Constitutional Law – Page 39 – New York Appellate Digest

LAWSUIT ALLEGING THE FAILURE TO PROVIDE SOUND BASIC EDUCATION CAN PROCEED, BUT ONLY WITH RESPECT TO SCHOOL DISTRICTS IN NEW YORK CITY AND SYRACUSE.

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined a lawsuit alleging school districts’ failure to provide the sound basic education guaranteed by the state constitution could proceed, but only with respect to school districts in New York City and Syracuse. The attempt to state causes of action statewide was rejected. The complaint must specifically allege the failure district by district. A second lawsuit, alleging failure to properly fund the schools in New York City, brought by different plaintiffs [Aristy-Farer], was dismissed in its entirety:

The NYSER [New Yorkers for Students’ Educational Rights] plaintiffs have sufficiently alleged deficient inputs and outputs with respect to New York City and, although in less detail, Syracuse, that give defendants adequate notice of what a potential remedy could require of them. In that regard, the NYSER complaint alleges deficient inputs (a lack of qualified teachers and principals, low levels of support staff, outdated curricula, unsuccessful English as a Second Language programs, overly large class sizes, lack of basic materials such as textbooks and chalk, a reduction in after-school and summer programs, and inadequate and unclean buildings and facilities) with respect to Syracuse and New York City, with some degree of specificity. The complaint further alleges deficient outputs with respect to those school districts (poor standardized test proficiency, high failure and drop-out rates, poor English proficiency, and inability to meet basic requirements to gain admission to gain admission to City or State colleges because their high schools do not offer basic course requirements).

The complaint also alleges a causal link between inadequate State funding and the failure of those two school districts to provide a sound basic education. … [G]oing forward, plaintiffs here will need to adduce evidence at trial proving, on the basis of current data, that the State has breached its constitutional obligation to provide a sound basic education to students in public schools. Should plaintiffs be successful, it will be up to the State to craft an appropriate response, subject to judicial review, because the courts have “neither the authority, nor the ability, nor the will, to micromanage education financing” … . Aristy-Farer v State of New York, 2017 NY Slip Op 05175, CtApp 6-27-17

June 27, 2017

ATTORNEY GENERAL PROPERLY SUBPOENAED DOCUMENTS RELEVANT TO WHETHER A NON-PROFIT WHICH COUNSELS WOMEN AGAINST TERMINATING THEIR PREGNANCIES WAS PRACTICING MEDICINE WITHOUT A LICENSE, HOWEVER THE SUBPOENA MUST BE TAILORED TO PROTECT THE RIGHT TO FREEDOM OF ASSOCIATION.

The Second Department, in a full-fledged opinion by Justice Cohen, determined the attorney general properly subpoenaed documents relevant to whether the non-profit Evergreen was practicing medicine without a license, but the subpoena had to be tailored to protect the First Amendment rights of Evergreen personnel. Evergreen counsels women in an effort to convince them not to terminate their pregnancies:

There is no question that the Attorney General’s investigation is of the utmost importance to protecting the health and safety of women. However, it is equally important that such investigation be carried out with respect and sensitivity to the constitutional rights of those involved. While the subpoena seeks documents that generally bear a reasonable relation to the subject matter of the Attorney General’s investigation, the demands are not narrowly tailored to require production of only those documents directly related to Evergreen’s alleged unauthorized practice of medicine. Thus, we limit in scope the demands set forth in the subpoena to require the disclosure of only those documents that are substantially related to the Attorney General’s legitimate need to gather evidence to determine whether Evergreen has engaged in the unauthorized practice of medicine and which do not unnecessarily intrude on Evergreen’s First Amendment right to freedom of association. Matter of Evergreen Assn., Inc. v Schneiderman, 2017 NY Slip Op 05086, 2nd Dept 6-21-17

CIVIL PROCEDURE (SUBPOENAS, FREEDOM OF ASSOCIATION, ATTORNEY GENERAL PROPERLY SUBPOENAED DOCUMENTS RELEVANT TO WHETHER A NON-PROFIT WHICH COUNSELS WOMEN AGAINST TERMINATING THEIR PREGNANCIES WAS PRACTICING MEDICINE WITHOUT A LICENSE, HOWEVER THE SUBPOENA MUST BE TAILORED TO PROTECT THE RIGHT TO FREEDOM OF ASSOCIATION)/CONSTITUTIONAL LAW (SUBPOENAS, FREEDOM OF ASSOCIATION, ATTORNEY GENERAL PROPERLY SUBPOENAED DOCUMENTS RELEVANT TO WHETHER A NON-PROFIT WHICH COUNSELS WOMEN AGAINST TERMINATING THEIR PREGNANCIES WAS PRACTICING MEDICINE WITHOUT A LICENSE, HOWEVER THE SUBPOENA MUST BE TAILORED TO PROTECT THE RIGHT TO FREEDOM OF ASSOCIATION)/ABORTION (SUBPOENAS, FREEDOM OF ASSOCIATION, ATTORNEY GENERAL PROPERLY SUBPOENAED DOCUMENTS RELEVANT TO WHETHER A NON-PROFIT WHICH COUNSELS WOMEN AGAINST TERMINATING THEIR PREGNANCIES WAS PRACTICING MEDICINE WITHOUT A LICENSE, HOWEVER THE SUBPOENA MUST BE TAILORED TO PROTECT THE RIGHT TO FREEDOM OF ASSOCIATION)/SUBPOENAS (FREEDOM OF ASSOCIATION, ATTORNEY GENERAL PROPERLY SUBPOENAED DOCUMENTS RELEVANT TO WHETHER A NON-PROFIT WHICH COUNSELS WOMEN AGAINST TERMINATING THEIR PREGNANCIES WAS PRACTICING MEDICINE WITHOUT A LICENSE, HOWEVER THE SUBPOENA MUST BE TAILORED TO PROTECT THE RIGHT TO FREEDOM OF ASSOCIATION)/FREEDOM OF ASSOCIATION (SUBPOENAS, ATTORNEY GENERAL PROPERLY SUBPOENAED DOCUMENTS RELEVANT TO WHETHER A NON-PROFIT WHICH COUNSELS WOMEN AGAINST TERMINATING THEIR PREGNANCIES WAS PRACTICING MEDICINE WITHOUT A LICENSE, HOWEVER THE SUBPOENA MUST BE TAILORED TO PROTECT THE RIGHT TO FREEDOM OF ASSOCIATION)

June 21, 2017

Constitutional Law, Zoning

NYC ZONING ORDINANCES CONCERNING ADULT BOOKSTORES AND CLUBS ARE CONSTITUTIONAL AND ENFORCEABLE.

The Court of Appeals, reversing the appellate division, in a full-fledged opinion by Judge Fahey, determined New York City’s zoning ordinances concerning adult bookstores and clubs were constitutional and, therefore, enforceable:

Viewed in the proper light, the evidence and the factual findings of the lower courts support only one conclusion: that the City met its burden of showing continued focus on sexually explicit activities and materials by the adult bookstores and adult eating and drinking establishments.

The Appellate Division found that all but one of the adult bookstores had peep booths for viewing adult films, with an average of about 17 booths per store. Peep booths, by design, obviously promote sexual activities. The Appellate Division further found that all the bookstores used signage, displays, and layouts to promote sexually focused adult materials and activities. In addition, as the trial court found, many of the adult bookstores sold sex toys, adult novelties, and the like in the nonadult sections of the stores. This evidence showed that most of the adult bookstores predominantly emphasized the promotion of sexual materials and activities. * * *

As to the adult eating and drinking establishments, the Appellate Division found that, in all the clubs, “topless dancing takes place at all times daily for approximately 16 to 18 hours a day” and also that lap dances, a quintessentially sexual activity, were offered by dancers “in both public and private areas of the club” … . This evidence, without more, adequately supported the conclusion that the topless clubs retained a predominant sexual focus. For the People Theatres of N.Y. Inc. v City of New York, 2017 NY Slip Op 04385, CtApp 6-6-17

ZONING (ADULT BOOKSTORES AND CLUBS, NYC ZONING ORDINANCES CONCERNING ADULT BOOKSTORES AND CLUBS ARE CONSTITUTIONAL AND ENFORCEABLE)/ADULT BOOKSTORES AND CLUBS (ZONING, NYC ZONING ORDINANCES CONCERNING ADULT BOOKSTORES AND CLUBS ARE CONSTITUTIONAL AND ENFORCEABLE)/CONSTITUTIONAL LAW (ZONING, ADULT BOOKSTORES AND CLUBS, NYC ZONING ORDINANCES CONCERNING ADULT BOOKSTORES AND CLUBS ARE CONSTITUTIONAL AND ENFORCEABLE)

June 6, 2017

Constitutional Law, Landlord-Tenant, Municipal Law, Nuisance, Public Nuisance

NUISANCE LAW COULD LEAD TO EVICTION FOR REPORTING CRIMES TO THE POLICE, THE REACH OF THE LAW VIOLATED TENANTS’ FIRST AMENDMENT RIGHTS AND WAS THEREFORE UNENFORCEABLE AGAINST THE LANDLORD.

The Third Department, in a full-fledged opinion by Justice Garry, determined a village nuisance law was facially unconstitutional and could not be enforced against the owner of several properties which rented out single rooms. Apparently, criminal activity, including domestic abuse, at these properties was a concern for the village. The local village nuisance law assigned points for certain conditions or incidents at the properties. Points were assessed even when police were called to the properties by crime victims. Once a certain number of points are accumulated, the village can take certain enumerated actions against the property owner, including ordering the eviction of tenants. The reach of the nuisance statute therefore encroached on the tenant’s first amendment right to report crimes to the police (to petition the government for redress of grievances):

The Nuisance Law’s provisions pertaining to remedies demonstrate that the loss of a tenant’s home may result directly from the designation of a property as a public nuisance. As previously noted, the Nuisance Law expressly permits owners to include the eviction of tenants in the required plans to abate public nuisances — again, with no exception for tenants who may have caused points to be assessed against a property by summoning police because they were victimized by criminal activity, or who otherwise exercised their constitutionally-protected right to request police assistance. Further, as the relief permitted by article II of the Nuisance Law includes the property’s temporary closure, all tenants and occupants of a property where illegal activity occurs — not just those who actually commit a violation — are at risk of losing their homes upon a declaration that the property is a public nuisance. The plain language of the law therefore tends to discourage tenants from seeking help from police. As the amici curiae assert, this discouragement may have a particularly severe impact upon victims of domestic violence … . If a tenant who has an order of protection against an individual because of prior domestic violence calls police for assistance in enforcing the order, points may be assessed against the property. Further, if a tenant summons police because he or she has been the victim of a crime of domestic violence involving assault or one of the other offenses worth 12 points, the Nuisance Law automatically deems the property to be a public nuisance, placing the tenant at risk of losing his or her home solely because of this victimization. Board of Trustees of The Vil. of Groton v Pirro, 2017 NY Slip Op 04938, 3rd Dept 6-5-17

MUNICIPAL LAW (NUISANCE LAW, LANDLORD-TENANT, CONSTITUTIONAL LAW, NUISANCE LAW COULD LEAD TO EVICTION FOR REPORTING CRIMES TO THE POLICE, THE REACH OF THE LAW VIOLATED TENANTS’ FIRST AMENDMENT RIGHTS AND WAS THEREFORE UNENFORCEABLE AGAINST THE LANDLORD)/CONSTITUTIONAL LAW (MUNICIPAL LAW, LANDLORD-TENANT, NUISANCE LAW COULD LEAD TO EVICTION FOR REPORTING CRIMES TO THE POLICE, THE REACH OF THE LAW VIOLATED TENANTS’ FIRST AMENDMENT RIGHTS AND WAS THEREFORE UNENFORCEABLE AGAINST THE LANDLORD)/LANDLORD-TENANT (MUNICIPAL LAW, CONSTITUTIONAL LAW, NUISANCE LAW COULD LEAD TO EVICTION FOR REPORTING CRIMES TO THE POLICE, THE REACH OF THE LAW VIOLATED TENANTS’ FIRST AMENDMENT RIGHTS AND WAS THEREFORE UNENFORCEABLE AGAINST THE LANDLORD)/NUISANCE LAW (MUNICIPAL LAW, CONSTITUTIONAL LAW, NUISANCE LAW COULD LEAD TO EVICTION FOR REPORTING CRIMES TO THE POLICE, THE REACH OF THE LAW VIOLATED TENANTS’ FIRST AMENDMENT RIGHTS AND WAS THEREFORE UNENFORCEABLE AGAINST THE LANDLORD)

June 5, 2017

Constitutional Law, Criminal Law

SEXUAL ASSAULT REFORM ACT, WHICH PROHIBITED PETITIONER FROM LIVING AND TRAVELING WITHIN 1000 FEET OF A SCHOOL, AS APPLIED TO PETITIONER, WAS NOT SHOWN TO BE SUFFICIENTLY PUNITIVE IN CHARACTER AS TO VIOLATE THE EX POST FACTO CLAUSE.

The Second Department, reversing Supreme Court, determined the Sexual Assault Reform Act (Executive Law 258-c) (hereinafter SARA), as applied to the petitioner, was not shown to be so punitive in nature as to violate the Ex Post Facto Clause. Petitioner was convicted of a sex offense committed in 2000, before SARA was enacted. Upon release petitioner was deemed a Level One sex offender. SARA prohibits petitioner from living within 1000 feet of a school. In seeking a declaratory judgment/writ of prohibition finding SARA unconstitutional, petitioner argued the law virtually prohibits him from living and travelling in Brooklyn, where he had resided with his girlfriend:

The issue of whether it is permissible to retroactively apply SARA, which became effective on February 1, 2001, after the petitioner had committed the underlying sex offense, turns upon whether such application would violate the Ex Post Facto Clause of the United States Constitution, which provides that “[n]o State shall . . . pass any . . . ex post facto Law” … . The constitutional prohibition against ex post facto laws applies to “penal statutes which disadvantage the offender affected by them” … . “A statute will be considered an ex post facto law if it punishes as a crime an act previously committed, which was innocent when done,’ makes more burdensome the punishment for a crime, after its commission,’ or deprives one charged with crime of any defense available according to law at the time when the act was committed'”… . In contrast, a statute that is enacted for nonpunitive purposes, and is not so punitive in effect as to negate that nonpunitive intent, may be retroactively applied without violating the Ex Post Facto Clause … . * * *

The legislative history of SARA as originally enacted in 2000, as well as that of its 2005 amendment, make clear that it was intended to provide protection to children from the risk of recidivism by certain convicted sex offenders, rather than to punish such offenders for a past crime… . Indeed, the Court of Appeals, in analyzing the issue of whether the State has preempted the field of managing registered sex offenders, has stressed that SARA was part of “a detailed and comprehensive regulatory scheme involving the State’s ongoing monitoring, management and treatment of registered sex offenders, which . . . does not end when the sex offender is released from prison” … . Moreover, the petitioner has not shown by the “clearest proof” that the residency and travel restrictions imposed by SARA, as applied to him, are so punitive in their consequences as to transform the restrictions into punishment … . Accordingly, the retroactive application of SARA does not violate the Ex Post Facto Clause as applied to the petitioner. Since the petitioner failed to demonstrate “a clear legal right” to prohibition on that ground … , the Supreme Court should have denied that branch of the petition/complaint. Matter of Devine v Annucci, 2017 NY Slip Op 04114, 2nd Dept 5-24-17

CRIMINAL LAW (SEXUAL ASSAULT REFORM ACT, WHICH PROHIBITED PETITIONER FROM LIVING AND TRAVELING WITHIN 1000 FEET OF A SCHOOL, AS APPLIED TO PETITIONER, WAS NOT SHOWN TO BE SUFFICIENTLY PUNITIVE IN CHARACTER AS TO VIOLATE THE EX POST FACTO CLAUSE)/CONSTITUTIONAL LAW (EX POST FACTO CLAUSE, SEXUAL ASSAULT REFORM ACT, WHICH PROHIBITED PETITIONER FROM LIVING AND TRAVELING WITHIN 1000 FEET OF A SCHOOL, AS APPLIED TO PETITIONER, WAS NOT SHOWN TO BE SUFFICIENTLY PUNITIVE IN CHARACTER AS TO VIOLATE THE EX POST FACTO CLAUSE)/EX POST FACTO CLAUSE (SEXUAL ASSAULT REFORM ACT, WHICH PROHIBITED PETITIONER FROM LIVING AND TRAVELING WITHIN 1000 FEET OF A SCHOOL, AS APPLIED TO PETITIONER, WAS NOT SHOWN TO BE SUFFICIENTLY PUNITIVE IN CHARACTER AS TO VIOLATE THE EX POST FACTO CLAUSE)/SEX OFFENDERS (SEXUAL ASSAULT REFORM ACT, WHICH PROHIBITED PETITIONER FROM LIVING AND TRAVELING WITHIN 1000 FEET OF A SCHOOL, AS APPLIED TO PETITIONER, WAS NOT SHOWN TO BE SUFFICIENTLY PUNITIVE IN CHARACTER AS TO VIOLATE THE EX POST FACTO CLAUSE)/SEXUAL ASSAULT REFORM ACT (SARA) SEXUAL ASSAULT REFORM ACT, WHICH PROHIBITED PETITIONER FROM LIVING AND TRAVELING WITHIN 1000 FEET OF A SCHOOL, AS APPLIED TO PETITIONER, WAS NOT SHOWN TO BE SUFFICIENTLY PUNITIVE IN CHARACTER AS TO VIOLATE THE EX POST FACTO CLAUSE)

May 24, 2017

Constitutional Law, Municipal Law

THE RECORD-KEEPING AND INSPECTION REQUIREMENTS FOR NYC PAWNBROKERS DO NOT VIOLATE THE UNREASONABLE SEARCH AND SEIZURE PROHIBITION IN THE NYS CONSTITUTION.

The First Department, in a full-fledged opinion by Justice Saxe, determined that the various record-keeping and inspection statutes and regulations which apply to New York City pawnbrokers did not violate the unreasonable search and seizure prohibition in Article I, section 12 of the New York State Constitution. Therefore, the preliminary injunction prohibiting enforcement of the statutes, regulations and procedures should not have been granted:

Here, the statutory and regulatory framework at issue consists of two distinct components: not merely inspection requirements involving targeted, on-premises administrative inspections by government officials, but also substantial reporting requirements, involving submission of transactional information to the government.

To the extent the statutory and regulatory framework involves transactional reporting requirements, it does not involve either physical inspections or administrative searches of a business or its records; instead, it merely requires the submission of information in which the businesses have little, if any, expectation of privacy. * * *

Even if we focus on those provisions that authorize inspections, and characterize them as administrative searches, plaintiffs failed to demonstrate a likelihood that they will prevail. The Court of Appeals … acknowledged the continued viability of an “administrative search” exception to the constitutional requirements of probable cause and warrants. While that exception “cannot be invoked where … the [administrative] search is undertaken solely to uncover evidence of criminality’ and the underlying regulatory scheme is in reality, designed simply to give the police an expedient means of enforcing penal sanctions'” … , a regulatory administrative search scheme can pass muster under New York’s Constitution where it is “pervasive and include[s] detailed standards in such matters as, for example, the operation of the business and the condition of the premises” … . Collateral Loanbrokers Assn. of N.Y., Inc. v City of New York, 2017 NY Slip Op 00953, 1st Dept 2-7-17

MUNICIPAL LAW (NYC) (THE RECORD-KEEPING AND INSPECTION REQUIREMENTS FOR PAWNBROKERS DO NOT VIOLATE THE UNREASONABLE SEARCH AND SEIZURE PROHIBITION IN THE NYS CONSTITUTION)/CONSITUTIONAL LAW (NYS) (PAWNBROKERS, NYC, THE RECORD-KEEPING AND INSPECTION REQUIREMENTS FOR PAWNBROKERS DO NOT VIOLATE THE UNREASONABLE SEARCH AND SEIZURE PROHIBITION IN THE NYS CONSTITUTION)/PAWNBROKERS (NYC) (THE RECORD-KEEPING AND INSPECTION REQUIREMENTS FOR PAWNBROKERS DO NOT VIOLATE THE UNREASONABLE SEARCH AND SEIZURE PROHIBITION IN THE NYS CONSTITUTION)/ADMINISTRATIVE SEARCHES (NYC) (PAWNBROKERS, THE RECORD-KEEPING AND INSPECTION REQUIREMENTS FOR PAWNBROKERS DO NOT VIOLATE THE UNREASONABLE SEARCH AND SEIZURE PROHIBITION IN THE NYS CONSTITUTION)/SEARCH AND SEIZURE (PAWNBROKERS, NYC, THE RECORD-KEEPING AND INSPECTION REQUIREMENTS FOR PAWNBROKERS DO NOT VIOLATE THE UNREASONABLE SEARCH AND SEIZURE PROHIBITION IN THE NYS CONSTITUTION)

February 7, 2017

Civil Procedure, Constitutional Law, Indian Law

TRANSFER OF LAND TO A TRUST PURSUANT TO THE ONEIDA SETTLEMENT AGREEMENT DID NOT CEDE THE STATE’S TAXATION AUTHORITY; MOTION TO DISMISS A DECLARATORY JUDGMENT ACTION WILL BE TREATED AS A MOTION FOR A DECLARATION IN DEFENDANT’S FAVOR.

The Fourth Department determined a citizen taxpayer’s declaratory judgment action against the state, claiming that the transfer of land to a trust pursuant to the Oneida Settlement Agreement ceded the state’s taxation authority, was properly rejected. The court noted that when a motion to dismiss a declaratory judgment action is made, the court will treat it as a motion for a declaration in the defendant’s favor:

Plaintiff alleges that Section VI B (1-5) of the Agreement violates article XVI of the State Constitution, which prohibits the State from surrendering, suspending or contracting away its power of taxation. Section VI B (1-5) provides that the State will not oppose a future application by the Oneida Indian Nation (Nation) to transfer to the United States up to 12,366 acres of land to be held in trust pursuant to 25 USC § 5108 (formerly § 465). The land at issue was formerly part of the 300,000-acre reservation, which was established in the 1788 Treaty of Fort Schuyler (see City of Sherrill, N.Y. v Oneida Indian Nation of N.Y., 544 US 197, 203), and which the Nation has reacquired through open-market transactions (see id. at 211). In 2008, the United States Secretary of the Interior accepted the transfer into trust of 13,004 acres of reacquired land owned by the Nation, over defendant’s objection. We conclude that the court properly declared that Section VI B (1-5) does not violate the State constitutional provision prohibiting defendant from surrendering or contracting away its power of taxation. * * *

To the extent that plaintiff contends that Executive Law § 11 and Indian Law § 16 violate article XVI of the State Constitution, we reject that contention. Kaplan v State of New York. 2017 NY Slip Op 00766, 4th Dept 2-3-17

CONSTITUTIONAL LAW (STATE) (TRANSFER OF LAND TO A TRUST PURSUANT TO THE ONEIDA SETTLEMENT AGREEMENT DID NOT CEDE THE STATE’S TAXATION AUTHORITY, MOTION TO DISMISS A DECLARATORY JUDGMENT ACTION WILL BE TREATED AS A MOTION FOR A DECLARATION IN DEFENDANT’S FAVOR)/INDIAN LAW (TRANSFER OF LAND TO A TRUST PURSUANT TO THE ONEIDA SETTLEMENT AGREEMENT DID NOT CEDE THE STATE’S TAXATION AUTHORITY, MOTION TO DISMISS A DECLARATORY JUDGMENT ACTION WILL BE TREATED AS A MOTION FOR A DECLARATION IN DEFENDANT’S FAVOR)/CIVIL PROCEDURE (DECLARATORY JUDGMENT, (TRANSFER OF LAND TO A TRUST PURSUANT TO THE ONEIDA SETTLEMENT AGREEMENT DID NOT CEDE THE STATE’S TAXATION AUTHORITY, MOTION TO DISMISS A DECLARATORY JUDGMENT ACTION WILL BE TREATED AS A MOTION FOR A DECLARATION IN DEFENDANT’S FAVOR)/DECLARATORY JUDGMENT (TRANSFER OF LAND TO A TRUST PURSUANT TO THE ONEIDA SETTLEMENT AGREEMENT DID NOT CEDE THE STATE’S TAXATION AUTHORITY, MOTION TO DISMISS A DECLARATORY JUDGMENT ACTION WILL BE TREATED AS A MOTION FOR A DECLARATION IN DEFENDANT’S FAVOR)

February 3, 2017

Civil Procedure, Constitutional Law

REQUIRING AN OUT OF STATE RESIDENT TO POST SECURITY FOR COSTS ASSOCIATED WITH BRINGING A LAWSUIT IN NEW YORK DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE US CONSTITUTION.

The Second Department, in a full-fledged opinion by Justice Dickerson, determined requiring an out-of-state resident to post security for costs associated with a lawsuit brought in New York does not violate the Privileges and Immunities Clause of the US Constitution. The plaintiff was injured in an accident in New York (when she was a New York resident) and subsequently moved to Georgia. The defendants moved pursuant to CPLR 8501 and 8503 to direct plaintiff to post security for costs in the amount of $500:

… [T]he U.S. Supreme Court has stated that the Privileges and Immunities Clause is satisfied so long as a nonresident ” is given access to the courts of the State upon terms which in themselves are reasonable and adequate for the enforcing of any rights he [or she] may have'” … . … There is a substantial reason for the difference in treatment between nonresidents and residents, namely, the fact that nonresident plaintiffs are unlikely to have assets in New York that may be used to enforce a costs judgment. And the discrimination practiced against nonresidents—requiring nonresident plaintiffs to post security for costs—bears a substantial relationship to the State’s objective of deterring frivolous or harassing lawsuits and preventing a defendant from having to resort to a foreign jurisdiction to enforce a costs judgment … . Clement v Durban, 2016 NY Slip Op 08500, 2nd Dept 12-21-16

CIVIL PROCEDURE (REQUIRING AN OUT OF STATE RESIDENT TO POST SECURITY FOR COSTS ASSOCIATED WITH BRINGING A LAWSUIT IN NEW YORK DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE US CONSTITUTION)/COSTS (CIVIL PROCEDURE, REQUIRING AN OUT OF STATE RESIDENT TO POST SECURITY FOR COSTS ASSOCIATED WITH BRINGING A LAWSUIT IN NEW YORK DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE US CONSTITUTION)/SECURITY (COSTS CIVIL PROCEDURE, REQUIRING AN OUT OF STATE RESIDENT TO POST SECURITY FOR COSTS ASSOCIATED WITH BRINGING A LAWSUIT IN NEW YORK DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE US CONSTITUTION)/CONSTITUTIONAL LAW (REQUIRING AN OUT OF STATE RESIDENT TO POST SECURITY FOR COSTS ASSOCIATED WITH BRINGING A LAWSUIT IN NEW YORK DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE US CONSTITUTION)/PRIVILEGES AND IMMUNITIES CLAUSE (REQUIRING AN OUT OF STATE RESIDENT TO POST SECURITY FOR COSTS ASSOCIATED WITH BRINGING A LAWSUIT IN NEW YORK DOES NOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE OF THE US CONSTITUTION)

December 21, 2016

Civil Rights Law, Constitutional Law, Criminal Law

PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION.

The First Department determined a reporter’s videotaped interview with the defendant in this murder case must be turned over to the prosecution. Although the substance of some of defendant’s statements to the reporter was summarized in the portion of the interview which was aired on the news, relevant statements made by the defendant were not aired. The First Department determined the relevant unaired portions of the interview were not protected by qualified privilege under the Shield Law (Civil Rights Law 79-h):

Here, the outtakes of an interview of defendant taken at a detention center in which he discusses, inter alia, the charges against him and his relationship with the victim, are on their face “highly material and relevant” (Civil Rights Law § 79-h[c]). In a circumstantial murder case, evidence which, standing alone, might appear innocuous can be deemed critical when viewed in combination with other circumstantial evidence … . Here, the reporter described on air statements made by defendant in unaired portions of the interview to the effect that Ms. Moore was a good tenant and a good person who always paid her rent on time and was friendly with fellow neighbors. While these statements out of context might seem benign, the People argue persuasively that they are “critical or necessary” to the People’s effort to prove motive, intent, and consciousness of guilt, since they contradict defendant’s earlier statements to police … . Although the People have access to the substance of what defendant said from [the reporter’s] paraphrase on the News 12 broadcast, defendant’s actual words and his demeanor as he said them are available only on the unpublished video of the interview in News 12’s possession. ,,, [W]e find that the People have made the “clear and specific showing” required to overcome News 12’s qualified privilege as to nonconfidential journalistic material under article I, section 8 of New York’s Constitution and the Shield Law only as to those portions of the unaired News 12 footage of its interview with defendant in which defendant makes any statement concerning killing Ms. Moore, and discusses their relationship and his impressions and observations of her, including her conduct as a tenant … . People v Bonie, 2016 NY Slip Op 05331, 1st Dept 7-5-16

CIVIL RIGHTS LAW (SHIELD LAW, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)/CONSTITUTIONAL LAW (REPORTERS, SHIELD LAW, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)/CRIMINAL LAW (CIVIL RIGHTS LAW, REPORTERS, SHIELD LAW, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)/REPORTERS (SHIELD LAW, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)/PRIVILEGE (REPORTERS, PORTIONS OF A REPORTER’S VIDEOTAPED INTERVIEW WITH DEFENDANT NOT PROTECTED BY SHIELD LAW BECAUSE OF RELEVANCE TO A MURDER PROSECUTION)

July 5, 2016

Constitutional Law, Education-School Law, Tax Law

EDUCATION LAW STATUTE REQUIRING A 60% MAJORITY TO AUTHORIZE A PROPERTY TAX INCREASE OVER THE STATUTORY CAP (TO FUND SCHOOL DISTRICTS) IS CONSTITUTIONAL.

The Third Department, in a full-fledged opinion by Justice Devine, over a partial dissent, determined the Education Law statute which requires a 60% majority vote to increase property taxes beyond the statutory cap (to fund local school districts) is constitutional. The Election Article of the New York Constitution, the due process clause, the right to equal protection under the law, and the fundamental right to vote were deemed not to have been violated by the statute. With regard to the equal protection argument, the court wrote:

Defendants suggest, and plaintiffs do not dispute, that Education Law § 2023-a ,,, [was] designed with the legitimate goal in mind of restraining onerous property tax increases that were believed to be depressing economic activity in the State … . Plaintiffs suggest that it is irrational to achieve this legitimate aim in a manner that impairs local control of schools and deters poorer school districts that would otherwise seek a property tax increase over the tax cap to keep pace with educational needs. It suffices to say that, while Education Law § 2023-a … incentivize[s] districts and their residents to avoid property tax increases over the tax cap, neither prevents such increases if sufficient community support exists for them (see Education Law § 2023-a [6]). The differences in the services offered by various school districts accordingly result from a permissible consequence of local control over schools, namely, the variable “willingness of the taxpayers of [different] districts to pay for and to provide enriched educational services and facilities beyond what the basic per pupil expenditure figures will permit” … . Inasmuch as there is nothing irrational in this, plaintiffs' equal protection claims fail … . New York State United Teachers v State of New York, 2016 NY Slip Op 03572, 3rd Dept 5-5-16

EDUCATION-SCHOOL LAW (EDUCATION LAW STATUTE REQUIRING A 60% MAJORITY TO AUTHORIZE A PROPERTY TAX INCREASE OVER THE STATUTORY CAP (TO FUND SCHOOL DISTRICTS) IS CONSTITUTIONAL)/TAX LAW (EDUCATION LAW STATUTE REQUIRING A 60% MAJORITY TO AUTHORIZE A PROPERTY TAX INCREASE OVER THE STATUTORY CAP (TO FUND SCHOOL DISTRICTS) IS CONSTITUTIONAL)/CONSITUTIONAL LAW (EDUCATION LAW STATUTE REQUIRING A 60% MAJORITY TO AUTHORIZE A PROPERTY TAX INCREASE OVER THE STATUTORY CAP (TO FUND SCHOOL DISTRICTS) IS CONSTITUTIONAL)

May 5, 2016