Briggins v. McGuire
| Decision Date | 13 April 1983 |
| Citation | 118 Misc.2d 964,462 N.Y.S.2d 357 |
| Parties | In the Matter of the Application of Charles BRIGGINS, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. Robert J. McGUIRE, as Police Commissioner of the Police Department of the City of New York, New York City Police Department and the City of New York, Respondents. |
| Court | New York Supreme Court |
Law Offices of Richard Hartman by Jeffrey Wasserman, Little Neck, for petitioner.
Frederick A.O. Schwartz, Jr., Corp. Counsel by Susan D. Wagner, New York City, for respondents.
This is a motion to re-argue an earlier motion brought by the present movant, the Respondent, to dismiss the petition. By a decision dated May 20, 1982, this court, 114 Misc.2d 697, 452 N.Y.S.2d 273, denied that motion and instructed the Respondent to answer the petition. Respondent has chosen instead to bring this motion to re-argue.
In my decision of May 20, 1982, I declined to grant Respondent's motion to dismiss, in large part because of a decision by the Southern District, Greene v. McGuire, 517 F.Supp. 1330 (S.D.N.Y.1981), which provided a basis for me to find that the Petitioner here possessed a cause of action and therefore precluded dismissal. Since the date of that decision, the Second Circuit Court of Appeals reversed the Southern District (Greene v. McGuire, 683 F.2d 32 (2 Cir., 1982)). Respondent now moves for reargument on that basis.
Respondent's appreciable position is that the reversal of Greene mandates the rescission of this court's prior order. Petitioner's equally natural position is that this case is distinguishable both from the Second Circuit's decision in Greene and its underlying state case Toro v. Malcolm, 44 N.Y.2d 146 404 N.Y.S.2d 558, 375 N.E.2d 739 (1980), and the prior order of this court should stand.
I believe the Second Circuit impermissibly extended the law of Toro v. Malcolm, supra, and am convinced that it failed to consider the entirety of New York law in reaching its decision. I therefore hold that this state court will not follow what I believe to be an incorrect interpretation by a federal court of state law. I grant reargument, but upon reargument, I adhere to my original decision, with one exception.
The petitioners (actually "plaintiffs") in Greene were former New York City Police Police Officers who were convicted of bribery. Upon their conviction, their "offices were vacated" in accordance with subsection 30(1)(e) of New York Public Officers Law. Thereafter, petitioners' convictions were reversed on the law and the indictments against them were dismissed.
As a result of the reversal, the officers sought reinstatement and back pay. Both were denied without a hearing. Petitioners subsequently brought suit in the Southern District pursuant to 42 U.S.C. Sec. 1983, alleging that Public Officers Law Sec. 30(1)(e) violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
The Southern District held that while the section does not violate the Equal Protection Clause [in that subsection 30(1)(e) appears to be rationally related to the service of a legitimate state purpose] it does violate the Due Process Clause.
In so holding, the court first found the existence of a "property interest." This it did by reference to New York law, which clearly establishes that, vacatur notwithstandin permanent civil service employees are vested with a property interest in their positions. 517 F.Supp. at 1332.
The court also noted provisions of a competing New York statute that establishes due process procedures that must be employed before a permanent civil service employee may be disciplined or dismissed. 517 F.Supp. at 1332, citing Civil Service Law § 75.
The court acknowledged that upon their convictions, petitioners Wilma Greene and Clarence Callis lost whatever property interest they possessed by operation of Public Officers Law Sec. 30(1)(e). But upon reversal of those convictions, because of "insufficient evidence due to lack of sufficient, independent (non-accomplice) corroboration," the court held that "the circumstances that led to the operation of subsection 30(1)(e) no longer exist." 517 F.Supp. at 1333. The court held that upon reversal the requirements of due process "entitled [petitioners] to have their situation reconsidered under the same procedures that are used for removing civil servants not convicted of felonies." 517 F.Supp. at 1333.
In addition to the above primary holding, the district court reached other, also significant conclusions:
(1) Petitioners were not entitled to a pre-termination hearing upon their conviction;
(2) Petitioners were not entitled to automatic reinstatement upon reversal of their convictions;
(3) Operation of subsection 30(1)(e) will not be stayed pending appeal of the conviction;
(4) No prior New York decision has reached this precise issue;
(5) Toro v. Malcolm, supra, should be confined to its particular fact pattern and limited holding, namely: a discharged civil employee whose conviction is reversed is not entitled to back pay for the period prior to the reversal of a conviction upon voluntary reinstatement;
(6) Greene is distinguishable from Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1974), in that the discharged civil employee in Bishop was found to have possessed no property interest in his former position prior to discharge.
The court also noted that the petitioners' liberty interests were also affected, in that they might have difficulty "obtaining further employment even though their convictions have been reversed." 517 F.Supp. at 1333. In conclusion, the district court noted that there is a difference between police officers and "other elected or appointed public officers", in that while many public offices may be "unique", a police officer is a member of a force. The court noted that it is the nature of a large force that many members are routinely added or expelled without great expense or difficulty. 517 F.Supp.at 1334.
In reversing the Southern District, the Second Circuit noted with extreme significance that while the accomplice testimony was insufficient to convict the petitioners under New York Law, it would have been sufficient to discharge them or to deny them their jobs upon hearing for reinstatement. 683 F.2d at 34.
So stating, the court held that under New York law petitioners lost whatever property interest they had in their jobs upon their conviction of a felony. The court looked upon Pub.Off.Law Sec. 30(1)(e) as a condition of petitioners' employment that had been violated, and once violated, all rights were permanently extinguished.
In reaching this decision the court placed particular emphasis on "the right of the public to depend upon the morality of police officers." 683 F.2d at 34, citing Toro, supra. A felony conviction, notwithstanding reversal, shatters the ideal.
The court based its decision upon Toro v. Malcolm, supra, which it found to preclude a court's exercise of its power to order reinstatement or an award of back pay, or to order a hearing on the matter. The court found no due process violation under Bishop v. Wood, supra, because under state law (Toro ), at the present time, petitioners possess no property interest in their former positions.
In a lengthy concurrence, Judge Oakes reluctantly agreed with the majority, noting that he felt bound by the "questionable" rule of Bishop v. Wood, supra, and the "unnecessary" Toro v. Malcolm, supra. Judge Oakes felt the holding in Toro was unnecessary under New York law because of the well-established law in New York that permanent civil service employees have a property and liberty interest in their employment, and the statutory procedures that provide for protection of those interests. Judge Oakes also noted that New York law has provided for "post-termination" hearings in other contexts. 683 F.2d at 37.
and Toro v. Malcolm
A brief analysis of Bishop v. Wood, supra, is necessary to understand the Second Circuit's decision in Greene and to effectively repudiate it.
Briefly stated, Bishop v. Wood, supra, involved a police officer who was fired for "poor performance" without a pre-termination hearing, and was found by the majority of the Supreme Court not to possess a right to a post-termination hearing. The majority reached this decision by reference to state law (North Carolina) which, at best, provided an ambiguous basis for the majority's opinion.
In Bishop the police officer was subject to the regulations of a city ordinance under which he could be discharged for failing to satisfactorily perform his duties, and was entitled to notice and, if requested, reasons for the discharge. Petitioner contended that as a permanent civil service employee he could be discharged only for cause, giving rise to a property interest in his continued employment.
The majority, while agreeing that the ordinance on its face appeared to offer such a guarantee, nevertheless found that under North Carolina law petitioner held his position "at will." The majority reached this decision by reference to the lower (district) court's construction of the ordinance in the case before it, for no state case law existed. That lower court had held that while the ordinance provided procedur to be followed before dismissal, namely notice and provision of reasons for dismissal upon request, once those minimal requirements were fulfilled, the petitioner possessed no further rights. In short, state law may create a right and may also prescribe the procedures (however minimal) that must be employed before taking that right. The majority also denied petitioner the right to a name-clearing hearing.
The dissenters in Bishop v. Wood, supra, were many and vociferous in...
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