A New York Supreme Appellate Court has sidestepped ruling on the merits of a lawsuit claiming that the practice of the New York Department of Correctional Services (DOCS) of receiving a commission from prisoner phone calls was an illegal legislative act. The Court held the action was procedurally barred under the statute of limitations.

The petitioners accepted collect phone calls from DOCS, which received a 57.5 percent commission on the cost of each call a prisoner makes through DOCS’ phone service provider, MCI Worldwide Communications. New York’s Public Service Commission approved MCI’s flat rate for such phone calls.

Petitioners sought declaratory and injunctive relief to prevent DOCS from collecting its commission, classifying that commission as legislative in nature. The gravaman of their complaint, however, was based on constitutional claims of free speech, equal protection and due process. The Court said such claims must be brought pursuant to CPLR article 78.

Article 78 has a four-month statute of limitations. That means, the Court held, that the claim accrues when the act became “final and binding upon petitioners,” or when DOCS’ determination became effective, rather than when petitioners received actual notice thereof.

Petitioners filed their action in February 2004 and the last DOCS and MCI contract was approved by the state comptroller on July 25, 2003. Therefore, the Court held the constitutional claims were untimely because the continuing violation doctrine was inapplicable in this case.

The lower court’s order was affirmed. See: Walton v. New York Department of Correctional Services, 25 A.D.3d 999, 808 N.Y.S.2d 483 (N.Y.A.D. 3 Dept., 2006).

This ruling was later reversed by the New York Court of Appeals, which found that the constitutional challenge was timely and was appropriately brought under article 78. See: Walton v. New York State Dept. of Correctional Services, 8 N.Y.3d 186, 863 N.E.2d 1001 (N.Y., 2007). [PLN, April 2007, p.20].

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