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Uniform Act to Secure Attendance of Witnesses from Without the State in Criminal Cases Allowed Colorado Court to Subpoena a Reporter for Purposes of Testifying About Her Confidential Sources in a Matter Related to the Aurora Movie-Theater Shootings

In a full-fledged opinion by Justice Clark, over a two-justice dissent in an opinion by Justice Saxe, the First Department determined a reporter could be compelled to testify, under Criminal Procedure Law section 640.10, in a Colorado proceeding which sought to identify law enforcement personnel who leaked information to the press.  The relevant facts are laid out in the dissenting opinion.  The petitioner in the case is James Holmes, the accused shooter in the Aurora, Colorado, movie theater massacre. The respondent is a reporter who interviewed two law-enforcement persons about the contents of a package allegedly sent by James Holmes to his treating psychiatrist.  A Colorado court issued a subpoena to the reporter.  Supreme Court enforced the subpoena under the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases (CPL 640.10).  Because the reporter has already appeared in Colorado, the controversy is moot.  But the First Department determined the exception to the mootness doctrine should be applied (important issue likely to recur, etc.). The reporter’s testimony about her confidential sources is protected in New York under Civil Rights Law section 79-h (b). But Colorado’s privilege statute is much weaker. The majority determined the privilege issue was irrelevant to the enforcement of the subpoena.  The dissent argued that the reporter would suffer “undue hardship” within the meaning of the statute if she were forced to reveal her confidential sources (because her livelihood depended on witness-confidentiality).  The majority wrote:

Petitioner furnished the court with a certificate issued, pursuant to the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases (CPL 640.10), by the Araphoe County District Court Judge, and demonstrated that respondent’s testimony was “material and necessary” …, and that she would not suffer undue hardship because petitioner would pay the costs of her travel and accommodations … . …

The narrow issue before the Supreme Court was whether respondent should be compelled to testify, and privilege and admissibility are irrelevant for this determination … . Respondent is entitled to assert whatever privileges she deems appropriate before the Colorado District Court. Compelling respondent to testify is distinguishable from compelling her to divulge the identity of her sources.  Matter of Holmes v Winter, 2013 NY Slip Op 05666, First Dept 8-20-13

 

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Constructive Condition Precedent Properly Fashioned by Court

In a full-fledged opinion by Justice Friedman, the First Department agreed with Supreme Court’s fashioning of a constructive condition precedent for the collection of additional rent under a lease. The First Department quoted the controlling law from the Court of Appeals:

“A condition precedent is an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises’ … . Most conditions precedent describe acts or events which must occur before a party is obliged to perform a promise made pursuant to an existing contract, a situation to be distinguished conceptually from a condition precedent to the formation or existence of the contract itself . . . .

“Conditions can be expressed or implied. Express conditions are those agreed to and imposed by the parties themselves. Implied or constructive conditions are those imposed by law to do justice’ … . Express conditions must be literally performed, whereas constructive conditions, which ordinarily arise from language of promise, are subject to the precept that substantial compliance is sufficient. The importance of the distinction has been explained by Professor Williston:

Since an express condition . . . depends for its validity on the manifested intention of the parties, it has the same sanctity as the promise itself. Though the court may regret the harshness of such a condition, as it may regret the harshness of a promise, it must, nevertheless, generally enforce the will of the parties unless to do so will violate public policy. Where, however, the law itself has imposed the condition, in absence of or irrespective of the manifested intention of the parties, it can deal with its creation as it pleases, shaping the boundaries of the constructive condition in such a way as to do justice and avoid hardship’. (5 Williston, Contracts § 669, at 154 [3d ed].)” Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co. (86 NY2d 685, 690-691 [1995]).  Mount Sinai Hosp v 1998 Alexander Karten Annuity Trust, 2013 NY Slip Op 05667, 1st Dept 8-20-13

 

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Applying New Jersey Law—Removal of Safety Guard from Machine Did Not Destroy the Applicability of Workers’ Compensation as the Exclusive Remedy

The First Department, over a two-justice dissent, reversed Supreme Court and dismissed a complaint alleging that a work-related injury was the result of an “intentional wrong” by the employer and, therefore, workers’ compensation was not the exclusive remedy.  The case required the application of New Jersey’s Workers’ Compensation Act, and the interpretation of the statutory term “intentional wrong” pursuant to New Jersey case law.  The injury to plaintiff’s fingers occurred on a machine from which a safety guard had been removed.  The First Department wrote:

…[I]n the present case there were no prior incidents or injuries caused by this machine; there is no evidence of deliberate deceit or fraudulent conduct on defendant’s part; and there were no OSHA violations issued to defendant prior to this incident. Although plaintiff testified that he requested on a number of occasions that the safety guard be replaced, he and other employees continued to use the machine without incident. Significantly, the accident would not have occurred absent plaintiff’s decision to retrieve a piece of stuck leather with his hand, rather than using a long-handled brush or long-handled screwdriver, which was the normal procedure to clear machine jams over the past 13 years that the machine had been in use. In fact, plaintiff testified at his deposition that he used such a long-handled screwdriver over the years to clear jams in the machine. … Thus, there is an insufficient basis for finding that defendant knew that its conduct in not replacing the safety screens was “substantially certain” to result in plaintiff’s injury …, or that there was a “virtual certainty” of injury … . The probability or knowledge that such injury “could” result, or even that an employer’s action was reckless or grossly negligent, is not enough… . Lebron v SML Veteran Leather, LLC, 2013 NY Slip Op 05664, 1st Dept 8-20-13

 

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Local Law Purporting to Limit Term of County District Attorney Preempted by New York Constitution and State Law

The Second Department determined that the local law which limited the term of the county district attorney to 12 years was preempted by the New York Constitution and state law, thereby allowing the sitting district attorney (who had served for 12 years) to run for another term.  The court reasoned:

…[T]he County’s attempt to place a term limit on the office of District Attorney is impermissible. Since the office of District Attorney is not a local office falling within the ambit of NY Const, article IX, § 2(c)(1) or Municipal Home Rule Law § 10 (1)(ii)(a), the County had no authority to place restrictions on the District Attorney’s terms of office. Further, even if the District Attorney is a local office falling within NY Const, article IX, § 2(c)(1) and Municipal Home Rule Law § 10(1)(ii)(a), the New York Constitution and state law, together, so expansively and comprehensively regulate the office, that a county government’s ability to place restrictions on a District Attorney’s terms of office has been preempted. *  *  *

Pursuant to the maxim of statutory construction “expressio unius est exclusio alterius,” “where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” (McKinney’s Cons Laws of NY, Book 1, Statutes § 240…). Here, in light of the fact that the New York Constitution and state law speak to the duration and term of office of the District Attorney, there is an irrefutable inference that the imposition of any limit on the duration of that office was intended to be omitted or excluded (see McKinney’s Cons Laws of NY, Book 1, Statutes § 240…). Indeed, regarding County Court judges, the New York Constitution provides for a 10-year term (see NY Const, art VI, § 10[b]) and a maximum duration to age 70 (see NY Const, art VI, § 25[b]). That the Constitution imposed a durational limit on County Court judges, but not on District Attorneys, who are also “constitutional officers,” indicates that the omission was intentional and that it was intended that there be no durational limit on District Attorneys. Matter of Hoerger v Spota, 2013 NY slip Op 05661, 2nd Dept 8-16-13

 

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Candidate’s Failure to File Certificate of Declination Re: His Accepted Candidacy for Town Councilman Precluded His Running for County Legislator

The Fourth Department, over a substantial dissent, reversed Supreme Court and determined a candidate (Irish) for town council was disqualified from running for county legislator.  Irish was first designated a candidate for town council but later was designated a candidate for the county legislature when a vacancy opened up. No certificate of declination of for the town council position was filed by Irish. The Fourth Department explained its role in overseeing election matters and the appropriate review under Article 78.  The court wrote:

It is firmly settled that we “cannot interfere unless there is no rational basis for [respondent’s] exercise of discretion or the action complained of is arbitrary and capricious” …and, here, we conclude that respondent had a rational basis for voting to certify a ballot naming Irish as a candidate for Town Councilman.  We note, first, that the failure of Irish to file a declination of the designation as a candidate for Town Councilman within the time prescribed by Election Law § 6-158 (2), is a “fatal defect” (Election Law § 1-106 [2]..,.).  Thus, his name must remain on the ballot as a candidate for that position … . Second, contrary to petitioner’s contention and the view of our dissenting colleague, we conclude that Irish was not disqualified from the designation for Town Councilman by virtue of his subsequent designation for County Legislator.  Indeed, “[a] candidate who ‘seeks to disqualify himself or herself . . . must present a legal basis for doing so’ ” … and Irish has presented no such legal basis here.  Moreover, petitioner has presented no authority for his position that the subsequent designation of Irish as a candidate for County Legislator disqualified him from being designated as a candidate for Town Councilman.  Rather, we conclude that, based on the designation of Irish as a candidate for Town Councilman, he was ineligible to be designated by the Committee as a candidate for County Legislator (see § 6-122; see generally County Law § 411).  We agree with the [2nd] Department’s conclusion … that, “[d]espite the unique circumstances of this case, ‘the judiciary is foreclosed from fashioning any exceptions to th[at] requirement, however reasonable they might appear’ ” … .  We conclude that there was a rational basis for respondent’s refusal to certify the ballot naming Irish as a candidate for County Legislator, and that such action was not arbitrary and capricious … . Matter of Ward v Mohr, 821, 4th Dept 8-16-13

 

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Rules Prohibited Interim County Organization of Erie County Independence Party from Authorizing the Designation of Candidates

The Fourth Department determined the applicable rules stripped the power to authorize the designation of candidates from the Interim County Organization (ICO) of the Erie County Independence Party:

Election Law § 6-120 permits a county committee to exercise the powers of nomination and designation “unless the rules of the party provide for another committee” (§ 6-120 [3]…).  Here, inasmuch as the Executive Committee is vested “with the authority to issue authorizations in Erie County,” we agree …that the ICO is “thereby stripp[ed] .. . of that authority”… .  Matter of NYS Committee of the Indepence Party v Mohr, 822, 4th Dept 8-15-13

 

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Conservative Party’s Executive Committee Had Authority to Designate Candidates for County Executive and County Clerk in Chautauqua County

The Fourth Department rejected the argument that the Conservative Party’s Executive Committee did not have the authority to designate candidates for county executive and county clerk in Chautauqua County:

It is undisputed that, pursuant to the Election Law, the County Committee is the default “party committee” empowered to issue … certificates for the county offices at issue (Election Law § 6-120 [3]…) .  Petitioner, however, contends that the rules and regulations of the County Committee of the Conservative Party (County Committee rules) did not effectively delegate that authority to the Executive Committee and thus that the Executive Committee lacked the power to issue the …certificates.  We reject that contention and conclude that, under these circumstances, the County Committee rules delegated to the Executive Committee the power to authorize the designation of the Unenrolled Candidates as candidates for the relevant county offices in the upcoming Conservative Party primary election… . Matter of Bankoski v Green, 820, 4th Dept 8-15-13

 

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Misspellings Did Not Render Signatures Invalid

The Third Department affirmed Supreme Court’s ruling that misspellings in the petition did not create confusion about the party and person referred to and, therefore, the relevant signatures were valid:

…[T]he term “Democratic” appears on various sheets of the petition as “Demoratic,” “Demotatic” and “Demacatic.”  These minor misspellings, however, would not tend to confuse the signatories as to the political party involved and nothing in the record indicates an intent to do so … .  Similarly, although petitioner’s last name is spelled on one sheet of the petition as “Mannaurino” and on another as “Mannano,” there has been no showing of any intention to mislead or confuse, nor is there any evidence that the inaccuracy would or did tend to mislead signatories as to the identity of the candidate… .  Matter of Mannarino v Goodbee, 517215, 3rd Dept 8-15-13

 

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Opportunity to Ballot Should Not Have Been Allowed—Criteria Explained

The Third Department reversed Supreme Court’s granting of the opportunity to ballot where the designating petition did not have the required number of valid signatures and there was no evidence of the reason(s) some of the signatures were deemed invalid (no hearing was held).  The Third Department explained the procedure for determining whether the opportunity to ballot should be granted:

“The ‘opportunity to ballot’ remedy . . . was designed to give effect to the intention manifested by qualified party members to nominate some candidate, where that intention would otherwise be thwarted by the presence of technical, but fatal defects in designating petitions, leaving the political party without a designated candidate for a given office”… .  The case law makes clear, however, that this discretionary remedy …”was not intended to be a generally available substitute for the petition process set forth in article 6 of the Election Law” … .  Accordingly, a court should grant an opportunity to ballot “only where the defects which require invalidation of a designating petition are technical in nature and do not call into serious question the existence of adequate support among eligible voters” ….  Such a determination, in turn, typically occurs following a hearing, at which the specific reasons for invalidating the affected signatures may be established … .  Notably, a challenge directed to an individual’s eligibility to sign a candidate’s designating petition in th e first instance implicates a substantive – as opposed to technical – defect … .  Matter of Roberts v Work…, 517208, 3rd Dept 8-15-13

 

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“Technical Irregularities” Did Not Preclude Allowing Opportunity to Ballot

The Third Department applied the concept of “technical irregularities” to signatures rendered invalid by problems with two subscribing witnesses.  In spite of the invalidation of the signatures, because there was no fraud and no indication the voters were not entitled to sign the petition, the opportunity to ballot was properly allowed:

The record establishes that one of the subscribing witnesses, a commissioner of deeds, failed to inform any of “the signers that, by signing the petition, they affirmed the truth of the matter to which they subscribed” … . While the signatures collected by him were rendered invalid as a result, under the circumstances presented here his failure constituted nothing more than a “technical irregularity”… .The second subscribing witness, Horan, mistakenly executed the statement intended for a notary public or commissioner of deeds rather than that meant for party members.  While Horan is in fact a notary public, he did not identify himself as such in the witness statement (see Election Law § 6-132…).  The signatures that Horan witnessed were rendered invalid as a result, but his failure to indicate his position was a technical defect that did “not call into serious question the existence of adequate support among eligible voters” … .  Absent any indication that fraud was involved or that the voters who signed the invalid pages were not entitled to sign the petition, Supreme Court properly directed an opportunity to ballot for the offices… .  Matter of Hall v Dussault…, 517199, 3rd Dept 8-15-13

 

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