New York Law Review

Tag: Discretionary Authority

  • Johnson v. Martins, 16 N.Y.3d 544 (2011): Discretion to Order Manual Audit of Ballots

    Johnson v. Martins, 16 N.Y.3d 544 (2011)

    A court has discretion to order a manual audit of election ballots only if there is a material discrepancy likely to affect the election result or flagrant irregularities in the election process.

    Summary

    Following an election for State Senator, a machine count showed Republican candidate Martins leading Democratic candidate Johnson by a narrow margin. A mandatory audit of 3% of the voting machines revealed minor discrepancies. Johnson sought a full manual audit, arguing that the error rate exceeded regulatory thresholds. The Supreme Court denied the request, certifying Martins as the winner. The Appellate Division affirmed, holding the decision was within the Supreme Court’s discretion under Election Law § 16-113. The New York Court of Appeals affirmed, finding no abuse of discretion, as the discrepancy rate was significantly below the margin of victory, and there was no evidence of flagrant irregularities.

    Facts

    After an election for State Senator in New York’s Seventh Senatorial District, the electronic vote count showed Republican candidate Jack Martins leading Democratic candidate Craig Johnson by 415 votes (0.5% of approximately 85,000 votes cast).

    A mandatory 3% audit of voting machines revealed: (1) one machine with more ballots than the ballot box contained; (2) two machines with fewer ballots than the ballot box contained (resulting in a net gain of three votes for Johnson); and (3) one machine with an even count but a miscounted undervote, resulting in one additional vote for Martins.

    The net change from the audit discrepancies was two votes in Johnson’s favor. No evidence suggested these discrepancies resulted from misconduct.

    Procedural History

    Johnson and the Chair of the Nassau County Democratic Committee commenced proceedings seeking a district-wide manual audit under Election Law § 16-113.

    The Supreme Court denied the request for a manual audit and certified Martins as the winner.

    The Appellate Division affirmed, finding no abuse of discretion under Election Law § 16-113.

    The Appellate Division granted leave to appeal to the Court of Appeals and certified the question of whether its decision was properly made.

    Issue(s)

    Whether the lower courts erred in determining that there was not a sufficient basis to order a full manual audit of the election results under Election Law § 16-113.

    Holding

    No, because the statute grants Supreme Court discretionary authority to order a manual audit, and the discrepancy rate was significantly below the margin of victory; there was no substantial likelihood that the result of the election would be altered by a full manual audit, and there was no evidence of flagrant irregularities in the election process.

    Court’s Reasoning

    The Court of Appeals affirmed the lower court’s decision, emphasizing that Election Law § 16-113 grants Supreme Court discretionary authority to order a manual audit.

    The Court stated that a denial of a manual audit is only an abuse of discretion if “the record must demonstrate the existence of a material discrepancy likely to impact upon the result of the election, or flagrant irregularities in the election process.”

    The Court acknowledged that some level of discrepancy is inevitable, but the critical question is the *degree* of discrepancy that requires a manual audit.

    The Court held that the Supreme Court can direct a manual audit if evidence shows a discrepancy indicating “a substantial possibility” that the election result could change (Election Law § 16-113 [2]).

    Because the discrepancy rate was significantly below the margin of victory, there was no substantial likelihood that a full manual audit would alter the election result. Moreover, no evidence indicated the discrepancies stemmed from any flagrant irregularity in the election process.

    The Court concluded that it lacked the power to disturb the lower court’s discretionary determination.

    The Court declined to review arguments about individual contested ballots, considering them academic because they could not impact the election result.

  • Pius v. Director, Bldg. & Housing, 74 N.Y.2d 919 (1989): Discretionary Authority and SEQRA Review for Building Permits

    Pius v. Director, Bldg. & Housing, 74 N.Y.2d 919 (1989)

    Issuance of a building permit is not always a ministerial act exempt from SEQRA review; if the issuing authority possesses discretionary power to approve site plans and make case-by-case judgments, the permit process constitutes an “action” subject to environmental review.

    Summary

    Pius, a contract purchaser, sought a building permit to construct an office building. The Town of Huntington’s Director of Engineering, Building and Housing (Director) denied the permit, requiring Pius to submit a draft environmental impact statement (DEIS) due to potential adverse environmental impacts. Pius initiated an Article 78 proceeding to compel the permit issuance. The lower courts, relying on *Filmways*, held that permit issuance was ministerial and not subject to SEQRA. The Court of Appeals reversed, holding that because the Director possessed discretionary authority over site plan approvals and construction materials, the permit process was an “action” requiring SEQRA review.

    Facts

    Pius sought a building permit for an office building in a commercial zone.
    The Town’s Department of Environmental Control made a preliminary assessment.
    A positive SEQRA declaration indicated potential significant adverse environmental impact.
    The Director refused the permit and required a DEIS.

    Procedural History

    Pius commenced a CPLR Article 78 proceeding to annul the Director’s determination and compel the permit issuance.
    Supreme Court, Suffolk County, granted the petition.
    The Appellate Division affirmed, relying on *Matter of Filmways Communications v Douglas*.
    The Court of Appeals reversed the Appellate Division’s order and dismissed the petition.

    Issue(s)

    Whether the issuance of a building permit by the Director of Engineering, Building and Housing of the Town of Huntington is a ministerial act exempt from review under the State Environmental Quality Review Act (SEQRA), or whether it constitutes a discretionary “action” requiring environmental review.

    Holding

    No, because the Director possessed discretionary authority over site plan approvals and construction materials, the permit process was an “action” requiring SEQRA review. The prior case, *Filmways*, was misinterpreted; it did not establish a broad rule that all building permits are ministerial.

    Court’s Reasoning

    The Court of Appeals emphasized that SEQRA requires an environmental impact statement for “any action… which may have a significant effect on the environment” (ECL 8-0109[2]). While SEQRA exempts “official acts of a ministerial nature, involving no exercise of discretion” (ECL 8-0105[5][ii]), the Court distinguished the case from *Filmways*. In *Filmways*, the building inspector’s function was deemed ministerial because the building code provided no “latitude of choice.” The Court clarified that *Filmways* should not be interpreted as establishing a blanket rule that all building permit issuances are ministerial.

    Here, the Director had specifically delegated site plan approval powers, including the authority to make case-by-case judgments on site plan design and construction materials. This discretionary power transformed the permit issuance into an “action” subject to SEQRA review. The Court stated that “in light of the Director’s specifically delegated site plan approval powers coupled with the authority to make certain case-by-case judgments on site plan design and construction materials issues, the Town of Huntington’s subdivision regulations and site improvement specifications vests discretion of a kind which qualifies as an unexempted ‘action’ in connection with the issuance of a building permit.”

    Because the issuance was an “action,” the Director, as head of the lead agency, was entitled to require a DEIS. This decision reinforces the importance of examining the specific powers and duties of the issuing authority when determining whether a permit process is subject to SEQRA review. It highlights that even when a permit appears to be a routine matter, discretionary authority can trigger environmental review obligations. The dissent is not mentioned because there was none.

  • Matter of Legal Aid Soc. v. Scheinman, 53 N.Y.2d 12 (1981): Limits on Mandamus Relief for Discretionary Acts

    Matter of Legal Aid Soc. v. Scheinman, 53 N.Y.2d 12 (1981)

    Mandamus is an extraordinary remedy and is inappropriate to compel the performance of acts involving the exercise of discretion, even where an entity makes recommendations; the ultimate decision rests with the officer with the authority to make it.

    Summary

    This case addresses the availability of mandamus relief to compel the Commissioner of Correction to reinstate passes for individuals providing legal services to inmates. The New York Court of Appeals held that mandamus was inappropriate because the Commissioner’s decision to grant or revoke passes involved discretionary authority, not purely ministerial acts. The Board of Correction’s recommendations were not binding. The court emphasized that mandamus is an extraordinary remedy reserved for situations where there is a clear legal right to the relief sought and the duty to be compelled is ministerial. Because the Commissioner had discretion, the lower courts erred in considering the merits of the case.

    Facts

    Thomas McCreary’s pass, granting access to correctional facilities in New York City, was revoked. Naomi Burns had her institutional pass initially revoked, but the Commissioner later withdrew his objections and reinstated it. Both McCreary and Burns sought reinstatement of their passes, apparently arguing that the Commissioner was improperly applying standards promulgated by the Board of Correction.

    Procedural History

    The petitioners sought mandamus relief in lower courts to compel the Commissioner of Correction to reinstate the passes. The lower courts granted relief. The Court of Appeals reversed, holding that mandamus was not the appropriate remedy.

    Issue(s)

    Whether mandamus is an appropriate remedy to compel the Commissioner of Correction to reinstate passes to correctional facilities when the decision to grant or revoke such passes involves discretionary authority?

    Holding

    No, because the decision to grant or revoke passes involves the exercise of discretion by the Commissioner of Correction, and mandamus is only appropriate to compel the performance of purely ministerial acts.

    Court’s Reasoning

    The Court of Appeals reasoned that while the Board of Correction has the authority to make recommendations, the Commissioner of Correction retains the discretion to apply the board’s standards in individual cases. The court cited prior cases, including Matter of Legal Aid Soc. v Scheinman, 53 NY2d 12; Matter of Association of Surrogates & Supreme Ct. Reporters v Bartlett, 40 NY2d 571,574; and Matter of Gimprich v Board of Educ., 306 NY 401, 406, to support the principle that mandamus is appropriate only when a petitioner has a clear legal right to the relief sought and the duty sought to be compelled is ministerial, not discretionary. The court stated that “[a]uthority to revoke the pass of Thomas McCreary granting access to the correctional facilities in the City of New York lay within the discretion of the commissioner in conformity with the standards promulgated by the board pursuant to subdivision e of section 626 of the New York City Charter, and the reinstatement of his pass cannot be classified as a purely ministerial act.” Because the Commissioner’s decision involved discretion, mandamus was not an appropriate remedy. The Court also noted that, in the case of Naomi Burns, the Commissioner had already withdrawn his objections and reinstated her pass, rendering the issue moot. Finally, because the petitioners were not entitled to relief, they were also not entitled to attorney’s fees under section 1988 of title 42 of the United States Code.

  • People v. Holmes, 52 N.Y.2d 976 (1981): Appellate Court Discretion to Order New Trial After Dismissing a Count

    52 N.Y.2d 976 (1981)

    An intermediate appellate court has discretion under CPL 470.15(2)(a) to order a new trial on remaining counts after dismissing a count for insufficient evidence, even if evidence supports a conviction for a lesser included offense of the dismissed count; a reduction to a lesser included offense is not mandatory.

    Summary

    The New York Court of Appeals affirmed the Appellate Division’s order for a new trial. The Appellate Division had dismissed one count of the indictment against Holmes for insufficient evidence but ordered a new trial on the remaining counts, which the trial court instructed the jury not to consider if they found Holmes guilty on the first count. The Court of Appeals held that CPL 470.15(2)(a) gives the Appellate Division discretion to order a new trial, and reducing the conviction to a lesser included offense is not mandated by the statute. The dissent argued that the Appellate Division should have reduced the conviction to a lesser included offense.

    Facts

    Anthony Holmes was indicted and tried on multiple counts. The jury found him guilty on the first count. The trial court had instructed the jury not to consider the remaining counts if they found the defendant guilty under the first count. The Appellate Division dismissed the first count for insufficient evidence.

    Procedural History

    The trial court convicted Holmes. The Appellate Division dismissed the first count of the indictment and ordered a new trial on the remaining counts. The People appealed to the New York Court of Appeals, arguing that the Appellate Division should have reduced the conviction to a lesser included offense rather than ordering a new trial. The Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether the Appellate Division, upon dismissing a count of an indictment for insufficiency of evidence, is required to reduce the conviction to a lesser included offense if the evidence is sufficient to support such a conviction, or whether it has discretion to order a new trial on the remaining counts.

    Holding

    No, because CPL 470.15(2)(a) grants the Appellate Division discretion in such a situation; it “may modify the judgment by changing it to one of conviction for the lesser offense,” but is not required to do so.

    Court’s Reasoning

    The Court of Appeals focused on the permissive language of CPL 470.15(2)(a), which states the intermediate appellate court “may modify the judgment by changing it to one of conviction for the lesser offense.” The court emphasized the word “may,” concluding that the statute does not mandate a reduction to a lesser included offense. The court distinguished this case from People v. Dlugash, 41 N.Y.2d 725, noting that Dlugash involved the dismissal of a single-count indictment where no retrial was possible, whereas here, a new trial was ordered on remaining counts. The dissent argued that the majority ignored established rules of statutory construction, which dictate that permissive words conferring power upon public officers are generally mandatory when the act authorized concerns the public interest or individual rights. The dissent contended that the Appellate Division erred in ordering a new trial “on the law” and should have reduced the conviction to a lesser included offense. The dissent emphasized that CPL 470.20 requires corrective action to rectify any injustice and protect the rights of the respondent (the People). According to the dissent, ordering a new trial dissolved the jury’s finding of guilt on a lesser charge without articulating any reason for doing so, which was an injustice to the People. The majority countered the dissent’s interpretation of CPL 470.20(4), clarifying that it merely sets forth the steps to be taken concerning the defendant’s sentence after the intermediate appellate court has in fact reduced the conviction to one for a lesser included offense and does not require the reduction itself.

  • Weinberg v. Metropolitan Transportation Authority, 41 N.Y.2d 991 (1977): Limits on Standing to Challenge Discretionary Management of Public Enterprises

    Weinberg v. Metropolitan Transportation Authority, 41 N.Y.2d 991 (1977)

    While standing to sue has broadened to correct illegal official action, it does not extend to substituting judicial oversight for the discretionary management of public enterprises by public officials.

    Summary

    The New York Court of Appeals affirmed the denial of standing to plaintiffs seeking to challenge the Metropolitan Transportation Authority’s (MTA) management of the subway system based on alleged noise code violations. The Court distinguished between standing to correct clear illegality and standing to interfere with the discretionary management of public enterprises. The Court reasoned that allowing such suits would improperly involve the courts in resource allocation and policy decisions best left to executive and legislative bodies. Absent specific, adopted noise code standards, the plaintiffs lacked a basis for judicial intervention, as their complaints concerned discretionary decisions, not illegal acts.

    Facts

    Plaintiffs brought suit against the Metropolitan Transportation Authority (MTA) alleging violations of the New York City noise code in the operation of the subway system. They claimed that the MTA’s management and operation of the subway resulted in excessive noise levels that negatively impacted them. The plaintiffs did not allege any specific illegal acts or omissions beyond general noise code violations. The MTA argued that no specific noise standards applicable to rapid transit systems had been adopted under the Administrative Code.

    Procedural History

    The lower court denied the plaintiffs standing to sue. The Appellate Division affirmed the lower court’s decision. The New York Court of Appeals granted leave to appeal and affirmed the Appellate Division’s order.

    Issue(s)

    Whether plaintiffs have standing to sue the Metropolitan Transportation Authority (MTA) based on alleged violations of the New York City noise code in the operation of the subway system, where no specific noise standards applicable to rapid transit systems have been adopted.

    Holding

    No, because the plaintiffs’ complaints relate to discretionary management decisions of a public enterprise, rather than specific illegal acts or omissions correctable by the judiciary.

    Court’s Reasoning

    The Court acknowledged the broadened view of standing in New York to redress illegal official action, citing Boryszewski v. Brydges. However, it distinguished between challenging clear illegality and interfering with the management of public enterprises. The Court stated, “Yet it is one thing to have standing to correct clear illegality of official action and quite another to have standing in order to interpose litigating plaintiffs and the courts into the management and operation of public enterprises.”

    The Court emphasized that decisions regarding resource allocation and priorities in the subway system are best left to executive officials, administrative agencies, and local legislative bodies. Allowing such lawsuits would effectively substitute judicial oversight for the lawful acts of elected and appointed officials. The Court noted that the noise code’s application to rapid transit systems required the adoption of specific standards, which had not occurred in this case. Therefore, there were no specific illegal acts or omissions to warrant judicial intervention. The Court emphasized that standing should not be extended “to substitute judicial oversight for the discretionary management of public business by public officials.”

    The Court also pointed out the number of public agencies involved in managing New York City’s subway system and controlling noise. It stated, “It is with those agencies directly, not the judiciary, that members of the public must lodge their complaints.” The Court concluded that “Neglect, inefficiency, and erroneous but reasonably made exercise of judgment fall short of illegality, correctible by the judicial branch of government.” The ultimate remedy for poor government management, the court suggested, lies at the ballot box.