Wednesday, March 30, 2011

Possible due process violation in taxi driver license cases

Taxi drivers in New York City can lose their taxi licenses (and therefore their livelihood) if they are charged with a felony or certain misdemeanors, even if these offenses took place off-duty. Initially, they are suspended from duty. The only process they get is a hearing. Claiming this procedure violates, the due process clause, the drivers sued the City.

The case is Nnebe v. Daus, decided on March 25. Using a three-page list of offenses, ranging from violent offenses to relatively trivial ones like giving unlawful gratuities and unlawful assembly, the Taxi and Limousine Commission will suspend the driver if his offense appears on that list, and it does not consider the underlying factual allegations or the licensee’s driving record. While the driver gets a quick hearing before an administrative law judge, "ALJs nearly always recommend continuing the suspensions during the pendency of criminal proceedings and that the Chairperson usually accepts the ALJ’s recommendation." (The driver gets his license back if he is cleared in criminal court). There is also evidence that the ALJs lack adequate decisional independence, the Court of Appeals (Hall, McLaughlin and Restaini) says. One ALJ testified that he was worried that his improper recommendations would lead to his duties being modified or his transfer from Manhattan back to the TLC’s Long Island City office, which he called “a very depressing environment.”

The Court of Appeals is not sure this satisfies due process under the very convoluted legal standards that courts have adopted over the years in interpreting the brief and vague language in the due process clause of the U.S. Constitution. Lack of any hearing prior to the suspension will not in most cases violate the due process clause, because you get a hearing and then, post-hearing, a chance to challenge the deprivation in court. While the Second Circuit notes that "the private interest at stake here is enormous" in that the driver cannot work with a suspended license, the risk that the driver will be improperly denied his license "is mitigated by the availability of a prompt post-deprivation hearing." The Court concludes, "Although we understand that even that loss can be deeply problematic for a taxi driver, we conclude that in the immediate aftermath of an arrest, when the TLC has minimal information at its disposal and the very fact of an arrest is cause for concern, the government’s interest in protecting the public is greater than the driver’s interest in an immediate hearing. Accordingly, no pre-suspension hearing is required."

What troubles the Court is whether the hearings are fair enough to protect the rights of the taxi drivers. The case is sent back to the district court for another look at this quandary. The City says that the driver may win the hearing if "the charges, even if true, did not demonstrate that continued licensure would pose a threat to public safety." But there is not enough evidence in the record to know if this actually happens. In reasoning that looks at the real-world impact of the fairness of these hearings, the Court of Appeals says:

A former general counsel for the TLC testified that he has never heard of an instance of an ALJ discontinuing a summary suspension or making a recommendation to that effect. Several attorneys whose practices include representing taxi drivers corroborate this, and one states that he now declines to represent drivers at summary suspension hearings because he feels it is improper to accept money for a proceeding where “the result is not in doubt.” Conversely, the City has never pointed to any evidence showing how a driver could prevail at a suspension hearing after an arrest for one of the offenses listed on the summary suspension chart. We are not convinced, therefore, that the City binds itself to the standard it says is in place.

The Court adds that "The City’s defense of the process it affords is premised on a contention that it provides drivers with a real opportunity to show that they do not pose a risk to public safety, arrests notwithstanding. The record on summary judgment, however, does not support the City’s view of the facts. To the contrary, the record strongly suggests that, whether de facto or de jure, an ALJ is strictly prevented from considering anything other than the identity of the driver and the offense for which he was charged upon arrest." If it's really the case that the driver does not get his license back until the criminal charges are resolved, then the procedures may violate due process. As the district court is going to have to look at this question anew, summary judgment is vacated.


1LConLawLover said...

I especially love the part about the ALJ's decisional independence being curtailed by their desire not to get transferred to Long Island. I wonder how the District Court will conduct that part of the inquiry. (New wallpaper or more starbucks near the LI office, perhaps?)

Dan said...

The blog post botches the facts. The TLC policy applies to a wide variety of misdemeanors as well as all felonies. This means, among other things, that there is no independent assessment of even probable cause, mush less guilt, before the license suspension.

Imagine if this policy were applied to lawyers. Well it is ... unimaginable.

Second Circuit Civil Rights Blog said...

I corrected the blog post to reflect that the City's policy covers felonies and misdemeanors.