May 08, 2019

There is no fundamental right to government employment within the meaning of the Equal Protection Clause


Vehicle and Traffic Law §236(2)(d) provides that hearing examiners of a municipality's parking violations bureau "shall not be considered employees of the city in which the administrative tribunal has been established."

Plaintiff's in the action challenged this "employment exclusion" set out in the Vehicle and Traffic Law, contending it was unconstitutional. The Appellate Division disagreed, holding the limitation was constitutional  under the New York State Constitution. The court explained that the Plaintiffs failed to state a claim that the provision that hearing examiners of a municipality's parking violations bureau "shall not be considered employees of the city in which the administrative tribunal has been established" is unconstitutional, having failed to identify any State law or regulation independent of the Constitution that confers upon a property interest in the employment status they seek, being deemed to be an employee of a municipality that designated them parking violations hearing examiners.

Further, said the court citing Winkler v Spinnato, 72 NY2d 402, "there is no fundamental right to government employment for purposes of the Equal Protection Clause.

The Appellate Division also rejected Plaintiffs argument that Vehicle and Traffic Law §236(2)(d) violates the labor-not-a-commodity clause contained in Article, §17 as the provision "merely guarantees to employees in New York the right to organize into trade unions free from prosecution under the antitrust laws as combinations or conspiracies in restraint of trade." Nor, said the court, is the merit-and-fitness clause in Article VI, §5 applicable. Accordingly Plaintiffs' claimed property deprivations fail to state a claim for alleged violations of these clauses as well.

The decision is posted on the Internet at:


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