Opinion
908458-19
02-10-2021
The NEW YORK STATE POLICE INVESTIGATORS ASSOCIATION, LOCAL 4 IUPA, AFL-CIO, BY its President, Timothy M. DYMOND; Timothy M. Diamond, Individually, on behalf of himself and all others similarly situated; John Doe and Jane Roe; Petitioners-Plaintiffs, Hybrid Proceeding/Action For a Judgment Pursuant to Articles 78 and 30 of the CPLR and 42 USC 1983, v. The State of New York, DIVISION OF STATE POLICE, and Keith M. Corlett, in his official capacity as Superintendent of the State of New York, Division of State Police, Respondents-Defendants.
GLEASON, DUNN, WALSH & O'SHEA, Attorneys for the Petitioners-Plaintiffs HON. LETITIA JAMES, Attorney General for the State of New York, (Helena O. Pederson, of Counsel), Attorneys for the Respondents-Defendants
GLEASON, DUNN, WALSH & O'SHEA, Attorneys for the Petitioners-Plaintiffs
HON. LETITIA JAMES, Attorney General for the State of New York, (Helena O. Pederson, of Counsel), Attorneys for the Respondents-Defendants
Patrick J. McGrath, J. Petitioners-Plaintiffs ("petitioners") commenced this combined proceeding for mandamus to compel, prohibition, and in the alternative, for review pursuant to Civil Practice Law and Rules ("CPLR") Article 78, as well as for declaratory judgment pursuant to CPLR 3001, against Respondents-Defendants ("respondents") regarding administrative subpoenas issued by respondents for internal personnel investigations. Respondents submitted an answer and move for summary judgment pursuant to CPLR 3212. Petitioners submitted a reply and opposition to the summary judgment motion.
Petitioner, the New York State Police Investigators Association ("NYSPIA"), is the duly recognized and certified collective bargaining representative for members of the Investigators and Senior Investigators Unit of the New York State Employees ("Investigators Unit"). The Investigators Unit consists of all persons employed as members of the New York State Division of State Police ("State Police") as Investigators, Senior Investigators or Investigative Specialists. Petitioner, Timothy M. Dymond ("Investigator Dymond") is an Investigator with the State Police, and is the duly elected President of NYSPIA. Petitioners, John Doe ("Investigator Doe") and Jane Roe ("Investigator Roe") are Investigators with the State Police, and believe themselves to be the subjects of pending personnel investigations by respondents.
Upon commencement of this action, Christopher M. Quick ("Investigator Quick") was an Investigator with the State Police and the President of NYSPIA, however he retired from the State Police and Investigator Dymond was installed as the new President of NYSPIA during the pendency of this action. As outlined in the parties' Stipulation, which was So-Ordered by this Court on November 18, 2020, Investigator Dymond was substituted for Investigator Quick in the papers of this action.
Respondent, State Police, appoints and employs members of the Investigators Unit, including Investigators Dymond, Doe and Roe. Respondent, Keith M. Corlett is the Superintendent of the State Police ("Superintendent") and has statutory power to impose discipline on appointed members of the State Police after a hearing and in accordance with the due process rights of such members. Respondents issue administrative subpoenas to third-parties to obtain personal information, including personal smart phone information, in connection with internal personnel investigations. Respondents derive their authority to issue the administrative subpoenas from Title 9 of the New York Codes, Rules and Regulations ("NYCRR"), Section 484.2 and New York State Executive Law § 215 (3). Respondents do not maintain written standard operating procedures with respect to the use of their administrative subpoenas.
In this hybrid proceeding, petitioners seek a judgment: 1) prohibiting and enjoining respondents' use, in any personnel investigation of materials obtained through administrative subpoenas that were not issued pursuant to statute and on notice to the members being investigated; 2) prohibiting and enjoining respondents' use of administrative subpoenas in personnel investigations, where such subpoenas are issued based on powers granted to respondents by themselves through regulation; 3) prohibiting and enjoining respondents' use of administrative subpoenas in personnel investigations, unless those subpoenas are subject to a regulatory framework that petitioners argue protects their rights and interests; 4) mandating that any administrative subpoenas issued by respondents in the context of a personnel investigation be issued in accordance with Public Officers Law § 61, and regulated by the CPLR or some other regulatory framework; 5) declaring that respondents' issuance of administrative subpoenas based upon powers respondents granted to themselves through regulation is ultra vires and unlawful; 6) declaring that respondents' issuance of administrative subpoenas without a regulatory framework to adequately protect petitioners' rights and interests is ultra vires and unlawful; and 7) declaring that respondents' issuance of administrative subpoenas for personal cell phone records of members of the State Police based on powers respondents granted to themselves through regulation, and without notice to the members being investigated, is ultra vires and unlawful.
Pursuant to Public Officers Law § 61, "[e]very state officer, in any proceeding held before him, or in any investigation held by him for the purpose of making inquiry as to the official misconduct of any subordinate officer or employee, shall have the power to issue subpoenas for and require the attendance of witnesses and the production of all books and papers relating to any matter under inquiry." Furthermore, "[a] subpoena issued under this section shall be regulated by the civil practice law and rules." (Id. ) Pursuant to CPLR 2303 (a), a "copy of any subpoena duces tecum served in a pending civil judicial proceeding shall also be served ... on each party who has appeared in the civil judicial proceeding so that it is received by such parties promptly after service on the witness and before the production of books, papers or other things." Furthermore, CPLR 3120 (3) provides that, "[t]he party issuing a subpoena duces tecum ... shall at the same time serve a copy of the subpoena upon all other parties and, within five days of compliance therewith, in whole or in part, give to each other party notice that the items produced in response thereto are available for inspection and copying".
Pursuant to Executive Law § 215 (3), the Superintendent has the authority, among other things, to "make rules and regulations subject to approval by the governor for the discipline and control" of the State Police. State Police regulations for internal investigations, including subpoenas, are found under 9 NYCRR Part 484 ("Part 484"), wherein statutory authority is cited as Executive Law § 215 (3). The purpose of Part 484 is stated as, "[t]he security of the State depends to a great extent upon the manner in which the New York State Police performs its duties. Conduct by members or employees that impairs their integrity or the propriety of their performance may jeopardize the safety of the public and raise questions regarding the integrity of other division members and employees" ( 9 NYCRR 484.1 ). The Superintendent is "responsible for the prompt and thorough investigation of every complaint and accusation made against a member" of the State Police. (Id. ) With regard to subpoenas, "[t]he superintendent ... shall have the power to issue subpoenas and subpoenas duces tecum requiring persons to appear before a designated division commissioned officer and be examined with reference to a matter within the scope of the administrative personnel investigation being conducted, and to produce books, payrolls, personnel records, correspondence, documents, papers, or any other evidence relating to such investigation" ( 9 NYCRR 484.2 ). Furthermore, 9 NYCRR Part 479 ("Part 479") addresses reports of accusations of a member of the State Police and states that, "[e]very such accusation or information shall be thoroughly investigated, in order to protect the accused member, the division, and the people of the State of New York, and all such investigations shall be handled in accordance with current written division instructions outlining the procedure for reporting and investigating complaints against personnel" ( 9 NYCRR 479.1 ).
Petitioners argue that respondents issue the administrative subpoenas without any express statutory authority, without promulgated standards to restrict the scope, relevancy or type of data that may be collected, without any notice or opportunity for affected persons to object to the nature or scope of the subpoenaed information and without any review by a neutral party to determine whether the information subpoenaed, including from personal smart phones, is an unnecessary or unwarranted invasion of constitutional rights or privacy.
Petitioners claim that respondents do not give the subjects of the personnel investigations notice that administrative subpoenas are being, or have been, issued. Petitioners further claim that members of the State Police being investigated in connection with personnel matters are not given copies of any materials that are received by respondents in response to those subpoenas. Petitioners claim that respondents issue the administrative subpoenas in secret, without notifying the parties in interest, or affording those parties the opportunity to challenge the factual basis, relevancy or scope, of the subpoenas. Petitioners note that they do not object to necessary and appropriate internal investigations to ensure the integrity and professionalism of the State Police, or respondents' use of administrative subpoenas that are authorized by statute and governed by fair and appropriate regulatory standards. However, petitioners argue that any administrative subpoenas must be issued pursuant to statutory authority expressly granted to respondents by the New York State Legislature ("Legislature") and subject to a regulatory framework that adequately protects petitioners' interests. Petitioners assert that 9 NYCRR 484.2 does not provide any standards for, or limitations on, the use of administrative subpoenas, nor does it require that subpoenas issued by respondents in connection be reasonably limited in subject matter or scope, or be regulated by the CPLR. Petitioners argue that while Part 484 states that its statutory authority is derived from Executive Law § 215 (3), that section does not expressly grant respondents subpoena power.
Petitioners argue that members of the State Police who are the subject of a personnel investigation should be able to challenge the authority, scope, relevancy or factual basis for an administrative subpoena or subpoena duces tecum issued in connection with such an investigation. Petitioners further argue that members of the State Police under investigation have constitutionally protected liberty and privacy interests, and the administrative subpoenas often target smart phones and related electronic technology devices that create and maintain extensive personal and private information, of which petitioners argue may be of no investigatory value in a particular case (e.g. photographs, social media activity, location information and family communications).
Petitioners next argue that on or about August of 2019, respondents issued administrative subpoenas to third parties to obtain electronic information derived from the personal smart phones of Investigators Doe and Roe without their knowledge or consent (the "Doe and Roe Subpoenas"). Petitioners claim that on or about August 8, 2019, attorneys for Investigators Doe and Roe contacted respondents demanding that respondents provide copies of, and withdraw, any administrative subpoenas that had been issued by respondents in connection with any personnel investigation of Investigators Doe and Roe. Petitioners assert that in a letter dated August 15, 2019, respondents indicated that, based on the language of 9 NYCRR 484.2, they are not obligated to give members of the State Police notice or copies of any administrative subpoenas that are issued in personnel investigations involving those members ("Denial Letter"). Petitioners argue that they do not know whether the subpoenas sought and/or obtained the contents of petitioners' electronic communications since respondents have refused to provide Investigators Doe and Roe with copies of the administrative subpoenas or any materials obtained through those subpoenas. Respondents argue that internal personnel investigations are conducted pursuant to Parts 479 and 484, and the process is set forth in Article 16 (Member's Rights) of the collective bargaining agreement between the State of New York and NYSPIA ("CBA"). Respondents note that the investigations are initiated following suspected misconduct in violation of the State Police's rules and regulations or in response to complaints or accusations of member misconduct. Respondents state that a member will typically not receive notice of the investigation until all confidential aspects of the investigation, including the use of an administrative subpoena, have been completed. Respondents claim that administrative subpoenas are used to secure information deemed material to the specific allegations being investigated and in order to protect the integrity of the underlying investigation, and to prevent the destruction of any evidence, the State Police does not provide the target of the investigation with notice, copies, or the results of the administrative subpoena while the investigation is pending.
Respondents argue that this proceeding is barred by the statute of limitations. First, respondents note that actions for declaratory judgments brought pursuant to CPLR 3001 normally are subject to the catch-all limitations period under CPLR 213 (1) and must be commenced within six years after such date. However, respondents argue that the six-year limitations period under CPLR 213 (1) may only be invoked if there is no other proceeding wherein a specific limitation period is provided, and since an Article 78 action provides an adequate remedy at law, the applicable statute of limitations is the four-month period under CPLR 217 (1). Respondents argue that to have timely commenced an Article 78 proceeding or declaratory judgment action challenging such regulation, petitioners were required to file a petition within four months of June 25, 1992 (the date on which the regulation was enacted); on or before October 26, 1992. Respondents alternatively argue that even if the six-year statute of limitations is applied to petitioners' declaratory judgment action, petitioners were required to file a complaint within six years of enactment - on or before June 25, 1998 - to have timely filed this action. Respondents assert that the instant petition was filed on December 5, 2019, over 20 years after either possible statute of limitations had run, and therefore should bar petitioners' action.
Respondents next argue that administrative actions taken by a New York State agency, including the promulgation of regulations pursuant to statutory authority, can only be overturned under CPLR Article 78 if irrational or unreasonable. Respondents claim that their use of administrative subpoenas in the internal disciplinary investigations of its personnel, as well as their use of administrative subpoenas pursuant to the regulations, have a rational basis and are reasonable administrative actions supported by statutory authority. Furthermore, respondents note that under mandamus to compel, " ‘while a mandamus is an appropriate remedy to enforce the performance of a ministerial duty, ... it will not be awarded to compel an act in respect to which the officer may exercise judgment or discretion" ( Matter of Albany Police Officers Union, Local 2841, Law Enf't Officers Union Dist. Council 82, AFSCME, AFL-CIO v. NY Pub. Emp't Relations Bd. , 170 A.D.3d 1312, 1313-14, 96 N.Y.S.3d 365 [3rd Dept. 2019], lv denied 33 N.Y.3d 911, 2019 WL 4200252 [2019] ). Respondents argue that Executive Law § 215 and the regulations encompassed by Part 484 set forth respondents' duties here, and the acts of promulgating the challenged regulation and of issuing administrative subpoenas are discretionary, not ministerial. Respondents further argue that petitioners have not shown that respondents "failed to perform a duty enjoined by law" under CPLR 7803 (1) since respondents are acting pursuant to their authority under Executive Law § 215 and Part 484; thus, properly performing duties enjoined by law.
Respondents next argue that a writ of prohibition does not lie in an administrative action; only against judicial and quasi-judicial actions. Respondents argue that the use of administrative subpoenas serves an investigative function and they are not a judicial or quasi-judicial function, such that prohibition is not available to petitioners. Furthermore, respondents argue that their investigative duties are "executive" in nature, which cannot be the object of a proceeding for writ of prohibition. Finally, respondents argue that if there is an adequate "ordinary" remedy, such as an Article 78 proceeding to review the State Police's determination at the conclusion of the disciplinary process, then prohibition is not appropriate here.
Respondents argue that their actions in establishing Part 484 are not affected by an error of law, arbitrary and capricious, or an abuse of discretion. Respondents rely on the Executive Law § 215 (3), which they argue empowers them with broad authority to address issues of discipline within the State Police. Respondents claim that they appropriately established rules and regulations regarding their processes for handling disciplinary matters, including internal personnel investigations through Part 484. Respondents further assert that the challenged regulations under Part 484 are a rational and reasonable exercise of respondents' broad statutory authority and respondents have neither exceeded their authority, nor acted arbitrarily or capriciously, in promulgating such regulations or issuing administrative subpoenas pursuant to such regulations. Respondents further argue that petitioners papers are fatally flawed since they failed to allege any facts demonstrating respondents' violation of applicable statutes or regulations. Respondents further argue that they do not derive their subpoena power from the CPLR, which governs procedure in civil judicial proceedings. Respondents assert that their investigations are not judicial or even quasi-judicial proceedings.
Respondents next argue that the request for a declaratory judgment must be denied because Article 78 provides an adequate remedy at law. Respondents argue that petitioners' request for a declaratory judgment is duplicative of the relief they seek under Article 78, specifically the nature of prohibition.
Respondents next argue that the challenged administrative actions are not ultra vires and do not violate State or federal law. Respondents assert that under state law, their actions are proper as they derive their power to issue the subpoenas from Executive Law § 215 and Part 484, and not from the CPLR. As argued above, respondents note that the CPLR governs procedure in civil judicial proceedings, and the State Police personnel investigations are not judicial or quasi-judicial proceedings. Respondents assert that petitioners' cause of action alleging violation of federal law by ultra vires does not reference a specific federal law that respondents are alleged to have violated. However, respondents note that petitioners make passing reference to the Electronic Communications Privacy Act of 1986 ("ECPA") and address this as the alleged federal law. Respondents note that the Stored Communications Act ("SCA"), which is part of the ECPA, governs the release of electronic records, such as the phone records at issue here. Respondents argue that the suspected misconduct involved in the investigations is the excessive use of personal cell phones to conduct personal affairs during work hours, and the administrative subpoenas were used to obtain subscriber information, call records, and text message logs, in order to determine the frequency of personal phone calls and text messages during work hours. Respondents further argue that the subpoenas were not used to obtain the content of any phone calls or text messages, and note that additional steps must typically be taken pursuant to state and/or federal law before such content information is sought. Respondents further argue that they were not required to provide notice of the subpoena to Investigators Doe and Roe, and any alleged failure to do so was not ultra vires federal law. Respondents also argue that the declaratory relief sought by petitioners is not available for alleged violations of the SCA.
In reply, petitioners acknowledge that the investigation into Investigators Doe and Roe involved excessive use of personal cell phones to conduct personal affairs during work hours because Investigators Doe and Roe are in a long-term relationship, are living and raising children together, and there was an Order issued that they not engage in any form of personal communication during working hours.
Petitioners argue that the administrative subpoenas do not afford State Police members basic procedural and substantive due process protections against unwarranted invasions of personal rights and privacy, which they argue are provided for all other citizens, including other New York State employees under Public Officers Law § 61. Petitioners note that respondents do not claim authority for their subpoena power under Public Officers Law § 61, but instead try to rely on Executive Law § 215 (3). Petitioners assert that Executive Law § 215 does not grant respondents express subpoena power, but rather authorizes the Superintendent generally, to make rules and regulations for the "discipline and control" of the State Police. Petitioners question how respondents could have been given a power to issue administrative subpoenas without the Legislature's authorization. Petitioners argue that the such power does not exist until it is expressly granted by the Legislature, and must contain procedures that protect individual rights. Petitioners emphasize that respondents do not dispute that Part 484 does not require any limitations in subject matter or scope, or provide a mechanism for a neutral party to review the subpoenas before they are issued. Petitioners argue that members of the State Police under internal investigation do not have a way to effectively exercise a right to challenge a subpoena that they never see and have no notice of.
Petitioners argue that Article 16 of the CBA does not contain any references of respondents' use of administrative subpoenas, but that it does set forth "Members' Rights" in connection with any "inquiry into a member's official actions or activities" including a member's right to representation in connection with any "information" or "statements" that are given. Petitioners further note that nothing under Part 479 puts petitioners on notice that respondents take the position that "the results of any administrative subpoenas issued during the underlying investigation will be presented during the disciplinary hearing." Petitioners argue that the illegality of the administrative subpoenas is not later cured by production in a disciplinary hearing. Petitioners assert that there is no support for respondents' theory that the manner of their use of the administrative subpoenas in question is immune from judicial review. Petitioners again emphasize that the power to issue administrative subpoenas under New York State Law requires express authorization from the Legislature and that respondents do not have such authority.
Petitioners further argue that respondents' subpoena practices are in violation of federal law. Petitioners note that ECPA requires a warrant if a public official or agency requests contents of electronic communications from a provider of electronic communication services, without notice to the subscriber or customer involved. If notice is provided to the subscriber or customer involved, petitioner notes that ECPA allows the use of an administrative subpoena, if it is authorized by a federal or state statute, a grand jury or trial subpoena, or a court order. Petitioner further notes that under ECPA, an administrative subpoena authorized by a federal or state statute is required for a provider of electronic communication services to otherwise disclose to a governmental entity the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity and the types of services a subscriber or customer used. Petitioners argue that the respondents use of administrative subpoenas are in violation of ECPA.
Petitioners next argue that even if the use of a personal cell phone while on duty was prohibited, that would not justify any and all investigations of the personal affairs of State Police members to determine if and when the challenged conduct did or did not occur. Petitioners argue that there is no basis for respondents' argument that no personal affairs of members of the State Police remain personal if conducted at any time during work hours. Petitioners argue there is an offense to public policy if this argument is upheld, specifically since the Legislature recently expanded public access to police disciplinary information. Petitioners argue that respondents' stance indicates that the privacy interests of members of the State Police deserve less protection than other citizens or State officials.
Petitioners next argue that their action is not time barred. Petitioners argue that this litigation was initiated within four months of Investigators Doe and Roe being aggrieved by the subpoenas in question, which is a challenge to existing subpoenas and the procedures under which they were issued. Petitioners argue that an invalid or unconstitutional regulation, such as the one created by respondents herein, cannot be forever immune after the statute of limitations has purportedly expired. Petitioners further argue that a statute of limitations should not be applied to immunize future wrongdoing. Petitioners argue that their claims are timely since this is not just a case challenging the applicability of a regulation, but also a challenge to continuing unlawful conduct.
Petitioners next argue that they have stated valid claims under Article 78. With respect to prohibition, petitioners question why the use of administrative subpoenas, used by State Police to gather evidence for a disciplinary hearing in an internal personnel investigation, would not be considered "quasi judicial". Petitioners further argue that an agency issuing a power to itself, that the agency has no authority to issue, is the definition of arbitrary and capricious. Petitioners continue to argue that the power to issue administrative subpoenas has not been granted by the Legislature as required. With respect to the Court's discretion, petitioners argue that factors such as gravity of potential harm or proceedings in law or equity weigh in petitioners' favor since the potential harm presented by respondents' use of administrative subpoenas, without restrictions or independent review, is apparent. Petitioners further argue that there is no other path for judicial review since petitioners nor a third party have the opportunity to review the subpoenas in the first place.
Finally, petitioners argue that respondents' positions concerning the request for declaratory relief are inconsistent. Petitioners note that respondents first argue that petitioners have no claims pursuant to Article 78, but then contend that the request for declaratory relief should be denied since an adequate remedy at law is available under Article 78. Petitioners argue that respondents' purported authority to issue administrative subpoenas does not exist under Executive Law § 215, and absent the express statutory authority, respondents' issuance of the subpoenas is beyond their power. Petitioners next acknowledge that government entities may use administrative subpoenas to compel the disclosure of certain information pursuant to an administrative subpoena authorized by a federal or state statute, however petitioners argue that respondents failed to address that the law requires that the administrative subpoena be authorized by "statute." Petitioners assert that the authority granted in this case to issue administrative subpoenas was by a self-made regulation and not by statute. Petitioners further argue that while respondents contend that they "sought only subscriber and session information permitted for disclosure to government entities via administrative subpoena," they cannot confirm or assert any kind of overreach by respondents since petitioners are not given a copy of the subpoenas or the materials received in response to a subpoena.
Discussion
Statute of Limitations
The statute of limitations to bring an Article 78 matter is four months ( CPLR 217 [1] ). The statute starts to run when the determination to be reviewed becomes final and binding on the petitioner, i.e., when the petitioner receives notice of determination ( New York State Ass'n of Counties v. Axelrod , 78 N.Y.2d 158, 573 N.Y.S.2d 25, 577 N.E.2d 16 [1991] ) (emphasis added). Moreover, "[i]n a CPLR article 78 proceeding seeking mandamus to compel a government official to act, the statute of limitations does not begin to run until the petitioner demands that the official act and the official refuses" ( Matter of U.S.A. Inc. v. Commissioner of Envtl. Conservation , 86 A.D.3d 838, 840, 927 N.Y.S.2d 452 [3d Dept. 2011] ). Here, respondents sent their Denial Letter, dated August 15, 2019, and according to NYSCEF, petitioners commenced this action on December 5, 2019. Based on the record before this Court, it appears that State Police disciplinary hearings are not always initiated after the use of an administrative subpoena. Therefore, petitioners should not be required to wait until a disciplinary hearing is initiated and completed in order to commence an Article 78 proceeding as the within action is based upon the use and process of the administrative subpoenas, not the disciplinary hearing itself. The Court finds that petitioners commenced the Article 78 within the four month statute of limitations once they were notified that the subpoenas and the materials received as a result of such subpoenas would not be released. Such a controversy alleged by petitioners "presents a question of law, involving statutory interpretation, with no disputed facts, and an adjudication of the parties' rights is likely to render later litigation unnecessary" ( Constantine v. White , 166 A.D.2d 59, 61, 569 N.Y.S.2d 765 [3d Dept. 1991] ). Furthermore, if there was no other proceeding upon which a statute of limitation period is applicable then a request for a declaratory judgment may be subject to the catch-all limitations period under CPLR 213 (1), which directs that an action must be commenced within six years after such date (See New York City Health & Hosps. Corp. v. McBarnette , 84 N.Y.2d 194, 200-201, 616 N.Y.S.2d 1, 639 N.E.2d 740 [1994] ). However, this matter would not be time barred based on the six-year residuary statute of limitations under CPLR 213 (1) since claims for declaratory relief "invalidating the applicable statute cannot be barred by the Statute of Limitations because a cause of action for a continuing harm continuously accrues" ( Davis v. Rosenblatt , 159 A.D.2d 163, 168, 559 N.Y.S.2d 401 [3d Dept. 1990], appeals dismissed 77 NY2d 834, 566 N.Y.S.2d, 567 N.E.2d 982 [1991], 79 NY2d 822, 580 N.Y.S.2d 192, 588 N.E.2d 90 [1991]). In light of the foregoing, the Court finds respondents' statute of limitations arguments to be without merit.
Standards of Review
An Article 78 proceeding may be brought to challenge the following: (1) whether an administrative body or officer "failed to perform a duty enjoined upon it by law;" (2) whether an administrative body or officer "is proceeding or is about to proceed without or in excess of jurisdiction"; (3) "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion"; and (4) whether a determination made as a result of an evidentiary hearing is "supported by substantial evidence" ( CPLR 7803 ). In a proceeding for mandamus to compel, a petitioner must establish a clear legal right to the relief demanded and there must exist a corresponding nondiscretionary duty on the part of the administrative agency to grant that relief (See CPLR § 7803 [1] ; Matter of Crain Communications, Inc. v. Hughes , 74 N.Y.2d 626, 628, 541 N.Y.S.2d 971, 539 N.E.2d 1099 [1989] ; Matter of Kupersmith v. Public Health Council , 63 N.Y.2d 904, 906, 483 N.Y.S.2d 211, 472 N.E.2d 1039 [1984] ; Matter of City of Newburgh v. Public Employment Relations Bd. , 63 N.Y.2d 793, 795, 481 N.Y.S.2d 327, 471 N.E.2d 140 [1984] ).
In a proceeding for writ of prohibition, a petitioner must establish that: "(1) a body or officer is acting in a judicial or quasi-judicial capacity, (2) that body or officer is proceeding or threatening to proceed in excess of its jurisdiction and (3) petitioner has a clear legal right to the relief requested" ( Matter of Town of Huntington v. New York State Div. of Human Rights , 82 N.Y.2d 783, 786, 604 N.Y.S.2d 541, 624 N.E.2d 678 [1993] ; see also Holtzman v. Goldman , 71 N.Y.2d 564, 569, 528 N.Y.S.2d 21, 523 N.E.2d 297 [1988] ). "The remedy is confined to judicial or quasi-judicial action rather than to legislative, executive, administrative, or ministerial acts" ( Matter of Doe v. Cuomo , 71 A.D.3d 889, 889, 895 N.Y.S.2d 833 [2d Dept. 2010] ); Morgenthau v. Erlbaum , 59 N.Y.2d 143, 147, 464 N.Y.S.2d 392, 451 N.E.2d 150 [1983] ). Where a challenged act involves a "purely investigative function", the acts of a public official may be regarded as ‘executive’ in nature and, in consequence, cannot legitimately be the object of a writ of prohibition" ( McGinley v. Hynes , 51 N.Y.2d 116, 124, 432 N.Y.S.2d 689, 412 N.E.2d 376 [1980] ; see also Matter of Doe v. Cuomo , 71 A.D.3d at 889, 895 N.Y.S.2d 833 ; Matter of Abelove v. Cuomo , 57 Misc. 3d 668, 677, 61 N.Y.S.3d 837 [Sup. Ct., Albany County, 2017, Mott, J.] ).
When a petitioner challenges an administrative determination that was not made after a quasi-judicial hearing, the court must consider whether the determination was made in violation of lawful procedure, affected by an error of law, or arbitrary and capricious (See CPLR 7803 (3) ; Matter of Jefferson v. New York City Bd. of Educ. , 146 A.D.3d 779, 780, 44 N.Y.S.3d 535 [2d Dept. 2017] ; Matter of Gottlieb v. City of New York , 129 A.D.3d 724, 725, 10 N.Y.S.3d 542 [2d Dept. 2015] ). A determination is arbitrary and capricious when it is without sound basis and reason and generally taken without regard to the facts (See Matter of Wooley v. New York State Dept. of Correctional Servs. , 15 N.Y.3d 275, 280, 907 N.Y.S.2d 741, 934 N.E.2d 310 [2010] ; Pell v. Bd. of Educ. , 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974] ).
Furthermore, CPLR 3001 provides that "[t]he supreme court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed." The "primary purpose of declaratory judgments is to adjudicate the parties' rights before a wrong actually occurs in the hope that later litigation will be unnecessary" ( Klostermann v. Cuomo , 61 N.Y.2d 525, 538, 475 N.Y.S.2d 247, 463 N.E.2d 588 [1984], citing Morgenthau v. Erlbaum , 59 N.Y.2d at 148, 464 N.Y.S.2d 392, 451 N.E.2d 150 (internal quotations omitted); see also Siegel, NY Prac § 436, at p 840 [6th ed 2018] [a declaratory judgment action "contemplates a judgment that will merely declare the rights of the parties in respect of the matter in controversy ... [where] a mere judicial declaration of the rights vis-a-vis the other side will do the job"]). A "declaratory judgment does not entail coercive relief, but only provides a declaration of rights between parties ... [i]n other words, the declaration in the judgment itself cannot be executed upon so as to compel a party to perform an act" ( Morgenthau v. Erlbaum , 59 N.Y.2d at 148, 464 N.Y.S.2d 392, 451 N.E.2d 150 ; see also Siegel, NY Prac § 436, at p 840).
Respondents filed a motion for summary judgment on the declaratory judgment action and "under appropriate circumstances, summary judgment may lie within the confines of a declaratory judgment action" ( Subdivisions, Inc. v. Town of Sullivan , 75 A.D.3d 978, 980, 905 N.Y.S.2d 367 [3d Dept. 2010] ; see also Russell v. Town of Pittsford , 94 A.D.2d 410, 412, 464 N.Y.S.2d 906 [4th Dept. 1983] ). It is well settled that summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of triable issues of fact ( Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). Here, the facts are not disputed and the questions before this Court pertain to the interpretation of the laws, rules and regulations, and their application to administrative subpoenas issued by respondents.
With regard to the actions requested under Article 78, the Court finds that a writ of prohibition does not lie in this action as the administrative subpoenas issued by respondents are purely investigative in nature and are not issued in a judicial or quasi-judicial capacity (See McGinley v. Hynes , 51 N.Y.2d at 124, 432 N.Y.S.2d 689, 412 N.E.2d 376 ; Matter of Doe v. Cuomo , 71 A.D.3d at 889, 895 N.Y.S.2d 833 ; Matter of Abelove v. Cuomo , 57 Misc. 3d at 677, 61 N.Y.S.3d 837 ). Therefore, the relief which they seek by way of prohibition must be denied.
Respondents' Administrative Subpoenas
In order to obtain authority to promulgate rules and regulations, an agency must be given statutory predicate, either express or implied ( Kuppersmith v. Dowling , 93 N.Y.2d 90, 96, 688 N.Y.S.2d 96, 710 N.E.2d 660 [1999], citing Matter of Bates v. Toia , 45 N.Y.2d 460, 464, 410 N.Y.S.2d 265, 382 N.E.2d 1128 [1978] ). The Legislature "may constitutionally delegate rule-making authority to an administrative agency only if it furnishes the agency with at least a broad outline within which to act" ( Bates v. Toia ,45 N.Y.2d at 464, 410 N.Y.S.2d 265, 382 N.E.2d 1128, citing Matter of Levine v. Whalen , 39 N.Y.2d 510, 515-516, 384 N.Y.S.2d 721, 349 N.E.2d 820 [1976] ). "[A] reasonable amount of discretion may be delegated to the administrative officials" ( Big Apple Food v. Street Vendor Review Panel , 90 N.Y.2d 402, 407, 660 N.Y.S.2d 846, 683 N.E.2d 752 [1997], quoting Matter of Levine v. Whalen , 39 N.Y.2d at 516, 384 N.Y.S.2d 721, 349 N.E.2d 820 ). However, administrative rules and regulations "are not judicially approved in a pro forma manner" ( Kuppersmith v. Dowling , 93 N.Y.2d at 96, 688 N.Y.S.2d 96, 710 N.E.2d 660 ). "Courts will uphold regulations that have ‘a rational basis and [are] not unreasonable, arbitrary, capricious or contrary to the statute under which [they were] promulgated’ " ( Matter of Kigin v. State of NY Workers' Compensation Bd. , 24 N.Y.3d 459, 467, 999 N.Y.S.2d 800, 24 N.E.3d 1064 [2014], quoting Kuppersmith v. Dowling , 93 N.Y.2d at 96, 688 N.Y.S.2d 96, 710 N.E.2d 660 ). For a court's inquiry, "where ‘the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency’ In such circumstances, the judiciary need not accord any deference to the agency's determination, and is free to ascertain the proper interpretation from the statutory language and legislative intent" ( Belmonte v. Snashall , 2 N.Y.3d 560, 566, 780 N.Y.S.2d 541, 813 N.E.2d 621 [2004], quoting Matter of Gruber [New York City Depart. of Personnel] , 89 N.Y.2d 225, 231-232, 652 N.Y.S.2d 589, 674 N.E.2d 1354 [1996] ).
With regard to the State Police and Superintendent's authority over personnel matters, the Appellate Division, Third Department has acknowledged the broad authority vested in the State Police and Superintendent under Executive Law § 215 (3) (See Matter of Wright v. Connelie , 101 A.D.2d 902, 902, 475 N.Y.S.2d 170 [3d Dept. 1984] [the Superintendent "should have wide latitude in choosing men for leadership positions whose talents are best suited to assist him in fulfilling his mandate under the law"]; Burke v. New York State Police , 115 A.D.2d 108, 110, 495 N.Y.S.2d 98 [3d Dept. 1985] [the Superintendent has the power to appoint members to the State Police]). In Matter of Wright v. Connelie, 101 A.D.2d at 902-903, 475 N.Y.S.2d 170 the Superintendent's authority was recognized and given deference "in light of the unique and delicate service the State Police renders to the public .... to attain effective force management." However, where the statutory grant of authority to the Superintendent under Executive Law § 215 (3) "does not indicate a legislative intent" that is contrary to the provisions of another state statute, the Third Department has applied such provisions of the other state statute to State Police personnel matters (See Koskey v. McMahon , 299 A.D.2d 682, 683-684, 749 N.Y.S.2d 585 [3d Dept. 2002] [Court applied Civil Service Law in the "absence of evidence by respondent of the Legislature's intention that Executive Law § 215 (3) preempt Civil Service Law § 61 (2)"]; Sabatini v. Kirwan , 42 A.D.2d 1004, 1004, 348 N.Y.S.2d 377 [3d Dept. 1973] [Civil Service Law was declared applicable to the State Police and "any exception to coverage would require a clear legislative declaration to that effect"]). The Court recognizes that Executive Law § 215 (3) gives the Superintendent broad discretion in personnel matters but there is no evidence before this Court, and the Court has not found any in its research, that the Legislature intended for the broad authority granted by Executive Law § 215 (3) to preempt the subpoena requirements of Public Officers Law § 61.
Moreover, an investigative subpoena issued by an administrative agency is often referred to as an "office subpoena" ( Virag v. Hynes , 54 N.Y.2d 437, 441, 446 N.Y.S.2d 196, 430 N.E.2d 1249 [1981] ). An office subpoena is executed and the witness is examined pursuant to the office subpoena without direct judicial supervision. ( Id. ) However, "[t]he power to issue a subpoena exists only when it is expressly granted by the Legislature" ( Matter of Reckess v. New York State Commn. on Quality of Care for the Mentally Disabled , 7 N.Y.3d 555, 559, 825 N.Y.S.2d 178, 858 N.E.2d 772 [2006] ; see Matter of Irwin v. Board of Regents of Univ. of State of NY , 27 N.Y.2d 292, 297, 317 N.Y.S.2d 332, 265 N.E.2d 752 [1970] ). As outlined herein, Public Officers Law § 61 allows for subpoenas to be issued in a pre-hearing investigation (See New York State Dep't of Transp. v. Matt , 124 Misc. 2d 1080, 1081, 478 N.Y.S.2d 1007 [Sup. Ct., Albany County 1984, Williams, J.] ). In Matter of Evergreen Assn., Inc. v. Schneiderman, 153 A.D.3d 87, 97, 54 N.Y.S.3d 135 (2d Dept. 2017), the Second Department determined that the Attorney General is authorized to serve an investigative subpoena pursuant to Executive Law § 63 (12). Executive Law § 63 (12) specifically states that "the attorney general is authorized to take proof and make a determination of the relevant facts and to issue subpoenas in accordance with the civil practice law and rules." In Anonymous v. State Dep't of Health, 173 A.D.2d 988, 989, 569 N.Y.S.2d 500 (3d Dept. 1991), the Third Department found that Public Health Law § 230 (10) (k) expressly authorized "the issuance of subpoenas in professional misconduct hearings". Public Health Law § 230 (10) (k) states that "[t]he executive secretary of the board with the specific approval of a committee on professional conduct of the board shall have the power to issue subpoenas requiring persons to appear before the board and be examined with reference to a matter within the scope of the inquiry or the investigation being conducted by the board and produce books, papers, records or documents pertaining thereto." Lastly, in In re Erie County Correctional Facility, 186 A.D.2d 1045, 1045, 590 N.Y.S.2d 778 (4th Dept. 1992), the Fourth Department found that Education Law § 6510 (3) (a) (4) and State Administrative Procedure Act § 304 (2) provided express statutory authority to issue subpoenas in disciplinary proceedings. Education Law § 6510 (3) (a) (4) allows the department "to issue subpoenas in accordance with the provisions of the civil practice law and rules" and State Administrative Procedure Act § 304 (2) states that presiding officers are authorized to "[s]ign and issue subpoenas in the name of the agency, at the request of any party, requiring attendance and giving of testimony by witnesses and the production of books, papers, documents and other evidence and said subpoenas shall be regulated by the civil practice law and rules." Again, the Court notes the Superintendent's broad discretion in personnel matters. However, as petitioners argue, the authority relied upon for respondents' administrative subpoenas lies in Part 484, a regulation promulgated by respondents themselves, and such authority is not expressly granted from statute. Executive Law § 215 (3), unlike the statutes cited herein, does not expressly grant the State Police the authority to issue the administrative subpoenas.
Moreover, while respondents argue that they do not derive their subpoena power from the CPLR as the investigations at issue herein are not judicial or quasi-judicial, the Court notes that Public Officers Law § 61 specifically provides for the use of subpoenas "in any investigation held by him for the purpose of making inquiry as to the official misconduct of any subordinate officer or employee" (emphasis added). Such investigatory subpoenas are regulated by the CPLR (id. ), and respondents have not provided any evidence that the Legislature intended anything to the contrary, as outlined above.
Under the circumstances presented herein, respondents' promulgation of 9 NYCRR 484.2 was instituted without express statutory authority and contrary to Public Officers Law § 61 (See CPLR 7803 [3] ; CPLR 3001 ). Furthermore, the Court finds that petitioners have demonstrated entitlement to mandamus to compel as the statutory directive herein, Public Officers Law § 61, is mandatory and not discretionary if subpoenas are issued (See CPLR 7803 [1] ). Therefore, respondents may issue administrative subpoenas for internal personnel investigations if such subpoenas are issued in accordance with Public Officers Law § 61, and as directed therein, with the CPLR regarding notice of the subpoena and inspection of documents received pursuant to the subpoena.
In light of the foregoing, the Court need not address the parties' remaining arguments. Therefore, it is hereby
ORDERED and ADJUDGED, that petitioners' request for prohibition pursuant to CPLR 7803 (2) is denied; and it is further
ORDERED and ADJUDGED, that petitioners' request for declaratory judgment pursuant to CPLR 3001 is granted in that respondents' issuance of administrative subpoenas pursuant to 9 NYCRR 484.2, without regulatory framework as provided under the CPLR, is unlawful; and it is further
ORDERED and ADJUDGED, that petitioners' request for mandamus to compel pursuant to CPLR 7803 (1) is granted and any future administrative subpoenas issued by respondents in the context of a personnel investigation be issued in accordance with Public Officers Law § 61, which requires regulation of the same by the CPLR, and provide petitioners with the ability to inspect documents received pursuant to subpoenas issued concerning Investigators Doe and Roe; and it is further
ORDERED and ADJUDGED, that respondents' motion for summary judgment with respect to the declaratory judgment claims is denied as the Court has declared the rights in favor of petitioners.
This shall constitute the decision, order and judgment of the Court.