McNulty v. Chinlund

• Decision Date: 26 January 1977
• Citation: 392 N.Y.S.2d 790,89 Misc.2d 713
• Parties: John J. McNULTY, Jr., Sheriff of Albany County, et al., Plaintiffs, v. Stephen CHINLUND, Chairman, et al., Defendants.
• Court: New York Supreme Court

Page 790

392 N.Y.S.2d 790

89 Misc.2d 713

John J. McNULTY, Jr., Sheriff of Albany County, et al., Plaintiffs, v. Stephen CHINLUND, Chairman, et al., Defendants.

Supreme Court, Special Term, Albany County.

Jan. 26, 1977.

Peter R. Kehoe, Troy, for plaintiffs.

Louis J. Lefkowitz, Atty. Gen., for defendants; Anthony J. Conde, Albany, of counsel.

James McSparron, Albany, New York State Commission of Correction, David W. Beier, III, Rochester, for Monroe County Legal Assistance Corp., amicus curiae.

William E. Hellerstein, Joel Berger, John Boston, New York City, for The Legal Aid Society, Prisoners' Rights Project, amicus curiae.

ROGER J. MINER, Justice.

This is an action for declaratory judgment wherein plaintiffs, the Sheriffs of the various counties described in the complaint, seek to enjoin the enforcement of certain rules and regulations adopted by defendants. Before this court is a motion by plaintiffs for a preliminary injunction and a motion by defendants to dismiss the complaint.

Legislation was enacted at the 1975 session of the New York Legislature designed to restructure and expand the powers of the State Commission of Correction. (L.1975, ch. 865.) In his message of approval on August 9, 1975 the Governor summarized the legislation as follows: 'This bill provides for a three-man full-time Commission to oversee the operations of State and local correctional facilities, to formulate programs for the improvement of the correctional system and to create a system for the investigation and resolution of grievances in local correctional facilities.' (McKinney's Session Laws of New York, 1975, p. 1781.)

The Correction Law, as thus amended, empowered the Commission to 'promulgate rules and regulations establishing minimum standards for the care, custody, correction, treatment, supervision, discipline, and other correctional programs for all persons confined in correctional facilities.' (Correction Law, § 45 subd. 6.) Acting pursuant to this statutory authority, the Commission adopted regulations, effective October 1, 1976, affecting the following matters in county jails: correspondence (9 NYCRR 7004), visitation (9 NYCRR 7008), access to media (9 NYCRR 7023), religion (9 NYCRR 7024), packages (9 NYCRR 7025) and printed material and publications (9 NYCRR 7026). The effective date of the visitation regulation was extended to November 9, 1976. Although plaintiffs seek to invalidate all these regulations, argument on these motions was limited to the validity of the regulations pertaining to visitation and packages.

The visitation regulation under attack provides for contact visits as follows: '(a) Physical contact shall be permitted between a prisoner and his visitors. (b) Prisoners and their visitors shall be required to conduct themselves in a manner consistent with reasonable standards of public decency.' (9 NYCRR 7008.6.) Guidelines for the implementation of this regulation were published by defendant on August 18, 1976 and defined physical contact as 'handshaking, embracing, hand holding and kissing.' The guidelines further provided that prisoners be permitted to hold and play with their children and suggested means of implementing contact visitation within existing structural limitations. The package regulation and guidelines permit the introduction of a wide variety of specified items into jail facilities, subject to certain restrictions.

The New York Constitution confers no authority upon the Sheriffs to maintain and operate county jails. (Cf. N.Y.Const. Art. XIII § 13.) It is the function of the Legislature to provide for the establishment and operation of such institutions. Exercising that function, the Legislature has directed each county to maintain a county jail or to participate in the operation of a regional facility. (County Law, § 217; Correction Law, art. 4--A.) 'It is doubtless true that the Legislature could abolish county jails altogether and require counties to care for their prisoners in some other institution fixed by law, with or without the consent or approval of the several counties.' (Matter of County of Cayuga v. McHugh, 4 N.Y.2d 609, 615, 176 N.Y.S.2d 643, 648, 152 N.E.2d 73, 76.)

There is no question that the Legislature therefore has authority to establish rules and regulations governing the operation of county jails. It may delegate that authority to others. (Levine v. Whalen, 39 N.Y.2d 510, 384 N.Y.S.2d 721, 349 N.E.2d 820.) The authority to regulate visitation at the county jails has been delegated to the county Sheriffs.

Section 500--j. of the Correction Law is a longstanding enactment of the New York Legislature and expresses a legislative mandate that certain public officials have free access to jails. The section further provides as follows: 'No other person not otherwise authorized by law shall be permitted to enter the rooms of a county jail . . . unless under such regulations as the sheriff of the county . . . shall prescribe.' The power to establish the time, location and conditions of visitation clearly has been delegated to the county Sheriffs.

The foregoing conclusion is further supported by section 500--c. of the Correction Law which provides, in part, as follows: 'Each sheriff, except the sheriff of the City of New York and the sheriff of the County of Westchester, shall have custody of the county jails and shall receive and safely keep, in the county jail of his county, every person lawfully committed to his custody for safekeeping, examination or trial, or as a witness, or committed or sentenced to imprisonment therein, or committed for...