Kirkland v. The New York State Department of Correctional Services Brief for Intervenors-Appellants

    To be argued by 
Richard R. Rowley. 74-2M

UNITED STATES COURT OF APPEALS 
For the Second Circuit.

EDWARD L. KIRKLAND and NATHANIEL HAYES, each individ­
ually and on behalf of all others similarly situated,

Plaintiffs-Appellees,
against

THE NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES; 
RUSSELL OSWALD, individually and in his capacity as 
Commissioner of the New York State Department of 
Correctional Services; THE NEW YORK STATE CIVIL SERVICE 
COMMISSION; ERSA POSTON, individually and in her 
capacity as President of the New York State Civil 

. Service Commission and Civil Service Commissioner;
MICHAEL N. SCELSI and CHARLES F. STOCKMEISTER, each 
individually and in his capacity as Civil Service 

■* Commissioner,
Defendants-Appellants,

and
ALBERT M. RIBEIRO and HENRY L. COONS,

Intervenors-Appellants.

BRIEF FOR INTERVENORS-APPELLANTS

SNEERINGER & ROWLEY P.C.
Attorneys for Intervenors-Appellants 

90 State Street
Albany, New York 12207

Telephone; (518) 434-6187
j



RR/gc

TABLE OF CONTENTS

Page

STATEMENT 1
ISSUES 3
FACTS........................................... 3
POINT I. INTERVENORS-APPELLANTS AND THE CLASS

WHICH THEY SEEK TO REPRESENT ARE INDISPEN­
SABLE PARTIES AND THE FAILURE TO JOIN THEM 
IN THE ACTION BEFORE THE TRIAL DEPRIVES 
THEM OF THEIR PROPERTY RIGHTS WITHOUT DUE 
PROCESS OF LAW AND THE COMPLAINT SHOULD BE 
DISMISSED................................ 17

POINT II. THE DISTRICT COURT SHOULD HAVE ALLOWED 
APPOINTMENTS FROM THE ELIGIBLE LIST CREATED 
BY EXAMINATION 34-944 TO BECOME PERMANENT 
AND SHOULD NOT HAVE DIRECTED THE USE OF A 
.ONE TO THREE PREFERENTIAL APPOINTMENT 
RATIO IN EITHER INTERIM OR FINAL APPOINT­
MENT PROCEDURES.......................... 27

CONCLUSION 49
EXHIBIT 1
EXHIBIT 2
EXHIBIT 3

*



CASES

Page

Arnett v. Kennedy, 416 U.S. 94 S. Ct. 2963
at 2975 ....................................  18 , 20

Baird v. People's Bank & Trust Co., 120 F .2d
1001 (3rd Cir. 1941)........................  22

Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586. . 18
Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct 18, 19 

2701........................................  20
Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct.. 18
Bridgport Guardians, Inc. v. Members of Bridge­
port Civil Service Commission, 482 F .2d 1333,
(1973)......................................  27, 28

Castro v. Beecher, 459 F .2d 725 (1971). . . . .  27, 29
Chance v. Board of Examiners, 458 F.2d 1167 27, 37

(1972)....................................... 38
Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct.

1983......................................... 18
Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct.

1011......................................... 18
McLaughlin v. Florida, 379 U.S. 184 (1964). . . 29
Milliken v. Bradley, 42 U.S. Law Week 5249,

July 25, 1974 ..............................  29
Missouri, Kansas, Texas Railroad v. Brotherhood 

of Railway and Steamship Clerks, 188 F.2d 302,
305-306 (7th Cir. 1951)..................... 23

Order of R. R. Telegraphers v. New Orleans,
Texas and Mexican Railway, 229 F .2d 559 
(8th Cir.) cert, den'd., 350 U.S. 997 (1956).i 23



19

22

21

18

22

26

28

28

18

20

22

28

CASES

Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 
2694 ......................................

Roos v. Texas Co., 23 F .2d 171 (2nd Cir. 1927) 
cert, den'd., 2770 U.S. 587 (1928) ........

Shields v. Barrow, 58 U.S. (17 How.) 130
(1855) at pg. 139..........................

Sniadach v. Family Finance Corp., 395 U.S. 337, 
89 S. Ct. 1820 ............................

United States v. Bank of New York & Trust Co., 
296 U.S. 463 (1936)........................

United States v. Elfer, 246 F.2d 941 (9th Cir. 
1957).......................................

U.S. v. Wood, Wire, and Metal Lathers Inter­
national Union, Local 46, 471 F.2d 408, 
cert, den'd. 412 U.S. 939 , (1973)..........

Vulcan Society of New York City Fire Depart­
ment, Inc. v. The Civil Service Commission, 
490 F .2d 387, (1973) ......................

Wisconsin v. Constantineau, 400 U.S. 433,
91 S. Ct. 507..............................

Wolff v. McDonnell, U.S. , 94 S. Ct.
2963 at 2975 ..............................

Young v. Powell, 179 F .2d 147 (5th Cir.),
cert, den'd., 339 U.S. 948 (1950)..........

Rios v. Steamfitters Local 638, F.2d ,
8 FEP Cases 293 (June 1974)................



STATUTES

Page

N.Y. Civil Service Law, § 4 0 ....................  4
N.Y. Civil Service Law, § 4 4 .................. * . 4
N.Y. Civil Service LawT, § 5 2 ..................... 4
N.Y. Civil Service Law, §52(10)   5
N.Y. Civil Service Law, § 5 6 ..................... 5
N.Y. Civil Service Law, § 6 1 ..................... 4
N.Y. Civil Service Law, § 6 5 ..................... 5
N.Y. Civil Service Law, § 7 5 ..................... 6
New York State Constitution, §6, Art. V . . . . 4, 30
Rules and Regulations of the New York State 
Civil Service Commission, 4 N.Y.C.R.R. 4.5,
4 N.Y.C.R.R. 4.5(3) ..........................  6

Federal Rules of Civil Procedure, Rule 19 . . .10, 25
Federal Rules of Civil Procedure, Rule 19(a). .10, 11

21
Federal Rules of Civil Procedure, Rule 19(b). . . 21
Federal Rules of Civil Procedure, Rule 19(c). .10, 12
Federal Rules of Civil Procedure, Rule 12(h). . . 25
Federal Rules of Civil Procedure, Rule 21 . . .  . 25



UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT

EDWARD L. KIRKLAND and NATHANIEL HAYES, 
each individually and on behalf of all others 
similarly situated,

Plaintiffs-Appellees,
-against-

THE NEW YORK STATE DEPARTMENT OF CORRECTIONAL 
SERVICES; RUSSELL OSWALD, individually and in his 
capacity as Commissioner of the New York State 
Department of Correctional Services; THE NEW YORK 
STATE CIVIL SERVICE COMMISSION; ERSA POSTON, indivi­
dually and in her capacity as Preisdent of the 
New York State Civil Service Commission and Civil 
Service Commissioner; MICHAEL N. SCELSI and 
CHARLES F. STOCKMEISTER, each individually and in 
his capacity as Civil Service Commissioner,

Defendants-AppeHants ,
-and-

ALBERT M. RIBEIRO and HENRY L. COONS,

Intervenors-Appellants.

BRIEF FOR INTERVENORS-APPELLANTS 

Statement

Intervenors-appellants (herein Ribeiro) appeal from 
the judgment and order of the United States District Court 
for the Southern District of New York rendered after a trial



without a jury before Hon. Morris E. Lasker, District Judge, 
granting judgment to the plaintiffs adjudging New York State 
Civil Service Examination 34-944 for the position of Correc­
tion Sergeant to be invalid as violating the Constitution 
of the United States. The order of the District Court 
enjoined the State of New York and named State officials 
from making any permanent or provisional appointments to the 
position of Correction Sergeant based upon the eligible list 
promulgated as a result of said examination, directed 
the said defendants to develop a lawful, nondiscriminatory 
selection procedure pursuant to specified guidelines, per­
mitted interim provisional appointments to be made only 
upon application to the Court and pursuant to a quota 
whereby at least one of every four promotions pursuant to 
the interim procedures shall be from members of the minority 
groups involved and continued such quota system following 
the development of a revised selection procedure until the 
combined percentage of blacks and hispanics in the ranks of 
Correction Sergeant equaled the percentage thereof in the ranks 
of Correction Officers. The District Court retained juris­
diction of the proceeding for such period as might be 
necessary to supervise the decree and further proceedings 
thereunder and to determine the reasonable value of the 
plaintiffs' attorneys' services.

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ISSUES
1. Did the failure to join indispensable parties 

potentially deprive such parties of their property rights 
without due process of law so as to require a dismissal 
of the complaint?

2. Should the District Court have allowed 
appointments from the eligible list promulgated from Exam­
ination 34-944 and made prior to the entry of the decree 
to become permanent?

3. Was the District Court correct in directing 
the use of a one to three preferential appointment ratio 
in both interim and final appointment procedures?

FACTS
All numbers in parenthesis refer to pages of the 

Appendix or refer to exhibits of the parties and their 
page numbers in the Appendix.

The facts which are relevant to this brief are 
very simple. The position of Correction Sergeant is a 
promotional position in the New York State Department of 
Correction. The entry position is the job of Correction 
Officer commonly referred to in former times as a Prison 
Guard. Today there are many variations of the position of 
Correction Officer serving in many State institutions

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in addition to the traditional maximum security facilities. 
A Correction Sergeant is essentially the first line 
supervisor above a Correction Officer. Both of the 
positions, that is Correction Officer and Correction 
Sergeant, are in the classified service of the New York 
State Civil Service as defined by Section 40 of the Civil 
Service Law and both of the positions are in the 
competitive class within the meaning of Section 44 of 
the Civil Service Law of the State of New York.

Under Section 6, Article V of the New York State 
Constitution such positions must be filled according to 
merit and fitness ascertained by competitive examination 
so far as practicable.

Section 52 of the Civil Service Law of the State 
of New York describes in considerable detail the procedures 
for conducting promotion examinations and provides in 
part that as far as practicable vacancies in positions 
in the competitive class shall be filled by promotion 
from among persons holding competitive class positions in 
a lower grade. After a Civil Service examination has 
been administered an eligible list is established among 
the applicants having passed the test including appropriate 
credit for service in the Armed Forces and similar



position his provisional service shall be credited in 
his permanent position.

A probationary appointee, whether in the entry 
grade or in a promotional grade immediately upon appoint­
ment obtains significant Civil Service rights. Under 
the Rules and Regulations of the New York State Civil 
Service Commission, 4 N.Y.C.R.R. 4.5, a probationary appoint­
ment is for a specific period of time during which the 
employee can not be dismissed except upon charges after 
a due process type hearing, 4 N.Y.C.R.R. 4.5, New York 
Civil Service Law §75. At the end of the probationary 
term, the appointment becomes permanent unless probation 
is continued up to a maximum specified period. At the end 
of the initial or extended period of probation, the 
appointment becomes permanent unless the performance of 
the employee is not satisfactory in which case he can be 
terminated, 4 N.Y.C.R.R. 4.5(3).

Upon exhaustion of the eligible list for Correction 
Sergeants sometime in the Spring of 1972, the Department of 
Correctional Services appointed a number of individual 
Correction Officers as provisional Sergeants and communicated 
to the New York State Department of Civil Service its need 
for a new competitive examination to establish a new

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eligible list for Correction Sergeants. The examination 
was prepared and the notice of examination, plaintiffs' 
exhibit 17 (A 1352) , indicates that only individuals with 
service as Correction Hospital Senior Officer or Correction 
Hospital Charge Officer or Correction Officer were eligible 
to take the examination and that only those individuals 
with three years of service in the subordinate positions 
could be appointed. The examination was duly administered 
on October 14, 1972 and an eligible list was promulgated 
on March 15, 1973.

This action was commenced on April 10, 1973 and 
a temporary restraining order was made and entered forth­
with directing the defendants not to make permanent 
appointments from the list and prohibiting the defendants 
from terminating the provisional appointments of plaintiffs 
or members of their class. Under this preliminary order 
all provisional sergeants who had failed the examination 
but did not belong to the class purportedly represented by 
plaintiffs automatically reverted to the position of 
Correction Officer. Among all of the provisional Sergeants 
who failed the examination, only the named plaintiffs and 
the several other black or hispanic provisional Sergeants 
who failed the examination were held in the position of

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provisional Sergeant.
The Record before this Court does not reveal the 

comparative standing of the provisional Sergeants thus 
retained in the promotional positions vis-a-vis other 
minority applicants who took and failed the examination.
The Record does reveal that at least one minority candidate 
the intervenor, Albert M. Ribeiro, is a minority citizen 
who took and successfully passed the examination at a 
high enough position on the list to be appointed.

The complaint alleges a class of plaintiffs of 
approximately four hundred forty persons, and on its face 
it is apparent that the defendants were aware of the name 
and addresses of every one of the members of the class 
since all of them were employed by the State of New York 
at the time when they took the examination in issue. Any 
of the individuals whose employment has been terminated 
and are not on the State roles would seem to have 
surrendered any interest which they might have in 
appointment to the promotional position. Despite this 
the plaintiffs allege in paragraph 2 (c) of their complaint 
(A 9) that the number of persons makes joinder of all 
class members impracticable.

The plaintiffs, as revealed by complaint paragraphs 
11, 12 and 13 (A 17 - A 18), had extensive and detailed

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knowledge of the eligible list and of the fact that 
permanent appointments would be made beginning on 
April 11, 1973. As early as April 4, 1973 the plaintiff 
Hayes was aware that on April 12 the Department would 
appoint ninety Sergeants from the eligible list (A 41) 
and the plaintiff Kirkland would appear to have had 
a copy of the eligible list early in April as shown by 
paragraph 11 of his affidavit on the motion for a 
temporary restraining order (A 47).

Attorney Deborah Greenberg's affidavit on the 
same motion (A 51 - A 52) would seem to indicate that she 
had studied the eligible list when she signed her affidavit 
on April 10, 1973.

The Judge below at an early date recognized the 
prejudice and impact upon the successful applicants who 
were among the ninety appointees as is witnessed by the 
provisions of his order dated April 11, 1973 particularly 
the portions thereof appearing at A 62 - A 64. The same 
order appears to be repeated at A 66 - A 68.

Neither of the intervenors, both successful 
candidates on examination 34-944, were named as parties 
defendant nor did the Court, the defendants or the 
plaintiffs ever take any affirmative or formal steps 
to notify these individuals or other individuals on the

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eligible list of the pending litigation or their 
opportunity to participate.

Rule 19 of the Federal Rules of Civil Procedure 
relates to the joinder of persons needed for a just 
adjudication. Subdivision A describes the persons to 
be joined if feasible. A simple awareness of the 
property interest acquired by the intervenors and all 
other named on the eligible list makes it obvious that they 
fall squarely within the class of persons described in 
Rule 19 (a). That Rule provides most explicitly with
respect to such persons:

"If he has not been so joined the 
Court shall order that he be made a 
party."
The Rule is not permissive, it is a mandate. 

Furthermore, subdivision C of Rule 19 provides as follows:
"A pleading asserting a claim for 

relief shall state the names, if known 
to the pleader, of any persons described 
in subdivision (a) (1) - (2) hereof who
are not joined, and the reasons why they 
are not joined."
Nowhere in the complaint can one find the slightest 

allegation as to the names of the successful applicants 
on the eligible list or the reasons why they had not been 
joined or an allegation that their names are unknown to 
the plaintiffs.

There can be no doubt, particularly in view of the 
striking failure of the plaintiffs to deny knowledge upon

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the intervenors' motion for intervention, that the
plaintiffs were aware of the identity of the successful
applicants at the time when their law suit was commenced
and that the District Judge was perhaps aware of their
identity in the very first days of the action or, at the
very least was aware that there was an eligible list
containing the names of a substantial number of State
employees with an interest relating to the subject of the
action and so situated that the disposition of the action
in their absence might as a practical matter impair or
impede their ability to protect that interest. It seems
obvious that the District Judge continued to be acutely
aware of the conflict and he stated in his decision (A 153)

"The competing interests are vital 
to the named parties, to other 
individuals who may be affected by 
the outcome and to the public at large.
Plaintiffs . . . efforts bring them
into conflict with those individuals 
who passed the challenged examination 
and have a vested interest in securing 
the promotions which are rightfully 
theirs if the examination is unheld.
For both groups, the outcome is critical 
since it affects their ability to earn 
a living by advancing in the profession 
of their choice."
Nevertheless the learned District Judge not only 

failed to comply with the mandate of Rule 19 (a) and 
failed to require the plaintiffs in their complaint to

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comply with the provisions of Rule 19 (c) but at an early 
date in the litigation denied the application of other 
interested parties to intervene in the proceeding. The 
docket entries reproduced at pages A 2 - A 5 of the Record 
do not appear to reveal the application to intervene filed 
in June or July of 1973, however, there is an entry of 
July 16, 1973 of an affidavit of Stanley L. Kantor, (an 
Assitant Attorney General) in opposition to a motion to 
intervene and a memorandum filed by the plaintiff on the 
same day in opposition to an application for intervention 
by white provisional Correction Sergeant Jackson. Attached 
hereto marked Exhibit 2 is a copy of the Endorsement of the 
District Judge denying the Jackson application for interven­
tion. It is interesting to note the preoccupation of the 
District Judge with expeditious determination of the 
proceeding some three months after it was commenced in 
sharp contrast to the lapse of approximately eight months 
after the trial before the District Judge rendered his 
decision.

Expeditious disposition of litigation is an 
admirable goal, however, the attainment of that goal does 
not take priority over the guarantees of due process.

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On the trial the plaintiffs were not content to 
rely solely upon the statistical variation for proof of 
their prima facie case but called a number of witnesses. 
The witnesses Young, Suggs, Hayes, Kimble, Kirkland, 
Holman, O'Neil and Liburd were all Correction Officers 
or provisional Sergeants. During their testimony they 
all expressly or impliedly repeated the conclusions 
voiced by Officer Young at A 284 - A 285 as follows:

"Q. Did you feel that that examina­
tion was related to the skills and 
abilities that you were using on that job?

A. I can't recall all of the 
questions of the exam at this time.
I will say if there was any part 
unrelated it was the comprehensive 
part of the exam.

Q. What is the comprehensive 
part?

A. The reading comprehensive part 
of the exam.

Q. Would you state that that was 
unrelated?

A. I would state that was unrelated."
During the examination of the witness Kimble 

(A 437 - A 441) a similar line of question was pursued by 
the plaintiffs. At page 440 the District Judge remarked 
that such testimony "May be relevant to job relatedness".

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The plaintiffs called Dr. Richard Barrett 
as a rebuttal witness. Dr. Barrett qualified as an 
expert in testing and equal employment opportunity 
litigation. Dr. Barrett has impressive credentials, 
however, it would appear that his sole knowledge with 
respect to the particular job in issue, Correction 
Sergeant, is based upon his discussions with the attorneys 
for the plaintiff, reading of largely unidentified 
documents and one day spent at the correctional facility 
at Greenhaven and attendance at Court (A 1107). During 
his lone visit to a correctional institution he spent 
about five hours inside of the prison and talked to 
eight Sergeants (A 1108). By attendance at Court Dr. Barrett 
apparently heard the testimony of the various Correction 
Officers and provisional Sergeants called by the plaintiffs. 
Nowhere in Dr. Barrett's testimony does it appear that he 
has any prior experience with regard to correctional 
institution type jobs, the closest being work that he has 
done with certain police departments.

The ultimate issue in this case, so far as the 
validity of the test is concerned, is the question of job 
relatedness. The State's expert declined to testify that 
the test was job related (A 1045 - A 1047) , however, the 
plaintiffs expert Barrett testified (A 1132):

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"X feel I can raise some questions 
about the content validity but I don't 
believe that I can state definitely as 
a professional that it is or is not 
content valid."
Dr. Barrett would go no further than expressing his 

substantial doubts as to whether the test was valid (A 1131 
- A 1133).

As though being aware of the inadequate sampling 
of Dr. Barrett and the uncertainty of his opinion the 
District Judge referred to the testimony involving the 
job relatedness of some of the questions on the examination 
(A 185 - A 186). Only two of the questions referred to 
(A 778 - A 790 and A 1010) were questioned by the State 
witnesses as to their job relatedness and even that 
questioning was far less than conclusive. In sum, the 
testimony regarding the individual questions were that 
of a provisional Sergeant (Suggs) and a Dr. Barrett based 
upon his single visit to one correctional facility and 
interview with eight Sergeants.

While the interveners-appellants in this brief will 
not undertake a complete analysis of the testimony regarding 
the examination and are well aware that the burden of 
proof is on the State, the relative scarcity of credible 
testimony based upon actual experience or factual 
knowledge regarding job relatedness emphasizes the prejudicial

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consequences to the interveners-appellants of the failure 
to include them in the litigation from the outset.

Many of the individuals in the class which the 
interveners-appellants seek to represent were provisional 
Sergeants. They are at least as well qualified as the 
provisional Sergeant witnesses of the plaintiffs to testify 
regarding the job relatedness of various items on the 
examination. At the very least, these men represented 
by counsel of their choice or class representatives 
acting on their behalf should have been afforded a full 
and complete opportunity to appear, participate and if 
so advised, to testify regarding their background, 
experience and opinions as to the job relatedness of the 
examination. Obviously, the plaintiffs did not seek to 
represent the interest of those men on the eligible 
list nor, unfortunately, did the State. While the interests 
of the State may be somewhat parallel to those of the 
interveners-appellants, the interests are by no means 
identical and the State sought to sustain its examination 
for its own purpose only and not from the point of view 
of the successful candidates. Had the interveners- 
appellants been parties to the litigation, as we contend 
was required by law, substantial additional testimony in 
support of the examination would undoubtedly had been before

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the District Judge and the experts with the result that 
the defendants' burden might have been successfully 
sustained and a different conclusion might well have 
been reached.

POINT I

INTERVENERS-APPELLANTS AND THE CLASS 
WHICH THEY SEEK TO REPRESENT ARE 
INDISPENSABLE PARTIES AND THE FAILURE 
TO JOIN THEM IN THE ACTION BEFORE THE 
TRIAL DEPRIVES THEM OF THEIR PROPERTY 
RIGHTS WITHOUT DUE PROCESS OF LAW AND 
THE COMPLAINT SHOULD BE DISMISSED.

The interveners-appellants and the class which 
they seek to represent acquired a vested property right 
by reason of their successful competition in the 
examination if the examination is valid. We have 
already discussed the statutes giving rise to this 
property interest and the District Judge (A 153) recognized 
that those men who had succeeded in the examination had 
a vested interest in securing the promotions which would 
normally follow. To proceed with the litigation in the 
absence of these citizens was not only violative of the 
sections of the Federal Rules heretofore cited but also 
totally failed to heed the teachings of recent authorita­
tive decisions regarding the rights of public employees 
to due process hearings where job rights are involved.

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The overwhelming weight of modern authority in
a wide variety of situations mandates the right to a 
meaningful due process type hearing before a citizen is 
deprived of either property or liberty. Goldberg v.
Kelly, 397 U.S. 254 , 90 S. Ct. 1011; Fuentes v. Shevin,
407 U.S. 67, 92 S. Ct. 1983; Bell v. Burson, 402 U.S. 535, 
91 S. Ct. 1586; Sniadach v. Family Finance Corp., 395 
U.S. 337, 89 S. Ct. 1820; Wisconsin v. Constantineau,
400 U.S. 433, 91 S. Ct. 507; Groppi v. Leslie, 404 U.S. 
496, 91 S. Ct. 490; Boddie v. Connecticut, 401 U.S. 371,
91 S. Ct. 780; Board of Regents v. Roth, 408 U.S. 564,
92 S. Ct. 2701 and Perry v, Sindermann, 408 U.S. 593,
92 S. Ct. 2694.

While only Roth and Sindermann dealt with public 
employees, the teaching of the other cases mentioned was 
that any governmental taking of property or liberty 
without a prior hearing is constitutionally impermissible 
except in cases of an overriding State interest or 
extraordinary situations justifying the postponing of 
notice and opportunity for a hearing.

The expression of the high court in Boddie v. 
Connecticut, 401 U.S. 371 at 378, 91 S. Ct. 780 at 786 
seems to best sum up the pre-Arnett rule of the Supreme 
Court:

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"What the Constitution does require 
is 'an opportunity . . . granted at
a meaningful time and in a meaningful 
manner', . . . 'for a hearing appropriate
to the nature of the case' . . . . The
formality and procedural requisites 
for the hearing can vary, depending upon 
the importance of the interests involved 
and the nature of the subsequent pro­
ceedings. That the hearing required by 
due process is subject to waiver, and 
is not fixed in form, does not affect 
its root requirement that an individual 
be given an opportunity for a hearing 
before he is deprived of any significant 
property interest, except for extra­
ordinary situations where some valid 
governmental interest is at stake that 
justifies postponing the hearing until 
after the event. In short, 'within the 
limits of practicability; . . .  a State 
must afford to all individuals a meaning­
ful opportunity to be heard if it is to 
fulfill the promise of the Due Process 
Clause."
Property rights of public employees were specifi­

cally considered in Roth and Sindermann and the rule 
which can be drawn from these cases is that a public 
employee who has a reasonable expectation of continued 
employment based upon either express rules, regulations 
or statutory provisions or upon past practice is entitled 
to a due process hearing before being deprived of those 
interests.

In the case at bar, the very existence or 
non-existence of a property right in the intervenors- 
appellants and their class is a central question to the

-19-



litigation. To proceed with a determination in the 
absence of those individuals whose property rights and 
liberty rights are involved is the absolute antithesis 
of due process. Even if we assume arguendo that a 
property right had not become vested in the intevenors- 
appellants, the opportunity to pursue one's chosen 
vocation, and to seek and attain advancement therein 
would appear to be a liberty right which is fully 
protected by the guarantees of due process under the 
Fifth Amendment of the Constitution of the United States.

The proposition that the constitutional mandate 
of due process is as binding upon the Federal Courts as 
other federal agencies does not seem to require citation.

The most recent decision of the Supreme Court of 
the United States regarding employees due process rights 
is Arnett v. Kennedy, 416 U.S. 94 Sup. Ct. 1633.
While the multiplicity of opinions in Arnett is confusing, 
we have the words of the high court itself for the 
meaning of Arnett which it analyzed in Wolff v. McDonnell, 

U.S. , 94 Sup. Ct. 2963 at 2975 wherein it cites
Roth and Arnett for the proposition:

"The Court has consistently held 
that some kind of hearing is required 
at some time before a person is finally 
deprived of his property interests . . .

-20-



The requirement of some kind of a hear­
ing applies to the taking of private 
property . . or to government . created
jobs held absent 'cause' for termination."
The classic definition of parties who should or

must be joined in a suit in equity before a Federal Court
is found in Shields against Barrow, 58 U.S. (17 How.)
130 (1855) at page 139:

"3. Persons who . . have an interest
of such a nature that a final decree 
can not be made without either affecting 
that interest, or leaving the contro­
versy in such a condition that its final 
determination may be wholly inconsistent 
with equity and good conscience are 
indispensable parties."
The distinction at that early date drawn by the 

Court between what are now generally thought of as 
"conditionally necessary" and "indispensable" parties 
has been carried forward into Rules 19 (a) and 19 (b) 
of the Federal Rules of Civil Procedure. Intervenors- 
appellants herein are by any standard indispensable.

Although ordinarily an adjudication can not 
legally bind an absent party, the determination of the 
rights of the parties present in the case at bar will 
have a devastating adverse effect upon the absentee's 
interests.

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In cases where a similar substantial adverse
effect would be imposed upon a absentee, joinder has been 
held to be necessary. Thus all beneficiaries or legatees 
of a trust or estate have been held to be indispensable 
to an action, when the trustee or executor has an adverse 
interest. See eg., Young v. Powell, 179 Fed. 2d 147 
(5th Cir.), cert, den'd., 339 U.S. 948 (1950); Baird v. 
People's Bank & Trust Co,, 120 Fed. 2d 1001 (3rd Cir. 
1941). Where a trustee was sued in connection with the 
distribution of a fund in which an absentee claimed a 
superior interest, while the litigation would not affect 
the absentee's legal claim to the fund, the absentee 
would find his claim of little value once the fund was 
dispersed. Under the circumstances the absentee was 
held to be an indispensable party. Roos v. Texas Co.,
23 Fed. 2d 171 (2nd Cir. 1927), cert, den'd., 2770 U.S. 
587 (1928); see also United States v. Bank of New York & 
Trust Co., 296 U.S. 463 (1936). In the case at bar the 
District Judge in deciding the legal issue between the 
parties present before him necessarily weighed the rela­
tive rights of the plaintiffs and the absentee applicants 
for the position of correction sergeant. The judgment 
has a direct factual impact upon the absentees and the 
interest of the absentees being present should prevail

-22-



over the plaintiffs' interest in proceeding with the 
suit.

In a case somewhat analogous to the instant matter, 
the National Railroad Adjustment Board issued con­
flicting orders as to which of two unions were entitled 
to a particular job. One union sought court enforcement 
of its award, the other union, since its members would 
have been dispossessed of their rights, had to be joined. 
Order of R. R. Telegraphers v. New Orleans, Texas and 
Mexican Railway, 229 Fed.2d 559 (8th Cir.), cert, den'd ., 
350 U.S. 997 (1956). A similar result has been reached 
where the full disposition of the case required consider­
ation of the competing claims of two unions, Missouri, 
Kansas, Texas Railroad v. Brotherhood of Railway and 
Steamship Clerks, 188 Fed.2d 302, 305-306 (7th Cir. 1951) 
and where a plaintiff sought to establish the invalidity 
of the charter of an absentee corporate defendant,
Northern Ind. Railroad v. Michigan Central Railroad,
56 U.S. (15 How.) 233 (1853).

While it may well be that where the Court is 
assured that the absentee had notice of the pending action 
it should consider the availability of intervention to 
the absentee, these considerations would not appear to 
militate against the intervenors-appellants in the case

-23-



at bar. There is no showing in the Record before this 
Court that the eight-seven (87) persons from the eligible 
list appointed in April 1973 (A-197), the one hundred 
eighteen (118) persons presently employed as provisional 
correction sergeants, or the five hundred one (501) persons 
who successfully passed Examination 34-944 (A-213) received 
any notice sufficient to require their early intervention as 
a matter of law. The interest in challenging the examination 
centered at the correctional facilities at Sing Sing and 
Greenhaven but correction sergeants are employed through­
out the State and there is no indication whatsoever that 
the interested parties at more distant facilities were 
aware of the litigation or their right to participate 
therein for the protection of their interests. In addition 
when the District Judge was confronted with an application 
to intervene prior to the time of trial he denied the 
application for intervention as previously pointed out.

Yet a further alternative might have been available 
to the District Court confronted with absent indispensable 
parties since it might have shaped its decree so as to 
mitigate the impact on the absentee and avoid a determina­
tion of indispensability. This the District Court declined 
to do in its final decree (A-241-A-245) since it enjoined 
the present defendants from making permanent any provi-

24-



sional appointments based upon Examination 34-944 and 
directed that all interim appointments be made on the 
basis of a racial quota which obviously will adversely 
effect the standing of at least some of the class which 
the intervenors seek to represent.

Supplementing its original decree, the Court, with­
out notice to the intervenors, issued a supplemental decree 
on September 18, 1974, a copy is annexed hereto as Exhibit 
3. Neither in the original decree nor in the supplemental 
decree does the District Court provide for participation 
of the intervenors-appellants in the interim selection 
procedure or the final selection procedure. In short the 
District Court proceeded in total disregard of the rights 
of the intervenors-appellants and their class throughout 
this proceeding, even down to the supplemental decree.

Under Rule 12(h) of the Federal Rules this Court 
has the discretion to consider indispensability on its 
own motion and should do so in this case where it is 
called upon to protect the legitimate interests of absen­
tees from the trial.

Under Rules 19 and 21 of the Federal Rules, the 
District Court had discretion in adding indispensable 
parties. The intervenors-appellants were amenable to 
the process of the Court and would not have destroyed

-25-



proper venue. The Court below could have allowed plain­
tiffs to amend their complaint to add the indispensable 
parties or summon them on its own motion. The Court 
below made no attempt to do any of these things. Further­
more, the trial court had the power to dismiss the complaint 
in the absence of the indispensable parties amenable to the 
process of the Court where the plaintiff made no attempt 
to join the absentees. See eg., United States v. Elfer,
246 Fed.2d 941 (9th Cir. 1957). Under all of the circum­
stances in the case at bar, the plaintiffs, the defendants 
and the District Court having totally failed to bring the 
interested absentees before the Court in a timely 
fashion to afford them an opportunity to protect their 
property interests, the complaint should be dismissed.

-26-



RRR/gc

POINT II

THE DISTRICT COURT SHOULD HAVE 
ALLOWED APPOINTMENTS FROM THE 
ELIGIBLE LIST CREATED BY EXAMINA­
TION 34-944 TO BECOME PERMANENT 
AND SHOULD NOT HAVE DIRECTED THE 
USE OF A ONE TO THREE PREFEREN­
TIAL APPOINTMENT RATIO IN EITHER 
INTERIM OR FINAL APPOINTMENT 
PROCEDURES.

In the case at bar as in Griggs v. Duke Power 
Company, 401 U.S. 424 (1971) and Chance v. Board of 
Examiners, 458 F.2d 1167 (1972) , there is no proof of 
any intentional discrimination but proof that the 
examination had a disparate pass-fail ratio for blacks 
and Hispanics as against whites, and was not proved to 
be job related. There is no proof in the case at bar 
of any past discrimination and the District Court made 
no such finding.

This Court has sustained hiring quotas in U.S. v. 
Wood, Wire, and Metal Lathers International Union, Local 
46, 471 F.2d 408, Cert. Den. 412 U.S. 939, (1973);
Vulcan Society of New York City Fire Department, Inc, v. 
The Civil Service Commission, 490 F.2d 387, (1973);
Bridgeport Guardians, Inc, v. Members of Bridgeport Civil 
Service Commission, 482 F.2d 1333, (1973); Rios v.
Steamfitters Local 638, F.2d , 8 FEP Cases 293

-27-



(June 1974). All are distinguishable.
Lathers involved intentional discrimination and 

a quota to correct past discriminatory practices which 
continued even after the action was started, the Lathers 
court recognized that "quotas merely to attain racial 
balance are forbidden".

By contrast with Lathers, under the District 
Court order in the case at bar, lower qualified minority 
members will be preferred over better qualified whites.

Rios involved continuing intentional discrimination. 
Although preferential hiring quotas were upheld, this Court 
pointed out that when a racial imbalance is unrelated to 
past discrimination no justification exists for ordering 
that preference be given to anyone on account of his race or 
for altering an existing hiring system or practice.

Bridgeport Guardians and Vulcan Society involved 
Civil Service examinations in which interim quotas were 
gingerly sustained pending the preparation of a validated 
non-discriminatory selection procedure. In both cases 
quotas were approved to correct the effects of past discrimina­
tion. In the case at bar only one examination is involved, 
no past discrimination has been shown and in fact extensive 
efforts have been demonstrated to achieve racial balance.

-28-



There have been positive steps to recruit minority 
personnel, particularly in the entry position and thus 
the pool of eligibles for examination and promotion has 
been enlarged.

State discrimination on grounds of race is pro­
hibited by the Equal Protection Clause of the Fourteenth 
Amendment. See eg. McLaughlin v. Florida, 379 U.S. 184 
(1964) .

A quota in favor of non-whites is a classification 
on the basis of race.

The District Court erroneously failed to even 
restrict the preference to members of the aggrieved class. 
See eg. Castro v. Beecher, 459 F.2d 725 (1971), which 
upheld an interim hiring method granting preference to 
minority group members who had actually taken and failed a 
discriminatory test but later passed the new validated 
test. Consequently, those individuals who had been dis­
criminated against were eligible for a preference but the 
trial court here has accorded a preference to any black or 
Hispanic, a preference which is without rational basis 
or legal support.

As was said by the United States Supreme Court in 
Milliken v. Bradley, 42 U.S. Law Week 5249, July 25, 1974, 
"The task is to correct by a balancing of the individual

29-



and collective interests the condition that offends the 
Constitution" but the power should be used "only on the 
basis of a constitutional violation".

Chief Justice Burger, stated:
"The controlling principle, consis­

tently expounded in our holdings, is 
that the scope of the remedy is deter­
mined by the nature and extent of the 
constitutional violation . . .  an 
inter-district remedy might be in 
order where the racially discriminatory 
acts of one or more school districts 
cause racial segregation in an adjacent 
district or where district lines had 
been deliberately drawn on the basis of 
race . . . Conversely, without inter­
district effect, there is no constitu­
tional wrong calling for any inter­
district remedy".
Intervenors-appellants agree that a new validated 

non-discriminatory test be prepared forthwith but we 
earnestly oppose as unjustified the remedy of hiring 
quotas either before or after the new selection procedure. 
A single test adopted in good faith but declared after 
trial not to be job related does not justify such drastic 
dismantling of the Civil Service system.

The cornerstone of a professional civil service 
is the concept of appointment and proportion based upon 
merit, fitness and ability. In New York State the 
guarantee concerning merit is contained in the New York 
State Constitution, Section 6, Article 5:

-30-



"Appointments and promotions in the 
civil service of the state and all of 
the civil divisions thereof, including 
cities and villages shall be made 
according to merit and fitness to be 
ascertained, as far as practicable, by 
examination which as far as practicable, 
shall be competitive; . . . "

The New York State Civil Service Law provides a statutory 
implementation of this constitutional mandate which has 
a long and honorable history of successful administration.

Neither plaintiffs nor the State purport to urge 
any merit basis for promotion to sergeant. The introduction 
of nonmerit procedures and standards would contravene not 
only the State Constitution and Civil Service Law but would 
also violate the EEOC Guidelines since merit is closely 
associated with job success and criteria. Furthermore, 
such a procedure would deny equal protection of the law 
to the intervenors and their class.

The District Court has ordered a quota without 
mandating any objective showing of relative qualifications. 
This action is grossly racially discriminatory since many 
white provisional correction sergeants were not retained 
because they too failed the examination and men, both 
black (Ribeiro) and white have passed the test and success­
fully worked as provisional sergeants. The only qualifica­
tion that plaintiffs apparently claim is satisfactory is on 
the job performance, yet both the white disqualified provi­

-31-



sional and all sergeants appointed from the eligible list 
have likewise satisfactorily performed. The plaintiffs do 
not even seek the appointment of the most highly qualified 
minority correction officers since a number of minority 
candidates scored higher on the test than the named plain­
tiffs and some of them are in the class of intervenors.
This is offensive to the concept of merit, denies equal 
protection of the law and should not be countenanced by this 
Court.

The District Court has in practical effort ordered 
a criterion validated examination. It ignored the consequen­
ces to all correction officers and provisional correction 
sergeants that flow from this demand. All agree that the 
construction of valid criteria for any position is a time 
consuming task and the possibility exists that even after 
a large investment of time, valid criteria may not be 
established.

This seemingly joint disregard for prompt action 
in this highly crucial matter is offensive to the system 
long and successfully operated under the New York Constitu­
tion and the New York State Civil Service Law. This Court 
should endeavor to fashion a remedy consistent with those 
articles, not destructive of them.

If the merit system is to function it is necessary

-32-



that there be a minimum of delay in the creation and 
administration of a valid test and thereafter a minimum 
of delay in establishing a promotional list. The 
State of New York has the facilities to proceed with 
all due dispatch in the creation of a valid examination 
for the position of correction sergeant.

The Court should, as an interim measure, require 
the prompt creation of an examination validated by any 
acceptable method considering the following points:

1. The creation of any validated examination 
will be a time consuming process.

2. The effect of the decision in this case 
invalidating examination 34-944 is to leave all current 
correction officers, white, black and hispanic, without 
any method of advancing in their choosen profession.

3. The experts agree that the development of a 
criterion validated test must be conditioned upon the 
development of valid criteria, a process that is by no 
means certain.

4. The development of alternate methods of 
testing will require a long period of time even if 
feasible under EEOC Guidelines.

5. The pool of permanent sergeants is continually 
being depleated due to advancement, retirement, death

-33-



and resignation.
6. Any attempt to maintain the sergeant pool by 

provisional appointments suffers the very infirmity 
complained of by plaintiffs in paragraph 18 of their 
complaint, that is lack of interinstitutional mobility 
since very few persons, if any, will accept the hardships of 
relocation for a provisional appointment.

7. The continuation of the uncertainty of appoint­
ments will adversely effect the public interest, the private 
interest of all correction officers and of all members of 
the classes represented by the named intervenors, the 
named plaintiffs, and the State.

The District Court held that the State did not 
meet its burden of demonstrating strong probabilities that 
the test 34-944 was job related. The only proven vice 
of the examination was a statistical discrimination 
against the racial and cultural group represented by plain­
tiffs. In holding that the test was not fair within the 
mentioned limits there was no holding that the examina­
tion was not valid within the various social and ethnic 
groups.

Despite the experts opinions, examination 34-944 
has shown predictive validity at least as to those officers 
who received appointments from the promotion list and who

- 34-



have successfully filled the job for over a year. No party 
to this action has contended that the correction officer who 
passes examination 34-944 with high marks is for that 
reason unqualified for the position of correction sergeant. 
There has been no showing that there exists a negative corre­
lation between the examination mark and the ability to pro­
perly function as a correction sergeant. In fact, the 
named intervenors and those of their class who have been 
appointed to the position of correction sergeant have per­
formed the tasks required in a satisfactory and acceptable 
manner and make up a significant segment of the correction 
sergeants in the New York State Correctional System.

All the officers promoted from the promotion 
list generated by examination 34-944 were promoted to 
permanent positions but for this action. The State 
presumably followed its own rules and regulations for 
evaluating those officers as correction sergeants during 
service in the position. The New York State Civil Service 
Department Rules and Regulations provide for an 8 to 26 
week probationary term for all promotions with reversion 
to the previous lower rank if the appointee is found to 
be lacking in capacity, conduct or performance. Presum­
ably the sergeants promoted from the 34-944 list were so 
evaluated and found satisfactory since none were demoted back

-35-



to correction officers and the State in this action has 
asserted that all sergeants promoted from the list are 
satisfactory.

The rules and regulations except temporary and 
provisional appointments so that the named plaintiff 
and the five other officers similarly situated were 
presumably not so evaluated during their provisional 
service and can not claim that they passed any 
probationary period or on the job evaluations 
successfully.

It is the intervenors -appellants contention that 
examination 34-944 is a more accurate predictor of ability 
to properly perform the duties of correction sergeant than 
a recommendation of one or two supervisors. The named 
plaintiffs and the five other officers so situated 
received their provisional appointments on recommendation 
from their supervisors based on no proven valid criteria. 
The named intervenors and those of their class who have 
been appointed correction sergeants are more qualified than 
the named plaintiffs to hold their positions. The satis­
factory performance of the class members as correction 
sergeant in fact provides a post-validation of 
examination 34-944 as to those officers who received 
appointments as a result of the examination.



The intervenors suggest that an order be entered 
providing for the permanent appointment to the position 
of correction sergeant of all of the correction sergeants 
appointed from the 34-944 eligible list who now have 
satisfactorily completed and who hereafter satisfactorily 
complete the twelve week provisional period.

This interim relief would have the following
effects:

1. Prevent an unjust and inequitable penalization 
of the employees who participated and succeeded in the 
selection procedure in good faith and without fault.

2. Prevent a chaotic situation from developing 
in the correctional system.

3. Provide for the manning of the vital position 
of correction sergeant by persons demonstratably suited 
for the positions.

4. Provide a rational basis for the selection 
of permanent correction sergeants until the required 
examination can be prepared.

In Chance v. Board of Examiner, 458 F.2d 1167, 
(Second Circuit, 1972) the court accepted the appointment 
of "acting" supervisors. Such a procedure here would be 
totally unworkable and unjust. The fact situation in 
this case is very different from the fact situation in

-37-



Chance. In Chance all of the positions were located in
the City of New York, in this case the positions are located 
throughout the New York State. In Chance it was not 
necessary for an "acting" superviser to move his residence 
and foresake his community in order to accept an "acting" 
supervision position. In this case many persons have been 
forced to move their residence or to establish a second 
residence for the purpose of taking a Sergeant's 
appointment. In Chance, id 1178, there was a finding 
that the injunctions would cause no "great harm" to the 
public or to school children in view of the availability 
of acting appointments in New York City. In the case at 
bar there will be harm to the public because the availability 
of provisional Sergeants will be low because of the actual 
hardships encountered.

Taking into account all of the facets of this case, 
the balance of hardships does not favor the plaintiffs 
compared to the intervenors.

The true victims of this action are the intervenors 
and the class which they represent. These men fulfilled all 
of the requirements of a promotion set by the State, many 
of them have been forced to change their residences or 
maintain separate abodes apart from their families. All 
of them have surrendered their position as Correction

-38-



Officers and if their appointments are not confirmed each 
will revert by operation of the New York State Civil Service 
Law to the position of Correction Officer. Moreover they 
will not return to the positions which they held prior 
to their appointments to Correctional Sergeant but will 
be forced to take positions now open and of the least 
desirable nature since under the contract between the 
State of New York and Security Unit Employees, Council 82, 
AFSCME, AFL-CIO, now in effect the persons now acting 
as provisional Correction Sergeants cannot bump the officers 
who have taken their old positions and who now hold 
permanent appointments.

When objectively considered, a highly inequitable 
and discriminatory result is obvious. The permanent 
appointment of the named plaintiffs and the five other 
officers holding provisional appointments to the position 
of Correction Sergeant and other quota beneficiaries to 
the exclusion of all the officers holding provisional 
appointments as Correction Sergeant as the results of 
passing examination 34-944, would result in a highly 
artifical class eligible for the next examination for 
the position of Lieutenant. In fact the requested 
remedy will allow the named plaintiffs and five other

-39-



officers so situated several attempts at the position 
of Lieutenant while all of the other Correction Officers 
and provisional Correction Sergeants are barred from 
advancing even to the permanent position of sergeant 
and this bar would act against all white, black and 
hispanic officers. In other words success will be 
penalized. After all, what is more unjust than depriving 
intervener-appellant Ribeiro of his hard won promotion. 
Does his success make him less worthy.

The racial composition of the Department of 
Correctional Services staff taken from the State trial 
memoranda in this case is summarized below:

1/1/73 5/1/73 2/20/74
White 89.7% 88.8% 86.0%Black 8.6% 8.5% 10.9%
Hispanic 1. 7% 2.7% 3.1%
Total Minority 10.3% 11.2% 14.0%

The trend is clear from these statistics that the 
representation of blacks is increasing in the entry level 
pool. From these statistics and from the testimony at 
trial it appears that the number of minority Correction 
Officers has greatly increased in the last few years 
although until the last examination only a few minority 
officers were sufficiently experienced to qualify for the 
Correction Sergeant examination.

-40-



The imposition of quotas for promotion would 
result in the high probability that less qualified 
minority Correction Officers would receive appointments 
to the permanent position of Correction Sergeant to the 
detriment of better qualified white and minority correction 
°fficers. After the disaster at the Attica correctional 
facility it is necessary to assure that the best possible 
officers man each position in the correctional facilities.

The basis of the relief sought by plaintiffs is 
that minority groups should be fairly represented at 
the level of Correction Sergeant. The intervenors- 
appellants agree that minority groups should be fairly 
represented but we do not agree that fair representation 
requires absolute numerical representation.

We respectfully submit that the seniority require­
ments imposed by the State for promotion to sergeant 
(two years employment as Correction Officer before taking 
the promotional examination and three years employment as 
Correction Officer before promotion to Correction Sergeant) 
are in furtherance of a valid state interest and do not 
impose unnecessary restrictions upon minority advancement 
in the Correction Officer series. The intervenors- 
appellants submit that absolute numerical representation 
would be unfair to Correction Officers in general, since

41-



the percentage of minority group members has expanded 
drastically in the last three years, and since minority 
groups are over represented in the low seniority position 
due to this rapid increase in employment. Thus, minority 
representation should not be based upon the number of 
minority members, but upon the number of minority members 
eligible for promotion through the acquisition of 
experience on the job.

This Court should also consider that the recent 
transfer of the Bayview and Edgecomb facilities from the 
Narcotics Addiction Control Commission to the Department 
entailed the transfer of the staff of these facilities 
from the Narcotics Addiction Control Commission to the 
Department. These facilities are staffed by officers who 
are almost exclusively members of the minority groups 
at all levels, including Correction Sergeant (formerly 
charge officer). The addition of minority group Sergeants 
from Bayview and Edgecomb should thus be considered in 
determining the necessity of making remedial appointments 
of minority group members to the position of Correction 
Sergeant.

The intervenors-appellants seek a middle ground 
between the polar views of the District Court and the 
plaintiffs on one hand and defendants on the other. We 
seek the prompt construction of an examination validated

-4 2-



by any recognized method, based upon the past experience 
of the State in promotional testing and the requirement 
that the examination be constructed free from constitu­
tional taint.

The New York State Civil Service Commission and the 
New York State Department of Correctional Services are 
both large organizations with impressive resources.
Moreover, both have access to the larger and even more 
impressive resources of the State of New York. Any 
claim that the prompt creation of a validated examination 
for the position of Correction Sergeant would place a 
strain upon these resources appears to be highly artificial.

This action has forced the State into an indepth 
examination of the position of Correction Sergeant and 
should by this time have produced a detailed job analysis 
sufficient to support the development of a valid, job 
related examination. Also the methods project already 
undertaken by the State covering the position of Correction 
Sergeant should reduce any burden in creating a new 
examination.

The intervenors-appellants do not dispute the 
possible necessity of creating new forms of testing or 
the possible necessity of a criterion validation for 
future examinations. However, even with the vast 
resources available to the State, the intervenors-

-43-



appellants question the possibility of creating such 
an examination within a reasonable period of time, and 
question the necessity of such a remedy at this time.
The Court should consider the fact that over 4,000 
Correction Officers have been prevented from normal 
promotion opportunity since August 1972 and any un­
necessary delay in the creation of a new examination 
would unduly prejudice all Correction Officers including 
those represented by the plaintiffs.

Intervenors-appellants agree with the need for 
continuing supervision of this Court over the construction 
of a new, validated, job related examination involving 
all parties to this appeal. In order that such super­
vision be of any practical value it is necessary that a 
fully adversary hearing be held to inquire into the 
validity and validation of the new examination. Full 
supporting data should be required to be delivered to 
the attorneys for the plaintiffs and to the attorneys 
for the intervenors-appellants to enable the Court to 
have the widest possible variety of objections and 
comments concerning the proposed new examination. The 
plaintiffs' attorneys would insure against the inclusion 
of any material that is prejudicial to the rights of 
minority members. The attorneys for the intervenors-

-44-



appellants would provide protection against materials 
that were prejudicial against all other Correction 
Officers.

Any proposal by the State calling for its 
development of a new examination lacking scrutiny by the 
parties to this action and by the Court simply asks for 
a repetition of this lawsuit. For the good of all persons 
involved whether parties or nonparties it is necessary 
that there be a final conclusion to the problem presented 
in this action.

In an earlier memoranda, the plaintiffs conceded 
that but for the temporary restraining order the eighty- 
seven Correction Officers who received provisional 
promotion to the position of Correction Sergeant on or 
before April 12th, 1973 would have received permanent 
appointments to that position effective as of April 12th, 
1973. In light of the States continuing needs, it is not 
necessary to bar these Correction Officers from the position 
of Correction Sergeant in order to obtain full and adequate 
relief in this action.

Based on the principle that equity will do no 
unnecessary harm, this Court should refraim from taking 
any action which would deprive these officers of the 
position of Correction Sergeant.

-45-



The intervenors seek permanent appointments as 
Correction Sergeant for all other Correction Officers 
who received appointments as Correction Sergeants based 
upon their performance on examination 34-944.

The State of New York has already taken action 
which would obviate any need to remove these men from 
the position of Correction Sergeant in order to grant 
equitable relief. The State of New York has recently 
commenced a plan to transfer the Bayview and Edgecomb 
facilities from the Narcotic Addiction Control Commission 
to the Department of Correctional Services. Upon 
information and belief this transfer entails among other 
consequences, the transfer of 12 or 13 minority charge 
officers to the position of Correction Sergeant. Upon 
information and belief, these Sergeants would constitute 
approximately six percent of the total Correction Sergeants 
in the Department of Correctional Services. The intervenors- 
appellants are not implying that this transfer to the 
Department of Correctional Services of the Bayview and 
Edgecomb facilities is in any way an attempt to correct 
racial imbalances caused by past examinations but rather 
that this is a consequence of a valid State purpose in 
increasing the number of correctional facilities.
Intervenors also point out that the State of New York

-46-



has not been uniformly successful in obtaining minority 
supervisory officers in the various series of 
institutional examinations and has not shown intentional 
prejudice against minority advancement.

These new minority Correction Sergeants, when 
coupled with the positions that have been unfilled since 
the date of decision in this action, and the new Correction 
Sergeants positions which have been authorized for the 
Department of Correctional Services, allow this Court 
sufficient latitude to achieve the results desired by 
the plaintiffs without harming any of the officers who 
were appointed Correction Sergeant as the result of 
examination 34-944.

The date of appointment as provisional Correction 
Sergeant should govern the date of permanent appointment 
and no harm is done to any party by such an order. To 
set any later date for the permanent appointment would 
cause damage to the officers by placing them lower on 
the seniority scale than their service in rank calls 
for and by possibly placing them lower on the pay scale 
than their length of service in rank requires.

The impact of the decision of the District Court 
falls not upon the State but rather the Correction 
Officers who in good faith took and passed examination 
34-944.

-47-



There was no showing of a negative correlation 
between test results and ability or job preparedness.
There was no showing that the examination did not fully 
and fairly distinguish ability and job preparedness 
within the various ethnic groups.

The intervenors urge this Court not to disregard 
the expectations and equities of those Correction Officers 
who successfully participated in examination 34-944, 
an examination which they did not know and could not know 
was constitutionally tainted.

A possible additional requirement could be added 
requiring all Correction Sergeants who were appointed 
since the trial to pass the new, validated examination 
in order to retain their permanent positions as Correction 
Sergeant.

No solution to this problem is going to please 
everyone but this Court should attempt to fashion a remedy 
which will assure constitutional fairness and do the 
least possible harm to all persons, whether parties or 
non-parties.

-48-



CONCLUSION

THE DETERMINATION OF THE DISTRICT 
COURT SHOULD BE REVERSED, THE 
COMPLAINT SHOULD BE DISMISSED AND 
ALL APPOINTMENTS MADE TO THE POSI­
TION OF CORRECTION SERGEANT AS THE 
RESULT OF EXAMINATION 34-944 SHOULD 
BE MADE PERMANENT. IN THE ALTERNA­
TIVE THE DETERMINATION OF THE DIS­
TRICT COURT SHOULD BE MODIFIED, ALL 
APPOINTMENTS MADE FROM THE ELIGIBLE 
LIST GENERATED BY EXAMINATION 34-944 
SHOULD BE MADE PERMANENT, IN THE 
INTERIM THE COURT SHOULD ORDER 
SELECTION PROCEDURES DEVISED BASED ON 
MERIT WITHOUT THE IMPOSITION OF RATIO 
QUOTAS AND THE STATE SHOULD BE ORDERED 
TO DEVELOP A NEW CONSTITUTIONAL 
EXAMINATION UNDER THE SUPERVISION OF 
THE COURT WITH PARTICIPATION BY 
PLAINTIFFS AND INTERVENORS.

Dated: October 23, 1974
Albany, New York

Respectfully submitted,
SNEERINGER & ROWLEY P.C. 
Attorneys for Intervenors- 

Appellants
Office & P. 0. Address 
90 State Street 
Albany, New York 12207 
Tel. No. (518) 434-6188

RICHARD R. ROWLEY, 
JEFFREY G. PLANT, 

Of Counsel.



IN TI1E UNITED STATES DISTRICT COURT

EDWARD L. KIRKLAND, et a.L,
Plaintiffs,

vs.
THE NEW YORK STATE DEPARTMENT OF 

CORRECTIONAL SERVICES, ct al„,
Defendants.

YORK

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73 Civ. 1543

x

ORDER

Upon all of the papers heretofore filed and the Court's 
having heard argument of counsel, it is hereby

ORDERED, that defendant deliver to plaintiffs’ counsel 
on or before June 18, 1973, for each individual in each of the 
categories hereinafter set forth, the following information con­
tained in such individual’s personal history folder or-other 
personnel record:

1) all educational entries;
2) all work experience;
3) all memoranda or documents relating to such 

employee which contain criticism, commendation, 
appraisal or rating of such individual's per­

formance on his job;
The categories of persons about whom such information 

is to bo provided are as follows:
1) all white employees of the Department of

Correctional Services who held provisional 
appointments to the position of Correction 
Sergeant (Male) as of April 10, 1973, took 
examination Number 33944 and
a) passed the oxanrii ticn and ranked in

the f i r<: t 100 of l I'l or. o on the iresu 11
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eligible list;
b) passed the examination and ranked 

below the first 100 on the resulting 
e 1 .i g ib 1 e list*

c) failed the examination;
2) all black employees of the Department 

who held provisional appointments to the 
position of Correction Sergeant (Male) 
as of April 10, 1973, took examination 
number 34944, and
a) passed the examination and ranked 

in the first 100 of those on the 
resulting eligible list;

b) passed the examination and ranked 
below the first 100 on the resulting 

eligible list;
c) failed the examination;

3) all white employees of the Department of 
Correctional Services who took examination 
number 34944 and
a) passed the examination and ranked 

from 1 to 20 on the resulting 
eligible list;

b) passed the examination and ranked from 
201 to 220 on the resulting eligible 

list;
c) passed the examination and ranked 

from 387 to 406 on the resulting 

eligible list;
d) failed the examination, achieving 

scores from 65 through 65.9;
4) all black and Hispanic employees of the 

Department v.’ho took examination number 

34944 and

‘a) passed the examination and ranked

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from 1 to 20 on the resulting
eligible list;

b) passed the examination and ranked 
from 201 to 220 on the resulting 
eligible list;

c) passed the examination and ranked 
from 387 to 406 on the resulting 
eligible list;

d) failed the examination, achieving 
scores from 65 through 65.9,

There shall be designated on each individual's record
the category and sub-category or categories and sub-categories

i

United States District Judge



ENDORSEMENT

v. THE NEW YORK 
iVICES, et alo ,

WwVfl

ROBERT JACKSON, et al., Plaintiffs, 
STATE "DEPARTMENT OF CORRECTIONAL SI 
-Defendants. 73 Civ. 1548
Ck, A v, ~ ‘
LASKER, D.J.

£  The motion is denied. Although we do not agree 
withe'piaintiffs and defendants that the mere fact that 
v£he proposed interveners may not have property rights 
in the position of correction sergeants in conclusive 
against'their having a right to intervene, we never­
theless believe the motion should be denied for the 
following reasons:

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(A) Untimeliness. This suit was commenced on 
April 10th, by the filing of a complaint and a motion 
for temporary relief. Counsel for the proposed inter­
veners acknowledges that the existence of the action
and the ore 
short time 
nature of i

ler issued was known to the movants within a 
after the suit was brought, and, in the 
:he case, we believe it reasonable to infer 

that all persons interested in becoming correction 
sergeants learned of the suit at an early date, even- 
if not formally notified. This application for inter­
vention was not made until July 11th, only ten business 
days prior to the commencement of trial. To permit 
intervention so late in the game would result in the 
necessity of reopening discovery, which would be 
completely unacceptable, unless -- and this is the 
position which the interveners have acknowledged in 
their papers -- the movants do not participate in the 
trial or proceedings.relating to the merits of the 
case. True intervention would inevitably require a 
delay in the trial now set to commence July 23rd. In 
a matter affecting the assignment of correction 
sergeants in State institutions such a delay would 
clear]y be prejudicial to all concerned, the plaintiffs, 
defendants and. rhe public.

(B) Questionability of Right to Intervene. 
Furthermore, while we have indicated some doubt that 
the lac): of a property right by the proposed inter­
veners in the correction sergeant job establishes 
conclusively that they have no right to intervene, 
nevertheless whether they do have a right to intervene

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is far from clear. There .is a serious question whether 
the interests they assert and see): to protect will be 
affected by the outcome of this lawsuit.

There are further complications: Among the
groupcf proposed intervenors, interests conflict: 
some of them have passed the examination under attack 
and some have failed it. There is no indication 
vrtiether movants wish to be aligned as plaintiffs or 
defendants or how they should be aligned.

(C) Modification of Existing Order. The true 
objectives of the proposed intervenors, as they acknow­
ledge, is solely to secure a modification of the 
extended temporary restraining order presently in 
effect. In the exercise of our discretion, we decline 
to modify the order. To lift the ordered freeze in the 
present critical stage immediately prior to trial, 
and at a time close to a full determination of the 
issues of the case, would be disruptive and have an 
adverse affect on the morale of the Correction Service. 
Furthermore, movants have made no showing of irreparable 
harm to them pendente lite.

The motion is denied.
It is so ordered.

Dated: New York, New York
July 18th, 1973.

U . S . D . J .

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(JillTED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK

EDWARD L. KIRKLAND and NATHANIEL IIAYES, 
each individually and on behalf of all 
others similarly situated,

Plaintiffs
-against-

TIIE NEW YORK STATE DEPARTMENT OF CORR- 
TIOMAL SERVICES: RUSSELL OSWALD, 
individually and in his capacity as 
Commissioner of The New York State 
Department of Correctional Services; THE 
NEW YORK STATE CIVIL SERVICE COIEHSSION : 
ERSA POSTON, individually and in her 
capacity as President of the Hew York 
Civil Service Commission and Civil Service 
Commissioner; MICHAEL N. SCEILSI and 
CHARLES F. STOCKMSISTER, each individually 
and in his capacity as Civil Service 
Commissioner,

Defendants.

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/ SUPPLEMENTAL 
• ORDER AND DECREE

73 Civ. 1548 MEL

• V

-X

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• Application having been made herein by defendants for \ 
clarification and/or supplementation of the Order and Decree of 
this Court dated July 31, 1974, regarding the appointment of 
provisional Correction Sergeants (Male) pending the implementation

t
of the interim selection procedure for permanent appointments > 
and/or the final selection procedure of permanent appointments, 1 
and argument having been had upon said application, and upon due i 
consideration, it is * .

ORDERED, ADJUDGED AND DECREED that the Order and Decree 
of this Court in the above captioned action, dated July 31, 1074 ; 
be and hereby is supplemented as follows:

a. Defendants are authorized to make provisional 
appointments to the position of Correction Sergeant (Male) pending 
the implementation of the interim selection procedure for 
permanent appointments and/or the final selection procedure for

EXHIBIT »





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