Harvey v. Finnick

• Decision Date: 09 July 1982
• Citation: 88 A.D.2d 40,452 N.Y.S.2d 941
• Parties: In the Matter of James R. HARVEY, Appellant, v. Francis FINNICK, Ontario County Treasurer, Alan Bubb, Financial Officer, Ontario County, Elwyn Herendeen, Ontario County Administrator and the Ontario County Board of Supervisors, Respondents. Appeals 1, 2.
• Court: New York Supreme Court — Appellate Division

Page 941

452 N.Y.S.2d 941

88 A.D.2d 40

In the Matter of James R. HARVEY, Appellant, v. Francis FINNICK, Ontario County Treasurer, Alan Bubb Financial Officer, Ontario County, Elwyn Herendeen, Ontario County Administrator and the Ontario County Board of Supervisors, Respondents. Appeals 1, 2.

Supreme Court, Appellate Division,

Fourth Department.

July 9, 1982.

Max Cohen, Canandaigua, for appellant.

John W. Park, County Atty., Canandaigua, for respondents.

Robert Abrams, Atty. Gen., Albany, for intervenor-respondent, State of New York (Peter Schiff, Albany, of counsel).

Before SIMONS, J. P., and CALLAHAN, DOERR, MOULE and SCHNEPP, JJ.

CALLAHAN, Justice.

At issue on this appeal is the constitutionality of section 183-a of the Judiciary Law ¹ which defines a county's obligation to pay its district attorney an annual compensation equivalent to that of the County Court judge. Petitioner, James R. Harvey (Harvey), District Attorney of Ontario County, appeals from two judgments which dismissed his petitions to compel the County of Ontario (County) to pay him sums equivalent to the annual salary paid the Ontario County Court Judge retroactive to October 1, 1978. In dismissing Harvey's parity application, Special Term stated: "compensation provisions of section 183-a of the Judiciary Law which equate the salaries of certain District Attorneys to those of a County Court Judge lack a rational basis and must be declared unconstitutional. Therefore, the respondent county is not obliged to pay the petitioner in accordance with the salary provisions of that section and section 221-d of the Judiciary Law." (Matter of Harvey v. Finnick, 111 Misc.2d 197, 205, 443 N.Y.S.2d 980.)

The New York State Legislature in enacting section 183-a of the Judiciary Law, afforded a county legislature the option of designating the office of district attorney as a full-time position at an annual salary equivalent to that of the county judge in the county in which the district attorney is elected (L.1972, ch. 946, amd. by L.1974, ch. 1049, § 3). On April 17, 1975, the Board of Supervisors of the County of Ontario adopted Local Law Number 2, and pursuant to section 700 (subd. 8) ² of the County Law designated the office of district attorney as a full-time position with an annual salary of $36,000 effective January 1, 1976. The salary fixed was equivalent to the compensation then authorized for an Ontario County Court Judge. In November 1975, Harvey was elected Ontario County's first full-time District Attorney and commenced his three year term on January 1, 1976. He was re-elected to a three year term in November 1978 and in November 1981 was elected to a four year term expiring December 31, 1985. The State Legislature enacted section 221-d of the Judiciary Law, effective April 6, 1979, establishing the annual salary of county court judges with first salary increase retroactive to October 1, 1978 (L.1979, ch. 55, § 2). Upon the enactment of Judiciary Law § 221-d, Harvey requested the County to pay him a salary in accordance with the provisions of the statutes (Judiciary Law §§ 183-a, 221-d). The County refused, contending that the district attorney was a state officer and that section 7 of Article XIII of the New York State Constitution prohibits compensation paid a state officer to be increased during the term for which he shall have been elected.

At the outset, it should be noted that there is strong presumption that the acts of the Legislature are constitutional. While this presumption is rebuttable, unconstitutionality must be demonstrated beyond a reasonable doubt and only as a last resort should courts strike down legislation on the ground of unconstitutionality (Lighthouse Shores v. Town of Islip, 41 N.Y.2d 7, 11, 390 N.Y.S.2d 827, 359 N.E.2d 337). Since this statute is being challenged on nonprocedural grounds, it should be upheld if there is some fair, just and reasonable connection between the statute and the promotion of the health, comfort and welfare of society (Patterson v. Carey, 41 N.Y.2d 714, 720-721, 395 N.Y.S.2d 411, 363 N.E.2d 1146). Special Term concluded that "while the compensation plan of paying certain District Attorneys the same as County Court Judges may have been reasonable when section 183-a of the Judiciary Law was passed, subsequent changes in the court structure have rendered that compensation plan unreasonable" (Matter of Harvey v. Finnick, 111 Misc.2d 197, 202, 443 N.Y.S.2d 980, supra). The test to be applied in legislation of this nature is whether (1) it is reasonable in relation to its subject matter and (2) is adopted in the interest of the state (Niagara Recycling v. Town Bd. of Town of Niagara, 83 A.D.2d 316, 326, 443 N.Y.S.2d 939).

The legislative history of section 183-a of the Judiciary Law lends ample support to its reasonableness. It was promulgated to remove the salary differential of the district attorney from local political considerations, to maintain the security and independence of the district attorneys, and to assure that persons of high standing and integrity remain in their position (Governor's Bill Jacket, L.1972, ch. 946, pp. 8-9). The Legislature recognized that it was not equitable to require full-time district attorneys to forego private practice while at the same time having their salaries frozen at inadequate levels (Governor's Bill Jacket, supra, at p. 10). By providing minimum salaries equivalent to judges of the County Court, the office of district attorney would attract the best available attorneys (Governor's Bill Jacket, supra, at p. 22), and diminish the exodus of district attorneys to the County Court bench. Section 183-a directly promotes this interest in an equitable and reasonable manner. In our view, the legislation passes the reasonableness test, and the court may not substitute its judgment for the method chosen by the Legislature (Hotel Dorset Co. v. Trust for Cultural Resources of City of N. Y., 46 N.Y.2d 358, 370, 413 N.Y.S.2d 357, 385 N.E.2d 1284).

No one disputes that the State has a significant interest in maintaining the integrity and effectiveness of district attorneys. The compensation requirement in section 183-a is reasonably connected to the State's interest in maintaining competent district attorneys, and, therefore, the constitutional challenge must fail.

In its Memorandum Decision, Special Term also concluded that a district attorney is a state officer and that any increases in his annual salary during his term of office would violate section 7 of Article XIII of the New York State Constitution. While the Constitution does not define the term "state officer", it is apparent that Special Term found that inasmuch as the district attorney is "named" in section 13 of Article XIII of the Constitution, that such inclusion "in this Constitution" designates the district attorney as a "state officer" (Matter of Harvey v. Finnick, 111 Misc.2d 197, 205, 443 N.Y.S.2d 980, supra). Recently the Second Department in denying similar application by the Dutchess County District Attorney held that "payment to petitioner of his claim for accrued salary and for an increase in salary, requested during his term of office, is prohibited by section 7 of Article XIII of the New York State Constitution." (Matter of King v. Amodeo, 87 A.D.2d 819, 448 N.Y.S.2d 764 ). We respectfully disagree and hold that district attorneys are not state officers within the meaning of section 7 of Article XIII of the New York State Constitution and the salary designated to be paid the respective district attorneys in accordance with the appropriate provisions of the Judiciary Law is not in violation of the Constitution.

An interesting historical review of the origin of the title "district attorney" and significantly the early reference to that title as a state officer is concisely chronicled by Chief Judge Desmond in Fisher v. State of New York, 10 N.Y.2d 60, 62, 217 N.Y.S.2d 52, 176 N.E.2d 72 as follows: "Until early in the 19th century the prosecution of crime in this State was a duty of the Attorney-General, somewhat like the English system, and at that time the State was divided into districts in each of which there was a prosecutor, hence the name 'District Attorney' (see Report of 1938 Constitutional Convention Committee, Vol. VIII, p. 352). Later, by statute, each county was given an appointed District Attorney (L.1818, ch. 283; and see N.Y.Const. art. IV, § 9, providing for appointment by County Court). However, all that ended when the 1846 Constitution (see art. X, § 1) directed that the District Attorney should be chosen by the electors of the respective counties."

The general language of section 7 of Article XIII originated in 1874 when section 9 of Article X was adopted. Entitled "Compensation of Constitutional Officers," it provided: "No officer whose salary is fixed by the Constitution shall receive any additional compensation. Each of the other state officers named in the Constitution shall, during his continuance in office, receive a compensation, to be fixed by law, which shall not be increased or diminished during the term for which he shall have been elected or appointed; nor shall he receive to his use any fees or perquisites of office or other compensation." At that time the salary of the Governor, Lieutenant Governor, Senators and Members of the Assembly were fixed by the Constitution. All other salaries were subject to statutory regulations within the limitations prescribed by the Constitution (4 Lincoln, Constitutional History of New York, p. 765). It is readily apparent that district attorneys were among the "other state officers" referred to in section 9 (Fellows v. Mayor, 8 Hun. 484; 4 Lincoln, Constitutional History of New York, p. 722). Obviously the district attorney then was considered part of the state judicial system and subject to the provisions of section 9 of Article X (see Hanley v. City of New York, 250 App.Div. 552, 295 N.Y.S. 1002, affd. 275...