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April 7, 1977

ABRAHAM D. BEAME, Mayor of New York City, et al., Defendants. THE HOUSE OF LITHOGRAPHY, INC. et al., Plaintiffs, vs. ABRAHAM D. BEAME, Mayor of New York City, et al., Defendants.

The opinion of the court was delivered by: MACMAHON

MacMAHON, District Judge.

Plaintiffs, non-union printers, allege that defendants' practice of restricting bidding upon, and of awarding printing contracts to, only those printing establishments whose employees are represented by labor organizations and who can therefore exhibit the union label deprives them of an opportunity to bid on these contracts, in violation of their rights under the due process and equal protection clauses of the Fourteenth Amendment, and is contrary to New York state law, the New York City Charter, and public policy. They seek a declaratory judgment and an injunction prohibiting that practice.

 A non-jury trial was held before us on December 6, 1976 to determine these issues, and the following constitutes our findings of fact and conclusions of law.

 Plaintiffs challenge the union label requirement on both federal constitutional and state law grounds, and since decision upon state grounds might avoid needless constitutional adjudication, we must consider, in light of the doctrine announced in Railroad Comm'n of Texas v. Pullman Co., *fn1" whether abstention is appropriate.

 Abstention is an equitable doctrine and has its origins in principles of federalism and comity. *fn2" It serves to avoid needless friction with, and demonstrates proper respect for, state law and state courts. It is not a rule of necessity, *fn3" and the decision to abstain is vested in the sound discretion of the district court. *fn4" The doctrine is applicable only in special circumstances *fn5" and only when the issue of state law is uncertain, *fn6" as it is here. We do not think, however, that abstention is warranted here because neither party has even raised, much less requested abstention, and the case, after considerable delay, has already been tried. *fn7" Furthermore, there is no vital state or city interest, nor elaborate regulatory program involved, and consequently the interference with the city's administration of its own affairs resulting from a determination that the union label requirement is invalid would be minimal. *fn8" Finally, the constitutional question, whether the union label policy violates the Fourteenth Amendment, is of very narrow compass. *fn9"

 Under these circumstances, we think that the injustice of subjecting plaintiffs to added expense and delay outweighs the advantages which may accrue from adherence to the traditional policy of avoiding constitutional adjudication by abstention. *fn10"

 The question of whether the union label requirement violates state law or the New York City Charter is sufficiently unsettled, *fn11" especially as compared to federal constitutional precedent in this area, *fn12" to make a decision as to its validity on that basis inappropriate. We, therefore, proceed to consider the validity of the union label requirement under the due process and equal protection clauses.

 There is no dispute that the Department of Purchase, *fn13" which awards all the printing contracts for New York City, the Board of Education *fn14" and the New York City Health and Hospital Corporation, *fn15" have adopted a policy requiring that all public printing work must be done in a union plant located in New York City and bear the union label, save for letterheads, noteheads or unless otherwise excepted. Defendants claim that this policy is justified because it rationally furthers legitimate municipal interests, even though it deprives plaintiffs of an equal opportunity to bid upon and to be awarded printing contracts.

 We must determine, at the outset, whether the due process and equal protection guarantees of the Fourteenth Amendment are applicable to the award of public printing contracts in light of Atkin v. Kansas *fn16" and its progeny. The Supreme Court, in Atkin, upheld a Kansas statute which regulated the pay and limited the hours of employees of the state, its subdivisions and public contractors. The Court stated that, since the work was of a public character, "it is for the State to prescribe the conditions under which it will permit work of that kind to be done. Its action touching such a matter is final so long as it does not, by its regulations, infringe the personal rights of others...." *fn17"

 Relying in part on Atkin, the court held, in American Yearbook Co. v. Askew, *fn18" that a Florida statute requiring all public printing to be done in the state was not violative of the equal protection clause because the award of such contracts was a proprietary, or a business, rather than a governmental function, and that, when a municipality or state acted in such capacity, it was exempt from the limitations of the equal protection clause. *fn19"

 Since plaintiffs do not challenge the requirement here that public printing be done in a plant located in New York City, the specific holding in American Yearbook is inapplicable. Furthermore, that holding could be sustained on the principle that the equal protection clause is confined to persons within the jurisdiction of the state which enacted the challenged statute. *fn20" In any event, the Supreme Court has ruled that the due process *fn21" and equal protection *fn22" guarantees are applicable to public employment. While the coverage afforded by these two guarantees often overlaps, the appropriate analysis under each is different. *fn23"

 The Supreme Court has rejected the right-privilege distinction employed in due process analysis by Atkin, as well as a number of earlier cases. *fn24" Therefore, it no longer suffices to say that, although a government may not deprive someone of a right arbitrarily, it may do so in the case of a privilege. *fn25" However, the plaintiff must still demonstrate the deprivation of some liberty or property interest protected by the Fourteenth Amendment in order to invoke the due process guarantee. *fn26"

 Plaintiffs here have not addressed themselves to the issue of whether their opportunity to bid on public contracts is one of liberty or property within the meaning of the due process clause, but we need not decide this issue since we have determined that the union label requirement violates the equal protection clause.

 The equal protection clause is a more explicit safeguard than the due process clause, *fn27" and its coverage is not confined to deprivations of liberty or property. Although the Supreme Court held that the equal protection clause was not violated in Atkin, it clearly indicated that the clause is applicable to public employment regulations *fn28" and, as recently as Massachusetts Board of Retirement v. Murgia, *fn29" ...

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