In two Article 78 proceedings, the court is asked to determine whether the Governor of the State of New York can supersede the District Attorney of Bronx County with respect to a criminal prosecution under the so called Murder One Death Penalty statute.
Petitioner, Robert T. Johnson, as District Attorney of Bronx County (herein "Bronx DA or Bronx District Attorney") seeks an order in the form of mandamus to compel Respondent, George E. Pataki, as Governor of the State of New York (herein "Governor") to refrain from enforcing Executive Order 27, prohibiting Respondent, Dennis C. Vacco, as Attorney General of the State of New York (herein "Attorney General" or "AG") from acting under Executive Order 27; declaring Executive Order 27 unconstitutional; and enjoining the Governor and Attorney General from enforcing or acting upon Executive Order 27.
Petitioners, Rafael Martinez, Albert Tuitt, Enid Hodge, John Booth, and Mary Ann Castle (herein collectively "Bronx Voters"), seek a judgment annulling Executive Order 27 issued by the Governor on March 21, 1996; an order prohibiting the Attorney General from taking any actions under the authority of Executive Order 27; a declaration that Executive Order 27 violates section 63(2) of the Executive Law; a declaration that Executive Order 27 violates Article IV of the New York Constitution; a declaration that Executive Order 27 violates the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. 1983; a declaration that Executive Order 27 violates Article I, Section 1,8,9 and Article II, Section 1 of the New York Constitution; an award to the petitioners of attorneys' fees pursuant to CPLR Article 86; and an award to petitioners of attorneys' fees pursuant to 42 U.S.C. 1988.
In response to these petitions, the Attorney General cross-moves for a judgment dismissing the petition against Respondents. Attorney General and Governor. Similarly, the Governor moves for an order dismissing the petitions of the Bronx District Attorney, and the Bronx Voters upon the grounds that, inter alia, (i) the actions complained of present a nonjusticiable question, or alternatively, (ii) the Governor's actions were valid as a matter of law.
BACKGROUND
The pertinent facts involved are basically not in dispute.
On March 7, 1995, legislation was enacted in New York State authorizing the imposition of varied sentences on a person convicted of murder in the first degree herein, "MURDER ONE STATUTE". The legislative enactment created a comprehensive set of statutes concerning the Death Penalty. The statutory framework has been codified under various provisions of New York Law. See, e.g. New York Penal Law Sections 60.06, 125.27(1); Criminal Procedure/Law Sections Section 250.40, 400.27, 470.30; Judiciary Law Section 35.b; Executive Law Section 63-d.
The MURDER ONE STATUTE requires the court to impose one of three sentences upon a defendant's conviction of Murder in the First Degree. The MURDER ONE STATUTE provides in relevant part as follows:
"When a person is convicted of murder in the first degree..., the court shall....sentence the defendant to death, to life imprisonment without parole...or to a term of imprisonment for a class A-1 felony other than a sentence of life imprisonment without parole...." (1995 N.Y. Laws Ch. 1, Section 2 (codified at N.Y. Penal Law Section 60.06)
Under the statute, the Court cannot impose a sentence of death unless,
"the people file with the court and serve upon the defendant a notice of intent to seek the death penalty". Id. Section 13 (codified at N.Y.C.P.L. 250.40(1)).
The statute further provides that any such notice of intent is to be filed within,
"one hundred twenty days of the defendant's arraignment upon an indictment charging the defendant with murder in the first degree". Id., (codified at CPL 250.40[2]).
The notice may be withdrawn at any time by a written notice of withdrawal. However, once the notice is withdrawn the notice may not be refiled. Id., (codified at CPL 250.40[4]). Notwithstanding the notice provision, the People may, at any time during the criminal action, determine that the death penalty shall not be sought, in which case the penalty may not be imposed. Id., Section 21 (codified CPL 5400.27(1).
Also, the statute provides for the assistance of the Attorney General in death penalty prosecutions:
"The Attorney General shall whenever required by the Governor or his designees after a request of the Governor by a District Attorney, direct that the resources and personnel of the department of law be used to provide assistance relating to the prosecution or appeal of any case where the defendant may be subject to the penalty of death". Id., Section 34 (codified at Executive Law Section 63-d)
On the same day the Governor signed the MURDER ONE STATUTE, the Bronx District Attorney issued a press release concerning the newly enacted MURDER ONE STATUTE. The Bronx District Attorney's press release read as follows:
"While the law enacted today reinstates the death penalty in New York, far more significant is its feature that permits a sentence of life without parole for the first time in our state's history. Since this law confers upon me the discretion to seek either sentence, I wish to make my policy clear regarding the exercise of that discretion.
I was raised by loving parents who instilled in me an intense respect for the value and sanctity of human life. As a result, I have devoted my life to the criminal justice system. During more than 20 years in that system, I have seen the devastation inflicted by those guilty of horrible crimes. I have felt the rage and thirst for vengeance which all but consume the victims and their families. I understood the desire of many of them to 'throw the switch, themselves. But I have also personally witnessed the devastation of those wrongfully accused. As an assistant district attorney, I convicted a defendant of intentional murder. He was released when his brother later pled guilty to committing the crime. Would even a brother come forward to save an innocent man if the consequence was death? And if he didn't, who would have been able to 'throw the switch' back?
Those familiar with the criminal justice system know that the surest deterrents to crime are the probability of conviction and the certainty of punishment. However, under our system of justice the death penalty neither can nor should be mandatory.
Consequently, it is highly uncertain that the penalty actually will be imposed by a jury in a given case, that its application will be fair, that the sentence will be upheld, on appeal, that the defendant will be executed and that others will be deterred. Moreover, the price of this uncertainty is enormous given the cost in time and resources of trials and appeals in death-penalty cases. Clearly, this money could be better spent on providing more judges and courtrooms so that more defendants could be brought to trial more quickly. The money could also be better spent on valuable and broadly based crime fighting and crime prevention programs, including reducing the flow of illegal guns, incarcerating more violent-criminals and providing more assistance for crime victims. While these programs may nor provide the visceral gratification of the death penalty, they will do a lot more to improve the quality of our lives.
For all these reasons, while I will exercise my discretion to aggressively pursue life without parole in every appropriate case, it is my present intention not to utilize the death penalty provisions of the statute..
The Bronx District Attorney's statements were presented in various newspapers including his statement of his present intention not to utilize the death penalty provision. (See, Bronx District Attorney's Verified Petition and Memorandum Ex. 9 - New York Daily News, Bergen Record, New York Newsday March 9, 1995). On November 2, 1995, the Bronx District Attorney was re-elected in Bronx County receiving approximately 89% of the vote.
On or about December 19, 1995, Michael Vernon was accused of killing five (5) individuals in a shoe store in Bronx County. On December 20, 1995, the Governor wrote the Bronx District Attorney to inquire as to the Bronx District Attorney's intent to seek the death penalty in the case. The Governor wrote:
"Dear District Attorney Johnson,
One of your representatives is reported to have stated that your office will not seek the death penalty against Michael Vernon, the man arrested in connection with the murder yesterday of five innocent persons in the Bronx.
Under Chapter 1 of the Laws of 1995, District Attorneys must make informed, reasoned decisions in individual cases whether to seek the death penalty. Pursuant to my constitutional obligation to assure that the laws are faithfully executed, I am writing to inquire whether you have determined not to seek the death penalty and, if so, whether that determination was based on a review of the specific facts in the exercise of your professional discretion or reflects a policy decision not to seek the death penalty in any case in Bronx County.
I would appreciate a response to this inquiry to Paul Shechtman, the Commissioner of Criminal Justice Services, or to my Counsel, Michael C. Finnegan, by 5:30 p.m. today."
On the same day, the Bronx District Attorney responded to the Governor indicating he would seek a "term of incarceration of life imprisonment without the possibility of parole". The Bronx District Attorney's response provided as follows:
"In reply to your inquiry, please be advised that from the moment I was notified of yesterday's horrific assault which led to the arrest of Michael Vernon, I have personally directed the investigation. Members of my staff were present at the crime scene, the police precinct and the hospital. My office is conducting a thorough investigation, which has included the taking of a statement from the defendant. We have also begun to offer assistance to the families and victims of this tragedy.
I am familiar with Chapter 1 of the Laws of 1995, governing the death penalty and I have reviewed the facts and circumstances surrounding this incident. Pursuant to that review, I intend to meet my constitutional and professional responsibility to hold this defendant accountable, punish him severely, and protect society. This I will do by exercising my statutory discretion to seek a term of incarceration of life imprisonment without the possibility of parole."
In responding to the Bronx District Attorney, the Governor indicated that he accepted the Bronx District Attorney's decision with "grave reservations". The Governor's response stated as follows:
"As you know, as Governor, it is my obligation under Article 4 Section 3 of the Constitution to 'take care that the laws are faithfully executed.' In view of your refusal to expressly answer my question about whether it is your policy not to seek the death penalty in any case in Bronx County, I am concerned that the laws of the State of New York may not be so executed.
My concern is heightened by your earlier statement that it was your 'present intention not to utilize the death penalty provision,' and the speed with which your decision in the Vernon case was reached. As you know, Chapter 1 of the Laws of 1995 provides district attorneys with up to 120 days for the purpose of due deliberation about whether to seek the death penalty.
You have, however, informed my counsel in a telephone conversation and me by letter that you have, in fact, deliberated with your executive staff in this instance and that the decision not to seek the death penalty was based on your 'statutory discretion.'
While I believe that the heinous murders allegedly committed by Vernon cry out for presenting the death penalty as an option to the jury for decision, I accept with grave reservations your representation as to your professional decision in this instance.
The people of the State of New York, through their elected representatives, have determined that the death penalty should be an option available to jurors in capital murder cases. Be assured that as Governor I will take all appropriate action needed to ensure that this sentencing option is available to all the residents of the State, including Bronx County."
Thereafter, on March 14, 1996, New York City Police Officer Kevin Gillespie was murdered in a shootout on the Grand Concourse in Bronx County. Dressed in plain clothes, Police Officer Gillespie and his partner came upon an apparent carjacking, and attempted to arrest the perpetrators. Officer Gillespie was shot while trying to effect the arrest, and died a short time later. On the following day, New York City police officers arrested three men in connection with the murder of Police Officer Gillespie.
On March 19, 1996, the Governor wrote the Bronx District Attorney again inquiring as to the Bronx District Attorney's position as to seeking the death penalty. The Governor wrote as follows:
"As you know, in December, I did not exercise my authority to supersede you in the prosecution of Michael Vernon, despite your refusal expressly to answer my question whether it is your policy not to seek the death penalty in any case in Bronx County. At that time, I accepted, albeit with serious reservations, your representation that your decision not to seek the death penalty was based on your 'statutory discretion.'
The issue has reemerged now in light of the brutal murder of police officer Kevin Gillespie in the Bronx this past Thursday. Although I fully appreciate that the investigation is on-going, the facts developed to date have indicated that the case is one in which the death penalty seems particularly warranted: the crime was cold- blooded, and the alleged murderer has three prior felony convictions, two for violent crimes, and was involved in yet another robbery spree when he ruthlessly took Officer Gillespie's life.
I respect that you have taken a public position in opposition to the death penalty because of your personal convictions. However, the people have spoken. The death penalty is the law in New York State and was intended to apply in just the sort of circumstances presented by the murder of Officer Gillespie.
As Governor, I cannot permit any District Attorney's personal opposition to a law to stand in the way of its enforcement. No one, including a District Attorney, can substitute his or her sense of right and wrong for that of the Legislature. For that reason, I must have your assurance that you do not have a policy against seeking the death penalty. In addition, because of both your public statements in opposition to the death penalty and your refusal to answer the question in December, I must ask the following question: 'Are there circumstances under which you will seek the death penalty in Bronx County?'
I would appreciate a response to Paul Shectman, Director of Criminal Justice, or to my Counsel Michael C. Finnegan, by 1:00 p.m. tomorrow."
In response to the Governor's letter, the Bronx District Attorney indicated that he would comply with the oath and obligations of his office. The Bronx District Attorney indicated that he had not taken a "position in opposition to the death penalty" but his public statements on the issue "left the door ajar, however slight, to exercise this option in the Bronx". The Bronx District Attorney's letter read as follows:
"In your letter of March 19, you say 'The death penalty is the law of New York' and you ask for my assurance that I do not have a policy against that penalty.
As to your statement, let's be clear that the death penalty is no more the law of New York than is the penalty of life imprisonment without parole. The statute in no way suggests that a sentence of death is the 'better' or 'presumptive' choice.
As to your question, let's be clear about what I have said about the option to seek death. I have not taken a 'position in opposition to the death penalty.'
Rather, I have enumerated concerns highlighted by personal experiences about the use and application of this option. And, as you certainly know, my original statement -- made over a year ago, repeated many times since and still unchanged - left the door ajar, however slight, to exercise this option in the Bronx.
You say that 'No one, including a District Attorney, can substitute his or her sense of right and wrong for that of the Legislature.' Quite frankly, Governor, that is precisely what you are trying to do. You know that the United States Supreme Court has declared that the death penalty cannot and should not be mandatory. You know, having signed Chapter 1 of the Laws of 1995, that New York's law is not mandatory and was drawn carefully to comply with the Supreme Court's declarations. You know that by making the death penalty discretionary the Legislature was giving District Attorneys another tool, not an order to use it. You know, in fact, that the penalty of life imprisonment without parole - now available for the first time in the history of this state - may actually be said to have been the Legislature's preference as against the death penalty, because the death penalty may only be imposed if a District Attorney affirmatively seeks it and notice of intent to do so may be withdrawn at any time, but in first degree murder cases the sentencing option of life imprisonment without parole can never be withdrawn from the court's consideration. Despite knowing all of this, however, you were reportedly already 'demanding' the death penalty within hours of the killing of Police Officer Kevin Gillespie, while my office was devoting all of its energies and resources to investigating the facts and circumstances of this brutal crime. So much for the legislative determination that a District Attorney has 120 days from indictment to exercise the statutory option to seek death in any given case.
The message you are sending to all District Attorneys is a form of 'Don't ask, don't tell.' Because I wanted my constituents to know my concerns about the death penalty option before they cast a vote to re-elect me, you have seen fit to impose deadlines and ultimatums on me, to make no secret of your 'will' to supersede me and to ask me a question which you have apparently not asked a single other District Attorney. Even many of those who disagree with me regarding the use and application of the statute, agree with me that your heavy handed approach to imposing your will is tantamount to the disenfranchisement of the voters of the Bronx.
Be assured, if you need to hear it, I will fully comply with the oath and obligations of my office."
One day after the Bronx District Attorney's response, the Governor issued Executive Order 27. The Governor claimed that he was acting pursuant to Article IV, Section 3 and Article XIII, Section 1 of the New York State Constitution. Also, the Governor explained that he was acting pursuant to Executive Law Section 63 (2) which essentially provides for the Attorney General to appear for the State in a court or grand jury for the purpose of prosecuting a criminal action specified therein. This, in effect, provides for the so-called superseder of the Bronx District Attorney by the Attorney General in the prosecution of the individuals involved in ;he killing of Officer Kevin Gillespie.
Executive Order 27 reads as follows:
"EXECUTIVE ORDER
REQUIRING THE ATTORNEY GENERAL TO SUPERSEDE THE DISTRICT ATTORNEY OF BRONX COUNTY WITH RESPECT TO THE MURDER OF POLICE OFFICER KEVIN GILLESPIE
TO: THE HONORABLE DENNIS C. VACCO
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK STATE CAPITOL ALBANY, NEW YORK 12224
WHEREAS, Article 4, Section 3 of the Constitution of the State of New York obliges the Governor of the State of New York to take care that the laws are faithfully executed, and I have solemnly sworn pursuant to Article 13, Section 1 of the Constitution to support the Constitution and faithfully discharge the duties of my office as Governor;
WHEREAS, Chapter 1 of the Laws of 1995 restored the death penalty as a sentencing option in specified circumstances involving intentional killings, and requires that District Attorneys determine whether to seek the imposition of the death penalty after making informed, reasoned decision on a case-by-case basis; (sic)
WHEREAS, on March 7, 1995, the same day Chapter 1 of the Laws of 1995 was signed into law, the Bronx County District Attorney publicly stated that it was his 'present intention not to utilize the death penalty provisions of [Chapter 1 of the laws of 1995],' a statement he has never retracted and to which his actions have remained consistent;
WHEREAS, a District Attorney who has instituted a blanket policy not to seek the death penalty violates his obligation to make informed, reasoned decisions on a case-by-case basis and thereby violates as well his sworn obligation to uphold the laws of this State. In addition, such a failure to exercise discretion must command my attention, for it implicates my sworn obligations to take care that the laws are faithfully executed, support the Constitution and faithfully discharge my duties as Governor;
WHEREAS, such a policy threatens the validity of death sentences imposed in cases prosecuted in other counties, because Chapter 1 of the Laws of 1995 requires the Court of Appeals to determine whether a sentence of death is excessive or disproportionate to the penalty imposed in similar cases;
WHEREAS, the Bronx County District Attorney afforded additional reason to conclude that he indeed has a policy not to seek the death penalty when he precipitously announced in December of 1995, within hours of the arrest of Michael Vernon on charges that he had brutally murdered five innocent persons in Bronx County, that he would not seek the death penalty.
WHEREAS, and pursuant to my constitutional obligations, I inquired of the District Attorney whether his determination in the Vernon case reflected 'a policy decision not to seek the death penalty in any case in Bronx County., The Bronx County District Attorney refused expressly to answer my inquiry, and thereby further heightened my concern that contrary to the law he was substituting his personal sense of right and wrong for that of the Legislature. Nonetheless, mindful of the gravity of the consequences for the District Attorney, I decided not to exercise my authority to supersede him in the prosecution of Michael Vernon. However, I cautioned the District Attorney that I would take all appropriate action needed to ensure that Chapter 1 of the Laws of 1995 was faithfully executed in Bronx County;
WHEREAS, in light of the brutal murder of Police Officer Kevin Gillespie in the Bronx last week under circumstances strongly indicating that the case is one in which the death penalty is particularly warranted, on March 18, 1996 I directed Paul Shechtman, the State Director of Criminal Justice, to contact the Bronx County District Attorney. Mr. Shectman spoke with the District Attorney and requested his assurance that if the Bronx County District Attorney's Office were to proceed with the prosecution of the persons arrested for Officer Gillespie's murder and determined not to seek the death penalty, the District Attorney would so inform the Governor before taking any action that would irrevocably preclude the imposition of the death penalty. However, the Bronx County District Attorney declined to provide such an assurance;
WHEREAS, I therefore wrote to the Bronx County District Attorney on March 19, 1996, again requested his assurance that he did not have a policy against the death penalty, and expressly asked him whether there were circumstances under which he would seek the death penalty in Bronx County. However, the District Attorney once again did not provide this assurance and refused to answer my direct question. Moreover, the District Attorney reaffirmed his March 7, 1995 statement that it was his 'present intention not to utilize the death penalty provisions' of the law. Inexplicably, the District Attorney maintained that this statement somehow 'left the door ajar, however slight', to exercising the option of seeking the death penalty. However, no rational reading of the March 7, 1995 statement is consistent with the exercise of discretion in a conscientious fashion.
WHEREAS, other facts further confirm that the Bronx County District Attorney has an impermissible policy not to seek the death penalty in any case. Apart from the Vernon case, the District Attorney has indicted six other persons for first-degree murder and has determined not to seek the death penalty in any of these cases. Although this fact alone is not sufficient to demonstrate the existence of such an improper policy, the surrounding circumstances are telling. For example, I am informed that in one of these cases (as in the Vernon case) the District Attorney announced that he would not seek the death penalty within hours of the defendant's arrest --- weeks before he was even indicted. And in another, the District attorney made his announcement just two days after the defendant's arrest; again, this announcement occurred weeks before the District Attorney indicted the defendant. Clearly the speed with which the District Attorney made these announcements is completely inconsistent with a careful, reasoned case-by-case evaluation. Furthermore, the District Attorney has never asserted that he has established either an internal review committee or guidelines for assessing whether to seek the death penalty; and
WHEREAS, the foregoing compels me to conclude that my constitutional obligations require both that I supersede the Bronx County District Attorney with respect to the prosecution of those persons responsible for the murder of Police Officer Kevin Gillespie and that I do so before the District Attorney takes any action that would effectively prevent the Attorney General or his deputy from conducting an informed, reasoned assessment of whether to seek the death penalty;
NOW, THEREFORE, I, GEORGE PATAKI, Governor of the State of New York, by virtue of the authority vested in me by Article 4, Section 3 of the Constitution of the State of New York, the provisions of subdivision 2 of section 63 of the Executive Law and the statutes and law in such cases made and provided, do hereby require that you, the Attorney General of this State, as you deem appropriate and necessary after investigation, attend in person, or by one or more of your assistants or deputies, a term or terms of the Supreme Court to be held in and for the County of Bronx and that you, in person or by said assistants or deputies, appear before any grand jury drawn for any term or terms of said court, for the purposes of managing and conducting in said court and before said grand jury and said other grand juries any and all proceedings, examinations and inquiries and any and all criminal action and proceedings which may be had or taken or before said grand jury and grand juries and proceedings which may be had or taker. or before said grand jury and grand juries concerning or relating to;
(a) any and all unlawful acts or omissions or alleged acts or omissions relating to the killing of Police Officer Kevin Gillespie and any involvement therein that Jesus Mendez, Ricardo Morales, Angel Diaz or any other person may have had;
(b) any other alleged crimes or unlawful acts or omissions related to or committed incident to these alleged crimes or unlawful acts or omissions, or discovered in the investigation or prosection[sic] thereof; and
(c) any and all acts or omissions or alleged acts or omissions occurring heretofore or hereafter to obstruct, hinder or interfere with any inquiry, prosecution, trial or judgment pursuant to or connected with this requirement; and that you conduct, manage, prosecute and handle such other proper actions and proceedings relating thereto as may come before said terms of court, or any term of said court at which any and all indictments which may be found and which may hereafter be tried, pursuant or in connection with this requirement, and in the event of any appeal or appeals or other proceedings connected herewith, to manage, prosecute, conduct and handle the same; and that in person or by your assistants or deputies you, as of the date hereof, supersede and in the place and stead of the District Attorney of the County of Bronx exercise all the powers and perform all the duties conferred upon you by statutes and law in such case made and provided and this requirement made hereunder and that in such proceedings and actions the District Attorney of the County of Bronx shall exercise only such powers and perform such duties as are required of such District Attorney by you or your assistants or deputies so attending.
Pursuant to subdivision 8 of section 63 of the Executive Law, I also find it to be in the public interest to require that you inquire into matters concerning the public peace, Public safety and the public justice with respect to the subjects which are within the scope of this requirement, and I so direct you to do so in person or by your assistants or deputies and to have the powers and duties specified in such subdivision for the purpose of this requirement.
Pursuant to the provisions of subdivision 2 of section 63 of the Executive Law, all expenses incurred by the Attorney General in relation to the investigation and prosecution of the proceedings enumerated herein, including the salary or other compensation of all deputies and assistants employed, shall be a charge upon the County of Bronx."
Contentions of the Parties
Petitioner Bronx District Attorney
The Court has the authority to hear the action.
The Bronx District Attorney contends that the instant action is properly invoked to attack unconstitutional and otherwise illegal acts of the Governor. The provision of CPLR 3001, he argues, authorizes the declaratory judgment action in New York and allows the court to declare the rights and other legal relations of the parties to a justiciable controversy.
According to the Bronx District Attorney, this action is brought to obtain a declaration that Executive Order 27 is unconstitutional; to obtain relief in the nature of mandamus to compel the Governor to refrain from acting on the order; and to prohibit the Attorney General from acting under the order (citing, CPLR 3001, 6301, 7803(1)(2). The Bronx District Attorney maintains that a number of New York cases support his position in challenging the Governor's executive order (Klosterman v. Cuomo, 61 N.Y.2d 525 (1984); Matter of Fullilove v. Carey, 62 A.D.2d 798 (3rd Dept. 1978) aff'd., 48 N.Y.2d 826 (1979); and Rapp v. Carey, 58 A.D.2d 918, 919 (3rd Dept. 1977) affid. 44 N.Y.2d 157 (1978). The latter case, Rapp, is also heavily relied upon by the Bronx Voters, infra. Based on this precedent, the Bronx District Attorney urges that this court may examine the separation of powers between the Executive and the Legislative branches of government.
Further, the Bronx District Attorney asserts there is no doubt that the remedies of prohibition and injunction lie against the Attornety[sic] General on the facts, (See, Matter of Schumer v. Holtzman, 60 N.Y.2d 46 (1983); Matter of Johnson v. Collins, 210 A.D.2d 68 (1st Dept. 1994). Finally, the Bronx District Attorney claims standing to assert the rights of the People of Bronx County as their elected representative.
The Bronx District Attorney contends that the Governor's present use of the superseder power in Executive Law Section 63 (2) is unprecedented. The Bronx District Attorney alleges: No New York Governor has superseded a district attorney in a criminal prosecution based on a disagreement over whether to seek a particular sentence. No New York Governor has superseded a district attorney where there was no fundamental question of the district attorney's capacity and willingness to prosecute a defendant for the appropriate crime and to obtain a judgment of conviction.
In this case, it is argued, the Governor superseded the Bronx District Attorney solely on the grounds that he believed that the Bronx District Attorney's public statements and acts indicated an unwillingness to seek a specific sentencing option. The superseder order is based on the Governor's interpretation of what the law requires. The Governor, the Bronx District Attorney claims, has interpreted the MURDER ONE STATUTE to give him absolute and unfettered superseder authority. Such a determination of whether the Governor's interpretation is correct, is the function of the judicial branch of government.
The Bronx District Attorney contends that the Governor's executive order impermissibly substitutes his own policy regarding the death penalty in place of the statutory scheme set forth by the Legislature. This is the separation of power argument between the Executive branch and the Legislature.
The Bronx District Attorney points to the case of Mulroy v. Carey, 58 A.D.2d 207, 396 N.Y.S.2d 929, (4th Dept. 1977) aff'd., 43 N.Y.2d 819, 402 N.Y.S.2d 570, wherein the Court of Appeals affirmed an Appellate Division opinion (Witmer, J.) which upheld an Executive Order (No 42 by Governor Carey) made pursuant to Executive Law Section 63 (2) superseding the district attorney with the attorney general for the purpose of investigating improprieties in obtaining public offices and contracts in Onondaga County. The Bronx District Attorney points out that the Court of Appeals, in affirming the Appellate Division, refused to declare that restrictions of any kind limited the Governor's power to supersede the district attorney as expressed in the concurring opinion of Justice Cooke. The Court of Appeals in Mulroy, supra, stated as follows:
"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."
The Bronx District Attorney asserts that the instant executive order presents a situation where judicial correction is warranted because it marks the case as one in which the Governor is creating law rather than enforcing it. In examining the executive order, the Bronx District Attorney maintains that the Governor's reasons for superseder are so hollow as to be no reason at all. Again, the Bronx District Attorney proclaims that he has never stated that he would not, under any circumstances, file a notice of intent to seek the death penalty.
According to the Bronx District Attorney, the purpose of superseder is to assist a Governor with his duty to "take care that the laws are faithfully executed." It is further argued that New York law, and particularly the MURDER ONE STATUTE does not require a district attorney to pursue the death penalty under any set of circumstances though the Governor seems to read such a requirement into the legislation. The availability of alternate sentences as provided in the Murder One Statute affords the district attorney discretion to choose.
The Bronx District Attorney further contends that the crux of the Governor's impermissible policy making, is found in his recitation that the MURDER ONE STATUTE requires that the Bronx District Attorney determine whether to seek the imposition of the death penalty after making informed reasoned decisions on a case by case basis. The Bronx District Attorney claims that the MURDER ONE STATUTE is silent as to the specific circumstances under which the sentencing option of execution should be sought. Moreover, the legislation does not require a district attorney to establish an internal review committee or guidelines to make the decision. Further, the MURDER ONE STATUTE does not even require a reasoned case by case evaluation.
According to the Bronx District Attorney's analysis, the Governor is strictly prohibited from using Executive Law Section 63 (2) to engraft a new policy upon that of the Legislature. To illustrate the analysis, the Bronx District Attorney cites Broderick v. Lindsay, 39 N.Y.2d 641, 645-665(1976) (an executive is afforded flexibility in determining the proper methods of enforcing legislative policy, a flexibility which varies according to the nature of the problem to be remedied); Rapp, supra (where it would be practicable for the legislature itself to set precise standards thereby limiting the executive's flexibility); and Boreali v. Axelrod 71 N.Y.2d 9, 12 (1987), (executive branch may not use its authority as a license to correct whatever society evils it perceives.)
Thus, the Bronx District Attorney maintains that the Governor's executive order is readily distinguishable from the one recently upheld by the Court of Appeals in Bourquin v. Cuomo, 85 N.Y.2d 781, 787 (1995), for the fact that the latter did not "formulate a specific policy" or assume a "substantive content." Similarly, is People ex rel. Saranac Land & Timber Company v. Extraordinary Special and Trial Term of Supreme Court, 220 N.Y. 487, 491-92 (1917) wherein an executive proclamation creating special trial terms was permissible because it did not attempt to direct any specific outcome, but simply created a forum for review.
Also, the Bronx District Attorney challenges the Governor's assertion that superseder is necessary because the Governor seeks to avoid the possibility that future sentences of death would be i.,validated as "disproportionate to the penalty imposed in similar cases." The Bronx District Attorney makes a three-prong attack on the proportionality argument.
The first assertion is that no defendant has been convicted of first degree murder, and no death penalty has been imposed anywhere in the state. There is no assurance that a court or a jury will ever impose the sentence, or that an imposed sentence would, notwithstanding any proportionality claim, withstand direct or collateral review by state or federal appellate courts. The second assertion is that, while the statute calling for proportionality has never been interpreted, it would appear that its prime objective is to ensure proportional treatment across racial lines (CPL 470.30[3][b] Cf. Gregg v. Georgia,428 U.S. 153, 199 [1976]. The third assertion is that recent reports indicate that any proportionality argument would face grave independent obstacles because no organization is tracking the total number of eligible murder offense (Edward A. Adams, No Data Kept on All Eligible Capital Cases, New York Law Journal April 1, 1996 pl col 3). The Bronx District Attorney argues that, while any analysis of the proportionality issue is premature, it would seem certain that a proportionality based attack on the first degree murder statute would, almost by definition, involve a statistical analysis of the sentences imposed in eligible cases.
The Bronx District Attorney contends that the Governor's executive order impermissibly invades the independent Executive power of the District Attorney, as an elected, constitutional officer. In other words, as eloquently argued by counsel, an invasion of the "zone of independence" of the district attorney.
In his-memorandum and argument, the Bronx District Attorney shows the evolution of the district attorney from an appendage of the attorney general into a free standing office of independent power.
In discussing the historic powers of the attorney general and the evolution of the district attorney in New York, the Bronx District Attorney cites People v. Kramer, 33 Misc 2d 209, 213 (Ct. Of Gen. Sessions, New York County 1900), which showed that the attorney general was modeled on the English Office and was designated by the English governor. Under the initial constitution in New York, the attorney general was not provided for and the office was filled upon an appointment by the constitutional convention. The attorney general was the only officer who could represent the People in prosecuting crime in New York.
In 1796, the office of assistant attorney general was created to relieve the attorney general of the obligation of personally attending all criminal prosecution in the State. (Laws of 1736 c8) People v. Kramer, supra, at 214. The assistant attorney generals were the prototype of the later created district attorneys. People v. Kramer, supra, at 214; also, People v. Tru Sport Pub Co. Inc., 160 Misc. 628, 637, 639 (Sup Ct. Saratoga County 1936).
The office of district attorney was created by statute in 1801 (L1801c146). Thereafter, the office of district attorney was recognized in the constitution which mandated appointment by the county courts rather than the governor (See, Robert M. Pitler, Superseding The District Attorneys in New York City. The Constitutionality and Legality of Executive Order No 55, 41 Fordham Law Review 517, 520 (herein "Pitler"). Subsequently, the constitution provided for the election of district attorneys and the County Law charged the district attorneys with the duty to prosecute crimes within the jurisdiction of the county (See, New York Constitution Article XIII, Sections 1, 13; County Law Section 700, 927.)
In arguing the zone of independence, the Bronx District Attorney points to several cases where a district attorney made a claim for relief against a governor (Mulroy, supra), based on the autonomy of his office. (People v. Jackson, 48 N.Y.S.2d 401 [New York County 1944], [retroactively altering the term of office of an already elected district attorney]; People ex rel Eldren v. Palmer 154 N.Y. 133 [1897]).
The Bronx District Attorney briefly distinguishes the case of People ex rel. Wozan v. Rafferty, 208 N.Y. 451 (1913) wherein the Legislature was held to have impermissibly deprived the county clerk (an elected constitutional officer) of his office by the appointment of a "deputy" who, in fact, acted as chief clerk. According to The Bronx District Attorney, Rafferty, supra, stands for the principle that where the constitution establishes a specified office, or recognizes its existence and prescribes the manner in which it shall be filled, the office is necessarily endowed with a special status - a zone of independence.
In furtherance of his argument, the Bronx District Attorney maintains that his status as an elected official impliedly confers the authority on the District Attorney to serve the People of the Bronx without interference. The Bronx District Attorney urges that the concomitant interest of the People of the Bronx be recognized. The Bronx District Attorney obviously points out that the Governor is an elected official on a state-wide basis. However, the preference of those voters cannot override the authority of the district attorney without at least some degree of deference to the voters for the local office of district attorney.
The Bronx District Attorney urges this Court to protect his zone of independence as herein outlined. Significantly, the Bronx District Attorney urges the Court not to adopt the concurring opinion of Judge Cooke in Mulroy, supra, wherein he opined that Court intervention would only be appropriate where, because of exigent circumstances, the political process was rendered unable to "combat an abuse of the governor's power".
Another argument raised by the Bronx District Attorney concerns the violation of his First Amendment Rights and denial of Equal Protection of the Law.
In his Executive Order, the Governor refers to several public statements made by the Bronx District Attorney concerning the death penalty and the failure of the Bronx District Attorney to respond to questions propounded by the Governor. It is contended that the Governor by executive order 27 seeks to "chill" any expression of opinion by elected district attorneys that contravene the opinion of the Governor.
According to the Bronx District Attorney, the reasons recited in Executive Order 27, aside from the statements of the District Attorney which purportedly justify the superseder, are insufficient to strike the balance in favor of the Governor. No other district attorney in New York State has been threatened by a superseder for not seeking the death penalty in a possible Murder One case. In effect, the Bronx District Attorney asserts that the Governor's threat and superseder has created a "Don't ask, Don't tell" policy over the 62 elected district attorneys of this State. It is claimed that under this policy, those who do express themselves on this issue in any manner contrary to the Governor's view risk inquiry and superseder, while those who remain silent apparently do not. Consequently, the policy does not promote a "compelling interest" of government and violates the First Amendment.
The Bronx District Attorney contends that the Governor has made an impermissible end run around the specific commands and policy concerns enunciated in Executive Law Section 63-d by using Executive Law Section 63(2) to require the Attorney General to prosecute the instant case. The Bronx District Attorney's argument is based on the amendment to the Executive Law specifically included in the MURDER ONE STATUTE. Executive Law Section 63-d provides for the entry of the Attorney General in a Murder One case when required by the Governor after a request to the Governor by the local district attorney in charge of the prosecution of the possible death penalty case. The Bronx District Attorney argues the legislative intent was clear that in murder one cases, the Attorney General's authority to participate in the prosecution is limited to assisting the elected district attorney. Also, the Bronx District Attorney asserts that the statute conditions the grant of assistance by the Attorney General on the existence of two circumstances: the defendant has been provided adequate resources for his defense pursuant to Judiciary Law Section 35-b; or the defendant has mustered so many resources that his resources have become "substantially greater" than those reasonably available to the District Attorney.
The Bronx Voters
Like the Bronx DA, the Bronx Voters contend that the Governor's authority to supersede a district attorney is limited by State law and by the New York and the U.S. Constitutions. The Bronx Voters contend that two principles support the proposition that the Governor cannot supersede the prosecutorial authority of a district attorney absent extraordinary circumstances of the sort not present here.
According to the Bronx Voters, the first set of principles involves the concept of "limited government". In support of this argument, which invokes the separation of powers, the Bronx Voters point to Rapp, supra. According to the Bronx Voters, Rapp recognized that the responsibility of the Executive branch to enforce the law does not provide the Governor with a license to create new law or even to engage in administrative behavior that extend beyond the scope of stated legislative policy. The second set of principles applicable to this case rests upon the concept of representative democracy and prohibits the removal of elected officials or the superseding of the authority of such officials absent a compelling state interest.
The Bronx Voters assert that the Bronx DA is a constitutional officer sworn to "faithfully uphold the lawn and conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which he shall have been elected. Further, the "take care" clause of the New York State Constitution Article IV, Section 3 was to be used only in extraordinary circumstances involving conflicts of interest. The failure of a District Attorney to meet his/her duties was to be remedied by removal. In making this argument, the Bronx Voters note that the Court of Appeals has never addressed the issue of the circumstances under which a Governor might supersede a district attorney pursuant to Executive Law Section 63(2) and Article IV of the New York Constitution (See, In re Turecamo Contracting Co. Inc., 260 A.D.2d 253, 21 N.Y.S.2d 270, 275 (2nd Dept. 1940).
The Bronx Voters maintain that the limits of the Governor's authority can be clearly seen in Rapp, supra. In Rapp, the Court of Appeals found the executive order issued by Governor Carey pertaining to state employees' conflicts of interest to be invalid. The Bronx Voters contend that Rapp established that an executive order issued pursuant to the "take care" clause is valid only if it can be fairly characterized as executing the law or as being necessary to assure the law's execution. The Rapp court, it is argued, looked to the legislative intent of the statute and found the then Governor's executive order at variance with the declaration of legislative intent. Similarly, the Bronx Voters argue that Section 63(2) of the Execution Law was intended to be used only in extraordinary circumstances involving conflicts of interest. The Bronx Voters cite a series of federal and state cases which they argue supports the principle that the voters have a constitutional interest to have those whom they elect remain in office.
The Bronx Voters also contend that the Governor did not even give the Bronx DA the opportunity to meet the asserted statutory obligation (120 days) and thus, the superseder was not necessary to assure that the MURDER ONE STATUTE be faithfully executed. Moreover, the Governor failed to show actual failure on the part of the Bronx DA who never indicated that he had a blanket policy against the death penalty.
Furthermore, the MURDER ONE STATUTE does not require a district attorney to consider seeking the death penalty in any particular case. The statute itself does not require or impose an obligation on a district attorney to seek the death penalty. This is evidenced by the Legislature's inclusion of several provisions that impose specific obligations upon district attorneys. ie. Laws of 1995 Ch 1, Section 29, Section 13. Thus, it follows that, since the MURDER ONE STATUTE imposes no explicit obligation upon the Bronx DA with respect to the decision whether to seek the death penalty in a particular case, nothing that the Bronx DA did or did not do with respect to the case of Officer Gillespie could provide a basis for concluding that he had failed or would fail to execute the laws within the meaning of the "take care" clause of Article IV of the State Constitution Rapp, supra.
Another contention asserted by the Bronx Voters is that the Executive Law conditions the Attorney General's involvement under the MURDER ONE STATUTE and in death penalty cases. The amendment to the Executive Law (Section 63-d) was included in the MURDER ONE STATUTE to specifically address the Attorney General's involvement in any case. The Bronx Voters pointed out under their analysis Executive Order 27 failed even to consider the quality of the accused's legal and other resources, thus violating the express and specific provisions of the very statute upon which the order is purportedly based. The Bronx Voters refer to several cases where a general provision of a statute must yield to a specific provision. See, Beer Garden. Inc, v. New York State Liquor Authority, 79 N.Y. 2d 266, 275 (1992); Koch v. Dyson, 85 A.D.2d 346, 369 (A.D. 1st Dept. 1982); People v. Walker, 81 N.Y.2d 661, 664-5 (1993).
The Bronx Voters contend that this court has the power and authority to adjudicate the petitioners claims. According to the Bronx Voters, the Court of Appeals has rejected the Governor's argument of non-justiciability in Rapp, supra. The Court in Rapp established that the Governor's authority under the "take care clause" of Article IV is judicially reviewable. The Rapp court found the executive order issued by Governor Carey to be unconstitutional. The Governor's reliance on a specific provision does not end the inquiry (See, Under 21. Catholic Home Bureau for Dependent Children v. New York, 65 N.Y.2d 344, 356-65.) In the case of In re Di Brizzi, 303 N.Y.2d 206, 214-17 (1951), the court adjudicated a constitutional challenge to an executive order under Executive Law Section 63(8) establishing the New York State Crime Commission. However, the Bronx Voters contend Mulroy, supra which found a similar conflict to be nonjusticiable, is not binding on this determination. According to the Bronx Voters, the Court of Appeals upheld the judgment but disavowed the justiciability issue. Moreover, the separation of powers principle supports the Bronx DA's position. This theory supports the argument that the court should adjudicate the case.
The Bronx Voters further contend that the removal of the Bronx DA violated Article IV of the New York Constitution and Executive Law Section 63(2). The basis for this contention is that the "take care" clause (Article IV 3) was improperly invoked since the Bronx DA was not acting contrary to law. The Bronx Voters maintain that the Governor's actions are subject to more than the "rational basis" review asserted by the Governor. Moreover, Executive Law Section 63 (2) was to be used only in extraordinary circumstances and particularly when a district attorney had a conflict of interest.
THE GOVERNOR
Respondent, George E. Pataki, Governor.of the State of New York, contends that the doctrine of separation of powers first enunciated in Marbury v. Madison, 5 U.S. 137, 1 CRANCH 137 (1803), is so firmly embedded in Federal and New York State constitutional jurisprudence so as to dictate the inescapable conclusion that the Governor's power to direct the Attorney General to prosecute any crime within the State of New York is plenary and thus beyond the realm of judicial review.
The Governor argues that when discretion to act is given to the Governor either by the Constitution or the Legislature, the Governor's exercise of that discretion is a political act which is nonjusticiable. The Governor does not contend that the courts are precluded from making any inquiry as to the challenged gubernatorial action, but that once a court's threshold inquiry determines that the challenged gubernatorial action is based on an express grant of Constitutional or statutory authority, the court's inquiry is at an end and the challenged gubernatorial action is beyond further judicial review.
The Governor argues that both Article IV, Section 3 of the New York State Constitution and Executive Law, Section 63(2) empower the Governor with discretion and the authority to act.
Article IV, Section 3 of the New York State Constitution provides, inter alia, that the Governor "shall take care that these laws are faithfully executed."
Executive Law, Section 63(2) provides that the Attorney General shall:
"Whenever required by the governor, attend in person, or by one of his deputies, any term of the supreme court or appear before the grand jury thereof for the purpose of managing and conduct in such court or before such jury criminal actions or proceedings as shall be specified in such requirement; in which case the attorney general or his deputy so attending shall exercise all the powers and perform all the duties in respect of such actions or proceedings, which the district attorney would otherwise be authorized or required to exercise or perform; and in any of such actions or proceedings the district attorney shall only exercise such powers and perform such duties as are required of him by the attorney general or the deputy attorney-general so attending. In all such cases all expenses incurred by the attorney general, including the salary or other compensation of all deputies employed, shall be a county charge." [emphasis added]
Thus, Executive Law, Section 63(2) authorizes the Governor to supersede the District Attorney in criminal prosecutions without express limitation. Indeed, the language "Whenever required by the governor...." evinces the legislative intent to vest sole discretion in the Governor's judgment. Clearly, the Legislature could have imposed discernible standards to trigger gubernatorial action but opted, instead, to leave the matter to executive discretion. The Governor's judgment as to when to invoke the superseder power under Executive Law, Section 63(2) lies in his belief that such action is warranted. (See, Berger v. Carey, 86 Misc. 2d 727, 383 N.Y.S.2d 171.)
It is contended that the conferred legislative authority bestowed upon the Governor by Executive Law, Section 63(2) is plain and unambiguous and should be interpreted solely in accordance with its plain meaning. (See, Auerbach v. Board of Education, 86 N.Y.2d 398, 654 N.E.2d 972, 630 N.Y.S.2d 698; Eaton v. New York City Conciliation and Appeals Bd., 56 N.Y.2d 340, 47 N.E.2d 1115, 452 N.Y.S.2d 358.) No resort to legislative history need be initiated in view of the unqualified statutory language.
In Saranac Land and Timber Company, supra, the Saranac Land and Timber Company began two actions against the Comptroller of the State of New York to recover possession of land in Franklin County which resulted in three trials, all of which resulted in judgments in favor of the plaintiff. By proclamation of the Governor, an extraordinary Special and Trial Term of the Supreme Court was appointed to hear and determine motions seeking new trials and, in the event that new trials were granted, to try the actions. A Justice was designated to preside. The proclamation contained a recital by the Governor that it appeared to his satisfaction that the public intent required the extraordinary and special terms.
Justice Cardozo held that "The power of the Governor to appoint an extraordinary term is established by section 153 of the Judiciary Law, Consol. Laws, Chap. 30" (formerly Code Civil Procedure, section 234). "He may act whenever in his opinion the public interest so requires." Id., at 490, 116 N.E. at 384.
Answering the relator's argument that there was no need for the creation of an extraordinary term, Justice Cardozo writing for a unanimous court declared,
"That is a question for the governor, and no one else. We cannot review the exercise of this discretion (People v. Shea, supra, State v. Register, 133 N.C. 746, State v. Lewis, 107 N.C. 967; Matter of Guden, 171 N.Y. 529). 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." (emphasis added) Id., at 491
Thus, Judiciary Law, Section 153 like Executive Law, Section 63(2) was a "vehicle to enable the Governor to fulfill his constitutional duty to take care that the laws are faithfully executed." See, Pitler at 523-6.
On page 4 of Executive Order No. 27, the Governor declared that the recitals contained in the said order compel him to conclude that his constitutional obligations require that he supersede the Bronx County District Attorney in the criminal prosecution of those persons responsible for the murder of Police Officer Kevin Gillespie. The said order, inter alia, required the Attorney General to "supersede and in the place and stead of the District Attorney of the County of Bronx to exercise all the powers and perform all the duties conferred upon you by statutes and law in such case made and provided and this requirement made hereunder, and that in such proceedings and actions the District Attorney of Bronx shall exercise only such powers and perform such duties as are required of such District Attorney by you or your assistants or deputies so attending."
In Saranac Land & Timber Company, supra, Justice Cardozo rejected the relator's contention that the establishment of the Extraordinary and Special Terms nullified the provisions of the Code Civil Procedure, section 982 which provided that the actions be tried in Franklin County, the county where the land was situated, and attempted to impose executive control as to the mode and place of trial, reasoning and concluding at page 492 that the executive proclamation made no attempt to control the action of the court:
"It does not mean that anything must be heard there. It merely creates a term at which there will be an opportunity for hearing. It organizes a court to which the state and other suitors may repair, and have the measure of their rights judicially declared. The statement in the proclamation of the purpose of the term does not confer jurisdiction. It does not enlarge or diminish the right of litigants. It is merely matter of inducement. It is a statement-an appropriate, but needless statement-of the considerations or some of them that induced official action. Those considerations add nothing to, and subtract nothing from, the power of the court when once the term has been created. It is then a term of the Supreme Court with the same jurisdiction that belongs to any other term (People ex rel. Mayor, etc. of N.Y. v. Nicholas, 79 N.Y. 582; State v. Register, 133 N.C. 746, 749). Strange consequences would follow the acceptance of the relator's argument. We have already referred to extraordinary terms which have been appointed for the trial of indictments for particular offenses. The relator's argument, if sound would mean that in all those cases, the courts had by implication been instructed by the governor to proceed with the trials regardless of jurisdiction of the crime, of the validity of the indictment, or of the right of the accused to an adjournment or a change of venue. No such interpretation is thinkable. The executive establishes the term, and designates a judge to hold it. He has no power to do more. He has not attempted to do more. The power of the judge who sits in judgment is not affected by executive prescript or decree. It is governed by law.
There is another answer, even if the court is without power to try these actions at an extraordinary term in Schenectady, there is nothing in this record which impeaches its power at such a term to hear the motion for a new trial. Whether it will do anything more we cannot say."
In re Guden, 171 N.Y. 529, 64 N.E. 451 (1892), involved a challenge to the Governor's constitutional authority to remove the sheriff of King's County, an elected official. The relevant Constitutional provisions vested plenary authority in the Governor to remove specified elected officials, sheriffs, district attorneys, clerks of counties and registers in counties having registers. The Governor was required only to provide such an official with a copy of the charges against him, or her and provide that official an opportunity to be heard. The Court stated that, "It does not require argument to persuade the mind that the power thus conferred is executive, not judicial, and that it was intended to be vested exclusively in the governor." Id., at 531, and after reviewing the history of the Governor's removal authority held that:
"Therefore, we do not examine into the merits [of the governor's exercise of his removal authority], for they do not concern the courts, inasmuch as both the power to decide whether Guden should be removed from the office of sheriff, and the responsibility for a right decision, rest solely upon the governor of the state. Id., at 536, 64 N.E. at 453.
Thus, the Governor argues that if the greater plenary power to remove an elected official is nonjusticiable, a fortiori, the power to supersede must necessarily also be non justiciable. Were this not so, a governor seeking to exercise his Constitutional mandate to faithfully execute the law would employ the draconian remedy of removal rather than superseder - a chaotic absurdity.
Similarly, in Nistal v. Hausauer, 308 N.Y. 146, 124 N.E.2d 94 (1954) cert. denied, 349 U.S. 962 (1955), the court held that the act of the governor as commander-in-chief of the New York Air National Guard, through his Chief of Staff, in shortening the term of enlistment and characterizing a military discharge as one without honor (due to fraudulent enlistment) was an executive act, purely discretionary and not subject to civil court review. The Court of Appeals answered the first certified question from the Appellate Division as to whether the petition should be dismissed for lack of subject matter jurisdiction in the affirmative.
Patently, the Governor maintains that where, as here, the Governor has exercised his authority to supersede pursuant to Executive Law, Section 63(2), the courts of this state have unanimously refused to review the exercise of gubernatorial discretion, no case in New York State ever having overturned any governor's superseder of a District Attorney.
In Mulroy, supra, the Appellate Division by Judge Witmer, dismissed a petition challenging Executive Order Nos. 42 and 42.1 issued by Governor Carey which directed the Attorney General to supersede the District Attorney of Onondaga County with respect to payments to obtain public office or contracts.
The court's review was limited to whether the executive order had a prima facie basis in the statute.
"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 (art IV. Section 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., 260 App. Div. 253, 258, supra). By the terms of the order, it appears that the Governor invoked his powers to order the investigation by reasons 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." Mulroy, 58 A.D.2d at 211, 212, 396 N.Y.S.2d at 931.
The court rejected the petitioner's contention that the Governor had to be more specific disclosing the information which led him to issue the executive order:
"Neither in the constitutional mandate to the governor nor in the act of the Legislature implementing it (Executive Law, Section 63, subd 2) has a standard been stated as a guide for action by the governor. In sustaining the action by the Governor in Matter of Di Brizzi (Proskauer) 303 NY 206, 216) the court said, 'Since there exists a reasonable relation between the action taken by the Governor, through the Attorney-General, and the proper discharge of the executive function, it cannot be said that subdivision, 3 of section 63 of the Executive Law, as here utilized and applied, is unconstitutional.' Id. at 213, 396 N.Y.S. 2d at 932.
In People v. Kramer (33 Misc. 209, 219, 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." Id., at 214, 396 N.Y.S. 2d at 933.
The Court concluded:
"No instance has been cited to this court in which over the history of the existence of this power a Governor has abused his authority in superseding a District Attorney. If such abuse is found to occur, the People and the Legislature are the ones to fashion a means of restricting the Governor's use of such power. On the record, the Court should not attempt to do so.
We conclude, therefore, that the Governor's Executive Orders No. 42 and 42.1 are legal and valid and not subject to attack by the petition herein." Id., at 215, 216, 396 N.Y.S. 2d, at 934.
Thus, the Appellate Division confined its review to whether the challenged gubernatorial action was based on an express grant of Constitutional and statutory authority and once having found that it was, decided that further inquiry was precluded due to nonjusticiability and ruled that it could not review the reasons for the issuance of the executive order.
The Court of Appeals affirmed that order of the Appellate Division for the reasons stated in the opinion of Mr. Justice G. Robert Witmer at the Appellate Division in Mulroy, supra. The sole ground of the Appellate Division's decision was the issue of nonjusticiability.
The additional language of the Court of Appeals' affirmance which expressed no view "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". Mulroy, at 821, 402 N.Y.S. 2d at 570, has been juxtaposed with Rapp, supra, to attack the unassailable principle of nonjusticiability of gubernatorial action when an express grant of Constitutional and statutory authority exists.
According to the Governor, the fundamental differences between Rapp, supra, and Saranac Land and Timber Company, supra, and its progeny are immediately apparent.
Rapp, supra, addressed an executive order which required a wide range of New York State employees within the executive branch, many of whom were not subject to removal by the Governor, to file multi-detailed personal financial disclosure statements with the Board of Public Disclosure and to abstain from various types of political and business activities.
The Supreme Court Albany County (Hughes, J.), 88 Misc. 2d 428. 396 N.Y.S.2d 573, held that, the inflexible proscriptions of the Executive Order were clearly at variance with the declaration of Legislative intent of setting forth general standards of conduct reasonably expected State officers and employees. Id., at 431. The Appellate Division, Third Department affirmed the decision of trial term for the reasons stated therein. 58 A.D.2d 918, 919.
The Court of Appeals recited the legislative history of Sections 73 and 74 of the Public Officers Law as follows:
"In Section 73 the Legislature enacted a blanket prohibition of conduct by State employees thought to be detrimental to State interests. The prohibited conduct and the employees to which each prohibition applies are carefully described. In addition, subdivision 6 of the statute mandates public disclosure of a circumscribed category of investments by certain State employees and officers. Thus, in section 73 the Legislature demonstrated its ability and readiness to proscribe specified transactions peculiarly vulnerable to conflicts of interest, transactions in 'definable areas on which there should be no disagreement' (Governor's Memorandum on Approval, 1954 Public Papers of Governor Thomas E. Dewey, pp. 304, 305).
Section 74 is a different type of statute designed to cover "areas where distinctions are close, and the difference between right and wrong not always easily ascertainable, [it] establish[es] broad standards of conduct, leading to advisory committees the process of developing a body of rules and precedents on the basis of continuing experience and trial and error." Id., at 164.
After circumscribing the issue and granting an affirmance the first words written by the court were:
"Neither in the Constitution nor in the statutes is there express or implied authority for the Governor to exact of State employees compliance with the requirements of Executive Order No. 10.1. Nor does the Governor's order merely implement existing legislation relating to conflicts of interest. The order reaches beyond that, and assumes the power of Legislature to set State policy in an area of concededly increasing public concern. Id., at 160,
Thus, the court's permissible initial inquiry found that there was no express statutory authority for the gubernatorial action and that Executive Order 10.1 actually nullified the legislative statutory scheme, holding that Sections 73 and 74 constituted the legislative policy in the area of conflict of interest and that implicit in the enactment of the code of ethics was a legislative determination that the existence of conflicts in those areas not specifically specified in Section 73 were to be determined on a case-by-case basis, rather than the use of blanket prohibition. Id., at 164, 165, 404 N.Y.S.2d, at 569.
Having so found the absence of an express statutory grant of authority, judicial review could then properly proceed.
The Governor asserts that in order for Rapp, supra, to be controlling in the proceedings at bar, Executive Law, Section 63(2) would have to be unceremoniously drummed out of existence. However, the existence of the express statutory grant of authority bestowed on the Governor pursuant to Section 63(2) renders Rapp, supra, conclusively inapposite to the proceedings at bar and renders the instant controversy nonjusticiable.
Even if the express statutory grant of Executive Law, Section 63(2) were ignored and a Rapp analysis were performed, the petitioners' challenge to Executive Order No. 27 would still lack merit for "It is only when the executive acts inconsistently with the Legislature, or usurps its prerogatives, that the doctrine of separation is violated". Clark v. Cuomo, 66 N.Y.2d at 189, 495 N.Y.S. 2d at 939, 486 N.E.2d at 797.
According to the Governor, the common thread binding Rapp and similar cases relied on by the petitioners is an executive order characterized by a comprehensive set of regulations adopting detailed regulations that transgressed existing legislation and actually nullified the existing legislation.
Bourguin v. Cuomo, 85 N.Y. 2d 781. 682 N.E. 2d 171. 628 N.Y.S. 2d 618. crystallized the distinction between executive discretion and the usurpation of legislative function.
In Bourguin, the Court of Appeals addressed an executive order that had created the Citizens Utility Board ("CUB"). The Legislature had considered but refused to adopt legislation that would have created just such an agency. Rejecting an argument that the order was at odds with legislative policy, the Court of Appeals stated:
"Executive Order 141, like the order at issue in Clark, does not formulate a specific policy with respect to utility companies or their residential customers. It does not, for example, instruct the CUB to press for lower utility rates or to seek greater disclosure of the financial status of utility companies. Unlike the detailed and comprehensive Executive Orders and administrative regulations that the court has struck down in the past (see, Matter of Brodrick v. Lindsay, 39 N.Y. 2d 641, 385 N.Y.S. 2d 265, 350 N.E.2d 595 [affirmative action program for New York City contracts]; Rapp v. Carey, 44 N.Y.2d 157, 404 N.Y.S.2d 565, 375 N.E.2d 745 [financial disclosure requirements for State employees]; Under 21. Catholic Home Bureau for Dependent Children v. City of New York, 65 N.Y.2d 344, 492 N.Y.S.2d 522, 482 N.E.2d 1 [order prohibiting employment discrimination by city contractors on basis of sexual orientation]; Boreali v. Axelrod, 71 N.Y.2d 1, 523 N.Y.S. 2d 464, 517 N.E.2d 1350 [anti smoking regulations in public establishments], Executive Order No. 141 has no substantive content beyond that of creating the CUB itself..." 85 N.Y.2d at 787, 652 N.E.2d at 174, 628 N.Y.S.2d at 621.
Here it is argued, that Executive Order No. 27 does not adopt a set of comprehensive regulations requiring the district attorney either to seek or not to seek the death penalty. The executive order directs the Attorney General to supersede the District Attorney in one case and even as to that limited case, it does not direct the Attorney General to seek the death penalty nor require him to employ any particular method to decide whether to do so. There is nothing in the order that nullifies the provisions of the death penalty statute or that renders the Governor's action an improper invasion of the legislative sphere.
Nor does In re Di Brizzi, supra, avail the petitioner's cause, asserts the Governor. In that case, the Court of Appeals rejected an attack on an executive order that directed the Attorney General to appoint a New York State Crime Commission. In stark contrast to the proceedings at bar there was "no statutory authorization in DiBrizzi for the creation of a 'New York State Crime Commission' as such." Id., at 214, 101 N.E.2d at 467. The majority, over a vigorous dissent, found statutory authority by giving an expansive reading to Executive Law, Section 62(8), which authorized inquiries into matters "concerning the public peace, public safety and public justice." Id., at 214, 101 N.E.2d at 467. It then considered whether the Legislature could constitutionally grant authority to conduct an investigation of this type and found that such a grant of authority could reasonably be said "to be for the purpose of securing information to aid [the Governor] in his executive function" and therefore had a reasonable relation to the discharge of the executive function. Id., at 215-16, 101 N.E.2d at 468.
By contrast, the Governor contends that Executive Order No. 27 falls squarely within the statutory grant of superseder authority and petitioners have not raised a constitutional challenge to the superseder stature. In fact, both the cases and commentators have concluded that the superseder statute is reasonably related to the Article IV, Section 3 executive function to take care that the laws are faithfully executed. See, In re Turecamo Contracting Co., 260 A.D. at 728, 21 N.Y.S.2d at 275; Pitler, at 517, 532. The Governor claims that nothing in Di Brizzi, nor in any other cited case, authorizes a court to go beyond the statute and evaluate the reason for the exercise of superseder authority.
The Governor contends that the rule of nonjusticiability in the aforecited cases is firmly esconced in the doctrine of Separation of Powers. The Governor proclaims the following:
In Marbury v. Madison, supra, Justice Marshall wrote:
"The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by constitution and laws, submitted to the executive, can never be made in this court." Id., at 170.
This sacred principle of jurisprudence has been meticulously preserved by the United States Supreme Court ever since.
One hundred and ninety years later, in 1993 the United States Supreme Court in Nixon v. The United States of America, 506 U. S. 224, reaffirmed the nature of a nonjusticiable controversy involving a political question where there is "a textually demonstrable constitutional commitment of the issue to a coordinate political department..." (quoting Baker v. Carr, 369 U.S. 186, at 217 [1962].
New York courts have likewise scrupulously rendered the doctrine of Separation of Powers, its indispensable homage:
"[i]t is a fundamental principle of the organic law that each department of government should be free from interference, in the lawful discharge of duties expressly conferred, by either of the branches.... With respect to the arbitration of powers within our system of government, it has been said that no concept has 'been more universally received and cherished as a vital principle of freedom.' n) New York State Inspection, Sec. and Law Enforcement Employees v. Cuomo, 64 N.Y.2d 233, 239, 485 N.Y.S.2d 719, 722, 375 N.E. 2d 90, 93 (1984).
Saxton v. Carey, 44 N.Y.2d 545, 378 N.E.2d 95, 406 N.Y.S.2d 732 (1978), involved a constitutional challenge that the state budget was not sufficiently itemized as required by Article VII, Sections 1-7 of the New York State Constitution. Although the court agreed with the plaintiffs" contention that "It is the responsibility of this court to apply and enforce the will of the people as expressed in our Constitution," nevertheless the court held that it was not "a proper function of the courts to police the degree of itemization necessary in the State budget." Id., N.Y.2d at 548-49, 378 N.E. 2d at 97, 406 N.Y.S.2d at 734. The Court stressed, "[i]t is a fundamental principle of the organic law that each department should be free from interference, in the discharge of its peculiar duties, by either of the others." Id., at 549, 378 N.E.2d, at 97-98, 406 N.Y.S.2d, at 734 (1978) (quoting People ex rel. Burby v. Howland, 155 N.Y. 270, 282), observing that responsibility over the budget process is a duty committed to the other branches of government "the creation and enactment of the State budget is a matter delegated essentially to the Governor and the Legislature." Id., at 549.
According to the Governor, a critical factor in the court's decision was the lack of any standard by which the courts could determine whether the State budget was properly itemized:
"The Constitution ... does not prescribe any particular degree of itemization. As then Judge Breitel correctly stated ... '{t]here is a constitutional mandate to itemize. There is not constitutional definition of itemization. There is no judicial definition of itemization and no inflexible definition is possible." Id. at 549-50, 378 N.E.2d at 98, 406 N.Y.S.2d at 734 (quoting Hidley v. Rockefeller 28 N.Y.2d 439, 444, 271 N.E.2d 530, 533, 322 N.Y.S.2d 687, 691 (1971) (Breitel, J. dissenting).
The lack of a discernible standard dominates the analysis of the doctrine of Separation of Powers in the instant proceedings.
The New York State Constitution commits to the Governor (without any limitation) the duty to "take care that the laws are faithfully executed" and, fully cognizant of that duty, the Legislature has conferred the broadest authority on the Governor to supersede a District Attorney "Whenever required by the governor.8
Of all the words and phrases that could have been utilized to grant the governor the power to supersede a district attorney, the Legislature purposely worded the statute to clothe the Governor with the broadest imaginable authority by demonstrably excluding any semblance of a discernible standard.
Indeed, the Governor claims that the absence of any discernible standard was expressly cited by Judge Witmer in Mulroy, supra, as a basis for rejecting judicial review of the exercise of superseder authority.
The Court's decision in Jiggetts v. Grinker, 75 N.Y.2d 411, 553 N.E.2d 570, 554 N.Y.S.2d 92 (1990), is also illuminating asserts the Governor. Addressing whether a provision of the Social Service Law obligated the State Commissioner of Social Services to establish adequate shelter allowances for certain recipients of public assistance, the Court left no doubt that if the Legislature had intended to confer discretionary authority on the Commissioner the matter would be nonjusticiable:
"If the Legislature left the matter to the judgment of the Commissioner, then the issue is beyond review for the courts may not substitute judicial oversight for the discretionary management of the public's business by public officers."
Id., at 415-17, 553 N.E.2d at 572-73, 554 N.Y.S.2d at 94-95. See also, People ex rel. Broderick v. Morton, 156 N.Y. 136, 141, SO N.E. 791, (1898) ("the courts have no right nor power to interfere with the governor upon questions involving his judgment and discretion...") and Schulz v. Silver, 212 A.D.2d 293, 629 N.Y.S.2d (3rd Dept. 1995) (A matter is beyond judicial review when the New York State Constitution leaves the matter in question to the Legislature.)
Finally, the Governor posits that to permit the Judiciary to review challenges to a Governor's exercise of his superseder authority brought by a District Attorney or by anyone on his behalf would be to transfer in part to the Judiciary and officials below the rank of Chief Executive, the Governor's constitutional duty to "take care that the laws are faithfully executed." See, People v. Kramer, supra, ("By section 4, article IV of the Constitution, it is enjoined upon the Governor of the State to see that the laws are faithfully executed..."). Id., at 219.
As the United States Supreme Court has stated:
"To permit Congress to convert the undifferentiated public interest in executive officers' compliance with the law into an 'individual right' conceivable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to 'take care that the Laws be faithfully executed,' Art. 11 Section 3. It would enable the courts, with the permission of Congress, 'to assume a position of authority over the governmental acts of another and co-equal department...'"
Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992) (quoting Massachusetts v. Mellon, 262 U.S. 447, 489 [1923]). See also, Allen v. Wright, 468 U.S. 737, 761 (1984).
Further, the Governor maintains that even assuming arguendo, that petitioners' claims permit judicial review, the claims are nevertheless meritless. The New York superseder cases set forth no judicial review standards and as courts have discussed in Saxton, supra, and Mulroy, supra, the very absence of a discernable standard is a critical factor. Professor Pitler has explained, "traditional principles of judicial review would seem to preclude a challenge to the Governor's order requiring superseded unless there is no basis (emphasis the Governor) for his conclusion." Pitler, supra, at 532. Case law dealing with abuse of discretion in discretionary judicial and administrative actions establishes a "rational basis" standard as opposed to capricious and arbitrary action, See, Pell v. Bd. of Educ., 34 N.Y.2d 222, 230-231, 313 N.E. 2d 321, 325, 356 N.Y.S.2d 833, 838 (1974); Woodlawn Veterans Mutual Housing Co. v. N.Y.S. Division of Housing and Community Renewal, 159 Misc.2d 639 (Sup. Ct. Bronx Co., 1993), and it is well settled law that a court may not substitute its judgment for an administrative agency's determination rooted in a rational basis, even if the court would have reached a contrary conclusion.
The Governor continues his argument:
In rebuffing the relator's argument challenging the creation of the Extraordinary Special and Trial Part in Saranac Land and Timber Company, supra, recall Judge Cardozzo's all-encompassing instructive language which merits repeating here:
"He may act whenever in his opinion the public interest so requires." 220 N.Y. at 490, 116 N.E. at 384, and again,
"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." (citations omitted.) id at 49.
Assuming arguendo, that judicial review into the merits is permissible, there exists a wealth of evidence on which to posit a finding that a rational basis existed for the issuance of Executive Order No. 27 asserts the Governor.
Recall that the first day after the Legislature adopted Chapter 1 of the Laws of 1995 restoring the death penalty as a sentencing option in specified circumstances involving intentional murder, the Bronx District Attorney issued a press release to announce his policy regarding the death sentence option, stating "it is my present intention not to utilize the death penalty provisions" of the statute and, in furtherance of that policy Petitioner Bronx District Attorney has never sought the death penalty in any first degree murder prosecution in Bronx County. Moreover, the Bronx District Attorney's position first announced in March, 1995 remains consistent and unchanged as of March, 1996, after the murder of Police Officer Kevin Gillespie. The Bronx District Attorney has, furthermore, failed to assure the Governor that he would ever consider seeking the death penalty by an informed, reasoned case-by-case assessment. Moreover, were the Governor to wait until the expiration of the one hundred twenty (120 day) limitation period, the death penalty sentencing option would be irrevocably forfeited.
A word of caution must be interjected here. This court does not pass judgment on the moral policy of either the Governor or the Bronx District Attorney, two outstanding dedicated public officials possessing the highest degree of integrity, honesty and ability. The court has recited the pronouncements of the Bronx District Attorney regarding his opposition to the death penalty to demonstrate the rational basis of the Governor's actions as claimed by the Governor.
The issue, then, is not whether the Bronx District Attorney in fact harbors a policy of opposition to the death penalty sentencing option, but whether the surrounding facts and circumstances rationally trigger the Governor's judgment to act in the public interest because in his sole discretion, he doubts that the Murder One Statute Provisions will be faithfully executed.
The Bronx District Attorney's argument that the MURDER ONE STATUTE does not, as the Governor suggests, require an informed, reasoned, case-by-case assessment likewise cannot impugn the claimed rational basis of the Governor's actions.
According to the Governor, his judgment that the proper administration of the death penalty statute calls for an informed, reasoned, case-by-case evaluation of whether to seek the death penalty is supported by the statutory language, the legislative history and accepted prosecutorial discretion.
Firstly, in the only reference to the standards governing a prosecutor's discretion to seek the death penalty, the MURDER ONE STATUTE provides: "nothing in this section shall be deemed to preclude the people at any time from determining that the death penalty shall not be sought in a particular case ...." N.Y. Crim. Proc. Law Section 400.27(1) (McKinney 1995) (emphasis added). See also, New York State Assembly, 1995 Committee Bill Memorandum, at 4 (March 6, 1995) ("A prosecution may determine at any time that the death penalty will not be sought in a particular case.") (emphasis added). This statutory language fairly implies the Legislature's understanding that a prosecutor will exercise his or her discretion in bringing charges, as has historically been the case, and to do so on a case-by-case basis. The statutory grant of a 120 day period in which the district attorney can decide whether to seek the death penalty also reflects the legislative assumption that the decision on that issue will be based on a careful evaluation of the facts of the particular case.
Secondly, the legislative history repeatedly states that the deterrent value of the death penalty is a major impetus behind the adoption of this bill. See, e.g., Governor's Memorandum at l. ("The citizens of New York are convinced the death penalty will deter these vicious crimes and I, as their Governor, agree."); N.Y. Assem Rec. A. 4843, at 77 ("[I]f threats of punishment, which are the essence of prescriptive deterrence, work, then the threat of death must be the greatest deterrent of all.") (Comments of Assemblyman Vitaliano). The legislative goal of deterrence then requires a case-by-case evaluation with the attending threat that the death penalty remains a viable option. Thus, the Governor maintains that the Bronx District Attorney's stated policy or intention not to seek the death penalty in Bronx County completely eviscerates any deterrent value to the death penalty in that county.
In addition, the Governor's Memorandum accompanying the enactment of the death penalty statute necessarily implies a case-by-case evaluation of whether to seek the death penalty. The Governor states that "[u]nder this legislation, those who murder a police officer, a probation, parole, court or corrections officer, a witness or member of a witness' family can face the death penalty." See, Governor's Memorandum at 1. The Governor claims that the Bronx District Attorney's policy and stated intention not to seek the death sentence contravenes this policy in that no one in Bronx County "can" face the death penalty, regardless of the facts and circumstances.
Finally, the Governor claims that requiring a case-by-case evaluation of whether to seek the death penalty comports with well accepted principles of prosecutorial discretion recognized by the highest court in our land. Justice White, in a concurring opinion in Gregg v. Georgia, 428 U.S. 153 (176) wrote:
"unless prosecutors are incompetent in their judgments the standards by which they decide whether to charge a capital felony will be the same as those by which the fury will decide the questions of guilt and sentence. Thus defendants will escape the death penalty through prosecutorial charging decisions only because the offense is not sufficiently serious; or because the proof is insufficiently strong."Gregg v. Georgia, 428 U.S. 153 255
According to the Governor, the Bronx District Attorney has refused to assure the Governor that he will properly discharge his duties by considering the death penalty option on an individual case-by-case basis. Accordingly, it is argued, the Governor's superseder order was warranted to insure that the Murder One Statute is properly administered in Bronx County.
The Governor further maintains that the Petitioners' position on the alternative ground for the Governor's order -- the threat that a blanket policy could pose to death sentences on proportionality grounds -- likewise does not detract from the rational basis of the Governor's actions. The Murder One Statute imposes an obligation on the Court of Appeals to assess "whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases considering both the crime and the defendant." See, N.Y. Crim. Proc. Law Section 470.30(3) (b) (McKinney 1996).
According to the Governor, the proportionality review contemplated in this statute is typical of the provisions found in numerous states' capital sentencing statutes and is designed to safeguard against the arbitrary and inconsistent imposition of the death penalty. In effect, proportionality review inquires whether the death penalty is unacceptable in a particular case because it is disproportionate to the punishment inflicted on others for the same crime. See, Pulley v. Harris, 465 U.S. 37, 50 (1984) (although constitutionally required, proportionality review is considered to be an additional safeguard against death sentences arbitrarily imposed in violation of the Eighth Amendment of the United States Constitution).
Due to the recent enactment of the MURDER ONE STATUTE it is uncertain exactly how the Court of Appeals will determine its proportionality reviews. Quite possibly, the first eligible cases for the death penalty may play an influential role in the initial proportionality reviews. Accordingly, the Governor's Executive Order No. 27 was unarguably a rational response to a difficult problem shrouded in uncertainty.
Additionally, the Governor points out that the Bronx District Attorney concedes that the Governor's proportionality concern "appears to be legitimate reason for superseder". (See, Bronx D.A.'s Mem. at 14). However, the Bronx District Attorney incorrectly implies, argues the Governor, that the proportionality :review is only concerned with issues of race. (See, Bronx D.A.'s Mem. at 15; D.A.'s Opp. Mem. at 26 n.11.) Admittedly, ensuring proportional treatment across racial lines is one valid objective of the proportionality provision. However, it is by no means, the sole consideration. (emphasis by Governor)
Finally, the Governor points out that it bears noting that the Bronx District Attorney concedes that Executive Law Section 63-d was not intended to and did not repeal Executive Law Section 63(2). Yet, the Bronx District Attorney argues repeal by implication by contending that only a District Attorney may prosecute the case.
The Governor maintains that Section 63-d simply provides a mechanism for a district attorney to request assistance from the attorney general in cases where this assistance is necessary to maintain a just balance of resources between the People and a defendant in a death penalty case. See D.A.'s Op. Mem, at 43-44 (citing N.Y. Assem. Rec. A. 4843 at 74-75 ("The death penalty bill before us will . . . ensure competent representation of all defendants, with assistance for county District Attorneys to ensure that a death penalty proceeding will not bankrupt them and their local governments" (emphasis in D.A.'s Opp. Mem.).
The Governor also submits that there was no First Amendment rights violated because the superseder was not due to the Bronx DA's speech but his espousal of policy concerning the death penalty sentencing option. The Governor asserts that this is a case where the Bronx District Attorney has not only voiced his moral opposition to the death penalty, but he has used his position as a District Attorney to unilaterally determine that the death penalty will not be utilized in the Bronx. This conduct the Governor argues, is afforded no First Amendment protection.
Attorney General
Like the Governor, the Attorney General contends that the Bronx District Attorney is not entitled to judicial review of the Governor's exercise of his authority to require the Attorney General to prosecute a criminal case. According to the Attorney General, the Governor has an unreviewable authority to substitute the Attorney General for the Bronx District Attorney in a criminal matter.
The Attorney General submits that the Governor's authority under Executive Law Section 63 (2) is clearly embedded in our jurisprudence and the Governor's exercise of his authority cannot be overruled as argued by the Bronx District Attorney. The Attorney General contends that the Bronx District Attorney is not entitled to the relief requested because he has not been deprived of any cognizable right, privilege or authority which requires judicial intervention or "remedy".
In Mulroy, supra the Attorney General assert, that the Court of Appeals rejected virtually the same argument proposed by the Bronx District Attorney in the instant proceeding. According to the Attorney General, Judge Witmer's opinion in Mulroy recognized that well established principles of separation of powers preclude judicial review of decisions by the Governor to invoke section 63(2) of the Executive Law. These and other peculiarly Executive type decisions - which the Constitution places in the hands of the Governor are not subject to judicial review. Citing Matter of Nistal v. Hausauer, 308 N.Y. 147, 154-55 (1954); Matter of Cranford Material Corp, 174 Misc. 154 (Kings Co. 4940), aff'd sub nom, Matter of Tureamo Contr. Co. 260 App. Div. 253 (2nd Dept. 1940)
The Attorney General points out that the Bronx District Attorney has not been removed from office or suspended from the exercise of all the responsibilities or powers of his office, nor does he argue that he has. Unlike removal of a District Attorney by the Governor, a superseder does not require that charges be filed against the District Attorney. The executive order superseded him in a limited area of prosecution and leaves him with all other investigatory and prosecutorial functions.
The Attorney General, in his memorandum, discusses the evolution of the district attorney's office from the position of assistant attorney general and how it relates back to the laws, enacted in 1796 under Governor Jay.
Further, the Attorney General points to a long list of instances where a Governor utilized Executive Law, Section 63(2). i.e. Executive Order No. 89, January 16, 1987 - death of Michael Griffith in Howard Beach, Queens; Executive Order No. 106, January 26, 1988-; an incident involving Tawana Brawley - Executive Order No. 110, January 27, 1988, certain proceedings involving Bronx District Attorney Paul Gentile.
The Attorney General asserts that the paucity of case law reviewing the Governor's exercise of his authority under section 63(2) suggests instead, as Judge Witmer remarked, the fears of its misuse and the need for judicial review suggested here by the Bronx District Attorney is vastly overstated and moreover, that many potential challengers have, upon further review, concluded correctly that the Governor's exercise of his authority is unreviewable. (Governor Rockefeller's Exec. Orders 55-59 Sept. 1972 - See e.g., L. Fosburgh, Governor Seeks Hogan's Support for Prosecutor, New York Times, September 22, 1972 at 1 col 1 and 33 colt 4.)
The Attorney General points out that it is particularity ironic that the Bronx District Attorney, who argues that he is not required to make an "informed, reasoned decision on a case by case basis" as to whether or not to seek the death penalty given that the operative statute does not include provisions as it might have to require the District Attorneys to engage in any particular process, nonetheless asks the Court to read into a 200 year old statute a new requirement that the Governor provide an objective reason for substituting the Attorney General for the Bronx District Attorney grounded on the failure of the District Attorney to faithfully discharge the duties of office. The Attorney General points to Judge Witmer's opinion in Mulroy, supra, for the cogent response to the Governor's right to supersede a District Attorney. The court has not expounded on the contentions and arguments made by the Attorney General on several of these points because the issues were discussed and presented in the Governor's contentions, supra.
However, the Attorney General did argue several other points which were also argued by the Bronx District Attorney and Bronx Voters. One of these issues was that the amendment to the Executive Law in the MURDER ONE STATUTE that purportedly limited the Governor's authority under Executive Law Section 63(2).
According to the Attorney General, it is readily apparent that section 63-d was enacted as one of several provisions by which the legislature, recognizing the likely extent of litigation over the imposition of the death penalty and its costs, provided means by which both the People and the defendant could meet their respective responsibilities completely and professionally, thus ensuring that the statute can be applied in a constitutional manner (See, Judiciary Law Section 35-b; County Law Section 707; Executive Law Section 837-1).
The Attorney General contends that nothing in either the statute, as enacted, or in its legislative history suggest that in providing authority for a District Attorney to obtain the assistance of the Attorney General, the Legislature in any way intended to limit the Attorney General's prosecutorial authority or to limit the authority of the Governor to require the Attorney General to take over primary responsibility for any prosecution. Section 63-d, it is argued, simply provides a statutory mechanism for a district attorney to seek the assistance of the Attorney General under certain circumstances.
The Attorney General contends that the First Amendment is not involved where there has been no adverse impact on petitioner's employment. (See, Pickering v. Board of Education, 391 U.S. 563, 568 [1968]). Furthermore, the Attorney General contends that the Bronx District Attorney concedes that he was speaking in his official capacity as the District Attorney when he voiced his "present intention not to utilize the death penalty provisions". Therefore, the Bronx District Attorney statements are not entitled to First Amendment protection. (See, e.g. Thomson v. Sheid, 917 F.2d 1017, 1020 [6th Cir. 1992] cert. denied, 113 S. Ct. 2341 [1993] Koch v. City of Hutchinson, 847 F. 2d 1436, 1447 [10th Cir] cert. denied, 488 U.S. 909 [1988]).
Analysis and Determination
Before addressing the several issues submitted for determination, the court commends the parties for the outstanding, superb and professional manner in which the parties presented written and oral arguments. The court has been impressed by the persuasiveness of the arguments on both sides which has made the decision making process much more difficult. The court appreciates the effort and high quality work product presented.
Standing To Challenge The Superseder Order
Do the Bronx District Attorney and Bronx Voters have standing to challenge the Governor's Executive Order No. 27, superseding the Bronx District Attorney in a criminal prosecution under the Murder One Statute? The court determines that both the Bronx District Attorney and the Bronx Voters have standing to challenge the Governor's Executive Order No. 27. The Bronx District Attorney, who was superseded by Executive Order No. 27, clearly has standing to challenge the aforesaid order. The Bronx Voters also have standing to seek relief against an Executive Order superseding a local district attorney under a legislative enactment. The fact that petitioners have standing is not determinative of whether the Governor's act is nonjusticiable or justiciable.
First Amendment Violation
In their arguments, petitioners attempt to utilize the right of free speech infringement by means of the superseder by the Governor. The petitioners argue that the Governor by his executive order imposes a "chilling effect" on the right of free speech of the Bronx District Attorney who appears to be the only outspoken district attorney to express his concern publicly about the MURDER ONE STATUTE. This court does not find on this record a violation of his First Amendment rights.
Zone of Independence
One of the arguments made by the Bronx District Attorney concerns the district attorney's zone of independence. Without elaborating on this argument, the court has attempted, through the litigants arguments, to show the evolution of the district attorney's office from the attorney general's office. Pitler, supra; People v. Kramer, supra. It is apparent that the district attorney's office is part of the Executive branch of government and although a separate elected official he is still subject to the authority of the Governor. The court concludes that a "zone of independence" claim is insufficient to negate the Governor's authority under Executive Law Section 63 (2) and Article IV, Section 3 of the State Constitution.
Executive Law 663-d Limitation
Petitioners urge the court to find a limitation on the Governor's authority under Section 63(2) by the later legislative enactment of Section 63-d. Section 63-d of the Executive Law provides for the assistance of the Attorney General when requested by a district attorney from the Governor. This court finds no repeal by implication in the enactment of Executive Law, Section 63-d. (See, Mann Jude Landau v. Hynes, 49 N.Y.2d 128, 135-36 (1979).
Proportionality
Though the Bronx District Attorney appears to concede the Governor's proportionality concern as a legitimate reason for the superseder, he fails to provide a persuasive reason why the court should simply cast aside the Governor's legitimate justification. The Murder One Statute is clear that the proportionality review will occur in all cases "[w]henever a sentence of death is imposed" regardless of whether racial considerations are implicated. N.Y. Criminal Procedure Law Section 470.30(2).
The Governor is not seeking to insulate the Murder One Statute against future proportionality attacks. The proportionality provision at issue provides for appellate review of individual death sentences, and is not concerned in reviewing the underlying constitutional validity of the statute. Under the Murder One Statute, the Court of Appeals will review individual death sentences for proportionality and Executive Order 27 appears to be concerned with protecting the integrity of appellate review.
Justiciability -Whether the instant Case is Subject to Judicial Review
This court is called upon to decide whether the action taken by the Governor is subject to judicial review under the doctrine of separation of powers. Specifically, the Governor asserts that the issuance of Executive Order No. 27 is a discretionary function of the Governor not to be scrutinized by the judiciary and immune from judicial interference. As applied to the instant case, the Governor urges that the separation of powers doctrine requires the courts to decline review of any executive order which directs the Attorney General to assume the prosecution of a crime within the state. As stated supra, the conferred legislative authority bestowed upon the Governor by Executive Law, Section 63(2) is plain and unambiguous and should be interpreted solely in accordance with its plain meaning.
As a threshold question, this court recognizes the well settled rule that executive action made by a Governor pursuant to a valid grant of authority is nonjusticiable Nistal, supra; Saranac Land and Timber Company/ supra; Mulroy, supra; Berger v. Carey; supra. Applying this proposition to the instant case, the Governor argues that this court's review is limited to a determination of whether the Legislature and Constitution have bestowed superseder authority and the accompanying discretion to act upon it. Since the sweeping language of Executive Law, Section 63(2) has consistently been found to confer superseder authority on the Governor, he argues that this court's inquiry can go no further. The Governor's position on the facts and circumstances herein is correct.
As a general rule, the courts will not interfere with the governor of a state in the exercise of discretionary administrative functions (See, Baker v. Carr, 369 U.S. 186; Jones v. Beame, 45 N.Y.2d 402.) This judicial restraint is made toward the preservation of the separation of power among the three branches of government. See, Youngstown Co. v. Sawyer, 343 U.S. 579; New York State Inspection, Sec and Law Enforcement Employees v. Cuomo, 64 N.Y.2d 233. However, it is the duty of courts to exercise jurisdiction where it is alleged that executive action has become legislative rather than administrative Rapp, supra. In performing this duty, the court must determine whether the challenged action of an Executive is made pursuant to a valid grant of authority. When an Executive acts inconsistent with the Legislature or in excess of conferred authority, the balance of power between the Executive and the Legislature is violated and the Judiciary must intercede.
As in Saranac Land and Timber Company, supra, the Governor is not directing the outcome of whether the death penalty will be invoked. He is designating the Attorney General to supersede the Bronx District Attorney in the prosecution of those persons alleged to be responsible for the murder of Police Office Gillespie.
Executive Order No 27 likewise neither directs nor attempts to direct the outcome of the criminal prosecution. It contains no prescription compelling the Attorney General to seek the death penalty pursuant to the Murder One Statute. It recites the circumstances which, in the Governor's judgment, persuade him to supersede the Bronx District Attorney so that the Murder One Statute will be faithfully executed. What the Attorney General will do pursuant to the direction contained in Executive Order No. 27 remains to be seen and at this point in time, the subject of rampant speculation.
This court recognizes the Governor's authority to supersede the Bronx District Attorney is expressly provided by Executive Law, Section 63 (2). On its face, the statute empowers the Governor to supersede a district attorney in a criminal case such as the underlying matter. The Governor posits that in the absence of limiting language concerning this authority, it impliedly confers unfettered discretion to supersede a district attorney without need for reason or justification. While acknowledging that the power to supersede a district attorney rests solely with the Governor, the court does not accept the contention that the superseder authority of the Governor allows for unfettered discretion in the exercise of that power. Mulroy, supra; Rapp, supra; Boreali, supra.
As mentioned herein, the absence of a discernible standard was expressly cited by Judge Witmer in Mulroy as a basis for rejecting judicial review of the exercise of superseder authority. Mulroy, 58 A.D.2d at 212, 396 N.Y.S.2d 932-33. Accordingly, the same fundamental principle of the organic law "requires that the Governor be free from interference" from the judiciary in the instant proceedings.
In the performance of judicial review, it is not for the court to decide on the wisdom or necessity of the Governor's superseder of the Bronx District Attorney. Nor will the court pass judgment on the appropriateness of the Governors's motives in superseding the Bronx District Attorney.
As Professor Pitler pointed out in his law review article supra, a Governor's superseder order could not be challenged unless there was no basis for such an order. Even assuming the court can judicially review the superseder order, what standard of review would be applicable, rational basis or arbitrary and capricious. The court's review of abuse of discretion cases establishes a rational basis standard (See Pell supra). In addition, the court is mindful of the well settled law that a court may not substitute its judgment for an administrative agency's determination founded on a rational basis, even if the court would have reached a contrary result.
Thus, in the proceedings at bar, it is improper, to argue that there is not ample basis for the Governor's issuance of Executive Order No 27. Suffice it to say, the court has outlined the various statements, letters and actions of the Bronx District Attorney and the Governor.
One further argument deserves mention. It has been proposed that the Governor cannot supersede the Bronx District Attorney because the MURDER ONE STATUTE permits the Bronx District Attorney to exercise his discretion in seeking the death penalty sentencing caption. The argument then concludes that since the Bronx District Attorney always has discretion, superseder is improper because there is no occasion for the Bronx District Attorney not to execute the Murder One Statute, faithfully.
The argument must fall because as has been demonstrated the Governor's actions in superseding the Bronx District Attorney are nonjusticiable and thus beyond the review of the courts. Secondly, even if the court concludes that the Governor's actions were reviewable, the rational basis inquiry defeats this argument since, under the attendant facts and circumstances hereinabove set forth, the Governor had genuine doubt that the death penalty sentencing option would be employed, a policy which would belie the faithful execution of the Murder One Statute and trigger the Governor's constitutional obligation to "take care that the laws are faithfully executed." (New York State Constitution Art. IV Sec.3) It matters not whether the death penalty option was actually exercised. What matters is that the Bronx District Attorney fairly consider the options presented in the Murder One Statute and conduct a reasoned evaluation based on the facts of the particular case to apply the statute faithfully, thereby fulfilling the expressed will of the People of the State of New York and their democratically elected representatives.
Accordingly, petitioners Bronx District Attorney and Bronx Voters application for mandamus, a writ of prohibition and injunctive relief is denied. The petitioners request for a declaration that Executive Order No. 27 is unconstitutional is likewise denied.
Respondents Governor and Attorney General's motion and crossmotion to dismiss the petitions is granted. The court holds that the challenge to the Governor's action superseding the Bronx District Attorney is nonjusticiable. Any and all other requests, or relief are denied.
The foregoing shall constitute the decision, order and judgment of the court.
