Warren E. Burger: We’ll hear arguments next in 71-1222, Sugarman against Mc Dougall. Mr. Hirshowitz, you may proceed.
Samuel A. Hirshowitz: Mr. Chief Justice, may it please the Court. This case involves the question of validity of a Section of the New York State Civil Service Law the -- which the -- a three-judge District Court held invalid. The particular language that the Court dealt with is found on page 91 of the record in a footnote, “Except as herein otherwise provided, no person shall be eligible for appointment for any position in the competitive class unless he is a citizen of the United States.” There is a second subdivision which doesn’t appear in the record but which is discussed in the opinion which provides that where the appointing authority cannot find any person to fill a position, he may apply to the Local Civil Service Commission or to the State Civil Service Commission and if they are satisfied that there is no one available for that position they may certify this appointment which last only for the -- to the end of the year and cannot be continued unless this appointee has taken steps to become a citizen by filing a declaration of intention. The particular appellees here were appointed by the City of New York as provisional appointees. That means they never took any examination. As provisionals they were entitled to hold their position at the discretion of the appointing authority for a period of which is generally regarded as nine months provided that there was no eligible list, and in this case the answer of the City of New York shows that there was an eligible list established but in this case, the appellees would terminate it not because of the existence of the eligible list but because of the existence of this statute the City of New York found that they were not citizens. The Civil Service System in New York as this Court knows is based on the merit system and the competitive class which is established after examination and qualifications. One who is appointed after examination obtains rights of tenure, seniority and promotional preferences together with pension benefits. The appellees have been residents according to their affidavits have been residents in the City of New York for varying years. Some six years, some ten years and none of them have taken even the first step to obtain citizenship. The first appellee, Mc Dougall for instance was a resident to the City of New York since 1964 and never took any steps to become a citizen. None of the appellees, because of a question of preemption which will be discussed, none of the appellees were ever certified by United States Secretary of Labor for the position he or she was filling. As a matter of fact, Mc Dougall was the only one that took an examination. And let me point out that prior to 1968, the statute which I read provided that nobody could take an examination for our position but that was altered and amended to provide that no one could be appointed. The difference being that one who is an alien could take the examination and the meantime take steps to become a citizen as the usual process that takes from six months to a year before the examinations are marked and a list established, and the list one established is usually good for varying period of three to five years. The District Court in this case sustained the appellee’s challenge on both Equal Protection and Supremacy Clause grounds relying principally on a case decided by this Court, Graham against Richardson which we are sure was misapplied. The Graham case has spawned a flock of litigation in various federal courts throughout the land. According to our computation, there are seven cases in various federal courts and various stages of litigation raising questions as to the validity of discrimination against aliens. Let me also point out that the Federal Government has a quibbling practice which is as a result of authority given to this Civil Service Commission to establish the conditions of employment and by Executive Order aliens have been barred from United States employment except the same way as New York does. Certification where there's no available employee. The -- in addition to that, Congress in the annual appropriation bills has specifically provided that no payment of compensation can be made to an employee if he is not a citizen of the United States. That is an employee on American soil. A copy of the federal provision, we have attached to our brief as exhibit 1. And in this Court here, the appellees have persisted in the claim at the right to travel of the aliens as being interfered with as if they ever posses such right which is important in part in this case and they have apparently, as we read their briefs, argued that the statute is overbroad which was not a contention what was made below. In the sense that the lower grade of employees should not be barred by this statutory provision but the higher grade employees may be barred. The first question that suggests itself is whether there is any equation of equal protection available to the appellees whether the court was right in considering equal protection at all. We suggest that his very precedent and principle required this Court to hold that the States have not been by divested of the power to limits its public employees as citizens. And that this power is not affected by Equal Protection Clause of the Constitution. This does not involved the consideration of the question of rights or privileges which is being blurred by the decisions of this Court by the question of any entitlement at all to consideration for employment, public employment. The question was on the consideration in the Crane against United States and in that case this Court held valid New York state statute which provided at that time that employment on perfect contracts could be limited to citizens. And the question that to state the Court in the discussion was a question not whether public employment could be limited to citizens but as to whether the public contractors were in effect the Government when engage in public contracts. The District Court relied to some extent on the Truax case which was decided by the same Court at the same time and in the same volume of the reports. In the Truax case, the Court struck down an Arizona statute that forbids the employment of aliens generally. At the same time, it was very careful to point out in its opinion that it did not -- that that case did not involved the appointment of citizens in public employment. In the Crane on the question of equal protection the Court concluded what the words -- there is added a view that a distinction between aliens and citizens violates the principles of classifications. We think this is also without foundation. And in the Truax case, Chief Justice Hughes said, that the challenge here is not limited to persons who are engaged in public work but that have passed from the employment in the entire field of the industry in all common occupations. The Crane case came from the New York Court of Appeals and Judge Cardozo who later said on this Court, distinguished the Truax situation and the Crane situation in this way. It must be evident that nothing in this opinion gives confidence to the view that the Government may deny to aliens the right to engaged in any private trade or calling on times of equality with citizens. It is true that in dealings between man and man, the alien and the citizen trade labor on equal terms. It is the denial of equal protection of laws when the Government in its capacity as lawmaker regulating not its own property but private business bars the alien from the right to trade and labor. It is therefore our contention that the Crane case in its present under the facts in this case is authoritative, this position by this Court for the view that the Equal Protection Clause does not apply.
Thurgood Marshall: Do you mean that Equal Protection Clause did not apply to state employees?
Samuel A. Hirshowitz: It does not apply to aliens seeking to obtain public employment.
Thurgood Marshall: But you don’t take the position of the State is at from under the Fourteenth Amendment when it hires its own employees?
Samuel A. Hirshowitz: The Equal Protection Clause of course is applicable to the State. But in the -- on the question of whether aliens entitled to public employment, it’s our first position that the Equal Protection Clause does not apply because of the Tenth Amendment Constitution. When the Constitution was adopted from historic times, the States were obtained and continued with the right to run their own Government except in so far as expressly interfered with by the United States Constitution and there's nothing in United States Constitution and it would appear to me to do a violence to the Government of the States or either by judicial decree or congressional act to interfere with the Government to the States and to provide that aliens must be employed by the States. Now, this is not a novel in Oregon against Mitchell, Chief Justice Black in discussing the 18-year-old vote case. It said in part, “it cannot be successfully argued that the Fourteenth Amendment was intended to strip the States of their power, carefully preserved in the original Constitution, to govern themselves. The Fourteenth Amendment was surely not intended to make every discrimination between groups of people a constitutional denial of equal protection.” And in the Maryland against Wirtz, justice -- Mr. Justice Douglas said in connection with the Bill which -- a law which as this Court will remember dealt with minimum wages of certain classes of state employees. Mr. Justice Douglas said in his dissent that it would snuff out state’s sovereignty. “If all this can be done, then the National Government could devour the essentials of state sovereignty, though, that sovereignty is attested by the Tenth Amendment.” And then he went on to quote Mr. Justice Stone in the case New York against United States where Chief Justice Stone said, “The National Government may not interfere unduly with the State’s performance of its sovereign, sovereign functions of Government. It may not impair this State’s function of Government.” Now, below the three-judge-court in its opinion disregard the fact that the -- this country and its various subdivisions is not only a Government of the people, it’s a Government by the people. And by the people means, the citizens of this land and this includes -- this excludes the right to compel aliens to be employed by the state or its subdivisions.
William H. Rehnquist: Mr. Hirshowitz, are you going to come to the case of Graham against Richardson which I guess the three-judge District Court below relied on?
Samuel A. Hirshowitz: Graham against the Richardson did not involve any practice in New York. New York as some paper show has paid welfare to aliens from the beginning of the welfare system. As we read the Graham case, this Court was dealing with indigents and that case there the State involved was just trying to establish a crude economic preference. Citizen was being provided when the necessities of life while the alien was not. Although, the alien’s status bears absolutely no relationship to the alien’s needs as a recipient or to his contributions as a taxpayer. In contrast to welfare, Section 53, the statute on the discussion has concerned solely with maintaining the national character and the integrity and efficiency of the career civil service. Now, even if this Court holds that equal protection was properly made an issue below, its opposition that the right of the State to run its government by its own citizens by itself find issues, sufficient basis whatever tests of equal protection is applicable. All nations and states conduct their affairs through the agency of public employees and thus, practically every nation and state requires its agents including the career civil service be citizens. As this Court recognize in such cases as Afroyim against Rusk, citizens not aliens are members of state.
Harry A. Blackmun: Mr. Hirshowitz, what do you -- how do you define the term that you’ve employed career civil service?
Samuel A. Hirshowitz: There are three grades of employment under New York States Civil Service and I think it is generally the rule. You have the competitive class where appointments are made after examination, and then there is the exempt class or exempt category where appointments had been – may be made by the appointing law officer without regard to examinations, and then there's the noncompetitive class, where as a position of unusual character which -- from which examination cannot provide the suitable employee.
Harry A. Blackmun: But on New York City, is his trash collected by the City?
Samuel A. Hirshowitz: It is for residents, yes.
Harry A. Blackmun: And the -- is the statute one that would require than the municipally employed trash collector to be a citizen of the United States?
Samuel A. Hirshowitz: Every employee of the city must be a citizen unless as I said coming within the exceptions of certification and incidentally they’ve only been in the City of the New York, they’ve been only 27 certifications of waiver of this citizenship requirement. But it does make any difference, I think in the Mitchell case there. This Court said it was difficult, almost impossible to draw a distinction between various grades of employees. The clerk that’s in the village office and takes your tax receipt, as far as the public is concerned, he or she is Government and were entitled to insist that such employees be citizen of United States. In addition to which a career employee who starts at the bottom level under the merit system in New York is entitled to promotion and the same person who starts at the bottom level as a garage collection -- a garbage collector would be entitled to take the examination and be appointed to the senior position up to the top there's no way of stopping that. It’s been suggested by our opposition as I said towards the beginning, that maybe the bottom garbage collector as far as he is concerned, the law is bad with that promotion opportunities should be precluded for aliens, for that would be in violation of the whole civil service system.
Harry A. Blackmun: Do you read Judge Lumbard’s concurrence as in effect a characterization of the Court’s opinion generally. When he says, nothing in our decision should be construed to mean that a state may not lawfully maintain a citizenship requirement for those positions or citizenship bear some rational relationship to the specific demands of the particular position. Do you feel the other judges concur in that statement?
Samuel A. Hirshowitz: I don’t know -- I don’t think they did the -- Lumbard -- Judge Lumbard was troubled by the decision. As I’ve indicated there, he was troubled by the fact that there are many positions in the higher level in the civil service system that he himself conceded should be kept only for citizens. In his final rationalized that but that would mean if you follow Judge Lumbard, you would have to need the individual case justify the preclusion of alien. I want to say I'm worried about the preemption. The second ground upon which the District Court relied for its decision was a question of preemption and that was discussed in the Graham case also. But let me point out that none of the appellees were ever certified by the United States Secretary of Labor for these particular positions, so that the claim that a certification by United States Secretary of Labor somehow interfered with the validity of the statute has no basis in fact. The Secretary of Labor certifies all immigrants only upon entrance pursuant to the statute. These certifications do not purport to cover public employment at all and I've read the minutes of the congressional hearings both for reference to the 1952 law and the revision of 1965, and nowhere is there any indication that Congress intended by the law to cover public employment. We think that the statute is entitled to the presumption of constitutionality that was accorded to the congressional act in the Oregon against Mitchell case. And we submit that the civil service employee who’s an alien would present special problems to the State and to the Federal Government. In Rogers against Bellei which was recently decided by this Court, this Court referred to the problems that arise from dual nationalities there. And judge -- and referred to a case by Mr. Justice Douglas in which he said, “One who has a dual nationality would be subject to claims from both nations, claims which at times may be competing or conflicting that circumstances may compel one who has the dual nationality to Truax which would not be compatible with the obligations of American citizenship.”
Thurgood Marshall: That would apply to the trash collector?
Samuel A. Hirshowitz: It does, Your Honor. It applies to --
Thurgood Marshall: He have dual citizenship problem?
Samuel A. Hirshowitz: Not so long ago in Lerner against Casey. This Court held that --
Thurgood Marshall: What problem would he have? What problem would the trash collector have?
Samuel A. Hirshowitz: The trash collector could create as much problems as the conductor in Lerner against Casey where this Court held that a subway conductor was obligated to fill out a loyalty of the -- where do you stop when --
Thurgood Marshall: That Truax against Raich, that’s where you stop.
Samuel A. Hirshowitz: Now, Truax against Raich merely held as I have pointed out that applies to persons in common occupations and as I indicated --
Thurgood Marshall: Do you say that State of New York could not pass a law, prohibiting the employment of aliens by anybody? They couldn’t pass that law?
Samuel A. Hirshowitz: No, sir.
Thurgood Marshall: But they could pass a law that said, “we will not employ aliens in our state government.”
Samuel A. Hirshowitz: Yes, Your Honor.
Thurgood Marshall: And you don’t see any problem?
Samuel A. Hirshowitz: No, problem at all because it is the -- that is the way this country once said this country could not be run by aliens and addition to what's the -- and Mr. Justice Marshall --
Thurgood Marshall: Do you think this country could exist if every trash collector in New York was alien? I think this country could exist?
Samuel A. Hirshowitz: Any person --
Thurgood Marshall: That’s just my personal view.
Samuel A. Hirshowitz: Yes. In any case, you can pick at random situations. But the fact is that all employees should be citizens and it doesn’t present any part to them from employment. Now, these people here who had been in the New York City at least six to ten years made no effort to become citizens here. It’s no problem to them whether its trash collectors or whether in this case Mc Dougall was a senior, had a senior job officer -- in the poverty program. Let me also study Mr. Justice Marshall that the State of New York in the City of New York is now engaged in trying to reevaluate the merit system in order to provide a better means of testing the entrance of a million in a half Puerto Ricans, about two million black citizens in the competitive class system.
Thurgood Marshall: Thank you for eventually getting round to it.
Warren E. Burger: Thank you Mr. Hirshowitz. Mr. Evens.
Lester Evens : Mr. Chief Justice and may it please the Court. I really frankly don’t know where to begin. I was extremely troubled by the briefs submitted by the appellants and frankly very troubled by the argument today. There are references that are made apparently made by the appellees that state that we would not object if certain jobs are eliminated and others were included. I don’t recall ever making any such statement and if I had I certainly would take this opportunity to clarify the point that we certainly consider this the most ranked form of classification in violation of Equal Protection Clause. And that it would -- will apply across the board regardless of the positions involved. When I attempted to read the brief of the appellants and frankly I had a great deal of difficulty.
Potter Stewart: Do I understand by your opening statement that you therefore disagree with the --
Lester Evens : The remarks on --
Potter Stewart: -- the concurring opinion in this case?
Lester Evens : Yes, I do. I do it quite clearly. I think that without any characterization about Judge Lumbard’s decision. I do think that his opening paragraph essentially recited or restated the law as it should be and was in concurrence incurrence with the opinion that was written and then seemed to have diluted or vitiated the impact of the original decision without any basic justification. If I may point out as Mr. Hirshowitz has indicated. New York State Civil Service statute is broken down to two major categories, the classified and the unclassified. Included in the unclassified are elective officers from the Governor to the legislators. It also includes a number of other very essential important positions such as heads of departments and appointments made directly by the Governor, either with or without the consent of the State Senate. Any discussions about positions of policy or having an essential impact upon the running of the Government of the State certainly would seem to fall primarily within this class. And yet, this very class makes no reference to citizenship whatsoever.
Potter Stewart: That is elective? Elective --
Lester Evens : Well, what I'm saying how -- it includes elective plus heads of departments and appointments by the Governor directly, executive appointments and it includes appointments by the legislature for various jobs.
Potter Stewart: So far as the law of New York goes to the Governor New York could be as a --
Lester Evens : Must be a citizen.
Potter Stewart: He could be a citizen of Japan, could he?
Lester Evens : No. He’s required to be a citizen under the Constitution. I'm referring specifically to the Constitution of the State of New York requires all those in the elective office to be citizens of the United States.
Potter Stewart: Everybody in elective office?
Lester Evens : In elective office.
Potter Stewart: At every level?
Lester Evens : At every level.
Potter Stewart: To be a citizen of what? Of the United States?
Lester Evens : Of the United States.
Potter Stewart: And of the State of New York.
Lester Evens : And of the State of New York, residency of the State of New York in varying degrees depending upon the position involved. For the Governor the requirement is the longest.
Potter Stewart: But none can be a resident alien?
Lester Evens : None can be a resident alien under the Constitution of the State of New York, however, under the unclassified designation within the civil service statute. There are number of other positions enunciated in that statute other than elective office. They enunciate heads of various departments. They enunciate appointments by the Governor directly either with or without the consent of the Senate to positions that the Governor would appoint to in running the Executive Branch of the Government. They refer to certain positions appointed by the legislature itself. Now, it would seem to me that if issues of policy and loyalty and of that nature would be involved, it would clearly be the people who would have these very responsible positions both with the Executive Branch of the State and the Legislative Branch and particularly heads of departments.
Byron R. White: Well, may --
Lester Evens : I'm sorry.
Byron R. White: May the State excludes the aliens from running for office in New York?
Lester Evens : It would seem to me quite clearly under the Constitution of the State of New York that you are required to be a citizen to run for office.
Byron R. White: Well, I know about that. I know that’s what the State Constitution and how about the validity of that provision under Equal Protection Clause?
Lester Evens : My personal attitude is that I have difficulty with that. That I think that the --
Byron R. White: How about the aliens voting?
Lester Evens : I think that aliens certainly should have the right to vote. Certainly --
Byron R. White: So, the aliens don’t have the right to vote?
Lester Evens : They don’t have the right to vote in New York State.
Byron R. White: And assume those provisions that are for voting and for running for office are valid under the Equal Protection Clause, would that make your case any tougher?
Lester Evens : No. I really do not think so because I think that again, to refer back to the brief of the appellants in this proceeding. I think there was a confusion concerning the elements necessary under the Equal Protection Clause. It is my understanding that it is -- they're essentially two basic sections to the Equal Protection Clause the traditional one for which there can be an application of a rational relationship. The other being any classification which might be based on race which would be an invidious classification would require very strict judicial review.
William H. Rehnquist: [Voice Overlap] even the language of the Fourteenth Amendment, Mr. Evens?
Lester Evens : No, I find it in the cases and I refer specifically in most recent case in Graham versus Richardson. And I would like to point out that I believe that the equal protection argument was raised in Lindsay versus Normet. And in that case, I believe Mr. Justice White had stated that a reasonable application of a summary kind of proceeding in which the parties were limited in terms of the counter-defenses they could raise was very rational and reasonable because the statute was intended to overcome consequences which were much dire. Yet, nevertheless there was an issue of due of process that could have been involved in that proceeding and sustained the statute in Oregon.
Byron R. White: Let’s assume that that the requirement that of course to be a citizen to vote is valid under the protection to vote.
Lester Evens : Yes.
Byron R. White: And the justification is that you do not want the political up rightist to be in control of aliens. Now, and the Board of -- or no one aliens to participate in governmental decision making. Now, is it such a long step to say that they also shouldn’t be able to work for the State? To participate in the administering of the state business?
Lester Evens : The initial position --
Byron R. White: He might even run and say that a fortiori they shouldn’t be entitled to?
Lester Evens : Except if I may just point out, we are here challenging Section 53 of the New York State Civil Service Statute. Section 53 is the merit section of the competitive section of the Civil Service Statute. As I try to point out earlier, there are various sections within the Civil Service Statute which involve in fact very important policy positions in which there are no restrictions concerning citizenship. And in fact the Governor could appoint aids and people who would assist them in making very important policy decisions of the state and it would have to be no regard. They need not to be in any regard as to the issues --
Warren E. Burger: That’s a matter of a choice by the State, is it not?
Lester Evens : Pardon?
Warren E. Burger: It’s a matter of choice by the State?
Lester Evens : Or by the Executive who has the certainly that prerogative to act --
Warren E. Burger: Which are not -- we’re talking about the compulsion of the Fourteenth Amendment?
Lester Evens : However, Mr. Chief Justice, I believe that that’s relevant to exactly the issue that’s involved here. The State is endeavoring by a statute to legislate the elimination of an entire class from public employment. With an apparatus where if there was a foundation or a basis for determining that certain individuals where not competent to hold jobs, perhaps an alien coming to this country holding in a publicly elected office. They certainly, the Civil Service Commission is more than competent to deal with this. This would not require the kind of legislative situation in an elective office.
Warren E. Burger: What about the federal statute which has been reproduced at page 40 of the -- of your friend’s brief? What do you have to say about the constitutionality of that statute?
Lester Evens : Is that the statute that was recently amended in 1970 or 1971?
Warren E. Burger: Its 1972 which would appear --
Lester Evens : 1972. I believe that that’s the statute that may have been involved ultimately in the matter of Jalil versus Hampton in which this Court denied a writ of certiorari. I think that it would equally apply in this -- to this statute as it would in the State.
Warren E. Burger: Do you think this -- the federal statute is unconstitutional?
Lester Evens : Yes, Your Honor I do.
Harry A. Blackmun: Mr. Evens, let me follow through with one thing more, I take it from your answer to Justice White that you were troubled by the provisions of a New York Constitution requiring that elective office holders be citizens? Troubled in the light of Fourteenth Amendment?
Lester Evens : Yes, Your Honor. I'm troubled in terms of the broad scope of the exclusion. To analogously recite the requirements of the Immigration Naturalization Law which sets forth very particular detail regarding political affiliations and character and so forth, I think that that is does not disturbed me as being violative of the Equal Protection Clause. But I do think that that with regard to just generally and broadly saying that in the entire class of people should not be permitted to hold office in and out of itself, at any particular context thus disturb me.
Harry A. Blackmun: Well, now in the Federal Constitution we have citizenship requirements --
Lester Evens : Yes.
Harry A. Blackmun: For the President and members of the Congress.
Lester Evens : Congress, yes.
Harry A. Blackmun: Both Senate and House.
Lester Evens : Yes.
Harry A. Blackmun: Are you equally troubled by those provisions in the light of the more the later enacted Fourteenth Amendment?
Lester Evens : Well, in that situation I would have to respond and I don’t mean to be evasive that I don’t see the mechanism or the device to do anything concerning that other than the method of repeal. I do think that this Court could review the Constitution of the State New York. I think that perhaps – well, essentially what I'm trying to say Mr. Justice Blackmun is that the traditional classical roles of citizenship are seem to be changing and perhaps changing for the better. And I do think that conceivably if such a matter could be approved by the citizenry of the United States, it might want to change. I don’t see the apparatus beyond repeal that could in anyway change the United States.
Warren E. Burger: Well, what's wrong with relying on the Fourteenth Amendment to repeal the provision of the President of United States must be a native born American citizen?
Lester Evens : Well, I have -- I must start --
Warren E. Burger: Before you start -- when you start down that road, suppose a citizen of Venezuela who came up here and like the country but wanted to keep his citizenship in Venezuela filed for the President of United States, and the issue might arise when he was trying to run in an State primary let us say. Now then on your theory, the Fourteenth Amendment could be read as having repealed?
Lester Evens : If I may. It is my position that I am endeavoring to take in this is that there are other qualifications can be imposed that a mere broad classification involving alienage raises very, very serious questions. I think that the brief of the appellants in and off itself their arguments seem to substantiate that this is essentially a discriminatory device. I would like to -- in response to what you are saying. I’d like to point out, Mr. Dougall’s name was mentioned that he had come here in 1964 and never made any effort to become a citizen of United States. Mr. Dougall came here from British Guiana. He came as an ex-patriot as essentially a political refugee. As long as the Government and British Guiana never changes, Mr. Dougall has no intentions whatsoever of returning to British Guiana. However, Mr. Dougall has made it very clear that if there is a change in Government that would make it possible for him to return, he would at that time return. Nevertheless, he has been and continues to be a viable resident of the State of New York, has always endeavored to work, has paid taxes, has done all of the other things and in fact has a family and children. And quite incidentally, his children have been born in the United States because he has been married since he was here.
Warren E. Burger: In other words, he wants to keep his options open?
Lester Evens : No. No, Your Honor. He has never said he wanted to keep his options open. He has clearly said I always want to return to British Guiana but I cannot return to the Government that there's now because it’s that very Government that has been so hostile to me that I have been forced to leave. I should point out that two of the other named plaintiffs in this proceeding are refugees from Cuba. They are incidentally very young and they came here at a very young age with their families. It is impossible for them to return to the very same Government that exists in Cuba that they runaway from. Now, incidentally one of them has applied for American citizenship. All three of the named women plaintiffs are all around the age of 21 or slightly older and one of them has definitely, one of the Cuban citizens has applied for citizenship, the other has not. But however, it is impossible for them to return at this time whether or not they would return if the Government would change, I don’t know. I do know in the case of Mr. Dougall that he definitely would return. It isn’t a question that these people are endeavoring to take advantage of both sides of the argument or to have their cake and eat it. It’s a question really they have very few options but certainly they should have the right and the prerogative to decide where they wish to be a citizen.
Warren E. Burger: On your theory, you’ve just told us I thought that they should be entitled to vote?
Lester Evens : Yes.
Warren E. Burger: And that they are entitled to run for public office?
Lester Evens : Yes.
Warren E. Burger: Isn’t that keeping options open?
Lester Evens : It may keep options open but I certainly doesn’t -- don’t -- do not think that it is necessary their intention to keep these options open. The brief seems to state that they are going to try and get the best of all possible worlds that aliens have some great advantage over citizens in the United States. Yet, the Court have repeatedly said the language in the Caroline case in which the Court has repeatedly said that they are disadvantaged group and require special consideration of the judiciary in reviewing classifications that are made against them.
Warren E. Burger: What about an alien who came here and then returned to his native land. Would you say he was entitled to vote by on your view by an absentee ballot?
Lester Evens : No. I would again say that this person --
Warren E. Burger: [Voice Overlap] doesn’t make him a non-resident alien on your theory?
Lester Evens : I -- there is a distinction between a resident and non-resident alien.
Warren E. Burger: On your theory?
Lester Evens : Yes.
Warren E. Burger: I thought there is in law but what's your theory of the difference?
Lester Evens : Our theory has been that the resident aliens involved the name plaintiffs and the class they represent in this proceeding at people who are participating as viable members of the State of New York had live their legally and lawfully, had designated New York as their residence. And that they should have the right and the entitlement to participate in all of the activities of that state including right to have -- do not have doors of employment close to them. Now, if Mr. Dougall --
Thurgood Marshall: Is there anything that you can think of any right that a citizen could possibly have that you wouldn’t urge that an alien would also have?
Lester Evens : It would be very difficult for me to answer that question. I can see --
Thurgood Marshall: Pray tell what is the benefit of American citizenship?
Lester Evens : Well, the benefit of the American citizenship for one essentially sets forth a political benefit. If I may say --
Thurgood Marshall: Well, I thought you said they should have right --
Lester Evens : Well --
Thurgood Marshall: -- empathy?
Lester Evens : What I'm saying is it that, this is a country that has granted refuge to political refugees and the -- well, let me withdraw that. I would respond in the sense by answering question. Does citizenship require any special benefit? And I have trouble with that. I don’t think that citizenship necessarily --
Thurgood Marshall: I probably note (Inaudible) to better end then we didn’t need the Fourteenth Amendment?
Lester Evens : If people were not discriminated against and if the Equal Protection Rights were not violated.
Thurgood Marshall: What did Amendment give citizenship to people? So, you didn’t need that? You didn’t need to grant a citizenship in this country?
Lester Evens : It was my understanding, yes. But in my understanding the Fourteenth Amendment says that we will --
Thurgood Marshall: The trouble is how far you go away from the issue that’s in this case?
Lester Evens : Well, I do not intend to go away from the issue of this case. It’s my intention to spell out that on questions of employment the State cannot justify in anyway any position nor have they, that in any way could not be preformed by a lawful resident alien of the state as but then by anyone else. Now, if I am asked questions such as, should aliens be allowed to be on petit or grand juries which they are not allowed to be in the State of New York, or should they be allowed to vote, or should they be allowed to hold public office. These are highly hypothetical questions which are very difficult for me to answer because it means that I must take a position which really quite remove from the case before us. These situations do exist. There are obviously differences where it is applicable. I think however that the cases have clearly indicated and it was clearly pointed out in Shapiro v. Thompson and in Graham v. Richardson that when there is a classification that discriminates against aliens. Its tantamount to discriminating against a class because of race and if we were to make rules that black people from the south coming to the new -- to New York could or couldn’t do things simply because they were black and from the south. That would be objectionable and I believe totally unconstitutional if there are any such statutes enacted.
Warren E. Burger: But it would make any difference what their race was, if they were coming from the south to the north, if they were people here?
Lester Evens : Well, if they came from -- if they came from adjoining states of Connecticut or New Jersey or Pennsylvania, if they were black and the statute said that blacks could not be a civil service employees because they are unstable and because they are disloyal or they have loyalty to the State that they came from. This would be unquestionably --
Warren E. Burger: Of course, that’s doesn’t have anything to do with this case, does it?
Lester Evens : It does in the sense that the classifications’ concerning aliens is tantamount to a classification concerning race.
Warren E. Burger: Where did this Court ever say that?
Lester Evens : It is my understanding that’s exactly what the Court said in Graham v. Richardson --
Warren E. Burger: For purposes?
Lester Evens : For purposes of the degree of judicial scrutiny on the Equal Protection Clause.
Warren E. Burger: Yes. It said these are suspect classes --
Lester Evens : Yes.
Warren E. Burger: -- which means nothing more or less has as I think Chief Justice Warren said that we scrutinized the line drawing and the basis of the classification very carefully.
Lester Evens : Yes.
Warren E. Burger: But --
Lester Evens : More strictly than would be if it were a matter not a grace.
William H. Rehnquist: One factual distinction Mr. Evens is that your clients presumably have it within their own power to change their status, don’t they? To become citizens if they so choose?
Lester Evens : Yes, they certainly do. All of my clients and now over the age of 21 and could qualify to become citizens. There are questions of whether or not they choose to take that option. And as I pointed out, some of them really are here as political refugees and really fully intend to return. It should be pointed out too incidentally but these people were employed by the City of New York and were fired. These people were not seeking positions and when they were employed by the City of New York, they were informed that they would maintain the status that they always had before. They work for a non-profit corporation which happens to be funded by the Office of Economic Opportunity and the Office of Economic Opportunity cutoff the funding for the particular positions that they were working in. And the City of New York said, “We will incorporate this now into one of the departments within the City of New York and you will be permitted to continue to work and you will be permitted to continue to maintain the same position that you have at the very same salary.” And very shortly thereafter, they were informed by letter that the only reason they were being fired was because of there citizenship not because of any questions of competence or character or anything else. Now, it was pointed out by my adversary during argument that the prevailing law today concerning public employment is Crane and Hines, and cited Mr. Justice Blackmun’s decision in Graham v. Richardson as sustaining this position. It was my understanding in reading that decision that what the Court said is we are not dealing with the issue of employment and public employment at this time. We are dealing with an issue of welfare benefits. As Judge Tenney in the District Court in writing the opinion in this case below stated, “The time has arrived. The Dougall case has now presented that time with the issue of employment has now come up concerning aliens and that at this very appropriate to review that.” And in light of the decision on Graham v. Richardson, this is a classification that ever requires the strict judicial scrutiny and the appellants in this proceeding have not sustained or met that requirement.
Warren E. Burger: Would you think Mr. Evens the -- what would you think of the statute of the State of New York that will have a limitation to the employment of people in these categories who had signified their intention to become citizens by having filed the first application? Do you think that would equally violate the Fourteenth Amendment?
Lester Evens : If that requirement were in there?
Warren E. Burger: Yes.
Lester Evens : I incidentally there is a statute that does. I believe the second half of Section 53 that we have before has some such reference to it at filing a declaration of intention to become a citizen. I personally, I have trouble with it if the reason the State of New York has set forth this classification. It was for unconstitutional reason and I believe it was for a non-constitutional reason. It was discriminating against the class. And I would like to point out that in the brief of the appellants in this proceeding, they indicate that aliens are unstable, there is no evidence of their instability. They indicate that even if an alien took an oath as might be required of civil service employees, we wouldn’t necessarily believe them anyway.
Warren E. Burger: We aren’t -- we haven’t found that the reasons that are argued.
Lester Evens : No, I understand that.
Warren E. Burger: The Court of Appeals, the three-judge court didn’t rest on any significance --
Lester Evens : No, it didn’t but the reason that I point this out is it that even using a close judicial examination of what the legisla -- what was the purpose of the legislation really does not permit the statute to survive the requirements of the Equal Protection Clause and that the examples for the arguments made by the appellants are themselves invidious. The implication --
William H. Rehnquist: Mr. Evens, one of the fact situations you described is that of Mr. Dougall who plans if the Government changes in Guiana to return. Now, isn’t there at least something that might commend itself to a reasonable legislature in the argument, that here is a man who we can provide a good job for in the civil service who we could expect to be there rather indefinitely if we kept promoting him if he were a national but this man is subject to a -- you know in his eyes very legitimate outside poll but the citizen just wouldn’t be subject to?
Lester Evens : However, I'm not so sure that if citizen might not subject to it. I think that today --
William H. Rehnquist: Well, assuming that no citizens are going back to Guiana?
Lester Evens : No, but a citizen might go back to New Jersey or to Washington District Court. There is certain no requirement to be a resident of the State of New York.
William H. Rehnquist: No, but most people haven’t left New Jersey or Connecticut to come to New York as political refugees?
Lester Evens : No. No, but they certainly have come to New York to get employment. It’s probably the focal point of the employment for the northeast area or perhaps even for the country, and that in fact we live in a society where our population is very mobile. And to make any kind of arguments to say that aliens are more unstable than the rest of population without any foundation or basis for it is auspicious argument. If a young person graduates from school as it’s so typical and comes to Washington DC or comes to the City of New York to seek employment and perhaps to develop something in a career and never fully to intending to stay permanently, should that person be denied the right to civil service employment? Presuming that is a person born and living outside the State of New York who is a citizen of the United States and the statute does not discriminate against that person nor do I think it should. And I cannot see any distinctions between non-residents of the State New York, in terms of the arguments of the appellants make and aliens who are lawful residents. The very people that we are talking about is the name plaintiffs in this proceeding admittedly have been living here for a substantial period of time, doing all of those things, all them have worked. They haven’t been themselves indigent or force to seek other forms of sustaining themselves. They have been working people.
Warren E. Burger: But I recall that you do make a distinction between resident and non-resident aliens?
Lester Evens : Yes. Yes, and as a matter of fact Judge Tenney I believe does as well when he wrote the opinion of the court below.
Warren E. Burger: Do you accept that?
Lester Evens : Yes. Because I do believe that we have many, many categories of aliens.
Warren E. Burger: In other words if --
Lester Evens : People come here on short term visas as tourists and I certainly don’t think that they would be certainly be entitled to the kinds of prerogatives that a citizen or a resident alien would be entitled to. The requirements empowers by the Immigration and Naturalization Act, a much more stringent than they are for someone who comes here to take advantage of our the marvelous, its natural resources, visiting the parks, etcetera and lives in a short time.
Byron R. White: But the State or National Government excludes aliens, excludes your clients to military service? Disqualify them from serving in the army?
Lester Evens : Under the present law or could they enact the law saying aliens --
Byron R. White: To say that they are just disqualified from working from the Government and the Military Service?
Lester Evens : Well, it sounds very similar to a Civil Service Statute. If -- you know my approach to military service have always been in fact that aliens have been required to serve.
Byron R. White: I agree with you.
Lester Evens : And now using it from the other point of view, I would have to presume that to be a form of Government employment or public employment, and therefore I think that it would equally objectionable.
Byron R. White: And just like across the board as far as Government employment is concerned?
Lester Evens : Provided, provided as long as the statutes of the State of New York say that the person closest to the Governor. The closest adviser to the Governor need not be a citizen, then certainly nobody else should have to be required to be a citizen and the statute in effect says that.
Byron R. White: So your position is limited to the peculiarities of the New York Law. If the New York Law didn’t have those exceptions in it, would you still be here?
Lester Evens : Yes.
Byron R. White: Yes.
Lester Evens : I would.
Byron R. White: So, it really doesn’t make much difference about the Government?
Lester Evens : No, I am just trying to point out the anomalies in the argument of the appellants.
Warren E. Burger: Well, does that --
Lester Evens : How can they argue -- how can they argue the necessity for making policy decisions by someone who on the one hand to use the analogy the Court has used today of a garbage collector or the analogy on the other hand a biologist to who happens to be working with fungus on let’s say tobacco leaves or whatever.
Thurgood Marshall: Can you imagine a Governor of a State in this country today appointing somebody to high government office who wasn’t a voter?
Lester Evens : Who is not a citizen?
Thurgood Marshall: No, he was not a voter --
Lester Evens : Can you appoint him to high government office, if he was not a voter?
Thurgood Marshall: Yes, sir.
Lester Evens : Do you mean an office such as to fill a vacancy on the bench or to fill a --
Thurgood Marshall: Any.
Lester Evens : He could not to fill a vacancy on the bench or could not to fill a vacancy in the legislature.
Thurgood Marshall: But you said there were some high positions that the Government would appoint an alien to?
Lester Evens : Yes.
Thurgood Marshall: And I'm asking you, you name me the position that any Governor would appoint a non-voter too.
Lester Evens : I know no Governor who would do that for a many other reasons. I saying the statutes allow him too, that is all I'm saying. Thank you very much.
Warren E. Burger: But with this -- with your constitutional objections to this statute disappear then if the statute said that this could be waived under certain circumstances?
Lester Evens : The -- my objection is to the classification and it would exists regardless to what modifications there might be by legislation. I think that this is an attempt and an endeavor to take a large segment of the population of the State of New York and to say to those people you cannot work in certain jobs.
Warren E. Burger: Well, all New Yorkers said about this Governor’s aides that hypothetical people you're talking about?
Lester Evens : Yes.
Warren E. Burger: Are that Governor may appoint some of them if he wants to?
Lester Evens : Yes.
Warren E. Burger: Now, what if in the civil service they said that the head of the agency may appoint some aliens who rank in the first three of the civil service if they want to? Wouldn’t that be the same situation?
Lester Evens : I have some difficulty with that because I think that once we get into qualifications and making divisions then we are no longer performing a judicial function. We apparently are performing an administrative or executive function or legislative function which can very well be handled by a very, very sophisticated and substantial body the Commissioner and his department of civil service and that certainly he could set forth reasonable criteria of any kind. If I may point out Mr. Chief Justice, this statute was originally amended to exclude non-citizens in 1939. The statute had been on the books for many years before that without any reference to it. However, the Commissioner on his own had been discriminating against aliens and in fact it was recommended that this particular law be pass the amendments requiring citizen to be in a competitive civil service class because the Commissioner have been doing something all along which the legislature had not mandated. Now, this was one of the letters that we had found in the Bill Jacket. Now, it seems to me that if we have before us today the 1939 Law before it was amended and the Commissioner himself was discriminating broadly against an entire class. We would be making the very same argument whether it was enacted or not. Thank you very much.
Warren E. Burger: Very well. Thank you. Thank you Mr. Hirshowitz. The case is submitted.