In the Matter of New York State
Association of Criminal Defense
Lawyers, et al.,
Appellants,
v.
Judith S. Kaye, as Chief Judge
of the New York State Court of
Appeals, et al.,
Respondents.
2000 NY Int. 154
The issue presented is whether Chief Judge Kaye,[1]
Judges Smith, Levine, Ciparick and Wesley, named as parties in
this article 78 proceeding brought to invalidate an
administrative order of the Court, should be disqualified from
participating in the decision of petitioners' motion for leave to
appeal from an order affirming the dismissal of the proceeding.[2]
In 1995, the Legislature reinstated the death penalty. In connection therewith, it enacted Judiciary Law § 35-b, which provides a vehicle to afford legal representation to indigent capital defendants through a Capital Defender Office and court appointed individual attorneys. On November 21, 1996, pursuant to article VI, § 30 of the New York Constitution and Judiciary Law § 35-b, the Court of Appeals issued orders approving the fee schedules for capital counsel. By order dated December 16, 1998, the Court of Appeals approved a reduced capital counsel fee.
In April 1999, petitioners, four individual attorneys
certified to accept capital cases and the New York State
Association of Criminal Defense Lawyers, on behalf of its members
so certified, commenced a CPLR article 78 proceeding seeking to
annul the order approving the reduction in fees. The petition
named as respondents Chief Judge Kaye, former Judge Bellacosa,
and Judges Smith, Levine, Ciparick and Wesley, the six Judges who
comprised the Court of Appeals when the December 16, 1998 order
was issued. The Judges were sued "as Chief Judge and Associate
Judges of the New York Court of Appeals, acting in their
administrative capacity." Petitioners claimed that the Judges
acted beyond their authority when revising the rates in the First
Supreme Court determined that petitioners had standing but, on the merits, concluded that petitioners failed to satisfy their burden of establishing that the December 16, 1998 order was made in violation of lawful procedure, or was affected by an error of law, or was unreasonable or irrational or was an abuse of discretion. The Appellate Division unanimously affirmed solely on the ground that petitioners lacked standing to challenge the revised fee schedule. The Appellate Division subsequently denied petitioners' motion for leave to appeal to this Court. Petitioners have moved in this Court for leave to appeal from the Appellate Division order of affirmance. By separate motion, they seek to disqualify Chief Judge Kaye and Judges Smith, Levine, Ciparick and Wesley from participating in the Court's determination of the motion for leave to appeal.
Petitioners contend that disqualification is required
by Judiciary Law § 14 and a parallel provision of the New York
Code of Judicial Conduct (Canon 3[C][1][d][i]), both of which
provide that a judge is disqualified from participating in any
This Court has exclusive jurisdiction under the
Constitution and the CPLR to entertain petitioners' motion for
leave to appeal (NY Const, art VI, § 3[b]; CPLR 5602 ). No other
judicial body exists to which the motion for leave to appeal
could be referred for disposition. Petitioners acknowledge this,
but assert that the Court could designate substitutes to hear
this matter. Although the Constitution provides for substitution
of Judges of this Court who choose to recuse or are disqualified
(NY Const, art VI, § 2), the designation of substitute judges is
not appropriate here.
The Court of Appeals has a unique role and responsibility in State government. It is the court of last resort from which no appeal lies on questions of New York law (see, NY Const, art VI, §§ 2, 3). Furthermore, under our State constitutional system, the Court of Appeals decides the scope of its own power and authority. If disqualification were required whenever the Judges were sued as individuals upon a challenge to an act of the Court, the result could be substitution of the entire constitutionally appointed court, leaving "the most fundamental questions about the Court and its powers to persons whose selection and retention are not tested by constitutional processes" (Matter of Vermont Supreme Ct. Admin. Directive No. 17 v Vermont Supreme Ct., 576 A2d 127, 132 [Vt]).
The Court also has primary responsibility for the
administration of the judicial branch of government, and some
administrative rule-making powers are vested exclusively in the
Court of Appeals (see, NY Const, art VI, §§ 28, 30). Thus,
disqualifying the Judges of this Court each time their
administrative powers are challenged would "render the rule-
making process self-defeating and nugatory" (Berberian v Kane,
425 A2d 527, 528 [RI]). In each instance, the ultimate
determination regarding an administrative order promulgated by
this Court would be rendered by a bench comprised of substitute
The adoption of the rule in question by the Judges of
this Court acting in their administrative capacity does not
preclude them from deciding, in their adjudicatory capacity, a
subsequent case challenging the validity of the rule. The
exercise of the Court's rule-making power "does not carry with it
a decision that the amended rules are all constitutional. For
such a decision would be the equivalent of an advisory opinion
which * * * we are without constitutional power to give"
(Statement Accompanying Amendments to the Federal Rules of Civil
Procedure, 383 US 1031, 1032 [Black, J.]). "The fact is that our
promulgation of the [rule] is not a prior determination that it
is valid and constitutional. That determination must await the
adjudication in this or a future case" (Matter of Vermont Supreme
Ct. Admin. Directive No. 17 v Vermont Supreme Ct.,
Finally, we reject petitioners' arguments for a
mechanical application of Judiciary Law § 14 and the Code of
Judicial Conduct. The respondent Judges of this Court are not
disqualified automatically merely because they are named parties.
"A judge cannot be disqualified merely because a litigant sues or
threatens to sue him or her. We cannot encourage such an easy
method of disqualification" (Matter of Vermont Supreme Ct. Admin.
Directive No. 17 v Vermont Supreme Ct.,
The respondent Judges are named as parties only in
their administrative capacity. Petitioners seek only to
invalidate a Court order. The respondent Judges have no
pecuniary or personal interest in this matter and petitioners
allege none. Nor do petitioners allege personal bias or
prejudice. No traditionally recognized basis for conflict exists
here. The Court's "dual responsibilities of diligent
administration and impartial adjudication do not create a
conflict requiring disqualification" (State ex rel. Hash v
McGraw,
For the foregoing reasons, we conclude that the Rule of Necessity requires participation by the respondent Judges in this case. The constitutional provision for the designation of substitute judges is not to be used as a vehicle to force removal of the constitutionally appointed members of this Court by naming them as parties when challenging administrative actions of the Court.
Our denial of this disqualification motion accords with
decisions of the high courts of other states (see, Office of the
Accordingly, the motion, insofar as it seeks disqualification of the Chief Judge, should be dismissed as academic; the motion, insofar as it seeks disqualification of Judges Smith, Levine, Ciparick and Wesley, should be denied.
Footnotes
1 The Chief Judge has recused herself. Thus, petitioners' motion as to her should be dismissed as academic.
It is not an uncommon practice for the Chief Judge alone to be recused in similar appeals involving judicial administration (see, e.g., Maresca v Cuomo, , 64 NY2d 242, at 247 n 1).
2 The motion at bar is labeled as one for recusal. Because it is statutorily based, however, it is appropriately treated as a motion for disqualification raising an issue of law for decision by the Court (see, Schulz v New York State Legislature, , 92 NY2d 917).