People v. Widelitz

• Decision Date: 23 April 1963
• Citation: 39 Misc.2d 51,239 N.Y.S.2d 707
• Parties: The PEOPLE of the State of New York v. David B. WIDELITZ, Benjamin Widelitz, George Goldleaf, Sidney Nissenbaum and Goldleaf Sales Corp., Defendants. The PEOPLE of the State of New York v. Benjamin WIDELITZ, George Goldleaf, Sidney Nissenbaum, Benclay Realty Corp., and Goldleaf Sales Corp., Defendants. The PEOPLE of the State of New York v. V. ESTATES, INC., David B. Widelitz, George Goldleaf, Sidney Nissenbaum, and Goldleaf Sales Corp., Defendants.
• Court: New York Supreme Court

Page 707

239 N.Y.S.2d 707

39 Misc.2d 51

The PEOPLE of the State of New York v. David B. WIDELITZ, Benjamin Widelitz, George Goldleaf, Sidney Nissenbaum and Goldleaf Sales Corp., Defendants.

The PEOPLE of the State of New York v. Benjamin WIDELITZ, George Goldleaf, Sidney Nissenbaum,

Benclay Realty Corp., and Goldleaf Sales Corp.,

Defendants.

The PEOPLE of the State of New York v. V. ESTATES, INC., David B. Widelitz, George Goldleaf, Sidney

Nissenbaum, and Goldleaf Sales Corp., Defendants.

Supreme Court, Special Term, Bronx County, Part XII.

April 23, 1963.

Isidore Dollinger, Dist. Atty., of Bronx County, New York City, for the People.

Harris B. Steinberg, New York City, for David B. Widelitz, Benjamin Widelitz, Benclay Realty Corp., v. Estates, Inc.; Richard Green, New York City, Assoc. Counsel.

MITCHELL D. SCHWEITZER, Justice.

Defendants move for an inspection of the Grand Jury minutes of three separate indictments (129 8/62, 129 9/62 and 13 00/62), charging them in each thereof with perjury, first degree, and related crimes.

It is contended by defendants that the indictments arose from a state of facts based entirely upon the attempted compliance by defendants with the mandate of rules or regulations of the Temporary State Housing Rent Commission (hereinafter referred to as the 'Commission'), which rules or regulations were a nullity because they were not filed in accordance with the requirements of Article IV, Section 8, of the New York State Constitution. If the charges did in fact arise from conduct based upon the requirements of rules or regulations which were not filed pursuant to said constitutional provision, then the occurrences arising from action predicated upon these rules or regulations can not be the basis for criminal charges.

Specifically, the 'rules' or 'regulations' which defendants claim were not filed as required by the Constitution are publications of the Commission entitled 'Landlord's Application for Increase in Maximum Rental' (hereinafter called 'Landlord's Application') and the 'Schedule of Rental Values.' It is not disputed that these documents were not filed with the Secretary of State pursuant to Article IV, Section 8.

Article IV, Section 8, of the New York Constitution provides that:

'No rule or regulation made by any state department, board, bureau, officers, authority or commission, except such as relates to the organization or internal management of a state department, board, bureau, authority or commission shall be effective until it is filed in the office of the department of state. The legislature shall provide for the speedy publication of such rules and regulations, by appropriate laws.'

In interpreting this provision of the Constitution, the Court of Appeals in People v. Cull, 10 N.Y.2d 123, 218 N.Y.S.2d 38, 176 N.E.2d 495, made it clear that an administrative agency could not avoid the necessity of filing a rule or regulation by merely attaching a different name to the pronouncement. So long as an agency's statement had the quality of a 'rule' or 'regulation' it would be so considered, regardless of how labeled by the issuing agency. The Court further stated that the clear purpose of Article IV, Section 8, was the creation of a central source where the public could be made aware of the existence of 'laws' created by administrative bodies and of their scope.

The significance of the Cull case is clarified when the facts present in that case are examined. Cull was convicted of exceeding a speed limit posted by the State Traffic Commission. The speed limit had been promulgated by an 'order' of the Commission which 'order' was never filed with the Secretary of State. Thus, when Cull violated the 35-mile speed limit, there was absolutely nothing filed with the Secretary of State from which a citizen could become aware of the source of, or authority for, the posted limit.

The scope of People v. Cull, supre, and the import of Article IV, Section 8, New York State Constitution, were further clarified by the Court of Appeals in People v. O'Malley, 11 N.Y.2d 943, 228 N.Y.S.2d 828, 183 N.E.2d 229. In O'Malley the defendant violated a speed limit posted by the New York State Thruway Authority pursuant to a portion of a filed regulation under which the Authority merely stated that exceeding any lesser posted speed limit than the general 60-mile-per-hour speed limit was a violation. It was held that this was sufficient compliance with Article IV, Section 8, without it being necessary to file a statement of each lesser speed to be posted. The result in the O'Malley case is entirely consistent with the requirement of Cull that an agency creating a 'law' by administrative act centrally file it so as to give the public a basis for determining its scope and evaluating its 'legality, effectiveness or accuracy' (People v. Cull, supra, 10 N.Y.2d at 128, 218 N.Y.S.2d at 41, 176 N.E.2d at 497). Once the basic rule or regulation is filed, every act performed in its execution need not be recorded with the Secretary of State.

The first question presented by this motion is whether the two documents issued by the Commission constitute 'rules' or 'regulations', within the meaning of the State Constitution, so that the failure to file them vitiates the effectiveness of Commission 'law' relative to the subject matter. Even more critical, is the issue of whether or not the conduct of defendants was violative of any valid 'rule' or 'regulation' of the Commission.

It is necessary to first determine what constitutes a 'rule' or 'regulation'. 'The term, 'rule or regulation', has not, it is true, been the subject of precise definition, but there can be little doubt that, as employed in the constitutional provision, it embraces any kind of legislative or quasi-legislative norm or prescription which establishes a pattern or course of conduct for the future.' (Cull, supra, 10 N.Y.2d at 126, 218 N.Y.S.2d at 40, 176 N.E.2d at 497.)

A rule or regulation, as so defined, embodies as its two essential components:

1. That the pronouncement be the administrative equivalent of a statute, of the Legislature (within the vires of its enabling statute) i. e., a law delineating the administrator's powers vis-a-vis the public and compelling compliance to its terms on the part of those within the regulatory ambit. (See, Columbia Broadcasting System v. United States, 316 U.S.407, 418, 62 S.Ct. 1194, 86 L.Ed. 1563.)

2. That such pronouncement formulate a standard of conduct for the future to be applicable to all coming within its purview. (See, Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, 29 S.Ct. 67, 53 L.Ed. 150.)

Each of the two alleged rules or regulations, Landlord's Application and the Schedule of Rental Values, will be treated, in turn, to determine its true nature and quality.

An examination of the requirements contained in the printed form and affidavit, Landlord's Application, leads to the inexorable conclusion that the nature of such contents compels the classification of each of the requirements set forth therein as a Cull case rule or regulation.

No case, however, appears to have decided whether a form should be filed pursuant to Article IV, Section 8, of the Constitution.

The Federal Administrative Procedure Act expressly includes forms with those items which must be published in the Federal Register (5 U.S.C.A. § 1002).

Moreland Act Commissioner R. M. Benjamin, in his Report on New York State Administrative Adjudication (1942) states, at 316:

'Agencies often prescribe the use of particular forms by those subject to their jurisdiction (e. g., forms of annual reports by persons subject to regulation, of tax returns, of applications for licenses, of petitions, answers or other papers in quasi-judicial proceedings). It is not clear whether the constitutional provision requires the filing of a particular form, as a condition of making the use of that form obligatory, or whether the filing of a regulation prescribing the use of a specified form prepared by the agency would be sufficient. Whether or not filing of forms is necessary, however, it will, again, be a wise precaution for the agency to file them. Sometimes a form may contain instructions which amount in substance to procedural or substantive regulations. If the agency desires to give legal effect to such instructions, it must, in my judgment, either file the form or file regulations in which the substance of the instructions is repeated.' (Emphasis added)

Accordingly, the promulgation and filing of a parent rule or regulation (or parent rules or regulations) which contains the substance of each of the requirements of a form (Landlord's Application) should obviate the necessity for filing the form itself and constitute compliance with Article IV, Section 8. That this does represent the better interpretation of the constitutional mandate receives support from United States v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401, and People v. O'Malley, 11 N.Y.2d 943, 228 N.Y.S.2d 828, 183 N.E.2d 229, supra.

United States v. Morton Salt Co., supra, involved an analogous situation. In that case, the agency concerned ordered defendant to file a report containing a complete statement of the 'prices, terms, and conditions of sale of salt, together with books or compilations of freight rates used in calculating delivered prices, price lists and price announcements distributed, published or employed in marketing salt from and after January 1, 1944' (Id. at 637, 70 S.Ct. at 361). Section 6(b) of the Federal Administrative Procedure Act (U.S.Code, tit. 5, § 1005, subd. [b]) proscribes any requirement of a report or other investigative demand 'in any manner or for any purpose except as authorized by law'. The agency had duly promulgated Rule XXVI which required a party to 'file with the Commission, from time to time thereafter, further reports in writing, setting forth in detail the manner and form in which they are...