Petition for Writ of Certiorari — Graham v. Niagara Mohawk Power Corp.

Supreme Court, U.S

FibLe pD

96 507 Ju 29 OS.

In The

SUPREME COURT OF THE UNITED STATES

October 1995 - October 1996 Term

+

JAMES GRAHAM,

Petitioner,

against

NIAGARA MOHAWK POWER CORPORATION,

Respondent.

*

PETITION FOR WRIT OF CERTIORARI

>

CHARLES E. Luria

204 East Jefferson Street

Suite 205

Syracuse, New York 13202

(315) 474-2829

Attorney for Petitioner

In The

SUPREME COURT OF THE UNITED STATES

October 1995 - October 1996 Term

+

JAMES GRAHAM,

Petitioner,

against

NIAGARA MOHAWK POWER CORPORATION,

Respondent.

¢

PETITION FOR WRIT OF CERTIORARI

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A. QUESTIONS PRESENTED:

Whether Section 296 (16) of the New York Executive Law

is preempted by Federal Law.

. Whether federal nuclear regulations provide a specific

statutory exception to Section 296 (16).

B. LIST OF PARTIES

1. JAMES GRAHAM,

Petitioner-Plaintiff,

2. NIAGARA MOHAWK POWER CORPORATION,

Respondent-Defendant.

iii

C. TABLE OF CONTENTS

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Grounds for Certiorari

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Appendix

iv

D. LOWER COURT CITATIONS

88-N Y2d-802

-AD2d-

635 NYS2d 405

E. TABLE OF AUTHORITIES

1. English v. General Electric Co., 496 U.S. 72, 110 S.Ct. 2270.

2. Florida Lime and Avocado Growers, Inc. v. Paul 373 U.S. 132,

83 S.Ct. 1217.

3. Hines v. Davidowitz, 312 U.S. 52, 60S. Ct. 399.

4. Jones v. Rath Packing Co.,430 U.S. 519, 97 S.Ct. 1305.

5. Pacific Gas & Electric, 461 U.S. 190, 103 S.Ct. 1713.

6. Rice v. Sante Fe Elevator Corp., 331 U.S. 219, 67 S. Ct. 1146.

7. Savage v. Jones, 225 U.S. 501.

8. Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L. Ed.

307.

9. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L.

Ed. 2d 441.

10. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed 2d 416.

F. BASIS OF JURISDICTION.

The Order sought to be reviewed was entered by the Clerk

of the New York Court of Appeals on May 2, 1996. The basis

of jurisdiction is 28 USC Section 1254(1), as Petitioner is appeal-

ing from a decision of the highest Court of the State of New

York.

G. STATUTORY AND REGULATORY PROVISIONS.

1. Section 296(16) of the New York Executive Law:

“It shall be an unlawful and discriminitary practice unless

specifically required or permitted by statute, for any person,

agency, bureau, corporation or association, including the State

in any political subdivision thereof, to make any inquiry about,

whether in any form of application or otherwise, or to act upon

adversely through the individual involved any arrest or

criminal accusation of such individual not been pending

against that individual which was followed by the determi-

nation of that criminal action, as defined in Subdivision 2

Section 160.50 of the Criminal Procedure Law, in connection

with the licensing employment or providing credit or insur-

ance to such individual, provided that the provisions hereof

shall not apply to the licensing activities of governmental

bodies in relation to the regulation of guns, firearms or deadly

weapons.”

2. Section 160.60 of the New York Criminal Procedure Law:

Upon the termination of a criminal action or proceeding

against a person in favor of such person, is defined in Section

160.50 of this chapter, the arrest and prosecution shall be

deemed a nullity and the accused shall be restored in

contemplation of law to the status he occupied before the arrest

and prosecution. The arrest or prosecution shall not operate

as a disqualification of any person so accused to pursue or

engage in any lawful activity, occupation, profession or calling.

Except where specifically required or permitted by statute of a

superior Court or upon specific authorization of a specific

Court, no such person shall be required to divulge information

pertaining to the arrest or prosecution.

3. 10 C.F. R. 73.57 (c) (1)

A licensee may not base a final determination to deny an

individual unescorted access to the nuclear power facility or

access to safeguard information solely on the basis of

information received from the FBI involving:

(i) An arrest more than one year old for which there

is no information of the disposition of a case; or

(ii) An arrest that resulted in dismissal of the charge

or an acquittal.

4. 10C.FR. 10.11 (a) (8), (9)

5. 10 C.ER. 73.56 (b) (1)

6. 10 C.ER. Section 973.57

7. 42 U.S.C.A. Section 5841

8. 42 U.S.C.A. Section 2169 (Supp.1993)

9. 635 NYS2d 405

H. STATEMENT OF FACTS.

Beginning in 1961, James Graham (hereinafter “Graham”)

was arrested on charges of Grand Larceny. These charges were

based on the conduct of Shirley Ann Graham, an individual to

whom Graham was married at the time. The charges were

subsequently dismissed.

In 1967, Graham was arrested on charges of passing a

worthless check. Again, Graham was arrested as a result of

said Shirley Graham’s activities. No disposition was reported

on these charges. As Graham was released and no further

prosecution or conviction resulted from them, Graham believed

that in fact they were dismissed. And in effect, they were.

On or about March 1, 1992, Graham was engaged by his

union to work as a pipefitter at the Nine Mile Two Nuclear

Power Facility of Niagara Mohawk Power Corporation

(hereinafter “Niagara Mohawk”). For such purposes Graham

filled out an application for security clearance. In such

purposes Graham filled out an application for security

clearance. In such application, Graham was wrongfully asked

by Niagara Mohawk whether he had ever been dismissed and

that his record had been sealed, Graham answered that he had

not in fact been arrested.

Thereafter Niagara Mohawk excluded Graham from its

Nuclear Power Facilities for a period of two years on the alleged

grounds that he had been found untrustworthy and unreliable

by reason of his alleged failure to state that he had been

arrested.

As Graham lived ina rural area, he found little work in his

field during the two years that followed. Thus as a result of

the exclusion, he suffered considerable hardship and

experienced severe financial losses.

Graham brought suit against Niagara Mohawk in New

York Supreme Court on the grounds that it had violated Section

296 (16) of the New York Executive Law by (1) asking him

whether he had ever been arrested, and (2) denying him

security clearance as a result of such questioning.

The federal questions were raised by Niagara Mohawk in

its answer, in which it argued that federal nuclear regulations

allowed and even compelled it to make inquiries as to arrests.

Thus, it further argued: (1) the state law was superseded by

the federal regulations and (2) the regulations provided a

specific exception to the statute taboo of questions involving

arrest.

At the time it submitted its answer, Niagara Mohawk

removed the case to federal court. By order dated May 17,

1994, the United States District Court returned the case to New

York Supreme Court.

On motion, the trial-level court granted summary judg-

ment dismissing the complaint. In a decision of November 4,

1994, the Court ruled that (1) by reason of the regulation, the

statute allowed the question to be asked and (2) even if Niagara

Mohawk violated the New York statute, the statute was

superseded by the regulations.

The decision was upheld on appeal by the Appellate

Division, Fourth Department of the New York Supreme Court.

No written decision was issued.

By decision entered May 2, 1996, The New York Court of

Appeals denied Graham's motion for permission to appeal.

GROUNDS FOR CERTIORARI

GROUND I

Section 296 (16) of the New York Executive Law is not

preempted by Federal Law

The decision of the Courts of the State of New York in the

case are contrary to the holdings of the United States Supreme

Court regarding the preemption by federal law over state law.

The Supreme Court has consistently held that where there is

no conflict between state and federal law, either expressed or

implied, state law applies. Specifically, as held in English v.

General Electric Co., 496 U.S. 72, 110 S. Ct. 2270, state law may

apply, in the absence of a conflict, even in cases involving such

federal matters as nuclear regulation.

It is our contention that no conflict between state and

federal law exists in the case herein. As the state law forbid-

ding Niagara Mohawk to question Graham with regard to

Graham's prior arrest. His prior arrest does not conflict with

or potentially impede federal nuclear regulations, the state law

remains in effect.

The Supreme Court has fully set forth, in English v. General

Electric Co., 496 U.S. 72, 110 S. Ct. 2270, the test by which to

determine whether or not a state law is preempted by federal

law as specifically applied to nuclear regulation.

The first part of the test seeks to determine whether the

pre-emption is expressed in the explicit language of the federal

law. 496 U.S. at 78, 110S. Ct. at 2275. The second part seeks, in

the absence of explicit statutory language, to determine the

scheme of federal regulation in a given field is extensive so as

to give rise to the reasonable inference that the Congress in-

tended for the federal government to dominate the field. 496

US. at 79;110 S. Ct. at 2275.

Where the “(S)cheme of federal regulation (is) so pervasive

as to make reasonable the inference that Congress left no room

for the States to supplement it “[O]r where a federal law”

(t)ouch(es) a field in which the federal interest is so dominant

the assumption is created that the federal law has pre-empted

the applicable state laws. Rice v. Santa Fe Elevator Corp. 331

U.S. 218, 67S. Ct. 1146. Yet in order for a federal law to pre-empt

state law in a field that has been traditionally policed by the

states, the Congressional interest to so pre-empt the powers of

the States must be “clear and manifest.” Jones v. Rath Packing

Co., 430 U.S. 519, 525, 97 S. Ct. 1305, 1309, quoting Rice v. Santa

-Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 1152.

The third part of the test inquires into whether the state

law is actually in conflict with the federal law. English v. General

Electric Co., 496 U.S. at 79, 110 S. Ct. at 2275. As the Supreme

Court stated in Hines v. Davidowitz, 312 U.S. 52, 67, 60 S. Ct.

399, 404 a case concerning state registration of aliens, “Our

primary function is to determine whether, under the circum-

stances of (a) particular case, the (state) law stands as an

obstacle to the accomplishment and execution of the full

purposes of Congress.” In the absence of such an obstacle being

placed by the state law, no conflict exists and the state law is

not pre-empted. English v. General Electric Co., 496 U.S. 72, 90,

110 S. Ct. 2270; Florida Lime and Avocado Growers, Inc. v. Paul,

373, U.S. 132, 142, 83 S. Ct. 1217; Savage v. Jones, 225 U.S. 501,

533.

English v. General Electric Co., supra, concerned a plaintiff

who sued her former employer, a nuclear power agency, on

grounds that had arisen from her employment at its nuclear

power facility. Among the causes of action listed in the

complaint was that of intentional infliction of emotional

distress. The issue therefore arose of whether that tort cause

was precluded by federal nuclear laws.

Finding no explicit statutory language that would pre-empt

the state law on the intentional infliction of emotional distress

as arising from the operation of a nuclear power facility, the

Supreme Court passed on to the next question of whether the

state law was made in a field dominated by federal

government. Laws concerning the intentional infliction of

emotional distress were rooted in torts, a field of law that was

of traditional interest. In the field of nuclear regulation, the

federal government has exclusive control on matters of safety

so as to pre-empt all state laws on that question. Pacific Gas &

Electric 461 U.S.190,212, 103 S. Ct. 1713, 1726. Yet English

concerned intentional infliction of emotional distress, a tort of

action in the common law of the States. Here the court held

that laws made in areas of traditional state concern, such as

tort law, may nonetheless apply to the operation of a nuclear

power facility without conflict or pre-emption. As the Court

stated:

In addressing this issue, we must bear in mind

that not every state law that in some remote way may

effect the nuclear safety decisions made by those who

build and run nuclear facilities can be said to fall

within the pre-empted field. We have no doubt, for

instance, that the application of state minimum wage

and labor laws to employees at nuclear facilities

would not be pre-empted, even though these laws

could be said to affect tangentially some of the

resource allocation decisions that might have a bear-

ing on radiological safety. Instead, for a state law to

fall within the pre-empted zone, it must have some

direct and substantial effect on the decisions made

by those who build or operate nuclear facilities

concerning radiological safety levels. We recognize

that the claim for intentional infliction of emotional

distress may have some effect on these decisions...

nevertheless, we believe that this effect is neither

direct nor substantial enough to place petitioner's

claim in the pre-empted field.

496 U.S. at 83, 110 S. Ct. at 2270.

Finding in the legislative history no “clear and manifest”

intent of Congress to pre-empt state law on the issue (496 U.S.

at 83, 110 S. Ct. 2278), the Court moved on to the question of

whether the State law frustrated Congressional intentions

behind the nuclear regulatory statutes. Ruling that it did not,

the Court held that the plaintiff's claim of intentional infliction

of emotional distress was not pre-empted. In conclusion, the

Court declared, “The Court has observed repeatedly that

pre-emption is ordinarily not to be implied absent an ‘actual

conflict.’” 496 U.S. at 90, 110 S. Ct. at 2281.

As in English, the State law at issue here is not pre-empted

by federal law. As stated above, neither the federal statutes

nor the federal nuclear regulations expressly authorize Niagara

Mohawk, or other nuclear agencies to ask applicants whether

they have ever been arrested.

Le ae

10

On the second level of inquiry, Section 296(16) of the New

York Executive Law is not concerned with safety or other

nuclear regulatory matters. Rather, it is concerned with matters

traditionally policed by the States such as employment, human,

civil and anti-discrimination rights. The federal regulations,

therefore, would pre-empt the State law only if Congress

displayed a “clear and manifest” intent to pre-empt State law

on these matters.

In its motion papers, Niagara Mohawk stated the concern

of the Nuclear Power Commission regarding criminal

convictions of applicants, as reflected in 10 C.F.R. Section

10.11(a)(8){9). Yet Graham was never convicted. Inquiries into

conviction records of applicants are not at issue. Niagara

Mohawk has also produced compelling reasons for its assertion

that the Congress intended for background checks to be done

on applicants. Yet this is not at issue. The only issue here is

whether the Nuclear regulations authorized Niagara Mohawk

to ask Graham whether he had ever been arrested; and neither

Congress nor the Nuclear Power Commission, through either

the legislative history or through the Statutes or regulations,

revealed a “clear and manifest” intent to pre-empt State law

on this issue.

Finally we must address the question of whether the Section

296(16) of the New York Executive Law, as applied to the facts

in this particular case, would frustrate the intention of the Con-

gress in promulgating laws regarding Nuclear regulation and

safety. The intention of Congress, and of the Nuclear

Regulatory Commission, was to secure safety in the operation

of nuclear power facilities. Therefore, the Nuclear Regulatory

Commission ratified regulations not merely allowing but

11

commanding nuclear agencies to conduct investigations into

the backgrounds of persons seeking access to secured areas at

power facilities so as to ascertain their trustworthiness and

reliability.

In no respect does Section 296(16) frustrate that purpose.

It does not seek to block agencies from conducting background

check, from conducting fingerprint investigations or from

asking applicants whether they have ever been convicted of a

crime. It therefore fully allows agencies to obtain the

information from which trustworthiness and reliability are

determined.

No such permission, however, is given. 10 CFR 73.56 (B)

(1) (2) dictates that nuclear agencies must conduct background

checks on applicants seeking access to secured areas at nuclear

power facilities. 10 CFR Section 973.57 requires that fingerprint

checks be made of applicants in order that the FBI may conduct

thorough background investigations thereon.

Yet nowhere do these regulations expressly or specifically

require or allow inquiries to be made as to arrest records of

applicants. Nowhere do they allow an agency to ask an

applicant whether he or she has ever been arrested.

To the contrary of Niagara Mohawk’s assertions, the state

and federal laws of this issue closely parallel and are kindred

in spirit to one another. Both reflect a strong concern for human

rights. Significantly Section 10 C.F.R. Section 73.57(c)(1) states:

A licensee may not base a final determination to

deny an individual unescorted access to the nuclear

power facility or access to safeguard information

solely on the basis of information received from the

12

FBI involving:

(i) An arrest more than one year old for which

there is no information of the disposition of a case; or

(ii) An arrest that resulted in dismissal of the

charge or an acquittal.

It must, be according to this regulation that “trustworthi-

ness” and “reliability” be defined. A person arrested by not

convicted is not considered a threat to nuclear safety. Instead,

he or she is given statutory and regulatory protected.

This regulation, therefore, not merely renders questions

concerning arrests unnecessary; it also expresses a legislative

repugnance toward them.

Niagara Mohawk states that it did not deny Graham access

because of the arrest but because rather he was untrustworthy

in that he “lied” about the arrest. Indeed, the Court granted

summary judgment in agreement with this assumption. But

this is in fact an assumption of fact and does not warrant and

is not adequate grounds for the granting of such judgment.

This fact is disputed by Graham. As stated in the record,

the Frederick McCarthy representing Niagara Mohawk told

Graham that he would have not been excluded had it not been

for the Graham larceny arrest. Such a statement clearly points

to the fact that McCarthy was motivated by the arrest and by

the severity of the charges. Thus, by stating that it made its

decision based on Graham’s proported untrustworthiness, it

is merely trying to go around the back door in an attempt to

punish him for the arrests.

Moreover, this particular question is clearly analogous to

the “fruit of the poisonous tree” doctrined in Federal Constitu-

13

tional criminal law. In Constitutional criminal law, where the

police have obtained information or evidence illegally and

unconstitutionally, the evidence is excluded from being used

for purposes of criminal prosecution. Nardone v. United States,

308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307; Wong Sun v. United

States, 371 U.S. 471, 83S. Ct. 407, 9 L. Ed. 2d 441; Brown v. Illinois,

422 US. 590, 95 S.Ct. 2254, 45 L. Ed. 2d 416.

Therefore, where Niagara Mohawk asked a question

illegally, it cannot lawfully punish Graham for the answer he

gave to the question.

Finally, according to New York Law, Graham was not being

dishonest.

Section 160.60 of the New York Criminal Law states:

“Upon the termination of a criminal action or

proceeding against a person in favor of such person,

as defined by Section 160.50 of this chapter, the arrest

and prosecution shall be deemed annuity and the

accused shall be restored in contemplation of the law

to the status he occupied before the arrest and

prosecution. The arrest and prosecution shall not

operate as a disqualification of any person so accused

to pursue or engage in any lawful activity, occupation,

profession or calling. Except where it is specifically

required or permitted by statute of a superiot Court

or other specific authorization of the specific court,

no such person shall be required to divulge

information pertaining to the arrest or prosecution.”

Thus, pursuant to the dismissal of the charges, the exoner-

ated person is restored to the status that he or she enjoyed prior

14

to the arrest. By operation of law, the arrest becomes

nonexistent. It follows from this that was being truthful when

he stated that he had not been arrested.

In the absence of a contrary federal law, then, the state law

applies. And even in a matter involving public security such

as nuclear regulations, human rights laws apply. For it is

paramount to our national interest maximum consideration

be given to human rights even in the presence of other vital

issues.

15

GROUND Il

THE REGULATIONS DO NOT PROVIDE A SPECIFIC

STATUTORY EXCEPTION TO SECTION 296 (16) OF

THE NEW YORK EXECUTIVE LAW.

Graham does not contest Niagara Mohawk’s power or

duty to do a background check in order to ascertain whether

applicants seeking access into high security areas in nuclear

power facilities are trustworthy and reliable. Nor does Graham

contest Niagara Mohawk’s federally given power to do

fingerprint checks on applicants. Nor does Graham contest

Niagara Mohawk’s power to ask applicants if they had ever

been convicted of a crime. Such activities fulfill a serious public

purpose. It is in the public interest that thorough security

investigations be made of persons seeking access into such

places. This public policy has been expressed by Congress in

its statutes and by the Nuclear Regulatory Commission

agencies in its regulations.

But, Graham contests that Niagara Mohawk acted

unlawfully in (1) asking him whether he had ever been arresied

and (2) in excluding him from its facilities. With regard to

both wrongs, Graham is backed by Section 296 (16) of the New

York Executive law which states:

“It shall be an unlawful discriminatory practice

unless specifically required or permitted by statute,

for any person, agency, bureau, corporation or

association, including the State and any political

subdivision thereof, to make any inquiry about,

whether in any form of application or otherwise, or

to act upon adversely through the individual involved

16

any arrest or criminal accusation of such individual

not then pending against that individual which was

followed by a determination of that criminal action,

is defined in subdivision 2 of section 160.50 of the

criminal procedure law, in connection with the

licensing, employment or providing credit or

insurance to such individual, provided that the

provisions hereof shall not apply to the licensing

activities of governmental bodies in relation to the

regulation of guns, firearms or deadly weapons.”

Graham's first arrest resulted in dismissal of the charges.

The second arrest resulted neither in prosecution nor in convic-

tion. It was tantamount to a dismissal. Therefore, Niagara

Mohawk violated Section 296(16) in asking Graham whether

he had ever been arrested.

The order of the Court is contrary to the strong public policy

favoring the presumption of innocence of persons accused of

a crime. This presumption is one of the foundations of

Anglo-American jurisprudence. It forms the basis of Section

296 (16) of the New York Executive Law. It is also the basis of

Section 160.60 of the New York Criminal Procedures Law,

which is stated hereinabove, nullifies the arrest and returns

the accused to the status that he or she enjoyed prior to the

arrest.

As stated in Ground I above, the federal nuclear regulations

do not compel or even allow a nuclear agency to ask an

applicant whether he or she was ever arrested. The regulation

forbidding the exclusion of a person from a nuclear secured

area by reason of an arrest that either (1) resulted in a dismissal

of the charges or (2) is more than one year old and has no

a

17

reported disposition negate any need on the part of the agency

to ask questions regarding arrests.

Moreover, these regulations are not statutes. In its briefs

made on motion, Niagara Mohawk cited the statues of the

Energy Reorganization Act of 1974 (the “ERA”), 42 U.S.C.A.

Section 5841 et. seq. (1983) and the Omnibus Diplomatic

Security and Anti-Terrorism Act of 1986 (the “Security Act”),

42 US.C.A. Section 2169 (supp. 1993).

But these statutes do not allow expressly or implicitly

inquiries to be made as to arrest records of applicants seeking

access to high security places at nuclear facilities. 42 U.S.C.A.

Section 2169, in fact, expressly seeks to protect applicants who

had been arrested where either the arrest has resulted in

dismissal of the charges or where the arrest is more that one

years old and no disposition has been reported. This concern

is reflected in the nuclear regulation at 10 CFR Section 73.57

(C) (1).

Dated: July 24, 1996.

CHARLES E. LUPIA, ESQ.

Attorney for Plaintiff-Petitioner,

James Graham

P.O. Box and Office Address:

204 East Jefferson Street, Suite 205

Syracuse, New York 13202

Telephone No.: (315) 474-2829

To: BOND, SCHOENECK & KING

Attorney for Defendant-Respondent

Niagara Mohawk Power Corporation

P.O. Box and Office Address:

One Lincoln Center

Syracuse, New York 13202

Telephone No.: (315) 422-0121

APPENDIX

Lower Court Decisions and Orders