In the Matter of County of Monroe, Appellant,v.Nirav R. Shah,, et al., Respondents.BriefN.Y.September 7, 201610 minutes requested CA 14-01888 To be argued by: VICTOR PALADINO Supreme Court, Monroe County - Index No. 14-3162 $upreme ~ourt of tbe $tate of 1aew ~ork ~ppellate tlBibision - jf ourtb tlBepartment IN THE MATTER OF THE APPLICATION OF COUNTY OF MONROE, Petitioner-Respondent-Appellant, -against- NIRA V R. SHAH, AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF HEALTH AND THE NEW YORK STATE DEPARTMENT OF HEALTH, Respondents-Appellants-Respondents. REPLY BRIEF FOR RESPONDENTS-APPELLANTS-RESPONDENTS ANDREWD. BING Deputy Solicitor General VICTOR PALADINO Assistant Solicitor General of Counsel ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Appellants The Capitol Albany, New York 12224-0341 (518) 776-2012 OAG No. 14-170029 Dated: February 17, 2015 Reproduced on Recycled Paper Table of Contents Page Table of Authorities ............................................................................................. iii Preliminary Statement ........................................................................................ 1 Argument Point I The County Lacks a Clear Legal Right To Mandamus Relief Directing the Department of Health To Calculate and Determine All Outstanding Overburden Liabilities ...................... 2 Point II The 2012 Amendment Is Constitutional.. ....................................... 3 A.. ·The County's Due Process Claim Fails For Lack Of Merit, Not For Lack Of Capacity, Because the County Is Not a "Person" Entitled To Due Process Protection ................................................ 3 B. General Construction Law § 93 does not trump the 2012 amendment ....................................................................................... 4 Conclusion ................................................................................................. 5 i Table of Authorities Cases Page Black Riv. Reg. Dist. v. Adirondack League Club, 307 N.Y. 475 (1954), appeal dismissed, 351 U.S. 922 (1956) ............................. 4 County of Niagara, Matter of v. Shah, · 122 A.D.3d 1240 (4th Dep't 2014) .................................................................... 1,2 County of St. Lawrence, Matter of v. Shah, 2014 N.Y. App. Div. LEXIS 8230 (3d Dep't November 26, 2014), motion for lv. pending .................................................................................... 1,3,5 Jeter, Matter of v. Ellenville Central School District, 41 N.Y.2d 283 (1977) ........................................................................................... 4 Kellogg v. Travis, 100 N.Y.2d 407 (2003) ..................................................................................... 4-5 South Macomb Disposal Authority v. Township of Washington, 790 F.2d 500 (6th Cir. 1986) ................................................................... : ........... 3 State Statutes General Construction Law § 93 .................................................................................................................... 4 L. 2012, ch. 56, Part D § 61 ........................................ : .......................................................................... 1 11 PRELIMINARY STATEMENT Appellants Commissioner of Health and the New York State Department of Health submit this reply brief in response to the County of Monroe's cross-appeal. The County appeals from the part of Supreme Court's judgment that denied the County's request for mandamus relief directing the Department to calculate and pay all outstanding overburden liabilities owed the County. As explained in this brief, such mandamus relief is precluded by this Court's decision in Matter of County of Niagara v. Shah, 122 A.D.3d 1240 (4th Dep't 2014). This reply brief is also submitted further support of the Department's appeal from Supreme Court's judgment that nullified section 61 of part D of chapter 56 of the laws of2012 ("the 2012 amendment"). The 2012 amendment unambiguously ended state reimbursement for pre-2006 overburden claims. ARGUMENT POINT I THE COUNTY LACKS A CLEAR LEGAL RIGHT TO MANDAMUS RELIEF DIRECTING THE DEPARTMENT OF HEALTH TO CALCULATE AND DETERMINE ALL OUTSTANDING OVERBURDEN LIABILITIES The part of Supreme Court's judgment denying the County's request for mandamus relief is correct under this Court's decision in Matter of County of Niagara v. Shah, 122 A.D.3d 1240 (4th Dep't 2014). There, this Court rejected the County's argument that the Department has an ongoing duty to reimburse the County for all prior overburden expenditures without regard to whether the County submits a claim. 122 A.D.3d at 1243. Although the Third Department affirmed the grant of mandamus relief in Matter of County of St. Lawrence v. Shah, 2014 N.Y. App. Div. LEXIS 8230 (3d Dep't Nov. 26, 2014), motion for lv. to appeal pending, that decision conflicts with this Court's decision denying such relief in Matter of County of Niagara v. Shah and therefore should not be followed. In its brief, the County argues, unpersuasively, that there is no conflict between County of Niagara and County of St. Lawrence. According to the County, this Court in County of Niagara reversed the grant of mandamus relief only because it held that the Supreme Court had erred in invoking the special facts exception. But the County overlooks this Court's other holding that the 2012 amendment extinguished overburden reimbursement and that, therefore, respondents did not have an ongoing duty to reimburse the County for all prior overburden expenditures without regard to whether the County submits a claim. County of Niagara v. Shah, 122 A.D.3d at 1243. The absence of a mandatory, non-ministerial duty deprives the County of the right to mandamus relief. The County further overlooks the fact that the Third Department also rejected the County's reliance on the special facts exception 2 but granted mandamus relief. Accordingly, there is no basis for an award of mandamus relief here. POINT II ··THE 2012 AMENDMENT IS CONSTITUTIONAL A. The County's Due Process Claim Fails For Lack Of Merit, Not For Lack Of Capacity, Because the County Is Not a "Person" Entitled To Due Process Protection. As demonstrated in the Department's main brief (pp. 22-27), the County's due process challenge to the 2012 amendment fails because a county is not a "person" entitled to due process protection against the legislative actions of the State, its creator. On this issue, the County mistakenly relies on Matter of County of St. Lawrence v. Shah, 2014 N.Y. App. Div. LEXIS 8230 (3d Dep't Nov. 26, 2014), motion for lv. to appeal pending. There, the Third Department concluded that the Department's argument that the County was not a person for due process purposes was an argument that the County lacked capacity, an affirmative defense which the court found unpreserved because the State did not raise it in its first responsive pleading in Supreme Court. In so holding, the Third Department failed to distinguish between the county's authority to sue (capacity) and its entitlement to protection under the due process clause (the merits). See South Macomb Disposal Authority v. Township of Washington, 790 F.2d 500, 504-505 (6th Cir. 1986) (drawing this distinction). The cases that have squarely addressed 3 the question of whether a political subdivision is a person have held that political subdivisions are not persons entitled to due process protection. Matter of Jeter v. Ellenville Central School District, 41 N.Y.2d 283, 287 (1977); Black Riv. Reg. IJi,st. v. Adirondack League Club, 307 N.Y. 475, 487 (1954), appeal dismissed, 351 U.S. 922 (1956). The Legislature may retroactively change the State's and the counties' fiscal responsibility for Medicaid expenditures and doing so does not violate due process or any vested right .. B. General Construction Law§ 93 does not trump the 2012 amendment. Similarly, there is no merit to the County's argument that, notwithstanding the 2012 amendment, its right to reimbursement is . . continues by virtue of General Construction Law § 93 (Br. at 25-26). This statute provides that the repeal of all or part of a statute does not affect or impair rights accruing or liabilities incurred before such repeal. Section 93 does not prohibit the Legislature from eliminating pre-existing reimbursement provisions, as it ditl here in the 2012 amendment. "Except where the Constitution prohibits it, the Legislature is free to enact laws that have retroactive application. We have long recognized that the General Construction Law places no restraint on the Legislature beyond the restrictions in the Constitution." Kellogg v. Travis, 100 N.Y.2d 407, 411 4 (2003). For this reason, the Third Department's dictum in Matter of County of St. Lawrence v. Shah, 95 A.D.3d 1548, 1553-54 (3d Dep't 2012), cited by the County (Br. at 25-26), is mistaken and should not be followed here. The Legislature's decision to close the books on old overburden claims dating back as much as 30 years does not violate due process. Accordingly!, nothing in the General Construction Law trumps the 2012 amendment. For these reasons, the 2012 amendment is constitutional and the petition/complaint should be dismissed. 5 CONCLUSION This Court should reverse Supreme Court's judgment, declare that section 61 of Part D of chapter 56 of the laws of2012 is constitutional, and dismiss the petition/complaint. Dated: Albany, New York February 17, 2015 . ANDREWD. BING Deputy Solicitor General VICTOR PALADINO Assistant Solicitor General of Counsel Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York At~orneY, for /£)1l:nts By:~~ VICTOR PALADINO Assistant Solicitor General Office of the Attorney General The Capitol Albany, New York 12224 Telephone: (518) 776-2012 Reproduced on Recycled Paper 6