Irwin v. Board of Regents of University of State of N. Y.

• Decision Date: 10 December 1970
• Citation: 27 N.Y.2d 292,317 N.Y.S.2d 332
• Parties: , 265 N.E.2d 752 In the Matter of Louis IRWIN, Appellant, v. BOARD OF REGENTS OF the UNIVERSITY of the STATE OF NEW YORK, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 332

317 N.Y.S.2d 332

27 N.Y.2d 292, 265 N.E.2d 752

In the Matter of Louis IRWIN, Appellant, v. BOARD OF REGENTS OF the UNIVERSITY of the STATE OF NEW YORK Respondent.

Court of Appeals of New York.

Dec. 10, 1970.

Richard F. Horowitz for appellant.

Louis J. Lefkowitz, Atty. Gen. (Winifred C. Stanley and Ruth Kessler Toch, Albany, of counsel), for respondent.

JASEN, Judge.

Petitioner, a certified public accountant, was convicted in Federal court of furnishing a gratuity to a Federal employee. The conviction arose out of a charge that he gave $400 to an employee of the Internal Revenue Service in connection with the auditing of income taxes of several of his accounts. He was subsequently charged by the Department of Education with having been convicted of a crime (Education Law, Consol.Laws, c. 16, § 7406, subd. 1, par. (c)) and with being guilty of unprofessional conduct (Education Law, § 7406, subd. 1, par. (b)).

At the conclusion of the hearing before the subcommittee of the Public Accounting Committee on Grievances of the Department of Education, petitioner was found guilty of both charges and the Board of Regents ordered the Commissioner of Education to revoke petitioner's license to practice as a certified public accountant.

On this appeal, petitioner contends that he was denied a fair hearing, upon the ground, Inter alia, that his request for the issuance of certain subpoenas duces tecum was denied by the committee hearing the charges against him.

We agree with the determination below and concur with the views expressed in the Appellate Division opinion, except to the extent that the court held that the 'Petitioner's right to have subpoenas issued by the committee is circumscribed in this instance by CPLR 2307 which provides that a subpoena duces tecum to be served upon an officer of the State, must be issued by a Justice of the Supreme Court.'

In our view, CPLR 2307 (subd. (a)) ¹ is applicable only to those subpoenasissued pursuant to CPLR 2302 (subd. (a)) ², with respect to administrative boards not granted specific power to issue subpoenas. Where, as here, the administrative board's authority to issue subpoenas is derived from a specific statutory grant of power (Education Law, § 7406, subd. 3), CPLR 2307 does not govern. (2A Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 2307.02.)

The Legislature, in enacting article 23 of the CPLR, had as its aim a uniform treatment of the law of subpoenas. It intended 'to simplify and consolidate the many procedural provisions affecting subpoenas in the civil practice act and various consolidated and unconsolidated laws. Procedures for the use of subpoenas by nonjudicial bodies have been integrated with judicial procedures. Wherever they are silent on the point, the rules * * * refer to all subpoenas.' (First Preliminary Report of the Advisory Committee on Practice and Procedure, p. 161 (hereinafter cited as First Report).)

In effecting this intent, the Legislature, while retaining that part of section 406 of the Civil Practice Act which permitted administrative boards to issue subpoenas (First Report, p. 162), did not repeal those statutes which granted to particular administrative boards the power to issue subpoenas. This is significant inasmuch as the legislative committee had previously commented upon the apparent confusion in the pre-CPLR period resulting from the existence of this dual source of subpoena power. (First Report, p. 360.)

In view of the intent expressed by the CPLR drafters, it should not, and cannot, be implied that a return to the pre-CPLR 'confusion' was intended. Rather, it would seem that the Legislature indicated that CPLR 2302 (subd. (a)), with respect to administrative boards, governs the issuance of subpoenas by those boards not already granted this power by statute, and as to those administrative boards to whom a specific grant of subpoena power had been granted, their power to issue subpoenas is derived solely from such grants. (McKinney's Cons.Laws of N.Y., Book 1, Statutes, § 96.) It follows that, since the subcommittee has authority to issue subpoenas pursuant to a specific grant, CPLR 2307 (subd. (a)) is not a limit on the subcommittee's power. Therefore, the issue as to whether petitioner was entitled to the subpoena duces tecum he requested the subcommittee to issue turns upon an interpretation of section 7406 (subd. 3) of the Education Law.

Section 7406 (subd. 3) of the Education Law provides in pertinent part, with respect to hearings in disciplinary proceedings: 'At any such hearing the respondent may appear in person and by counsel with the right to produce witnesses and evidence in his own behalf to cross examine any appearing before him and to have subpoenas issued by the committee. The complainant likewise shall have similar power to produce witnesses and to have any necessary subpoenas issued by the committee.'

Petitioner contends that the above provision provides him with an unqualified right to have subpoenas issued on his behalf. We disagree. For the first sentence of the above provision must be read together with the second sentence, and the words 'likewise', 'similar power' and 'necessary' must especially be noted. In doing so, it is clear that there is no mandatory requirement that the respondent is entitled, as a matter of right to subpoenas. Rather, the issuance of subpoenas upon the request of the respondent or complainant is a matter within the discretion of the subcommittee. If Irwin's arguments were accepted, we would then have a situation in which a respondent would have an unlimited right to subpoenas, whereas the complainant's right to subpoenas would be subject, in every instance, to the committee's discretion. It seems to us that the Legislature did not intend such a result for an adversary proceeding.

Since we conclude that the right to the issuance of a subpoena duces tecum is discretionary with the subcommittee and not mandatory, we are then faced with the question of whether the subcommittee's denial of petitioner's request was an abuse of discretion. (See Carlisle v. Bennett, 268 N.Y. 212, 197 N.E....