constitutional law cases
Constitutional Law
Auerbach v. Kinley, 449 FSupp 1329 (NDNY 1980), 594 FSupp 1503 (NDNY 1984), 765 F2d 350 (2d Cir 1985) (Right to vote for college students)
Article II, section 4(I) of the New York State Constitution provides that for the purpose of registering and voting “…no person shall be deemed to have gained or lost a residence by reason of his presence or absence… while a student of any institution of learning, nor while kept at any welfare institution, asylum or other institution wholly or partly supported at public expense or by charity; nor while confined at any public prison.” The Albany County Board of Elections, as well as county election boards throughout upstate New York, used Article II section 4 and Election Law 104 as a rationale for denying students the right to vote in the college community where they attended college and lived most of the year. As a result, college students had no voice in local government and had to vote by absentee ballot where their parents lived or not vote at all.
College students at the State University of New York at Albany (UAlbany) initiated a campaign to register to vote in Albany County by submitting registration forms that contained the proper personal information required by New York State Election Law. After an initial rejection the students were granted in person appeals before the Albany County Election Commissioners, after which all were denied registration to vote. Those that lived in the UAlbany dormitories were notified that their registration was denied because dormitories were not considered to be “legal residences” for voting purposes. Others were denied because they visited or received financial assistance from their parents or because they had access to a room in their parents’ home.
Mr. Oliver commenced an action under the federal civil rights act at 42 USC 1983 on behalf of the UAlbany students and all students residing in Albany County which argued that they were being deprived of their right to vote in violation of the Equal Protection Clause of Fourteenth Amendment by the inappropriate and unevenly applied requirements and procedures for college students to establish residence for voting purposes. The United States District Court, Northern District of New York declared that the Equal Protection Clause of the Fourteenth Amendment allows for state government to make laws regarding the right to vote for groups of individuals, but does not allow the government to do so in an arbitrary or discriminatory fashion. The District Court held that Article II, section 4 of the State Constitution violated the Equal Protection Clause on its face and as applied to the students. The court granted a preliminary injunction which prohibited the Board of Election from requiring additional documents from a college student beyond what is required of all other applicants and prohibited it from pursuing any registration practices that discriminated against students.
The Board of Elections appealed. The United State Court of Appeals for the Second Circuit found that Article II, section 4 of the New York Constitution and New York Election Law section 5-104 were constitutional on their face, but were unconstitutional as applied because the Board of Elections was requiring additional documentation from college students to register to vote that were not required of other applicants. The Second Circuit ordered that the students could vote in Albany County and allowed the injunction to remain in effect.
After the decision in Auerbach v. Kinley, similar lawsuits were brought against County Boards of Elections in upstate New York communities with substantial college populations and all of these litigations were successful. See Willams v. Salerno, 792 F2d 323 (2d Cir 1986) (Westchester County, SUNY Purchase); Levy v. Scranton, 780 FSupp 897 (NDNY 1991)(Saratoga County, Skidmore). As a result, college students were empowered to vote in national and local elections for the first time in upstate New York.
The right of college students to vote in local elections has resulted in the creation of enclaves of progressive communities in rural upstate New York, and local governments in communities like Ithaca, New Paltz, Saratoga Springs, Fredonia, Oneonta, and Postdam became more student friendly and responsive to the needs of young people.
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Pharmaceutical Manufacturers Association v. Whalen, Commissioner of Health, 79 AD2d 896 (1st Dept 1980), affirmed 54 NY2d 486 (1981) (Generic Drug Substitution Law)
Prior to 1977 the State Education Law prohibited pharmacists from substituting or dispensing a different article in lieu of any drug a physician had prescribed. In 1977 the State Legislature passed the Generic Drug Substitution Law (Laws 1977, Chapter 776) in an effort to fight against the increasing cost of prescription drugs. The law added Public Health Law section 206 (1) (0), which required the State Commissioner of Health to create a list of drugs which have been certified by the Federal Food and Drug Administration (FDA) as safe for their effective usage and satisfy the bioequivalency requirements of name brand prescription drugs. Education Law Section 6810(6) required that every prescription form will have two signature lines, with one stating “Substitution permissible” and the other stating “Dispense as written”. If the physician signs the “Substitution permissible” line he must inform the patient that the pharmacist may substitute the drug for a generic product from the Department of Health’s list of generic substitutes. Under Education Law 6816-a the pharmacist is required to fill the prescription with the genetic drug unless the physician signs on the “Dispense as written” line, and to indicate on the label affixed to the prescription container what generic drug was substituted and its strength.
The Pharmaceutical Manufacturers Association, a powerful association of the largest drug manufacturing companies in the United States, brought a declaratory judgment action which claimed the new prescription law promoted unfair competition, infringed on drug patents, unlawfully discriminated against brand name drug products, failed to comply with the State Administrative Procedure Act, and exceeded the state police power because there was no competent evidence that the genetic drugs on the substitution list were the therapeutic equivalents of the brand name drugs members of the Pharmaceutical Manufacturers Association produced. They also argued that the legislation interfered with the confidential relationship between a pharmacist and their patients, and restricted the patient’s right to make health-related decisions, and deprived the Pharmaceutical Manufacturers companies of property without Due Process of Law. Mr. Oliver represented New York Public Interest Research Group (NYPIRG), which was granted intervention because NYPIRG had been a proponent of the legislation.
The New York Court of Appeals held that the Generic Drug Substitution Law was constitutional because the legislation was a reasonable exercise of the State’s police power and was rationally related to the legitimate purpose of safely reducing healthcare costs. The Court found that the bare existence of conflicting empirical proof on the issue whether generic drugs may or may not be safely substituted for their brand name counterparts is insufficient to raise any question as the law’s constitutionality because the Legislature had authority to decide that the Department of Health could rely on FDA’s findings of therapeutic equivalence. Finally, the Court of Appeals held that the law did not interfere with a patient’s right to privacy because it merely facilitated the exercise of the physician’s responsibility to determine whether and under what circumstances generic drugs may be prescribed. The Generic Drug Substitution law has saved citizens billions of dollars by allowing expensive brand name medications to be substituted by less costly generic equivalent drugs.
King v. Cuomo, 81 NY2d 247 (1993) (“Recall” practice of state Legislature declared unconstitutional)
Edgar King, Supervisor of the Town of Northumberland, opposed the recall of legislation from the Governor’s desk after it was approved by the State Legislature. Assembly Bill No. 9592-A prohibited municipalities from seizing farmland in an agricultural district under eminent domain for landfill or incinerations, and had been passed in the 1990 session of the Legislature and delivered to Governor Mario Cuomo’s desk for signature on July 19, 1990. According to the state Constitution, if the governor took no action on the bill within 10 days of delivery to the Governor, the bill becomes law. After the bill had been on the governor’s desk for more than 10 days without his signature or a veto, the Chairman of the Assembly Committee removed the bill from the Governor’s desk and brought it back to the Legislature through the “recall” process. The Assembly recalled the bill back to the Legislature in the recall procedure.
Supervisor King was in favor of the Assembly bill because Saratoga County was planning on constructing a garbage dump (landfill) in his rural town. Mr. Oliver commenced an Article 78 proceeding and action for a declaratory judgment in behalf of the Town of Northumberland to declare that Assembly Bill No. 9592A had become law due to the inaction by Governor Cuomo for more than ten (10) days. The petition argued that the recall procedure utilized by the Legislature was unauthorized by the New York State Constitution, Article IV, section 7, and that the recall procedure was undemocratic because it allowed the chairperson of one committee in the Legislature to pull back a bill that had been duly voted into law by both houses of the Legislature. Oliver argued that the procedure gave special interests and insiders with access to legislative committee chairs the power to kill duly enacted laws outside the public view. The Article 78 proceeding and complaint was dismissed by the Supreme Court Albany County and the dismissal was affirmed by the Appellate Division, Third Department.
The New York Court of Appeals reversed and held that the recall practice used by the Legislature to reacquire passed bills which had been formally sent to the Governor is unconstitutional. The Court found that the recall practice was not found in the State Constitution and was inconsistent with the plain language of Article IV, section 7. The Court stated the recall practice “…undermines the integrity of the law-making process” by the Legislature and that “…open government would suffer if the courts were to countenance this long-standing practice.” The practice was invalidated for the future.
The New York Times commented on the Court of Appeals forbidding the practice stating, “For 128 years, an integral but little-known part of lawmaking in New York has been the State Legislature’s ability of change or kill a bill by recalling it from the Governor’s desk before he signs or vetoes it. Today the state’s highest court struck down the practice as an unconstitutional abasement of open government and separation of powers.” See Kevin Sack, “Court Outlaws Old Practice By Legislators- Recalling Albany Bills Ruled Unconstitutional”, The New York Times, May 2, 1993, The Metro Section, at page B1.
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Town of Tonawanda v. Ayler, 115 AD2d 940 (4th Dept 1985), affirmed 68 NY2d 836 (1986) (Real property taxation- Small Claims Assessment Review Act)
Real Property Tax Law, Article 7, Title 1-A was enacted by the State Legislature in 1979 to create the small claims assessment procedure under which the owner-occupants of one-, two- or three-family homes who claimed to have unequal tax assessment could have their assessment reviewed before a hearing officer in an informal setting if the total anticipated tax reduction was less than $750.00. Before enactment of this procedure, a homeowner could challenge their assessment only by hiring a lawyer and probably an appraiser and commencing a full fledged lawsuit in State Supreme Court. Homeowners could not afford to challenge unfair assessments of their property, and the Legislature enacted the Small Claims Assessment Review Act to enable owner-occupants of one, two, and three family residential properties to challenge their assessments.
The Town of Tonawanda argued that this new tax law was a denial of Equal Protection guaranteed by the Fourteenth Amendment since it allowed only some property owners to dispute that their homes were assessed at a higher value than similar residential properties on the same tax roll, and Tonawanda refused to implement the small claims tax review procedure. Mr. Oliver, as counsel for NYPIRG, represented the Sheridan Parkside Citizens Alliance, a neighborhood group in the Town of Tonawanda.
The New York Court of Appeals held that the differentiation between owner occupants of one, two and three family residences and other property owners was a rational classification related to a legitimate governmental interest. The Court held that the assessment reduction review procedure in State Supreme Court imposed an “undue burden” on owner-occupants of one, two or three family homes when reviewing their tax assessments because it was “…so complex and expensive as to be prohibitive for the owners of such properties.” The Court of Appeals ruled that the classification of such owner-occupants did not violate the Equal Protection Clause. Further, the Court of Appeals held that towns and other taxing units did not have a right to opt out of the small claims assessment procedure, because allowing municipalities to opt out would frustrate the purpose of the statute.
The Small Claims Assessment Review Act has provided homeowners with an inexpensive and effective procedure to challenge excessive and unfair tax assessments of their homes.
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Justices of the Appellate Division, First Department v. Martin Erdmann; 39 AD2d 223 (3d Dept 1972), reversed 33 NY2d 559 (1973) (Freedom of speech to criticize judges)
Martin Erdmann was an attorney with the Legal Aid Society of the City of New York who was charged with professional misconduct and censured by the Justices of the Appellate Division, First Department. The charges were based on his statements and language quoted in a Life magazine article entitled “I Have Nothing To Do With Justice” and published in March 1971. Lawyer Erdmann referred to the courts within the First Department in Manhattan and said:
“There are so few trial judges who just judge… who rule on questions of law, and leave guilt or innocence to the jury. And Appellate Division judges aren’t any better. They’re the whores who became madams. I would like to [be a judge] just to see if I could be the kind of judge I think a judge should be. But the only way you can get it is to be in politics or buy it-- and I don’t even know the going price.”
The Justices of the First Department alleged that these statements were violative of enumerated sections of the Canons of Professional Ethics and Code of Professional Responsibility, and that by use of the unrestrained and intemperate language Erdmann had be guilty of lessening public confidence in the legal system and failing to uphold the dignity of the judiciary. The Appellate Division, Third Department found Erdmann guilty of professional misconduct and sustained the charges and censured him.
In the New York Court of Appeals, Mr. Oliver represented Erdmann on behalf of the Association of Legal Aid Attorney of the City of New York and wrote a amicus curiae brief. The Association of the Legal Aid Attorneys argued that Erdmann’s statements were public comment protected by the Freedom of Speech Clause of the First Amendment, and that Erdmann’s criticisms were true because the Justices of the Appellate Division, First Department were responsible for the broken criminal court system in Manhattan.
In a 5-2 decision, the Court of Appeals reversed the disciplinary order on the ground that “…isolated instances of disrespect for the law, judges and courts expressed by vulgar and insulting words or other incivility, uttered, written or committed outside the precincts of a court are not subject to professional discipline.” The charges of misconduct against Erdmann were reversed, and the Justices’ petition was dismissed.
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Goodwin v. Oswald, 462 F2d 1237 (2d Cir 1972) (First Amendment right of state prisoners to join a labor union)
After the rebellion at Attica state prison, Mr. Oliver was the first lawyer to work in the newly formed Prisoners’ Rights Project of the Legal Aid Society of the City of New York. A small group of prisoners at Greenhaven State Prison wished to form a union and contacted Legal Aid, and Oliver represented them. The leadership group circulated prisoner union sign up cards at Greenhaven, and 980 prisoners, representing almost half of the population and the leadership of all inmate groups at Greenhaven, signed union membership cards.
Mr. Oliver authored a seven-page organizing letter dated February 7, 1972 which went out to all 980 inmates and included copies of the union constitution and a letter to Commissioner Russell Oswald, who had presided over the Attica massacre of prisoners and correction officers, requesting that he recognize the union as bargaining agent for the prisoners at Greenhaven.
The prison administration at Greenhaven illegally intercepted all of the 980 letters, opened at least one of them marked as “CONFIDENTIAL – ATTORNEY – CLIENT PRIVILEGE” and refused to distribute them to the inmate members. The organizing letter contained language about the union that “… undoubtedly seemed unwarranted and threatening to the state” because of the “tense” atmosphere in state prisons after Attica. Outside supporters of the union movement included David Livingston, president of District Council 65, Eugene Callender, president of the New York Urban Coalition, Congressman Herman Badillo from the Bronx, and the NAACP Legal Defense Fund, among others. As a result of their backing, the higher ups at the Legal Aid Society were forced to back up Oliver in sending the organizing letter. The Legal Aid Society filed an action in the United States District Court for the Southern District of New York, and the District Court judge granted a preliminary injunction holding that the prisoners must be allowed to receive the letter concerning formation of the Union.
Commissioner Oswald appealed to the United States Court of Appeals for the Second Circuit. Oswald argued that the prison should be permitted to ban distribution of the organizing letter because formation of a prisoners’ union was illegal, a prisoners’ union would establish a center of power in the prison in opposition to the correction department’s administration, and distribution of the organizing letter would create a clear and present danger of disruption by the inmates at Greenhaven. The Second Circuit ruled that whether formation of a prisoner’s union was legal was dependent upon a separate proceeding before the State Public Employment Relations Board (PERB) and was not an issue on appeal, that the correction department’s fears about disruption at Greenhaven was speculative and unsupported by any factual evidence, and affirmed granting the preliminary injunction requiring distribution of the organizing letter to the inmates at Greenhaven.
Circuit Judge James Oakes issued a concurring opinion based on the rights of Freedom of Speech and the right to counsel of inmates under the First and Sixth Amendments in which he stated that there is nothing in state or federal law that forbids prison inmates from seeking to form an organization or agency representing groups of inmates concerned with prison conditions and inmate grievances. Judge Oakes stated: that the tragic experience at Attica would make correction officials open to
“…the tragic experience at Attica, see inmates of Attica Correctional Facility v. Rockefeller, 453 F2d 12 (2d Cir 1971), would make correctional officials, and an observer might think, seek more peaceful ways of resolving prison problems than in the old, ironclad, solitary–confinement, mail censoring, and dehumanizing methods that have worked so poorly in the past. Promoting or at least permitting the formation of a representative agency might well be, in the light of past experience, the wisest course for correctional officials to follow.***The formation of a prisoners’ “union,” even in its non rhetorical sense, does not strike me is a proposal totally unacceptable to society. Indeed, unless positive steps are taken by “management” – – the correctional authorities themselves – – to meet legitimate grievances, radically to change a system that is at least 100 years behind the times, and wholly to alter what Chief Justice Burger has referred to as the tendency “to regard all criminals is human rubbish,” one may surmise that inmate “unions,” or at least some form of collective inmate representation, are inevitable.” Goodwin v. Oswald, supra, 462 F2d at 1246 (Oakes, J, concurring).
Hon. Henry Friendly, Chief Judge, who had voted to approve the electrocution of Ethel Rosenberg even though there was no proof she knew that her husband Julius Rosenberg had supplied atomic bomb secrets to Russia, filed a dissent. Mr. Oliver continues to hope that prisoners will get collective power through unions or union type organizations, rather than inside the prison walls being controlled by racial groups or gangs.
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