Jurisdictional Statement — Horodner v. Fisher

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. ’ ‘Court, U. %

FILED ‘%

] MAY 24 1976

IN THE Pree

SUPREME COURT of the UNITED STATES

October Term, 1975

wo. @5-1699

’ \j

Mark H. Horodner,

Appellant,

vs.

Arnold R. Fisher as Commissioner

of the New York State Department

of Motor Vehicles

Louis J. Lefkowitz as Attorney

General of the State of New York

Hon. Henry Wenzell III District

Attorney of the County of Suffolk

of the State of New York,

Appellee.

On Appeal From the Court of Appeals

of the State of New York

MARK H. HORODNER,

Appellant, Pro Se

131 Wynsum Avenue

Merrick, New York

11566

(516) 466-4123

(213) 893-3212

TABLE OF CONTENTS Page

The Opinions Below .ececccccrcsccceeveeld

Jurisdictional Statement ...ceceeceeeere

Questions Presented by Appeal ......+++4

Statement of the Facts of the Case ....5

The Federal Question Presented ........6

Reasons for Granting the Appeal ......+7

Conclusion cccccccccccccvccccccsccccseseds

Notice of Appeal U.S. Supreme Court ..12

Appendix A Decision of the Court of

Appeals of the State of New York ....A-1l

Appendix B Appellate Division, Second

Department, of the Supreme Court ....B-l

Appendix C Decision of the Supreme

Court of Suffolk County .....-eeeeee-CHl

Table of Authorities

CASES:

Application of Gault, 87S.CT.1428(1967)u

Bell v. Burson, 02 U.S. 535(1971).7,10,11

Cicchetti v. Lucey, 377 F.Supp.215(1974).9

Ferguson v. Florida,368U.S. 570(1961)..4

Giaccio v. Pennsylvania, 38U.S. 399(1966).4

Holland v. Parker, 354 F.Supp.196(SD 1973).9

Hoyt v. Florida, 368 U.S. 57 (1961)....4

Jennings v. Mahoney,4Ok U.S. 25 (1971).8

Reese v. Kassab, 334 F.Supp.744 (1971).8

Stauffer v. Weedlun,188Neb.105,195 N.wW.

2d 218(1972), appeal dismissed 09 U.S

972 (1973) Seueseuee 2éetbaneteeanseadesen

Warner v. Trombetta, 348F. Supp.160(1972)

aff'd 410 U.S. 919 ie eh os tes oes seoeeet

STATUTES:

Section 510 2(a) (iv) of the Vehicle

and Traffic Law of New York ...ccceceeed

CONSTITUTIONAL PROVISONS:

Fourteeth Amendment of the United

States Constitution ...5,6,7,8,9,10,11

UNITED STATES CODE:

Title 28, U.S.C. Section 1257(2) ....3,12

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1975

No.

Mark H. Horodner,

Appellant,

Arnold R. Fisher,

as Commissioner of

Motor Vehicles, et al.,

Appellee.

On Appeal From the Court of Appeals

of the State of New York.

JURISDICTIONAL STATEMENT

THE OPINIONS BELOW

The Memorandum Decision of the Court

of Appeals of the State of New York is

reported at 38 NY2d 680, and appears herein

as Appendix A. The Appellate Division of

the Supreme Court of the State of New

York, Second Judical Department wrote no

opinion, but the order of affirmance is

reported at 363 NYS2d 315, 46 aAD2d 887,

and is reprinted in Appendix B. The

opinion of the Supreme Court of the State

of New York County of Suffolk is not

officially reported, but is reprinted in

Appendix C.

STATEMENT OF THE GROUNDS ON WHICH THE

JURISDICTION OF THIS COURT IS INVOKED

(i) This is civil action brought on

by the Appellant attacking the constitu-

tionality of Section 510 of the Vehicle

and Traffic Law of the State of New York,

Section 510 of the Vehicle and Traffic

Law of the State of New York provides for

Suspensions and revocations of driver's

licenses, without providing for a notice

and hearing prior to such suspension or

revocation. Appellant contended that

Section 510 of the Vehicle and Traffic

Law of the State of New York is invalid

because it is repugnant to the Fourteenth

Amendment, Due Process Clause to the

Constitution of the United States. The

decision of the New York State Court of

Appeals was in favor of the validity of

Section 510 of the Vehicle and Traffic Law.

(ii) The judgment or decree sought

to be reviewed is the decision of the

Court of Appeals of the State of New York

affirming the constitutionality of Section

510 of the Vehicle and Traffic Law. That

decision was issued on February 26, 1976.

No petition for rehearing was filed. The

Notice of Appeal was filed in the Supreme

Court of Suffolk County of the State of

New York, the court posessed of the re-

cord, on May 1l, 1976.

(iii) Jurisdiction of the appeal is

conferred on this Court by Title 28 of the

United States Code, Section 1257 (2).

(iv) The validity of Section 510 of

the Vehicle and Traffic Law of the State

of New York is here involved. The section

of this law is as follows:

510. Suspensions, revocation and

reissuance of licenses and certificates

of registration

2. Mandatory revocations and suspen-

sions. a. Mandatory revocations. Such

licenses shall be revoked and such cer-

tificates of registrations may be revoked

where the holder is convicted:

(iv) of a third subsequent violation,

committed within a period of eighteen

months, any provision of section eleven

hundred eighty of this chapter, any ordin-

ance or regulation limiting the speed of

motor vehicles and motorcycles or any pro-

vision constituted a misdemeanor by this

chapter, not included in subparagraph (i)

or (iii) of this paragraph, except viola-

tions of subdivision one of section three

hundred seventy-five of this chapter or

of subdivision one of section four hundred

one of this chapter and similar violations

under any local law, ordinance or regula»

tion committed by an employed driver if

the offense occurred while operating, in

the course of his employment, a vehicle

not owned by said driver, whether such

turee or more violations were repetitions

of the same offense or were different

offenses.

(v) Cases sustaining the jurisdic-

tion of this Court are:

Application of Gault,87S.CT. 1428(1967);

Giaccio v. Pennsylvania, 382US 399(1966);

Hoyt v. Florida, 368US 57 (1961);

Ferguson v. Georgia, 365US 570 (1961).

QUESTION PRESENTED BY THE APPEAL

The following question is presented

by this appeal:

Does a state statute that denies the

right of Due Process in the revccation of

a drivers license which is a property

right, violate the Fourteenth Amendment

to the United States Constitution?

STATEMENT OF THE FACTS OF THE CASE

Petitioner's license to operate a

motor vehicle was automatically revoked

by the Department of Motor Vehicles on

September 28, 1972 as the result of three

speeding convictions within a period of

eighteen months (Vehicle and Traffic Law,

section 510, subdivision 2(a) (iv) ). On

January 2, 1973 petitioner was charged

with a misdemeanor for driving a motor

vehicle while his license to do so was re-

voked (Vehicle and Traffic Law, section

511). Petitioner entered a guilty plea on

September 19, 1973 resulting in a judgment

of conviction. A notice of appeal to the

Appellate Term, Ninth and Tenth Judicial

District was filed but the appeal was

dismissed for lack of prosecution on June

S, 1974.

In the interim, by an Order to Show

Cause dated October 9, 1973, petitioner

brought on this Article 78 proceeding not

only to set aside the revocation but to

stay sentence on the prior misdemeanor

conviction. By a decision dated December

3, 1973 and judgment entered December 18,

1973 the Supreme Court, County of Suffolk

(William L. Underwood, Jr. ) dismissed the

BEST GOPY AVAILABLE |

petition on the basis that the statute pro-

viding for automatic revocation did not a-

bridge due process requirements since peti-

tioner had had an ample opportunity to be |

heard before a judicial tribunal on each

of the three speeding convictions. The

Appellate Division, Second Judicial Depart-

ment unanimously affirmed that dismissal

by an order dated November 29, 197. On

December 26, 197, petitioner filed a Notice

of Appeal to the Court of Appeals of New

York State, the appeal was submitted Jan-

uary 9, 1976; and decided February 26, 1976,

upholding the constitutionality of section

510 of the Vehicle and Traffic Law and not

requiring a hearing prior to revocation of

a driver's license. The Memorandum Decis-

ion is herein as Appendix A. The Court of

Appeals of the State of New York is the

highest court in the State of New York.

THE FEDERAL QUESTION PRESENTED IS

SUBSTANTIAL

If this case had been heard in a

federal court, the appellant unquestion-

ably would have had the New York State

Vehicle and Traffic Law section 510

declared unconstitutional for not pro-

viding for a hearing prior to revocation

and affording the appellant his due pro-

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cess protection of the Fourteenth Amend-

ment of the United States Constitution.

Reasons for Granting the Appeal

The New York Court of Appeals decision is

in conflict with this Court's rulings de-

fining the constitutional limits on a

state's power to revocate a driver's

license, without a prior hearing.

The emerging law requiring a hearing

in advance of the revocation of a driver's

license stems from the decision of this

Court in Bell v. Burson, 02 U.S. 535

(1971). The Court ruled that "licenses

are not to be taken away without that pro-

cedural due process required by the Four-

teenth Amendment" (p. 539). The required

due process, the Court held, consisted of

affording the motorist "notice and oppor-

tunity for a hearing". Most significantly,

this notice and hearing must be afforded

"before the termination becomes effective"

(p. 542) (emphasis by the Court).

Bell v. Burson has been the progen-

itor of numerous and divergent lower court

decisions involving mandatory suspensions

or revocations of driver's licenses under

statutes like section 510, subd. 2(a) (iv).

In Reese v. Kassab, 334 F. Supp. 7h

(W.D. Pa 1971), a three-Judge panel held

unconstitutional a Pennsylvania statute

providing, without a prior hearing, for

mandatory suspension for 60 days of the

driver's license of any motorist who had

accumulated 11 points. The Court held that

due process required "notice" and "an ad-

ministrative hearing" at which there was

an “opportunity to rectify error".

The New York State Court of Appeals in

appellant's case used a contrary holding in

another point system case of Stauffer v.

Weedlun, 188 Neb. 105, 195 N.W. 2d 218

(1972), appeal dismissed, 09 U.S. 972

(1973). The Nebraska court's decision was

that the U.S. Supreme Court in Jennings v.

Mahoney, 40k U.S. 25 (1971), had held that

due process was not violated where the

motorist obtained a court stay of the lic-

ense revocation and a court hearing prior

to the effectiveness of the revocation.

The stay procedure described by the Supreme

Court in Jennings also had occurred in

Stauffer v. Weedlun .

That the Supreme Court's dismissal

of the appeal in Stauffer v. Weedlun was

based upon the Jennings ground that the

constitutional issue was not presented in

view of the Court stay, and not upon agree-

ment with the Nebraska Court's holding was

later demonstrated by Warner v. Trombetta,

348 F. Supp. 1060 (N.D. Pa. 1972), aff'd,

410 U.S. 919 (1973). The three-Judge court

in Warner held unconstitutional a Pennsyl-

vania statute which did not provide for a

hearing in advance of a mandatory license

revocation.by the Secretary of the Depart-

ment of Transportation upon conviction for

leaving the scene of an accident. The

Supreme Court's affirmance, in a case in

which the ground for revocation can be re-

garded as even more egregious than the

three speeding convictions in 18 months

involved in this case, reflects the Supreme

Court's latest views.

Another case in point is Cicchetti v.

Lucey, 377 F. Supp. 215 (D. Mass. 197),

where the Court held unconstitutional a

Massachusetts statute calling for manda-

tory suspension, without prior hearing, of

the license of a driver who, without good

cause, failed to appear in traffic court.

In Holland v. Parker, 354 F. Supp 196

(SD 1973) rejected the contention set forth

Stauffer v. Weedlun, supra, that due process

requirements had been satisfied by a post

revocation stay. In Holland v. Parker the court

held that South Dakota's implied consent

statute was unconstitutional for not pro-

viding for a hearing prior to the revoca-

tion of a driver's “*icense for failure of

the motorist to take a chemical analysis

of his blood. Any driver whose license

was revoked or suspended could upon appli-

cation by the way of petition within 30

days file for a hearing in the circuit

court, the license to drive in the interim

would remain cancelled or revoked. The

court reasoned that if a driver's license

is to be taken away from the licesee,

procedural due process requirement has to

be meet by a hearing prior to the taking.

Rejecting the contention that South Dakota's

implied consent statue met the requirements

of an"emergency situation" under Bell v.

Burson, the court declared that summary

action to remove from the roads the recal-

citrant, potentially drunk driver since

the basis for revocation without prior hear-

ing was not intoxication, but refusal to

take the test.

The "Emergency Situations" exceptions to

Bell v. Burson does not apply to Vehicle

and Traffic Law Section 510, Subd. 2 (a)

(iv). The courts in Reese v. Kassab and

Warner v. Trombetta and Holland v. Parker,

supra, did not discuss the Supreme Court's

recognition in Bell v. Burson, supra, that

in “emergency situations," due process may

not require a hearing in advance of govern-

mental interference with substantial inter-

est. Yet, it is implicit in those decisions

that the "emergency situations" exception

did not apply to the license revocations

there involved. The Supreme Court's affir-

mance of Warner v. Trombetta, is another

implicit decision on that point.

CONCLUSION

By the long line of cases on point it be-

comes apparent that proper adjudication of

this ever increasing issue has only been

achieved in a federal jurisdiction. It

becomes a paramount problem when the states

refuse to follow the edict of the Supreme

Court of the United States, for these

reasons the Supreme Court should decree

a once and for all ruling on the issues

brought on this appeal.

Respectfully submitted,

Mark H. Horodner

Appellant, Pro se

131 Wynsum Ave.

Merrick, New York 11566

(516) 466-4123

May 19, 1976

In the New York State

Court of Appeals State

of New York

Se eee ----- SUFFOLK COUNTY

Mark H. Horodner, INDEX No.13789-73

Appellant, NOTICE OF APPEAL

-against- from State Court, -

Civil Case

Louis J. Lefkowitz Att.

General, State of New York

AND

Arnold R. Fisher Comm. of

Department of Motor Vehicles

State of New York

AND

Hon. Herny Wenzell III

District Attorney of Suffolk

County State of New York

Respondents.

NOTICE OF APPEAL TO THE UNITED STATES

SUPREME COURT

Notice is hereby given that Mark H.

Horodner, the appellant above named,here-

by appeals to the Supreme Court of the

United States from the final judgement of

the New York State Court of Appeals affirm-

ing the order of the Appellate Division,

declaring section 510 and 511 of the

Vehicle and Traffic Law to be constitution-

al. ENTERED in this action on the 26th.

day of February 1976.

This appeal is taken pursuant to

28 U.S.C.A. 8 1257 (2).

The clerk will please prepare a

transcript of the record in this cause,

for transmission to the Clerk of the

Supreme Court of the United States, and

include in said transcript all Records,

Briefs, opinions and any other material

that caused said court to formulate it's

opinion.

III

The following questions are present-

ed by this appeal.

Is section 510 and 511 of the Vehicle

and Traffic Law of the State of New York

constitutional for failing to provide for

a hearing prior to revocation of a driver's

license when this failure deprives appell-

ant of the due process requirement of the

Fourteenth Amendment of the United Staves

Constitution.

DATED: April 2h, 1976 Mark H. Horodner

131 Wynsum Ave.

Merrick, N.Y. 11566

cc. All Respondents (516) 466-4123

Supreme Court of the

United States

New.York Court of

Appeals

Clerk of the Supreme

Court of Suffolk County

In the Matter of MARK H. HORODNER, Appell-

ant, v ARNOLD R. FISHER, as Commissioner

of Motor Vehicles, et al., |

Respondents.

Submitted January 9, 1976; decided

‘February 26, 1976

COOKE, J. Within an 18-month period,

petitioner Mark Horodner was thrice convict-

ed of speeding, which convictions served

as the basis for the September 28,1972

revocation of his driver's license. On

January 2, 1973, Horodner was charged with

a misdemeanor for driving while his license

was revoked. His guilty plea, entered in

the District Court of Suffolk County on

September 19, 1973, resulted in a judgment

of conviction, the appeal from which was

dismissed on June 5, 197l for lack of

prosecution. Meanwhile, by an order to

show cause dated October 9, 1973, petitioner

brought on this article 78 proceeding to

set aside the revocation as well as to stay

sentence on the misdemeanor conviction.

Petitioner, by this proceeding, does

not seek to collaterally attack his District

Court conviction. Rather, petitioner seeks

review of the revocation itself, alleging

that prior to such revocation the due pro-

cess requirements of notice and hearing

must be met. In order for this court to

properly reach the constitutional issue,

it is necessary that we convert this

Article 78 proceeding into a declaratory

judgment action (see Matter of Merced v

Fisher, 38 NY2d 557) and, once having

effected the conversion, we thus proceed,.+#

Section 510 of the Vehicle and Traf-.

fic Law provides, inter alia, for the man-

datory revocation of a driver's license

where the holder has been convicted of

three speeding violations within a peri-

od of 18 months (Vehicle and Traffic Law,

510, subd 2, par a, cl (iv) ). While New

York courts have considered the constitu-

tionality of section 510 in years past

(Matter of Barton v Hults, 23 Misc 2d

861; Matter of Cadieux v Macduff, 1 AD

2d 360, app dsmd 1 NY2d 827), they have

not done so in light of the United States

Supreme Court decision in Bell v Burson

(402 US 535). The earlier cases, relying

on the "right-privilege" distinction

(People v Rosenheimer, 209 NY 115, 121),

% We wish to express our gratitude to

the Association of the Bar of the City

of New York for Submitting its excellent

amicus curiae brief.

A 3

viewed the possession of a driver's li-

cense as a priviledge which could be re-

voked in the absence of the due process

procedures ( Matter of Barton v Hults,

supra, pp 862-863; People v Rosenheimer,

supra).

The Supreme Court in Bell v Burson,

in reasserting the demise of the distinc-

tion, stated that (p 539) "(o)nce licenses

are issued ++ their continued possession

may become essential in the pursuit of a

livelihood. Suspension of the issued

licenses thus involves state action that

adjudicates important interests of the

licensees. In such cases the licenses are

not to be taken away without that proced-

ural Wue process required by the Four-

teenth Amendment. Sniadach v Family

Finance Corp., 395 U.S. 337 (1969);

Goldberg v Kelly, 397 U.S. 254 (1970).

This is but an application of the general

proposition that relevant constitutional

restraints limit state power to terminate

an entitlement whether the entitlement is

denominated a 'right' or a 'privlege' ",

Bell held Georgia's Motor Vehicle Safety

Responsibility Act unconstitutional. Said

act provided that the registration and

driver's license of an uninsured motorist

involved in an accident could be suspended

for failure to post security to cover the

amount of damages claimed by the injured

parties in the accident without prior

hearing on fault or liability. While the

Georgia statue contemplated a hearing, it

was only to determine whether the individ-

ual or his vehicle had been involved in

an accident and whether he was "financially

responsible", The court indicated that,

except in emergency situations, when a

State seeks to terminate an interest such

as that here involved, it must afford

"notice and opportunity for hearing appro-

priate to the nature of the case before

the termination becomes effective" and

that, under Georgia's statutory scheme,

the State "must provide a forum for the

determination of the question whether

there is a reasonable possibility of a

judgment being rendered against + + +

(an individual) as a result of the

accident", (402 U.S. 535, 542, supra).

Early on, it must be noted that

while the purpose of a financial respon-

sibility statue such as that in Bell is

to obtain security from which to pay a

possible judgment against the licensee

resulting from an accident, the purpose

of the statue such as section 510 of the

Vehicle and Traffic Law is to promote

traffic safety. Other jurisdictions have

had statutes akin to 510 challenged on

due process grounds and while there has

been a similarity in the questios raised,

there has been a divergence in result

(compare Stauffer v Weedlun, 188 Neb 105,

app dsmd 409 U.S. 972; with Abraham v

State of Florida, 301 So 2d 11, app dsmd

420 U.S. 941; with Reese v Kassab, 334 F

Supp 744, cert den 41 U.S. 1002; see,

generally, Necessity of Notice and Hearing

Before Revocation or Suspension of Motor

Vehicle Driver's License, Ann., 60

ALR3d 361).

In Stauffer v Weedlun (supra), the

Court held that a statute which provided

for mandatory revocation of a driver's

license upon accumulation of l2 or more

traffic violation points satisfied due

process requirements in the absence of

statutory provision for notice and hear-

ing. In Stauffer, reliance was placed upon

the Jennings v Mahoney (404 U.S. 25) res-

olution - that by staying the license sus-

pension pending a court-ordered hearing,

the appellants had, in fact, been afforded

A 6

due process. Based upon that finding, the

United States Supreme Court in Jennings,

did not reach the question of the consti-

tutionality of the statute itself. Com-

paring the circumstances in Stauffer to

those in Jennings, the Nebraska court like-

wise found that due process had been af-

forded. The Stauffer court placed its hold-

ing upon the additional ground of the emer-

gency exception, referred to, but not

applied, in Bell (402 U.S. at p 542). The

policy, purpose and procedures behind man-

datory and automatic revocation for traf-

fic violations under the point system dif-

fered sufficiently from that for revocation

under the financial responsibility act so

that the former could be viewed as a leg-

islative attempt to deal with an emergency

situation, while the latter could not. This

latter type statute is an attempt to pro-

tect the public against judgment-proof

drivers but, without a hearing as to fault,

carries with it the possibility of wrong-

fully depriving the motorist of a valuable

entitlement. In Bell, such State interest

was not deemed sufficient to outweigh an

individual's right to a due process hear-

ing. The former type of statute, by its

very nature, is different, in that as

A.7

points are accumulated the driver is in-

formed and aware of the consequences there-

of. Each conviction, for which points are

given, has its due process elements. The

policy served by such a statute is to help

assure that recidivist traffic offenders

are prohibited from traveling the highways.

"The compelling public interest in remov-

ing from the highways those drivers whose

records demonstrate unsafe driving habits

outweighs the need for notice and hearing

prior to the order to protect the individ-

ual against mistake" (Stauffer v Weedlun,

188 Neb 105, 11h, supra; see State v Sinner,

207 NW2d 495 (ND) ). Significantly, the

appeal in Stauffer was dismissed by the

United States Supreme Court "for want of

substantial federal question" (409 U.S.972).

Section 510 of the Vehicle and Traffic

Law bears greater similarity in provision

and purpose to the statute scrutinized in

Stauffer than to that in Bell and, accord-

ingly, a similar rationale may be adopted.

A New York driver, as petitioner here-

in having been convicted for speeding on

three occasions within a period of 18

months, has been entitled on each convic-

tion to notice and hearing. Notably, sub-

division 7 of section 510 provides that

A 8

revocation is not to be effected if the

revoking official is satisfied that the

Magistrate who pronounced the judgment of

conviction failed to comply with subdivis-

ion 1 of section 1807 of the Vehicle and

Traffic Law. Said latter section requires

that a warning be given to the motorist

as to effect of a conviction upon revoca-

tion or suspension of his driver's license,

On notice of revocation, petitioner

may seek a stay and, by way of an article

78 proceeding (CPLR 7803, subd 3), chall-

enge the action taken. Subdivision 7 of

section 510 provides that such act of rev-

ocation shall be deemed administrative for

purposes of judicial review. On review,

petitioner may challenge the action on

grounds such as: (1) misidentification of

the person subject to one or more of the

convictions; (2) reversal or dismissal on

appeal of one or more of the convictions;

and (3) miscalculation of the time within

which the convictions occurred.

This court, as did the Nebraska

Supreme Court in Stauffer, takes the posi-

tion that what we are presented with is an

emergency situation. We recognize that the

Legislature intended by such revocation to

remove from the roads of our State drivers

— Bie

who, by their conduct, have been found to

have repeatedly placed their own personal

interests above those of the rest of the

citizenry. In such situation the due pro-

cess protection of an article 78 proceed-

ing suffices.