Opinion
123645/99.
May 6, 2002.
DECISION AND ORDER
In this CPLR Article 78 proceeding petitioner Herbert Walker challenges certain alleged adjudicatory practices of the Parking Violations Bureau ("PVB") of respondent City of New York. In particular, petitioner claims that PVB practices (1) improperly shift the burden of proof to vehicle owners to prove that they were not illegally parked; (2) improperly apply a "substantial evidence" rather than a "preponderance of the evidence" standard to sustain a charge of illegal parking; and (3) deny vehicle owners the opportunity to confront and cross-examine the witnesses against them. Petitioner asserts that these practices violate the New York State Vehicle and Traffic Law ("VTL") §§ 238(1) and 240(2) (b), the New York City Administrative Code (the "Administrative Code") §§ 19-204 (a) and 19-206(b)(2), and the due process clause of the New York State Constitution, Article 1, Section 6. Respondent now cross-moves, pursuant to CPLR 7804, to dismiss the petition on the grounds of mootness and collateral estoppel. Respondent also seeks sanctions for frivolous litigation, pursuant to 22 NYCRR Part 130. For the reasons set forth herein, the petition is dismissed on the grounds of mootness, to the extent that it seeks to challenge a particular parking ticket, and on the grounds of collateral estoppel, to the extent that it seeks to challenge the constitutionality of PVB's practices, and the request for sanctions is denied.
Basic Factual and Procedural Background
On May 6, 1997 respondent issued a parking ticket to petitioner for, allegedly, illegally parking in front of 122 Eames Place, Bronx, New York. At a July 24, 1997 hearing petitioner testified that his car had not been parked on Eames Place at the date and time indicated on the ticket, but, rather, had been parked on 195th Street, one block over. He further testified that the ticket was not on his windshield, and that he had received notice of the ticket later, by making an inquiry. The issuing officer was not present at the hearing. After reviewing the ticket, and listening to petitioner's testimony, the hearing examiner found petitioner guilty and imposed a fine of $35.
Petitioner paid the fine and filed an appeal, which the PVB Appeals Board heard on September 24, 1997. Petitioner reiterated his argument. The Appeals Board affirmed the Hearing Officer's decision, stating as follows:
We find no error of law or fact below. Appellant claims the vehicle was parked on 195th Street, not on Eames Place as cited in the summons. The hearing judge, who is the trier of fact and credibility, was not persuaded that the vehicle was not parked at the cited location. We note there is no building number "122," as cited in the ticket, on 195th Street. We find no basis to disturb the decision below. Affirmed.
Following the commencement of this proceeding, PVB dismissed the ticket, and issued a check for $35 to petitioner representing a refund for the ticket, purportedly so that this Court would only have legal issues to address.
Prior Litiaation.
In 1995 petitioner filed an Article 78 proceeding in this court challenging parking tickets he received on four separate occasions between January 1992 and June 1994. In that litigation petitioner raised the same issues and arguments he raises in this proceeding. By decision dated September 11, 1996 ("Walker I"), this Court noted (at 6) that "generally speaking, [it] would be inclined to agree with petitioner that the PVB procedures significantly infringe on the Due Process rights of individuals charged with parking violations." However, the court "[wa]s not writing on a clean slate, and [wa]s constrained by precedent to hold that the statutory scheme passes constitutional muster." In support of the PVB practices, this Court noted that the PVB judge has the discretion to choose which evidence he or she finds credible and whether or not to call the issuing officer, and that the subject PVB procedures have been upheld by appellate courts as not violating the VTL, the Administrative Code, or the Federal and state constitutions.
Both parties moved for reargument. Petitioner asked this Court to compel the PVB to revise its adjudicatory procedures. By decision and order dated December 31, 1997 ("Walker II"), this court denied reargument with regard to the legal issues presented, concluding "that allowing PVB to prove parking violations by the lesser standard of substantial evidence does not illegally shift the burden of proof."
Thereafter, petitioner made an application for attorney's fees. By decision and order dated August 10, 1998 ("Walker III"), this Court denied petitioner's request on the basis that he was not the prevailing party on the constitutional issues. In particular, "petitioner failed to convince this court that PVB's official procedures need a constitutional overhaul or that PVB is violating these procedures in actual fact in a significant way."
Petitioner appealed Walker I, Walker II, and Walker 111. In Matter of Walker v New York City, 262 AD2d 151 (1st Dept), lv denied, 94 NY2d 753 (1999), the First Department unanimously affirmed all three decisions, stating that "[t]he 'substantial evidence' standard for establishing a parking violation set forth in respondent's hearing procedures manual does not violate due process."
On January 23, 1998, petitioner filed a complaint, pursuant to 42 USC § 1983 and state law, in the United States District Court for the Southern District of New York, in an action entitled Walker v City of New York, No. 98 Civ. 0467 (HB), 1999 WL 328356 (SD NY May 24, 1999). In that proceeding petitioner challenged the same PVB procedures that he challenged in the prior state court action and that are also the same violations that he alleges in the instant petition (except that in the instant petition he drops the Federal constitutional claims). In its decision the District Court ruled that petitioner's claims were barred by collateral estoppel. It noted that in the federal action petitioner was making the identical allegations that he had made in the state complaint; that in Walker I, Walker II, and Walker III this court had necessarily decided each and every one of the issues raised in petitioner's Federal complaint; that petitioner had a full opportunity to litigate the issues before the state court; that no violation of the Administrative Code, the VTL or the state and Federal constitutions were found; and that the substantial evidence standard used by the PVB did not improperly shift the burden of proof. The court also found that as the PVB had the discretion to call the issuing officer (which petitioner did not request), petitioner was not denied his right to cross-examine. Noting (at 10) that in the state case this Court had already "decided and re-decided" against petitioner the same constitutional issues he was raising in the federal case, Federal District Judge Harold Baer noted as follows:
Sadly, what [petitioner] has done here is to take advantage of the overworked state justice system and then when the issues were resolved against him there, crossed the street to try his hand in this busy federal court
Petitioner appealed the final judgment of the District Court, arguing that the constitutionality of the challenged PVB procedures was not decided in the prior state court action and that resolution of his constitutional challenge was not necessary to the court's disposition of that action. In Walker v The City of New York, 2000 WL 227437 (Jan 18, 2000), the Unites States Court of Appeals for the Second Circuit affirmed the with-prejudice dismissal of petitioner's constitutional claims. The court found that petitioner's request for an injunction in the state court was based upon both state and constitutional grounds, and that
the state court, in denying injunctive relief, necessarily rejected both grounds. Walker's contention that the state court in fact did not decide the constitutional issues in his prior action challenging the PVB's procedures is contradicted by the state court decisions themselves.
However, the Circuit Court modified the District Court decision to the extent of directing that the judgment be modified to provide for the without-prejudice dismissal of the state-law claims based on the 1997 parking ticket, because of a lack of subject-matter jurisdiction in federal court. impermissibly shift the burden of proof, and deprive vehicle owners of their right to confront and cross-examine witnesses. Both state and federal courts have expressly rejected these contentions.
Petitioner's strongest argument (e.g., Memorandum of 6/15/00, at 33) is that he now has evidence (obtained during disclosure in the federal action) that respondent requires vehicle owner's to prove their innocence by a preponderance — 51% or more — of the credible evidence. A look at the first of many pages of EBT transcripts petitioner cites, page 49 of the deposition of PVB instructor Peter Rabinowitz (GruenAffirmation of 4/6/00, Exhibit I), leads to the following explanation, on the next two pages (coincidentally, 50-51), of what happens if the Administrative Law Judge ("ALJ") finds both sides equally credible:
My personal view is a tie goes to the [vehicle owner]. If it's 50-50 . . . then if it's that close, [the ALJ] obviously pretty much believed the [vehicle ownerl. . . . If the [ALJ] really can't decide between 50-50 . . . that means that in some respects [the ALJ] certainly [is] believing the [vehicle owner], and I wouldn't want somebody to be found guilty on something that the [ALJ] was saying was exactly 50-50. If [the ALJ is] finding somebody guilty, I want them to say, I basically don't believe the vehicle owner.
Thus, the evidence presented is that the burden of proving guilt by a preponderance of the evidence remains with the City, as indicated in the PVB Manual (see infra). In any event, an isolated error here and there in applying a somewhat technical, theoretical burden of persuasion (the City clearly always has the burden of going forward with the evidence, which the ticket itself satisfies), would not prove that the whole system is unconstitutional.
As today's decision is based on collateral estoppel, a delineation of the proper application of the burden of proof in PVB hearings is not, strictly speaking, necessary. However, in this Court's view, the burden of going forward is on the City to make a prima facie case, which the ticket itself, being sworn, "substantial evidence," satisfies. However, if the vehicle owner contests the ticket, with sworn testimony to the contrary, then the burden is on the City to prove its case by a preponderance of the evidence. Petitioner has not demonstrated that this is not, indeed, how the system actually works.
Petitioner also claims that respondent relied on ex-parte evidence, namely a street directory that indicated that 195th Street does not have a building number 122. However, a fact of this nature, the validity of which petitioner does not, in any event, deny is subject to judicial notice.
Petitioner argues that the issues in the instant proceeding are different-from those in the prior state case because the PVB has revised its manual twice. This argument is unavailing. The 1993 PVB Manual in effect when this Court affirmed the constitutionality of PVB's procedures is, in all relevant respects the same as the 1997 Manual in effect when the ticket in the instant proceeding was issued and the hearing held. Both the 1993 and 1997 PVB Manuals provide as follows:
NOTE: THE ESTABLISHMENT OF A PRIMA FACIE CASE DOES NOT ESTABLISH GUILT, NOR DOES IT SHIFT THE BURDEN OF PROOF. THE BURDEN OF PROOF ALWAYS REMAINS UPON THE CITY . . . If the Judge concludes that the credible evidence presented on behalf of the pleading motorist is sufficient to rebut the prima facie case, he/she MUST make a finding of 'NOT GUILTY.'
This Court does not read the word "rebut" to mean that the vehicle owner must meet a "preponderance of the evidence" standard, because the burden of proof "always remains upon the city." See also,Silverstein v Appeals Board of the Parking Violations Bureau, 100 AD2d 778, 779 (1st Dept 1984):
the substantial evidence standard does not improperly shift the burden, since the onus is still on the People to establish a prima facie case. We assume that this requires that the charge be established by a fair preponderance of the credible evidence.
Petitioner also purports to rely on the 1998 version of the PVB Manual. However, the petition makes no mention of this version, and it was not applicable when the hearing was held to adjudicate petitioner's 1997 ticket. Accordingly, the constitutionality of the 1998 Manual is not properly before this court.
Finally, the issue of petitioner's individual conviction on the ticket at issue is rendered moot, inasmuch as the PVB dismissed the 1997 ticket and refunded the fine.
Conclusion
In the instant proceeding petitioner is challenging a ticket and a system of adjudication. The ticket has been refunded; the issues as to it are moot. The system has been upheld by cases stretching back several decades; by this Court's three prior opinions (which relied on controlling precedent); and, most importantly, by the Appellate Division. Petitioner's end run to federal court, challenging the very ticket and conviction and procedures here in issue, was rejected on collateral estoppel grounds. To come back here yet again sorely tests this Court's patience.
However, petitioner has raised a valid question as to the burden of proof. If that always remains with the City and never shifts, as stated in the PVB procedural manual, and as this Court finds is the better practice, then PVB Administrative Law Judges should be taught accordingly.
Thus for the reasons set forth herein, the petition is dismissed on the grounds of mootness, to the extent that it seeks to challenge petitioner's 1997 parking ticket, and on the grounds of collateral estoppel, to the extent that it seeks to challenge the constitutionality of PVB's adjudicatory practices, and the request for sanctions is denied. The clerk is hereby directed to enter judgment dismissing the petition.
This opinion constitutes the decision and order of the Court.