Article 78 Proceeding

Article 78 of the CPLR authorizes a special proceeding for judicial review of action (or inaction) by state and local governmental or quasi-governmental officers or bodies of any kind.
RESPONDENT IS USUALLY a local government entity or officer.

For mandamus purposes, A CORPORATION traditionally qualifies as a quasi-government entity because a corporation's privilege of existence comes from the state.

1. Mandamus to Compel (compel performance of non-discretionary act)
2. Prohibition (stop judicial officer from gross excess of power)
3. Certioari (review of agency's trial-type hearing)
4. Mandamus to Review (review of agency's non-trial-type decision)

To compel the performance of an act required by law―an act as to which NO DISCRETION is involved.

EXAMPLES:
1) election official refuses to issue absentee ballot;
2) city clerk refuses to issue a marriage license
3) President of a corporation refused to convene an annual meeting of shareholders

PROHIBITION: A proceeding to stop a judicial officer from exercising power that
exceeds the officer's lawful jurisdiction. The excess must be "gross" in nature.

NOT for routine judicial error i.e. denial of motion to dismiss for lack of personal jurisdiction. for routine judicial error, the remedy is to appeal within the same action in which the error occured

(1) In a criminal matter, Δ gets a verdict of "not guilty" by the jury, but the judge grants the prosecutor's request to commence a second trial against the same Δ for the same crime. Such violation of double jeopardy would provide the basis for a prohibition proceeding against the judge.

(2) A judge orders the opposing lawyers in a case to take depositions of witnesses that neither party wishes to depose.

A proceeding to challenge the results of a "trial-type" hearing conducted by an administrative agency.

A "trial-type" hearing is one in which
testimony was taken under oath with a right of cross-examination.

After the agency's final determination in a trial-type hearing.

Persons with a vested property or quasi-property right, such as license-holders or tenured civil service employees, are entitled to a trial-type hearing prior to divestiture or discharge.

(1) A liquor store owner challenges the State Liquor Authority's revocation of his license to sell alcoholic beverages.
(2) A tenured public school teacher challenges the school board's decision to discharge him.

the court must uphold the results if the agency's determination was supported by substantial evidence

A proceeding to review any type of administrative action not covered by categories 1-3.

Most often, mandamus to review is used to
challenge an agency determination that was made without a trial-type hearing, as,
for example, where vested rights are not at stake.

(1) A probationary public employee was discharged from her position.
(2) A homeowner applied for a zoning variance that was denied by the local zoning board.
(3) Rambo applied for renewal of his gun permit, which was denied. (Agencies may determine such matters by investigation without a trial-type hearing because no vested rights are at stake.)

court must uphold the agency's determination unless it was arbitrary and capricious

Supreme court even if D is State of NY

4 months from date when the agency action is final and binding

papers must be served 20 days before the return date

1) declaratory relief (declaration to annul agency's determination on environmental impact review
2) injunctive relief (ex. to reinstate discharged civil service employee
3) damages IF the damages are incidental to the declaratory or injunctive relief (i.e. backpay when seeking reinstatement for public employee)

1. Mandamus to Compel: act is REQUIRED by law
2. Prohibition: Judicial officer committed a GROSS excess of power
3. Certioari: agency decision was NOT supported by SUBSTANTIAL EVIDENCE
4. Mandamus to Review: agency decision was ARBITRARY AND CAPRICIOUS