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Seeking a court order to compel a public officer to perform his or her duty

Seeking a court order to compel a public officer to perform his or her duty

Matter of Burch v Harper, 2008 NY Slip Op 06987, decided on September 16, 2008, Appellate Division, Second Department

Chris Burch brought an Article 78 [CPLR Article 78 proceeding that the Appellate Division described as ?in the nature of mandamus.? Burch sought a court order to require Brian L. Harper, as Commissioner of the Suffolk County Department of Health Services, ?to determine that the County of Suffolk, Village of Southampton, and Trustees of the Freeholders and Commonalty of the Town of Southampton are operating certain ocean beaches as ?bathing establishments? in violation of, among other things, the Public Health Law." Burch wanted the court to direct Harper to prohibit the continued operation of those ?bathing establishments.?? Supreme Court dismissed Burch?s petition.

?Mandamus? is one of a number of the ancient writs that were available under English common law to compel or prohibit actions by a governmental entity. A writ of mandamus was a judicial order compelling a public officer to perform an official act.

Other common law writs included the "writ of prohibition? which was issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction;" the writ of injunction - a judicial order preventing a public official from performing an act; the writ of quo warranto - which challenged the authority of a public officer to take a particular action; and the writ of certiorari - an order by a higher court directing a lower court to send the record in a given case to it for review. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

In Burch, the Appellate Division explained that the remedy of mandamus is available "to compel the performance of a ministerial, nondiscretionary act where there is a clear legal right to the relief sought." Here, said the court, the allegations in Burch?s petition were insufficient to demonstrate that the Village and the Town were operating a "bathing establishment" in violation of the Public Health Law. Accordingly, the allegations contained in Burch's petition failed to establish a clear legal right to the relief he sought, the Supreme Court properly denied the petition and dismissed the proceeding.

From time to time the modern equivalent of these ancient writs serve as a basis for legal action.

In CSEA v Patchogue-Medford UFSD, 239 A.D.2d 415, a case involving an appointment to a reclassified position, was characterized as an action ?in the nature of mandamus.?

After reviewing the duties and responsibilities of the position of stenographer then held by Lorraine Fishman, the Suffolk County Civil Service Commission advised the Patchogue-Medford Union Free School District that it had reclassified the position to senior stenographer. The Commission then certified the promotion list for senior stenographer to the District. Fishman was first on the list.

The District returned the list to the Commission, indicating that "it would not be making an appointment to the position of senior stenographer at that time." Fishman sued, seeking a court order compelling the District to appoint her to the reclassified position. Her petition, said the court, was an action "sounding in mandamus."

Supreme Court, Suffolk County, however, never reached the merits of Fishman's claim as it dismissed her petition on the grounds that it was untimely. The Appellate Division affirmed the lower Court's ruling.

What was the reason for the Courts to declare Fishman's suit untimely? The Appellate Division said that although Fishman knew in June 1993 that the District was not going to appoint her to the position of senior stenographer, "she made no formal demand upon the District [to appoint her to the senior stenographer position] until she commenced the [Article 78] proceeding in March 1994."

The Court pointed out that "before commencing a proceeding in the nature of mandamus, it is necessary to make a demand and await a refusal and the Statute of Limitation begins to run on the date of the refusal and expires four months later."

A party, however, cannot delay in making his or her demand, thereby extending indefinitely the period during which he or she is required to take action. Here the Appellate Division decided that Fishman had not proceeded with sufficient promptness in making her demand and thus the doctrine of laches barred her from suing. Laches results from the failure of a party to do something to enforce a right at a proper time.

Although the courts never reached the merits of Fishman's petition, it should be noted that as a general proposition, an appointing authority cannot be required to fill a vacant position, even if there is an appropriate eligible list available to it.

For example, in Porto v Town of Harrison, 100 AD2d 870, the Appellate Division said that an individual on an eligible list does not have a "presumptive right" to appointment." Similarly, in Bailey v Kern, 177 Misc 904, the Court said that it did not have the power to command an appointing authority to fill a vacancy because the discretion to make appointments is vested in the appointing authority.

Another case, Taylor v Hammondsport CSD, 267 A.D.2d 987, brought by a teacher, David C. Taylor, following his being involuntarily reassigned to non-teaching duties, was also characterized by the court as being "an action in the nature of mandamus."

The Hammondsport Central School District had assigned Taylor to perform non-teaching duties after he was found guilty of certain disciplinary charges filed against him pursuant to [former] Section 3020-a of the Education Law.

Taylor objected to his reassignment to non-teaching duties, contending that the assignment to such duties constitutes the imposition of an additional penalty or remedial action in violation of Education Law Section 3020-a. He challenged his reassignment, demanding that he be reinstated to his former teaching assignment and compensated "for emotional distress he has endured as the result of district's assigning him to non-teaching duties."

A State Supreme Court judge dismissed Taylor's petition on the ground that he did not have any "clear legal right to the relief sought against [district], and therefore mandamus" was not available to him as a remedy.

The Appellate Division agreed with the lower court, pointing out that [former] "Section 3020-a neither limits the authority of [the district] to assign [Taylor] to non-teaching duties nor requires [the district] to restore [Taylor] to his teaching duties following the completion of disciplinary procedures conducted pursuant to the statute.

The full text of the Burch decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06987.htm

Full post as published by New York Public Personnel Law on September 23, 2008 (boomark / email).