CPLR Article 78—Central to the Rule of Law

[caption id="attachment_17574" align="aligncenter" width="620"]

Alan Scheinkman, Presiding Justice, Appellate Division, Second Department[/caption] Aristotle is said to have observed: “It is more proper that law should govern than any one of the citizens.” Aristotle’s pronouncement may well have been the genesis of the Rule of Law, which may be distilled to the proposition that we are all governed by law, including the individuals who hold governmental positions. It is recognized in our current system of separation of powers by which our federal and state constitutions distribute power among three branches of government and provide mechanisms for each branch to check and balance exercises of power by the other branches. The judiciary is a check on both the executive and legislative branches but equally so those branches have their own check on the judiciary. Among the means available to the judicial branch to curb excesses by the other branches of government, the one that comes most readily to mind is the power of the courts to authoritatively pronounce that a particular legislative enactment or executive action runs afoul of the Constitution or laws of New York. It is equally well known that the legislative and executive branches have the authority to overrule judicial constructions of legislation and to determine the budget of the judiciary and set the compensation of the judges. These are weighty and important issues that often garner media headlines and galvanize public attention. But in other ways, day in and day out, our courts play an important role in protecting the average person from the prospect of arbitrary governmental overreach. One such way is through the use of Article 78 of the Civil Practice Law and Rules. The judiciary has the ability—and the responsibility—to review actions taken by officers or administrative agencies that are not amenable to resolution in a civil or criminal court proceeding. Absent judicial review, governmental agencies would have untrammeled authority to decide whether a person may engage in a particular occupation, keep his or her employment, or even drive a car. Traditionally, judicial review of agency action took the form of writs of mandamus to review and certiorari to review. Those writs, along with writs of prohibition and mandamus to compel, were codified in what is now CPLR Article 78, and those powers of review are now governed exclusively by Article 78. See CPLR 7801. Literally every day, counsel bring Article 78 proceedings to challenge governmental determinations and, by doing so, play an indispensable role in assuring adherence to the Rule of Law. Proceedings under CPLR Article 78 often involve reviewing determinations of executive branch agencies, and thus operate as a check on executive power by the judicial branch. This check, however, has itself been limited by the legislative branch, which enacted Article 78 and retains the power to amend it. Because a court’s exercise of authority under Article 78 can result in direct alteration of a determination made or discretionary act taken by a representative of another branch of government, the Legislature strictly limited the scope of the courts’ review power. The court is permitted to consider only a limited set of questions, and the standard of review is highly deferential—a restriction which is a check on judicial overreach. Specifically, in reviewing an administrative determination, the court may consider only whether the determination “was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed.” CPLR 7803(3). An arbitrary and capricious determination is one that “is without sound basis in reason and is generally taken without regard to the facts.” Matter of Pell v. Board of Educ. of Union Free Sch. Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231 (1974). Stated differently, such a determination lacks a “rational basis.” Id. Where a determination was made after “a hearing held, and at which evidence was taken, pursuant to direction by law,” the court may also consider whether the determination is supported by “substantial evidence.” CPLR 7803(4). The Court of Appeals has defined “substantial evidence” as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.” 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 180 (1978). These standards reflect the principle that the function of a court engaged in Article 78 review is not to determine whether the officer or agency determined the facts or exercised discretion in the same way the court would have, or applied the law in a way that would produce the result that the court would have reached. Rather, the court’s task is essentially to determine whether the officer or agency was applying the law at all, and whether it based its determination on the facts, as opposed to acting for an impermissible reason, or for no reason (i.e., arbitrarily and capriciously). The degree of judicial restraint required in Article 78 proceedings is occasionally challenging for judges, particularly Justices of the Appellate Division, who are accustomed to reviewing determinations made by other courts in the course of regular appellate review. On a direct appeal, Appellate Division Justices have the ability, and sometimes the obligation, to review factual findings, to exercise interest-of-justice jurisdiction, and to substitute their discretion for that of trial-level judges. None of that, however, is permissible when reviewing a determination by an officer or agency under Article 78. In such a case, the court’s review of the facts is limited to ascertaining whether the determination was supported by substantial evidence, and in assessing discretionary decisions, the Appellate Division is subject to the same limitations as the Court of Appeals, in that such a decision may be disturbed only if it constituted an abuse of discretion as a matter of law. These limitations have received special emphasis from the Court of Appeals in cases involving the imposition of discipline or penalties. In 1974, the Court of Appeals held that a sanction imposed by an agency or employer may be set aside by a court under Article 78 only if the punishment 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 Pell, 34 N.Y.2d at 233 (internal quotation marks omitted). Since then, the Court of Appeals has consistently held that an administrative sanction “must be upheld unless it shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law,” and “the Appellate Division lacks any discretionary authority or interest of justice jurisdiction in reviewing the penalty.” Matter of Featherstone v. Franco, 95 N.Y.2d 550, 554 (2000). Earlier this year, the court once again reminded the judiciary that a court may not annul a disciplinary measure taken against an employee if that measure is not “irrational” and does not “shock the conscience,” and that the Appellate Division “exceed[s] its authority” when it “reweigh[s] the evidence and substitut[es] its judgment for that of the hearing officer.” Matter of Bolt v. New York City Dept. of Educ., 30 N.Y.3d 1065 (2018). These holdings reflect the court’s recognition that “‘it is the agency and not the courts which, before the public, must justify the integrity and efficiency of [its] operations.’” Id. at 1072 (Rivera, J., concurring), quoting Matter of Pell, 34 N.Y.2d at 235. CPLR Article 78 represents a careful balancing of the powers of different branches of our government. By strictly adhering to the proper standards of review, the courts avoid interfering with the legitimate prerogatives of other governmental entities, while still fulfilling their role in enforcing the Rule of Law by ensuring that those entities do not abuse their power by wielding it in an arbitrary or unjust manner. Through the litigation and determination of Article 78 proceedings, we all play our part in preserving the Rule of Law. Alan Scheinkman is Presiding Justice of the Appellate Division, Second Department.