MEDIA

August 9, 2002

Pro Se Collateral Attacks On State Court Convictions

Published in: New York Law Journal | volume 227
Written by: Peter R. Schlam and Harvey M. Stone

In the U.S. District Court for the Eastern District of New York, in the context of a sua sponte recusal, Judge Jack B. Weinstein discussed the traditional adversarial method and the newer "staff method" of dealing with pro se collateral attacks on state court convictions. Judge Raymond J. Dearie ruled on a variety of issues relating to the practice of the Taxi and Limousine Commission in suspending taxi licenses under Operation Refusal. And Judge Allyne R. Ross held that appointing Board of Education members did not violate the "one man, one vote" principle of equal protection.

Pro Se Habeas Petitions

In Rodriguez v. Mitchell, Supt., 94 CV 127 (EDNY, June 14, 2002), Judge Weinstein recused himself from considering a pro se habeas corpus petition challenging a 1982 state court murder conviction where petitioner refused to accept help from the counsel assigned to him. Petitioner’s refusal made it impossible for the court to adjudicate this matter fairly using the traditional adversarial mode, rather than the more modern "staff method," for dealing with pro se habeas petitions.

The instant petition, part of a complex history of petitioner’s habeas litigation, claimed ineffective assistance of counsel based on his trial attorney’s mental illness. In June 2001, Judge Weinstein appointed an attorney to represent petitioner in pursuing this claim.

Respondent, the Kings County District Attorney’s Office, submitted "powerful" arguments against the petition. Petitioner’s habeas counsel submitted a "terse, but excellent" brief. Petitioner himself submitted a more extensive brief and asked to have appointed counsel dismissed. In a telephone hearing, Judge Weinstein strongly suggested to petitioner that he needed counsel to deal with "enormous" substantive and evidentiary problems. With little or no basis, petitioner persisted in his refusal to accept the assigned attorney.

Here, Judge Weinstein was using the "traditional" method of dealing with challenges to state convictions under 2254. Under this method, preferred by Judge Weinstein, when the petition is filed, the case coordinator issues an order to show cause to respondent. After both sides have briefed the issues, a hearing is ordered. The petitioner, usually incarcerated, participates in the hearing by phone from prison. If the hearing requires his physical presence, he is produced in the courtroom. When the petition appears to have any merit, the court appoints counsel and holds further hearings.

As Judge Weinstein observed, "Unless the skilled representative of the respondent is balanced by an attorney for petitioner, the possibility of a fair trial is reduced. This requirement of counsel for fair adjudication is a bedrock principle of the Anglo-American system of justice where the court’s role is relatively passive, and adversaries have the burden of acquiring and presenting evidence and arguments." Slip op. 6. The knowledge that an Article III judge is actively involved in the case "may provide a certain psychological assurance to petitioners who sometimes fear that their pleas for justice are being … given short shrift." Id.

The newer "staff method," now used by almost all Eastern District judges, is somewhat akin to the Continental approach, "in which judicial investigation plays a prominent role and adversarial representation is diminished." Slip op. 7. Under the staff method a "highly qualified specialist in this field" (Lois Bloom) was appointed as a magistrate judge. With assistance from her clerk and the court’s pro se clerks, she passes on habeas petitions in the first instance, providing memoranda and recommendations. Judge Weinstein noted that the staff method seems to be working well – and "may be more thorough, fair, and satisfactory" than the traditional system. Slip op. 8.

Judge Weinstein concluded:

Given my own continuing preference for the traditional mode, I cannot effectively adjudicate this complex matter without the assistance of counsel for the petitioner. There is no basis for burdening another member of the court’s panel of habeas corpus attorneys since the attorney already rejected by petitioner was appropriate and adequate. Accordingly, the court recuses itself. (Slip op. 8-9)

Due Process: ‘Operation Refusal’

In Padberg v. McGrath-McKechnie, 00 CV 3355 (EDNY, April 26, 2002), Judge Dearie, granting plaintiffs’ motion for summary judgment in part and denying it in part, found that the policy of the New York City Taxi and Limousine Commission (TLC) in summarily suspending taxi drivers’ licenses did violate due process, but that suspending licenses after a hearing for first and second service refusal offenses did not. The court also found that plaintiffs’ evidence of possible bias on the part of the administrative law judges (ALJs) for the TLC was strong enough to withstand defendants’ cross-motion for summary judgment on the suspension and revocation policy. An earlier decision in this action denying plaintiffs’ motion for a temporary restraining order and a preliminary injunction was discussed in this column in the Oct. 13, 2000 issue of the New York Law Journal.

"Operation Refusal" was commenced by the TLC in 1999 to increase disciplinary action against taxicab drivers who refuse taxi service on impermissible grounds. Plaintiffs are individual taxicab drivers who have had their licenses summarily suspended or permanently suspended or revoked and the New York Taxi Workers Alliance (NYTWA), an organization of some 2000 taxicab drivers. Plaintiffs claimed that Operation Refusal violates their due process rights in two ways: (1) by summarily suspending taxicab licenses upon a charge of service refusal and (2) by suspending or revoking licenses, after a hearing, for first and second service refusal offenses.

The NYTWA had standing, Judge Dearie observed, to assert a 1983 claim for violation of its own civil rights. The NYTWA had shown an injury in fact because Operation Rescue resulted in a diversion of NYTWA resources from activities aimed at bettering the lives of all taxicab drivers to providing counseling on TLC service refusal rules and other individual services.

Summary Suspension

Next, Judge Dearie granted plaintiffs’ motion for summary judgment on their due process claims challenging the summary suspension process. Taxi drivers have a strong property interest in their licenses sufficient to trigger due process protection, because suspending licenses deprives drivers of their livelihood. Defendants’ interference with this significant interest was exacerbated, the court noted, by the duration of the summary suspension and the illusory protections in the TLC Rules. The court also found a strong risk of erroneous deprivation because (1) the TLC inspector bringing the charge could misinterpret the reason for refusal and (2) the licenses were suspended before the drivers had an opportunity to present evidence, or even speak at a hearing. Additionally, the government interest was not pressing because there was no immediate threat to the public health and safety. Balancing the taxi drivers’ compelling interest in their licenses and the risk of erroneous deprivation against the city’s important, but not immediate, need to discipline drivers who refused service, Judge Dearie held that depriving plaintiffs of a pre-suspension hearing violated their due process rights.

The court rejected plaintiffs’ challenge to the TLC’s practice of suspending taxicab licenses, after a hearing, for a first or second service refusal. The TLC’s action was not an arbitrary or gross abuse of its powers, and "merely ‘incorrect’ or ‘ill-advised’ government action does not violate substantive due process." Slip op. 34. Defendants, the court noted, "were acting pursuant to authority that they believed they possessed in order to further the legitimate interest of eliminating racial discrimination among taxicab drivers." Slip op. 38.

As Judge Dearie also found, the suspension and revocation policy was not unconstitutionally vague, but evidence of bias in TLC ALJ adjudications was strong enough to defeat defendants’ cross-motion for summary judgment pending further discovery. To support their claim of bias, plaintiffs pointed to a memorandum sent by the chief administrative law judge to the rest of the TLC ALJs regarding adjudication of service refusal cases under Operation Refusal. According to the memorandum, the commission’s policy required unjustified refusal violations to be sustained. Plaintiffs argued that this memo was intended to influence the fact-finding process and pressure the ALJs to impose heightened penalties. In Judge Dearie’s view, the memo raised

a legitimate question as to whether the TLC ALJs were finding violations of both rules based on the facts of the case, or whether they were ‘prejudging the facts’ and merely tacking on a finding of liability under [the statute] and revoking licenses pursuant to the TLC policy.

Slip op. 43.

Equal Protection

In Cohanim v. New York City Board of Education, 00 CV 1783 (EDNY, May 12, 2000), Judge Ross held that, because members of the board of education were appointed rather than elected, the method of choosing them did not violate the "one person, one vote" principle. Rejecting plaintiff’s equal protection claim, the court dismissed the complaint.

The New York City school system is composed of community school districts, each governed by an elected board. A citywide school board (the board), the defendant here, oversees the system. In 1973 the Legislature provided that the board would include seven members, two selected by the mayor and one selected by each of the borough presidents.

Plaintiff is a Queens voter and parent of children in Queens public schools. Pointing to the unequal population of the boroughs and the representation of each by a single board member, she alleged a violation of the "one person, one vote" principle.

As Judge Ross stated, the Equal Protection Clause requires that "whenever popular elections to state and local bodies performing governmental functions involve multiple electoral districts, each district must elect a number of officials proportionate to its number of voters." But the "one person, one vote" standard does not apply to appointed bodies. This, the court emphasized, is the clear holding of Sailors v. Board of Educ., 387 US 105 (1967).

According to plaintiff, Sailors did not decide whether "one person, one vote" applies to appointed boards, but held only that, since the school board there performed administrative as opposed to legislative functions, the "one person, one vote" principle did not apply.

‘Sailors’ View Untenable

This view of Sailors, Judge Ross concluded, is untenable. "One person, one vote" was found not to apply there "not because the board was administrative, but because the board was appointed." Slip. Op. 5. And the question that Sailors declined to address involved whether appointed bodies performing legislative functions were permissible in the first instance – not whether "one person, one vote" applied to such bodies.

As Judge Ross explained, subsequent decisions have reinforced the key point that "one person, one vote" does not come into play when officials are appointed rather than elected.

Peter R. Schlam and Harvey M. Stone are partners at Schlam Stone & Dolan.

[This article is reprinted with permission from the August 9, 2002, issue of the New York Law Journal. Copyright © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]