Betty L. Kimmel, Respondent,v.State of New York et al., Appellants.--------------------------------Emmelyn Logan-Baldwin, Interested Party-Respondent.BriefN.Y.June 1, 2016To be Argued by: MITCHELL J. BANAS, JR., ESQ. (Time Requested: 15 Minutes) APL-2014-00108 Appellate Division Docket Nos. CA 09-01445, CA 13-01417 Monroe County Clerk’s Index No. 95-4327 Court of Appeals of the State of New York BETTY KIMMEL, Plaintiff-Respondent, - against - STATE OF NEW YORK and NEW YORK STATE DIVISION OF STATE POLICE, Defendants-Appellants. ____________________________________________ EMMELYN S. LOGAN-BALDWIN, Intervenor-Respondent. REPLY BRIEF FOR DEFENDANTS-APPELLANTS MITCHELL J. BANAS, JR., ESQ. BRADLEY A. HOPPE, ESQ. JAECKLE FLEISCHMANN & MUGEL, LLP Attorneys for Defendants-Appellants Avant Building, Suite 900 200 Delaware Avenue Buffalo, New York 14202-2107 Tel.: (716) 856-0600 Fax: (716) 856-0432 March __, 2015 TABLE OF CONTENTS Page TABLE OF CASES AND AUTHORITIES ............................................................ iii PRELIMINARY STATEMENT ............................................................................... 1 ARGUMENT ............................................................................................................. 3 I. THE TERM "JUDICIAL REVIEW" IS A TERM OF ART IN THE LAW AND MUST BE APPLIED CONSISTENT THEREWITH. ............................................................. 3 A. Comparison of the State EAJA to the Federal EAJA Clearly Shows the Legislature's Intent to Depart From the Federal EAJA and Limit Its Scope to Those Actions Seeking Judicial Review. ..................... 8 B. The Phrase "Judicial Review" Is a Term of Art in the Law Consistent With the State Police Defendants' Position on This Appeal. ....................................... 10 C. Contrary to ELB's Argument, This Court Did Not in Pan American Overturn Hundreds of Years of Precedent and Extend the Term "Judicial Review" to Plenary Actions Seeking Only Compensatory Damages. ................................................................................... 17 D. The State Police Defendants' Interpretation of Article 86 is the Only Interpretation Consistent with the Statute's Language as a Whole. .................................. 22 E. The Legislature Did Not Include the Phrase "Brought to Seek Judicial Review" in Article 86's Definition of "Action" for No Reason. ..................................... 26 F. Other State Courts Which Have Construed the Language "Judicial Review" in Their Respective Equal Access to Justice Acts Have Uniformly Limited the Scope of the Statute to Claims Challenging Prior Government Action. .................................... 28 -ii- G. The Legislature's Use of the Term "Judicial Review" in the Prior Iterations of Article 86 Confirms that the Term Is Limited to Article 78 Proceedings and Actions for Declaratory Judgment and/or Injunctive Relief Challenging Agency and Other State Actions. .................................................................. 34 II. ARTICLE 86 DOES NOT APPLY TO ACTIONS SEEKING PRIMARILY COMPENSATORY DAMAGES. ........................................................................................ 37 A. The Case Law Cited by ELB and Plaintiff Does Not Support the Proposition that Attorneys' Fees Are Recoverable in an Action Seeking Compensatory Damages. .......................................................... 38 B. Giving Effect to the Phrase "Judicial Review" Does Not Render the Court of Claims Exclusion Meaningless. ............................................................................. 41 C. The Legislative History Does Not Support the Claim that Article 86 Applies to Actions Seeking Compensatory Damages. .......................................................... 44 III. A COURT IS NOT PERMITTED TO SUBSTITUTE ITS OWN JUDGMENT AS TO WHAT IT BELIEVES TO BE QUITABLE FOR THE WILL OF THE LEGISLATURE IN ADOPTING ARTICLE 86. ............................... 52 CONCLUSION ........................................................................................................ 57 -iii- TABLE OF CASES AND AUTHORITIES Page Cases Alfonso v. Fernandez, 167 Misc.2d 793, 635 N.Y.S.2d 932 (Richmond Co. Sup. Ct. 1995) ............................................................... 39, 40 B&H Medical, LLC v. United States, 116 Fed. Cl. 671 (Fed. Cl. 2014) ...................................................................................................... 14 Bakhtriger v. Elwood, 360 F.3d 414 (3d Cir. 2004) ................................................ 13 Berger v. Varrelmann, 127 N.Y. 281 (1891) ........................................................... 28 Bird v. McGoldrick, 277 N.Y. 492 (1938) ................................................................. 4 Cardiosom, L.L.C. v. United States, 115 Fed. Cl. 761 (Fed. Cl. 2014) ...................................................................................................... 14 Cobra Roofing Service, Inc. v. The Department of Labor & Industries, 135 P.3d 913 (Wash. 2006) ............................................................ 31 Cobra Roofing Service, Inc. v. The Department of Labor and Industries, 97 P.3d 17 (Wash. Ct. App. 2004) ....................................... 29, 30 Department of Industry, Labor & Human Relations v. Labor & Industry Review Commission, 155 Wis. 2d 256 (1990) ............................................................................................................. 32 Develop Don't Destroy (Brooklyn), Inc. v. Empire State Development Corporation, 41 Misc. 3d 779, 971 N.Y.S.2d 682 (N.Y. Co. Sup. Ct. 2013) ................................................................. 7 Farmers' Loan & Trust Co. v. Polk, 166 A.D. 43, 151 N.Y.S.2d 618 (1st Dept. 1915) ............................................................................. 29 Frank v. Meadowlakes Development Corp., 6 N.Y.3d 687, 816 N.Y.S.2d 715 (2006) ............................................................................. 50 -iv- Godfrey v. Chief of Police of Wellesley, 35 Mass. App. Ct. 42 (Mass. App. Ct. 1993) ............................................................................... 13 Greer v. Wing, 95 N.Y.2d 676, 723 N.Y.S.2d 123 (2001) ...................................... 25 Gross v. Perales, 72 N.Y.2d 231, 532 N.Y.S.2d 68 (1988) .................................................................................................................... 44 In re Taub, 31 A.D.2d 378, 298 N.Y.S.2d 212 (1st Dept. 1969) ..................................................................................................................... 28 INS v. St. Cyr, 533 U.S. 289 (2001) .................................................................. 13, 14 Joffe v. Google, Inc., 746 F.3d 920 (9th Cir. 2013) ................................................. 42 Kimmel v. State of New York, 76 A.D.3d 188, 906 N.Y.S.2d 403 (4th Dept. 2010) ............................................................... 28, 40, 56 Legg v. Eastman Kodak, 248 A.D.2d 936, 670 N.Y.S.2d 291 (4th Dept. 1998) ............................................................................................. 19 Majewski v. Broadalbin-Perth Central School District, 91 N.Y.2d 577, 673 N.Y.S.2d 966 (1998) .............................................. 28, 49, 50 Marbury v. Madison, 5 U.S. 137 (1803) .................................................................. 12 Marine Midland Bank, N.A. v. New York State Division of Human Rights, 75 N.Y. 2d 240, 552 N.Y.S.2d 65 (1989) ............................................................................................................. 19, 20 Marx v. General Revenue Corp., 133 S. Ct. 1166 (2013) ....................................... 42 Matter of City of Syracuse Industrial Development Agency, 32 A.D.3d 1332, 822 N.Y.S.2d 209 (4th Dept. 2006) ..................................................................................................................... 14 Matter of George F. Johnson Memorial Library v. Town Board of Town of Union, 55 A.D.3d 1036, 865 N.Y.S.2d 727 (3d Dept. 2008) .............................................................................. 48 Matter of Greer v. Wing, 95 N.Y.2d 676, 723 N.Y.S.2d 123 (2001) ............................................................................................................... 7 -v- Matter of Knight-Ridder Broadcasting, Inc. v. Greenberg, 70 N.Y.2d 151, 518 N.Y.S.2d 595 (1987) ........................................ 48 Matter of Moran Towing & Transportation Co. v. New York State Tax Commission, 72 N.Y.2d 166, 531 N.Y.S.2d 885 (1988) ............................................................................................ 11 Matter of New York City Department of Environmental Protection v. New York City Civil Service Commission, 78 N.Y.2d 318, 574 N.Y.S.2d 664 (1991) ........................................................... 19 Matter of OnBank & Trust Co., 90 N.Y.2d 725, 665 N.Y.S.2d 389 (1997) ............................................................................................ 28 Matter of Sutka v. Connors, 73 N.Y.2d 395, 541 N.Y.S.2d 191 (1989) ............................................................................................ 56 Medcenter One v. North Dakota State Board of Pharmacy, 561 N.W.2d 634 (1997) ..................................................................... 32 Morissette v. United States, 342 U.S. 246 (1952).................................................... 13 New Pueblo Constructors v. State, 144 Ariz. 95 (1985) ......................................... 31 New York City Health & Hospitals Corp. v. McBarnette, 84 N.Y.2d 194 (1994) ............................................................................................. 6 New York State Department of Mental Hygiene v. State Division of Human Rights, 103 A.D.2d 546, 481 N.Y.S.2d 371 (2d Dept. 1984) .............................................................................. 42 Pan American World Airways, Inc. v. New York State Human Rights Appeal Board, 61 N.Y.2d 542, 475 N.Y.S.2d 256 (1984) ................................................................... 17, 18, 19, 20, 26 Peck v. New York State Division of Housing and Community Renewal, 188 A.D.2d 327, 590 N.Y.S.2d 498 (1st Dept. 1992) ............................................................................................. 43 People v. Duggins, 3 N.Y.3d 522, 788 N.Y.S.2d 638 (2004) ........................................................................................... 10, 11, 15, 16, 37 -vi- People v. Reed, 265 A.D.2d 56, 705 N.Y.S.2d 592 (2d Dept. 2000) .................................................................................................... 16, 37 People v. Wainwright, 237 N.Y. 407 (1924) .................................................... 16, 37 Rangolan v. County of Nassau, 96 N.Y.2d 42, 725 N.Y.S.2d 611 (2001) ............................................................................................ 27 Riggs v. Palmer, 115 N.Y. 506 (1889) .................................................................... 43 Rosner v. Metropolitan Property and Liability Insurance Co., 96 N.Y.2d 475, 729 N.Y.S.2d 658 (2001) .................................................... 11 Ruotolo v. State of New York, 83 N.Y.2d 248, 609 N.Y.S.2d 148 (1994) ............................................................................................ 48 Schaffer v. Evans, 57 N.Y.2d 992 (1982) ................................................................ 41 Sekhar v. United States, 133 S. Ct. 2720 (2013) ..................................................... 15 Shook v. District Court of Columbia Financial Responsibility and Management Assistance Authority, 132 F.3d 775, 328 U.S. App. D.C. 74 (D.C. Cir. 1998) ....................................... 42 State Board of Registration for Healing Arts v. Elliott, 387 S.W.2d 489 (1965) ........................................................................................ 13 State of N.Y. ex rel. Harkavy v. Consilvio, 29 A.D.3d 221, 812 N.Y.S.2d 496 (1st Dept. 2006) .............................................................. 43 State of N.Y. ex rel. Harkavy v. Consilvio, 34 A.D.3d 67, 819 N.Y.S.2d 499 (1st Dept. 2006) ...................................................................... 43 State v. LaFrance, 471 A.2d 340 (1983) ................................................................. 12 Stigger v. Mann, 263 S.W.3d 721 (Ct. App. W.D. 2008) ........................................ 32 Stoike v. First National Bank of City of New York, 290 N.Y. 195 (1943) ...................................................................................................... 4 United States v. Trans-Missouri Freight Association, 166 U.S. 290, 17 S. Ct. 540 (1897) ...................................................................... 49, 50 -vii- Vatore v. Commissioner of Consumer Affairs of the City of New York, 83 N.Y.2d 645, 612 N.Y.S.2d 357 (1994) ...................................... 48 Wittlinger v. Wing, 99 N.Y.2d 425, 757 N.Y.S.2d 234 (2003) ............................................................................................................. 38, 39 Woollcott v. Shubert, 217 N.Y. 212 (1916) ............................................................. 49 Statutes 28 U.S.C. § 2412(d)(1)(A) ......................................................................................... 9 42 U.S.C. § 1983 ...................................................................................................... 39 42 U.S.C. § 1988(b) ................................................................................................. 39 A.R.S. § 12-348 ........................................................................................................ 31 A.R.S. § 12-910(B) .................................................................................................. 31 A.R.S. § 37-134 ........................................................................................................ 31 CPLR 101 ................................................................................................................. 27 CPLR 8601 .......................................................................................................... 9, 23 CPLR 8601(a) ..................................................................................................... 9, 25 CPLR 8602(a) .................................................................................................. passim CPLR 8602(e) ............................................................................................................ 4 CPLR 8602(g) ..................................................................................................... 5, 35 CPLR 8605(b) .......................................................................................................... 24 CPLR Article 78 ......................................................................................................... 6 Mo. Stat. § 536.087 R.S.Mo. ................................................................................... 32 N.Y. Ct. Claims Act § 9, subd 4 .............................................................................. 41 New York Civil Service Law § 213(a) .................................................................... 21 -viii- New York Executive Law § 298 ....................................................................... 20, 21 Rev. Code Wash. § 4.84.350(1) ............................................................................... 29 Uniform Rules for the Trial Courts § 202.57(a) ...................................................... 21 Wis. Stat. § 227.485(6) ............................................................................................ 32 Other Authorities 97 N.Y. Jur. Statutes § 106 ........................................................................................ 4 97 N.Y. Jur. Statutes § 109 ...................................................................................... 11 97 N.Y. Jur. Statutes § 128 ...................................................................................... 21 Black's Law Dictionary 762 (5th Edition 1979) ...................................................... 30 Black's Law Dictionary, 9th Edition ................................................................. 12, 14 Charles E. Daye, Powers of Administrative Law Judge, Agencies, and Courts: An Analytical and Empirical Assessment, 79 N.C. L. REV. 1571 (2001) .......................................................... 30 McKinney's Cons. Laws of NY, Book 1, Statutes § 233 ......................................... 11 McKinney's Cons. Laws of NY, Book 1, Statutes § 236 ......................................... 11 McKinney's Cons. Laws of NY, Book 1, Statutes § 97 ........................................... 43 McKinney's Cons. Laws of NY, Book 1, Statutes § 98 ........................................... 43 Webster's Third New International Dictionary 1223 (1993) .................................................................................................................... 30 PRELIMINARY STATEMENT This reply brief is submitted by Defendants-Appellants the State of New York and New York State Division of State Police (the "State Police Defendants") in further support of their appeal seeking reversal of the Decision and Order of the Appellate Division, Fourth Department reversing Monroe County Supreme Court Judge Evelyn Frazee's order which correctly held Article 86 inapplicable to this case on the grounds that it applied, as the statute so clearly states, only to "actions and proceedings brought to seek judicial review of an action of the state" and not to a civil action brought, such as this one, to recover monetary damages against the State in its capacity as employer. The issue before this Court, as made clear by the briefs submitted by the parties, is a narrow one and centers on the question of whether the phrase "judicial review," as used in the statute to qualify and limit the word "action" and thus the scope and applicability of Article 86, has a meaning in the law far beyond (1) its common usage, (2) hundreds of years of judicial precedent from English common law, the Supreme Court of the United States and state and federal courts throughout the United States, and (3) the meaning attributed to it uniformly in the New York statutes where the Legislature chose to use that term. Notwithstanding such common usage generally, and the United States Supreme Court's clear statement that it is a "term of art" in the law, the majority of the Fourth Department -2- held that Article 86 applied not only to actions "brought to seek judicial review of an action of the state," but also to all other civil actions, regardless of the relief sought, in clear conflict with the language chosen by the Legislature. The Court should therefore reject such an interpretation of the statute, which violates nearly every tenet of statutory construction, and instead hold, as the trial court and the two dissenters at the Fourth Department did, that Article 86 is limited in scope and applicability to those actions which are brought to seek "judicial review" (i.e., Article 78 proceedings, actions for declaratory relief, and/or actions seeking injunctive relief challenging legal action taken by state agencies, the state legislature, and/or any other branch of state government). As explained herein and in the State Police Defendants' principal brief, this is the only interpretation that gives effect to the words chosen by the Legislature and the myriad statements of intent sprinkled consistently within and unrebutted throughout the legislative history of Article 86 and is prior iterations. According to the respondents and Appellate Division, however, the phrase "judicial review," as found in the statute, not only lacks this recognized meaning but, in fact, lacks any meaning at all, and thus allows Article 86 to extend to all actions, rendering the qualifier "judicial review" entirely purposeless. The Legislature could not have so intended, is presumed not to have so intended, and -3- the Appellate Division erred when it read the term "judicial review" completely out of the statute. For these reasons, as well as those in the State Police Defendants' principal brief, this Court should reject the legally unsupportable arguments made by Plaintiff-Respondent Betty Kimmel ("Kimmel" or "Plaintiff") and Intervenor- Respondent Emmelyn-Logan Baldwin ("ELB"), reverse the order of the Fourth Department, and hold that Article 86 of the CPLR is limited in scope and applicability to actions and proceedings brought to seek judicial review of an action of the state. As the action brought by Plaintiff sought only compensatory damages for violations of the Human Rights Law, and not "judicial review" of any governmental action on the part of the State Police, the Court should hold that Article 86 does not apply to the case at bar and dismiss the Plaintiff's and intervenor's fee applications accordingly. ARGUMENT I. THE TERM "JUDICIAL REVIEW" IS A TERM OF ART IN THE LAW AND MUST BE APPLIED CONSISTENT THEREWITH. In their respective opposition briefs, Plaintiff and ELB seek to have it both ways by, in one breath, accusing the State Police Defendants of impermissibly reading language (i.e., "agency action") into Article 86 (ELB Brief, at 5, 21) despite the Legislature's use of the limiting phrase "judicial review" and its express -4- applicability to "agency" action (CPLR 8602(a) and (e)), while at the same time asking this Court to ignore - or, more accurately, "read out" of Article 86 - the very definition used by the Legislature to limit the scope and applicability of the statute to "actions or proceedings brought to seek judicial review of an action of the state." See, ELB Brief, at 5, 26, 28, 29, 33-34, 49, 52; Kimmel Brief, at 2, 3, 7, 10, 31, 34 (refusing even to acknowledge that CPLR 8602(a)'s definitional section qualifies and limits the phrase "any civil action" under the statute). Leaving aside the fact that the logic of Kimmel's and ELB's contradictory positions on the subject are hopelessly irreconcilable, which is reason enough for this Court to reject the argument, the law is clear that the Court cannot, as Plaintiff and ELB would have it do, ignore the defined terms used in a statute and pick and choose the language it sees fit to enforce. See, 97 N.Y. Jur. Statutes § 106 ("The Legislature's definition of words employed in a statute is binding on the courts"); see also, Stoike v. First National Bank of City of New York, 290 N.Y. 195, 202 (1943) ("We may not disregard the definitive language thus employed; nor may we by judicial construction give effect to an assumed congressional intent. When by definition Congress differentiated between 'commerce' and 'production of goods for commerce,' we may not assume it was wholly without purpose.") and Bird v. McGoldrick, 277 N.Y. 492, 500 (1938) ("Where, as in this case, there is a statute -5- defining the duties and liabilities of a public officer, no consideration of public policy can properly induce a court to reject the statutory definition"). Insofar as respondents claim that the State Police Defendants impermissibly read the term "agency action" into the statute, it is the statute itself which supplies those words in the first instance: CPLR 8602(g) defines "State" to include not only the State but also its agencies and officials. CPLR 8602(a) then extends Article 86 only to "judicial review of an action of the State," which obviously includes agency action. Notably, nowhere do the State Police Defendants argue that Article 86 is limited to actions of an "agency" or does not extend to the "State" itself or to State "officials" (ELB Brief at 30; Kimmel Brief at 11); clearly it does, as long as "judicial review" of their actions is sought.1 Another such straw man respondents erect only to knock down is that the State Police Defendants argue (so say the respondents) that Article 86 is confined to Article 78 proceedings (Kimmel Brief at 7-13) even though the Legislature did not expressly say so. Id. at 2, 13. That, of course, is not the State Police Defendants' argument at all (as respondents themselves signal when they have to recast what the State Police Defendants actually do argue in this regard "in other 1 And respondents know that the State Police Defendants do not read "agency action" into the statute any more than Governor Cuomo did when, in approving the Legislation, he referred to "an agency that is acting without jurisdiction." ELB Brief at 59 (quoting A-540 (Bill Jacket, L.1989, ch. 779 at 20)). -6- words"). ELB Brief at 23. Rather, what the State Police Defendants argue is that Article 86 is confined to actions and proceedings seeking "judicial review" (such as, for example, Article 78 proceedings2) - which the Legislature did say in CPLR 8602(a).3 Thus, in no respect do the State Police Defendants "ignore[] the meaning of the phrase 'any civil action'" by instead "focus[ing] … on the phrase 'judicial review' contained in CPLR § 8602(a)." ELB Brief at 23. Rather, it is respondents who wish to ignore that CPLR 8602(a) in fact supplies "the meaning of the phrase 'any civil action'" - a phrase which respondents seek to define without regard for CPLR 8602(a)'s command that its meaning is confined to actions seeking "judicial review."4 It is most certainly not the case that the Legislature enacted Article 86 "without specifying [the] specific types of certain civil actions [which] fall with the purview of the statute" (ELB Brief at 29); it unmistakably did so in CPLR 8602(a) - a definitional section - when it included the phrase "brought to seek judicial review." 2 Of course, as this Court has previously acknowledged, "when the claim is one against a governmental body or officer, the form of action that immediately springs to mind is a proceeding brought under CPLR Article 78, a traditional, and surely the most common, vehicle for challenging a governmental decision or action" (i.e., judicial review). New York City Health & Hospitals Corp. v. McBarnette, 84 N.Y.2d 194, 201 (1994). 3 The Legislature thus did "limit the nature of [the] harm" suffered by a plaintiff (Kimmel Brief at 15) before Article 86 applies. 4 It is thus hardly surprising that the Legislative history is replete with bare references to "any civil action" (see ELB Brief at 47-52); since the legislation contained a definition of that phrase, there was no need to elaborate on what it meant every time the phrase was used. -7- Moreover, this Court has already unequivocally given effect to CPLR 8602(a)'s definition of "action" in a case involving the limits of Article 86. Matter of Greer v. Wing, 95 N.Y.2d 676, 723 N.Y.S.2d 123 (2001). There, the Court made clear that the term "action," as used throughout Article 86, is qualified and limited by the definition in the statute to an "action or proceeding brought to seek judicial review of an action of the state." Id. at 679, 723 N.Y.S.2d at 125 (emphasis added); see also, Develop Don't Destroy (Brooklyn), Inc. v. Empire State Development Corporation, 41 Misc. 3d 779, 786-787, 971 N.Y.S.2d 682, 688 (N.Y. Co. Sup. Ct. 2013) (holding that an action against the Empire State Development Corporation is subject to Article 86 because its rulings are "subject to judicial review according to the standards applicable to government agencies generally"). Any argument attempting to ignore and/or read the term "judicial review" out of the definition of "action" contained in the statute should therefore be rejected. There should be no question, based on the language employed by the Legislature and this Court's precedent, that the word "action" (and thus the phrase "any civil action") in the statute is qualified by and limited to CPLR 8602(a)'s express definition of the term: "any proceeding or action brought to seek judicial review of an action of the state." Moreover, as explained below and contrary to the arguments made by Kimmel and ELB (and the holding of the Fourth Department), -8- it is clear that the Legislature's use of the phrase "judicial review" limits the scope and applicability of Article 86 to only those actions which seek to review and/or challenge governmental actions taken by state agencies, the legislature or other branches of state government (i.e., Article 78 proceedings and certain actions seeking declaratory and/or injunctive relief against the state). A. Comparison of the State EAJA to the Federal EAJA Clearly Shows the Legislature's Intent to Depart From the Federal EAJA and Limit Its Scope to Those Actions Seeking Judicial Review. The infirmity in ELB's and Kimmel's argument is best illustrated by the very table that ELB uses in her opposition brief to contrast Article 86 and the Federal EAJA (as reproduced below). Rather than show that Article 86's reach is the same as the Federal EAJA's, as ELB seems to contend (ELB Brief, at 31-33), a side-by- side comparison of the two statutes instead shows that the Legislature chose to deviate from its federal counterpart by limiting the applicability of Article 86 to actions "brought to seek judicial review" instead of, as done by Congress in the Federal EAJA, including such actions (along with others) within its purview: -9- (28 USC § 2412(d)(1)(A)) (CPLR §§ 8601; 8602(a)) Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses … incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. (Emphasis added.) [E]xcept as otherwise specifically provided by statute, a court shall award to a prevailing party, other than the state, fees and other expenses incurred by such party in any civil action brought against the state, unless the court finds that the position of the state was substantially justified or that special circumstances make an award unjust (CPLR 8601(a)). "Action" means any civil action or proceeding brought to seek judicial review of an action of the state as defined in subdivision (g) of this section, including an appellate proceeding, but does include an action brought in the court of claims (CPLR 8602(a)). (Emphasis added.) The intention of the legislature, as exhibited by its very words, is thus clear: While the Federal EAJA includes actions seeking judicial review, the State EAJA includes only and is limited to actions seeking judicial review. As so indisputably stated by ELB in her brief, "[b]y expressly choosing to narrow Article 86 in certain respects in comparison to the Federal EAJA, it can be presumed that the Legislature considered all of the ways in which it could have made the statute more -10- restrictive than the federal law, and incorporated into the new law only those changes it deemed warranted." ELB Brief, at 33-34. It is therefore clear that, contrary to the arguments made by ELB and Kimmel, the Legislature chose to deviate from the Federal EAJA and limit the scope of Article 86 to actions seeking judicial review of an action of the state -rather than merely "include" them. B. The Phrase "Judicial Review" Is a Term of Art in the Law Consistent With the State Police Defendants' Position on This Appeal. ELB next argues that the phrase "judicial review" is not a term of art and cannot be limited to mean the review by a court of law of prior legal determinations and actions made by the other branches of government. ELB Brief, at 6, 24. Such an argument, however, ignores hundreds of years of legal precedent, both in English common law and American jurisprudence, including recent statements by the United States Supreme Court and other courts, and should thus be rejected outright. As explained by this Court in People v. Duggins, 3 N.Y.3d 522, 788 N.Y.S.2d 638, 641 (2004), -11- "[w]ords of technical or special meaning are construed according to their technical sense, in the absence of anything to indicate a contrary legislative intent." Put somewhat differently, when a statute does not define a particular term, it is presumed that the term should be given its "precise and well settled legal meaning in the jurisprudence of the state." Moreover, "when terms of art or peculiar phrases are used, it is supposed that the Legislature had in view the subject matter about which such terms or phrases are commonly employed." As a corollary, "where the same word or group of words is used in … different statutes, if the acts are similar in intent and character the same meaning may be attached to them." Id. at 527-528, 788 N.Y.S.2d 638 at 641 (quoting Matter of Moran Towing & Transportation Co. v. New York State Tax Commission, 72 N.Y.2d 166, 173, 531 N.Y.S.2d 885 (1988); McKinney's Cons. Laws of NY, Book 1, Statutes § 233; McKinney's Cons. Laws of NY, Book 1, Statutes § 236). Moreover, in determining the meaning of the words chosen, courts can and should look to common legal definitions in the absence of a statutory definition. 97 N.Y. Jur. Statutes § 109; see also, Rosner v. Metropolitan Property and Liability Insurance Co., 96 N.Y.2d 475, 479-480, 729 N.Y.S.2d 658, 762 (2001) ("In the absence of any controlling statutory definition, we construe words of ordinary import with their usual and commonly understood meaning, and in that connection have regarded dictionary definitions as 'useful guideposts' in determining the meaning of a word or phrase"). -12- As explained in the State Police Defendants' principal brief, Black's Law Dictionary, 9th Edition, sets forth the technical definition of the term "judicial review," as understood in the law for hundreds of years: "(1) A court's power to review the actions of other branches or levels of government; esp., the court's power to invalidate legislative and executive actions as being unconstitutional; (2) The constitutional doctrine providing for this power; and (3) A court's review of a lower court's or an administrative body's factual or legal findings." This definition finds its roots in English common law, and later in American jurisprudence beginning with the seminal case of Marbury v. Madison, 5 U.S. 137 (1803), where the United States Supreme Court recognized that the judicial branch may review and invalidate actions of the other branches of government that exceed their legal authority. The legal concept of "judicial review" and the meaning attached to the phrase has been uniformly applied, both at the federal and state level, ever since5 5 The following state courts have applied the term "judicial review" consistent with the definition provided by Black's Law Dictionary: State v. LaFrance, 471 A.2d 340 (1983) ("Judicial review is the exercise by courts of their responsibility to determine whether acts of the other two branches are illegal and void because those acts violate the constitution. The doctrine authorizes courts to determine whether a law is constitutional, not whether it is necessary or useful. In other words, judicial review is the power to say what the constitution means and not whether such a law reflects a wise policy. Adherence to the doctrine of judicial review is essential to achieving balance in our government. Without it, legislation such as that providing for the minimum business profits tax would still be in effect. Judicial review, coupled with the specified constitutional provisions which keep the judicial branch separate and independent of the other branches of government and with those articles of the constitution that protect the impartiality of the judiciary from public and political pressure, enables the courts to ensure that the -13- and was recently found by the United States Supreme Court, in INS v. St. Cyr, 533 U.S. 289 (2001), to constitute a term of art in the law. Id. at 313 n. 35 (noting, in construing and contrasting the terms "judicial review" and "habeus" in the federal immigration statutes, that both constitute "terms of art" and it is therefore presumed that Congress "knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed") (quoting Morissette v. United States, 342 U.S. 246, 263 (1952)); see also, Bakhtriger v. Elwood, 360 F.3d 414, 423-424 (3d Cir. 2004) ("The meaning of the term 'judicial review' became the critical interpretive issue presented to the Supreme Court [in St. Cyr.]. If judicial review meant all review by any court, as the government and the dissenting Justices urged, then the zipper clause and the criminal alien preclusion clause, taken together, made removal of criminal aliens totally unreviewable under the statutory scheme. If 'judicial review' was a term of art referring only to a certain type of court review, however, then what was precluded was not all review by the courts, but only review of a certain kind. The constitutional rights of each citizen will not be encroached upon by either the legislative or the executive branch of the government."), Godfrey v. Chief of Police of Wellesley, 35 Mass. App. Ct. 42 (Mass. App. Ct. 1993) ("'[J]udicial review' means a 're-examination of a proceeding, already concluded, for the purpose of preventing a result which appears not to be based upon the exercise of an unbiased and reasonable judgment'), and State ex rel. State Board of Registration for Healing Arts v. Elliott, 387 S.W.2d 489, 492 (1965) (finding that an action brought in a court of law for an order staying a license revocation proceeding and to remove any such proceedings to circuit court, neither of which sought review of an action of the legislature of an executive agency, was not an action seeking "judicial review"). -14- majority in St. Cyr adopted the latter interpretation … ."); see also, B&H Medical, LLC v. United States, 116 Fed. Cl. 671 (Fed. Cl. 2014) and Cardiosom, L.L.C. v. United States, 115 Fed. Cl. 761, 774 (Fed. Cl. 2014) (both courts noting that "judicial review" is a term of art in the law with "a judicially settled meaning, which is not ambiguous[,]" such that the term, as it is used in the Medicare Act, must be construed in accordance with its common usage in the law). The B&H Medical and Cardiosom courts went so far as to hold that the definition of "judicial review" set forth in Black's Law Dictionary fairly captures the meaning of the term and, where appropriate, should be afforded deference. See, B&H Medical, 116 Fed. Cl. at 686 and Cardiosom, 115 Fed. Cl. at 774 (both referring to Black's Law Dictionary's definition of "judicial review" as the appropriate definition); see also, Matter of City of Syracuse Industrial Development Agency, 32 A.D.3d 1332, 1335, 822 N.Y.S.2d 209, 212 (4th Dept. 2006) (Hurlbutt, J.P. dissenting) (defining the term "judicial review," with reference to Black's Law Dictionary, as "a court's review of a lower court's or an administrative body's factual or legal findings"). That "judicial review" has this recognized meaning is confirmed by respondents' efforts to distance themselves from the definition of "action" contained in CPLR 8602(a). More particularly, respondents' incessant insistence that, for example, "the phrase 'any civil action' means just that, any civil action" (Kimmel Brief at 1-2; see also, ELB Brief at 49), or "[t]hat the phrase 'any civil -15- action' is qualified only by the requirement that the action be 'brought against the State' and that the fees and expenses not 'otherwise specifically provided by Statute'" (ELB Brief at 22), or that "the Legislative intent was to … define any action as all civil actions against the State or its agencies" (id. at 51) deliberately avoids that CPLR 8602(a) defines exactly what "action" means, and that it means only actions "brought to seek judicial review of an action of the State" (including its agencies and officials). Obviously, CPLR 8602(a)'s limitations do not go away simply because respondents choose to ignore them.6 There can thus be no question that the term "judicial review" is, in fact, a recognized term of art in the law and, as such, the Legislature is presumed to have not only understood but intended its import and legal significance, and this Court is constrained by the rules of statutory construction to interpret the term in accordance therewith. See, e.g., Duggins, 3 N.Y.3d at 527-28, 788 N.Y.S.2d at 641; see also, Sekhar v. United States, 133 S. Ct. 2720, 2724 (2013) ("[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which 6 Indeed, even where respondents do acknowledge CPLR 8602(a)'s existence, they studiously avoid the undeniable fact that it contains the words "brought to seek judicial review." See Kimmel Brief at 10-11 (extensively discussing the language of CPLR 8602(a) without even mentioning that it contains the words "judicial review"). The State Police defendants do not dispute that Kimmel brought "a civil action" (id.) - just not one falling within that term as defined in the statute (because it did not seek "judicial review"). -16- it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed"). This is because the legislature is presumed to understand the legal significance of the words it chooses and such language must therefore be construed in accordance with its common usage. See, e.g., People v. Wainwright, 237 N.Y. 407, 412 (1924) ("[T]he reasonable presumption is that the words of grant were used, not loosely, but with regard for their established legal significance, and in construing a statute a technical meaning should be given to technical words, unless a contrary meaning is unmistakably intended"); see also, Duggins, 3 N.Y.3d at 528, 788 N.Y.S.2d at 641 ("When terms of art or peculiar phrases are used, it is supposed that the Legislature had in view the subject matter about which such terms or phrases are commonly employed") and People v. Reed, 265 A.D.2d 56, 66, 705 N.Y.S.2d 592, 600 (2d Dept. 2000) ("[I]t is presumed that in drafting the statute, the Legislature understood and adopted that well-settled meaning"). The Court should therefore find that the definition of "action" in Article 86, which confines the scope of the statute to those "actions and proceedings brought to seek judicial review of action of the state" (CPLR 8602(a)), is limited to those types of action where "judicial review" of an action of the state may be obtained (i.e., Article 78 proceedings and actions seeking declaratory and/or injunctive relief relating to prior legal actions taken by agencies, the legislature or other branches of -17- state government) and does not, as a matter of statutory definition, apply to a plenary action against the State as employer seeking millions in compensatory damages under the Human Rights Law. C. Contrary to ELB's Argument, This Court Did Not in Pan American Overturn Hundreds of Years of Precedent and Extend the Term "Judicial Review" to Plenary Actions Seeking Only Compensatory Damages. ELB takes the overreaching position that this Court, in Pan American World Airways, Inc. v. New York State Human Rights Appeal Board, 61 N.Y.2d 542, 475 N.Y.S.2d 256 (1984), has already expressly considered and outright rejected the position taken by the State Police Defendants - not to mention the United States Supreme Court - by holding that "judicial review" is a limitlessly broad term which applies to every action brought in any judicial forum. ELB Brief, at 6, 24. That argument, as tenuous as it is, is the sole argument made by respondents that the term "judicial review," which was chosen by the Legislature to restrict the applicability and scope of Article 86, somehow has a broader meaning than that which is understood in the law. Specifically, in Pan American the Court was asked to determine, in the context of an administrative proceeding brought for an alleged violation of the Human Rights Law, whether the Human Rights Appeal Board had jurisdiction to entertain an appeal of a dismissal by the Human Rights Division on "administrative -18- convenience" grounds. While the Court held that the Human Rights Appeal Board did in fact have jurisdiction to determine whether such a dismissal was "purely arbitrary," it nevertheless found no basis for a finding of arbitrariness and therefore affirmed the original dismissal. Id. at 549, 475 N.Y.S.2d at 259. The Court reasoned that because the claimant, once his complaint was dismissed for administrative convenience, was permitted to sue the case in a court of law, the dismissal did not deprive him of due process and was therefore not "purely arbitrary." Id. That was the full extent of the Court's actual holding in Pan American - which was not even an Article 86 case. However, notwithstanding the limited issue in dispute and resultant holding by the Court in Pan American, ELB takes the position in her brief that the meaning of the term "judicial review" under Article 86 was somehow decided by the Court in Pan American by virtue of an isolated statement made by the Court only in passing while describing a case brought in a court of law, as contrasted with an administrative proceeding brought in the Human Rights Division, as "judicial review." Id. at 548, 475 N.Y.S.2d at 258. Of course, commencing an action in a court of law does not ipso facto involve "judicial review" of anything unless its object is court review of a prior act or determination of an agency, the legislature or other branch of state government. See, supra, at Point I.B. -19- Notably, this Court, in a subsequent case construing Pan American, declined to repeat such use of the term "judicial review" in favor of the more apt phrase "judicial forum." See, Marine Midland Bank, N.A. v. New York State Division of Human Rights, 75 N.Y. 2d 240, 245, 552 N.Y.S.2d 65, 66 (1989); see also, Legg v. Eastman Kodak, 248 A.D.2d 936, 670 N.Y.S.2d 291 (4th Dept. 1998) (using the term "judicial forum," with citation to Pan American, to describe an action brought in a court of law generally). Indeed, the Court in Marine Midland did not just more accurately invoke the term "judicial forum" to describe an action brought in a court of law, as opposed to an administrative proceeding (id. at 937, 670 N.Y.S.2d at 292 (citing Pan American)), but it went on, again citing Pan American, to correctly utilize the recognized meaning of "judicial review" in stating that dismissals based on administrative convenience "are subject to judicial review to the extent that they are 'purely arbitrary', i.e., to the extent that they contravene or threaten to contravene a statute, constitutional right or administrative regulation." Marine Midland Bank, 75 N.Y. 2d at 245, 246, 552 N.Y.S.2d at 67; see also, Matter of New York City Department of Environmental Protection v. New York City Civil Service Commission, 78 N.Y.2d 318, 323, 574 N.Y.S.2d 664, 666 (1991) (citing Pan American for the proposition that "judicial review is mandated when the agency has acted illegally, unconstitutionally, or in excess of its jurisdiction") and Legg, 248 A.D.2d at 938, 670 N.Y.S.2d at 293 (citing Pan American for the -20- proposition that "[d]ismissals based on administrative convenience are subject to judicial review to the extent that they are 'purely arbitrary', i.e., to the extent that they contravene a statute or constitutional right or violate the agency's own regulations"). Thus, whatever the source of the imprecision in Pan American, there can be no question but that, more recently, this Court has made clear that its dicta therein does not prescribe the broad rule of law ELB extrapolates therefrom as the sole basis for her argument that "judicial review" has a meaning far more expansive than how it has been understood in the law for hundreds of years. It is no coincidence then that the Court, in Marine Midland, expressly referenced the only way to obtain "judicial review" under the Human Rights Law, i.e., pursuant to Executive Law § 298 (id. at 244, 552 N.Y.S.2d at 66), which provides that "[a]ny complainant, respondent or other person aggrieved by an order of the commissioner[, including] … an order dismissing a complaint, … may obtain judicial review thereof … in a proceeding as defined in this section." New York Executive Law § 298 (emphasis added). Thus, contrary to the position now being taken by ELB on this appeal, the way an action is "brought to seek judicial review" (CPLR 8602(a)) in connection with an alleged violation of the Human Rights Law is pursuant to the express terms of section 298 of the Human Rights Law, and not in an action for damages in a court of law. -21- Such an interpretation is consistent not only with the very words chosen by the Legislature in limiting the scope of the word "action" to "actions and proceedings brought to seek judicial review of an action of the state," but also the usage of the phrase "judicial review" as employed in other New York statutes. Of course, the Court must, in construing the language chosen in a statute, be cognizant of other similar statutes and construe the same language in such statutes consistent with each other. See, 97 N.Y. Jur. Statutes § 128 ("There is a presumption that similar meaning attaches to the use of similar words as they appear in other statutes of like import"). Indeed, New York statutory law is rife with examples where the Legislature used the term "judicial review" to refer to review by a court of law of prior determinations and other actions by other branches of government. See, e.g., New York Executive Law § 298 (using "judicial review" to refer to court review of a prior administrative determination), New York Civil Service Law § 213(a) (using "judicial review" to describe review of the "final order" of the board), and Uniform Rules for the Trial Courts § 202.57(a) (permitting an aggrieved party to seek "judicial review" of an order of the State Commissioner of Human Rights or the State Division of Human Rights within 60 days of service of the order). Conversely, use of the term "judicial review" to refer to or even encompass actions -22- for monetary damages is notably absent from New York's statutory landscape; respondents have certainly cited to no such usage. Here, since (1) the Article 86 fee application sub judice is being brought to enforce the requirements of the Human Rights Law; (2) the Human Rights Law invokes the phrase "judicial review" to refer to a review by the judiciary of a prior administrative determination of the Human Rights Division and/or Human Rights Appeal Board; and (3) all other statutes, as well as the common law, use and construe the term "judicial review" consistent with its common usage (see, supra, at Point I.B.), the Court must similarly construe the term "judicial review" and thus limit its meaning to a review of prior determinations made by an agency or other branch of government.7 D. The State Police Defendants' Interpretation of Article 86 is the Only Interpretation Consistent with the Statute's Language as a Whole. Kimmel makes the groundless argument that the State Police Defendants, by asking this Court to give effect to the express language used in the statute, are 7 Both ELB and Kimmel overstate the State Police Defendants' position on appeal by claiming that the State Police Defendants contend that Article 86 applies only to a challenge of administrative actions, through Article 78 or declaratory actions (ELB Brief, at 21, 23, 27, 30; Kimmel Brief, at 2, 8, 11, 12, 34). This is incorrect. The truth is that the State Police Defendants contend, consistent with hundreds of years of authority on the subject, that "judicial review" under Article 86 applies to any action or proceeding to challenge administrative findings and rulings (e.g., Article 78 proceedings), legislative actions (e.g., actions seeking declaratory judgment or injunctive relief with respect to the constitutionality of a statute), or actions of other branches of state government. -23- somehow seeking to "contradict" the statute. Plaintiff's Brief, at 7. This argument, as illogical as it is, suggests that the State Police Defendants are somehow impermissibly reading the limitation "certain actions" into the statute to qualify the defined term "action" even though the statement of legislative intent in CPLR 8600 and the title of CPLR 8601 unequivocally state exactly that. CPLR 8600 (providing that the purpose of Article 86 is to "create a mechanism authorizing the recovery of counsel fees and other reasonable expenses in certain actions against the State of New York") (emphasis added) and CPLR 8601 ("Fees and other expenses in certain actions against the state.") (emphasis added). The Legislature then further qualified what those "certain actions" subject to Article 86 were by limiting that term to only those "actions and proceedings brought to seek judicial review" of state action. CPLR 8602(a). What this means, contrary to Plaintiff's argument in her brief, is that it is the Fourth Department, not the State Police Defendants, who "contradict[ed]" the express language of Article 86 by finding that it applies to "any civil action" when both the statement of legislative intent and the title for CPLR 8601 expressly limit its application to "certain actions," later defined to include only those "brought to seek judicial review" of state action. This is reason enough to reject Plaintiff's and ELB's arguments, and the Fourth Department's conclusion, and hold that Article 86 -24- applies only to those "actions and proceedings brought to seek judicial review of an action of the state," as the statute so clearly states. Similarly unavailing is ELB's argument that the Legislature could not have possibly meant to limit the scope of Article 86 to actions brought to seek judicial review, notwithstanding the statute's inclusion of that language, because it failed to include the words "administrative proceedings" after "judicial review" in its definition of "action," but then later used that phrase at § 8605(b) of the statute. ELB Brief, at 29. Leaving aside the fact that the State Police Defendants are not claiming that Article 86 is limited to judicial review of "administrative proceedings" (to the contrary, it applies to any action brought to seek judicial review of an action of the state, including Article 78 proceedings, declaratory judgment actions and actions seeking injunctive relief relative to agency, legislative or other state governmental actions), ELB's citation to § 8605(b), if anything, evinces an intent on the part of the Legislature to limit the scope of Article 86 consistent with the State Police Defendants' position on this appeal. Specifically, there would have been no need for the Legislature, in § 8605(b), to expressly exclude fees incurred in administrative proceedings that occurred prior to judicial review by a court unless it intended for Article 86 to apply, as the language states, to actions brought to seek judicial review of state action in the first place; in other words, the predicate for a fee award must be some -25- sort of lawsuit seeking "judicial review" and not solely an underlying administrative proceeding absent later judicial review. This is precisely why this Court, in Greer v. Wing, 95 N.Y.2d 676, 679-680, 723 N.Y.S.2d 123, 125 (2001), held that the definition of "action," which limits qualifying actions to those "brought to seek judicial review of an action of the state" (id. at 679, 680, 723 N.Y.S.2d at 125), mandated the finding that only fees incurred in an administrative proceeding on remand from an action seeking judicial review, as opposed to the administrative proceeding which prompted judicial review in the first place, are recoverable under the statute. Id. at 680, 723 N.Y.S.2d at 125. The "judicial review" limitation in Article 86 thus serves the dual purpose of (1) significantly restricting the type of "action" that gives rise to a fee award and (2) eliminating from fee consideration all prior proceedings that spawned the "judicial review" in the first instance. This is why the statute requires, in order for the state to prove its defense to a fee application, a showing that the state was "substantially justified … determined solely on the basis of the record before the agency … whose act, acts, or failure to act gave rise to the civil action" seeking judicial review. CPLR § 8601(a) (emphasis added). Such a defense, through the language employed by the Legislature, clearly envisions and requires a prior agency or like proceeding and a "record" thereof, which is yet another example of the Legislature doing everything -26- possible to limit the scope and applicability of Article 86 to actions or proceedings "brought to seek judicial review of an action of the state." It is therefore no surprise - and of no consequence to this appeal - that the State Police Defendants did not, as ELB correctly notes in her brief (ELB Brief, at p. 5, 22, 39, 44), attempt to establish the "substantial justification" defense at the lower court. The simple fact is that the State Police Defendants, in an action claiming sexual harassment and discrimination with no prior administrative proceeding (and thus no "record"), could not have presented such a defense, a circumstance which further underscores the Legislature's intent to place plenary actions for money damages beyond Article 86's purview. E. The Legislature Did Not Include the Phrase "Brought to Seek Judicial Review" in Article 86's Definition of "Action" for No Reason. As should be clear from the above, the upshot of each of respondents' arguments, not to mention of the order below, is that the phrase "brought to seek judicial review" in CPLR 8602(a)'s definition of "action" means nothing whatsoever. This is no more apparent than when ELB extrapolates from Pan American to argue that "judicial review" means "review by the court system in an action." ELB Brief at 25. Of course, the only place actions and proceedings are even capable of being brought is in "the court system," and to so construe "judicial review" adds absolutely nothing to the statute. Likewise, by definition the CPLR -27- and in particular its Article 86 apply only to actions brought in the courts (see CPLR 101); for "judicial review" to require only that the subject action or proceeding be pending "in the courts" thus similarly renders the qualifier "brought to seek judicial review" impermissibly superfluous. If the Legislature had intended that "any civil action" meant what respondents say it does, it could (and would) simply have defined "action" as "any action or proceeding against the state" - period. However, it chose not to, and instead chose to include "brought to seek judicial review" in the definition of "action." It did so for a reason.8 Since ELB's and Kimmel's interpretation of CPLR 8602(a) renders an entire definition meaningless and without any legal significance, it must be rejected as a violation of the rules of statutory construction. Rangolan v. County of Nassau, 96 N.Y.2d 42, 48, 725 N.Y.S.2d 611, 616 (2001) ("Such a construction, 'resulting in the nullification of one part of the [statute] by another,' is impermissible, and violates the rule that all parts of a statute are to be harmonized with each other, as well as with the general intent of the statute"). As even the Fourth Department majority was compelled to note, "legislation is to be interpreted so as to give effect to every provision[, and a] construction that would render a provision superfluous 8 Indeed, to ascribe the meaning to "judicial review" that respondents do (i.e., anything in the courts) is to make the term apply, in other contexts devoid of statutorily limiting language such as "against the state," even to actions between purely private parties not involving any type of governmental conduct at all, further indication that the phrase cannot have the boundless meaning that respondents attribute to it. -28- is to be avoided." Kimmel v. State of New York, 76 A.D.3d 188, 192, 906 N.Y.S.2d 403, 406 (4th Dept. 2010); see also, ELB Brief at 34-35 (same) (quoting Majewski v. Broadalbin-Perth Central School District, 91 N.Y.2d 577, 587, 673 N.Y.S.2d 966, 970 (1998) and Matter of OnBank & Trust Co., 90 N.Y.2d 725, 731, 665 N.Y.S.2d 389, 392 (1997)). It is therefore clear that Article 86 is limited in scope and applicability to Article 78 proceedings and actions seeking declaratory and/or injunctive relief challenging prior agency and other state governmental actions. F. Other State Courts Which Have Construed the Language "Judicial Review" in Their Respective Equal Access to Justice Acts Have Uniformly Limited the Scope of the Statute to Claims Challenging Prior Government Action. Where other states have enacted similar legislation with the same language utilized in a New York statute, the courts of this State routinely look to those other state laws and the case law construing the language at-issue as an aid to statutory construction. See, e.g., Berger v. Varrelmann, 127 N.Y. 281, 288-289 (1891) (considering how other states construe language in similar statutes as relevant to the construction of the same language in a New York statute); see also, In re Taub, 31 A.D.2d 378, 383, 298 N.Y.S.2d 212, 216 (1st Dept. 1969) (looking to other similar state statutes and the case law interpreting the same as an aid to construction of a New York statute) and Farmers' Loan & Trust Co. v. Polk, 166 -29- A.D. 43, 51, 151 N.Y.S.2d 618, 624 (1st Dept. 1915) ("[I]t has arisen under similar statutes in other states, and the construction used has quite generally, but not in all cases, been adopted"). Not only are there numerous states throughout the country which have adopted their own versions of the Equal Access to Justice Act, many of which use the term "judicial review" to limit the scope and applicability of the statute, but the courts in many of those states have been asked to determine the meaning of the term and, in all such cases, have held, as the State Police Defendants contend on this appeal, that the language limits the scope of the statute to only those actions challenging prior governmental action. The State of Washington's interpretation of its Equal Access to Justice Act, codified at Rev. Code Wash. § 4.84.350(1), is a perfect example. The statute, in relevant part, provides: Except as otherwise specifically provided by statute, a court shall award a qualified party that prevails in a judicial review of an agency action fees and other expenses, including reasonable attorneys' fees, unless the court finds that the agency action was substantially justified or that circumstances make an award unjust. (Emphasis added). The meaning of the language "judicial review" in that statute was put before the Washington Appellate Court in Cobra Roofing Service, Inc. v. The Department of Labor and Industries, 97 P.3d 17 (Wash. Ct. App. 2004), where -30- the court held unequivocally that "judicial review" means a review by a court of law of prior actions of state government. Id. at 22-23. Specifically, the court, in Cobra Roofing, held that "judicial review" was a "term[] of art" (id. at 22) in the law (and thus had to be construed under the Washington Equal Access to Justice Act in accordance therewith), with the following meaning: Dictionaries further support the Board's conclusion that its proceeding was not a "judicial review." A general use dictionary broadly defines "judicial review" as "a constitutional doctrine that gives to a court system and esp. to a supreme court the power to annul legislative or executive acts which the judges declare are contrary to the provisions of the constitution." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1223 (1993). A legal dictionary defines "judicial review" more specifically as a "[f]orm of appeal from an administrative body to the courts for review of either the findings of fact, or of law, or of both." BLACK'S LAW DICTIONARY 762 (5th ed. 1979). Both definitions are consistent with the concept of a court of law conducting judicial oversight of government action. In the words of a legal scholar, "Judicial review is based on the fundamental premise that courts are the final arbiters of governmental determinations affecting the legal rights, duties, or privileges of specifically named persons." Charles E. Daye, Powers of Administrative Law Judge, Agencies, and Courts: An Analytical and Empirical Assessment, 79 N.C. L. REV. 1571, 1588 (2001). Id. at 23 (emphasis added). The determination of that appellate court was subsequently affirmed by the State Supreme Court in Cobra Roofing Service, Inc. -31- v. The Department of Labor & Industries, 135 P.3d 913, 917-918 (Wash. 2006), thus confirming that the scope of Washington's Equal Access to Justice Act was limited by the term "judicial review" to actions challenging prior government determinations. Washington is not alone in this respect. Arizona, like Washington and New York, passed an Equal Access to Justice Act where prevailing plaintiffs may be entitled to fees and costs in connection with actions seeking "judicial review of agency action." See, A.R.S. § 12-348. The Arizona Supreme Court, in a case where it was asked to determine whether its Equal Access to Justice Act applied to a breach of contract action brought against the state, held: This case did not involve 'judicial review of agency action' according to the conventional meaning of those terms. The court did not review the agency's decision under some limited standard of review. Rather, the court engaged in a de novo determination of the facts to decide if there was a breach of contract. It is true that the Administrative Review Act authorizes de novo review under certain circumstances, see A.R.S. § 12- 910(B), and that de novo review of agency decisions is expressly authorized by some statutes. See, e.g., A.R.S. § 37-134. But the instant case is simply not such a case. We do not believe that the mere fact that an agency decision precedes an action automatically transmutes the lawsuit into 'judicial review of agency action' for purposes of A.R.S. § 12-348. New Pueblo Constructors v. State, 144 Ariz. 95, 110 (1985). The holding of the Arizona Supreme Court could not have been any clearer: unless the plaintiff -32- brings and prevails on an action seeking judicial review of a prior agency determination, the Arizona Equal Access to Justice Act does not apply. The conclusions reached by the Washington and Arizona courts, in construing their state Equal Access to Justice Acts, are consistent with the conclusions reached by other states in construing the term "judicial review" in their respective Equal Access to Justice Acts. See, e.g., Stigger v. Mann, 263 S.W.3d 721, 724-725 (Ct. App. W.D. 2008) (holding that the Missouri Equal Access to Justice Act, codified at § 536.087 R.S.Mo., applies only to actions seeking "'judicial review' of an agency determination"); see also, Medcenter One v. North Dakota State Board of Pharmacy, 561 N.W.2d 634, 641 (1997) ("This declaratory judgment action did not judicially review the legality of an agency rulemaking action, nor did it judicially review a final agency order. We therefore hold [the North Dakota Equal Access to Justice Act, codified at] NDCC 28-32-21.1[,] does not apply to this case") and Department of Industry, Labor & Human Relations v. Labor & Industry Review Commission, 155 Wis. 2d 256, 269 (1990) ("Costs are available to the prevailing party in 'any action by a state agency or in any proceeding for judicial review under [the Wisconsin Equal Access to Justice Act, codified at] sec. 227.485(6).' DILHR argues that by categorizing an appeal of LIRC's determination as an action by a state agency, we render superfluous the second clause of the statute. We are not certain this is the case although, to be -33- candid, we cannot hypothesize a proceeding for judicial review under sec. 227.485(6), Stats., that would not also be an action by a state agency. Nonetheless, we hold the language 'any action by a state agency' to be clear on its face, and applicable here, especially given the remedial nature of the statute.") (emphasis added). Thus, in the case law throughout the country where substantially similar - if not identical - statutory language in state Equal Access to Justice Acts has been construed, the courts have uniformly held that "judicial review" limits the scope of the respective statutes to actions seeking court review of prior administrative and other governmental determinations. Simply put, had the New York legislature intended for the term "judicial review" to have a far more expansive meaning than its common usage in the law, as stated by the Supreme Court of the United States, legal dictionaries, New York statutes, and the myriad cases from other states construing the term in a way wholly consistent with its common usage and in the context of their respective Equal Access to Justice Acts, it would have clearly stated as much either in the text of the statute or certainly in the legislative history. The fact that the legislative history not only fails to make any assertions which even remotely support such a broad and expansive reading of "judicial review," but also, where the legislative history does speak to the issue, clearly limits the scope of Article 86 to actions and proceedings which seek judicial review of prior administrative and other -34- governmental determinations, confirms what the statute already provides in its express language: that it is limited to "actions and proceedings brought to seek judicial review of an action of the state." CPLR 8602(a). There can thus be no question that the Legislature intended to limit the scope of Article 86 to actions challenging prior state administrative, legislative or other governmental actions. G. The Legislature's Use of the Term "Judicial Review" in the Prior Iterations of Article 86 Confirms that the Term Is Limited to Article 78 Proceedings and Actions for Declaratory Judgment and/or Injunctive Relief Challenging Agency and Other State Actions. Lest there be any doubt as to what exactly the Legislature meant by its use of the term "judicial review" in Article 86, the Court need only look to the evolution of the term in the Legislature's prior iterations of the bill. Specifically, in both the 1982 and 1986 versions of the State EAJA, the Legislature, just like it did with Article 86, limited the scope of the statute to cases seeking "judicial review." Specifically, as pointed out by ELB in her brief, the 1982 bill used the phrase "judicial review" and defined the term as "an appeal of an agency action," a term which was further defined as "an action by a state agency [that] compels a regulated entity to act, enjoins a regulated entity from acting[,] or fines a regulated entity." (A-495). Similarly, in the 1986 bill (i.e., the State EAJA bill that immediately preceded the 1989 bill), the Legislature again limited the term -35- "judicial review" to the review of an "agency action" as that term was defined in earlier bills. ELB Brief, at 56 (citing A-534). Article 86, like its predecessor bills, again chose to use the term "judicial review" to limit the scope and applicability of the statute and, like the 1982 and 1986 bills specifically, limited a qualified "action" to "actions and proceedings brought to seek judicial review of an action of the state," which expressly included state agencies and its officials. See, CPLR 8602(a) and (g). As if the consistent use of the limiting term "judicial review" wasn't clear enough, a review of the debate transcript for the 1989 bill, as produced by ELB in her brief, reveals the bill sponsor's take on the subject. There, Assemblyman Robin Schimminger noted that the 1989 bill was substantially the same as the prior bills except that it "has been opened up a bit to include not only small businesses, but now also not-for-profit corporations and some individuals." (Supplement to Brief of Intervenor-Respondent Emmelyn Logan-Baldwin ("S")) (S-12). According to the Assemblyman, "[i]t is a matter of evolution of the bill" such that each iteration thereof sought to have an eligible party provided the same "kind of recovery." Id. In making such statements, the Assemblyman, who sponsored not only the final EAJA bill which became Article 86, but also the prior EAJA bills as well, expressed the clear intent that all of the bills are related and that the object of each bill (fees in actions brought to seek judicial review) is the same. -36- It should then be no surprise that, in his opening statement to his colleagues in that same debate transcript, Assemblyman Schimminger stated that the statute's purpose is to "allow[] both small businesses and not-for-profit corporations, and individuals of low to moderate wealth, the opportunity to fight back when it occurs in their experience that there is overzealous action on the part of a State agency." (S-2) (emphasis added). The "overzealous[ness]" referred to is yet another clear indication that Article 86 was designed to protect small businesses and individuals from arbitrary agency enforcement actions (i.e., judicial review), a point which he felt compelled to make in his opening remarks discussing the purpose of the bill. Of course, just because Article 86 as adopted contained no specific definition of "judicial review" does not mean that the term thereby became without any definition whatsoever, or made meaningless, or imbued with an entirely new definition it never had before. While the statute as enacted may have gone beyond the narrowing definition of judicial review contained in earlier proposals, there is no suggestion in the legislative history that the definition of "judicial review" was also intended to depart so much from its well-established meaning as to encompass proceedings never before considered to constitute "judicial review" at all. Thus, as the definition of "judicial review" in the 1982 and 1986 bills is wholly consistent with the legal term of art that is recognized by the Supreme Court, Black's Law Dictionary, and other statutes and case law throughout the country and this State, it -37- can be presumed that if the Legislature sought to deviate from that term of art and the prior definitions in the earlier bills by significantly broadening the scope of the term "judicial review," it would have expressly done so in Article 86. See, e.g., Wainwright, 237 N.Y. at 412, Duggins, 3 N.Y.3d at 528, 788 N.Y.S.2d at 641, and Reed, 265 A.D.2d at 66, 705 N.Y.S.2d at 600 (all holding that the legislature is presumed to understand the legal significance of the words chosen and, absent a clearly contrary intent provided for in the legislation, such words are to be construed in accordance with their common usage in the law). The fact that it did not leaves the Court with only one reasonable conclusion: the Legislature intended that the term "judicial review," and thus the scope of Article 86, to be limited to those actions seeking court review of a prior agency or state government action. For the reasons, the Court should find that the Legislature intended that the scope of Article 86 be limited to Article 78 proceedings and actions for declaratory judgment and/or injunctive relief challenging agency and other state action. II. ARTICLE 86 DOES NOT APPLY TO ACTIONS SEEKING PRIMARILY COMPENSATORY DAMAGES. In a similar vein, ELB and Plaintiff argue that the spirit and the purpose of Article 86 support a finding that the statute, notwithstanding its clear limitation to actions "brought to seek judicial review of an action of the state" (CPLR 8602(a)), allows for the award of fees in an action seeking compensatory damages against -38- the State as employer. To make such an argument, ELB relies entirely on acontextual statements from the legislative history and this Court's holding in Wittlinger v. Wing, 99 N.Y.2d 425, 757 N.Y.S.2d 234 (2003), none of which stand for the proposition stated by ELB. Simply put, such "reliance on out-of-context snippets from the legislative history do[es] not support [ELB's and Plaintiff's] strained construction of the statute." ELB Brief, at 57. A. The Case Law Cited by ELB and Plaintiff Does Not Support the Proposition that Attorneys' Fees Are Recoverable in an Action Seeking Compensatory Damages. ELB's reliance on this Court's holding in Wittlinger is entirely misplaced. There, while the Court does speak about "potential damage awards," it does so in the context of an Article 78 proceeding and the limited damage awards that are available thereunder. See generally, 99 N.Y.2d 425, 757 N.Y.S.2d 234. Thus, where a plaintiff pursues and prevails on a claim seeking judicial review of prior state action (and thus subject to Article 86), that plaintiff may be awarded fees and costs because the potential damage awards are so low that such a plaintiff cannot either afford to bring the claim or entice attorneys to take it on a contingency fee basis.9 Moreover, if Wittlinger stood for anything broader than such a proposition, 9 In contrast to Wittlinger, Plaintiff here originally sought $15 million in compensatory damages against the State Police Defendants and, as a result, was able to retain not one, but two attorneys, to prosecute her case. This is hardly the type of case where the "potential damage award" was so low, like in an Article 78 case, that the plaintiff could not induce an attorney to take her case. -39- as ELB now contends, the Court would not have invoked the image of a plaintiff "fight[ing] City Hall" (id. at 431, 757 N.Y.S.2d at 237) - popular vernacular for regulatory, administrative, and like excess historically subject to "judicial review." Plaintiff's reliance on Matter of Alfonso v. Fernandez, 167 Misc.2d 793, 635 N.Y.S.2d 932 (Richmond Co. Sup. Ct. 1995) for the proposition that Article 86 applies to civil rights cases seeking compensatory damages is similarly misplaced. Leaving aside the fact that the Fernandez court makes the cited statement in dicta relating to the question of the timeliness of a fee application under 42 U.S.C. § 1983 (holding only that Article 86 was "sufficiently analogous" to 42 U.S.C. § 1988(b) so as to borrow its time limitations for making a fee application) and is a trial court case never cited for the proposition relied upon by Plaintiff, the Court should reject the legally unsound and in any event nebulous observation made in Fernandez that the EAJA "certainly can and does include actions brought to enforce one's civil rights, or to remedy a violation thereof, against the State," for the additional reason that respondents' interpretation ignores not one, but two limiting instructions in Article 86. First, if the court was indicating that Article 86 would apply to the type of tort actions that give rise to liability under 42 U.S.C. 1983, then it ignored the fact that the Court of Claims exclusion excepts those very For the Plaintiff to claim otherwise (Kimmel Brief at 24), especially in the face of the $700,000- plus judgment she in fact obtained, simply ignores reality. For this reason alone, the Court should reject ELB's and Plaintiff's claim for fees. -40- types of cases from the statute's purview. CPLR 8602(a). Second, if Fernandez stands for the proposition that Plaintiff claims it does, then the court, like the Fourth Department, ignored the limiting definition of "action" in Article 86 which restricts qualifying claims to those which are "brought to seek judicial review of state action." Id. Such a cavalier view of the law hardly supports a finding, as claimed by Plaintiff, that Article 86 applies generally to actions for violations of one's civil rights, when such clear expressions of statutory intent, as shown in the very words chosen by the Legislature, express the contrary. What the case law construing Article 86 has made clear is that the statute is limited in scope to those actions seeking judicial review of prior state government action, as evidenced by the over 70 published cases addressing the question of a fee award under Article 86 since its enactment. See, Kimmel, supra, 76 A.D.3d at 199, 906 N.Y.S.2d at 411. (A-1062). It is telling that neither Plaintiff, ELB, nor the Fourth Department cite to a single case, in the twenty five years that Article 86 has been in existence, where the State EAJA has been applied to an action or proceeding brought to do anything other than seek judicial review of prior agency or other government action. The reason for this is self-evident: the courts of this State, much like the legislators who drafted and ultimately passed the bill, view the language "brought to seek judicial review of an action of the state" as clearly -41- limited to Article 78 proceedings and actions for declaratory or injunctive relief brought to challenge prior agency and other governmental overreach. For these reasons, as well as those in the State Police Defendants' principal brief, the Court should find that Article 86 is limited in scope to actions and proceedings seeking judicial review of state action and does not extend to actions seeking primarily compensatory damages for violations of the Human Rights Law. B. Giving Effect to the Phrase "Judicial Review" Does Not Render the Court of Claims Exclusion Meaningless. The Court of Claims exclusion is not, as ELB contends, rendered meaningless by giving effect to the definition of "action" chosen by the Legislature, as this Court is required to do (see, supra, at 3-5), to limit the scope of Article 86 to "actions and proceedings brought to seek judicial review of an action of the state." ELB Brief, at 34-36. Rather, the Legislature, in expressly excluding actions brought in the Court of Claims (i.e., actions seeking compensatory damages against the State (N.Y. Ct. Claims Act § 9, subd 4; Schaffer v. Evans, 57 N.Y.2d 992, 994 (1982)) from the purview of the statute, sent a clear message to those courts which would listen that the statute means exactly what it says: only actions and proceedings brought to seek judicial review, and not those seeking primarily compensatory damages, qualify for a fee award under Article 86. -42- Even if, as ELB contends, giving effect to both "judicial review" and the Court of Claims exclusion adds some level of redundancy to the statute, that alone does not permit the Court to disregard or expand the limiting phrase "judicial review" far beyond its clear meaning in the law generally and this statute specifically. This is because, as has been noted in several cases, the legislature "'sometimes drafts provisions that appear duplicative of others - simply in Macbeth's words, 'to make assurance double sure.'" Joffe v. Google, Inc., 746 F.3d 920, 926 (9th Cir. 2013) (quoting Shook v. District Court of Columbia Financial Responsibility and Management Assistance Authority, 132 F.3d 775, 782, 328 U.S. App. D.C. 74 (D.C. Cir. 1998)); see also, Marx v. General Revenue Corp., 133 S. Ct. 1166, 1177 (2013) (noting that "redundancy is 'hardly unusual' in statutes addressing costs" and does not alone violate any canons of statutory construction). In such situations, the Court must give effect to the will of the legislature, as evinced by the language used in the statute and the legislative history, and construe the statute in accordance therewith, no matter any claimed redundancy. See, e.g., New York State Department of Mental Hygiene v. State Division of Human Rights, 103 A.D.2d 546, 550, 481 N.Y.S.2d 371, 375 (2d Dept. 1984) ("It is axiomatic that 'a thing which is within the letter of the statute is not within the statute, unless it be within the intention of the makers. The writers of laws do not always express their intention perfectly, but either exceed it or fall short of it, so that judges are to -43- collect it from probable or rational interpretation.'") (quoting Riggs v. Palmer, 115 N.Y. 506, 509 (1889)). Applying these rules of statutory construction, and in accordance with the requirement of strict construction of a statute like Article 86 that is in derogation of the common law (see, e.g., Peck v. New York State Division of Housing and Community Renewal, 188 A.D.2d 327, 327, 590 N.Y.S.2d 498, 498 (1st Dept. 1992)), there is only one reasonable interpretation of the Court of Claims exclusion: that it complements (not, as ELB seems to claim, contradicts10) the limiting phrase "judicial review" and precludes from the statute's purview actions seeking compensatory damages against the State. The Court should therefore reverse the Appellate Division and find, as a matter of law, that Article 86 does not apply to actions seeking compensatory damages against the State of New York. 10 This is yet another reason to reject ELB's interpretation of the statute, as one of the bedrock canons of statutory construction requires the Court to harmonize all provisions in a statute, rather than interpret such provisions in conflict with one another. See, e.g., State of N.Y. ex rel. Harkavy v. Consilvio, 29 A.D.3d 221, 225, 812 N.Y.S.2d 496, 500 (1st Dept. 2006) (citing McKinney's Cons. Laws of NY, Book 1, Statutes §§ 97, 98), reversed on other grounds, State of N.Y. ex rel. Harkavy v. Consilvio, 34 A.D.3d 67, 819 N.Y.S.2d 499 (1st Dept. 2006). The "judicial review" and "court of claims" language in the statute is readily harmonized by a holding that Article 86, as the legislative history so clearly indicates, does not extend to actions seeking primarily compensatory damages (regardless of where brought). -44- C. The Legislative History Does Not Support the Claim that Article 86 Applies to Actions Seeking Compensatory Damages. ELB next claims that the sponsor of Article 86, Assemblyman Schimminger, evinced an intent to include actions seeking primarily compensatory damages (as opposed to those brought to seek judicial review of state action) within the purview of the statute by noting, in a letter to the Governor in support of the bill, that the fact that a plaintiff/petitioner may have entered into a contingency fee arrangement with his/her attorney does not affect the fee award provided. ELB Brief, at 38. Such an argument, however, ignores the fact that plaintiffs/petitioners can and often do recover damages in Article 78 and other similar actions. Specifically, pursuant to CPLR 7806, a petitioner in an Article 78 proceeding is entitled, as part of any judgment, to, among other things, "[a]ny … damages … incidental to the primary relief sought." Such damages, depending on the case, could be a either negligible or, in unique cases, millions of dollars. See, e.g., Gross v. Perales, 72 N.Y.2d 231, 235-236, 532 N.Y.S.2d 68, 70-71 (1988) (awarding $20 million in damages in an Article 78 proceeding on the grounds that the damages were incidental to the primary relief sought). It should therefore be no surprise then that Assemblyman Schimminger made a passing reference to contingency fee arrangements in his remarks, as it amounts to nothing more than a recognition that individuals of limited means (who -45- Article 86 is designed to protect in certain actions) often cannot pay an attorney's normal hourly rate and may need to enter into contingency fee arrangements. Given the availability of damages in Article 78 and other like proceedings and actions, it is entirely plausible that attorneys would at least occasionally take cases seeking judicial review of prior state action, particularly less complex ones, on a contingency fee basis. Reading Assemblyman Schimminger's statement any other way would make it impossible to reconcile it with his following statements in the legislative history: Stating, in his September 21, 1989 letter to the Governor, that the purpose of the bill was to protect litigants from "unfair enforcement actions." (A-542) (emphasis added). Stating, in that same letter: "Too often, people have no choice but to concede to an action taken against them by a State agency, even if convinced of their innocence, because of the prohibitive cost of contesting such actions." (A-542) (emphasis added). Stating, in that same letter, that the cost to the State of Article 86 would not be significant because "if State agencies are using their regulatory powers responsibly and judiciously, the fiscal impact of Assembly bill 3313-B would be negligible." (A- 542-543) (emphasis added). Stating, in his opening on the debate over the bill, that the purpose of the EAJA is to "allow both small businesses and not-for-profit corporations, -46- and individuals of low to moderate wealth, the opportunity to fight back when it occurs in their experience that there is overzealousness action on the part of a State agency." (S-2) (emphasis added). Such statements confirm that the sponsor of the bill firmly believed that Article 86 would be limited in scope to those "actions and proceedings brought to seek judicial review of an action of the state" - exactly what the language he and other legislators chose. Moreover, the statements by the Governor, in approving the bill, confirm that he too understood the limited scope of the statute by stating that he "believe[s] that a program providing recompense for the cost of correcting official error is highly desirable as long as it is limited to helping those who need assistance, it does not deter State agencies from pursuing legitimate goals and it contains adequate restraints on the amount of fees awarded." (A-540) (emphasis added). These and other similar statements, which are sprinkled throughout the legislative history (see, infra and State Police Defendants' principal brief), are clear and indicate, without question, that Article 86 does not extend to actions seeking compensatory damages as opposed to judicial review. It does not end there. In a letter in support of the bill, Eileen R. Kaufman, Associate Professor of Law and Chair of the Committee on Public Interest Law for the New York State Bar Association, made numerous statements indicating that -47- she believed that Article 86 was limited to actions seeking judicial review of agency action. For example, she noted the following: "The EAJA authorizes the award of reasonable attorney's fees to the prevailing party in actions against the state when the state's position lacks substantial justification. It thus provides a mechanism for overcoming the economic barriers that frequently prevent poor persons from contesting erroneous agency actions." (S-14) (emphasis added). She then stated: "While the EAJA does not remedy the overall problem of unmet legal needs, it constitutes a critical step toward opening the courthouse doors to those who otherwise would be unable to obtain judicial review." (S-15) (emphasis added). Obviously, as an "associate professor of law," Ms. Kaufman understands the legal implications of the term "judicial review."11 Such contemporaneous interpretations of the statute, much like what was stated in the Budget Report on Bills that ELB would, for obvious reasons, like this Court to disregard (ELB Brief, at 60), 12 are "entitled to considerable weight in 11 Of course, simply because another organ of the New York State Bar Association said that the 'bill applied 'only to non-Court of Claims actions'" (ELB Brief at 53 (quoting S-15 (Bill Jacket, L. 1989, ch 770)) does not mean that it applies to all non-Court of Claims actions irrespective of whether "judicial review" was thereby sought. 12 Among other things, the Budget Report on Bills made the following observations and conclusions regarding the scope of Article 86: that (1) "this bill would allow individuals, small businesses, and not-for-profit corporations to seek recoupment of legal fees and expenses when said individuals or entities appeal an unjustifiable ruling of a State agency, board or commission"; (2) the State EAJA "provides a means of redress for individuals, small businesses, and not-for-profit corporations in situations where a State agency, board or commission has given an unfavorable ruling without good cause"; (3) the "bill would allow individuals, small businesses and not-for-profit corporations to be recompensed for legal expenses incurred when -48- discerning legislative intent" and should therefore be considered by the Court. Vatore v. Commissioner of Consumer Affairs of the City of New York, 83 N.Y.2d 645, 651, 612 N.Y.S.2d 357, 360 (1994); see also, Matter of Knight-Ridder Broadcasting, Inc. v. Greenberg, 70 N.Y.2d 151, 158, 518 N.Y.S.2d 595, 599 (1987) ("[W]e have long recognized that a contemporaneous interpretation of a statute is entitled to considerable weight in discerning legislative intent"). With respect to the Budget Report on Bills in particular, numerous cases, from the Court of Appeals down to the intermediate appellate courts, have cited and relied upon the Budget Report on Bills to determine legislative intent. See, e.g., Ruotolo v. State of New York, 83 N.Y.2d 248, 258, 609 N.Y.S.2d 148, 153 (1994) (relying upon Budget Report on Bills to determine legislative intent); see also, Matter of George F. Johnson Memorial Library v. Town Board of Town of Union, 55 A.D.3d 1036, 1039, 865 N.Y.S.2d 727, 730 (3d Dept. 2008) (same). All these statements and conclusions, from Assemblyman Schimminger, the Governor, Ms. Kaufman and the Budget Report on Bills, express a clear understanding on the part of not only the Legislature, but also those professionals challenging a State ruling deemed substantially unjustifiable; (4) the bill "would encourage individuals, small businesses and not-for-profit corporations to seek redress when they feel the State has made a ruling that unjustly affects them; (5) "[u]nder the current law, there is no provision for the recovery of legal costs when disputing a State ruling" which "effectively prevents individuals and entities with limited resources from litigating what they perceive to be an unfair ruling"; and (6) "[m]any, if not most, State agencies make rulings which have the potential to negatively affect individuals, small businesses and not-for-profit corporations." (A- 544-546 (emphasis added)). -49- who were tasked to review and construe Article 86 at the time it was written, to limit the statute's scope to actions brought to seek judicial review of state action (i.e., Article 78 proceedings and actions for declaratory judgment and/or injunctive relief). In an attempt to get around this clear evidence of legislative intent, ELB resorts to ambiguous, confusing and, at times, completely nonsensical (or at least ill-transcribed) statements in a colloquy between the bill sponsor, Assemblyman Schimminger, and other members of the Legislature during the debate on the bill. ELB Brief, at 48-51. However, given the complete lack of clarity in the statements cited and relied upon by ELB, this Court's prior warnings that averments made during a legislative debate should be "cautiously used" is particularly apt. Majewski, 91 N.Y.2d 577 at 586, 673 N.Y.S.2d 966 at 982 (quoting United States v. Trans-Missouri Freight Association, 166 U.S. 290, 318, 17 S. Ct. 540, 550 (1897)). More specifically, as explained by this Court, "[i]t is established law … that the statements and opinions of legislators uttered in the debates are not competent aids to the court in ascertaining the meaning of statutes." Woollcott v. Shubert, 217 N.Y. 212, 221 (1916). Further, while they "'may be accorded some weight in the absence of more definitive manifestations of legislative purpose', such indicators of legislative intent must be cautiously used" because "'it is impossible to determine with certainty what construction was put upon an act by -50- the members of a legislative body that passed it by resorting to the speeches of individual members thereof.'" Majewski, 91 N.Y.2d 577 at 586, 673 N.Y.S.2d at 982 (quoting Trans-Missouri Freight Association, 166 U.S. 290 at 318, 17 S. Ct. 540 at 555). Here, of course, there are indeed "more definitive manifestations of legislative purpose," in the form of the actual language used (i.e., the definition limiting the statute to actions seeking judicial review of state action), the sponsor memorandum, and contemporaneous interpretations of the legislation, all of which support the view expressed by the State Police Defendants, the trial court, and the Appellate Division dissent that Article 86 is limited in scope to actions seeking judicial review of prior state agency and other government action. Even if, however, the utterances made during the debate, as confusing as they are, can somehow be found to support ELB's claims, the law is clear that such stray remarks do not trump express language used in the statute when determining legislative intent. See, e.g., Frank v. Meadowlakes Development Corp., 6 N.Y.3d 687, 692, 816 N.Y.S.2d 715, 718 (2006) ("The legislative intent is to be ascertained from the words and language used, and the statutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction"). -51- Finally, nowhere do respondents come to grips with the wholesale absence from the Legislative history of any intention to do what they claim the Legislature did: (1) create a favored class of Human Rights Law plaintiffs (State employees) who enjoy a benefit (fee shifting) withheld from other such plaintiffs, (2) otherwise effect a generalized fee-shifting to plaintiffs able to assert claims for monetary damages against the State whenever "justice" so requires, or (3) shift the risk of certain contingent fee litigation against the State to the State itself.13 Had those been intended objects of Article 86, such an intention would certainly have found expression somewhere in the legislative history. Moreover, had such purposes been what the Legislature intended, they would be just as germane to cases brought in the Court of Claims, yet the Legislature nonetheless expressly excepted such cases from Article 86 - without explaining why they would be different insofar as any of these supposed statutory objectives are concerned. The most obvious explanation for that, of course, is that they were the furthest thing from the Legislature's mind when it adopted Article 86. For these reasons, as well as those articulated in the State Police Defendants' principal brief, the Court should reject ELB's and Kimmel's argument that the legislative history supports their and the Fourth Department's position that Article 13 Nor does the legislative history suggest that Article 86 was intended to help low income residents "get the legal assistance they needed to help evaluate the merit of their claims." Kimmel Brief at 15. -52- 86 applies to actions brought under the Human Rights Law seeking compensatory damages. III. A COURT IS NOT PERMITTED TO SUBSTITUTE ITS OWN JUDGMENT AS TO WHAT IT BELIEVES TO BE QUITABLE FOR THE WILL OF THE LEGISLATURE IN ADOPTING ARTICLE 86. In a last-ditch attempt to convince this Court that Article 86 does not mean what it says and extends beyond actions "brought to seek judicial review" to the case at bar, ELB and Plaintiff resort to patently irrelevant allegations, extra-record assertions of "fact," and inflammatory statements regarding the supposed litigation conduct of the State Police Defendants (ELB Brief, at 7-20, 38; Kimmel Brief, at 3-5, 9-10, 22-24, 25, 32-33) to try to convince the Court to do exactly what the dissent at the Fourth Department recognized the majority was impermissibly doing: substituting its own judgment as to what is equitable in this particular case for the will of the Legislature in drafting the statute. (A-1062, 1064). Initially, it must be noted that, contrary to the myriad accusations made by ELB and Plaintiff throughout their respective briefs, the State Police Defendants did not systematically engage in either dilatory or obstructionist litigation tactics. Rather, the State Police Defendants were successful in dismissing all claims brought by Plaintiff against the individual defendants and all claims, with the exception of the claim for violations of the Human Rights Law, against the State -53- Police Defendants; indeed, Kimmel's brief itself comprehensively catalogs all the relief she asked for but did not get, thus "ma[king] the case one of economic damage losses" only (i.e., not "judicial review"). Kimmel Brief at 9-10, 5. That the State Police Defendants were required to engage in substantial motion and appellate practice before getting the bulk of Plaintiffs' claims dismissed merely begs the question of whether those claims should have been alleged in the first instance; surely, that Plaintiff alleged claims ultimately found to be meritless on motion is no reflection of "unnecessary" litigation by the State Police Defendants. Furthermore, the State Police Defendants, notwithstanding the unsubstantiated and inflammatory accusations made in ELB's and Kimmel's briefs, were proven absolutely correct in their decision to not settle the case in the face of Kimmel's demand of $1.5 million, as they, after having the Fourth Department strike their answers for withholding privileged documents with the imprimatur of the trial court (A-295 ("the court … agreed … that they were entitled to raise the attorney-client and attorney work-product privileges")) and later defending a trial on damages only, convinced a jury that Kimmel's damages were but half of Plaintiff's settlement demand (A-135-137). Plaintiffs and ELB similarly fail to acknowledge - let alone give credit for - the State Police defendants' agreement to pay the underlying judgment herein so as to narrow the issues now before this Court to one. It is therefore clear that the State Police Defendants, who also agreed -54- to stipulate to the amount of attorneys' fee recoverable if Article 86 applied and otherwise significantly narrowed the issues before the trial court (A-1041-1047), acted in good faith in defending against Plaintiff's claims. ELB's election to take the State Police Defendants to task for what she claims to be their overzealous litigation is particularly curious given the reasons why she had to intervene for purposes of making her fee application and why she therefore now has her own counsel on this appeal. Specifically, and contrary to the allegations made throughout ELB's brief that the State Police Defendants were somehow responsible for her and Plaintiff's clearly excessive attorneys' fees of approximately $1 million (ELB Brief, at 7), the reality is that such fees were, in large part, self-caused, particularly after the State Police Defendants' answer was stricken all the way back in 2001 so as to thereafter leave only damages to be determined (A-296). Despite having a default on liability in hand and only damages to prove at trial, intervenor ELB orchestrated a several-year discovery campaign that consisted of 18 depositions of liability witnesses and numerous motions and appeals on subjects that were marginally relevant - if relevant at all - which ultimately led to (1) numerous orders from the trial court questioning the need for and warning her to reign in such discovery (State Police Defendants' -55- Further Supplemental Appendix ("FSA"), at 29, 31, 121-124, 194-196, 262-266)14; (2) an order from the trial court sanctioning ELB for frivolous motion practice (id. at FSA-205-261)15; and (3) Plaintiff ultimately terminating ELB as her counsel (id. at FSA-267-283). Indeed, so outrageous and unnecessarily litigious was ELB's discovery "strategy" that Plaintiff Kimmel herself was compelled to submit a sworn affidavit to the trial court in connection with her termination of ELB detailing numerous actions on the part of ELB that were dilatory, obstructionist and designed simply to create an even more adversarial and drawn out case that had already existed (see, e.g., FSA-268-270, 272, 275, 278-281 (Kimmel Affidavit, at ¶¶ 7, 8, 12, 20, 30, 38, 43, 45, 47, 49, 50, 52)), all of which led Plaintiff to the conclusion that her "case would have been settled long ago if Ms. Logan-Baldwin had not been on the case and continued her tactics against the defendants." (FSA- 281) (Kimmel Affidavit, at ¶ 49). 14 Given that ELB and Kimmel devote an inordinate amount of space in their respective briefs to ad hominem attacks on the State Police Defendants in an attempt to convince this Court to ignore the express language in and the legislative history of Article 86 limiting the scope of the statute to actions seeking judicial review, the State Police Defendants are submitting in further supplementation of their appendix, certain documents, all in the record on appeal from the Fourth Department's March 28, 2014 order and therefore properly before this Court, to rebut those irrelevant, inflammatory accusations and provide this Court with a clearer picture of the procedural history of this case. It should also be noted that ELB, in her supplemental appendix, has already included certain documents from the record on appeal on the 2014 decision. See, Supplemental Appendix of Intervenor-Respondent Emmelyn Logan-Baldwin pp. SA-47-78. 15 The "acrimonious nature of the litigation" that the Fourth Department was obliged to note (Kimmel v. State, 38 A.D.3d 1155, 1157, 831 N.Y.S.2d 629, 631 (4th Dept. 2007)) was thus, at the very least, a two-way street. -56- Simply put, it was this conduct, not anything done by the State Police Defendants, which resulted in a case that, as of 2001, needed only a damages trial being delayed 7 full years until 2008. The fees incurred as a result of such needless and vexatious litigation are staggering and were previously analyzed and disputed by the State Police Defendants in the total amount of over $700,000. (FSA-1-27) (counsel's analysis of the excessive and outrageous conduct that resulted in such fees). Even if, however, this Court were still to accept ELB's and Plaintiff's contentions, in the face of this much fuller and clearer record, that the State Police Defendants' conduct in this litigation was somehow relevant, such is not a basis to award attorneys' fees under Article 86 in the absence of an "action or proceeding brought to seek judicial review of an action of the state." CPLR 8602(a). As noted by the Fourth Department dissent, quoting this Court, a court construing a statute "must 'apply the will of the Legislature and not [its] own perception of what might be equitable'." Kimmel, 76 A.D.3d 188 at 201, 906 N.Y.S.2d at 41 (quoting Matter of Sutka v. Connors, 73 N.Y.2d 395, 403, 541 N.Y.S.2d 191, 194 (1989)). As such, instead of sending a "message" (ELB Brief, at 45-46) that will significantly and impermissibly broaden the scope of Article 86 to virtually any case against the State where a plaintiff's own version of "justice" so demands (ELB Brief, at 54), this Court should apply the will of the Legislature, as unambiguously provided in -57- the express language chosen and the legislative history, and limit Article 86's scope to actions seeking "judicial review." For these reasons, as well as those in the State Police Defendants' principal brief, this Court should reject Plaintiff's and ELB's attempts to broaden the scope of Article 86 and hold that Article 86, as a matter of law, applies only to those "actions and proceedings brought to seek judicial review of state action" - as the statute says - and not an action seeking compensatory damages for violations of the Human Rights Law. CONCLUSION The language the Legislature chose to limit the universe of actions within the ambit of Article 86 to actions "seek[ing] judicial review" must be given meaning; if given the meaning ascribed to it by Plaintiff and ELB (i.e., all actions brought "in the court system"), however, then it has no meaning at all. This Court may not so readily read words out of the statute, and if the words "judicial review" are to mean anything, there is only one meaning they can have: review by the judiciary of administrative or legislative acts. The Court should therefore (1) reverse the Fourth Department's finding that Article 86 applies to "any civil action" against the state, regardless of whether judicial review is sought; and (2) dismiss Plaintiff and ELB's fee applications on the grounds that Plaintiff's claim for compensatory damages under the Human Rights Law is outside the scope of Article 86. DATED: Buffalo, New York March 13,2015 1120454v8 JAECKLE FLEISCHMANN & MUGEL, LLP By: eQQ9 M Mitchell J. Banas, ~~ Bradley A. Hoppe, Esq. Attorneys for Appellants-Defendants State of New York and New York State Division of State Police Avant Building - Suite 900 200 Delaware Avenue Buffalo, New York 14202-2107 (716) 856-0600 -58-