Levine v. McCabe

• Decision Date: 23 February 2005
• Docket Number: No. 03-CV-6420 (DRH)(ETB).,03-CV-6420 (DRH)(ETB).
• Parties: Samuel M. LEVINE, Plaintiff, v. Edward F. McCABE, and Jonathan Lippman, Defendants.
• Court: U.S. District Court — Eastern District of New York

357 F.Supp.2d 608

Samuel M. LEVINE, Plaintiff, v. Edward F. McCABE, and Jonathan Lippman, Defendants.

No. 03-CV-6420 (DRH)(ETB).

United States District Court, E.D. New York.

February 23, 2005.

COPYRIGHT MATERIAL OMITTED

Samuel Levine, Long Beach, NY, Plaintiff Pro Se.

Office of the Attorney General of New York, by Susan M. Connolly, Esq., Hauppauge, NY, for Defendants.

MEMORANDUM & ORDER

HURLEY, District Judge.

I. Introduction:

Plaintiff Samuel Levine, a retired Nassau County district judge, has brought the present Section 1983 suit against Defendants Jonathan Lippman, Chief Administrative Judge for the New York State Unified Court System, and Edward G. McCabe, the Administrative Judge of the courts of Nassau County. Levine alleges that the Defendants unfairly refused to appoint him to a position as a "judicial hearing officer," and that in doing so, they violated his constitutional rights. Levine seeks monetary damages, as well as a declaratory judgment that New York's entire statutory scheme governing the appointment of judicial hearing officers is unconstitutional. The Defendants have moved to dismiss Levine's claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the Defendants' motion is GRANTED, but Levine may move to amend his complaint.

II. Background:

According to Levine's complaint and the documents attached thereto, Levine has been a practicing attorney in New York since 1950. He has been described as a "gadfly" and a champion of "seemingly hopeless causes." In 1996 he was elected to a term as a Nassau County district court judge for the county's "First District," and as such, apparently automatically became the "President of the Board of Judges" or the "presiding judge" of the Nassau County district courts. The New York Times described Levine as "a perennial Democratic also-ran in predominantly Republican Nassau county," and his election was apparently something of an upset. Levine states that as presiding judge of the Nassau County district courts, he was supposed to be "in charge of the daily operation and administration of the District Court subject to the control and reporting to Defendant McCabe." But according to Levine, McCabe, as a Republican, maneuvered to keep all power and authority in his own hands. Levine also insists that McCabe "ignored and failed to act on many serious problems in the District Court set forth [in] Levine['s] reports and recommendations," and made efforts to prevent Levine from presiding over a politically-charged case. McCabe's motives, insists Levine, were "political retaliation and prejudice" against him.

On December 31, 1999, having apparently reached the age of 70, Levine retired pursuant to the New York Constitution's mandatory judicial retirement provision.¹ Shortly prior to his retirement, Levine applied to be designated as a judicial hearing officer, pursuant to the provisions of the New York Judiciary Law. Section 850 of that law states in relevant part:

1. Subject to the ... rules of the chief administrator of the courts, any person who has served as a judge or justice of a court of record of the unified court system ... but who no longer holds judicial office, may, upon his application, be designated by the chief administrator as a judicial hearing officer upon a determination by the chief administrator (a) that the former judge has the mental and physical capacity to perform the duties of such office and (b) that the services of that former judge are necessary to expedite the business of the courts.

Pursuant to this law, the Chief Administrator of New York's Unified Court System has promulgated regulations governing the process of application for judicial hearing officer positions. Title 22 of the New York Compilation of Codes, Rules, and Regulations, Section 122.1 states in relevant part:

Application. (a) Any person who has served for at least one year as a judge or justice of a court of the Unified Court System ... and who no longer is serving in such capacity,... may make application to the Chief Administrator of the Courts to be designated as a judicial hearing officer pursuant to article 22 of the Judiciary Law.... The application shall be in such form as may be provided by the Chief Administrator, which shall contain items requesting prior judicial experience, the nature of judicial service sought, and whether any actions against the judge have been taken by, or any claims are pending before, any professional disciplinary body.

Section 122.2 of the regulations states in relevant part:

Initial designation. (a) The Chief Administrator of the Courts, in his or her discretion, may designate as a judicial hearing officer an eligible person who files an application pursuant to section 122.1 of this Part upon determination that the applicant has the physical and mental capacity, competence, work ethic, experience and judicial temperament necessary to perform the duties of a judicial hearing officer, and is well qualified to serve on the panels in the courts to which he or she will be designated.

(b) The applicant shall undergo a comprehensive physical examination by a physician designated by the Chief Administrator, who shall issue a report to the Chief Administrator that the applicant has or has not the physical and mental capacity to perform competently the duties of a judicial hearing officer.

(c) In determining whether to designate an applicant as a judicial hearing officer, the Chief Administrator shall consult with (1) the Presiding Justice of the appropriate Appellate Division, (2) the appropriate Deputy Chief Administrator for the Courts, within or outside the City of New York, (3) the appropriate administrative judge who shall submit a written evaluation of the applicant, and (4) the appropriate judicial hearing officer selection advisory committee established pursuant to subdivision (e) of this section.

(d) The Chief Administrator also may consult with other appropriate persons and bar associations and conduct whatever investigation the Chief Administrator deems necessary to determine the qualifications of an applicant, including requiring additional medical examinations.

(e) (1) The Chief Administrator, after consultation with the Presiding Justice of the appropriate Appellate Division, shall establish judicial hearing officer selection advisory committees for [each] Judicial Department ...

(2) Every applicant for designation to the office of judicial hearing officer shall be evaluated prior to designation by the committee established for the principal jurisdiction in which the applicant applies to serve, which shall interview the applicant and may require the applicant to submit any appropriate materials.... The committee shall set forth whether each applicant is qualified to serve as a judicial hearing officer based upon competence, work ethic, experience and judicial temperament necessary to perform duties of a judicial hearing officer....

And Section 122.7 of the regulations states in full: "No vesting of rights. Nothing herein shall vest any person with any right to be designated as a judicial hearing officer, or to be designated to a panel, or to serve in any particular court or to be assigned to any particular proceeding or type of proceeding."

According to Levine, he satisfied the statutory and regulatory requirements, in that he was "well qualified" to be a judicial hearing officer, and his application included an "extraordinary array of supporting documentation" to prove it. On January 26, 2000, Levine was interviewed by the judicial hearing officer selection advisory committee appointed by Lippman for Nassau County. Levine believes that the committee received and reviewed a report from McCabe recommending that his application be denied, and that the committee recommended the same. In a letter dated March 9, 2000, Lippman informed Levine that his application had been denied. Levine's immediate request for reconsideration of that decision was denied in a subsequent letter from Lippman, dated March 30, 2000. Levine asserts that he was "denied the right and opportunity to receive a copy of [McCabe's] negative report and recommendations," that the Defendants "failed to submit or serve [him with] any written charges or complaints concerning his conduct or services or other facts impacting on the questions of competence, work ethic, experience or judicial temperament," and that he was "denied notice of any such charges or complaints." On June 30, 2001, Levine submitted a new application to be a judicial hearing officer, this time in Queens County. This application was denied as well, but without any further interview or hearing.

On December 23, 2003, Levine filed the present suit pursuant to 42 U.S.C. § 1983. He seeks a declaratory judgment that New York's statutory scheme for appointment of judicial hearing officers is unconstitutional, a declaratory judgment that the Defendants violated various types of his civil rights, as well as $1,200,000 in money damages and $300,000 in costs and fees from the Defendants. The Defendants have moved to dismiss the complaint for failure to state a claim upon which relief can be based.

III. Dismissal: Legal Standards

In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court must limit itself to the facts stated in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint. Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir.1999). The court must accept the factual allegations contained in the complaint as true, and view the pleadings in the light most favorable to the non-moving party, drawing all reasonable inferences in his favor. Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.1994), cert. denied, 513 U.S. 816, 115 S.Ct. 73, 130 L.Ed.2d 28 (1994). Dismissal under Rule 12(b)(6) is appropriate only if it appears beyond doubt that ...