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February 11, 1986


The opinion of the court was delivered by: MCLAUGHLIN


McLAUGHLIN, District Judge

The attached Report and Recommendation of United States Magistrate A. Simon Chrein is hereby adopted as the Opinion of this Court.

 I have carefully considered the objections filed by plaintiffs. Their main argument appears to be that the grant of summary judgment to defendants will deprive plaintiffs of their opportunity to prove that the New York State Office of Court Administration intentionally provided misleading data to the New York State Legislature, which subsequently enacted a statute that harmed a claimed property interest of plaintiffs. However, they have advanced no theory under which this allegation, even if true, would render the statute constitutionally infirm.

 Plaintiffs posit, in essence, a constitutional right to review for accuracy the information upon which a legislature bases a decision, but they have referred the Court to no case in which a constitutional violation has been made out on such a theory. As Magistrate Chrein points out in his thorough Report and Recommendation, members of the general public have no procedural due process to a hearing before a legislative body makes a decision; they must make their views known through the political process.

 In order to establish a substantive due process or equal protection violation, plaintiffs would have to show that the legislature acted in an irrational or arbitrary manner. The legislative history reveals, however, that that body carefully considered the problem and fully detailed its reasons for enacting the statute. Thus, even if the legislature based its decision in part on information that could be shown to be inaccurate, its action could not be regarded as capricious, and a constitutional violation could not be established. Accordingly, defendants are entitled to judgment as a matter of law.



 This is an action under 42 U.S.C. § 1983, and this court has jurisdiction to hear this case under 28 U.S.C. § 1343. This action alleges that the plaintiffs, as permanent civil servants, had a property right to promotions within the state's civil service system that was violated by the defendants when they granted provisional employees permanent status without following the state's civil service law in violation of the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution. The plaintiffs seek injunctive relief, compensatory damages, declaratory relief under 28 U.S.C. §§ 2201-2202, and attorneys' fees under 42 U.S.C. § 1988.

 This action was referred to the undersigned to hear and report on the defendants' motion for judgment on the pleadings. Fed. R. Civ. P. 12(c). For the following reasons, I respectfully recommend that as a matter of law, the defendants should be granted summary judgment. Fed. R. Civ. P. 56.


 Effective April 1, 1977, the State of New York unified its court system and provided that all nonjudicial employees of the courts would be employed by the State rather than by each local political subdivision. See N.Y. Jud. Law § 39, sub. 6 (McKinney 1983). Because a new classification structure for these employees was not adopted until 1979, civil service examinations for positions in the new unified court system were not given for a considerable period of time. See 1980 N.Y. Laws Chap.s 845 § 1,846 § 1; Defendants' Memorandum of Law in Support of Their Motion for Judgment on the Pleadings at 2-3, 82 CV 4102 (JMcL), Feb. 13, 1985 [hereinafter cited as "Memorandum in Support"]. By 1980, seven judicial districts had significant numbers of provisional employees in competitive positions. They are as follows: Percent of Provisional Judicial District Employees Third 59% Fourth 53% Fifth 48% Sixth 60% Seventh 52% Eighth 48% Ninth 64% Tenth 40%

 1980 N.Y. Laws Chap.s 845,846 attached as Appendices I and II.

 As a result, the state legislature enacted Chapters 845 and 846 of the Laws of the State of New York, 1980 that granted permanent status to those provisional employees who served satisfactorily and continuously for at least one year. In so doing, the legislature declared that there was a severe danger that a disruption of court services would occur if these positions had to be filled by competitive examination, that "a great many" of the provisional employees had served in their positions for more than five to ten years, that "the vast majority of present incumbents by their training and experience in their positions [had] acquired invaluable expert knowledge and skill in the performance of duties in the administration of the court systems," and that the foregoing makes it "impracticable to fill such positions by competitive examination[s]." 1980 N.Y. Laws Chap.s 845,846.

 Accordingly, the legislature granted the incumbent provisional employees permanent status in their positions without having a probationary period or competitive examination.

 This action was brought in 1982 by nine employees of the unified court system and three employees of other state agencies, all of whom were permanent civil servants prior to the granting of permanent status to the provisional court employees. Complaint at PP 3-6. I note that although the plaintiff Joan Erwin is named in the caption of the complaint, there are no allegations concerning her in the body of the complaint. See Complaint at PP 3, 4. I recommend that the court deem the complaint amended, however, to include her in paragraph 3 of the complaint since it is clear from the briefs submitted and from Exhibit A (biographies of the plaintiffs) to the complaint that she was intended to be so included.

 Each plaintiff alleges that they had taken and passed the prescribed civil service examinations for the positions occupied by the provisional employees and that they would have been promoted into those positions had the legislature not conferred permanent status on those incumbents. Complaint at P 14.

 The plaintiffs claim that the promotions to which they were entitled constituted a property right protected by the Fourteenth Amendment. They claim that they were deprived of this property right without due process of law since they were not given notice and an opportunity to be heard before this legislation was passed, Complaint at P 25, and in violation of the equal protection clause since two classes of persons were created and treated unequally by the defendants arbitrarily, capriciously, and for no rational reason. Complaint at PP 28, 29.

 The plaintiffs here seek a declaratory judgment that Chapters 845 and 846 are unconstitutional, to permanently enjoin the defendants from enforcing the statute, to award back pay and appointment to their appropriate promotions, and attorneys' fees. Complaint at P VII.

 The plaintiffs had previously brought this action in 1981 but in light of the related state action pending at the time, the court dismissed the suit; Judge George C. Pratt abstained, under the Pullman doctrine, since the state court's decision might have avoided the need to determine the federal constitutional issues. Affidavit of Paula E. Kennedy at § 6, 82 CV 4102 (JMcL), Feb. 7, 1983. The complaint was dismissed "without prejudice to review if the statutes [were] held to be valid under state constitutional standards." Id. (quoting from the court's opinion).

 The plaintiffs renewed their suit in the instant action once the state's trial court issued its opinion but the court stayed the proceedings pending the completion of appellate review. Transcript of May 18, 1983 at 17-18, McLaughlin, J., 82 CV 4102 (JMcL). When the state's highest court affirmed that the statute was valid under the state's constitution this action was allowed to continue, and the defendants moved for judgment on the pleadings. Fed. R. Civ. P. 12(c).

 In the state action, which involved different plaintiffs than the case at bar, the court found that Chapters 845 and 846 did not violate Article V, section 6 of the New York State Constitution. Attached as Appendix III. This provision provides, inter alia, that civil service appointments and promotions "shall be made according to merit and fitness to be determined, as far as practicable, by examination which, as far as practicable, shall be competitive . . . . " Id. The state court agreed with the legislature's conclusion that it was impracticable to fill so many positions by competitive examination. Birkeland v. State of New York, 64 ...

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