Betty L. Kimmel, Respondent,v.State of New York et al., Appellants.--------------------------------Emmelyn Logan-Baldwin, Interested Party-Respondent.BriefN.Y.June 1, 2016APL-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. SUPPLEMENTAL SUBMISSION A. VINCENT BUZARD, ESQ. HARRIS BEACH PLLC Attorneys for Plaintiff-Respondent and Intervenor-Respondent 99 Garnsey Road Pittsford, New York 14534 Tel.: (585) 419-8800 Fax: (585) 419-8801 July 28, 2016 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... ii INTRODUCTION ..................................................................................................... 1 I. Unlike Article 86, the EAJA Statutes in Other States Expressly Limit Their Applicability to Cases Involving Judicial Review of Administrative Determinations ........................................................... 1 II. All of the Words in Art. 86 Are Given Meaning if the Second Definition of “Judicial Review” Recognized by the State Police Is Used ............................................................................................................... 4 III. The State Police Fail to Refute That the New York Court of Appeals Has Used the Term “Judicial Review” to Refer to a Civil Rights Lawsuit ............................................................................................................. 8 IV. The Cases Cited by the State Police Establish Only That the Meaning of “Judicial Review” Depends on Context .............................................................. 11 ii TABLE OF AUTHORITIES Dfdt. Reply Page Brief Cases B&H Medical, LLC v United States, 116 Fed Cl 671 [2014] ................................................................ 12-13 14 Bakhtriger v Elwood, 360 F3d 414 [3d Cir 2004], superseded by statute on other grounds as stated in Kamara v Attorney Gen. of U.S., 420 F3d 202 [3d Cir 2005] .............................................................. 12 13 Bird v McGoldrick, 277 NY 492 [1938] ............................................... 4 4 Cardiosom, L.L.C. v United States, 115 Fed Cl 761 [2014] ..................................................................... 13 14 Cobra Roofing Serv., Inc. v Dept. of Labor & Indus., 122 Wash App 402, 97 P3d 17 [2004], affd in part 157 Wash 2d 90, 135 P3d 913 [2006] ............................................... 2 29-31 Dept. of Indus., Labor & Human Relations v Labor & Indus. Review Commn., 155 Wis 2d 256, 456 NW2d 162 [1990] ........................................... 3 32 Godfrey v Chief of Police of Wellesley, 35 Mass App Ct 42, 616 NE2d 485 [1993] ..................................... 12 13 Greer v Wing, 95 NY2d 676 [2001] ............................................. 10, 11 25 I.N.S. v St. Cyr, 533 US 289 [2001] .................................................... 12 13, 14 Joffe v Google, Inc., 746 F3d 920 [9th Cir 2013] ................................. 6 42 Legg v Eastman Kodak, 248 AD2d 936 [4th Dept 1998] .................................................................................. 9 19 Majewski v Broadalbin-Perth Cent. Sch. Dist., 91 NY2d 577 [1998] .......................................................................... 4 28,49,50 iii Marbury v Madison, 5 US 137 [1803] ................................................ 11 12 Marine Midland Bank, N.A. v New York State Div. of Human Rights, 75 NY2d 240 [1989], superseded by statute on other grounds as stated in Freudenthal v County of Nassau, 99 NY2d 285 [2003] .............................................................. 9, 10, 11 19, 20 Marx v Gen. Revenue Corp., 133 S Ct 1166 [2013] ............................. 7 42 Matter of City of Syracuse Indus. Dev. Agency, 32 AD3d 1332 [4th Dept 2006] [Hurlbutt, J.P., dissenting] ............................................................... 13 14 Matter of New York City Dept. of Envtl. Protection v New York City Civ. Serv. Commn., 78 NY2d 318 [1991] ........................................................................ 13 19 Matter of OnBank & Trust Co., 90 NY2d 725 [1997] .......................... 4 28 Medcenter One v N. Dakota State Bd. of Pharm., 1997 ND 54, 561 NW2d 634 [1997] ................................................. 2 32 New Pueblo Constructors, Inc. v State, 144 Ariz 95, 696 P2d 185 [1985] ...................................................... 2 31 New York State Dept. of Mental Hygiene v State Div. of Human Rights, 103 AD2d 546 [2d Dept. 1984], affd 66 NY2d 752 [1985] ....................................... 7 42 Pan Am. World Airways, Inc. v New York State Human Rights Appeal Bd., 61 NY2d 542 [1984] ............................................................. ……8-11 17-20, 26 Rangolan v County of Nassau, 96 NY2d 42 [2001] ............................. 4 27 Riggs v Palmer, 115 NY 506 [1889] .................................................... 8 43 Rosner v Metro. Prop. & Liab. Ins. Co., 96 NY2d 475 [2001] .......................................................................... 4 11 Shook v Dist. Ct. of Columbia Fin. Responsibility & Mgt. Assistance Auth., 132 F3d 775 [DC Cir 1998] ...................... 6-7 42 iv State Bd. of Registration for Healing Arts v Elliott, 387 SW2d 489 [Mo 1965] ................................................... 12 13 State v LaFrance, 124 NH 171, 471 A2d 340 [1983] ........................ 11 12 Stigger v Mann, 263 SW3d 721 [Mo Ct App WD 2008] ...................................................................... 2 32 Stoike v First Natl. Bank of City of New York, 290 NY 195 [1943] ............................................................................ 4 4 Statutes C.P.L.R. § 8602(a) ........................................................................ 10, 14 Executive Law § 298..................................................................... 10, 13 New York Civil Service Law § 213(a) ............................................... 13 Sec. 227.485(6) of the Wisconsin Statutes ........................................... 3 Rules Uniform Rules for the Trial Courts § 202.57(a) ................................. 13 INTRODUCTION This Supplemental Response by Plaintiff-Respondent Betty Kimmel and Intervenor-Respondent Emmelyn S. Logan-Baldwin (Kimmel/ELB) is necessary because the Defendants-Appellants cite more than 50 cases in their Reply Brief that were not cited in their original Brief, a quantity that exceeds the number of cases cited in their principal Brief. Kimmel/ELB was thus deprived of the opportunity to distinguish these cases, and meaningfully discussing such a large number of decisions during oral argument would be impossible. Kimmel/ELB therefore requests that the Court consider this Supplemental Response. In the interest of brevity, some cases are not addressed. The attached Table of Cases identifies the pages where the cases are cited in this Supplemental Response and where the same cases were cited in the State Police Reply Brief. I. Unlike Article 86, the BAJA Statutes in Other States Expressly Limit Their Applicability to Cases Involving Judicial Review of Administrative Determinations. For the first time in this appeal, the State Police relies on cases from outside New York construing the BAJA statutes from those states to argue that New York should follow their analyses. However, the cases cited at pages 29-32 of the State Police Reply Brief involve statutory language which limits the payment of legal fees to lawsuits involving administrative determinations. There is no such language in New York's BAJA. Therefore, those decisions not only fail to support 1 the argument of the State Police, but they demonstrate that since the New York Legislature did not include language limiting Art. 86 to challenges to administrative determinations as adopted in other states, the Legislature did not intend any such limitation. For instance, page 29 of the Reply Brief discusses a Washington case, Cobra Roofing Serv., Inc. v Dept. of Labor & Indus. (122 Wash App 402, 97 P3d 17 [2004], affd in part 157 Wash 2d 90, 135 P3d 913 [2006]). The Washington legislature modified "judicial review" with the term "agency action," thereby limiting the scope of the statute to review of administrative actions. In New Pueblo Constructors, Inc. v State (144 Ariz 95, 109, 696 P2d 185, 199 [1985]), cited at page 31, the Arizona statute applied to a "court proceeding to review a state agency decision, ... or any other statute authorizing judicial review of agency decisions." Similarly, in Stigger v Mann (263 SW3d 721, 724-25 [Mo Ct App WD 2008]), cited at page 32, the relevant Missouri statute was limited to "an agency proceeding or civil action arising therefrom." And in Medcenter One v N. Dakota State Bd. of Pharm. (1997 ND 54, ,-r 22, 561 NW2d 634, 640 [1997]), cited at page 32, the North Dakota law applied only "to an administrative or civil judicial proceeding brought ... against an administrative agency for judicial review of a final agency order, or for judicial review pursuant to this chapter of the legality of agency rulemaking action or a rule adopted by an agency" (emphasis added). 2 In Dept. of Indus., Labor & Human Relations v Labor & Indus. Review Commn. (155 Wis 2d 256, 269, 456 NW2d 162, 167 [1990]), cited at page 32, the Wisconsin statute covered "any action by a state agency or in any proceeding for judicial review under sec. 227.485(6)." Chapter 227 of the Wisconsin Statutes is the state's Administrative Procedure Act. A proceeding for judicial review under the AP A would obviously involve a state agency. Notwithstanding the fact that all of the out-of-state cases relied on by the State Police are limited to the judicial review of administrative actions and orders, it claims at page 33 that the other states' laws contain "substantially similar- if not identical- statutory language" to New York's BAJA. In reality, the foreign statutes are all glaringly different from Art. 86 because the foreign statutes are specifically limited to administrative determinations. This difference explains why the State Police, in its principal brief, repeatedly added words like "administrative" and "agency" when paraphrasing or describing Art. 86. The difference between the statutory reach in the foreign cases and the precise language in Art. 86 is instructive. The legislatures that intended to limit ' recovery to judicial review of administrative determinations so provided. No such limitation is provided in the New York statute, and therefore none can be inferred. Clearly, the New York Legislature enacted a statute applicable to "any civil action or proceeding brought to seek judicial review of an action of the state." The 3 Legislature's decisions to use the broad phrase "any civil action" and to omit language limiting the statute's application to a court's review of administrative determinations reflect the Legislature's intent to allow a prevailing party to recover fees for any civil action against the State, other than actions in the Court of Claims. II. All of the Words in Art. 86 Are Given Meaning if the Second Definition of "Judicial Review" Recognized by the State Police Is Used. The State Police cites various cases for the general principle that a statute should not be interpreted so that a portion of it is nullified or rendered superfluous (see Stoike v First Nat/. Bank of City of New York, 290 NY 195, 202 [1943], cited at page 4; Bird v McGoldrick, 277 NY 492 [1938], cited at page 4; Rosner v Metro. Prop. & Liab. Ins. Co., 96 NY2d 475, 479 [2001], cited at page 11; Rangolan v County of Nassau, 96 NY2d 42, 48 [2001], cited at page 27; Majewski v Broadalbin-Perth Cent. Sch. Dist., 91 NY2d 577 [1998], cited at page 28; Matter of OnBank & Trust Co., 90 NY2d 725 [ 1997], cited at page 28). The State Police contends that the rule against construing a statute so as to render a term meaningless or superfluous is violated by construing the term "judicial review" to mean "review in the court system" (see Reply Brief at 26). However, this contention is defeated by the State Police's own construction of the statute because the Reply Brief at page 25 uses the following language to state that 4 "judicial review" serves two purposes, only one of which is to narrow the type of action involved: "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." Thus, the State Police for the first time concede that the phrase "judicial review" has a meaning or purpose other than limiting the type of action. If "judicial review" means review in the court system, the phrase eliminates prior administrative proceedings and therefore serves the second purpose identified by the State Police. There is certainly no rule that a phrase must have two meanings. If "judicial review" is construed to serve the sole purpose of excluding prior administrative proceedings from fee eligibility, then the phrase has a meaning and is not superfluous. Unless that construction is adopted (or the related construction that "judicial review" simply means "review in the courts"), the reference to the Court of Claims becomes superfluous. In other words, if the term "judicial review" limits the statute's application to Art. 78 proceedings and declaratory judgment actions, then the explicit prohibition in the statute against awarding legal fees for actions in the Court of Claims is superfluous because such proceedings and actions cannot be brought in the Court of Claims. All parts of the statute, including 5 "judicial review" and the Court of Claims exception, can be harmonized only if "judicial review" means "review by a court," as advocated by Kimmel/ELB, or if "judicial review" has the related meaning proposed by the State-that it serves to eliminate prior administrative proceedings from fee consideration. These are the only interpretations that avoid impermissibly nullifying part of the statute. At pages 41 and 42 of the Reply Brief, the State Police attempts to escape the problem that the Court of Claims exception becomes superfluous if "judicial review" is construed to drastically limit the statute's application to Art. 78 proceedings and declaratory judgment actions. The State Police contends that even if the Court of Claims exclusion is redundant, redundancy is not determinative. Kimmel/ELB 's argument is not that the clause is redundant, but that the State Police interpretation renders the Court of Claims limitation meaningless and contrary to the rule discussed above. In any event, the State Police does not offer any New York cases that excuse redundancy, and the federal cases are inapplicable. For example, Joffe v Google, Inc. (746 F3d 920 [9th Cir 2013]), cited at page 42 of the Reply Brief, is inapposite because it concerned two duplicative statutory provisions, making the second redundant. It does not stand for the proposition that the language of a single statutory provision can or should be interpreted to make some of its language meaningless (see id. at 926). Shook v Dist. Ct. of Columbia Fin. Responsibility & 6 Mgt. Assistance Auth. (132 F.3d 775 [DC Cir 1998]), cited at page 42, is not concerned with redundancy, but with the maxim expressio unius est exclusio alterius, "the mention of one thing implies the exclusion of another" (id. ). Here, the maxim supports Kimmel/ELB's position because the statute excludes civil actions brought in the Court of Claims, but not civil actions brought in the Supreme Court. Also at page 42, the State Police cites Marx v Gen. Revenue Corp. (133 S Ct 1166 [2013]) for the erroneous proposition that redundancy is not unusual and does not violate any canons of statutory construction. But redundancy violates the canon against surplusage. Marx simply states that "[t]he canon against surplusage is not an absolute rule," and "assists only where a competing interpretation gives effect to every clause and word of a statute" (id. at 1177 [internal quotation marks omitted]). Here, Kimmel/ELB's interpretation (or the State's second definition of "judicial review") does give effect to every word, while the State's interpretation that 'judicial review" limits the statute's application to Art. 78 proceedings and declaratory judgment actions makes the Court of Claims clause superfluous. The New York cases relied on by the State Police on this point are similarly inapposite. At page 42, New York State Dept. of Mental Hygiene v State Div. of Human Rights (103 AD2d 546, 550 [2d Dept 1984], affd 66 NY2d 752 [1985]), at page 42, is used to argue that redundancy should be overlooked because "[t]he 7 writers of laws do not always express their intention perfectly." That case does not involve redundancy, but rather a situation where "a far too literal reading of the relevant statute" would lead to an unintended result (id. ). The same is true of Riggs v Palmer (115 NY 506 [1889]), cited at page 43, where a literal reading of the statute would have allowed a murderer to inherit from his victim. Therefore, the new cases demonstrate that the State's attempt to drastically reduce the scope of Art. 86 would impermissibly render the Court of Claims exception superfluous and redundant. III. The State Police Fail to Refute That the New York Court of Appeals Has Used the Term "Judicial Review" to Refer to a Civil Rights Lawsuit. The Reply Brief cites several new cases in an attempt to counter the applicability of Pan Am. World Airways, Inc. v New York State Human Rights Appeal Bd. (61 NY2d 542, 548 [1984]), where this Court used the phrase "judicial review" to refer to a civil rights claim such as the one involved here. This Court stated that "the remedies of administrative review through the Human Rights Division or judicial review are mutually exclusive" (id. ). Thus, this Court used the phrase 'judicial review" to refer to lawsuits under the Human Rights Law. However, the Court need not decide how Pan Am. applies to this case because, as discussed above, the State Police recognize that the statute uses the term "judicial review" to clarify that the term "proceeding" does not include prior 8 administrative proceedings. If the Court concludes that the purpose of "judicial review" is to distinguish between prior administrative and judicial proceedings because that reading avoids rendering any phrase superfluous or redundant, then the Court need not go any further in its analysis of Pan Am. and other issues. If, however, the Court does reach this issue, Pan Am. demonstrates that it is reasonable to use "judicial review" in reference to a lawsuit under the Human Rights Law. The Reply Brief cites no case to the contrary. At page 19 of the Reply Brief, the State Police cites Legg v Eastman Kodak (248 AD2d 936 [4th Dept 1998]) and Marine Midland Bank, N.A. v New York State Div. of Human Rights (75 NY2d 240 [1989], superseded by statute on other grounds as stated in Freudenthal v County of Nassau, 99 NY2d 285 [2003]) as examples of post-Pan Am. cases where courts used "judicial forum" rather than "judicial review." The fact that subsequent cases employed a different clause to describe a lawsuit does not diminish this Court's reference to "judicial review" in this context. In Marine Midland, this Court used the term "judicial forum" to construct a parallel with "administrative forum" (75 NY2d at 244). Since the Court referred to a proceeding in the administrative forum as administrative review, a proceeding in the judicial forum would be judicial review (see id. ). Relying on Marine Midland, the State Police contends that "the only way to obtain 'judicial review' under the Human Rights Law" is pursuant to Executive 9 Law § 298, which provides for judicial review of "an order of the commissioner" (Reply Brief at 20). Of course judicial review can include review of an order of the commissioner, but there was no such order in this case. Marine Midland does not refute that "judicial review" in a more general sense can mean "review by a court," which is exactly how this Court used the phrase in Pan Am. The State Police asserts that this "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"' (Reply Brief at 7). Although Greer v Wing (95 NY2d 676, 679 [2001]) quotes the definition of "action" in CPLR § 8602(a), it does not address the definition of "judicial review." In fact, the case supports Kimmel!ELB's position because this Court emphasized the phrase "in any civil action" to make the point that fees cannot be recovered for a solely administrative proceeding (Greer, 95 NY2d at 680). The Court also stated: "As noted, an action is specifically defined as 'any civil action or proceeding brought to seek judicial review of an action of the state' (CPLR 8602[a]). Thus, an award of attorneys' fees and other allowable expenses to a prevailing party first requires a civil action, and does not encompass administrative proceedings that precede a civil action." (!d. [emphasis added].) This Court did not qualify or limit the type of civil action that the statute "first requires." The State Police asserts on page 23 of the Reply 10 Brief that the Appellate Division, Fourth Department, "[contradicted] the express language of Article 86 by finding that it applies to 'any civil action."' The State Police either overlooks or ignores that this Court reached the same conclusion in Greer. The point is that none of the new cases cited in the Reply Brief holds that "judicial review" as used in Art. 86 cannot include a lawsuit filed in Supreme Court. The common thread in Pan Am., Marine Midland, and Greer is the use of the term "judicial review" to distinguish civil actions from administrative proceedings.1 This Court's language in Pan Am. illustrates that it is reasonable to use "judicial review" to describe a lawsuit under the Human Rights Law. IV. The Cases Cited by the State Police Establish Only That the Meaning of "Judicial Review" Depends on Context. The meaning of "judicial review" varies with context, as demonstrated by the new cases cited in the Reply Brief. This case provides a striking example of context because the State Police recognize that in the context of Art. 86's "judicial review" is meant to clarify that prior administrative proceedings are excluded from fee consideration, as discussed above. 1 At pages 12, 13, and 14 of the Reply Brief, the State Police cites a series of inapplicable cases including Marbury v Madison (5 US 137 [1803]) and State v LaFrance (124 NH 171, 471 A2d 340, 343 [1983]) for the proposition that judicial review can include a court's review of a lower court's or an administrative body's factual or legal findings, or a court's review of the acts of the other two branches. These cases demonstrate only that judicial review can have different meanings in different contexts. 11 In I.N.S. v St. Cyr (533 US 289, 311 [2001]), cited on page 13, the U.S. Supreme Court stated that, "In the immigration context, 'judicial review' and 'habeas corpus' have historically distinct meanings" (emphasis added), recognizing that the meaning of "judicial review" depends on context. In Godji-ey v Chief of Police of Wellesley (35 Mass App Ct 42, 44-45, 616 NE2d 485, 487 [1993]), also cited at page 13, the Massachusetts court stated that "in the strict sense, 'judicial review' means a 're-examination of a proceeding, already concluded'" (emphasis added), but found that in the statute at issue, "the 'judicial review' denomination ... contemplates an evidentiary hearing." The court recognized that a statute may use the term in something other than its "strict sense." Bakhtriger v Elwood (360 F3d 414, 421-22 [3d Cir 2004], superseded by statute on other grounds as stated in Kamara v Attorney Gen. of US., 420 F3d 202 [3d Cir 2005]), cited on page 13, also discusses judicial review in the context of immigration, recognizing that "judicial review" has a particular meaning in the Administrative Procedure Act but can have other meanings in different contexts. In State Bd. of Registration for Healing Arts v Elliott (387 SW2d 489, 490- 91 [Mo 1965]), cited at page 13 n.5 of the Reply Brief, the Missouri court interpreted 'judicial review" in the context of a statute providing that "[a ]ny person who has exhausted all administrative remedies ... and who is aggrieved by a final decision ... shall be entitled to judicial review thereof." In B&H Medical, LLC v 12 United States (116 Fed Cl671 [2014]) and Cardiosom, L.L.C. v United States (115 Fed Cl 761 [2014]), both cited at page 14, the courts interpreted "judicial review" in the specific context of Medicare regulations. Also at page 14, the Reply Brief references a definition of judicial review from a Fourth Department dissent in the context of the Eminent Domain Procedure Law (Matter of City of Syracuse Indus. Dev. Agency, 32 AD3d 1332, 1335 [4th Dept 2006] [Hurlbutt, J.P., dissenting]). Thus, these cases make clear that the meaning of "judicial review" is to be judged in context. Such was the situation in Matter of New York City Dept. of Envtl. Protection v New York City Civ. Serv. Commn. (78 NY2d 318, 323 [1991]), at page 19, which cited Pan Am. for the proposition that "judicial review is mandated when the agency has acted illegally, unconstitutionally, or in excess of its jurisdiction." The State Police fails to mention that this Court found judicial review mandated in that case, even though the statute purported to preclude judicial review (id. at 323-24). Therefore, in a context where the statute does not contain such language, other types of judicial review are available.2 2 At page 21, the State Police cites Executive Law§ 298, New York Civil Service Law§ 213(a), and Uniform Rules for the Trial Courts § 202.57(a). These statutes only demonstrate what "judicial review" means in the context of statutes providing for a court's appellate review of administrative determinations. They do not refute the concept that "judicial review" would have a different meaning in a different context where, as here, the statute contains no reference to administrative determinations. 13 Here, as in the cases cited by the State Police, the term must be considered in context with the statute's other language. CPLR § 8602(a) uses "judicial review" in the context of defining "action" to mean "any civil action or proceeding" except "an action brought in the court of claims." A Supreme Court lawsuit against the State plainly fits this definition. Furthermore, context indicates that "judicial review" is meant to exclude prior administrative proceedings from fee consideration, as discussed above. Contrary to the very cases it cites, the State asks the Court to ignore this context and interpret "judicial review" to limit the statute's application in a way the Legislature never intended. Dated: July 28, 2016 By: 14 Respectfully submitted, A. Vincent Buzard Harris Beach PLLC Attorneys for Plaintiff-Respondent Betty Kimmel and Intervenor- Respondent Emmelyn S. Logan- Baldwin 99 Garnsey Road Pittsford, New York 14534 Tel.: (585) 419-8800