The opinion of the court was delivered by: PRATT
Plaintiff, seeking declaratory, injunctive, and monetary relief, commenced this action pursuant to 42 U.S.C. § 1983 alleging that Ordinance 27 of the Town of East Hampton's Code of Ordinances is unconstitutional. Plaintiff now moves for summary judgment pursuant to FRCP 56 on the ground that the ordinance violates the equal protection clause of the fourteenth amendment by requiring one year of residency in the town as a condition to obtaining a shellfish license. Plaintiff argues that the ordinance is unconstitutional because it impacts upon his fundamental right to travel in violation of the equal protection clause of the fourteenth amendment.
The relevant facts are not in dispute. Plaintiff, a 45 year old disabled veteran whose sole means of support was his disability pension, moved to East Hampton from Rhode Island in November, 1977. Although plaintiff had no shellfishing experience prior to moving to East Hampton, he had completed a two year course in commercial fishing at the University of Rhode Island and had applied for a loan from the Small Business Administration to purchase a fishing boat. His application to the Town of East Hampton for a license to shellfish was denied because he did not meet the ordinance's one year residency requirement. Plaintiff then commenced this action.
The license was to take shellfish from underwater lands that are held by town trustees. These trustees, elected biannually, are an entity separate from the town board. They derive their rights, powers and title to the lands from the King of England by virtue of the Dongan Patent of 1686 and hold the land in trust for the people of East Hampton. The relationship between the trustees and the town board is defined to some extent by the New York Town Law which empowers the town board to regulate the taking of shellfish but conditions its consideration of any regulatory ordinance on the prior written application of the trustees. N.Y. Town Law § 130(18)(b).
Two sections of Ordinance 27 are relevant to the issues of this action: § 3 prohibits shellfishing in East Hampton waters without a license and restricts the issuance of a license to residents; § 1 defines a resident as someone who "has, during the period of not less than 12 months immediately preceding the date of his application for a license (to shellfish), either maintained or leased or owned a permanent abode within the Town of East Hampton". Plaintiff asserts that the one year residence requirement for a shellfish license unconstitutionally discriminates between newly arrived residents and long time residents.
Defendants argue (1) that the court should abstain from deciding the case; (2) that plaintiff does not state a cause of action under § 1983 against the trustees because the trustees were not acting under color of state law; (3) that the proper standard of equal protection review is the traditional rational basis test; and (4) that the ordinance is constitutional under any standard of equal protection review because it is justified by compelling state interests.
At the outset, defendants request the court to abstain from deciding this case until the New York state courts give a definitive answer to the question of whether the East Hampton shellfish ordinance, a local law, is invalid as inconsistent with § 13-0311(1) of the New York Environmental Conservation Law, a general law. Defendants argue that by waiting until the state law issues are definitively resolved by the New York courts, the court may avoid reaching the constitutional issues presented in this action. See Railroad Commission of Texas v. Pullman Company, 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941). Because the law of New York is settled on the preemption issue, however, the court need not abstain.
Local laws which are inconsistent with general state law are frequently invalid. New York State Constitution Article IX, § 2(c); New York Municipal Home Rule Law § 10(1)(i); People v. Cook, 34 N.Y.2d 100, 356 N.Y.S.2d 259, 312 N.E.2d 452 (1974). New York Municipal Home Rule Law § 10(1)(ii)(d)(3), however, gives towns the power to amend or supersede "any provision of the town law relating to the property, affairs of government of the town * * * notwithstanding that such provision is a general law, unless the legislature expressly shall have prohibited adoption of such a local law."
Here, the East Hampton ordinance seeks to regulate the taking of shellfish from lands held by town trustees. Accordingly, the ordinance, as one which "relate(s) to the property, affairs or government of the town", may validly amend or supersede the New York Town Law on the same subject unless the legislature has expressly withheld such authority from the towns. New York Municipal Home Rule Law § 10(1)(ii)(d)(3). Far from prohibiting towns from acting with respect to their shellfish, the New York state legislature has clearly and specifically delegated regulatory power over the taking of shellfish to towns which own underwater lands within their borders. New York State Town Law § 130(18)(e); Sloup v. Town of Islip, 78 Misc.2d 366, 356 N.Y.S.2d 742, 745-46 (Sup.Ct. Suffolk Co. 1975). See also, People v. Miller, 260 N.Y. 585, 184 N.E. 103 (1932); Seacoast Products, Inc. v. Glen Cove, 50 A.D.2d 579, 374 N.Y.S.2d 702, 704 (2nd Dept. 1975). Thus, the adoption of the shellfishing ordinance by East Hampton was a valid exercise of town authority and the ordinance is not preempted by § 13-0311(1) of the New York Environmental Conservation Law.
Since the law of New York is settled on the question of preemption, Pullman abstention is inappropriate, and the court turns to a consideration of the merits of plaintiff's constitutional claims.
In order for plaintiff to state a cause of action under § 1983 the challenged conduct must have been "under color of state law". 42 U.S.C. § 1983. Defendants argue that the trustees' acts cannot constitute state action under § 1983 because the lands are privately owned. Although legal title to the town's underwater lands is held by the trustees, the lands are held by the trustees for the benefit of the people of the town, the trustees are elected by the voters of the town, and regulations for the trusteed lands are established through formal legislation by the town board enacted only on request of the trustees.
It is well settled that § 1983, which was enacted to enforce the fourteenth amendment, does not regulate purely private conduct. Nahmad, Civil Rights & Civil Liberties Litigation § 2.04 at 38. The state action requirement of § 1983, however, does not necessarily mean that defendants must be state or local officials. Even assuming that these elected trustees are not public officials, nevertheless for "state action" "(i)t is enough that (they be) willful participant(s) in joint activity with the State or its agents." Adickes v. S. H. Kress & Co., 398 U.S. 144, 152, 90 S. Ct. 1598, 1606, 26 L. Ed. 2d 142 (1970), quoting U.S. v. Price, 383 U.S. 787, 794, 86 S. Ct. 1152, 1156, 16 L. Ed. 2d 267 (1966). In short, when otherwise private persons act jointly with state officials all persons engaged in the challenged conduct act under color of state law for the purposes of 1983. Adickes v. S. H. Kress & Co., supra. See also Nahmad, Civil Rights & Civil Liberties Litigation § 2.04 at 39.
Here, it is clear that the town trustees were not engaged in purely private conduct. Defendants acknowledge the joint nature of the activities in question and "the cooperation (between the town board and the trustees) required for enforcement and funding" of shellfishing regulatory schemes in that "(t)he ability of the Town Board to pass a shellfish ordinance is conditioned upon the trustees first making application for same." Defendants' memorandum at 11. Accordingly, the court determines that in applying for and obtaining enactment of Ordinance 27 the town trustees and the town board were acting jointly and together acted "under color of state law" for purposes of § 1983.
III. The Standard of Equal Protection Review
There is no dispute that the effect of the statutory waiting period in Ordinance 27 is to create two classes of residents indistinguishable from each other, except that one group has resided in the town a year or more, and the second group has resided there for less than one year. Solely on the basis of this difference, the town determines to whom it will issue shellfish licenses.
Plaintiff having been disadvantaged by the classifications established by the ordinance, the court must determine if those classifications are based on a legitimately defensible difference. To do so, the court must first identify the proper standard of equal protection review to be applied. Memorial Hospital v. Maricopa County, 415 U.S. 250, 253, 94 S. Ct. 1076, 1079, 39 L. Ed. ...