Nicholson v. State Commission on Judicial Conduct

• Decision Date: 01 July 1980
• Citation: 431 N.Y.S.2d 340,50 N.Y.2d 597
• Parties: , 409 N.E.2d 818 In the Matter of Gary NICHOLSON et al., Appellants-Respondents, v. STATE COMMISSION ON JUDICIAL CONDUCT et al., Respondents-Appellants. (And 5 Other Proceedings.)
• Court: New York Court of Appeals Court of Appeals

Page 340

431 N.Y.S.2d 340

50 N.Y.2d 597, 409 N.E.2d 818

In the Matter of Gary NICHOLSON et al., Appellants-Respondents, v. STATE COMMISSION ON JUDICIAL CONDUCT et al Respondents-Appellants. (And 5 Other Proceedings.)

Court of Appeals of New York.

July 1, 1980.

Maurice N. Nessen and Susan C. Ervin, New York City, for appellants-respondents

Raymond S. Hack, Gerald Stern and Seth Halpern, New York City, for respondents-appellants.

OPINION OF THE COURT

PER CURIAM.

This appeal involves a challenge under the Federal Constitution and State law to the authority of the New York State Commission on Judicial Conduct to investigate alleged improprieties by Marie Lambert in the conduct of her 1977 campaign for election as Surrogate of New York County.

The litigation has a tortured history, originating in oral and written complaints received by the commission concerning the solicitation of members of the Bar for attendance at a fund-raising event held on December 4, 1977 by Surrogate Lambert's supporters. The commission determined to investigate and, in June, 1978, subpoenaed Gary Nicholson, Surrogate Lambert's former campaign manager. Nicholson moved to quash the command to appear and produce documents concerning the 1977 campaign, urging First Amendment and State law grounds. On appeal from the denial of that motion, the Appellate Division sustained the subpoena insofar as it sought testimony and records concerning the December 4, 1977 fund raiser, finding that the inquiry was properly initiated by a written complaint about lawyer solicitations received by the commission as required by subdivision 1 of section 44 of the Judiciary Law. As to the remaining requests, the court held the appeal in abeyance and remitted to Special Term for an ex parte, in camera hearing to determine whether they were relevant to the investigation on an existent complaint (67 A.D.2d 649, 412 N.Y.S.2d 602). Final decision by the Appellate Division was rendered following the hearing: the original complaint, while justifying the investigation into the December 4 event, did not authorize an inquiry into the entire campaign. The decision was without prejudice to a wider investigation if supported by a proper written complaint (Judiciary Law, § 44, subd. 1) or the filing of an administrator's complaint (Judiciary Law, § 44, subd. 2) based on information concerning the entire campaign and not simply the complaints about the December 4 fund raiser (68 A.D.2d 851, 414 N.Y.S.2d 550).

During the pendency of the Nicholson appeal, the commission received information concerning alleged campaign improprieties by Surrogate Lambert and her supporters, as well as alleged judicial misconduct following election. In March, 1979, an administrator's complaint was filed, averring possible improper activities beyond the December 4 fund raiser. During the course of the commission investigation, subpoenas were issued to five former campaign workers: Joseph Krinsky, Shirley Krinsky, Vincent Catalfo, Carmelo Albino and Lorenzo De Luca, appellants here. They refused to answer questions unrelated to the December 4 fund raiser. Prior to and after the filing of the administrator's complaint, the commission requested Surrogate Lambert's appearance to answer questions. She was unable to appear.

In April, the commission filed an amended administrator's complaint, alleging that (1) in connection with her 1977 campaign, Surrogate Lambert engaged in and attended fund-raising activities, acquainted herself with the identities of her contributors and otherwise improperly participated in the campaign; (2) during and after the campaign, cash contributions in excess of $100 were accepted, and expenses and contributions were not properly reported; and (3) after assuming office, Surrogate Lambert exercised her power of appointment on the basis of favoritism and not solely on the basis of merit, appointing contributors and others based on political considerations. The commission resubpoenaed Nicholson and also moved to compel the five campaign workers to comply with the subpoenas served by answering all questions relating to the allegations in the administrator's complaint.

Nicholson and Lambert thereafter, by order to show cause, commenced an article 78 proceeding to enjoin further proceedings by vacating the administrator's complaint. Motions were brought on seeking, among other relief, to consolidate the article 78 proceeding with the proceedings to compel compliance by the five campaign workers, to quash the subpoenas issued to Nicholson, to void the request for Surrogate Lambert's appearance, and to seal the record. Following an ex parte hearing to determine the basis for the expanded investigation, Special Term granted the motions to consolidate and seal the record and denied further relief except to the extent of enjoining commission proceedings under item 2 of the complaint on the ground that there was no allegation of misconduct by a Judge.

On appeal, the Appellate Division modified, over a partial dissent, to the extent of vacating the injunction against investigating conduct with respect to item 2, thereby dismissing the article 78 petition in all respects. That court found from the record and the prior determinations no impediment to permitting the continuation of the investigatory stage of the proceedings, as the commission's authority, the basis of the investigation and the relevancy of the requested disclosure were sufficiently demonstrated (72 A.D.2d 48, 422 N.Y.S. 701). Nicholson, Surrogate Lambert and the five campaign workers now appeal the determination adverse as to them and the commission cross-appeals from the sealing of the record. For reasons that follow, and to the extent indicated, we modify.

As a preliminary matter, it must be determined whether an article 78 petition seeking relief in the nature of prohibition lies in these circumstances. Invocation of the extraordinary remedy of prohibition is appropriate "only when there is a clear legal right" (Matter of Dondi v. Jones, 40 N.Y.2d 8, 13, 386 N.Y.S.2d 4, 8, 351 N.E.2d 650, 654) and only when the body or officer "acts or threatens to act without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction" (Matter of State of New York v. King, 36 N.Y.2d 59, 62, 364 N.Y.S.2d 879, 882, 324 N.E.2d 351, 353). The remedy is available to prevent only judicial or quasi-judicial action (Matter of Dondi v. Jones, supra, 40 N.Y.2d at p. 13, 386 N.Y.S.2d 4, 351 N.E.2d 650; Matter of B. T. Prods. v. Barr, 44 N.Y.2d 226, 405 N.Y.S.2d 9, 376 N.E.2d 171); it may not be sought to control merely legislative, executive or administrative acts (see People ex rel. Bender v. Milliken, 185 N.Y. 35, 77 N.E. 872; Matter of Kaney v. New York State Civ. Serv. Comm., 190 Misc. 944, 77 N.Y.S.2d 8, affd. 273 App.Div. 1054, 81 N.Y.S.2d 168, affd. 298 N.Y. 707, 83 N.E.2d 11; Note, Writ of Prohibition in New York-Attempt to Circumscribe an Elusive Concept, 50 St. John's L.Rev. 76, 84). Even when the petition presents a "substantial claim" of an absence of jurisdiction or an act in excess of jurisdiction, prohibition still may be deemed inappropriate after consideration of such factors as the "gravity of the harm which would be caused by an excess of power" or "whether the excess of power can be adequately corrected on appeal or by other ordinary proceedings at law or in equity" (La Rocca v. Lane, 37 N.Y.2d 575, 579, 376 N.Y.S.2d 93, 97, 338 N.E.2d 606, 610; Matter of Wilcox v. Dwyer, 48 N.Y.2d 1003, 425 N.Y.S.2d 550, 401 N.E.2d 908; see Note, 50 St. John's L.Rev., at pp. 97-98).

It must be emphasized that prohibition is not available to correct mere errors of law, procedural or substantive, in litigation (see Matter of State of New York v. King, 36 N.Y.2d 59, 62, 364 N.Y.S.2d 879, 324 N.E.2d 351, supra ). It is, rather, the means to prevent an arrogation of power in violation of a person's rights, particularly constitutional rights (see Matter of Lee v. County Ct. of Erie County, 27 N.Y.2d 432, 437-438, 318 N.Y.S.2d 705, 267 N.E.2d 452). Thus, the presentation of an arguable and substantial claim of such an excess of power generally results in the availability of a proceeding in the nature of prohibition (see La Rocca v. Lane, supra, 37 N.Y.2d at p. 581, 376 N.Y.S.2d 93, 338 N.E.2d 606). It is immaterial to this basic determination whether the claim is determined adversely to the petitioner on the merits. That relief ultimately might be denied does not preclude the proceeding.

It cannot be disputed that the commission is vested with authority to investigate improprieties by members of the judiciary (see N.Y.Const., art. VI § 22). The claim here, however, is that the investigation into allegedly improper campaign activities has a chilling effect on the exercise of First Amendment rights. The claim seeks to vindicate rights of political expression and association long cherished in our constitutional scheme (see Buckley v. Valeo, 424 U.S. 1, 25, 96 S.Ct. 612, 637, 46 L.Ed.2d 659). If indeed the investigation impermissibly chills the exercise of these rights, the commission would be acting in excess of power and prohibition would be the appropriate remedy. That the issues could be raised on appeal from any disciplinary action taken is not a persuasive reason in this instance for denying the availability of the remedy. Thus, we may entertain the instant proceeding seeking prohibition.

We turn then to the merits of the application challenging on First Amendment grounds the commission's authority to investigate the conduct of the 1977 campaign. It is urged that the investigation, the allegations supporting it and the rules of conduct upon which those allegations purportedly are based represent unconstitutional interferences with protected rights of political expression and association. The apparent basis for this contention...