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Judicial Compensation-NYS

THE PEOPLE FIGHT BACK!

*   *   *

the unprecedented health care facilities statute challenged in
Mary McKinney v NYS Dept of Health
, etc.,
covered up by the courts
& whose progency is the equally unprecedented judicial compensation statute,
challenged by CJA's lawsuit
 

see pages 9-10: May 2007 REPORT OF THE COMMITTEE ON STATE AFFAIRS OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK: "Supporting Legislative Rules Reform: The Fundamentals" -- identifying the health care facilities statute as the product of a dsyfunctional Legislature, that it intended to file amicus curiae brief, etc., and that  --


"... no less than seven lawsuits have been filed seeking to enjoin and/or invalidate the commission and/or its recommendations.
... the triggering provision of the enabling legislation required the Governor or the Legislature to specifically negate the recommendations ... in order to prevent them from taking effect."
    

              

 

Chapter 63 Part K of the Laws of 2005                   

*  *  *

Mary McKinney and
Mechler Hall Community Services, Inc.
v.
The Commissioner of the New York State Department of Health; the New York State Department of Health,
and the State of New York

(Index #6034/07, Bronx County)

Plaintiffs' January 3, 2007 Verified Complaint

Plaintiffs' January 3, 2007 Order to Show Cause for Preliminary Injunction with TRO, signed by Bronx Supreme Court Justice Mary Ann Brigantte-Hughes   

Plaintiffs' January 26, 2007 reply affirmation in further support of order to show cause & in opposition to defendants' motion to dismiss

Plaintiff's January 26, 2007 reply memorandum of law in further support of order to show cause & in opposition to defendants' motion to dismiss

Attorney General's February 5, 2007 notice of appeal

Justice Brigantte-Hughes' March 8, 2007 decision    in the original

Plaintiffs' March 14, 2007 notice of appeal

Plaintiffs' March 14, 2007 appeal brief

Plaintiffs' March 29, 2007 motion in support of expedited appeal, preliminary injunction   &  Plaintiffs' March 29, 2007 memorandum of law in support of expedited appeal, preliminary injunction

Appellate Division, First Department's June 19, 2007 affirmance, by Justices Friedman, Nardelli, Buckley, Sweeny, & Malone    

Court of Appeals' September 6, 2007 decision, dismissing appeal of right, "sua sponte, upon the ground that no substantial constitutional question is directly involved"

Plaintiffs' September 20, 2007 motion for leave to appeal to the Court of Appeals

"...In a type of legislative delegation never before seen in this State, the New York Legislature created a temporary commission (known as the 'Berger Commission') and empowered it to make laws affecting the distribution of healthcase throughout the State, at the expense of hundreds of millions of State funds....
   Though temporary commissions have occasionally been used in the past to develop recommendations for consideration by the Legislature, never before has a temporary commission been empowered with the authority to make determinations that take on the force of law without any action taken by the Legislature..."  (at pp. 2-3)

September 26, 2007 motion by the Association of the Bar of the City of New York to file an amicus curiae brief in support of plaintiffs-appellants' motion for leave to appeal  -- moving affirmation: see para 2: 

 "...The question for which plaintiffs-appellants seek leave to appeal...is an important one...to our democratic institutions generally.  The 'legislation by inaction' model created by the Enabling Legislation L.2005, ch.63, Part E..., and the embedded potential for error or abuse in that paradigm, should not be allowed to supplant constitutionally mandated decision making by the Legislature.  The question for which plaintiffs-appellants seek leave to appeal must be carefully reviewed now because it will recur in other contexts if approved here."

-- City Bar's amicus curiae brief, October 3, 2007    

   "...the courts below failed to appreciate the extraordinarily broad lawmaking powers that were granted to the Berger Commission..and created dangerous precedent that allows legislators to relinquish their constitutional responsibilities to enact laws and institute policies on behalf of the voters to whom they must be politically-accountable..."  (at p. 11)

"It is no coincidence that the parties have been unable to cite to New York precedent that analyzes the delegations of legislative authority in a form similar to the Berger Commission.  The truth is that the Enabling Legislation created a process of lawmaking never before seen in the State of New York, whereby an unelected commission was granted broad discretion to restructure the state's delivery of services to its constituents, and whose final recommendations have been thrust upon state residents with the force of law without legislative review, approval or accountability...
    This novel form of legislation is in direct conflict with representative democracy and cannot withstand constitutional scrutiny.  By failing to appreciate the breadth of authority granted to the Berger Commission...the courts below ignored New York's established non-delegation doctrine.  If this legislation is allowed to stand, it will mean that lawmaking can be shielded from public scrutiny and state policy without accountability to New Yorkers..."  (at pp. 24-5)

"One of the most unusual features of the Enabling Legislation -- not acknowledged by the courts below -- is the 'self-executing' mechanism by which the recommendations formulated by an unelected commission automatically become law...without any legislative action.  The significance of this aspect of the Enabling Legislation cannot be overstated....
     ...the Appellate Division fail[ed] to identify this key difference between the Enabling Legislation and any other known law..."  (at pp. 28-9)

"...should this Court [of Appeals] deny Appellants' motion for leave to appeal, and thereby permit the Enabling Legislation and the Berger Commission's Final Report to stand, it will set the stage for the arbitrary handling of public resources under the guise of future temporary commissions that are not subject to public scrutiny or accountability."  (at p. 36).

 

Court of Appeals' November 27, 2007 decision granting Association of the Bar of the City of New York permission to file amicus brief

Court of Appeals' November 27, 2007 decision denying leave to appeal

 

*   *   *
THE OTHER SIX CHALLENGES
TO HEALTH FACILITIES STATUTE

From Erie County

St. Joseph Hospital of Cheetowaga, New York and Catholic Health System, Inc.
v.
Antonia Novello, as New York State Health Commissioner, New York State Commission on Healthcare Facilities in the 21st Century, and George E. Pataki, as governor of the Stte of New York, and the State of New York
(Index # 11568/06, Erie County)

Supreme Court, Erie County Justice Joseph Mintz' February 2, 2007 decision

Appellate Division, Fourth Department's July 18, 2007 decision by Justices Centra, Scudder, Lunn, and Peradotto -- with dissent by Justice Fahey, who would have held the statute unconstitutional

Court of Appeals' November 27, 2007 decision, dismissing appeal, of right, "sua sponte, upon the ground that no substantial constitutional question is directly involved."

Court of Appeals' February 12, 2008 decision denying leave to appeal "with one hundred dollars costs and necessary reproduction disbursements."

 

From Albany County

William E. Scheuerman, Individually and as President of United University Professions; United University Professions, and Dr. Umeshandra Patil
v.
State of New York, Eliot Spitzer, as Governor of the State of New York; Department of Health of the State of New York; Dr. Richard Daines, Individually and as Commissioneer of Department of Health of the State of New York; Maryanne Gridley, Individually and as Executive Director of the Dormitory Authority of the State of New York; Commission on Health Care Facilities in the 21st Century, Stephen Berger, as Chair of the Commission on Health Care Facilities in the Twenty-First Century (Defendants) and State University of New York; John R. Ryan, as Chancellor of the State University of New York; the Board of Trustees of the State University of New York; Thomas F. Egan, as Chairman of the Board of Trustees of the State University of New York; the State University of New York Health Science Center at Syracuse; Dr. David Smith, as President of the SUNY Health Science Center at Syracuse, and Vrouse Hospital, d/b/a Crouse Hospital (Permissive Party Defendants)
(Index #2474/07, Albany County)

 

From Oswego County

The Albert Lindley Lee Memorial Hospital
v.
The Commissioner of the New York State Department of Health; the New York State Department of Health; Eliot Spitzer, as Governor of the State of New York; and the State of New York
(Index #07-0509, Oswego County)

 

From Albany County, also

Danny Donahue, Individually and as President of the Civil Service Employees Association, Inc., Local 1000; AFSCME, AFL-CIO; Civil Service Employees Association, Inc., Local 1000; AFSCME, AFL-CIO; Hellen Czerwinski; David Quimby; Ralph Sorrentino, and Barbara L. Taylor
v.
Richard F. Daines, as Commissioner of the New York State Department of Health; New York State Department of Health; Eliot Spitzer, as Governor of the State of New York, and State of New York

(Index #  , Albany County-Article 78)


From Westchester County

Community Hospital at Dobbs Ferry
and St. John's Riverside Hospital
v.
Antonia C. Novello, as Commissioner of the New York State Department of Health; the New York State Commission on Healthcare Facilities in the 21st Century; Stephen Berger, as Commissioner of the New York State Commission on Healthcare in the 21st Century; George E. Pataki, as Governor of the State of New York, and the State of New Yo
rk
(Index #24650, Westchester County)

From Albany County, again

Cabrini Medical Center
v.
Antonia C. Novello, as Commissioner of the New York State Department of Health; the New York State Commission on Healthcare Facilities in the 21st Century; George E. Pataki, as Governor of the State of New York, and the State of New Yor
k
(Index #9015, Albany County)

 

 

 

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