La Rocca v. Lane

Citation37 N.Y.2d 575,376 N.Y.S.2d 93
Parties, 338 N.E.2d 606, 84 A.L.R.3d 1131 Vincent LA ROCCA, Appellant, v. Morgan LANE, as Judge of the Criminal Court of the City of New York, Respondent.
Decision Date23 October 1975
CourtNew York Court of Appeals

Eric A. Seiff, William Gallagher, New York City, Freda S. Nisnewitz and John E. H. Stackhouse, Brooklyn, for appellant.

Louis J. Lefkowitz, Atty. Gen. (Robert S. Hammer and Samuel A. Hirshowitz, New York City, of counsel), for respondent.

BREITEL, Chief Judge.

This is a proceeding brought to prohibit respondent, a Judge in the Criminal Court, from requiring petitioner, a Roman Catholic priest, to change his clerical garb before appearing as defense counsel in a criminal jury trial. Special Term granted the petition and prohibited the Presiding Judge from enforcing his order, 77 Misc.2d 123, 353 N.Y.S.2d 867. The Appellate Division reversed, 47 A.D.2d 243, 366 N.Y.S.2d 456, one Justice dissenting, and dismissed the proceeding on the merits. Petitioner appeals.

The preliminary question is whether prohibition under CPLR article 78 lies. If it does, the issue becomes whether the court's direction violated petitioner's right to free exercise of religion.

There should be an affirmance.

Prohibition is available to restrain an inferior court or Judge from exceeding its or his powers in a proceeding over which the court has jurisdiction. While a court has authority to regulate the conduct and appearance of counsel in proceedings before it, that authority is not unlimited. In exercising the power to regulate conduct and appearance, a court may not violate the constitutional right of counsel to free exercise of religion. Petitioner has presented a substantial claim that the Judge in the Criminal Court has exceeded his powers. Thus, petitioner should be able, in the first instance, to seek redress by prohibition.

The free exercise of religion is a highly protected interest but is not absolute. The incidental burden on petitioner's freedom to exercise his religion must be balanced against the State's paramount duty to insure a fair trial in a criminal action for both defendant and the People. In striking the balance it is concluded that the performance of the State's paramount duty to insure a fair trial may not be substantially jeopardized because of petitioner's right, however significant, to free exercise of his religion.

Petitioner has been an ordained Roman Catholic priest for 25 years. Admitted to the Bar in 1973, petitioner is a lawyer employ for his second year by the Legal Aid Society. He was assigned by the society to represent an indigent defendant in a criminal jury trial in the case of the People against Cecilia Daniels in the Criminal Court of the City of New York. Defendant Daniels was charged with an assault on her child's school teacher and is free on parole.

On January 7, 1974, when petitioner appeared for trial, the trial prosecutor objected to proceeding while petitioner was dressed in clerical garb. The objection was based upon a concern that petitioner's clerical costume might influence even one juror, and perhaps prejudice a juror for or against the defendant. Petitioner protested; he stated that he had always worn clerical garb at law school, at his appearance before the Committee on Character and Fitness, at his admission to the Bar, and at all previous court appearances. He acknowledged, however, that he had never before represented a client at a jury trial. Petitioner also stated that he had been 'designated' by his bishop to appear in court as a Catholic priest wearing his clerical garb. In opposing the trial assistant's objection, petitioner argued that a directed removal of his clerical garb by the court would violate his client's right to be represented by counsel of her own choice, and would also violate his right to free exercise of religion.

After considerable colloquy, the court directed that, unless petitioner were to remove his clerical collar, he would not be permitted to continue as defense counsel. The court's directive was grounded in its expressed concern that members of the jury might be prejudiced by the appearance of petitioner in his clerical costume, and therefore a fair trial could not be assured. Petitioner refused to remove his clerical collar and instituted the present proceeding. The trial in the criminal action, although not stayed, has never taken place. In his petition, petitioner contended only that the judicial direction to remove his clerical collar denied him his constitutional right to free exercise of religion.

The 'ancient and just' writ of prohibition is rooted deep in the common law. Originally used by the English king to curb the powers of ecclesiastical courts, prohibition has evolved into a basic protection for the individual in his relations with the State (see Appo v. People, 20 N.Y. 531, 541--542; Wolfram, The 'Ancient and Just' Writ of Prohibition in New York, 52 Col.L.Rev. 334, 338--353; Third Annual Report of N.Y. Judicial Council, 1937, p. 137 Et seq.; see, also, 23 Carmody-Wait, 2d, New York Practice, § 145:216, p. 792).

It is well settled, and has been restated many times, that prohibition is available both to restrain an unwarranted assumption of jurisdiction and to prevent a court from exceeding its authorized powers in a proceeding over which it has jurisdiction (see, e.g., CPLR 7803, subd. 2; Matter of Nigrone v. Murtagh, 36 N.Y.2d 421, 423--424, 369 N.Y.S.2d 75, 77--78, 330 N.E.2d 45, 46; Matter of State of New York v. King, 36 N.Y.2d 59, 62, 364 N.Y.S.2d 879, 881, 324 N.E.2d 351, 353; Matter of Roberts v. County Ct. of Wyoming County, 34 N.Y.2d 246, 248, 356 N.Y.S.2d 853, 854, 313 N.E.2d 335, 336; Matter of Proskin v. County Ct. of Albany County, 30 N.Y.2d 15, 18, 330 N.Y.S.2d 44, 45, 280 N.E.2d 875, 876; Matter of Lee v. County Ct. of Erie County, 27 N.Y.2d 432, 436--437, 318 N.Y.S.2d 705, 707--709, 267 N.E.2d 452, 453--455; Matter of Hogan v. Culkin, 18 N.Y.2d 330, 336, 274 N.Y.S.2d 881, 885, 221 N.E.2d 546, 549; Appo v. People, 20 N.Y. 531, 541, Supra). The extraordinary remedy of prohibition is never available merely to correct or prevent trial errors of substantive law or procedure, however grievous (see, e.g., Matter of State of New York v. King, supra, 36 N.Y.2d at p. 62, 364 N.Y.S.2d at p. 881, 324 N.E.2d at p. 353; see, generally, 23 Carmody-Wait, 2d, New York Practice, Op. cit., § 145:232, p. 831 Et seq.). The orderly administration of justice requires that correction of litigation errors merely be left to the ordinary channels of appeal or review. Otherwise one would erect an additional avenue of judicial scrutiny in a collateral proceeding and thus frustrate the statutory or even constitutional limits on review (see, e.g., Matter of State of New York v. King, supra, at pp. 63--64, 364 N.Y.S.2d at pp. 882--884, 324 N.E.2d at pp. 354--355).

If, however, a court acts without jurisdiction, or acts or threatens to act in excess of its powers, other principles are applicable. Prohibition is not mandatory, but may issue in the sound discretion of the court (see e.g., Matter of Hogan v. Court of Gen. Sessions of County of N.Y., 296 N.Y. 1, 8, 68 N.E.2d 849, 852; Matter of Culver Contr. Corp. v. Humphrey, 268 N.Y. 26, 39, 196 N.E. 627, 631). In exercising this discretion, a number of factors should be considered.

The gravity of the harm which would be caused by an excess of power is an important factor to be weighed (see Matter of Culver Contr. Corp. v. Humphrey, 268 N.Y. 26, 40, 196 N.E. 627, 632, Supra; see, also, 23 Carmody-Wait, 2d, New York Practice, Op. cit., § 145:216, pp. 793--794). Also important, but not controlling, is whether the excess of power can be adequately corrected on appeal or by other ordinary proceedings at law or in equity (see, e.g., Matter of State of New York v. King, 36 N.Y.2d 59, 62, 364 N.Y.S.2d 879, 881, 324 N.E.2d 351, 353, Supra; Matter of Roberts v. County Ct. of Wyoming County, 34 N.Y.2d 246, 249, 356 N.Y.S.2d 853, 854, 313 N.E.2d 335, 336, Supra).

If an adequate remedy is available, the burdening of judicial process with collateral proceedings, interruptive of the orderly administration of justice, would be unjustified. If, however, appeal or other proceedings would be inadequate to prevent the harm, and prohibition would furnish a more complete and efficacious remedy, it may be used even though other methods of redress are technically available (see, e.g., Matter of Lee v. County Ct. of Erie County, 27 N.Y.2d 432, 437, 318 N.Y.S.2d 705, 708, 267 N.E.2d 452, 454, Supra; Matter of Culver Contr. Corp. v. Humphrey, 268 N.Y. 26, 40, 196 N.E. 627, 632, Supra). For example, to force a person, faced with a court acting or threatening to act without jurisdiction, or in excess of its powers, to proceed in contempt, and to remain confined until 'ultimate justice' is obtained upon appeal in habeas corpus proceedings, would be to undermine the very reason for the remedy (see People ex rel. Livingston v. Wyatt, 186 N.Y. 383, 396, 79 N.E. 330, 335 (E. T. Bartlett, J., dissenting), contra, p. 394, 79 N.E. p. 334; see, generally, Wolfram, 52 Col.L.Rev. 334, Op. cit., pp. 342--344).

On this analysis, it is crucial to distinguish between an error in procedure or substantive law during a litigation and the arrogation of power which is subject to correction by prohibition. Thus, even constitutional issues involving errors of substantive or procedural law are not cognizable by way of prohibition (see, e.g., Matter of Blake v. Hogan, 25 N.Y.2d 747, 748, 303 N.Y.S.2d 505, 506, 250 N.E.2d 568; Matter of Watts v. Supreme Ct. of Tioga County, 36 A.D.2d 17, 18, 318 N.Y.S.2d 840, 841, mot. for lv. to app. den. 28 N.Y.2d 714, 320 N.Y.S.2d 755, 269 N.E.2d 412). If, however, a court acts without jurisdiction, or acts or threatens to act in excess of its powers, and it affirmatively appears that this will be done in violation of a person's, even a party's rights, but especially...

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