MATTER OF MORGENTHAU v. COOKE, 56 N.Y.2d 24 (1982)

436 N.E.2d 467, 451 N.Y.S.2d 17

Court of Appeals of the State of New York.Argued May 4, 1982
Decided May 13, 1982

Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, ANDREW R. TYLER, J.

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Paul A. Feigenbaum, Michael Colodner and Kenneth Falk for appellants.

Robert M. Morgenthau, District Attorney (Robert M. Pitler
and Amyjane Rettew of counsel), respondent pro se.

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Boris Kostelanetz and David F. Axelrod for intervenor-respondent.

Per Curiam.

The question presented on this appeal is whether the brief Administrator of the Courts has authority to assign Judges and Justices of one court to serve temporarily in another court under article VI (§ 26, subd i) of the Constitution of the State of New York when no standards or administrative policies for such transfers have been established in the manner prescribed by section 28 of the same article. We hold that there is no such authority.

On September 21, 1981 the Chief Judge of the State of New York made public announcement of a new, two-step system, to be instituted beginning in January, 1982, for the temporary assignment of Judges of the New York City Civil and Criminal Courts to the Supreme Court of the counties in that city. While the making of such assignments was not new, the procedure announced by the Chief Judge was. Under the process in effect at the time of the announcement, assignments were made by the Chief Administrator

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of the Courts (respondent Evans) with the assistance of the Deputy Chief Administrative Judge responsible for courts within the City of New York and, although the assignments to the higher court were temporary in designation, several Judges so assigned had served under the assignments for a number of years. Under the new plan announced by the Chief Judge, the details of which were to be promulgated by the Chief Administrator within a month, all New York City Civil and Criminal Court Judges were to be screened by a select committee (the members of which were named in the announcement) to determine their qualification to sit as Acting Supreme Court Justices, following which, assignment to the higher judicial posts would be made on a rotation basis from the lower court Judges recommended by the committee, thus enabling many more to serve in the 97 Supreme Court positions then being filled by temporary assignment.

In conformity with the foregoing announcement, on October 20, 1981 the Chief Administrator made public the details of the rotation plan including a statement of his intentions to begin making assignments under it with the first term of 1982, to give all Civil and Criminal Court Judges recommended by the screening committee who had served in either court for at least one year an opportunity to serve in Supreme Court for substantially equal periods of time, and annually to rotate approximately 50% of the Judges assigned as Acting Supreme Court Justices.[1]

On January 14, 1982 petitioner District Attorney of New York County instituted this proceeding under CPLR article 78 to prohibit implementation of the rotation plan, alleging that because subdivision i of section 26 and subdivision c of section 28 of article VI of the State Constitution require that there be standards and administrative policies relative to temporary assignments established by the Chief Judge after consultation with the Administrative Board (consisting of the Chief Judge and the Presiding Justices of the Appellate Divisions) and approval by the Court of

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Appeals, and because no such standards and policies had been established, the Chief Administrator was without authority to make any temporary assignments under the plan. By so doing he brought into question for the first time the theretofore unchallenged assumption of authority by the Chief Administrator to make temporary assignments of Judges and Justices. On the same day petitioner moved for a preliminary injunction barring the making of assignments under the plan pending adjudication of the proceeding.

After service of an answer by respondents and a hearing before Supreme Court, New York County, the Justice at Special Term by judgment signed January 25, 1982 dismissed the petition and denied the preliminary injunction. He concluded that the District Attorney was not aggrieved by the plan and had no standing to object to it, but that, in any event, the Chief Judge and the Chief Administrator of the Courts had authority to implement the plan. An application for a preliminary injunction during the pendency of an appeal to the Appellate Division was denied on the same day but an expedited briefing schedule for the appeal was fixed.

On March 30, 1982[2] the Appellate Division reversed the judgment dismissing the petition, converted the proceeding to a declaratory judgment action, held that the District Attorney had standing to bring the proceeding, and entered judgment declaring that, by reason of failure of compliance with subdivision i of section 26 and subdivision c of section 28 of article VI of the State Constitution, the plan for temporary assignments was void and without effect. The case is before us on appeal taken as of right by respondents.[3]

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We address first the standing of the District Attorney to maintain this proceeding now properly converted to an action for declaratory judgment (CPLR 103, subd [c]). Under the liberalized attitude toward recognition of standing to litigate announced in Boryszewski v Brydges (37 N.Y.2d 361), the District Attorney qualifies under the “zone of interest” test (Matter of Dairylea Coop. v Walkley, 38 N.Y.2d 6, 9) as a proper party to initiate this litigation challenging the manner of designation of Judges to the Supreme Court in the City of New York — courts in which he, as the public officer charged with responsibility for prosecution of felony indictments in New York County, must necessarily perform the duties of his office and as to which he has a cognizable interest in assuring that the designation of the judicial officers to preside therein conforms to constitutional mandate.

With respect to the merits of the litigation, the order appealed from should be affirmed with only a procedural modification.

Critical to consideration of the issue and arguments involved is attention to two sections appearing in article VI of our State Constitution — the judiciary article — and to the amendments of those sections accomplished by the vote of the people on November 8, 1977, effective January 1, 1978 to become operative on April 1, 1978. Section 26 of that article speaks to temporary assignments of Judges or Justices to other courts, identifying the courts to which Judges or Justices of other, specified courts may be temporarily

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assigned. Included therein is a provision permitting a Judge of a New York City court to be assigned to Supreme Court in the judicial department of his residence (subd g). Prior to January 1, 1978 subdivision i of the section provided that temporary assignments of the Judges or Justices was to be made by the Appellate Division of the Supreme Court of the department or departments concerned. As of that date the text of subdivision i was amended to read as follows: “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.”

Section 28 of article VI addresses the much broader subject of administrative supervision of the courts. Prior to 1978 the authority and responsibility for supervision of the unified court system was vested in the Administrative Board of the Judicial Conference, consisting of the Chief Judge of the Court of Appeals and the Presiding Justices of the four Appellate Divisions. The section provided then that the Administrative Board should establish standards and administrative policies for general application throughout the State and that, in accordance with the standards and policies so established, the Appellate Divisions should supervise the administration and operation of the courts in their respective departments. As of January 1, 1978 the text of the section was significantly changed; it now provides that the Chief Judge of the Court of Appeals shall be the Chief Judge of the State of New York and the chief judicial officer of the unified court system, that there shall be an Administrative Board (of the same composition as that authorized by the section in its previous form), and that the Chief Judge, with the advice and consent of the Administrative Board, shall appoint a Chief Administrator of the Courts, who, on behalf of the Chief Judge, shall supervise the administration and operation of the unified court system, with such powers and duties as may be delegated to him by the Chief Judge or conferred by law. Subdivision c of the section provides: “The chief judge,

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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.”

The changes in subdivision i of section 26 and section 28 described above reflected the radical change in administration of the unified State court system accomplished by the constitutional amendments approved at the general election in November, 1977. Responsibility for and supervision of the administration and operation of the courts were shifted from the Administrative Board and Appellate Divisions to the Chief Judge of the State and his appointee acting on his behalf, the Chief Administrator of the Courts. In the adoption and promulgation of standards and administrative policies relevant to the newly conferred functions of supervision, a restriction was imposed which assures multistage, multiperson review, comment and approval before promulgation of guiding principles and precepts — i.e., the standards and policies must be considered by the Chief Judge in consultation with the Administrative Board (thereby involving the Presiding Justices of each of the Appellate Divisions), followed by submission to the Court of Appeals. Only after approval by that court may they be promulgated and made effective (se Corkum v Bartlett, 46 N.Y.2d 424, 430).

That this structured system of review and approval is applicable to the making of all temporary assignments of Judges from New York City Civil and Criminal Courts to serve in Supreme Court is apparent from the texts of article VI (§ 26, subd i; § 28, subd c) read together. The first of these sections, providing for the manner of making temporary assignments, explicitly requires that such assignments be made by the Chief Administrator “in accordance with standards and administrative policies established pursuant to section twenty-eight of this article.” Subdivision c of section 28 in turn is explicit that standards and administrative policies are established by the Chief Judge after consultation with the Administrative Board,

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submission to the Court of Appeals and approval by it, and in no other way.

It is thus evident that, before action may be taken by the Chief Administrator of the Courts under subdivision i of section 26 to make temporary assignments of Judges or Justices of one court to serve in another, standards and administrative policies for general application throughout the State must have been established pursuant to subdivision c of section 28. Without them, such assignments are not constitutionally authorized. The authority vested in the Chief Administrator by the Constitution is not broad and unlimited but is subject to being exercised in conformity with standards which have been established in accordance with constitutional prescription. So here, he had no authority to implement the rotation plan for acting Supreme Court designations.

In reaching this conclusion we reject the argument offered by appellants that subdivision i of section 26 is self-executing and that the reference therein to assignments being made “in accordance with” the described standards requires no more than that they must not conflict with existing standard or administrative policy, if any there be. The interpretation tendered would render meaningless the requirement that there be established pertinent standards and policies following consultation with the Administrative Board and approval of the Court of Appeals. We think the more evident and more appropriate translation is “pursuant to” established standards — which prevents the determination of criteria for making temporary assignments (a subject of sufficient importance to occupy a section of the Constitution) by a single, administrative officeholder and compels participation at a policy-making level by the State’s highest judicial officers. This interpretation implements the constitutional reform of 1977 effecting centralized administration of the courts through the recognition of its system of checks and balances.

The contention that because the rotation plan announced in October, 1981 concerned only temporary assignments within New York City no standards or administrative policies were required to be established in the manner provided by section 28, is without merit. The

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requirement of standards and policies is not limited to temporary assignments which are State-wide. The phrase “for general application throughout the state” appearing in subdivision c of section 28 describes the standards and policies to be established under that subdivision, not the making of temporary assignments, which is covered in section 26. The impact of the two related sections is that temporary assignments, wherever made and whether local or State-wide, must be made in conformity with defined, general principles having State-wide application.[4]

Any reliance on sections 211 and 212 of the Judiciary Law as authority for the making of temporary assignments between courts without relevant standards and administrative policies is misplaced. Beyond the fact that those statutory sections could not create a less restricted power to make such assignments than that provided by the Constitution, it is to be observed that the reference in section 212 (subd 2, par [c]) to the power of the Chief Administrator of the Courts to make temporary assignments of Judges and Justices of the unified court system expressly provides that the authority to do so is authority “in accordance with the provisions of section twenty-six of article six of the constitution”, and that section 211 (subd 1, par [a]), stating that the Chief Judge shall establish standards and administrative policies, repeats in part the procedure for such establishment set forth in article VI (§ 28, subd c) of the Constitution.

Nor is there merit to the argument that, if standards and administrative policies be necessary, sufficient standards exist by reason of two rules of the Chief Judge promulgated, following their approval by the Court of Appeals, in April, 1978 when the constitutional amendments relating to administration of the unified court system became operative. The first of the two — rule 445.1 (22 N.Y.CRR 445.1 [now rule 1.1]),[5] titled “Chief Judge and Chief Administrator;

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exercise of administrative powers and duties”, provided in part: “(a) Establishment of the regular hours, terms and parts of court, and assignments of judges and justices to them, other than temporary assignments, shall be done in consultation and agreement with the presiding justices of the appropriate appellate divisions on behalf of their respective courts”.

The argument advanced is that, because the words “temporary assignments” are used in an exception to the provision that assignment of Judges and Justices shall be done “in consultation and agreement with” Appellate Division Presiding Justices, such temporary assignments lie within the unfettered authority of the Chief Administrator. The argument fails to take into account, however, the fact that the quoted portion of the rule does not address and has no relevance to temporary assignments, in the constitutional sense, of Judges or Justices of one court to serve in another. It is an enabling provision which relates to the establishment of regular hours, terms and parts within a court and the assignment thereto of Judges already serving as members of such court (whether by election, appointment or “temporary assignment” otherwise constitutionally made), after consultation with and agreement of the respective Presiding Justice. Such consultation and agreement originally were dispensed with as to assignments to permit response to needs arising on short notice, as by reason of sudden illness; in its present form the rule similarly permits the Chief Administrator alone to make temporary adjustments in court hours, terms and parts. To construe the exemption of “temporary assignments” as used in this rule to support the creation of a standard or administrative policy with respect to the intercourt, temporary assignments treated in section 26 of article VI of the Constitution to which the rotation plan here under review is addressed would leave the express constitutional directive that there be standards and policies without meaning.

The second rule of the Chief Judge cited as furnishing the necessary standards is rule 445.3 (22 N.Y.CRR 445.3 [now rule 1.3]), which provides insofar as relevant: “(a) All rules and standards of the Administrative Board of the

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Judicial Conference, except Part 33 (rules governing judicial conduct), in effect on March 31, 1978, shall be continued in effect as standards and administrative policies established, approved and promulgated pursuant to article VI, section 28(c) of the Constitution, until expressly superseded by new rules or standards and administrative policies”. The argument made is that this rule, continuing prior standards, meets the constitutional requirement with respect to temporary assignments. It fails however because the prior rules and standards of the Administrative Board made no provision for temporary assignments between courts by the Chief Administrator. The reason for this omission is obvious when it is recalled that, prior to the operative date of the amendments to article VI (April 1, 1978) such assignments were made by the various Appellate Divisions without the necessity for any formal, common, guiding standards or principles. Rule 445.3 may not be read as providing the constitutionally required standards and policies for temporary intercourt assignments by the Chief Administrator by a continuation of the absence of standards which served appropriately when, prior to centralization of court administration, the authority to make such assignments was dispersed among four appellate courts, each of which administered the courts within its jurisdiction, in large measure without regard for any necessity for State-wide uniformity.

In sum, the authority granted the Chief Administrator of the Courts in article VI (§ 26, subd i) of the Constitution to make temporary assignment of Judges from one court to another (and subd i is the only source for such authority), may be exercised only pursuant to standards and administrative policies duly established in conformity with the provisions of article VI (§ 28, subd c). No pertinent standards or administrative policies have been established. Accordingly, respondents are entitled to a declaration that the Chief Administrator of the Courts had no authority to implement the rotation plan.[6]

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The Judges of the Civil and Criminal Courts of the City of New York who have been acting under temporary assignments made pursuant to the plan have been serving as de facto Supreme Court Justices (People v Czajka, 11 N.Y.2d 253; Sylvia Lake Co. v Northern Ore Co., 242 N.Y. 144; Matter of Trounstine v Britt, 212 N.Y. 421; Curtin v Barton, 139 N.Y. 505). To allow them appropriate opportunity to conclude the matters now pending before them, and to permit the establishment of appropriate standards and administrative policies, the declaration of the Appellate Division will be made effective July 1, 1982.

The order of the Appellate Division should be modified, without costs, to the extent of making the declaration therein effective July 1, 1982, and, as so modified, affirmed.

FUCHSBERG, J. (concurring in result).

It seems to me important that we recognize that, in this affair, under our State Constitution this court necessarily operates on two levels, judicial and administrative. These cannot always be discrete. For instance, our managerial function includes, pertinently, the approval or disapproval of standards and administrative policies promulgated for the governance of our unified court system; at the same time, we now pass judgment in an important controversy relating to the exercise or nonexercise of our power.

This in mind, I agree that the 31 Civil and Criminal Court Judges now temporarily assigned to the Supreme Court should conclude their present tours of duty as of July 1, 1982. And I further agree that, in the interim, standards and administrative policies to regulate the selection and service of their successors, be these the same individuals or others, should be devised and established anew by the Chief Judge after consultation with the Administrative Board and subject to approval of this court.

But, though I join in these dispositions, the path by which they are reached does not coincide, in part, with that taken by the Per Curiam opinion. For one thing, I would hold that the Chief Judge and the Chief Administrator, in

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making the assignments in question, have at all times acted under at least implied, if not express, authorization to do so. I respectfully suggest to say anything less is grossly unfair.

For another thing, in my view, this court’s power to approve a standard or policy almost of necessity implies a right to withdraw its approval. Else, a practice, once approved, would be beyond the power of the court to change, however desirable it might be thought to be. In the circumstances of the considerable controversy engendered by the rotation and screening features which, with the best of intentions, lately were added to the temporary appointment process, I believe it wise to now take such a step.

That the Chief Judge and Chief Administrator at all times acted within their authority is borne out by the recent history of the administration of this State’s courts. For present purposes, a good point of departure may well be 1962, when an insufficient complement of Supreme Court Justices, but one of the many shortages from which the system suffered, was somewhat allayed by temporary assignments made by the Appellate Divisions pursuant to former sections 26 and 28 of article VI of the State Constitution. The assignments were to be made in accordance with policies adopted by the Administrative Board of the Judicial Conference, in whose members the power to manage the then diversified court system largely was lodged.[1] So the situation remained until 1977, when the people adopted the constitutional court reorganization plan which produced the unified system. To that end, it centralized control in the Chief Judge and, through this office, in that of Chief Administrator, in the process relegating the Administrative Board to a consultative role. It was then too that, for the first time, the ultimate power to pass on policy was placed in our court. This radical change came about during the tenure of the present Chief Judge’s predecessor and it was the latter and the then Chief Administrator who effected the necessary transition.

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Thus it was that the former Chief Judge, on March 31, 1978, after consultation with the Administrative Board and with the written approval of the Court of Appeals, promulgated a standard and administrative policy relating to assignment of Judges. Comprising section 445.1 (now rule 1.1) of newly adopted Rules of the Chief Judge, it stated: “Establishment of the regular hours, terms and parts of court, and assignments of judges and justices to them, other than temporary assignments, shall be done [by the Chief Administrator] in consultation and agreement with the presiding justices of the appropriate appellate divisions on behalf of their respective courts; provided that if the Chief Administrator and a presiding justice are unable to agree, the matter shall be determined by the Chief Judge” (emphasis added).

This Chief Judge’s rule constituted the first and only reference in the standards and administrative policies relating to temporary assignments of Judges. As the respondents’ brief notes, by expressly exempting temporary assignments from the consultation procedures relating to other judicial assignments, consistent with prior practice, it left full discretion to determine the manner of these temporary assignments to the Chief Administrator.

Now, when the present Chief Judge and the Chief Administrator he appointed took office, this system of appointment continued to be carried on in accordance with the approved directive of the prior Chief Judge. It is significant that during the remainder of the prior Chief Judge’s term and that of the present Chief Judge, literally dozens and dozens of New York City Civil and Criminal Court Judges were being assigned to the Supreme Court under this rule. During these years no further standard or administrative policy was ever submitted to alter the by now long-established methodology for the making of such assignments. Yet, this court never raised the slightest objection to it.[2] The conclusion is, therefore, inescapable

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that the court assumed that its approval of rule 1.1 provided all the authorization necessary for such appointments and that, for the same reasons, the new Chief Judge, who inherited the recognized practice, had a similar right to assume that the standard and policy approval it reflected continued undisturbed.[3]

This said, I cannot gainsay that, especially from a retrospective vantage point and in the elastic context of statutory definition, it is not too difficult to interpret rule 1.1, as does the Per Curiam, as though it were not applicable to the temporary appointees with whom we are concerned (see, generally, Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes are to be Construed, 3 Vand L Rev 395). Nor, pragmatically, on this point, do I see any reason to take issue with the clarification this constitutes. This I do while fully appreciating the stance taken by Justice SANDLER at the Appellate Division, where he expressed the thought that, while “[a]s a matter of textual analysis either construction is verbally plausible”, when “subdivision (a) of section 445.1 is considered with the group of standards and policies then promulgated of which it was an integral part * * * the construction urged by respondents appears much more probably correct” (85 A.D.2d, p 478). Or, as this court wrote realistically in a time frame only six months after we

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had given written approval to rule 1.1, “though policy statements may be detailed they often are brief but broad statements of principle, identifying goals to be achieved while leaving to administrative implementation the methodology by which these goals are in fact to be reached” (Corkum v Bartlett, 46 N.Y.2d 424, 431). For, once one ceases to wrestle with the written matter, the bottom line is that the presence in the past of silent acquiescence, indeed of at least de facto approval, cannot be denied.

Be that as it may, in casting my judicial-administrative vote for withdrawal of approval of the existing procedure for the temporary appointments at stake, I do so with confidence that the establishment of standards and policies which the Chief Judge will now propose will provide the occasion not only for constructive input incident to approval by the Court of Appeals, but, prior thereto, for at least equal input by the Presiding Justices of the Appellate Divisions, who, as members of the Administrative Board, are to play a most “significant consultative role in management decisions which affect the trial courts in each of the diverse areas of our State” (Preamble to Standards and Administrative Policies, eff April 1, 1978).

Judges JASEN, GABRIELLI, JONES, WACHTLER and MEYER concur i Per Curiam opinion; Judge FUCHSBERG concurs in result in a separate opinion; Chief Judge COOKE taking no part.

Order modified, etc.

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