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DANIEL L. ACKMAN
March 23, 2000 BY HAND Re: Ackman v. Giuliani, Index No. 101652/00 Dear Justice Parness: I am writing for three related reasons: (1) to alert the court to respondents' efforts to subvert the Court's order and decision dated March 2, 2000 and to mock the law on which it is based; (2) to seek clarification of that decision with respect to the waiting areas; and (3) to preempt respondents' argument that the Court's order and judgment should be stayed pending appeal. In its March 2 order and decision, the Court ordered that TLC administrative tribunals must be open to the public. Despite the clarity of the order and the law on which it is based, respondents' proposed order on its face is meant to hamstring public access to the hearings. (Both respondents' enclosed order and petitioner's proposed order are enclosed.) For example, respondents require that "any member of the public or press seeking access to one or more TLC hearings must sign in and announce to the TLC's representative at the hearing location that access is being sought." At that point, the TLC will determine whether that person can be "accommodated." This proposal is objectionable on so many levels it's hard to know where to begin. First, in no court of which I am aware-- not New York State Supreme Court, not the DMV's traffic court-- are members of the public made to sign in. Second, it is not clear who the "TLC's representative at the hearing" is. Is it the TLC's lawyer? Is it the judge, also employed by the TLC? Is it a security guard? The proposed order does not say, and there is no reason to believe the TLC will make efforts to resolve the confusion. Third, on what basis will the TLC "determine" whether the applicant for admission can be "accommodated." To date, the TLC has determined that no one at all would be accommodated, all without any lawful basis for doing so. Yet Respondents' ask the Court to sign an order granting them unfettered discretion. Simply put, this proposal alone is a license to harass, confuse and effectively deny anyone seeking access to the TLC tribunals. Respondents then demand, "Any member of the public or press permitted to observe the hearing shall be escorted to and from the hearing room by TLC personnel." Without belaboring the point, this proposal offers the TLC further opportunity to subvert the Court's order, and, more importantly, to subvert the law of this State. I will not comment here on items 3 and 4 of respondents' proposed order, except to say I object to them also. Item 5 states: "Upon the application of any party or a witness, the administrative law judge may exclude the press or public from a hearing for good cause." What this proposal omits is that the TLC itself is in all cases a party to the hearing. Thus, in the TLC's vision of open access, the TLC can apply to a TLC judge to deny access "for good cause," without any effort to make that term meaningful. No one objects to the TLC creating reasonable security measures similar to those employed at other courts. But the order proposed here is mockery of the law and shows why it was necessary to seek judicial relief in the first place. As to the waiting areas, I respectfully submit that the Court should revisit that aspect of its decision in implementing its judgment. I take here the opportunity to state the facts briefly. The waiting area at the Rector Street facility is relatively small, about the size of a waiting area at a busy medical practice. There are approximately 15 seats. (There is, apparently, a separate waiting area for complainants, which I have never seen.) In order to get to the hearing rooms, both on Rector Street and in Long Island City, one has to walk through the waiting area. So, read literally, respondents' order would require members of the public to "beam" into the hearings a la Star Trek. The fact is there are relatively few hearings on Rector Street. More to the point, there is no reason to believe that the hearings will ever be overwhelmed by visitors. Thus, there is no reason to deny what few members of the press or public who do seek access the right to wait in the waiting areas. Just as a member of the public who visits 60 Centre Street can wait in the lobby or the hallway outside the court, the same rule should apply to TLC hearings and waiting areas. If overcrowding does occur, court administrators, and the security guards who are stationed there already can take reasonable precautions. The vast majority of TLC hearings occur at the Long Island City facility. There, the waiting area is quite large, accommodating at least one hundred people. In addition, there are more waiting areas a floor below where cabbies go to have their licenses renewed and for other administrative matters. Both areas are patrolled by security guards as well as by armed TLC inspectors. Many police officers travel through the area on their way to testify. Such security measures should be sufficient without forcing members of the public somehow to enter the hearings without prohibiting them from waiting for a moment outside. Of course, if a member of the public disrupts the waiting area, he or she might be removed, just as he or she might be removed from the hallways of 60 Centre Street. To date, respondents are still denying the public access to TLC tribunals. Respondents have not indicated whether they intend to appeal (or the grounds for an appeal). I suspect-- though I hope I am wrong-- that respondents believe that the court's order and decision is of no effect pending appeal. My sense is, based on my conversations with respondents' counsel, that respondents believe CPLR 5519(a)(1) applies in this case and that they are entitled to a stay. I respectfully request that the court clarifies that its order is self-executing and that it takes immediate effect. CPLR 5519(a) speaks only to "proceedings to enforce the judgment or order appealed from"-- not to the order or judgment itself. See, e.g., Matter of Pokoik v. Department of Health Services of County of Suffolk, 220 A.D.2d 13, 641 N.Y.S.2d 881 (2d Dep't 1996). For example, in an action for money damages, the state would not be required to cut a check prior to its appeal. In Matter of Pokoik, the court stated, CPLR 5519(a)(1) does not affect "provisions of the judgment . . . which are self-executing upon its promulgation.... [T]he declaratory provisions of a judgment are not undeclared when a governmental party serves notice of appeal therefrom." Id. The statute, which continues prior practice, is restricted to portions of a judgment which require the state to act, not to portions which prohibit action. See, e.g., Chief Judge Cardozo's opinion in City of Utica v. Hanna, 249 N.Y. 26; State of New York v. Town of Haverstraw, 219 A.D.2d 64, 641 N.Y.S.2d 879 (2d Dep't 1996). The law is the law, and was the law even before this action was initiated or decided. Respondents have no legal authority to evade or reject it, intention to appeal or otherwise. Finally, in light of respondents' proposed order, demonstrating as it does their intention to stymie the public's right of access to TLC tribunals, I respectfully submit that this court maintain continuing oversight of this case.
Yours truly, Daniel L. Ackman
Encls. CC: Gerald Horowitz, Esq.
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