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Employees Terminated Pursuant to Civil Service Law 73 Are, as a Matter of Due Process, Entitled to a Posttermination Hearing

The Third Department determined that petitioner, who had been terminated from his position as a state college police officer, was entitled to a posttermination hearing.  To deny his request for the hearing denied petitioner due process:

…[T]he failure to conduct a posttermination hearing was violative of his right to due process. Employees who are terminated from their positions pursuant to Civil Service Law § 73 “are entitled to a full posttermination hearing” … . Respondents speculate that it is unlikely that petitioner could produce medical evidence establishing his fitness to occupy his position as of the date of his termination from employment. If we were to accept respondents’ reasoning, it would allow an agency that is intent on terminating an employee to arbitrarily decide whether a posttermination hearing was necessary, a determination which flies in the face of existing law. The rationale for providing petitioner with a posttermination hearing is to afford him a final opportunity to present proof demonstrating how his mental condition changed, if at all, and whether he is able to perform his job duties as of the date of his termination … . To deny petitioner’s request for a posttermination hearing was constitutionally infirm and, therefore, remittal of this matter is necessary for the completion of such administrative proceedings … . Matter of Jiminez-Reyes v State of New York, 2014 NY Slip Op 08273, 3rd Dept 11-26-14

 

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Commissioner, Due to His Prior Involvement with Discipline of the Petitioner, Should Have Disqualified Himself from Review of the Hearing Officer’s Disciplinary Recommendation and from the Rendering a Final Judgment

In a detailed decision addressing many aspects of administrative law rarely mentioned in the case law (and not described here), the Third Department determined the commissioner of accounts for the city, because of his involvement in earlier related proceedings concerning the petitioner, should have disqualified himself from reviewing the hearing officer’s final determination and rendering a final judgmet in a disciplinary action against the petitioner:

We do … find merit to petitioner’s claim that the Commissioner — having investigated petitioner’s initial allegations of preferential assessment treatment, concluded that such allegations were unfounded, preferred the resulting charges of misconduct and insubordination against petitioner and testified at petitioner’s disciplinary hearing in support of such charges — should have disqualified himself from reviewing the Hearing Officer’s recommendation and rendering a final determination in this matter. Regardless of whether disciplinary charges are pursued in the judicial or administrative realm, “[t]he participation of an independent, unbiased adjudicator in the resolution of disputes is an essential element of due process of law, guaranteed by the Federal and State Constitutions” … . Although a particular individual’s involvement or participation in the disciplinary process does not automatically compel his or her recusal, the case law makes clear that “individuals who are personally or extensively involved in the disciplinary process should disqualify themselves from reviewing the recommendations of a Hearing Officer and from acting on the charges” … . Accordingly, “when an officer institutes charges of misconduct and testifies at [the] ensuing hearing, that officer, in the interest of fairness, must disqualify [himself or] herself from reviewing the Hearing Officer’s recommendations and rendering a final determination” … . Matter of Zlotnick v City of Saratoga Springs, 2014 NY Slip Op 08289, 3rd Dept 11-26-14

 

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Court Review of Elimination of Pension Benefits Proper Even though the Administrative Hearing Had Not Yet Been Held—No Need to Exhaust Administrative Remedies Where the Petition Does Not Raise an Issue of Fact that Should Initially Be Determined in the Administrative Hearing

The Third Department determined petitioner, a physician who served four school districts, could seek court review of the comptroller’s removal of his service credits (on the ground petitioner was an independent contractor, not an employee) and the consequent elimination of pension benefits, before an administrative hearing had been held:

“It is well settled that the Comptroller is vested with the exclusive authority to determine all applications for retirement benefits” … . Judicial review is limited to ascertaining whether the Comptroller’s determination is supported by substantial evidence in the record as a whole, in which case the determination must be upheld … .

Moreover, as a general rule, “one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law” … . However, there are exceptions to the exhaustion doctrine, including where “resort to an administrative remedy would be futile or when its pursuit would cause irreparable injury” or where “an agency’s action is challenged as either unconstitutional or wholly beyond its grant of power” … . * * *

…[W]e find that the allegations in the petition do not raise an issue of fact that “‘should initially be addressed to the administrative agency having responsibility so that the necessary factual record can be established'” … . Under these circumstances, we conclude that petitioner has a cognizable constitutional claim regarding the prehearing removal of his service credits and cancellation of his retirement application that is ripe for our review and survives respondents’ motion to dismiss … . Matter of Kravitz v DiNapoli, 2014 NY Slip Op 08284, 3rd Dept 11-26-14

 

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Mistrial Declaration Over Defendant’s Objection Was “Manifestly Necessary”—Double Jeopardy Prohibition Not Triggered

The Second Department determined the trial judge had no choice but to declare a mistrial when defense counsel could not proceed because of a conflict and new counsel needed a two-month adjournment.  Because the mistrial, granted over defendant’s objection, was “manifestly necessary” the double jeopardy prohibition of a second trial was not triggered:

The double jeopardy clauses of the New York State and United States Constitutions protect an accused from multiple prosecutions for the same offense . “In a jury trial, once the jury is empaneled and sworn, jeopardy attaches, and the defendant has a valued right to have his trial completed by a particular tribunal'” … .

When a mistrial is granted over the defendant’s objection or without the defendant’s consent, a retrial is precluded unless ” there was manifest necessity for the mistrial or the ends of public justice would be defeated'” … . “Manifest necessity” means a ” high degree of necessity'” based on reasons that are ” actual and substantial'” … . Moreover, before declaring a mistrial, a court must explore all appropriate alternatives and must provide a sufficient basis in the record for resorting to this “drastic measure” …  . Matter of Roey v Lopresto, 2014 NY Slip Op 08340, 2nd Dept 11-26-14

 

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The Third Dept Upheld the Statutory Amendment Cutting Off Reimbursement of Medicaid Overburden Expenses Incurred Prior to 2006—However the Court Imposed a Six-Month Grace Period Before the Amendment Kicks In [The Fourth Dept Dealt with the Same Question in a Decision Dated 11-14-14—Although the Fourth Dept Also Upheld the Amendment, It Did Not Impose a Grace Period and Did Not Use the Same Reasoning]

The Third Department, in a full-fledged opinion by Justice McCarthy, determined that a 2012 amendment to the Social Services Law (section 61) eliminated the requirement that counties be reimbursed by the state for certain medicaid expenses (so-called “Overburden expenses”) incurred prior to 2006, when the medicaid “Cap Statute” was enacted.  The 4th Department dealt with the same issues in Matter of County of Niagara v Shah, 2014 NY Slip Op 07781, 4th Dept 11-14-14.  Although the two courts came to similar, but not identical, conclusions, it is interesting to see the substantial differences in reasoning and result.  Unlike the 4th Department, the Third Department imposed a six-month grace period, starting from the date of the decision, before the prohibition against reimbursement for pre-2006 expenses kicks in. The Third Department dealt with several issues, including:  (1) whether a political subdivision of a state can make a due process claim against the state (the court deemed the issue waived); (2) the amendment of the statute essentially imposed a statute of limitations and therefore did not extinguish a vested right to reimbursement; (3) the amendment is not unconstitutional because the new statute of limitations does not retroactively affect any substantive rights; (4) the special facts exception did not apply; (5) petitioner was entitled to a writ of mandamus requiring payment of the pre-2006 expenses (because of the grace period):

Social Services Law § 368-a and the 2012 amendment can be read together and “interpreted to achieve legislative objectives that are not inherently inconsistent with each other” … . This Court has already held that, under Social Services Law § 368-a (1) (h), petitioner’s right to reimbursement of overburden expenditures accrued when petitioner made payment to the state for those expenses for which no local share was owed, i.e., prior to January 1, 2006 … . The 2012 amendment did not specifically repeal any part of Social Services Law § 368-a or affect the counties’ inherent right to reimbursement. Rather, the amendment simply imposed a statute of limitations for the payment of claims for such reimbursement. A statute of limitations does not impair an underlying substantive right, but may deprive a litigant of any remedy … . In April 2012, the Legislature could have reasonably decided that, to promote finality of claims and effectuate accurate budgeting, reimbursements from more than six years earlier could be barred. Although petitioner contends that DOH was required by statute to reimburse all counties for overburden expenditures incurred prior to 2006, and that DOH did not comply with its statutory obligations, “[a] statute of limitations may apply even when conduct inconsistent with a statute or the state constitution is alleged” … . Matter of County of St. Lawrence v Shah, 2014 NY Slip Op 08278, 3rd Dept 11-26-14

 

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Defendant, a County Sheriff, May Not Have Had the Authority to Order the Plaintiff to Leave the Airport/Questions of Fact Raised About Whether Defendant Had Probable Cause to Arrest Plaintiff for Trespass and Disorderly Conduct/Questions of Fact Raised About Whether Excessive Force Was Used and Whether Plaintiff Was Subjected to Retaliation for the Use of Protected Speech

The Third Department determined Supreme Court properly denied defendant’s motion for summary judgment on plaintiff’s “false arrest” cause of action, and Supreme Court erred in granting the defendant’s motion for summary judgment on plaintiff’s “excessive force” and “retaliation for the use of protected speech” causes of action. The lawsuit stemmed from plaintiff’s being told by airport personnel that her daughter had not arrived as expected because she missed a connecting flight.  Plaintiff became upset when she couldn’t learn more about the status of her daughter.  Defendant, a county sheriff, came on the scene, ordered plaintiff to leave the airport, and, when plaintiff refused, arrested her for trespass and disorderly conduct. The Third Department determined there were questions of fact about whether defendant had probable cause to arrest plaintiff, as well as whether excessive force was used and whether the defendant acted in retaliation for protected speech. With respect to the trespass arrest, the court noted that defendant may not have had the authority to order plaintiff to leave the airport:

In assessing whether defendant met his initial burden of establishing that he had arguable probable cause to arrest plaintiff for trespass, proof of defendant’s authority to issue the blanket order directing plaintiff to leave the public facility must be examined. This is so because the “right to exclude ‘has traditionally been considered one of the most treasured strands in an owner’s bundle of property rights'” … and, unless otherwise authorized, police do not have the inherent and general rights of a property owner (see e.g. US Const 4th Amend). The record demonstrates that, on the day in question, defendant was a county employee working in the county airport, a public facility. In support of his motion, defendant provided no proof that he was either prescribed by law or directed by the Tompkins County legislature to exercise any authority to lawfully order a citizen to leave this public property (see County Law § 650…). Nor did defendant’s proffer demonstrate that he was asked to remove plaintiff from the airport property by someone with the authority to do so … . Therefore, defendant did not establish as a matter of law that he had arguable probable cause to arrest plaintiff for criminal trespass because issues of fact exist as to whether, at the time of arrest, it was reasonable for defendant to believe that plaintiff was disobeying a lawful order … . Brown v Hoffman, 2014 NY Slip Op 08099, 3rd Dept 11-20-14

 

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Failure to Apply for Zoning Variance Re: Sale of Adult Materials Rendered Plaintiff’s Free-Speech Challenge to the Code Speculative, i.e., Not Ripe for Review

The Third Department determined that plaintiff’s free-speech-violation claims re: the city’s failure to specify a zone for the sale of adult material were not ripe for review.  Plaintiff did not inform the city of his intent to sell adult material and did not use the procedures in place to obtain a zoning variance allowing the sale of adult material:

We shall not address plaintiff’s assertion that the failure of the Code of the City of Troy to specify a zone where adult materials may be sold violates plaintiff’s free speech rights under both the US and NY Constitutions, as this issue is not ripe for our review. According to the City’s Assistant Plans Examiner, if a particular use was not set forth in the list of allowed uses or special permit uses enumerated in the Code, as was the case with adult establishments, a use variance could be obtained by seeking approval from the appropriate zoning board. Because [plaintiff’s principal] did not disclose the extent of plaintiff’s sale of adult material in applying for a certificate of occupancy, and therefore did not follow the process set out in the Code to apply for a use variance, any harm that plaintiff may have suffered pursuant to such Code was speculative and contingent upon the City’s anticipated rejection of plaintiff’s proposal. Under these circumstances, plaintiff’s challenge to the constitutionality of the Code is not ripe for review … . Your Place LLC v City of Troy, 2014 NY Slip Op 08098, 3rd Dept 11-20-14

 

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Regulation of Use of Vacant Wetlands Constituted a Regulatory Taking—Analytical Criteria Explained

The Second Department determined that the regulations imposed on vacant wetlands constituted a regulatory taking of the land and affirmed Supreme Court’s evaluation of the taking.  The court included an in-depth discussion of the analytical criteria:

In a condemnation proceeding, a property restricted by wetlands regulations is valued pursuant to the restrictions imposed by the wetlands regulations at the time of the taking, unless the claimant can demonstrate a reasonable probability that “a higher or more productive use of the property would have been available by reason of a legislative rezoning or a judicial declaration of invalidity of the use restriction” … . “A landowner who claims that land regulation has effected a taking of his [or her] property bears the heavy burden of overcoming the presumption of constitutionality that attaches to the regulation and of proving every element of his [or her] claim beyond a reasonable doubt” … .

Generally, while property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking … . Analysis of whether nonpossessory governmental regulation of property has gone so far as to constitute a taking involves factual inquires in which three factors of particular significance have been identified: (1) “[t]he economic impact of the regulation on the claimant”; (2) “the extent to which the regulation has interfered with distinct investment-backed expectations”; and (3) “the character of the governmental action” … .

As to the first factor, “the property owner must show by dollars and cents’ evidence that under no use permitted by the regulation under attack would the properties be capable of producing a reasonable return; the economic value, or all but a bare residue of the economic value, of the parcels must have been destroyed by the regulations at issue” … . Accordingly, standing alone, a serious and significant diminution of property value will typically not be deemed to constitute a regulatory taking … . * * *

Although the claimants admit that, at trial, they did not set forth any evidence with respect to the second factor …, under the circumstances presented here, such an omission is not fatal to their claim, especially upon consideration of the third factor. Under the third factor, generally, a property owner “must establish that the regulation attacked so restricts his [or her] property that he [or she] is precluded from using it for any purpose for which it is reasonably adapted” … . Matter of New Cr Bluebelt, Phase 4, 2014 NY Slip OP 08029, 2nd Dept 11-19-14

 

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Judge Effectively Rescinded the Initial Declaration of a Mistrial and Left the Decision Whether to Declare a Mistrial Up to the Defendant—Because the Defendant Ultimately Agreed to the Mistrial the Double Jeopardy Prohibition Was Not Triggered

The Court of Appeals determined that, although the trial judge initially declared a mistrial without defense counsel’s consent, the judge effectively rescinded the declaration by leaving it up to the defendant to decide whether a mistrial should be declared (defense counsel had objected to the way the judge was handling the trial).  Because the mistrial was ultimately agreed to by the defendant, a second trial was not precluded by the double jeopardy prohibition:

Until the jury is discharged, a court may rescind its previous declaration of mistrial (see People v Dawkins, 82 NY2d 226 [1993]). Defendant argues that in this case the trial judge never formally rescinded his initial mistrial ruling, and so whether or not she indicated her consent after that ruling is irrelevant. Certainly, the judge never expressly said “I rescind my order declaring a mistrial.” But we have never required any particular language to be used to retract a prior order. Here, the record makes clear that the trial judge was leaving the mistrial decision up to defendant. Because she decided to “go with a mistrial,” and thus consented to it, her double jeopardy claim fails. Matter of Gorman v Rice, 2014 NY Slip Op 07923, CtApp 11-18-14

 

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Petition by the District Attorney Against the Sentencing Judge Seeking Vacation of the Sentence Imposed, Because the District Attorney Did Not Agree to It, Dismissed—Granting the Petition Would Direct the Judge to Violate Criminal Procedure law 220.10(4) and Would Violate the Defendant’s Protection Against Double Jeopardy

The Fourth Department dismissed a petition brought against a judge by a district attorney seeking the vacation of a plea on the ground that the district attorney did not agree to it.  The district attorney argued he had agreed to a six-year sentence, not the five-year sentence imposed by the judge:

The extraordinary remedy of mandamus ” is never granted for the purpose of compelling the performance of an unlawful act’ ” …, and the Court of Appeals has repeatedly held that, after the entry of judgment and the commencement of sentence, courts have no statutory or inherent authority to vacate, over a defendant’s objection, a plea taken in contravention of CPL 220.10 or related statutory provisions … . Indeed, absent extrinsic fraud, “[i]n no instance ha[s the Court of Appeals] recognized a court’s inherent [or statutory] power to vacate a plea and sentence over defendant’s objection where the error goes beyond mere clerical error apparent on the face of the record and where the proceeding has terminated by the entry of judgment” … . Thus, mandamus does not lie here because we cannot compel respondent to exceed his statutory and inherent authority by directing him to vacate a plea taken in violation of CPL 220.10 (4) (a) after the commencement of sentence.

Furthermore, “restor[ing] the matter to its pre-plea status,” as petitioner seeks, would violate defendant’s constitutional protections against double jeopardy … . Contrary to petitioner’s contention, CPL 40.30 (3) “does not aid the analysis of the double jeopardy issue” … . The Court of Appeals has held that a plea taken without the People’s consent is not a nullity for purposes of that provision … .

Apart from the legal infirmities of petitioner’s position, we further conclude that the record does not factually support that position. Specifically, the record belies petitioner’s contention that his consent to defendant’s plea was conditioned on the imposition of a determinate, six-year term of imprisonment. Matter of Budelmann v Leone, 2014 NY Slip Op 07797, 4th Dept 11-14-14

 

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