The changing number of justices on the Supreme Court of the United States

As discussions concerning increasing the number of justices serving on the United States Supreme Court are currently a topic of continuing interest, it might be well to note although the Judiciary Act of 1789 set the number of justices of the Supreme Court at six, a chief justice and five associate justices, in 1807 Congress amended the law and increased the number of justices to seven.

The next change occurred in 1837 when the number of justices was increased to nine while in 1863 the number became 10 justices. In 1866 Congress enacted the Judicial Circuits Act, reducing the number of justices to seven in number, only to raise the number of justices to nine in 1869, which number has survived to date.

Although then President Franklin Delano Roosevelt sought to persuade Congress to enact legislation authorizing the appointment of additional justices to the high court in the event a justice, upon attaining the age 70, declined to resign or retire, and limited the total number of justices serving on the Supreme Court to 15 members, Congress elected not to do so.

See, also, https://publicpersonnellaw.blogspot.com/2018/10/setting-number-of-justices-on-united.html

An educator's previously unblemished employment record deemed insufficient to mitigate imposing a lesser penalty than dismissal from the position after being found guilty of charges of incompetence and misconduct

An educator [Plaintiff] was found guilty of disciplinary charges served upon her by her employer, the New York City Department of Education [Employer] after a hearing. The arbitrator found the Plaintiff guilty of disciplinary charges filed against her alleging incompetence and misconduct and imposed the penalty of dismissal.  

Plaintiff initiated a CPLR Article 75 proceeding challenging her dismissal from her position and sought a court order vacating the arbitration award which sustained disciplinary charges filed against her alleging Plaintiff was guilty of incompetence and misconduct. 

Supreme Court granted the Employer's motion to dismiss Plaintiff's Article 75 petition seeking to vacate an arbitration award, which ruling Plaintiff appealed to the Appellate Division.

The Appellate Division unanimously affirmed the Supreme Court's decision. The court observed that the arbitrator's "determination sustaining charges of incompetency is amply supported by the evidence." Further, said the court, the evidence also showed that Plaintiff was "unwilling ... to implement suggestions and constructive criticism of her ineffective teaching methods. Likewise, said the court, the portions of the arbitrator's decision addressing various charges of misconduct were "in accord with due process, rationally based and supported by adequate evidence."

As to the penalty imposed, dismissal from her position, the Appellate Division opined that notwithstanding Plaintiff's "previously unblemished record ... her identified pedagogical shortcomings, lack of improvement, and student safety issues inherent in two of the sustained misconduct charges, the penalty of termination does not shock one's sense of fairness", citing Matter of Ferraro v Farina, 156 AD3d 549, leave to appeal denied, 32 NY3d 902.

Click HERE to access the full text of the Appellate Division's decision.

 

The Medical Board's recommendation that an application for performance of duty disability retirement benefits be denied is conclusive if it is supported by some credible evidence and is not arbitrary or capricious

Supreme Court annulled a determination by the Board of Trustees of the New York City Employees' Retirement System [Trustees] denying the application of a retired New York City correction officer, [Petitioner] for performance of duty disability retirement benefits based on its Medical Board's recommendation and directed that the Petitioner be granted performance of duty disability retirement benefits retroactive to March 11, 2016.

The Appellate Division reversed the Supreme Court's ruling, on the law, with costs, and confirmed the Trustees' determination and dismissed Petitioner's CPLR Article 78 proceeding on the merits.

The Appellate Division explained that the Trustees' Medical Board's determination is conclusive if it is supported by some credible evidence and is not arbitrary or capricious, citing Matter of Solomonoff v New York City Employees' Retirement Sys., 188 AD3d 700. Further, opined the court, in the event there is conflicting medical evidence involved in the proceeding, the "resolution of a conflict in the medical evidence is solely within the province of the Medical Board.

Noting the decision in Topkin v Board of Educ. of City School Dist. of N.Y., 121 AD2d at 531, the Appellate Division said:

1] "The board is privileged to accept the medical reports of its own expert over those of a claimant"

2. "A mere conflict in opinion among physicians is not a ground for disturbing a determination; and

[3] "Courts may not 'substitute [their] own judgment for that of the Medical Board,' citing Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d at 761.

Click HERE to access the full text of the Appellate Division's decision in this appeal. 

 

Law practice management software

Nicole Black, a Rochester, New York attorney, has posted an item on her law blog, Sui Generis, providing a "round up" of law practice management software, litigation fact management software, ABA Techshow and more.

Click HERE to access her post.

 

Audits and reports issued by the New York State Comptroller during the week ending April 16, 2021

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending April 16, 2021.

Click on the text highlighted in color to access the complete audit report.

MUNICIPAL AUDITS

Village of Shoreham – Board Oversight and Justice Court (Suffolk County)  Auditors found the board did not properly oversee the village’s financial operations and the Justice Court did not properly account for court funds. Auditors found 22 claims totaling $132,819 were paid without support, duplicate receipts were rarely issued and not all cash was deposited in a timely manner. The board also did not annually audit the clerk-treasurer's or court's records and reports. For the court, 70 tickets could not be accounted for, duplicate receipts were not always issued and bank reconciliations and accountability analyses were not complete or reconciled. In addition, receipts totaling $3,435 were collected and deposited but payments to the clerk-treasurer and reported to the Justice Court Fund only amounted to $3,360.

SCHOOL DISTRICT AUDITS

Hudson City School District – Information Technology (Columbia County) District officials did not adequately secure and protect its information technology (IT) systems against unauthorized use, access and loss. The board and district officials also did not adopt adequate IT policies or a disaster recovery plan. Auditors found questionable internet use on four of six computers tested. School officials also did not disable 123 of the 462 enabled network accounts auditors examined. These 123 user accounts were not needed and included generic and former employee accounts. In addition, sensitive IT control weaknesses were communicated confidentially to officials.

 

Royalton-Hartland Central School District – Information Technology Contingency Planning (Genesee County, Niagara County and Orleans County) The board and district officials have not developed and adopted a comprehensive written information technology (IT) contingency plan. The district pays $10,500 for central site infrastructure support, which includes a disaster recovery plan template, a key component of an IT contingency plan. Although the district paid for a template, officials did not obtain it. Without a comprehensive written IT contingency plan in place that is properly distributed to all responsible parties and periodically tested for efficacy, district officials have less assurance that employees will react quickly and effectively to maintain business continuity. As a result, important financial and other data could be lost, or suffer a disruption to operations.

Westhampton Beach Union Free School District – Extra-Classroom Activity Funds (Suffolk County) The extra-classroom activity clubs did not maintain adequate records. Therefore, auditors could not determine whether all funds received and disbursed were properly accounted for. Deposits were not always supported by school deposit forms or accurately completed bank deposit slips and activity logs.

 

Wyandanch Union Free School District – Budget Review (Suffolk County) Auditors found that the significant revenue and expenditure projections in the proposed budget are reasonable. District officials did implement the recommendations in Comptroller DiNapoli’s July 2020 budget review letter. The district's proposed budget complies with the tax levy limit because it includes a tax levy of $22,922,337, which is within the limits established by law.

 

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