Appeal from an order of the United States District Court, Southern District of New York, Richard Owen, Judge, granting defendants' motion for summary judgment and denying appellant's request for similar relief on the basis that appellant had no liberty or property interest entitling her to procedural due process protections.
Before: LUMBARD, KEARSE, and MINER, Circuit Judges.
Aileen Schwartz, formerly a Judge of the Family Court in the City of New York, appeals from an order entered by Judge Owen, in the Southern District of new York, granting the defendants' motion for summary judgment and denying her request for similar relief. Schwartz contends that the process by which the Mayor's Committee on the Judiciary of the City of new York ("the committee") refused to recommend her reappointment to the bench deprived her of her constitutional right to due process. We affirm.
Appellant was first appointed to the Family Court in 1975; her ten-year term expired on December 28, 1985. On April 11, 1978, Mayor Koch issued Executive Order No. 10 creating the Mayor's Committee for the purposes of "evaluating incumbent judges or reappointment," and for "determining which of the fully qualified candidates are best qualified for judicial office." Near the end of her term, Schwartz applied to the Mayor's Committee for consideration for reappointment.
After receiving Schwartz's application, the Committee sought and obtained both positive and negative information about the applicant from numerous sources. To encourage candid responses, the Committee promised, and is required by the Mayor's Extuvie Orde, to keep confidential the information it receives. After completing its investigation, the Committee requested that Schwartz attended a meeting in October, 1985.
Prior to the meeting, Schwartz was not notified of any complaints or charges against her. At the meeting, however, Schwartz was informed generally of the Committee's concerns about her reappointment, especially her ability to "relate" effectively to attorneys and court personnel. That evening, the Committee informed Schwartz of its decision not to recommend her reappointment.
Schwartz then obtained counsel who contacted the Committee's Executive Secretary about the decision. The Executive Secretary stated, again in general terms, that the Committee was primarily concerned with Schwartz's ability to manage her calendar and the disrespect with which she treated court personnel.
Schwartz filed a formal petition for reconsideration with the Committee together with various documents she felt would address the Committee's concerns. The Committee denied the petition and determined not to reconsider her application for reappointment. Having failed to receive the Committee's recommendation, the Mayor did not reappoint Schwartz.
Schwartz then instituted this action against the Committee, its chairman, executive secretary the the City of New York pursuant to 42 U.S.C. § 1983 (1982), claiming that she had legitimate expectation of reappointment and that the Committee's procedures denied her due process of law. She seeks $5,000,000 in damages.
In order to prevail, Schwartz must have had constitutionally protected property or liberty rights to which the Fourteenth Amendment's procedural due process protections would attach. Board of Regents v. Roth, 408 U.S. 564, 569, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972).
Schwartz first argues that the Committee's failure to recommend her reappointment deprived her of a constitutionally protected property right. To possess such a right there must be " legitimate claim of entitlement to it." Roth, 408 U.S. at 577. We can discern none here.
Pursuant to the new York Family court Act, the Mayor appoints Family court judges within New York City for ten-year terms. 29A NY. Jud. Law § 123 (McKinney 1983). He is charged with selecting "persons who are especially qualified for the Court's work by reason of their character, personality, tact, patience and common sense." 29A N.Y. Jud. Law § 124 (McKinney 1983). Judges seeking reappointment are subject to the same discretionary standards as candidates seeking a judicial appointment for the first time. There is simply no statutory or constitutional basis for finding the creation of a constitutionally protected property right.
Moreover, there is nothing in the Mayor's Executive Order or the Committee procedures which establishes any right to reappointment. The ...