Kelley v. McGee

• Decision Date: 08 December 1982
• Citation: 443 N.E.2d 908,457 N.Y.S.2d 434,57 N.Y.2d 522
• Parties: , 443 N.E.2d 908 In the Matter of Joseph W. KELLEY, as District Attorney of Clinton County, Respondent, v. Roy McGEE, as County Treasurer of Clinton County, et al., Appellants. In the Matter of John R. KING, as District Attorney of Dutchess County, Appellant, v. M. Philip AMODEO, as Commissioner of Finance of Dutchess County, et al., Respondents. In the Matter of James R. HARVEY, as District Attorney of Ontario County, Respondent, v. Francis FINNICK, as Ontario County Treasurer, et al., Appellants. (And Another Proceeding.)
• Court: New York Court of Appeals Court of Appeals

Page 434

457 N.Y.S.2d 434

57 N.Y.2d 522, 443 N.E.2d 908

In the Matter of Joseph W. KELLEY, as District Attorney of

Clinton County, Respondent, v. Roy McGEE, as County Treasurer of Clinton County, et al.,

Appellants.

In the Matter of John R. KING, as District Attorney of

Dutchess County, Appellant, v. M. Philip AMODEO, as Commissioner of Finance of Dutchess

County, et al., Respondents.

In the Matter of James R. HARVEY, as District Attorney of

Ontario County, Respondent, v. Francis FINNICK, as Ontario County Treasurer, et al., Appellants.

(And Another Proceeding.)

Court of Appeals of New York.

Dec. 8, 1982.

Patrick R. McGill, County Atty., for appellants in the first above-entitled proceeding.

Carroll J. Mealey, Michael T. Wallender and James F. Downs, Albany, for respondent in the first above-entitled matter.

Thomas D. Mahar, Jr., Poughkeepsie, for appellant in the second above-entitled proceeding.

Stephen J. Wing, County Atty., for respondents in the second above-entitled proceeding.

Kevin F. McDonough, Binghamton, for Joseph Joch and another, amici curiae in the second above-entitled proceeding.

John E. Murray, County Atty., for Broome County, amicus curiae in the second above-entitled proceeding.

Calvin M. Berger, James L. Kalteux, Albany, Kenneth F. Hartman and John K. Dalton for Edward V. Regan, State Comptroller, amicus curiae in the second above-entitled proceeding.

John W. Park, County Atty., for appellants in the third above-entitled proceeding.

Mark Dwyer and Robert M. Pitler, Asst. Dist. Attys., for respondent in the third above-entitled proceeding.

Robert Abrams, Atty. Gen. (Peter H. Schiff and Leslie Neustadt, Asst. Attys. Gen., of counsel), in his statutory capacity under section 71 of the Executive Law in the third above-entitled proceeding.

Jerrold L. Neugarten and Mark Dwyer, Asst. Dist. Attys., for New York State Dist. Attys. Ass'n, amicus curiae, in the third above-entitled proceeding.

OPINION OF THE COURT

GABRIELLI, Judge.

In these three appeals, the District Attorneys of the Counties of Clinton, Dutchess and Ontario seek compensation in accordance with sections 183-a and 221-d of the Judiciary Law. We hold that the requirement of section 183-a that full-time District Attorneys in certain counties be paid at the same salary level as County Court Judges in their counties is not in conflict with the home rule provisions of article IX of the New York State Constitution, nor does section 7 of article XIII bar a midterm increase in the salary of these local officers. Hence, District Attorneys in counties falling within section 183-a are entitled to be compensated in accordance with its provisions both prospectively and retroactively to the date at which the counties ceased paying salaries equivalent to those of the County Court Judges.

Relevant to all three appeals before us is a series of legislative enactments which gave rise to the present dispute. In 1969, the Legislature added subdivision 8 of section 700 of the County Law, requiring that the District Attorney in counties having a population greater than 100,000 devote full time to the duties of that office and prohibiting the District Attorney from otherwise engaging in the practice of law (L.1969, ch. 415). The following year, subdivisions 9 and 10 were added to section 700, setting the minimum salary for District Attorneys in counties required to maintain the office as full time at $25,000 per annum and establishing a program of State aid pursuant to which those counties were paid $10,000 per annum to assist them in meeting the new salary requirement (L.1970, ch. 733, § 1). ¹

In 1974, the Legislature amended subdivisions 8 and 10 to allow counties having a population greater than 40,000 and less than 100,000 to designate the office of District Attorney as a full-time position and to provide State aid to those counties opting to do so (L.1974, ch. 1049, §§ 1, 2). ²

The minimum salary provision of subdivision 9 had been repealed in 1972 (L.1972, ch. 946, § 1). At the same time, section 183-a was added to the Judiciary Law. This statu requires that the District Attorney of each county having a population greater than 500,000 ³ receive an annual salary at least equivalent to that of a Justice of the State Supreme Court and that the District Attorney of each county having a population greater than 100,000 but less than 500,000 ⁴ receive an annual salary at least equivalent to that of the County Court Judge in the county of the District Attorney's election or appointment (L.1972, ch. 946, § 3). When the Legislature amended subdivisions 8 and 10 of section 700 of the County Law to allow counties having a population greater than 40,000 but less than 100,000 to opt to designate the office of District Attorney as full time, it also amended section 183-a of the Judiciary Law to require that the District Attorney in such counties be paid at least the same annual salary as that received by County Court Judges in the District Attorney's county (L.1974, ch. 1049, § 3). ⁵

Pursuant to the State's takeover of the judicial system, the Legislature, in 1979, provided for gradual increases in the salaries of County Court Judges throughout the State, retroactive to October 1, 1978 (L.1979, ch. 55, § 2). These increases, set forth in section 221-d of the Judiciary Law, differ in amount for the various counties of the State. ⁶

The salaries of the full-time District Attorneys of Clinton, Dutchess and Ontario Counties, although subject the requirement of section 183-a, ⁷ have not been maintained at levels equivalent to those of County Court Judges receiving increases pursuant to the 1979 legislation. The District Attorneys of those counties commenced separate article 78 proceedings to require that their salaries be made commensurate with the salaries of the County Court Judges in their counties, retroactive to October 1, 1978, the date on which the Judges began receiving increases. ⁸

The procedural background of the cases before us is as follows. In Matter of Harvey v. Finnick, the Appellate Division, 88 A.D.2d 40, 452 N.Y.S.2d 941, reversing Special Term, 111 Misc.2d 197, 443 N.Y.S.2d 980, and rejecting the constitutional challenges asserted by the county, granted the two petitions brought by the District Attorney. In Matter of Kelley v. McGee, Special Term granted the District Attorney's petition, relying upon the decision of the Appellate Division in Harvey, and a direct appeal by respondents pursuant to CPLR 5601 (subd. [b], par. 2) brings the case before this court. In Matter of King v. Amodeo, Special Term granted the relief sought by the District Attorney, but the Appellate Division, 87 A.D.2d 819, 448 N.Y.S.2d 764, reversed and dismissed the petition, holding that the District Attorney is a State officer whose salary may not constitutionally be increased during his term of office (N.Y. Const. art. XIII, § 7).

Two State constitutional challenges are asserted to the requirement of section 183-a that District Attorneys' salaries be maintained at a specific level. The first concerns the proscription contained in section 7 of article XIII of our State Constitution against midterm increases or decreases in the compensation of "the state officers named in th constitution". ⁹ This provision was first adopted in 1874 when it was added to the Constitution of 1846 and has been carried forward into successive Constitutions, with some changes in its language. Although the term "state officer" is nowhere defined in the Constitution, judicial interpretations of this provision have included within its scope Sheriffs (Hanley v. City of New York, 250 App.Div. 552, 295 N.Y.S. 1002, affd. 275 N.Y. 482, 11 N.E.2d 308), registers (Albert v. City of New York, 250 App.Div. 555, 295 N.Y.S. 1005, affd. 275 N.Y. 484, 11 N.E.2d 308), county clerks (Finn v. City of New York, 282 N.Y. 153, 25 N.E.2d 966) and, by logical extension of the rationale of these interpretations, District Attorneys (see Dodge v. City of New York, 252 App.Div. 631, 300 N.Y.S. 726, revd. on other grounds 278 N.Y. 25, 14 N.E.2d 837; 1924 Opns.Atty.Gen. 119).

Thus, it is clear that when this provision was first adopted, the District Attorney was considered a State officer within the meaning of section 7 of article XIII, notwithstanding the fact that, for other purposes, the office was deemed local in nature (e.g., Fisher v. State of New York, 10 N.Y.2d 60, 217 N.Y.S.2d 52, 176 N.E.2d 72 [District Attorney is not a State officer within the meaning of section 2 of the Public Officers Law so as to render the State liable for his tortious conduct]; Ritter v. State of New York, 283 App.Div. 833, 128 N.Y.S.2d 830 [same]; see Burke v. Kern, 287 N.Y. 203, 212, 38 N.E.2d 500 [Sheriff is a county officer, although also a State officer for some purposes]; Matter of Miller v. State of New York, 279 N.Y. 74, 77, 17 N.E.2d 773 [county register and employees of that office are not in State service for purposes of Workers' Compensation Law] ). We conclude, however, that more recent constitutional developments have operated to remove this office from its previous constitutional stature and that a District Attorney may no longer properly be considered a State officer.

Central to our determination that the office of District Attorney is to be treated as a local office is the significant change in the relationship between county and State governmen brought about by the home rule provisions of our State Constitution. The Fearon Amendment, adopted and made a part of the Constitution in 1935, represents a major step in the direction of granting greater autonomy to county governments. Under this amendment, the Legislature was directed to provide alternative forms of county government. The Legislature carried out this direction by enactment of the Optional County Government Law in 1937, ¹⁰ which authorized counties to either maintain existing forms of government or adopt one of four other alternative forms...