Mulroy v. Carey

• Decision Date: 19 December 1977
• Citation: 373 N.E.2d 369,402 N.Y.S.2d 570,43 N.Y.2d 819
• Parties: , 373 N.E.2d 369 John H. MULROY, as County Executive and Chief Budget Officer of the County of Onondaga, Appellant-Respondent, v. Hugh L. CAREY, as Governor of the State of New York, et al., Respondents, and Richard A. Hennessy, Jr., as District Attorney of the County of Onondaga, Respondent-Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 570

402 N.Y.S.2d 570

43 N.Y.2d 819, 373 N.E.2d 369

John H. MULROY, as County Executive and Chief Budget Officer of the County of Onondaga, Appellant-Respondent, v. Hugh L. CAREY, as Governor of the State of New York, et al Respondents and Richard A. Hennessy, Jr., as District Attorney of the County of Onondaga, Respondent-Appellant.

Court of Appeals of New York.

Dec. 19, 1977.

Ralph I. Greenhouse, County Atty. (Rudolph V. Parr, Diane E. Tucker, Peter R. Eriksen, John R. Voninski and Raymond A. Meier, Syracuse, of counsel), for appellant-respondent.

Richard A. Hennessy, Jr., Dist. Atty. (John A. Cirando, William J. Fitzpatrick and Bryan R. Hedges, Syracuse, of counsel), pro se.

Louis J. Lefkowitz, Atty. Gen. (Ruth Kessler Toch, Jean M. Coon, Albany, Peter D. Andreoli, Syracuse, Norman Hatt and Henry De Cotis, New York City, of counsel), pro se, and for remaining respondents.

OPINION OF THE COURT MEMORANDUM.

Order affirmed, without costs, for the reasons stated in the opinion by Mr. Justice G. Robert Witmer at the Appellate Division (58 A.D.2d 207, 396 N.Y.S.2d 929).

In affirming, no view is expressed whether in any or all circumstances the exercise of the executive power to supersede an elected District Attorney would be beyond judicial review or correction in a direct or collateral action or proceeding brought or defended by the county or the elected District Attorney involved.

COOKE, Judge (concurring).

I vote to affirm, on the opinion of Mr. Justice G. Robert Witmer at the Appellate Division, and therefore concur in the result.

The ultimate paragraph of the memorandum of the majority causes concern. It is respectfully submitted that its enunciation is not only gratuitous and unnecessary for decision but, more importantly, creates uncertainty in the law and invites challenges to the duty conferred constitutionally upon the Governor that he "shall take care that the laws are faithfully executed" (N.Y.Const., art. IV, § 3) and the implementation of that duty in the Executive Law, requiring the Attorney-General to conduct such proceedings before a Supreme Court and Grand Jury as the Governor shall direct concerning investigation of criminal activities and to supersede the District Attorney in so doing ( § 63, subd. 2).

Indeed, in the opinion relied upon by the majority, that of Justice Witmer (58 A.D.2d 207), it was stated at pages 214-215, 396 N.Y.S.2d 929:

"In People v. Kramer, 33 Misc. 209, 219, 68 N.Y.S. 383, supra, the court said, 'The law thus confers upon the Governor a discretion, and when he has reason to doubt that the laws are being executed, I know of no judicial method by which his reason may be questioned or measured. It is sufficient if he, in the exercise of the discretion vested in him, directs the Attorney-General to appear and prosecute any actions, civil or criminal, in which the People are interested.' In People ex rel. Saranca Land & Timber Co. v. Extraordinary Special & Trial Term of Supreme Ct., 220 N.Y. 487, 116 N.E. 384, in considering the exercise of a gubernatorial direction in a similar context, Judge Cardozo wrote (p. 491, 116 N.E., p. 385), 'The relator insists that an extraordinary term is needless. That is a question for the governor, and no one else. We cannot review the exercise of his discretion (citations omitted). There may be reasons for urgency which we cannot know. The governor is not required to disclose them. He may have thought that the public interest demands the expeditious determination of actions affecting the title of the state. But the whole subject is beyond our province. The power and the responsibility are his, and his only.' In Gaynor v. Rockfeller, 21 A.D.2d 92, 98, 248 N.Y.S.2d 792, affd....