Elizabeth A. Garry, Presiding Justice, Appellate Division, Third Department

The Appellate Division, Third Department occupies a unique position among the three branches of our New York state government, both geographically and legally. Our courthouse is located in the Robert Abrams Building for Law and Justice in the Empire State Plaza, just across the street from the State Capitol, and next door to the Legislative Office Building, where members of the Assembly and Senate keep their Albany offices. Other Empire State Plaza neighbors include the Erastus Corning Tower and the Agency Buildings, housing various executive departments. We are thus quite literally surrounded by our counterparts in state government; this is further revealed in our considerable administrative law caseload, which consistently reveals the balance and interplay between the legislative, executive and judicial branches.

We are reminded of the wisdom and foresight of the individuals who crafted our system of government when we see the separation of powers at work in our courtroom. As the branches occasionally struggle with the scope of their respective powers, and as we in the courts work to uphold our judicial duties without encroaching on our legislative and executive colleagues, it is clear that checks and balances are as fully relevant and important today as they were at our nation’s founding.

Administrative determinations are one of the primary ways that government affects the daily lives of our citizens. CPLR Article 78 proceedings challenging these determinations are commonly where we see the separation of powers in action. Our court hears cases challenging the disciplinary actions of public employers, the denial of government benefits, prison disciplinary proceedings, parole board determinations, tax assessments, professional discipline and license revocations, and zoning board determinations, among many others. The Third Department hears a particularly large volume of these cases because our region is home to so many government agencies; in addition to Article 78 proceedings, we have exclusive jurisdiction to review appeals from workers’ compensation law (N.Y. Workers’ Compensation Law §23) and unemployment insurance determinations (N.Y. Labor Law §624).

As the courts’ role in CPLR Article 78 proceedings is intended to serve as a check—often on executive branch authority—our standard of review is highly deferential. In accord with the statute empowering us to review government actions, these cases may hinge upon whether “substantial evidence” supports a determination or whether it was “arbitrary and capricious,” an “abuse of discretion,” or lacking a rational basis. CPLR 7803. The Court of Appeals has generally explained that “rationality is what is reviewed under both the substantial evidence rule and the arbitrary and capricious standard” (Matter of Pell v. Bd. of Ed. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 N.Y.2d 222, 231 (1974)) and instructed that “where a determination is made and the person acting has not acted in excess of his jurisdiction, in violation of lawful procedure, arbitrarily, or in abuse of his discretionary power, including discretion as to the penalty imposed, the courts have no alternative but to confirm his [or her] determination.” Id.

We are not to substitute our judgment for that of the agency decision maker “unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion.” Id. at 232 (internal quotations and citations omitted). We may not look beyond the grounds stated in the determination (Parkmed Assoc. v. New York State Tax Com’n, 60 N.Y.2d 935, 936 (1983)), and administrative hearings are not held to the same rules of evidence that would apply in court (Sowa v. Looney, 23 N.Y.2d 329, 333 (1968)). The Court of Appeals has expressly rejected the “legal residuum rule and the doctrine … that annulment was in order where the agency’s findings were such that a jury’s verdict to the same effect would be set aside by the court as against the weight of evidence.” 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180 n.* (1978).

As a result, it may appear that we review the decisions of our judicial colleagues working in trial courts more closely than those of administrative law judges and other non-judicial government actors who apply and interpret laws and regulations. This is so because, unlike our review of judicial action, our review of administrative action is a statutory exception to the general rule that the branches of government will not interfere with one another. The Court of Appeals has noted, for instance, that “‘this grant of power must be reasonably construed in the light of the settled principles governing the relationship between the courts and the administrative agencies’,” (Matter of Pell, 34 N.Y.2d at 232–33 quoting Stolz v. Bd. of Regents of Univ., 4 A.D.2d 361, 364 (3d Dept. 1957)) and our highly deferential standards of review have evolved accordingly.

This can be a difficult balancing act. In these cases, individuals may be facing serious discipline, losing their livelihoods due to a professional license revocation or being denied access to medical care or other government benefits. In some of the cases we review, we might have reached a different determination than that of the administrative decision maker if the initial decision had been ours to make. On one hand, the Legislature intended that we “ameliorate harsh impositions of sanctions by administrative agencies” and “accomplish what a sense of justice would dictate,” but on the other hand, we must respect the principle that “it is the agency and not the courts which, before the public, must justify the integrity and efficiency of their operations.” Matter of Pell, 34 N.Y.2d at 235.

In seeking this balance, we are continually exploring and occasionally redefining the boundaries of our deference, and it is a challenging area of law. The agencies act, and we in the judicial branch review, their actions within the framework set forth by the Legislature; the evolution of our decisions in this area of law vividly reveals the separation of powers at work.

This same principle applies when we are asked to review an issue more appropriately suited for action by the Legislature. Even where the legislative branch has declined to act, principles of justiciability may prevent us from acting in their stead. As an example, earlier this year I wrote a decision in a case where our court was asked to direct the State Board of Elections to rescind an opinion treating LLCs as persons for the purpose of determining campaign contribution limits. Matter of Brennan Ctr. for Justice at NYU School of Law v. New York State Bd. of Elections, – A.D.3d –, 2018 NY Slip Op 02227 (3d Dept. 2018).

This is undeniably an issue of great importance, as presented by petitioners. Nonetheless, the majority held that we could not reach and address petitioners’ request—because to do so would violate the separation of powers. We held that the issue posed was not appropriate for judicial resolution because it was an action that must be left to the Legislature, which had conferred authority upon the Board to render this determination.

This is just one very recent example of the practical implications of the separation of powers set forth in the constitutions of the United States and the state of New York. Of course, our system of government was designed this way because it is ultimately within the power of the people to elect a legislature that will address any matter the current body is unable or unwilling to grapple with. Even when there is a void, or potential inaction, the constitutional separation of powers may operate to prevent other partners in government from stepping in to take charge.

Elizabeth A. Garry is Presiding Justice of the Appellate Division, Third Department.