action to trigger the operation of the due process clause." (Id.)
Plaintiff relies on Bd. of Regents and Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976), to establish that defendant deprived him of a constitutionally protected right, but neither case does so. In Bd. of Regents, the Supreme Court found that due process did not require a state university to hold a hearing before it decided not to renew the employment contract of an assistant professor who was not tenured and who had no contract rights to continued employment with the university. In reaching this conclusion, the Court reasoned that "the State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community." 408 U.S. at 573. However, the Court appears to have been discussing a situation in which the university imposed a stigma that would have affected respondent's ability to find other employment. This reading of Bd. of Regents is confirmed by Paul.
In Paul, the Court found that petitioner's distribution of flyers of "active shoplifters" that included respondent's name and photograph did not deprive respondent of a liberty or property right secured by the Fourteenth Amendment. The Court reasoned that the line of cases discussing harm to an individual's reputation did "not establish the proposition that reputation alone, apart from some more tangible interests such as employment, is either 'liberty' or 'property' by itself sufficient to invoke the procedural protection of the Due Process Clause." 424 U.S. at 701. However, Paul also acknowledges that as to marriage, procreation, contraception, family relationships, and child rearing and education, "there are limitations on the States' power to substantively regulate conduct." Id. at 713.
The complaint in the case at hand does not allege that plaintiff's employment prospects suffered as a result of the report in the Central Register that he sexually abused his children. Therefore, plaintiff must be relying on the dicta in Paul regarding family relationships to support his claim. However, plaintiff's relationship with his family was not altered as a result of the report in the Central Register.
In fact, plaintiff's relationship with his children was altered not by the entry of his name on the Central Register but by the proceedings in Family Court at which the family court judge found that plaintiff had abused his children. Notably, plaintiff does not dispute the impartiality or sufficiency of these proceedings at which he had the right to appear, to cross-examine, and to present evidence. Therefore, plaintiff must be contesting only the effect of the report in the Central Register on his reputation. However, Paul held that effect on one's reputation, without more, is not a constitutionally protected liberty or property interest.
Moreover, even if plaintiff had alleged a deprivation of a constitutionally protected interest, he still received all the process that was due. In order to determine what process is due, the court must weigh the following:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976).
In the case at hand, plaintiff's interest in maintaining his reputation must be weighed against the state's interest in protecting his children against abuse. Article 6, Title 6, of the SSL establishes a detailed process for investigation and review of abuse. Such allegations are investigated according to a statutory schedule and the child's interests are protected pending a final determination regarding the alleged abuse. The subject of the report has the right to an administrative hearing upon the completion of the investigation, which itself can take no more than 90 days. Plaintiff has offered no evidence that there is a heightened risk of an erroneous deprivation as a result of the SSL's statutory framework. Indeed, it would have been impossible for him to do so given the findings of both the Bronx Family Court and the fair hearing. Both fora determined that there was evidence supporting the report in the Central Register that plaintiff had sexually abused his children, and therefore the SSL's statutory framework appears to have rendered an accurate result in plaintiff's case.
Finally, plaintiff contests the SSL's use of the "some evidence" standard of review, claiming that it is less than the standard of "substantial" evidence employed by most administrative determinations, and unconstitutionally vague. First, plaintiff is wrong when he claims that other administrative determinations are held to a different evidentiary standard. The New York Court of Appeals has found that administrative determinations need be only rational and based on some evidence. See, e.g., O'Rourke v. Kirby, 54 N.Y.2d 8, 444 N.Y.S.2d 566, 429 N.E.2d 85 (1981). Substantial evidence is the judicial standard of review of administrative determinations. See C.P.L.R. § 7803(4).
Second, as Judge Haight wrote about application of the void-for-vagueness doctrine to a civil suit between private parties:
The relevance of the "void-for-vagueness" to the case at bar is problematical. The doctrine is most clearly identified with criminal law, deriving its origins from procedural due process: the citizen's right to know in advance and with precision the type of behavior that may result in criminal penalties. The doctrine is also closely associated with the First Amendment Right to engage in protected political speech and conduct.
Ragin v. New York Times Co., 726 F. Supp. 953, 964 (S.D.N.Y. 1989), aff'd, 923 F.2d 995, 1002 (2d Cir.) (finding that "even if we indulge in the assumption that the vagueness doctrine applies to civil cases" the standard in question provides sufficient notice), cert. denied, 116 L. Ed. 2d 54, 112 S. Ct. 81 (1991). In the case at hand, plaintiff claims that a civil statute is unconstitutionally vague. That claim is as problematical here as it was in Ragin. However, even assuming that the void-for-vagueness doctrine applies to the SSL, that statute passes muster. Plaintiff was apprised of the conduct that would bring him within the reach of the SSL; that is the core due process interest protected by the void-for-vagueness doctrine. Moreover, New York courts consistently have applied the some evidence standard without finding any apparent ambiguity. See, e.g., Minella v. Perales, 558 N.Y.S.2d 680, 163 A.D.2d 629 (3d Dept. 1990); Sellnow v. Perales, 551 N.Y.S.2d 428, 158 A.D.2d 846 (3d Dept. 1990); Cooper v. Wiley, 513 N.Y.S.2d 155, 128 A.D.2d 455 (1st Dept. 1990). Small wonder; evidence, after all, is not a concept unfamiliar to courts. Cf. Fed. R. Evid. 401 (defining "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence").
For the above reasons, defendant's motion to dismiss is granted and the complaint is dismissed.
Dated: New York, New York
March 23, 1992
Michael B. Mukasey,
U.S. District Judge
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