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January 24, 2014

The “Rule of Necessity” permits a tribunal, the members of which could be affected by the decision, to decide a case or controversy


The “Rule of Necessity” permits a tribunal, the members of which could be affected by the decision, to decide a case or controversy
Pines, et. al. v State of New York, 2014 NY Slip Op 00335, Appellate Division, Second Department

In deciding an action initiated by Emily Pines and other judges, Supreme Court that held that “the compensation of judges and justices of the Unified Court System of the State of New York was duly increased pursuant to the Laws of 2009, Chapter 51, §3, and that the [State] is obligated to pay the judges and justices of the Unified Court System of the State of New York in accordance therewith retroactive to April 1, 2009."

After conceding that “more than a decade had passed since the plaintiffs and their colleagues in the New York State judiciary had received a pay raise authorized by the Legislature,” and setting out the relevant history leading to Pines’ initiating this litigation, the Appellate Division recognized that “members of this Court have a pecuniary interest in this case and will be affected by the outcome of this appeal.”

The court then explained that "The 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" and “in order to ensure the dignity of the judiciary and maintain the integrity of the administration of justice, [o]rdinarily, when a judge has an interest in litigation, recusal is warranted."

That said, the Appellate Division noted that "[t]he Rule of Necessity provides a narrow exception to this principle, requiring a biased adjudicator to decide a case if and only if the dispute cannot otherwise be heard." 

Here, said the court, "the self-interest implicated by the issues raised on appeal would provide grounds for disqualifying not only the justices of this Court, but any other judicial body which might replace it." As “the recusal of the members of this Court, and those of every other court in the Unified Court System, would leave the plaintiffs without a legal remedy, the ‘Rule of Necessity’ compels us to decide this appeal on the merits, notwithstanding our personal stake in the litigation.”

The Appellate Division then explained that, notwithstanding Supreme Court's conclusion to the contrary, “there is no language in the statute that adjusts the salary schedules of the various judges and justices of this state. As in prior years, the plain language of the statute merely directs that a certain sum necessary for adjusting judicial compensation be set aside—what has previously been recognized as a ‘dry appropriation.'"

Rejecting Pines’ position is that the statute must have adjusted the rates of judicial compensation because it referenced the purpose of the appropriation, the court concluded that this argument is not actually based on the plain language of the statute but rather “rests on an inference drawn from a reference to the appropriation's purpose.” In the words of the Appellate Division, … the plaintiffs' plain language argument would require us to interpret the statute in a manner that would render it unconstitutional.”

Further, the court noted that in deciding this appeal under the "Rule of Necessity," it is  “constrained to discern and apply the will of the elected members of the Legislature and not our own perceptions of what might be equitable,” quoting Alexander Hamilton writing in The Federalist, "[i]t can be of no weight to say that the courts . . . may substitute their own pleasure to the constitutional intentions of the legislature" (Hamilton, Federalist No. 78).”

Without addressing “the wisdom of the Legislature's decision or the manner in which it was carried out,” the Appellate Division concluded that the Legislature did not adjust judicial compensation through the enactment of the Laws of 2009, Chapter 51, §3” and reversed the Supreme Court’s ruling “on the law.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_00335.htm
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January 23, 2014

Returning to work following a voluntary absence due to illness or disability


Returning to work following a voluntary absence due to illness or disability
Source: New York State Department Of Civil Service, State Personnel Management Manual, Advisory Memorandum #14-01 dated January 22, 2014

Mark F. Worden, Associate Attorney, New York State Department of Civil Service, has distributed a memorandum, Advisory Memorandum #14-01, addressing “Return to Work Evaluations and Civil Service Law Section 72 Due Process Procedures.”

Mr. Worden explains that the New York State Court of Appeals decided two cases, Sheeran v. New York State Department of Transportation* and Birnbaum v. New York State Department of Labor (18 NY3d 61) in which it ruled that the procedural safeguards set out in Civil Service Law (CSL) §72 apply when an employee who is voluntarily on leave due to personal illness or a disability that is not work-related within the meaning of the Workers’ Compensation Law is prevented from returning to work by the appointing authority. Such a refusal to allow the employee to return to work converts his or her  voluntary leave into an involuntary leave. Accordingly, the appointing authority is then required to follow the procedures set out in CSL §72.1 or CSL §72.5, as the case may be, with respect to such an employee..

N.B. The Memorandum cautions that "It is essential that any employee denied a return to duty pending a hearing be provided with written notice that such action is being taken pursuant to CSL §72(5) and notified of the reasons for such action."

Mr. Worden also advises that “… all appointing authorities must review their return to work procedures to ensure that they are consistent with these Court of Appeals decisions” and follow the guidelines set out in Advisory Memorandum #14-01**

Although Mr. Worden’s memorandum is addressed to State Department and Agency “Personnel and Human Resources Directors,” and Sheeran and Birnbaum were employed by State Departments at the time they voluntarily placed themselves on leave, it is instructive to appointing authorities of political subdivisions of the State as well.

* NYPPL’s summary of the Sheeran and Birnbaum decisions is posted on the Internet at:

** Mr. Worden’s  memorandum Advisory Memorandum # 14-01 is posted on the Internet at: http://www.cs.ny.gov/ssd/Manuals/SPMM/2200SeparationsLeaves/Advisory%20Memo%2014-01.htm

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January 22, 2014

Recent decisions reported by the New York City Office of Administrative Trials and Hearings



Recent decisions reported by the New York City Office of Administrative Trials and Hearings [OATH]
Issued during January 2014 [Click on text highlighted in color to access the text of the decision.]


OATH Administrative Law Judges making findings of fact and recommendations as to the disposition of the matter.
 
Correction officer was arrested as a result of a drug bust operation. After criminal charges against the officer were dismissed, Department of Correction (DOC) brought a disciplinary proceeding against the officer accusing him of knowingly driving a family friend to a drug transaction and subsequently possessing cocaine in his car. ALJ Kevin F. Casey found that DOC failed to prove that the officer knew he was driving a family friend to purchase drugs or that the officer knowingly possessed the drugs later found in his car. ALJ Casey recommended the dismissal of the charge.
OATH Index No. 265/14 [Comm’r Decision - pending] http://archive.citylaw.org/oath/13_Cases/14-265.pdf


Correction officer admitted to using excessive force by stomping on an inmate's head after the inmate had been subdued with his face to the floor and his hands cuffed behind his back. Respondent's actions caused the inmate to sustain lacerations to his chin and loss of a front tooth. As mitigation, respondent asserted that on his way to work, he learned that his best friend had been murdered, and that this news upset his equilibrium. Finding that neither disruptive behavior by the subdued inmate nor the murder of respondent's friend, if true, was mitigation for respondent's conduct, ALJ Ingrid M. Addison recommended termination of his employment.
OATH Index No. 156/14, Comm'r Decision - adopted, http://archive.citylaw.org/oath/13_Cases/14-156.pdf


The Department of Environmental Protection brought disciplinary charges against a project manager for working longer than his 7-hour shift, reporting late to a storehouse, and falsely stating that he made a vehicle damage report. ALJ John B. Spooner found that respondent worked longer than a 7-hour day and recommended a one-day suspension. ALJ Spooner dismissed the other charges, noting that petitioner’s counsel displayed some animus toward respondent and his efforts to defend himself. ALJ Spooner noted that discipline of one of respondent's witnesses for appearing early at the tribunal on the day of her testimony was “extraordinary” and may have been intended to punish the witness or to discourage her from testifying.
OATH Index No. 181/14, Comm’r Decision - rejected in part, (adopting sustained charge, rejecting dismissal of other charges, and increasing penalty to 30-day suspension without pay). http://archive.citylaw.org/oath/14_Cases/14-181.pdf
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