
    Ernest Winkler et al., Appellants, v Joseph E. Spinnato, Individually and as Fire Commissioner of the City of New York, et al., Respondents, and State of New York, Intervenor-Respondent.
    Argued September 7, 1988;
    decided October 20, 1988
    
      POINTS OF COUNSEL
    
      Joseph O. Giaimo for appellants.
    I. There is no rational basis for the amnesty clause which violates the Equal Protection Clause. (Maresca v Cuomo, 64 NY2d 242; Bunyan v Camacho, 770 F2d 773; Shapiro v Thompson, 394 US 681; Zobel v Williams, 457 US 55; United Bldg. & Constr. Trades v Mayor, 465 US 208.) II. The court below should not have created a rational basis for the amnesty clause. (United States v Miller, 376 F2d 72, 386 US 911; Kruger v Page Mgt. Co., 105 Misc 2d 14; Young v Town of Huntington, 88 Misc 2d 632; Rankin v Shanker, 23 NY2d 111; Taray v Moldovanyi, 478 F Supp 1120; Babigan v Wachtler, 133 Misc 2d 111; Hezekiah v Williams, 106 Misc 2d 407.) III. The amnesty clause violates the Equal Protection and Due Process Clauses because it is invidiously discriminatory. (Ciechon v City of Chicago, 686 F2d 511; People v Illardo, 97 Misc 2d 294; Matter of Abrams v Bronstein, 33 NY2d 488; Piper v Supreme Ct., 723 F2d 110, 470 US 274; Phelan v City of Buffalo, 54 AD2d 262.) IV. Appellants have a fundamental right to their civil service jobs. (Phelan v City of Buffalo, 54 AD2d 262; United Bldg. & Constr. Trades v Mayor, 465 US 208; C.D.R. Enters. v Board of Educ., 412 F Supp 1164, affd sub nom. Lefkowitz v C. D. R. Enters., 429 US 1031; Graham v Richardson, 403 US 365; Sugarman v Dougall, 413 US 634; W.C.M. Window Co. v Barnardi, 730 F2d 486; Baldwin v Montana Fish & Game Commn., 436 US 371; Helminski v Supreme Ct., 603 F Supp 401; White v Thomas, 660 F2d 680.)
    
      Peter L. Zimroth, Corporation Counsel (Ronnie Dane and Pamela Seider Dolgow of counsel), for respondents.
    Section 3 (19) and section 30 (5-a) of the Public Officers Law do not deny to plaintiffs the equal protection of the laws, the privileges and immunities of citizens or due process of law. (McDonald v Board of Election, 394 US 802; Lighthouse Shores v Town of Islip, 41 NY2d 7; McGowan v Maryland, 366 US 420; Massachusetts Bd. of Retirement v Murgia, 427 US 307; United Bldg. & Constr. Trades v Mayor, 465 US 208; C.D.R. Enters. v Board of Educ., 412 F Supp 1164, affd sub nom. Lefkowitz v C. D. R. Enters., 429 US 1031; Vance v Bradley, 440 US 93; People v Drayton, 39 NY2d 580; Maresca v Cuomo, 64 NY2d 242, 474 US 802; McGinnis v Royster, 410 US 263.)
    
      Robert Abrams, Attorney-General (Christopher Keith Hall, O. Peter Sherwood and Lawrence S. Kahn of counsel), for intervenor-respondent.
    I. Requiring firefighters not resident in this State to be residents of the State and locality is consistent with equal protection and the right to travel. (Zobel v Williams, 457 US 55; Personnel Adm’r of Mass. v Feeney, 442 US 256; Schweiker v Wilson, 450 US 221; McDonald v Board of Election, 394 US 802; Maresca v Cuomo, 64 NY2d 242, 474 US 802; Weinberger v Salfi, 422 US 749; Korematsu v United States, 323 US 214; San Antonio School Dist. v Rodriguez, 411 US 1; Massachusetts Bd. of Retirement v Murgia, 427 US 307; Attorney-General of N. Y. v Soto-Lopez, 476 US 898.) II. Requiring firefighters to be residents does not deny plaintiffs any of the privileges and immunities of citizenship. (Massachusetts Bd. of Retirement v Murgia, 427 US 307; Supreme Ct. v Piper, 470 US 274.) III. The amendments are consistent with due process. (Detroit Police Officers Assn. v City of Detroit, 405 US 950.)
   OPINION OF THE COURT

Per Curiam.

Relying on the Equal Protection Clauses of both the Federal and State Constitutions (US Const 14th Amend; NY Const, art I, §§ 6, 11), as well as the Privileges and Immunities Clause of the Federal Constitution (US Const, art IV, §2, cl [1]), plaintiffs challenge the constitutionality of Public Officers Law § 3 (19) and § 30 (5-a) (hereinafter the amendments). The amendments require a public officer residing outside New York State to move to one of the lawfully designated counties within one year from the effective date; public officers residing outside one of the designated counties, but within the State, may remain so domiciled but if they move, it must be to one of the designated counties (see, Public Officers Law § 3 [19]; § 30 [5-a]). Henceforth, all those accepting employment as public officers must conform to both State and local residency requirements. We hold that the State of New York may constitutionally draw a distinction between firefighters who have violated only local residency requirements and those who have violated both local and State residency requirements.

I.

Since 1829, New York has required public officers to be residents of the State (Rev Stat of NY, part I, ch 5, tit 6, § 1 [1829]). Public officers of local governments have also been required to be residents of the locality by which they are employed (Gen Laws of NY, ch 7, art I, § 3, L 1892, ch 681). After many years of not enforcing the statutory requirements, in 1986 the Fire Department passed orders (order No. 41, dated Apr. 2, 1986, and order No. 46, dated Apr. 11, 1986) to enforce the residency requirements. After these orders, the amendments were passed as a form of amnesty.

The plaintiffs in this action are firefighters employed by the Fire Department of the City of New York who do not live within the State of New York. They challenge the amendments on the ground that the amendments contain a distinction between two classes of residency law violators based solely upon the criterion of State residence. Plaintiffs challenge the constitutionality only of the amendments, not the residency requirement per se (see, McCarthy v Philadelphia Civ. Serv. Commn., 424 US 645; Detroit Police Officers Assn. v City of Detroit, 385 Mich 519, 190 NW2d 97, appeal dismissed for lack of substantial Federal question 405 US 950; Woods v City of New York, 129 Misc 2d 851, mod on other grounds 119 AD2d 469, affd 69 NY2d 771). The Appellate Division upheld the amendments concluding that the distinction between the two groups is "founded upon a valid exercise of the State’s authority to require its own employees, or the employees of any of its political subdivisions, to reside within this State” (134 AD2d 66, 68). We agree.

II.

Plaintiffs’ argument based on the Privileges and Immunities Clause is without merit. Plaintiffs have no "fundamental right”, within the purview of the Privileges and Immunities Clause, to be employed as New York City firefighters (see, United Bldg. & Constr. Trades v Mayor, 465 US 208, 219; Massachusetts Bd. of Retirement v Murgia, 427 US 307; McCarthy v Philadelphia Civ. Serv. Commn., 424 US 645, supra), since public employment is not a privilege which " 'bear[s] upon the vitality of the Nation as a single entity’ ” (Matter of Gordon, 48 NY2d 266, 271). Therefore, the Privileges and Immunities Clause affords them no protection here (Baldwin v Montana Fish & Game Commn., 436 US 371).

The challenge under the Equal Protection Clause of both the Federal and State Constitutions must also fail. Since plaintiffs are not a suspect class (Strauder v West Virginia, 100 US 303; Loving v Virginia, 388 US 1; Alevy v Downstate Med. Center, 39 NY2d 326, 334), and there is "no fundamental right to government employment for purposes of the Equal Protection Clause” (United Bldg. & Constr. Trades v Mayor, 465 US, at 219, supra), the amendments must be upheld so long as they are "based upon some conceivable and legitimate State interest” (Maresca v Cuomo, 64 NY2d 242, 250; see also, Woods v City of New York, supra).

The State’s long-standing interest in requiring its public officers to be State residents is understandable. It is without doubt that "[p]ublic employees who reside in New York are more likely, as a class, to spend their money in New York” (134 AD2d 66, 75), thereby returning an economic benefit to the society from whose public fisc the officers’ salaries are paid. In addition, State residents contribute more taxes to the State and its municipalities than do nonresidents who merely work within the State. Moreover, State residency requirements are premised on the belief that out-of-State residents do not have the same loyalty and commitment to the State as instate residents. Like all public employees, those receiving amnesty must be State residents. The State has, however, subordinated its local interest to a limited degree, to accommodate those in violation. In order to comply with the State residency requirement, out-of-State residents must move; inState residents, obviously, need not. Because out-of-State residents are already required to move, there is little reason to excuse them from moving into one of the lawfully designated counties. Because, on the other hand, in-State residents need not otherwise move, they are not being required to do so for the sole purpose of moving into a lawful county. But if they move from their current in-State residences, however, they, like out-of-State residents, must do so in compliance with the local residency law. This limited accommodation to those who already satisfy the State residency requirement and, therefore, do not have to move for that purpose, is rational and does not violate equal protection.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Alexander, J.

(dissenting). Because I believe that in requiring only out-of-State firefighters to move into a lawful county the State is unconstitutionally conferring a benefit on its established residents, I respectfully dissent.

New York requires public officers of local governments to be residents of both the State and the locality in which they are employed. (Public Officers Law § 3 [1]; § 30 [1] [d].) New York City firefighters, however, were permitted to live in one of six counties contiguous to New York City or in one of the counties within the City itself (together the lawful counties). (Public Officers Law § 3 [9]; § 30 [5].) When, in 1986, after many years of nonenforcement, the New York City Fire Department issued administrative orders enforcing these residency requirements, the Legislature amended Public Officers Law §§ 3 and 30 by adding § 3 (19) and § 30 (5-a) (the amendments). While requiring out-of-State firefighters to move into a lawful county, the amendments exempt the State resident firefighters from this local residency requirement. Specifically, the amendments provide that State resident firefighters currently in violation of the local residency requirement need not comply with that requirement until such time as they may choose to move from their present residences. Out-of-State firefighters, however, are not so exempted; instead they are required to move into a lawful county within one year of the effective date of the amendments. Although the amendments treat all firefighters equally in that their initial move must be to a lawful county, plainly it is only the out-of-State firefighters who must comply with the local residency requirement.

These amendments confer a benefit on State resident firefighters not conferred on out-of-State firefighters and can survive the instant equal protection challenge only if the resident/nonresident classification is rationally related to a legitimate State interest. (McDonald v Board of Election, 394 US 802, 809; Maresca v Cuomo, 64 NY2d 242, 250.) Notwithstanding the position advanced by the majority, I am unable to agree that these amendments rationally serve a legitimate State interest. It is true that a State has a legitimate interest in requiring its public officers to be State residents; State residency requirements benefit the State financially and, in the case of firefighters, encourage public employees skilled in emergency rescue services to spend more time within the State. This State interest, however, is advanced by requiring firefighters to live in the State; it is not rationally served by requiring that the firefighters live in any particular counties within the State. Similarly, while the lawful counties have a legitimate interest in requiring that New York City firefighters reside there, that interest is not rationally served by imposing the local residency requirement on only some New York City firefighters. Thus, the challenged amendments would be constitutional if they required the out-of-State firefighters to move into the State or if they required all New York City firefighters to move into a lawful county (McCarthy v Philadelphia Civ. Serv. Commn., 424 US 645, 646). Neither the State nor the local interest, however, is rationally served by requiring only the out-of-State firefighters to move into the lawful counties.

The majority concludes that since the State has chosen to impose both State and local residency requirements, it may "subordinate!] its local interest” and require only the out-of-State firefighters, who violated both residency requirements, to move into a lawful county. The justification for this differential treatment is the fact that the out-of-State firefighters are already required to move to satisfy the State residency requirement. This fact, however, is irrelevant to the the choice of the particular county into which they must move — a choice that is of obvious significance to all the firefighters who violated the local residency requirement for, among other reasons, the opportunity to obtain more affordable housing.

The majority’s reasoning, then, begs the question posed in this equal protection challenge — namely, whether the amendments, which benefit the State resident firefighters by exempting them from the local residency requirement while imposing that requirement on the out-of-State firefighters, are rationally related to a legitimate State interest. A State’s interest in conferring a benefit on established State residents is not a legitimate State interest for purposes of the equal protection analysis in this case. The Supreme Court has held that a State cannot constitutionally confer a benefit upon some State residents and not others solely on the basis of established State residency at a past point in time (Zobel v Williams, 457 US 55, 63-64; id., at 68 [Brennan, J., concurring]; see also, Shapiro v Thompson, 394 US 618, 632-633). Although Zobel and Shapiro involved distinctions between old and new State residents, rather than a distinction between residents and nonresidents, the reasoning of those cases is equally applicable here: "[Discrimination on the basis of residence must be supported by a valid state interest independent of the discrimination itself.” (Zobel v Williams, 457 US, at 70, supra [Brennan, J., concurring].) Therefore, New York State may not constitutionally benefit only its State resident firefighters solely because they were State residents on the date that the amendments became effective.

Accordingly, I would reverse the Appellate Division, declare that Public Officers Law § 3 (19) and § 30 (5-a) violate the Equal Protection Clauses of the Federal and State Constitutions, and enjoin the defendants from dismissing plaintiffs on the basis of their noncompliance with those provisions.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion; Judge Alexander dissents and votes to reverse in a separate opinion.

Order affirmed, with costs.  