Opinion
Index No. 811025/2022
07-12-2024
Hon. Acea M. Mosey, Plaintiff, v. Office of Court Administration, Defendants.
James Duane Featherstonaugh and Jonathan S. McCardle for Petitioner New York State Office of the Attorney General Letitia James, Michael Thomas Feeley, and Pedro Morales for Respondent
Unpublished Opinion
James Duane Featherstonaugh and Jonathan S. McCardle for Petitioner
New York State Office of the Attorney General Letitia James, Michael Thomas Feeley, and Pedro Morales for Respondent
CATHERINE NUGENT PANEPINTO J.S.C.
The one great principle of the English law is to make business for itself.
Charles Dickens, Bleak House
Petitioner is the Honorable Acea M. Mosey (Surrogate Mosey or Petitioner), the duly elected Erie County Surrogate located in the Eighth Judicial District of New York (NYSCEF Doc. No. 1). Respondent is the Office of Court Administration (OCA), the administrative arm of the court system, under the direction of the Chief Administrative Judge (AJ), who oversees the day-to-day administration and operation of the statewide court system (id.).
Because OCA is the administrative arm of the AJ, the Court herein refers OCA and AJ interchangeably.
Petitioner's hybrid declaratory judgement/CPLR Article 78 petition seeks a judgment and order: (1) declaring that under §§2605 and 2606 of the Surrogate Court Procedure Act (SPCA), Surrogate Mosey has the exclusive authority to appoint the Chief Clerk and Deputy Chief Clerk of the Erie County Surrogate's Court; (2) declaring that §§2605 and 2606 of the SPCA have not been repealed by the adoption of Article VI, Section 28 of the New York State Constitution; and (3) declaring that the July 6, 2022 Administrative Order (Administrative Order) issued by the Honorable Kevin M. Carter, Administrative Judge of the Eighth Judicial District, was arbitrary and capricious (id.).
At bottom, this Petition presents two binary questions for this Court's consideration: (1) Have §§2605 and 2606 of the SPCA, which explicitly give Surrogate Mosey the exclusive right to appoint the Chief Clerk and Deputy Chief Clerk of the Erie County Surrogate's Court, been repealed by implication as a result of the adoption of Article VI, Section 28 of the New York State Constitution? Respondent answers the question in the affirmative; or (2) Can §§2605 and 2606 of the SPCA and Article VI, Section 28 of the Constitution, along with other statutes, be read together and reconciled in such a way that Surrogate Mosey, not OCA, has the sole power to appoint the Chief Clerk and Deputy Chief Clerk of the Surrogate's Court? Surrogate Mosey argues that they can.
In reaching this decision, the Court has reviewed the verified petition, along with exhibits A-H (hereafter, Exhibit -) (NYSCEF Docs. Nos. 1-9); the affirmation of the Honorable C. Raymond Rodigan in support of the petition (NYSCEF Doc. No. 10); Surrogate Mosey's affirmation in support of the petition (NYSCEF Doc. No. 13); petitioner's supporting memorandum of law (hereinafter, pet mem at -) (NYSCEF Doc. No. 14); respondent's notice of motion to dismiss the petition (NYSCEF Doc. No. 22); the affirmation of Daniel R. Maguire (Maguire Affirmation) in support of the motion to dismiss (NYSCEF Doc. No. 23); respondent's supporting memorandum of law (hereinafter, resp mem at -) (NYSCEF Doc. No. 26); and petitioner's memorandum of law in reply (NYSCEF Doc. No. 28). The Court also reviewed the transcript of the May 7, 2024 argument on the petition (hereinafter, T at -).
FACTS
The facts are simple and undisputed. On July 1, 2022, Surrogate Mosey issued an order which provided that pursuant to SPCA §2605 (3), she was "designating" Linda Coyle Novotny as Temporary Chief Clerk of the Erie County Surrogate's Court (Exhibit A).
On July 6, 2022, OCA issued an order also appointing Linda C. Novotny as Temporary Chief Clerk of the Erie County Surrogate's Court (Exhibit B).
OCA then commenced the process to fill the Chief Clerk's position permanently. On November 22, 2022, OCA nominated and supported Linda Wiedrick as the permanent Chief Clerk (Maguire Affirmation at ¶3, [referencing its attached exhibit A]).
STATUTORY BACKGROUND
The relevant statutory, regulatory and and constitutional schemes are set forth below.
A. The New York Surrogate Court Procedure Act
The SCPA is the principal statute governing proceedings in the Surrogate's Court. Relevant to this case is SCPA § 2605(1)-(2). That section provides, in relevant part:
"1. Chief Clerk. By written order filed and recorded in his office, which he may in like manner revoke at pleasure, a surrogate shall appoint a chief clerk of the surrogate's court, who shall be and shall perform all duties of the clerk of the surrogate's court.
"2. Deputy Chief Clerk. In any county containing a city of the second class and in any county having a population over 500,000 the surrogate shall, and in any other county the surrogate may, in like manner appoint a deputy chief clerk of the surrogate's court. In counties under 500,000 the surrogate may designate one of the clerks of the court to act as deputy chief clerk of the court in addition to other duties."
The Legislature passed SCPA § 2605 in 1967. In 1993, the Legislature amended SPCA § 2605 (see 1993 Sess. Law News of NY Ch. 514 (A. 8414-A). The Legislature only amended SCPA § 2605(4) to increase the bond amount a chief clerk and deputy chief clerk are required to file from $10,000 to $50,000 (id.). The Legislature did not amend the subsections relevant to this proceeding-SCPA § 2605(1)-(2) (id.).
B. The Judiciary Article of the New York Constitution
Article VI of the New York Constitution-the Judiciary Article-created a "unified court system for the state" (NY Const., art. VI, § 1[a]). This unified court system includes the surrogate's court (id.["The state-wide courts shall consist of the court of appeals, the supreme court including the appellate divisions thereof, the court of claims, the county court, the surrogate's court and the family court"]). Article VI vested the Chief Judge with the authority to administer the system, with the assistance of the Administrative Board (composed of the Chief Judge and the Presiding Justices of each Appellate Division) (N.Y Const., art. VI, § 28). Together, they are empowered to appoint a chief administrator to "supervise the administration and operation of the unified court system" and exercise powers delegated by the Chief Judge (NY Const., art. VI, §28 [a], [b]).
C. The New York Judiciary Law
The Legislature further defined the Chief Judge's authority to administer New York's "unified court system" through New York's Judiciary Law. Relevant to this case is Judiciary Law § 211(1) (d), which provides, in part:
"1. The chief judge, after consultation with the administrative board, shall establish standards and administrative policies for general application to the unified court system throughout the state, including but not limited to standards and administrative policies relating to....
'(d) Personnel practices affecting nonjudicial personnel including: title structure, job definition, classification, qualifications, appointments, promotions, transfers, leaves of absence, resignations and reinstatements, performance ratings, removal, sick leaves, vacations and time allowances."
The Legislature passed Judiciary Law § 211(1) to effectuate and clarify the broad language of NY Const., art. VI, § 28. As explained in the sponsor memorandum:
"Section 211 prescribes the principal administrative function of the Chief Judge of the Court of Appeals: the promulgation, after approval by the Court of Appeals, of standards and administrative policies for general application throughout the State's court system [Const. Art. VI, § 28(d)]. These standards and administrative policies may relate to all phases of court management, including the development of personnel, fiscal and budgetary practices, the orderly dispatch of business in the trial courts, the management of ancillary services such as libraries and jury systems, and the transfer and assignment of judges. These policy making functions were previously vested in the Administrative Board of the Judicial Conference under former Article 7-A of the Judiciary Law and former section 28 of Article VI of the Constitution"
(Maguire Affirmation at Ex. B).
D. The Judiciary Regulations
OCA's authority to administer the "unified court system" is further defined by regulation. Specifically, as relevant here, 22 NYCRR 80.1(b) provides:
"(b) In the exercise of this delegated responsibility and in accordance with the standards and administrative policies established, approved and promulgated pursuant to article VI, section 28(c) of the Constitution, the Chief Administrator shall....
"(3) appoint and remove, upon nomination or recommendation of the appropriate administrative judge, supervising judge or judge of the court in which the position is to be filled or the employee works, or other administrator, all nonjudicial officers and employees, except the county clerks, commissioners of jurors, nonjudicial officers and employees of the town and village courts, and personal assistants who serve as law clerks (law secretaries) and secretaries to judges and justices."
ANALYSIS
The applicable standard of review in this matter is whether OCA's hiring of the Chief Clerk of the Surrogate's Court was "made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" (Matter of Gibson v Commissioner of the NY State Dept. Of Motor Vehs., 223 A.D.3d 667,667 [2d Dept 2024]).
The parties' positions are fairly evident from the regulatory, statutory and constitutional framework referenced above.
Petitioner contends that SCPA § 2605 "could not be more clear. The Surrogate has the responsibility and jurisdiction to appoint a Chief Clerk of the surrogate court, not OCA" (NYSCEF DOC No. 1 at ¶ 45). Petitioner further argues that the legislative history of the SCPA supports her position.
Respondent counters by arguing that Article VI, Section 28 of the New York State Constitution overrules SCPA § 2605, thus rendering that statute unconstitutional and that this constitutional provision vests OCA with exclusive authority to make all personnel decisions including the hiring of the Chief Clerk and Deputy Chief Clerk of the Surrogate's Court (resp mem at 5).
Respondent also points to the language in the constitutional provision providing that the "chief administrator, on behalf of the chief judge, shall supervise the administration and operation of the Unified Court System" (id. at 5-6). Since Article VI, Section 1 of the New York State Constitution defines the "unified court system" to include the Surrogate's Court, the Constitution grants OCA the authority to "supervise the administration and operation" of the Surrogate's Court, including the authority over the hiring of all nonjudicial personnel (id. at 5-6). OCA asserts that its reading of the Constitution is supported by Judiciary Law § 211, which defines the administrative functions of the Chief Judge to include personnel practices affecting nonjudicial personnel, including "appointments" (id. at 6).
There are then, according to OCA, two pairs of conflict here: the first between the New York State Constitution and SCPA § 2605 and the second between SCPA § 2605 and Judiciary Law § 211. According to OCA, in each instance SCPA § 2605 must be disregarded.
This Court disagrees.
A. Article VI, Section 28 of the New York State Constitution v SCPA §§ 2605
Respondent contends that the passage of Article VI, Section 28 of the New York State Constitution effectively overruled SCPA § 2605 and thus rendered that section unconstitutional (resp mem at 5 ["Upon amendment of the Constitution, statutes inconsistent with the new amendment become unconstitutional . See Charles v. Sommer & Bro v. Albert Lorsch & Co., 254 NY 146, 147 [1930]").
However, the Court of Appeals in People v Vivani (36 N.Y.3d 564, 576 [2021] [some internal quotation marks omitted) has held:
"A statute 'enjoy[s] a strong presumption of constitutionality' (Overstock.com, Inc. v New York State Dept. of Taxation & Fin., 20 N.Y.3d 586, 593 [2013], quoting LaValle v Hayden, 98 N.Y.2d 155, 161 [2002]). To rebut that presumption, the party attempting to strike down a statute as facially unconstitutional bears the 'heavy burden' of proving 'beyond a reasonable doubt' that the statute is 'in conflict with the Constitution' (McKinney's Cons Laws of NY, Book 1, Statutes § 150 [a], Comment; see Overstock.com, 20 N.Y.3d at 593; Cohen v Cuomo, 19 N.Y.3d 196, 201-202 [2012] ; Matter of Fay, 291 NY 198, 207 [1943]).
A law will be deemed unconstitutional "only as a last unavoidable result... after every reasonable mode of reconciliation of the statute with the Constitution has been resorted to, and reconciliation has been found impossible" (White v Cuomo, 38 N.Y.3d 209, 216 [2022]). While the presumption of constitutionality is not irrefutable, as the party challenging a duly enacted statute, respondent "face[s] the initial burden of demonstrating [SCPA § 2605's] invalidity 'beyond a reasonable doubt'" (LaValle v Hayden, 98 N.Y.2d 155, 161 [2002], quoting People v Tichenor, 89 N.Y.2d 769, 773 [1997]; see Matter of Moran Towing Corp. v Urbach, 99 N.Y.2d 443, 448 [2003]; Matter of Saratoga Water Servs. v Saratoga County Water Auth., 83 N.Y.2d 205, 211 [1994]; Wiggins v Town of Somers, 4 N.Y.2d 215, 218-219 [1958]). Moreover, as the party mounting a facial challenge to this statute, respondent" 'bears the substantial burden of demonstrating that in any degree and in every conceivable application, the law suffers wholesale constitutional impairment'" (Matter of E.S. v P.D., 8 N.Y.3d 150, 158 [2007], quoting Matter of Moran Towing Corp., 99 N.Y.2d at 448).
In the Court's view, OCA has not even come close to meeting this appropriately heavy burden. First, the constitutional provision relied upon by respondent simply gives OCA, through the Chief Judge and the AJ, the power to "supervise the administration and operation" of the unified court system. According to respondent, such "administration and operation" includes the power to appoint all nonjudicial personnel in the unified court system, including the Surrogate Court's Chief Clerk and Deputy Clerk (resp mem at 5).
Yet as respondent concedes, the term "administration and operation" in this constitutional context is not always "easy to determine" and that the term is an "elastic one" (resp mem at 6 n 2[ quoting Corkum v Bartlett, 46 N.Y.2d 424, 429 [1979]). Nothing in the plain language of this section of the constitution refers to giving OCA hiring or appointment powers. Indeed, the legislative history of the SCPA, which was passed in 1966 and amended in 1993, indicates that OCA's predecessor (known then as the "Judicial Conference") submitted a letter to the Legislature objecting to the SCPA provisions giving the Surrogate the power to appoint the Chief Clerk and the Deputy Clerk (Bill Jacket, L 1966, ch 953, at 44-57[ Letter from Judicial Conference of the State of New York, May 6, 1966] [Bill Jacket cumulatively paginated]). The position of OCA's predecessor was ultimately rejected by the Legislature and Governor Rockefeller, who signed the SPCA into law.
Further, the amendment to the Constitution in Article VI, Section 28 was adopted in 1977, 11 years after the SCPA was passed. In 1993, § 2605 was amended to simply increase the bond amount a Chief Clerk and Deputy Clerk were required to post. The relevant provisions in § 2605 that are at issue here were left untouched. Had the Legislature intended then to repeal the appointment powers in § 2605, it could have easily done so.
Finally, as petitioner points out, and OCA does not directly dispute, the statutory authority under SCPA § 2605 (and its predecessor statute) "for a Surrogate to appoint a Chief Clerk has been in existence for over a century and was delegated by the Legislature in Statute and by the People in Article VI, Section 12 of the Constitution" of New York (pet mem at 10).
Article VI, Section 12 was a specific delegation of authority and jurisdiction by the Legislature to the Surrogate's Court. Article VI, Section 12 provides:
"[S]urrogate's court shall have jurisdiction over all actions and proceedings relating to the affairs of decedents, probate of wills, administration of estates and actions and proceedings arising thereunder or pertaining thereto, guardianships of the property of minors, and such other actions and proceedings, not within the exclusive jurisdiction of the supreme court, as may be provided by law."
In short, OCA has not established beyond a reasonable doubt that § 2605 was rendered invalid by Article VI, Section 28 of the New York State Constitution.
B. § 2605 of the SPCA v § 211 of the Judiciary Law
As noted above, Judiciary Law § 211 (1) (d) empowers the Chief Judge to establish "standards and administrative policies for general application to the unified court system" including standards and administrative policies related to, among other things, "appointments" of "nonjudicial personnel." According to OCA, the Judiciary Law overrules SCPA § 2605' grant to the Surrogate of the power to hire the Chief Clerk and The Deputy Clerk, who are nonjudicial employees. OCA argues (resp mem at 9) that
"[n]either NY Const., art. VI, § 28 or the Judiciary Law explicitly define 'nonjudicial personnel.' The term 'nonjudicial personnel,' however, is a binary term creating two categories of personnel- 'judicial" and "nonjudicial.' Determining the scope of the term 'judicial' also determines the scope of the term 'nonjudicial.' Any category of personnel that is not 'judicial' is 'nonjudicial.'"
The Court rejects this argument for two reasons.
First, as OCA concedes, "nonjudicial personnel" is defined neither in the New York State Constitution nor in the Judiciary Law. "Where the language of a statute is clear and unambiguous, courts must give effect to its plain meaning" (State of New York v Patricia II, 6 N.Y.3d 160, 162 [2006]). The Court declines OCA's suggestion-not explicitly stated in its brief- that the term "nonjudicial personnel" in Judiciary Law § 211 (1) (d) is clear and unambiguous and includes within its appointment power the Surrogate's Chief Clerk and Deputy Clerk. As petitioner persuasively and extensively points out in her memorandum, the Surrogate's Chief Clerk and Deputy Clerk have delineated statutory functions and powers that are unique from all other nonjudicial employees and, unlike all other employees of the unified court system, are required to take a constitutional oath of office (pet mem at 10). In this Court's view, the term "nonjudicial personnel" is not at all clear nor susceptible to OCA's facile and" binary" interpretation. Indeed, Judiciary Law §36 provides that "each justice of the supreme court may appoint and at pleasure remove one law clerk and one secretary, subject to the standards and administrative policies promulgated pursuant to section twenty -eight of article six of the constitution." While most would consider a justice's law clerk and secretary to be "nonjudicial personnel," their apparent exemption from that category suggests that there is a legal and definitional lacuna between nonjudicial and judicial employees within the unified court system. To be sure, where the language of the statute is ambiguous, courts may resort to legislative history (see Anonymous v Malik, 32 N.Y.3d 30, 37 [2018]). Yet OCA cites no legislative history to support its sweeping assertion of appointment power. Moreover, the Court is unpersuaded by OCA's reliance on 22 NYCRR 80.1 (b). After all, this is a regulation promulgated by OCA itself and does not have the force of law when it runs counter to the clear wording of a statutory provision (see Allstate Ins. Co v Rivera, 12 N.Y.3d 602, 609 [2008] [if a regulation runs counter to the clear wording of a statutory provision, it should not be accorded any weight]).
Second, the Court is similarly unconvinced by OCA's argument that Judiciary Law § 211 (1) (d) repeals SCPA § 2605 by implication. Repeal by implication is disfavored and will not be found unless no contrary conclusion can be reached (see Alweis v Evans, 69 N.Y.2d 199, 204 [1987]). "Absent express manifestation of legislative intent-either in the statute or the legislative history-the courts should not presume that the Legislature has modified an earlier statutory grant of power" (Matter of Consolidated Edison Co. of NY v Department of Envtl. Conservation, 71 N.Y.2d 186, 195 [1987]), particularly where the statutes in question relate to the same subject matter (id.). Most importantly, courts are obligated to avoid conflicting interpretations between statutes, and when two statutes relating to the same subject appear to conflict, courts should interpret them, if possible, in a manner that will give effect to both, taking into consideration the underlying legislative intent (see People v ex rel. Bradley v Baxter, 769 Misc.3d 988, 996-997 [Sup Ct, Monroe County May 4, 2023]; 97 NY Jur 2d Statutes § 184 [and cases cited therein]).
The textual conflict between SCPA§ 2605 and Judiciary Law§ 211 (1) (d), as urged by OCA, is not readily apparent to this Court, and both statutes can be comfortably harmonized. The plain language of § 211 (1) (d) indicates that OCA is empowered to promulgate "standards and administrative policies" of "general application" in the unified court system, including those "standards and administrative policies [that] may relate to all phases of court management, including the development of personnel, fiscal and budgetary practices, the orderly dispatch of business in the trial courts, the management of ancillary services such as libraries and jury systems, and the transfer and assignment of judges" (Maguire aff at ¶ 4, citing exhibit B [Session Laws, 201 Session, Sponsor's Memorandum]). Functionally then, § 211 (1) (d) is an administrative housekeeping statute that reposes in OCA the power to act as the human resources department of the unified court system, regulating pay grades, vacation time, assignments and the like. As this Court has heard said many times at conferences and seminars, "You don't work for OCA, OCA works for you." The general power found in Section 211 (1) (d) in no way negates the very specific and clear authority given to the Surrogate to appoint the Chief Clerk and the Deputy Clerk in SCPA § 2605. Both statutes can peacefully coexist.
Finally, this court notes one troublesome aspect of the petition raised at oral argument. While not entirely clear, it appears that the surrogates located in the New York City area are given much more authority, input and control in appointing their Chief and Deputy Clerks than what was afforded to Surrogate Mosey here (see T at 34-37) This was not factually developed in the papers but if true, that would seem to be the definition of an arbitrary and capricious process.
CONCLUSION
The Court finds that OCA's position that it alone is empowered to hire the Chief Clerk of the Surrogate's Court is "affected by an error of law" and is an "abuse of discretion" (Matter of Gibson v Commissioner of the NY State Dept. Of Motor Vehs., 223 A.D.3d at 667). Accordingly, the Court directs that judgment be entered declaring that SCPA §2605 is the controlling authority for the appointment of the Surrogate Court's Chief Clerk and Deputy Clerk and further orders that the parties take further action not inconsistent with this memorandum decision.
We end where we began, with Charles Dickens. His great novel, "Bleak House," depicted how protracted litigation can take its toll-emotionally, financially, and physically- on the parties involved. The Court is hopeful its decision can bring closure to this long-standing dispute.
The parties are directed to submit a judgment and order on notice within 10 days of the date hereof.