When may public officials not enforce the law?
July 21, 2011

— Written by Judge John Carey

As soon as I arrived at Harvard Law School, two weeks after finishing undergraduate studies at Yale, I began hearing talk about how to “ace” written exams that called for “essay” type answers.

The collective wisdom among the students I talked to was that professors, in writing exam questions, would word the fact pattern so as to raise three or four separate legal issues.

Woe betide the student who wrote brilliant answers on all but one of the intended issues. Ignoring one issue, a mistake called failure to “spot” that issue, meant a proportionate subtraction from the maximum credit for that question, no matter how soundly the other issues were dealt with.

This all came to mind the other day when, for the first time, I read the January decision of the Supreme Court in White Plains in the case of Ray Tartaglione against the City of Rye. It appears to me that not all the issues were “spotted.”

The decision determined several issues against the city. But then it said that “The relief which petitioners seek in this proceeding is that the [city] be compelled to enforce their own zoning code; however, the decision to enforce a municipal code rests in the discretion of the public officials charged with its enforcement and is not a proper subject for relief in the nature of mandamus to compel [citations omitted].”

This statement conjures up visions of equally deserving parties being differently treated by public officials, leading to suspicion of bias, favoritism, or worse. This would be demoralizing for officials and citizens alike. What I think the opinion should have explained at this point is how to tell when official action is discretionary rather than obligatory.

What makes an official decision obligatory versus discretionary can often be found in the enabling statutory language. That is true in the very language this court had before it.

If the requirement of “an annual inspection of all private sewage disposal systems by a contractor duly approved by the Westchester County Commissioner of Health on all properties bordering on…Milton Harbor…” (Rye Code § 161-1) has not been complied with, “the city manager or the building inspector shall cause written notice to be served personally upon the owner…” Nothing discretionary here; the word “shall” mandates the specified action by one of the two officials (Rye Code § 161-3).

In contrast, that section goes on to say that “If the owner fails, neglects or refuses to correct the conditions…then in that event the city may cause the plumbing system to be repaired…” at the owner’s expense. The word “may” indicates discretionary authority, exercise of which cannot be mandated by a court. If that were all there was to it, I would have no quarrel with what happened in this case. But that is where “spotting” the issues comes in.

The fact that a duty may be discretionary should not end the discussion in court. Administrative discretion must be exercised rationally, not arbitrarily or capriciously. This issue was not analyzed or ruled on.

And there is another issue that was not mentioned in the decision, an issue of constitutional proportions. Administrative action that treats differently parties that are similarly situated, sometimes called “selective enforcement, can violate the constitutional requirement of equal protection of the laws. In this case that issue was never mentioned.

This is a case that should have been appealed to the Appellate Division of the Supreme Court. There, three appellate judges, with the research assistance of law secretaries, would have been able to study all aspects in depth. Each of the issues I have mentioned here would doubtless have been considered. The end result might have been no different, but the public would have at least been reassured about the treatment they can expect if they ever have to go to court.

John Carey can be reached at J_Pcarey@verizon.net


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