Opinion
3795-04.
Decided November 30, 2004.
Gleason, Dunn, Walsh O Shea, Esqs. (Mark T. Walsh, Esq., of Counsel) Albany, New York, Attorneys for Plaintiffs.
Hon. Eliot Spitzer, Attorney General of the State of New York, (Nelson R. Sheingold, Esq., of Counsel), The Capitol Albany, New York, Attorney for Defendants.
The complaint is dismissed upon the ground that the plaintiffs lack standing. The plaintiffs are three individual New York State Troopers and the union that represents them. This litigation is brought in the form of a declaratory judgment action seeking both an injunction and a declaration that a written policy issued by Troop A, Zone One Headquarters, effective January 1, 2003, is illegal because it potentially requires New York State Troopers to violate subpoenas and court notices issued by local courts requiring the presence of troopers in court. The memorandum, in pertinent part, is as follows:
"To: All Members — Niagara County
From: Captain Ralph E. Pratt
Subject: COURT PROCEDURES
Effective January 1, 2003, Members will no longer be required to appear in criminal courts in Niagara County that have a town prosecutor for VT offenses (violations only) until all plea bargaining has been exhausted and the case is scheduled for an actual trial in which testimony of a trooper is necessary. This does not include misdemeanor or felony offenses of the VT law. In towns that do not have a town prosecutor, a sergeant will be assigned as a court liaison officer to assist with the disposition of traffic infractions."
The policy is purportedly designed to reduce overtime pay to troopers for appearances in local courts. The complaint alleges that the individual troopers named as plaintiffs are involved in the enforcement of vehicle and traffic laws and that in the course of performing those duties the troopers regularly issue traffic tickets. If the accused motorist pleads not guilty, he or she is given notice by the local court in which the ticket is returnable of the time and date of a "conference/trial." It is also alleged in the complaint that the local courts issue either a subpoena or a court notice to the trooper who issued the traffic ticket to attend court and that both a subpoena and a court notice are mandates of the court within the meaning of General Construction Law section 28-a, which the troopers are legally required to obey.
As to plaintiff Fish, it is alleged that he received a subpoena from the Pendleton Town Court on January 8, 2003 to be in attendance at 6:00 p.m. that evening and was directed by his sergeant not to appear in response to the subpoena. On March 17, 2004, Trooper Fish received another subpoena to appear in the Town of Pendleton Town Court for a vehicle and traffic trial and was told by his zone sergeant not to attend. Trooper Fish obeyed the order and the Town Justice did not hold him in contempt.
On April 6, 2004, plaintiff Rudnick was directed by his superiors not to attend a town court proceeding in the Town Court of Royalton after he had been issued a subpoena to appear. Trooper Rudnick obeyed the superiors order. Troopers Scirri and Campbell have had similar experiences. The complaint alleges that the policy of not permitting troopers to comply with court issued subpoenas places them in an untenable position legally. First of all, if a trooper follows a direction by a superior not to obey a subpoena he or she faces the possibility of a contempt charge and possible incarceration. If a trooper disobeys his or her superior and honors the subpoena he or she faces disciplinary charges and the risk of discharge from employment. The plaintiffs seek a declaration that any order directing a trooper not to obey a court issued subpoena or court notice requiring the troopers attendance in court is an illegal order therefore which need not be obeyed.
Prior to serving an answer, the defendants have made this motion to dismiss the action as barred by the four-month Statute of Limitations set forth in CPLR 217, which is applicable to article 78 proceedings. The defendants contend that the form of litigation chosen by a plaintiff or petitioner is not controlling as to what Statute of Limitations applies because a court must look to the substance of the litigation rather than its title. The defendants argue that an attack upon a quasi-judicial determination of an administrative agency, such as the one under review here, must be brought in the form of an article 78 proceeding rather than a declaratory judgment. The defendants further argue that the four-month Statute of Limitations applicable to a challenge against a new rule or regulation accrues and commences to run on the date that the new rule or regulation takes effect. The defendants contend that this litigation commenced on July 1, 2004 is barred by the four-month Statute of Limitations that accrued on January 1, 2003.
In their memorandum of law in opposition to the dismissal motion the plaintiffs argue that they are not challenging the memorandum itself, but rather the orders of their superiors not to obey the lawful mandate of a court to appear and, if that order not to appear is obeyed, risking being found in contempt of court. The plaintiffs further argue that they could not challenge the new policy by bringing an article 78 proceeding since such a proceeding cannot be commenced until there is a final administrative determination and the petitioner is aggrieved by that determination. These plaintiffs assert that they have not yet been aggrieved by the new policy and the orders issued by their superiors pursuant to that policy. The plaintiffs contend that a declaratory action is available in circumstances such as are set forth in this record to permit a party to adjudicate rights before a wrong actually occurs.
Appellate decisions do not, in this Courts opinion, provide clear guidance to lower courts with respect to the issues raised by this dismissal motion. For instance, in the case of Boreali v. Axelrod, ___ Misc 2d ___, 1987 WL 14126, affd 130 AD2d 107, rev 71 NY2d 1, the New York State Department of Health promulgated rules regulating smoking in public places. The new regulations were challenged by a restaurant operator, trade associations, a New York State Senator and a New York State Assemblyman. They brought their litigation in the form of an article 78 proceeding prior to the time that any person had actually been found in violation of the regulations and fined or imprisoned thereunder. Recognizing that an article 78 proceeding was not the proper procedural vehicle, as none of the petitioners had yet been aggrieved so as to attain standing, Mr. Justice Harold J. Hughes converted the article 78 proceeding to a declaratory judgment action and proceeded to and ruled on the merits. Although the Court of Appeals eventually reversed the lower court and the Appellate Division on the merits, the Court of Appeals did not criticize the conversion of the article 78 proceeding to a declaratory judgment action, perhaps in recognition of the legislative policy set forth in CPLR section 103 (c), as follows:
"If the court finds it appropriate in the interest of justice, it may convert a motion into a special proceeding, or vice-versa, upon such terms as may be just, including the payment of fees and costs."
In Boreali, it was determined that a declaratory judgment action was an available remedy even though the complaining parties had not yet been aggrieved because "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 NY2d 525, 538)
In the case of New York City Health and Hospitals Corp. v. McBarnett, 84 NY2d 194, the plaintiffs brought a declaratory judgment action challenging medicaid reimbursement rates set by the Commissioner of Health. The Court of Appeals held that the quasijudicial action of an administrative agency in enacting a generally applicable regulation can be challenged in an article 78 proceeding and that the four-month Statute of Limitations is applicable. In the case of Matter of Federation of Mental Health Centers, Inc. v. DeBuono, 275 AD2d 557, the petitioners commenced an article 78 proceeding in 1998 challenging regulations that became effective in 1991. The Third Department held that regardless of whether the four-month Statute of Limitations applicable to an article 78 proceeding or the six-year Statute of Limitations applicable to a declaratory judgment action was applied to the litigation it was still not timely. It appears from the decision of the Appellate Division that it determined that a cause of action challenging a regulation commences to run upon the date that the regulation becomes effective.
Had this motion come before this Court prior to the Court of Appeals decision in the case of New York State Association of Nurse Anesthetists v. Novello, 2 NY3d 207, this Court would have made the following determinations under the above discussed case law: the plaintiffs were not yet aggrieved and an article 78 proceeding was not available as they lacked standing; a declaratory judgment action was an appropriate procedural vehicle for relief even though the plaintiffs had not yet been harmed because such an action would likely settle the rights of the parties and avoid future litigation; and the applicable Statute of Limitations was six years and commenced to run upon the date that the new written policy was effective.
The Court would have disregarded the plaintiffs contentions that they were only attacking the individual determinations of their superiors made under the new policy as that approach would give rise to an endless stream of litigation by each individual trooper subject to a specific direction from a superior to disobey a subpoena. Employing that approach would result in the court looking only at whether the decision by the superior was arbitrary and capricious and not examining the legality of the written policy giving rise to those individual determinations. If the underlying written policy was never judicially examined and overturned the litigation by individual troopers could be endless. Rather, this Court would have determined that an important public policy question was presented by the written policy, namely, whether an administrative agency has the authority to direct its employees to disobey court mandates, and proceeded to a determination on the merits. However, in this Courts opinion, the Nurse Anesthetists case has changed the rules applicable to litigation of this nature. In that case, the Department of Health sought to enact rules governing doctors office based surgeries. It was advised by its own General Counsel that such rules would be illegal because the Legislature had specifically prohibited the Department from regulating the practices of private physicians in their own offices. Nonetheless, the General Counsel advised that such standards could be enacted because "guidelines" which would attain the force of law as the guidelines could be used to govern the standards of care applicable to physicians in disciplinary proceedings and medical malpractice actions ( New York State Association of Nurse Anesthetists v. Novello, 189 Misc 2d 564, affd, 301 AD2d 895, rev 2NY3207). Although they had not yet been aggrieved by losing income or their jobs, nurse anesthetists and their association commenced a declaratory judgment action to declare the guidelines null and void as having been enacted ultra vires in direct opposition to the public policy as found by the Legislature.
The defendants sought summary judgment dismissing the action upon the ground that the plaintiffs lacked standing. This Justice realized that the plaintiffs had not yet been aggrieved and that article 78 relief was not available. There were two legal choices available to allow the litigation to proceed to a determination upon the merits. The Court could have followed the example of Mr. Justice Hughes in the Boreali case and allow the declaratory judgment action to go forward even though there was not yet injury in fact, or it could have followed the example of the Court of Appeals in the case of Matter of Roman Catholic Diocese of Albany v. New York State Department of Health, 66 NY2d 948. In the Roman Catholic Diocese case, the petitioner sought to annul the determination of the Department of Health permitting health clinics to add non-hospital abortion services. In the lower court, the respondents argued that the petitioner lacked standing. Mr. Justice Harold J. Hughes grappled with the standing issue, finally deciding that the petitioner had standing. The Third Department likewise expended considerable judicial time in addressing the standing issue and also found standing. The Court of Appeals, at page 951, addressed the standing issue as follows, "we assume, without deciding, that petitioners had standing to bring this proceeding" and the Court of Appeals proceeded to a determination upon the merits. In Nurse Anesthetists, this Court opted to follow the Roman Catholic Diocese approach to standing and simply assumed standing and proceeded to the merits.
After the Appellate Division affirmed, the Nurse Anesthetists case reached the Court of Appeals. The Court of Appeals reversed the lower courts and dismissed the complaint, finding that the plaintiffs lacked standing. The Court of Appeals stated, at page 213, as follows:
"Plaintiffs argument that CRNAs will likely be injured is founded on two layers of speculation — that the Guidelines will be rigorously enforced as regulations and that, as such, they will effectively harm CENA5. At this juncture, it is not at all 'obvious that, even if enforced as regulations, the Guidelines would in fact injure any of plaintiffs members as claimed."
The majority of the Court of Appeals judges reasoned that there was no evidence in the record that the guidelines would be rigorously enforced as regulations or that nurse anesthetists would lose their employment. The guidelines require that the administration of anesthesia by a nurse anesthetist in a private practitioners office has to be supervised by a physician who is qualified by law to perform, supervise and administer anesthesia. The plaintiffs presented factual evidence that most physicians do not feel competent to administer anesthesia. Nonetheless, the Court of Appeals concluded that a physician performing surgery in his or her office could legally supervise a nurse anesthetist and the allegation of a loss of jobs by nurse anesthetists was speculative.
The decision in the Nurse Anesthetists case appears to be a departure from prior holdings that in a declaratory judgment action challenging new regulations the plaintiffs do not have to have been subject to actual harm in order to have the availability of declaratory judgment relief. It appears that the standing requirement for an article 78 proceeding is now identical with that required for a declaratory judgment action. Consequently, since these plaintiffs concede that they have not yet been actually "harmed" and lack the ability to bring an article 78 proceeding, this declaratory judgment action must be dismissed as premature.
All papers, including this decision and order, are being returned to the Attorney General. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that section relating to filing, entry and notice of entry.
This memorandum shall constitute both the decision and the order of the Court.
IT IS SO ORDERED.