Mulroy v. Carey
| Decision Date | 12 July 1977 |
| Citation | 58 A.D.2d 207,396 N.Y.S.2d 929 |
| Parties | John H. MULROY, as County Executive and Chief Budget Officer of the County of Onondaga, Respondent, v. Hugh L. CAREY as Governor of the State of New York, Louis J. Lefkowitz, as Attorney General of the State of New York, Peter D. Andreoli, as Special Assistant Attorney General of the State of New York, Appellants, Richard A. Hennessy, Jr., as District Attorney of the County of Onondaga, Respondent. |
| Court | New York Supreme Court — Appellate Division |
The question presented on this appeal is whether the Governor of this State may direct his Attorney-General to investigate alleged unlawful acts of persons in Onondaga County with respect to solicitations, offers and payments of funds in connection with obtaining public office or contracts and suspend the District Attorney of Onondaga County with respect to the matters of such investigation, without first establishing to the satisfaction of the court the necessity of such action.
Petitioner, the County Executive and Chief Budget Officer of the County of Onondaga, instituted this Article 78 proceeding to enjoin the Governor, the Attorney-General and the Special Assistant Attorney-General from proceeding to investigate such matters in Onondaga County. The apparent motivation for the proceeding is the objection of petitioner to the imposition on the County of the expense of such investigation. Respondent District Attorney of Onondaga County by answer joins in the petition because of the implications which may flow from the fact that the Governor has seen fit to supersede him.
Conceiving the petition to be without merit as a matter of law, the respondents Governor, Attorney-General and Special Assistant Attorney-General moved for its dismissal. Special Term held that a question of fact exists for trial as to whether the Governor had reasonable grounds for invoking the services of the Attorney-General for this investigation and for superseding the Onondaga County District Attorney, and he made an order denying the motion. We think that the order must be reversed and the motion granted, on the ground that no justiciable issue exists for trial.
Section 3 of Article IV of the New York State Constitution contains the powers and duties of the Governor, providing in part that, "The governor * * * shall expedite all such measures as may be resolved upon by the legislature, and shall take care that the laws are faithfully executed " (emphasis added). In section 63 of the Executive Law the Legislature has specified the duties of the Attorney-General, providing that (Emphasis added.)
On November 24, 1976 Governor Carey issued Executive Order No. 42 to Attorney-General Lefkowitz pursuant to the above provisions of section 3 of Article IV of the Constitution and subdivision 2 of section 63 of the Executive Law, stating therein that "in view of the recommendation of the Fourth April 1976 Grand Jury and the Reports submitted by the District Attorney of New York County", he required that the Attorney-General, in person or by one or more of his deputies, attend "an Extraordinary Special and Trial Term of the Supreme Court to be appointed" by the Governor to be held in and for the County of Onondaga and appear before a grand jury which shall be drawn therein, "for the purpose of managing and conducting in said court and before said grand jury * * * examinations and inquiries * * * (as to) any and all criminal actions and proceedings * * * concerning * * * any and all unlawful acts or omissions * * * by any person, * * * arising out of * * * or in any way connected with the offer, payment, acceptance or solicitation of funds or other consideration in connection with the obtaining or retaining of public employment or public office, or * * * of any contract or other benefit from a public employee * * * or the State or any of its political subdivisions; and that you (the Attorney-General) conduct, manage, prosecute and handle such other proper actions and proceedings relating thereto * * * and that in person or by your * * * deputies you, as of the date hereof, supersede * * * the District Attorney of the County of Onondaga, * * * and that * * * the District Attorney of the County of Onondaga shall exercise only such powers and perform such duties as are required of him by you * * *."
Pursuant to Executive Order No. 42, on December 22, 1976 the Attorney-General appointed respondent Peter D. Andreoli as his Special Assistant Attorney-General to conduct such investigation. In the election of November, 1976 a new District Attorney was elected for the County of Onondaga, and he took office on January 1, 1977. Although under the authority of Matter of Turecamo Contr. Co., Inc., 260 App.Div. 253, 21 N.Y.S.2d 270. Executive Order No. 42 was applicable to respondent Hennessy as successor District Attorney, on February 10, 1977 Governor Carey issued supplemental Executive Order No. 42.1, making the directive expressly applicable to him. The State Administrative Director duly advised the Onondaga County Treasurer of the above directions and appointment and that respondent Hennessy had been superseded as district attorney, and advised that the expenses of the investigation would be a County charge.
Following such notification petitioner, as County Executive and Chief Budget Officer of the County, instituted this proceeding to enjoin any action under Executive Order No. 42 and for a declaration that the order is illegal and void. Six causes of action are alleged in the petition. The first is that Executive Order No. 42 is illegal and void for failure to contain a statement of the reasons for disqualifying the District Attorney, so as to justify the order superseding him. The gist of the remaining causes of action is that the appointment of respondent Andreoli as Special Assistant Attorney-General "usurp(s) the powers of the elected County District Attorney" and damages the public trust in the office of the District Attorney; that the order is defective because it is based on unauthorized disclosure to the Governor of reports of a grand jury proceeding (CPL 190.25, subd. 4); that the order encompasses areas outside the jurisdiction of Onondaga County, and so expenses incurred thereunder are not chargeable to the County; that the expenses of the investigation can only be charged to the County after an appropriation has been made by the State Legislature, which has not yet been done, and so the County has the right to audit and refuse to pay any charge which it finds excessive or improper; and that under section 33 of the Judiciary Law the State must bear the cost of the investigations involving State contracts, and so to the extent that the investigation involves such contracts, the County is not responsible for the expense involved.
It is apparent that much of the petition is concerned with defending the County against the prospective expenses of the investigation. To that extent it is premature. The essential issue before us, therefore, is whether Special Term was correct in requiring that a hearing be held to determine whether Executive Order No. 42 is invalid for failure of the Governor to satisfy the court that he had reasonable grounds for issuing it.
Since the People of the State, by specific provision in the Constitution (Article IV, § 3), have charged the Governor with the duty to "take care that the laws are faithfully executed", and the Legislature has expressly implemented that provision by enacting subdivision 2 of section 63 of 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, it appears prima facie that Executive Order No. 42 is valid (see Matter of Turecamo Contr. Co., Inc., 260 App.Div. 253, 258, 21 N.Y.S.2d 270, 274, supra). By the terms of the Order, it appears that the Governor invoked his powers to order the investigation by reason of information that he received from the Fourth April 1976 grand jury and the reports submitted to him by the District Attorney of New York County. The question is whether petitioner and respondent Hennessy are entitled to require the Governor to be more specific in disclosing the information which led him to make the order.
Historically, the office of State Attorney General preexisted that of county district attorneys. It existed in Colonial Days, was continued after the Constitution of 1777 without mention therein, and was the vehicle through which crimes throughout ...
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