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Levine v. McCabe

December 17, 2007


The opinion of the court was delivered by: Hurley, Senior District Judge


Plaintiff Samuel Levine ("Plaintiff" or "Levine"), a retired Nassau County District Judge, brought the present suit against Defendants Jonathan Lippman ("Lippman"), Chief Administrative Judge for the New York State Unified Court System, and Edward G. McCabe ("McCabe")*fn1 , the Administrative Judge of the Courts of Nassau County, alleging that Defendants' refusal to appoint him "judicial hearing officer," violated the First Amendment and Title VII. By Memorandum and Order dated September 19, 2006, familiarity with which shall be presumed, the Court granted Defendants' motion to dismiss the § 1983 claim against Defendant McCabe and the Title VII claim in its entirety but denied Defendants' motion to dismiss the § 1983 as against Defendant Lippman. The Court also denied Levine's motion for leave to leave to file his proposed Second Amended Complaint ("SAC"). Presently before the Court are two motions. One motion is by Levine and seeks renewal and reconsideration of the motion for leave to serve the proposed SAC and the dismissal of the claims against McCabe. The other motion is by Defendants for summary judgment. For the reasons that follow, Plaintiff's motion is DENIED and Defendants' motion is GRANTED.


The following summary of the facts is drawn from the Court's September 19, 2006 Memorandum and Order, and the most recent submissions by the parties. According to Levine's complaint and the documents attached thereto, Levine has been a practicing attorney in New York since 1950. In 1996 he was elected to a term as a Nassau County District Court Judge for the county's "First District," and as such, apparently automatically became the "President of the Board of Judges" or the "presiding judge" of the Nassau County District Courts. The New York Times described Levine as "a perennial Democratic also-ran in predominantly Republican Nassau County," and his election was apparently something of an upset. Levine states that as presiding judge of the Nassau County District Courts, he was supposed to be "in charge of the daily operation and administration of the District Court subject to the control and reporting to Defendant McCabe." But according to Levine, McCabe, as a Republican, maneuvered to keep all power and authority in his own hands. Levine also insists that McCabe "ignored and failed to act on many serious problems in the District Court set forth [in] Levine['s] reports and recommendations," and made efforts to prevent Levine from presiding over a politically-charged case. McCabe's motives, insists Levine, were "political retaliation and prejudice" against him.

On December 31, 1999, having apparently reached the age of 70, Levine retired pursuant to the New York Constitution's mandatory judicial retirement provision.*fn2 Shortly prior to his retirement, Levine applied to be designated as a judicial hearing officer ("JHO"), pursuant to the provisions of the New York Judiciary Law. According to Levine, he satisfied the statutory and regulatory requirements, in that he was "well qualified" to be a JHO, and his application included an "extraordinary array of supporting documentation" to prove it.

On January 26, 2000, Levine was interviewed by the judicial hearing officer selection advisory committee appointed by Lippman for Nassau County. Levine believes that the committee received and reviewed a report from McCabe recommending that his application be denied, and that the committee recommended the same. In a letter dated March 9, 2000, Lippman informed Levine that his application had been denied. Levine's immediate request for reconsideration of that decision was denied in a subsequent letter from Lippman, dated March 30, 2000. Levine asserts that he was "denied the right and opportunity to receive a copy of [McCabe's] negative report and recommendations," that the Defendants "failed to submit or serve [him with] any written charges or complaints concerning his conduct or services or other facts impacting on the questions of competence, work ethic, experience or judicial temperament," and that he was "denied notice of any such charges or complaints."

On June 30, 2001, Levine submitted a new application to be a JHO, this time in Queens County. This application was denied as well, but without any further interview or hearing.

On December 23, 2003, Levine filed the present suit pursuant to 42 U.S.C. § 1983, seeking a declaratory judgment that New York's statutory scheme for appointment of judicial hearing officers is unconstitutional, a declaratory judgment that the Defendants violated various types of his civil rights, as well as $1,200,000 in money damages and $300,000 in costs and fees from Defendants. Defendants moved to dismiss the suit, on the grounds that Levine's Complaint brought claims barred by the applicable statute of limitations, and because Levine had failed to state equal protection and due process claims.

In a February 23, 2005 Memorandum and Order, this Court dismissed, as time-barred, the § 1983 claims relating to the denial of Levine's first application for appointment as a JHO. The Court further dismissed Levine's claims that New York's statutory scheme violated the equal protection and due process clauses of the U.S. Constitution. Having concluded Levine failed to state any timely and viable federal claim and declining to exercise supplemental jurisdiction over any potential remaining state law claims, the Court thus dismissed the Complaint in its entirety. However, Levine was granted leave to submit an amended complaint with respect to his claim that his second application for appointment as a JHO was denied as a result of political retaliation. (See Feb. 23, 2005 Mem. & Order, at 12.) The Court noted that an employment retaliation claim cannot be raised under the Equal Protection Clause, although it may properly be brought pursuant to the First Amendment or Title VII. (Id. at 24.)

Thereafter, Levine submitted an Amended Complaint, alleging that the denial of his application for appointment as a JHO violated his civil rights pursuant to 42 U.S.C. § 1983 and Title VII, 42 U.S.C. § 2000e, et seq. Defendants moved to dismiss the Amended Complaint, again for failure to state a claim pursuant to Rule 12(b)(6). Levine opposed the motion in his "Memorandum of Law for Second Amended Complaint," which posed arguments both in opposition to Defendants' motion and in support of his motion to submit a Second Amended Complaint. In its September 19, 2006 Memorandum and Order, the Court granted the motion to dismiss the § 1983 claim against McCabe on the grounds it was barred by the statute of limitations but denied Lippman's motion for the same relief on the grounds that the Amended Complaint alleged that Lippman's denial of Levine's second application, submitted in 2001, was a discriminatory act. Defendants' motion to dismiss Levine's First Amendment claims on the ground that a JHO is a policymaker was denied as the parties failed to provide the Court with any facts that would merit a decision either way. Further, the Court denied Levine's motion to amend his complaint to add a claim that he was deprived of a JHO appointment to the Nassau County Traffic and Parking Violations Agency, finding the proposed amendment would be futile as the Defendants did not have any authority to appoint him to that agency.

Defendants' current motion submits the following information regarding JHOs, which information is uncontested unless otherwise noted.

One who has served as a judge or justice of a court of record in New York State*fn3 or of a city court but no longer holds judicial office for reasons other than removal therefrom, may be designated by the chief administrator of the Courts as a JHO. N.Y. Judiciary Law §850(1). In designating a former judge as a JHO, the chief administrator must determine that the former judge has the mental and physical capability to perform the duties of the office and the services of the individual are necessary to expedite court business. Id. The chief administrator fixes the term of each JHO and may establish panels of JHOs for such courts or geographical areas as deemed appropriate and assignments of a JHO are to be made as required by the needs of the court and rules promulgated by the chief administrator. Id. at §§ 850(2), 851(1).

Pursuant to the Judiciary Law, the chief administrator has promulgated rules governing the appointment of JHOs. See 22 N.Y. Comp. Codes R. & Regs.("NYCRR") Part 122. Pursuant to these rules the chief administrator has discretion to designate an eligible applicant upon determining that the applicant "has the physical and mental capacity, competence, work ethic, experience and judicial temperament necessary to perform the duties of a judicial hearing officer, and is well qualified to serve on the panels in the court to which he or she will be designated." 22 NYCRR § 122.2(a). An applicant is required to pass a comprehensive physical by a physician designated by the chief administrator. 22 NYCRR § 122.2(b). The rules provide that in exercising his discretion, the chief administrator shall consult with the presiding justice of the appropriate appellate division, the appropriate local administrative judge, who submits a written evaluation of the applicant, and the appropriate JHO selection committee.*fn4 22 NYCRR § 122.2(c). The chief administrator may also consult "other appropriate persons and bar associations," as well as conduct whatever investigation deemed necessary. 22 NYCRR § 122.2(d). Once approved, a JHO is appointed for a one year term, which may be extended for an additional year. 22 NYCRR § 122.3. Once appointed, the JHO joins the panel in the district in which s/he has been designated. 22 NYCRR § 122.5. Depending on the needs of the courts in the assigned district, the Administrative Judge for the District assigns JHOs from the panel to work in specific parts or on a case-by-case basis. 22 NYCRR § 122.6. The rules specifically provide that "nothing herein shall vest any person with any right to be designated as a judicial hearing officer."

22 NYCRR § 122.7.

The Judiciary Law leaves open the powers of a JHO by providing that they "shall have such powers as provided by law." Id. at § 853. Under New York law, JHOs serve in both criminal and civil matters.

In criminal matters, JHOs function in three different ways. First, a local criminal court may, with the parties consent, assign a JHO to conduct the trial of most types of informations.*fn5

N.Y. Crim Pro. Law §350.20. When such an assignment is made, the JHO has "the same power as a judge of the court," including the power to issue sentences of imprisonment, and the JHO's actions are "deemed the action of the court." Id. at §§ 380.10, 350.20; New York Penal Law §§ 55.10, 70.15. Second, JHOs are authorized to preside over proceedings involving certain traffic and parking infractions in Nassau County even absent consent of the parties. Id. Third, a judge in any criminal court may assign pre-trial motions to a JHO. In connection therewith, the JHO may hold any necessary hearings. The JHO does not determine the motion but files a report setting forth findings of fact and conclusions of law and that report is considered by the court in ultimately determining the motion. N.Y. Crim Pro. Law § 255.20

Pursuant to the New York Civil Practice Law and Rules, JHOs are vested with the same powers and duties as referees. N.Y. C.P.L.R. 4301. In the civil arena, the powers of a JHO are determined by the order of reference and an order of reference requires the consent of the parties except in limited circumstances. Upon such consent of the parties, a JHO may be assigned by a judge "to determine the entire action or specific issues, to report issues, to perform particular acts, or to receive and report evidence only." C.P.L.R. 4311. The order of reference must specify what kind of reference it is, to wit: a reference to determine, a reference to report, a reference to perform a particular act or a reference to receive and report evidence. Where the order of reference is one to determine or one to perform a particular act, the JHO ...

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