Pell v. Board of Ed. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County

Decision Date15 May 1974
Citation356 N.Y.S.2d 833,34 N.Y.2d 222,313 N.E.2d 321
Parties, 313 N.E.2d 321 In the Matter of Edwin A. PELL, Jr., Respondent-Appellant, v. BOARD OF EDUCATION OF UNION FREE SCHOOL DISTRICT NO. 1 OF the TOWNS OF SCARSDALE AND MAMARONECK, WESTCHESTER COUNTY, Appellant-Respondent. In the Matter of Thomas MULDOON, a Policeman of the Syracuse Police Department, Respondent, v. MAYOR OF SYRACUSE et al., Appellants. In the Matter of Irwin CHILSON, Appellant, v. BOARD OF EDUCATION OF the CITY OF NEW YORK et al., Respondents. In the Matter of Hugh BEST, Respondent, v. William J. RONAN, as Chairman of The New York City Transit Authority, Appellant. In the Matter of Kenneth ABBOTT, Respondent, v. Arthur PHILLIPS et al., Constituting the Board of Trustees of the Village of Mamaroneck, Appellants.
CourtNew York Court of Appeals Court of Appeals

Benjamin Burstein and Harold M. Miller, White Plains, for appellant-respondent in the first above-entitled proceeding.

Jeremiah S. Gutman and Eugene N. Harley, New York City, for respondent-appellant in the first above-entitled proceeding.

Edward P. Kearse, Corp. Counsel, Syracuse (Carl W. Dengel, Syracuse, of counsel) for appellants in the second above-entitled proceeding.

George T. Dunn, Syracuse, for respondent in the second above-entitled proceeding.

Samuel Resnicoff and Benjamin Heller, New York City, for appellant in the third above-entitled proceeding.

Norman Redlich, Corp. Counsel, New York City (Bernard Burstein, New York City, of counsel), for respondents in the third above-entitled proceeding.

John A. Murray, John G. de Roos and Helen R. Cassidy, Brooklyn, for appellant in the fourth above-entitled proceeding.

George C. Stewart and Jacques F. Rose, New York City, for respondent in the fourth above-entitled proceeding.

Michael J. Trainor, New Hyde Park, and Maurice F. Curran, for appellants in the Fifth above-entitled proceeding.

John J. Martirano and Barry D. Marcus, New Rochelle, for respondent in the fifth above-entitled proceeding.

STEVENS, Judge.

In separate article 78, Consol.Laws, c. 8 proceedings each of the appellants seeks review of actions taken by the respective Appellate Divisions in matters affecting the discipline of public employees. In recent years there has been inadequate understanding and undoubtedly some inconsistency in judicial review of administrative disciplinary determinations. For that reason it may be useful to restate some applicable principles.

The source of the jurisdiction of the Court of Appeals is the Constitution of the State of New York (N.Y.Const., art. VI, § 3), which with certain exceptions limits the court's power to the review of questions of law. For the purposes of any judicial review of administrative action, the statutes also limit the scope of review in the Supreme Court or in this court to questions of law and the extent of the sanction imposed (CPLR 7803).

In article 78 proceedings, 'the doctrine is well settled, that neither the Appellate Division nor the Court of Appeals has power to upset the determination of an administrative tribunal on a question of fact; * * * 'the courts have no right to review the facts generally as to weight of evidence, beyond seeing to it that there is 'substantial evidence. "' (Cohen and Karger, Powers of the New York Court of Appeals, § 108, p. 460; 1 N.Y.Jur., Administrative Law, §§ 177, 185; see Matter of Halloran v. Kirwan, 28 N.Y.2d 689, 690, 320 N.Y.S.2d 742, 743, 269 N.E.2d 403 (dissenting opn. of Breitel, J.)). 'The approach is the same when the issue concerns the exercise of discretion by the administrative tribunals The courts cannot interfere unless there is no rational basis for the exercise of discretion or the action complained of is 'arbitrary and capricious." (Cohen and Karger, Powers of the New York Court of Appeals, pp. 460--461; see, also, 8 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 7803.04 Et seq.; 1 N.Y.Jur., Administrative Law, §§ 177, 184; Matter of Colton v. Berman, 21 N.Y.2d 322, 329, 287 N.Y.S.2d 647, 650--651, 234 N.E.2d 679, 681--682).

The arbitrary or capricious test chiefly 'relates to whether a particular action should have been taken or is justified * * * and whether the administrative action is without foundation in fact.' (1 N.Y.Jur., Administrative Law, § 184, p. 609). Arbitrary action is without sound basis in reason and is generally taken without regard to the facts. In Matter of Colton v. Berman (Supra, p. 329, 287 N.Y.S.2d p. 651, 234 N.E.2d p. 681) this court (per Breitel, J.) said 'the proper test is whether there is a rational basis for the administrative orders, The review not being of determinations made after quasi-judicial hearings required by statute or law.' (Emphasis supplied.) Where, however, a hearing is held, the determination must be supported by substantial evidence (CPLR 7803, subd. 4); and where a determination is made and the person acting has not acted in excess of his jurisdiction, in violation of lawful procedure, arbitrarily, or in abuse of his discretionary power, including discretion as to the penalty imposed, the courts have no alternative but to confirm his determination (CPLR 7803, subd. 3; Matter of Procaccino v. Stewart, 25 N.Y.2d 301, 304 N.Y.S.2d 433, 251 N.E.2d 802; but see Matter of Picconi v. Lowery, 35 A.D.2d 693, 314 N.Y.S.2d 606, affd. 28 N.Y.2d 962, 323 N.Y.S.2d 703, 272 N.E.2d 77). Rationality is what is reviewed under both the substantial evidence rule and the arbitrary and capricious standard. (Matter of 125 Bar Corp. v. State Liq. Auth., 24 N.Y.2d 174, 178, 299 N.Y.S.2d 194, 197--198, 247 N.E.2d 157, 158--159; 1 N.Y.Jur., Administrative Law, § 184.)

In Matter of Weber v. Town of Cheektowaga, 284 N.Y. 377, 380, 31 N.E.2d 495, 496, this court, in reversing the order of the Appellate Division and reinstating the determination of the Town Board, dismissing petitioner for intoxication after an administrative disciplinary proceeding, said that 'the determination upon the facts is for the Town Board, and such determination will not be set aside by the courts unless it is unsupported by proof sufficient to satisfy a reasonable man, of all the facts necessary to be proved in order to authorize the determination'. (See, also, Matter of Barsky v. Board of Regents, 305 N.Y. 89, 111 N.E.2d 222, affd. 347 U.S. 442, 74 S.Ct. 650, 98 L.Ed. 829; CPLR 7803, subd. 4.) 'It is well settled that a court may not substitute its judgment for that of the board or body it reviews Unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion (citations omitted).' (Matter of Diocese of Rochester v. Planning Bd. of Town of Brighton, 1 N.Y.2d 508, 520, 154 N.Y.S.2d 849, 857, 136 N.E.2d 827, 833.)

The scope of CPLR 7803 in providing for judicial review of administrative sanctions was unclear initially. The question arose as to whether it called for a review as broad as that which the Appellate Division would have conducted of a determination at Special Term, or limited review to such abuses of discretion as were tantamount to a true question of law. The courts, however, laid the doubts to rest and interpreted the statute so as to limit judicial review to such abuses of discretion (Matter of Stolz v. Board of Regents, 4 A.D.2d 361, 165 N.Y.S.2d 179; Matter of Russell v. Stewart, 30 A.D.2d 749, 750, 291 N.Y.S.2d 480, 481--482).

The statutes could have granted a broader or narrower power of review to the Supreme Court, including the Appellate Division. With respect to this court, however, the limitation is constitutional and the power of review limited to questions of law. As the statutes have been construed, however, the scope of review in this court and the Appellate Division would seem to be the same (Matter of Bovino v. Scott, 22 N.Y.2d 214, 216, 292 N.Y.S.2d 408, 409, 239 N.E.2d 345, 346).

Generally speaking, discretionary issues are not issues of law, but even in such cases it may be urged that the bounds of discretion were exceeded. '(T)he inquiry is always pertinent whether in any particular case, discretion was abused, just as inquiry is always pertinent whether there is any evidence to sustain a finding of fact.' (Cohen and Karger, Powers of the New York Court of Appeals, § 159, p. 619).

'Prior to the adoption of subdivision 5--a of section 1296 of the Civil Practice Act (Ch. 661, L.1955), the courts had no power to review the penalty, punishment or measure of discipline imposed by an administrative agency (Matter of Barsky v. Board of Regents, 305 N.Y. 89, 111 N.E.2d 222, affd. 374 U.S. 442, 74 S.Ct. 650, 98 L.Ed. 829).' (Matter of Stolz v. Board of Regents, 4 A.D.2d 361, 363, 165 N.Y.S.2d 179, 182, Supra.) Section 5--a permits the courts to review the measure of discipline imposed by administrative agencies, but, as noted by Mr. Justice Halpern, 'this grant of power must be reasonably construed in the light of the settled principles governing the relationship between the courts and administrative agencies. * * * We believe that, reasonably construed, the statute authorizes us to set aside a determination by an administrative agency, only if the measure of punishment or discipline imposed is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness.' (Matter of Stolz v. Board of Regents, Supra, p. 364, 165 N.Y.S.2d p. 182; see, also, Public Papers of Governor Harriman, Memorandum dated April 25, 1955, filed with Assembly Bill, Introductory No. 2834; N.Y. State Bar Assn. Memorandum No. 2834 in support of Bill 2834, N.Y. State Legis. Annual (1955), p. 32; Matter of Mitthauer v. Patterson, 8 N.Y.2d 37, 201 N.Y.S.2d 321, 167 N.E.2d 731.) The view expressed above still controls. (Matter of Tannenholz v. Waterfront Comm. of N.Y. Harbor, 36 A.D.2d 930, 322 N.Y.S.2d 973, affd. 30 N.Y.2d 668, 332 N.Y.S.2d 103, 282 N.E.2d 888 (Jasen and Breitel, JJ., dissenting in opn. by Jasen, J.).) In Matter of Donohue v. New York State Police, 19...

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