citizenship or alienage requirement of N.Y. Education Law § 7206.1(6).

 These two decisions by the Supreme court to my mind would mandate the same ruling of unconstitutionality under plaintiff Jackson's challenge to N.Y. Education Law § 6534(6). In addition, the recent and well reasoned decision of Judge Weinfeld in Surmeli v. State of New York, 412 F. Supp. 394 (S.D.N.Y.1976) holding as unconstitutional the citizenship requirement for physicians under an identically worded section pursuant to N.Y. Education Law § 6524(6) would apply a fortiori to the instant case. Certainly, if the state has no compelling reason to require physicians to be citizens or mandate that they ...

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