Johnson v. Ward

• Decision Date: 26 October 1978
• Citation: 409 N.Y.S.2d 670,64 A.D.2d 186
• Parties: In the Matter of Ron JOHNSON, Respondent, v. Benjamin WARD, as Commissioner of the Department of Correctional Services, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 670

409 N.Y.S.2d 670

64 A.D.2d 186

In the Matter of Ron JOHNSON, Respondent, v. Benjamin WARD, as Commissioner of the Department of Correctional Services, Appellant.

Supreme Court, Appellate Division, Third Department.

Oct. 26, 1978.

Louis J. Lefkowitz, Atty. Gen., Albany (Frederick R. Walsh and Jean M. Coon, Albany, of counsel), for appellant.

Lanny E. Walter, Albany, for respondent.

Before SWEENEY, J. P., and STALEY, MAIN, LARKIN and MIKOLL, JJ.

MAIN, Justice.

On September 20, 1977 the petitioner was an inmate of Great Meadow Correctional Facility (hereafter Great Meadow) serving a term of imprisonment for robbery in the second degree and on that day was duly elected a representative to the prison's Inmate Grievance Resolution Committee (hereafter IGRC). Petitioner's term of office was for six months and he took office on October 1, 1977. Six days later petitioner was ordered transferred to the Green Haven Correctional Facility (hereafter Green Haven) and the Commissioner concedes that the transfer was arbitrary and capricious. By verified petition and order to show cause dated November 23, 1977, petitioner sought his return to Great Meadow, restoration to his elected position on IGRC and restraint upon any future transfer during his term of office. After the denial of several preliminary motions an answer was interposed on December 30, 1977 which denied petitioner's right to avoid transfer because of his IGRC office and indicated that petitioner would be returned to Great Meadow but not to his seat on IGRC. With petitioner's reply were affidavits which expressed a willingness on the part of petitioner's successor, the alternate representative, to step down in favor of the petitioner.

On February 14, 1978, Special Term granted judgment reinstating petitioner on the IGRC and directing that a hearing be held prior to any transfer of the petitioner during the term of his elective office. It is this judgment, except that portion which provides for petitioner's transfer back to Great Meadow, from which this appeal was taken.

We conclude that Special Term erred in directing that the petitioner be reinstated to the IGRC for it was without authority to so provide and petitioner's resumption of membership on the Committee would be dependent, under the circumstances prevailing here, upon the rules and regulations promulgated pursuant to the direction of section 139 of the Correction Law.

Inasmuch as the petitioner was returned to Great Meadow and his term of office has obviously expired, dismissal on the ground mootness could well be considered. However, we choose to reject that course because there is here presented a question of general interest and substantial public importance which is very likely to recur (Matter of Gannett Co. v. De Pasquale, 43 N.Y.2d 370, 376, 401 N.Y.S.2d 756, 759, 372 N.E.2d 544, 547; Matter of Amato v. Ward, 41 N.Y.2d 469, 471, 393 N.Y.S.2d 934, 935, 362 N.E.2d 566, 568; Matter of Beattie v. New York State Bd. of Parole, 39 N.Y.2d 445, 446-447, 384 N.Y.S.2d 397, 398, 348 N.E.2d 873, 873-874; People ex rel. Cunningham v. Metz, 61 A.D.2d 590, 591, 403 N.Y.S.2d 330, 331). The question presented is whether section 139 of the Correction Law confers any rights or privileges upon an inmate elected to the IGRC which limit the broad discretion granted to the Commissioner of Correction under section 23 (subd. 1) of the Correction Law.

Section 23 of the Correction Law grants the Commissioner of Correction almost unbridled authority to transfer inmates from one facility to another within the system and under ordinary circumstances a mere transfer is purely an administrative matter, and a prisoner has no standing to choose the place in which he is to be confined (People ex rel. Brown v. Johnson, 9 N.Y.2d 482, 484, 215 N.Y.S.2d 44, 45, 174 N.E.2d 725; People ex rel. Ramirez v. Ward, A.D., 408 N.Y.S. 833 (1978); People ex rel. Perrello v. Smith, 47 A.D.2d 106, 109, 364 N.Y.S.2d 945, 948; People ex rel. Ceschini v. Warden, 30 A.D.2d 649, 291 N.Y.S.2d 200). This general proposition or rule finds further support in the determination of the United States Supreme Court where it was held that under the law of New York a prisoner has no right to remain at any particular facility and no justifiable expectation that he would not be transferred unless found guilty of misconduct (Montanye v. Haymes, 427 U.S. 236, 243, 96 S.Ct. 2543, 49 L.Ed.2d 466). However, that rule is not without some limitation. For...