The Process of the Quash

No small amount of success was achieved this week when a NYS trial court judge ruled in favor of two licensed dealers in firearms seeking to quash extra-judicial subpoenas, when the judge denied the state’s motion to dismiss the petitioners’ special proceeding.  This opening sentence should tell you the good news that often doesn’t receive enough headlines in the legal field and that is a procedural victory that paves the way for a ruling on the merits.  View the court’s Decision and Order HERE.

The new Decision and Order was issued in a fascinating case in which I represent the petitioners, Blue Line Sports LLC and Woods & Waters v. Letitia James, Attorney General of the State of New York.  It originates in an NY CPLR 2304 Motion to Quash the extra-judicial subpoenas served upon two state-licensed “Dealers in Firearms,” demanding records relating to distinct provisions of the new (2022) compliance mandates.  Those new mandates, housed at NY General Business Law section 875 grant specific authorities to the NYSP and require certain performances by the NYSP Superintendent.  This article does not so much as mention the NYS Attorney General.

And yet, in June 2024, the NYS Attorney General’s Office signed off on extra-judicial subpoenas to go out to these two businesses for records relating to NY General Business Law 875.  The subpoenas are “extra-judicial” because they are not part of any court proceeding and did not involve any judicial oversight.  In other words, there was no case pending against the businesses.  View the Subpoena HERE. 

Our legal argument is simply that.  The NYS AG had no legal authority to issue the extra-judicial subpoenas and we’re asking a NYS Supreme Court judge to quash the subpoenas.  The ruling we seek is one that could define the authority, if any, under NY General Business Law 875 as being conferred by the NYS Legislature as only to the NYS Police.  We also made the argument that the same group of 2022 bills did confer some new authority to the NYS Office of the Attorney General, for example, relating to appeals of firearms purchase denial appeals, but that is distinct from any involvement with state-licensed dealers.  That’s “the merits” part.

If only it were as easy as popping ‘round to see a judge to get an answer to a legal question!

Alas, as any plaintiff or petitioner’s lawyers know, government defendants are notorious for delay, delay, delay.  “Delay,” to our plaintiffs’ bar, meaning exploit the rules of procedure to tie up a case, burn up the calendar, and cost clients money.  The drop-out rate for cases filed is probably as large as cases being formally dismissed for procedural defects by court order.

The Blue Line Sports case proves the exception to the rule.  Petitioners are business owners committed to winning a judicial decision that expressly ejects the NYS Attorney General Office out of the shadows of unilateral subpoenas without judicial oversight as a bullying tactic.  When our first go at filing the application was dismissed, these exceptional individuals immediately regrouped, studied the judge’s first order with procedural findings, and made the necessary corrections to refile the case within two weeks.

My side bar is to tell you that it was no small hustle to get that job done in such good form.  I am blessed to be working with my clients.

The Decision and Order issued by Judge Ellis, Justice of the NYS Supreme Court, is ground-breaking on the procedure necessary to file a Motion to Quash against the NYS Attorney General against an extra-judicial subpoena.  The pathway these two decisions creates is the best set of instructions by a court on the topic since NYS Attorney General Elliott Spitzer branded himself the “Sheriff of Wall Street” – pursuing more than $1 billion in fines against “ten of the largest investment firms on Wall Street” after “90 million Americans lost $7 trillion in the stock market collapse.” (Per this vintage CBS News coverage.)  It’s also one of our arguments on the merits that Spitzer used an old New York statute as the legal basis for his specific pursuits; one that doesn’t apply to petitioners as state-licensed “Dealers in Firearms.”  Again, that’s merits.

To get to those more interesting merits arguments, here’s what we had first to successfully show as a matter of procedure under CPLR 2304:

1.  a request of “withdrawal” of the subpoenas made to the NYS Assistant Attorney General who signed the subpoenas; and,

2.  a special proceeding filed “thereafter.”

In the first decision, we got hung up on the language of the CPLR 2304 calling it a “motion to quash.”  Our format was too close to a literal motion without a case or proceeding underpinning it.  The court pointed to aspects of securing jurisdiction over the person of the office and triggering authority for the court to rule.  Review the first decision HERE.

When we refiled under CPLR article 4 (special proceeding), we filed a Petition with a Notice of Petition essentially in front of (or on top of) our motion, affidavits, and exhibits.  The first clue that we were on the right track was the ease with which it went into the state’s on-line court filing system with expandable box of papers being filed options.  The rewards of our successful structure in the second case appeared in the absence of a repeat of State prior procedural arguments, and then in the Court affirming our procedural approach. 

The State’s new argument in the second case was only that we had not filed “promptly,” which it defined as being before the extra-judicial subpoena return date.  Here, Judge Ellis made two findings in his Decision and Order.  He found our first application (however inelegant) was timely filed, it was dismissed without prejudice, and we made no delay in refiling.  Then, he agreed that the CPLR distinguishes between filing “thereafter” in an extra-judicial subpoena, as opposed to filing “promptly” – so, ahead of the return date – in the litigation subpoena context. The new (second) decision in Blue Line Sports II cleans up a murky bit around the timing of the filing of the motion to quash.

Key to the new Decision and Order in Blue Line Sports II is this:  “While the statute might be construed – indeed, has been construed by multiple courts – as “thereafter” having the same meaning as “made promptly” presumably, the Legislature would not have utilized the two different phrases had it intended that only one phrase be ascribed meaning (citation omitted).”  Judge Ellis then went on to discuss the point, expanding his analysis to the specific facts of the case.

The State now has 30 days in which to answer the petition, or, to file a notice of appeal.  I’m hoping that this decision gets picked up by the official reporter series as it fills a critical gap on this important topic, applicable to any individual, business, or attorney trying to figure out how to oppose an extra-judicial subpoena.  Please be welcomed to contact me, if you are looking at a similar legal situation and would like copies of the filings.  The procedural guideposts of the new Decision and Order would not be limited to state-licensed “Dealers in Firearms.”

I do wish also to give kudos to the attorneys at Jones Day for their excellent briefing paper on this topic, which, itself, is widely referred to.  Find it HERE, if you are reading up on the topic.