Morgenthau ex rel. People v. Cooke

85 A.D.2d 463, 448 N.Y.S.2d 480, 1982 N.Y. App. Div. LEXIS 14988

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 30, 1982
• Status: Published

Opinions

OPINION OF THE COURT

Per Curiam.

Petitioner-appellant is the District Attorney of New York County; respondents-respondents are, respectively, the Chief Judge of New York State, sued in his capacity as chief judicial officer of the State’s Unified Court System, and the Chief Administrative Judge of the system, sued in his official capacity. On motion granted by this court, Criminal Court Judge Jack Rosenberg, heretofore assigned temporarily to Supreme Court, was permitted to intervene in this appeal as a petitioner ab initio. The goal sought by petitioners is to prohibit implementation of a plan, recently promulgated by respondents, concerning temporary assignment of Judges of the courts of this city (NY Const, art VI, § 15) to the Supreme Court. It is the purpose of the plan, effective at the opening of the January term, 1982, to return those Judges, presently assigned upward, to the courts of the city from which they were selected originally, those with the longest such service first, to be followed by those with lesser time in the Supreme Court, all to be replaced by Judges from the lower courts, and all to be rotated periodically so that those desiring so to do may have the opportunity to achieve temporary upgrading.

By the time this case was heard at Special Term, the plan had actually gone into effect, with a shift of newly assigned Judges in place, and their predecessors returned to their original courts. Flowing from this circumstance is the subtle suggestion that to set aside the rotation scheme at this juncture would be unthinkable because it would bring about a chaotic situation in the courts and put into question those decisions rendered by temporarily upgraded Judges since the new plan was put into effect. This, however, is not a valid consideration in our disposition of this appeal.

The petition states in sum that the District Attorney’s interest in halting the plan’s operation derives from his office: as prosecutor of most of the cases heard in Supreme Court, New York County, he is vitally concerned with the quality and experience of judicial personnel presiding in felony parts. He therefore desires to have experienced Judges retained in their present assignments, some of whom have enjoyed a higher status for as long as 10 years.

Special Term dismissed the petition on several grounds: that petitioner lacks standing, having no more than a “valid interest” in the situation; that respondents possessed the requisite authority to place their announced plan into operation; and that, in any event, the remedy of prohibition is not available to petitioner absent a clear legal right against a public official who is exceeding his authority.

The time schedule leading to institution of the plan appears to have been as follows. On September 21 last, it was announced by the Office of Court Administration, the Chief Administrator’s agency, that a new plan of operation of the system of temporary assignment to Supreme Court would soon be forthcoming, involving the new elements of rotation of personnel and operation of a screening panel. On October 20, further details were released, particularly that the objective would be to achieve equality of assignment upward, with accompanying increased emoluments. On January 4, it was announced that those Judges of the city courts then sitting by assignment would be returned to their former courts, in order of seniority in the higher positions, to be replaced in Supreme Court by new designees, and that rotation in assignments would be the order of the day. The plan was then put under way.

Before turning to the merits of this case, we consider the aspect first taken up at Special Term, that of standing of the petitioner. We hold that the District Attorney has standing to maintain this action. (See Boryszewski v Brydges, 37 NY2d 361, 364-365, in which the holding in Hidley v Rockefeller, 28 NY2d 439, cited by Special Term, lost status as a precedent.) Further, petitioner will “bring the kind of interest that leads to full and vigorous presentation and exploration of the issues involved.” CMatter of Burke v Sugarman, 35 NY2d 39, 44.) We find the District Attorney’s interest to be “not abstract but personal, direct and substantial”. (Matter of Taylor v Sise, 33 NY2d 357, 362.)

Now to turn to the merits. The basic law governing temporary assignment of Judges to Supreme Court is found in article VI of the Constitution as follows:¹

Ҥ 26. [Temporary assignments of justices or judges to other courts]

“a. A justice of the supreme court may perform the duties of his office or hold court in any county and may be temporarily assigned to the supreme court in any judicial district or to the court of claims. A justice of the supreme court in the city of New York may be temporarily assigned to the family court in the city of New York or to the surrogate’s court in any county within the city of New York when required to dispose of the business of such court.

“b. A judge of the court of claims may perform the duties of his office or hold court in any county and may be temporarily assigned to the supreme court in any judicial district.

“c. A judge of the county court may perform the duties of his office or hold court in any county and may be temporarily assigned to the supreme court in the judicial department of his residence or to the county court or the family court in any county or to the surrogate’s court in any county outside the city of New York or to a court for the city of New York established pursuant to section fifteen of this article.

“d. A judge of the surrogate’s court in any county within the city of New York may perform the duties of his office or hold court in any county and may be temporarily assigned to the supreme court in the judicial department of his residence.

“e. A judge of the surrogate’s court in any county outside the city of New York may perform the duties of his office or hold court in any county and may be temporarily assigned to the supreme court in the judicial department of his residence or to the county court or the family court in any county or to a court for the city of New York established pursuant to section fifteen of this article.

“f. A judge of the family court may perform the duties of his office or hold court in any county and may be temporarily assigned to the county court or the family court in any county or to the surrogate’s court in any county outside of the city of New York or to a court for the city of New York established pursuant to section fifteen of this article.

“g. A judge of a court for the city of New York established pursuant to section fifteen of this article may perform the duties of his office or hold court in any county and may be temporarily assigned to the supreme court in the judicial department of his residence or to the county court or the family court in any county or to the other court for the city of New York established pursuant to section fifteen of this article.

“h. A judge of the district court in any county may perform the duties of his office or hold court in any county and may be temporarily assigned to the county court in the judicial department of his residence or to a court for the city of New York established pursuant to section fifteen of this article or to the district court in any county.

“i. Temporary assignments of all the foregoing judges or justices listed in this section shall be made by the appellate division of the supreme court of the department or departments concerned.” (Subdivision i was amended in 1977 to read as appears immediately hereafter.)

Subdivision i as amended: “i. Temporary assignments of all the foregoing judges or justices listed in this section shall be made by the chief administrator of the courts in accordance with standards and administrative policies established pursuant to section twenty-eight of this article.”

To return to the balance of section 26:

“j. The legislature may provide for temporary assignments within the county of residence or any adjoining county, of judges of town, village or city courts outside the city of New York.

“k. While temporarily assigned pursuant to the provisions of this section, any judge or justice shall have the powers, duties and jurisdiction of a judge or justice of the court to which assigned. After the expiration of any temporary assignment, as provided in this section, the judge or justice assigned shall have all the powers, duties and jurisdiction of a judge or justice of the court to which he was assigned with respect to matters pending before him during the term of such temporary assignment.”

Section 28 was adopted simultaneously with the newly amended subdivision i. Its pertinent subdivision c follows: “c. The chief judge, after consultation with the administrative board, shall establish standards and administrative policies for general application throughout the state, which shall be submitted by the chief judge to the court of appeals, together with the recommendations, if any, of the administrative board. Such standards and administrative policies shall be promulgated after approval by the court of appeals.”

As stated at Special Term, there are no issues of fact in this case. It is not seriously disputed that the Chief Judge, at no time, in respect of the rotation and screening plan, did any of the things specified in section 28 of article VI of the Constitution. Not alone did he not establish standards and administrative policies — unless the various announcements made last autumn and winter be deemed such, and they are not — but he did not consult with the administrative board on the subject, nor submit the matter to the Court of Appeals for approval. Thus the flat mandate of the Constitution was ignored.

Several arguments presented by respondents in support of the claim of propriety of the new rules applicable to assignments in 1982 of Judges of the courts of the city to Supreme Court are easily refuted, based as they are on reasons that do not justify departure from constitutional imperatives. The history of constitutional enactments in America teaches that every grant of power should ideally be hedged about by checks and balances to protect the body politic from absolute power. Thus, every word of subdivision i of section 26 and subdivision c of section 28 should have been given meaning by full implementation. Special Term’s memorandum opinion asserts “that respondents can make such assignments under the existing standard, which is to be found in 22 N.Y.C.R.R. 445,” the Chief Administrator’s regulation; further, that “such temporary-assignments could be made even if there were no existing standard.” The authority cited is Corkum v Bartlett (46 NY2d 424) which reads precisely to the opposite effect when it comes to standards or policies: “Striking is the unqualified constitutional statement [NY Const, art VI, § 28, subds a-c] that ‘the chief administrator * * * shall supervise the administration and operation of the unified court system.’ * * * For, with respect to supervision or management, as distinguished from policy formulation, the Constitution places no limitations on the duties the Chief Judge may delegate to the administrator. And, neither consultation with the Administrative Board nor approval by the Court of Appeals is a prerequisite to the exercise of supervisory [emphasis added] powers by the Chief Administrator — a marked contrast with the restrictions placed on the establishment of‘standards and administrative policies [so emphasized in the original] for general application throughout the state’ ”. (Corkum v Bartlett, 46 NY2d 424, 428-429.)

“Subdivision c of section 28 of Article VI of the new constitutional provision mandates that before the Chief Judge may establish ‘standards and administrative policies’-he must consult with the Administrative Board and obtain the approval of the Court of Appeals.” (Corkum v Bartlett, supra, p 430.) It was obviously error on Special Term’s part to characterize temporary assignments — a problem of such importance that it is treated of in its own separate constitutional paragraph — as merely supervision and management. It is undoubtedly so that the main purpose of the scheme which centralized court administration was to transfer all administrative power theretofore held by the Appellate Divisions to one chief administrative head, relegating the Appellate Divisions to advisory and consultative status, but this cannot be read to mean that constitutional limitations were abandoned in the process. Such a limitation is obviously present in subdivision i of section 26, setting out how “[temporary assignments” are to be made. The kind of temporary assignment meant becomes clearly evident when other pertinent sources are carefully consulted. The two words are not restricted to the daily bread-and-butter operations of the courts. Such a reading is belied by a simple scan of subdivision k of section 26, which spells out the enlargement of responsibilities in temporarily assigned status, and the extension of such responsibilities after “expiration of any temporary assignment” “with respect to matters pending before him [the assigned Judge] during the term of such temporary assignment.” That reference is therefore pertinent to the kind of assignment covered by the rotation order.²

Special Term’s opinion rationalizes that this plan, affecting the greater part of the State’s court business, was purely a local matter. But the whole unified court scheme is not to be put into disjoint by fragmentation of this sort, a step that seems to be the very antithesis of unification. Section 28 speaks of the administrative board being consulted, not just its local members. Article VI addresses itself to one State-wide system for which policies are to be fashioned. This is not a simple matter of management, as, for example, would be the emergency replacement of a Judge who has suddenly become ill.

The Special Term opinion states further that section 445.1 (now called section 1.1) of the administrator’s regulations (22 NYCRR 445.1) is in itself a sufficient statement of policy. Can it really be considered sufficient to cover a brand new rotation plan which represents a new departure after two decades of temporary assignment? And there is no choice as to the prerequisites: section 28 recites that “The Chief Judge * * * shall establish” (emphasis supplied), surely a mandatory verb. And section 445.1 (1.1) of the regulations cannot enlarge upon the superior law in the Constitution. Even that regulation specifically excludes temporary assignments from its purview. Accepting section 445.1 as an earlier statement of policy, it is therefore not the sort of policy, by its own terms and by those contained in subdivision i of section 26, to be read as a policy covering temporary assignments. As to temporary assignments, it is therefore no policy at all, and the argument that it is translates into a statement that no policy is the equivalent of a required policy, an argument that would have been relished by Lewis Carroll.³

Our thesis is uncomplicated and may be recited in simple terms. In 1977, to accommodate to a new administrative setup of the court system, our State Constitution (art VI, § 26 “[Temporary assignments of justices or judges to other courtsT [emphasis added]), subdivision i was amended, and addressed solely to that subject. The then Chief Judge — this is accepted — promulgated a policy (22 NYCRR 445.1) which, responsively, excepted that subject from its purview, i.e., powers and duties of the Chief Administrator. This was adopted in the full constitutional form prescribed by article VI (§ 28, subd c). No other set of standards and policy in respect of the subject of temporary assignments has ever been adopted in accord with subdivision c of section 28. The order to which this proceeding is addressed was not such a standard or statement of policy nor, were it such, did its promulgation comply with subdivision c of section 28. To which we add only that it is ludicrous to insist that a special paragraph in the Constitution was adopted simply to confirm the Chief Administrator’s inherent power to carry on daily housekeeping!

One of the memoranda submitted by petitioner District Attorney states that “[t]he wisdom of the rotation policy has little to do with the constitutional issue to be decided. For, no matter how unwise or ill-advised the policy it would still be valid if the constitutional procedure were followed.” We agree. Too much of the argument herein and too much of the public discussion concerning this case has dealt with motivations and other matters having nothing to do with the constitutional issue we face. We have no reason to believe other than that the subject plan was fashioned in accordance with the highest traditions of public service. Our disagreement is solely with the manner and method of its adoption. The very life of constitutional government depends on complete submission to the mandates of basic law. This is the error we find and we seek to correct it, as is our responsibility (see Saxton v Carey, 44 , 549), in the only way available to a court: to say so.

In form, this proceeding is one for a writ of prohibition of implementation of the rotation order under attack, in pursuit of which petitioner originally sought a preliminary injunction. In itself, that presents a nettlesome problem. Obviously, because of strictures of time imposed by the tight schedule adopted for commencement of the new plan, appropriate consideration of this appeal required that no precipitous action be taken to halt in its tracks a mass transfer of Justices, with possibly resultant chaos in the affected courts. We make no comment as to which party, if either, bears responsibility for these circumstances; we assume that all participants in this case acted in good faith. The resultant delay has been unavoidable up to this juncture, and will continue to pose difficulties until final resolution of this dispute upon further appeal, inevitable because we are a divided court. We have therefore chosen neither to prohibit nor to enjoin, but to translate (CPLR 103, subd [c]) our views into a declaratory judgment in this undoubtedly justiciable controversy (CPLR 3001), upon the basis of which an armory of individual remedies may be sought (Siegel, New York Practice, ch 16, subd [H], § 441, p 584) to afford appropriate relief in any situation affected by this holding.

Accordingly, the judgment of dismissal of the petition herein for a writ of prohibition, entered in Supreme Court, New York County (Tyler, J.), January 25,1982, should be reversed, on the law, without costs, and the petition considered as though a complaint in an action for declaratory judgment, in which judgment should be entered in favor of plaintiff (petitioner)-appellant declaring that subdivision i of section 26 and subdivision c of section 28 of article VI of the Constitution of the State require that the new rotation plan of temporary assignment of Judges of the courts of the City of New York requires, as prerequisite to promulgation, the adoption of a standard and administrative policy in respect of the same, as well as consultation theretofore by the Chief Judge with the Administrative Board of the Courts and approval by the Court of Appeals and that there was no compliance therewith prior to promulgation of the plan or at any time, and that therefore the plan of temporary assignment is without effect and void in respect of the manner of its promulgation.

1 . Pertinent statutes are found in the Judiciary Law. Sections 211, 212, and 213 virtually track the quoted sections of the Constitution. The statutes are of little importance in our consideration, the sections of the Constitution being controlling in any event.

2 . Also see temporary title of amendment to subdivision i of section 26: “§26. [Temporary assignments of justices or judges to other courts]”.

3 . “ ‘When I use a word’ Humpty Dumpty said, ‘it means just what I choose it to mean — neither more nor less.’ ” (Alice’s Adventures in Wonderland, ch 6.)