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Saratoga County Water Authority - Ruling 7, June 22, 1995

Ruling 7, June 22, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter
-of-
the Application of SARATOGA COUNTY WATER AUTHORITY for a Water Supply Permit pursuant to Environmental Conservation Law (ECL) Article 15, Title 15 and Title 6 of the Official Compilation of Codes Rules and Regulations of the State of New York (6 NYCRR) Part 601

RULING on Applicant's Motion to Quash

File No. 5-4100-22-1

WATER SUPPLY APPLICATION NO. 8858

PROCEEDINGS

Under cover letter of Eric N. Dratler, Esq., dated June 7, 1995 (received in the Office of Hearings June 8, 1995), the Applicant moved for an order pursuant to CPLR 2304 quashing subpoenas duces tecum served by the Companies upon Anita Daley as Supervisor for the Town of Malta, on May 23, 1995; Marvin LeRoy, as Supervisor, Town of Clifton Park, on May 23, 1995; William Dake, as Chairman, Saratoga County Planning Board, on May 23, 1995; David R. Meagher, as Supervisor, Town of Malta, on May 23, 1995; George Gasser, as Treasurer, Saratoga County, on May 24, 1995; David Wallingford, as Commissioner at Large, Saratoga County and Saratoga Lake Protection and Improvement District, on May 24, 1995; Lawrence DeVoe, as Supervisor, Town of Halfmoon, on May 24, 1995; Richard Kukuk, as Chairman, Clifton Park Water Authority, on May 25, 1995, on the grounds (1) that the issuance of said subpoenas was allegedly improper pursuant to CPLR 2307, which allegedly requires that said subpoenas be issued by a judge, and (2) that the parties are not in a position to determine and have no authority to determine what documents, if any, comply with the request set forth in the subpoenas, and other and further relief. Under cover letter dated June 12, 1995, Saratoga Water Services, Inc and Luther Forest Corporation (the Companies) filed their opposition to the motion to quash. The deadline for responses was June 16, 1995. DEC Staff took no position on the motion.

THE APPLICANT'S POSITION

Applicant notes that each of the above-named individuals was served the subpoena in their representative capacity. Applicant argues that pursuant to CPLR 2307, subpoenas to be served upon a municipal corporation, or a department, bureau, officer or representative thereof, must be issued by a judge of the court, rather than an attorney as here. Applicant notes court holdings where general CPLR subpoena authority was found to have been preempted when other statutes gave specific authorization for subpoenas (e.g., Education Law 7406(3), Social Services Law 34(5)(b), Public Health Law 230(10)(k)). Applicant notes that the authority to issue subpoenas here also comes from a "specific statute," and names 6 NYCRR 624.7(f). Applicant points out, however, that this provision endeavors to be consistent with the CPLR. Accordingly, Applicant argues that CPLR 2307 controls when service is upon a municipal corporation or representative.

Applicant further argues that the subpoenaed parties are not in the position to determine what documents, if any, comply with the subpoenas. Pointing to the language in the subpoenas, Applicant alleges that the Companies have made facially improper "shotgun" types of discovery requests (i.e., overly broad, non-specific) which may require production of privileged or irrelevant materials, forcing the subpoenaed party to cull the good from the bad. Applicant further argues that since it makes the decisions at issue in this application (i.e., Applicant decides what it is applying for), only Applicant can know what documents are relevant to its decision. Applicant argues that the "Companies should be seeking those documents directly from the Authority."

Applicant notes that it requested that the Companies withdraw the subpoenas, but this was not done. Therefore, Applicant moves to quash the subpoenas.

THE COMPANIES' POSITION

The Companies essentially argue that they resorted to serving the now-challenged subpoenas because the Applicant cited a lack of control over the subpoenaed persons as reason for not producing documents during discovery. The Companies note Applicant stated that such persons would "testify to the planning of Saratoga County and its municipal subdivisions relative to the acquisitions of Saratoga Water Services, Inc., and Luther Forest Corporation assets, and the construction and ownership of the maintenance of a county wide water system", "the desirability of regionalization of the water system ...", and their experiences in "assisting and planning the acquisition ... particularly for serving the immediate area, and, ultimately, integrating the system into a county wide system."

Noting that two of these subpoenas (those served on Mr. Dake and Mr. LeRoy) have already brought in responses, that the other persons served have not objected, and that Applicant's argument that the Companies should have sought the documents from the Applicant followed the Companies' attempt to do such, the Companies now question Applicant's authority and motives in moving on behalf of the subpoenaed persons, and allege that Applicant is making a concerted effort to avoid public evidentiary hearings "at all costs."

Noting cases involving other agencies, the Companies argue that CPLR 2307 is inapplicable to the challenged subpoenas because the authority to issue the subpoena comes from 6 NYCRR 624.7(f), rather than the CPLR.

The Companies argue that the subpoenas are not overbroad because they are limited to the exact issues which the Applicant identified would be included in the testimony of these officials.

DISCUSSION

It has been held that a subpoena may only be challenged by the person to whom it is directed, or by a person whose property rights or privileges may be violated. Matter of Selesnick, 115 Misc. 2d 993, 454 NYS2d 656 (1982). The subpoenas in question were not directed to the Applicant. The Applicant has not asserted a property right or privilege that would be violated. Therefore, Applicant is not entitled to have the subpoenas quashed.

Furthermore, it has been held that where express authority to issue subpoenas has been given to an agency by statute, CPLR 2307 does not apply. Irwin v Board of Regents, 27 NY2d 292, 296 (1970); Anonymous v Department of Health, 173 AD2d 988, 989 (3rd Dept., 1991); Whalen v John P., 72 AD2d 961, 962 (4th Dept., 1979).

DEC has express subpoena authority under ECL 3-0301(2)(h). 6 NYCRR 624.7(f) relies on DEC's own subpoena authority, rather than that from the CPLR, since it expressly leaves the authority under CPLR 2302 intact. 6 NYCRR 624.7(f) provides as follows:

"(f) Subpoenas. Consistent with the CPLR, any attorney of record in a proceeding has the power to issue subpoenas. A party who is not represented by an attorney admitted to practice in New York State may request the ALJ to issue a subpoena, stating the items or witnesses needed by the party to present its case. The service of a subpoena is the responsibility of its sponsor. A subpoena must give notice that the ALJ may quash or modify the subpoena pursuant to the standards set forth under CPLR Article 23. This Part does not affect the authority of an attorney of record for any party to issue subpoenas under the provisions of section 2302 of the CPLR."

It is not apparent that 624.7(f)'s use of the words "[c]onsistent with the CPLR" require the judicially-issued subpoenas of CPLR 2307 for three reasons: (1) because DEC has no interest in carving out such an exception for municipalities, (2) the words only refer to attorney-issued subpoenas, not those issued by the ALJ, and (3) the regulation requires notice of the right to quash or modify in conformance with CPLR Article 23 standards. According to Professor Siegel's practice commentary, CPLR 2307's raison d'etre was to ensure that the original of a public record (as opposed to a copy) be produced only on a judge's direction. He notes that the judge's only function on a 2307 motion is to decide whether to order the original to be produced as against a mere copy. Since copies of documents are routinely accepted in DEC proceedings See State Administrative Procedures Act 306(2)., there would be no purpose for DEC to impose such a requirement. The words requiring CPLR-consistency for attorney-issued subpoenas, and the words requiring notice that the subpoenas may be challenged based on CPLR standards, appear to be there to ensure that when attorneys issue subpoenas, they give the same deference to the CPLR standards that ALJs presumably would give when issuing subpoenas on request. Therefore, under the rationale above, CPLR 2307 does not apply to these subpoenas.

Applicant's final objections that the subpoenas are overbroad and that the witnesses are not in a position to know what documents are relevant are belied by (1) Applicant's own statements of the nature of its witnesses' testimony in terms similar to those used in the subpoenas, and (2) the fact that two subpoenas have already brought responses.

RULING

Applicant's motion to quash is denied.

_____________/s/_____________
Frank Montecalvo,
Administrative Law Judge
Albany, New York

Dated: June 22, 1995

To: Official Service List (5/10/95)

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