Marthen v. Evans

• Decision Date: 03 June 1980
• Citation: 104 Misc.2d 553,428 N.Y.S.2d 828
• Parties: In the Matter of George W. MARTHEN, as Hamilton County Court Judge and Surrogate, Fourth Judicial District, Individually, and on behalf of all other New York State Judges and Surrogates similarly situated, Petitioner, v. Herbert B. EVANS, as Chief Administrative Judge of the Courts of the State of New York, et al., Respondents.
• Court: New York Supreme Court

Page 828

428 N.Y.S.2d 828

104 Misc.2d 553

In the Matter of George W. MARTHEN, as Hamilton County Court Judge and Surrogate, Fourth Judicial District, Individually and on behalf of all other New York State Judges and Surrogates similarly situated, Petitioner, v. Herbert B. EVANS, as Chief Administrative Judge of the Courts of the State of New York, et al., Respondents.

Supreme Court Albany County.

June 3, 1980.

Lipsig, Sullivan, Mollen & Liapakis, P.C., New York City, for petitioner (Harry H. Lipsig and David Jacobs, New York City, of counsel).

Robert Abrams, Atty. Gen., for respondents (James McSparron, Albany, of counsel).

HAROLD J. HUGHES, Justice:

Respondents seek to dismiss this proceeding upon objections in point of law that: (1) the court lacks jurisdiction to entertain this proceeding or grant the relief sought; (2) respondents Cooke, Mahoney, Harvey and Regan are not proper parties to the proceeding; (3) the proceeding is improperly commenced as a class action; and (4) the petition fails to state facts sufficient to entitle petitioner to the relief sought.

Petitioner George W. Marthen is the Hamilton County Court Judge and Surrogate, having been elected to that office in 1971 by the people of Hamilton County. Respondent Lawrence H. Cooke is Chief Judge of the Court of Appeals, and respondent Herbert B. Evans is Chief Administrative Judge of the Courts by appointment of Chief Judge Cooke. Respondents A. Franklin Mahoney and Norman L. Harvey are, respectively, the Presiding Justice, Appellate Division, Third Judicial Department, and the Administrative Judge of the Fourth Judicial District. Respondent Edward V. Regan is the Comptroller of the State of New York.

This article 78 proceeding attacks a determination by respondent Evans assigning petitioner to sit as a County Court Judge in Westchester and Suffolk Counties for six months in 1980 at a salary approximately $9,000 less than that paid to Westchester and Suffolk County Court Judges performing the same duties as petitioner. Petitioner attacks the assignments on the further grounds that they deprive the people of Hamilton County of their elected judge for almost half a year.

The petition and supporting papers disclose that in his eight years on the bench prior to the judge transfer plan, Judge Marthen, on a voluntary basis, served 312 days on assignment to courts outside of his home county, travelling over 38,000 miles at a personal expense exceeding $4,000. Pursuant to Chief Judge Cooke's judicial transfer plan, respondent Evans assigned petitioner to terms of County Court in Westchester County commencing on January 2, 1980, February 25, 1980, May 19, 1980 and September 8, 1980; and to terms of County Court in Suffolk County commencing July 14, 1980 and November 3, 1980. Petitioner's salary is $45,496, while the salary of a County Court Judge in Westchester is $54,441 and in Suffolk $54,131. The petition alleges that respondent Evans acknowledges that the salary disparities are "neither necessary, desirable or equitable". Broadly construed, the petition alleges that the determination of respondent Evans requiring petitioner to perform the work of the Westchester and Suffolk County Judges at a less than equal rate of compensation is arbitrary and capricious.

Concerning respondents' objections to the petition, many can be quickly disposed of. The court agrees that respondents Cooke, Mahoney and Harvey have been improperly joined as parties and the proceeding shall be dismissed as to them pursuant to CPLR 1026. Moreover, a claim for money damages against the State must be pursued in the Court of Claims (Matter of Dubner v. Ambach, App.Div., 426 N.Y.S.2d 164 (1980); Automated Ticket Systems v. Quinn, 70 A.D.2d 726, 416 N.Y.S.2d 864). Consequently, this court lacks jurisdiction to render the relief sought against respondent Regan and shall dismiss the proceeding against him.

The objection to class action status presents a closer question. The argument raised by petitioner that the assignment unfairly deprives the people of Hamilton County of their elected judge for almost half a year would be amenable to class action treatment, but the class would be the citizens of Hamilton County, and petitioner, as the center of the dispute between the people of Hamilton County and the Office of Court Administration, would not be a proper representative of the class. The court is of the opinion that the question of whether the transfers are arbitrary and capricious with respect to the judges involved must be determined on a case by case basis based on the individual judge's circumstances, with any common questions of law to be governed by the principle of stare decisis (Matter of Froehlich v. Toia, 71 A.D.2d 824, 419 N.Y.S.2d 386).

Irrespective of an administrator's viewpoint, all judges are not identical and interchangeable. If such were true, there would be no need for a careful selection process to choose our Court of Appeals Judges (N.Y.Const., art. VI, § 2) and appellate level justices (N.Y.Const., art. VI, § 4), as any judge would suffice. The position of Judge is one of the most important in our governmental system (Matter of Marro v. Bartlett, 46 N.Y.2d 674, 682, 416 N.Y.S.2d 212, 389 N.E.2d 808). With respect to those judges who deal on a direct basis with the people, such as County Court Judge and Surrogate, the State Constitution has made the choice thereof by election of the citizens affected (N.Y.Const., art. VI, §§ 10, 12). As a result, an upstate county like Albany County may elect County Court Judges with views on crime much different than those of judges selected by the citizens of New York City. The determination of an administrator to alter local choice on other than a temporary basis in response to an urgent need (N.Y.Const., art. VI, § 26) is most serious business. Such determinations must be made upon an individual basis taking into account many considerations and the review thereof must likewise be upon an individual, as opposed to a class, basis. Class action status should be denied (CPLR 902).

That brings us to the most important issue raised by respondents on their motion, to wit: "the Court does not have jurisdiction to entertain this proceeding". The position of respondents raises the critical issues of: (1) what, if any, is the remedy of an elected judge seeking relief from an administrative determination of the Chief Administrative Judge; (2) what is the standard of review; and (3) what forum has jurisdiction to determine the grievance.

The first question is whether there be any remedy. That turns, in part, upon the importance to society of affording redress. Judge Fuchsberg spoke to this point in his dissenting opinion in Matter of Marro v. Bartlett supra, p. 685, 416 N.Y.S.2d p. 219, 389 N.E.2d p. 814, expressing the overriding concern of "the imperative for an independent judiciary". Courts are the protection against a government overstepping its bounds (Rapp v. Carey, 44 N.Y.2d 157, 404 N.Y.S.2d 565, 375 N.E.2d 745). The concept that "there is no cause to fear executive tyranny so long as the laws are being faithfully executed" (supra, 175, 404 N.Y.S.2d 575, 375 N.E.2d 755, dissent per Judge Cooke) has proven to be true only so long as an ever vigilant and independent judiciary is present to restrain executive and administrative excess (Matter of County of Oneida v. Berle, 49 N.Y.2d 515, 427 N.Y.S.2d 407, 404 N.E.2d 133 (1980). The independent spirit of elected judges would be seriously undermined if they were subject to unreviewable administrative determinations of the Office of Court Administration.

The Chief Administrative Judge is no stranger to our courts (Matter of Marro v. Bartlett, 46 N.Y.2d 674, 416 N.Y.S.2d 212, 389 N.E.2d 808, supra ; Matter of Blyn v. Bartlett, 39 N.Y.2d 349, 384 N.Y.S.2d 99 348 N.E.2d 555; Matter of Evans v. Newman, 71 A.D.2d 240, 423 N.Y.S.2d 59, lv. to app. granted 48 N.Y.2d 612, 425 N.Y.S.2d ---, 402 N.E.2d 144; apps. dismd. 48 N.Y.2d 1026, 425 N.Y.S.2d ---, 402 N.E.2d 145; Matter of Goldstein v. Bartlett, 92 Misc.2d 262, 401 N.Y.S.2d 706, affd. 64 A.D.2d 956, 408 N.Y.S.2d 1020, lv. to app. den. 46 N.Y.2d 705, 413 N.Y.S.2d 1027, 386 N.E.2d 264). If the judges determining such cases are subject to unilateral and unreviewable transfer by one of the litigants, it not only gives the appearance of impropriety but would have a chilling effect upon the independence of the judge. In theory, a judge in Albany rendering a decision unfavorable to the Chief Administrative Judge could be assigned by the Chief Administrative Judge to a "temporary assignment" to Plattsburgh, Buffalo or Long Island for the remainder of his term of office (Matter of Taylor v. Sise, 33 N.Y.2d 357, 364, 352 N.Y.S.2d 924, 308 N.E.2d 442) and this determination would stand if no court review were available. The judiciary cannot stand as a bulwark against bureaucratic excess if it is itself ruled by a bureaucracy.

Chief...