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Where's the Evidence for the Premise of Judiciary Law §183-a,
relied upon by New York courts in upholding its
constitutionality?
JUDICIARY
LAW §183-a:
"Compensation of certain district
attorneys"
What are its
premises? --
Let's look at court decisions in cases where its constitutionality
was challenged -- and upheld
New York Court of Appeals in
Kelly v. McGee, 57 N.Y.2d 522 (1982)
-- combination of three appeals:
Joseph
W. Kelley, as District Attorney of Clinton County v. Roy McGee, as
County Treasurer of Clinton County, et al.
John R. King, as
District Attorney of Dutchess County v. M. Philip Amodeo, as
Commissioner of Finance of Dutchess County, et al.
James R.
Harvey, as District Attorney of Ontario County v. Francis Finnick,
as Ontario County Treasurer, et al.
"...the office of
District Attorney, having as its responsibility the enforcement, on
a local level, of the penal laws of this State and the
representation of the people of this State in criminal matters
arising within the county, is a matter of concern to the State ... As the Appellate Division noted in
Matter of Harvey v Finnick
(88
A.D.2d 40, 43), the purpose
of section 183-a is 'to maintain the security and independence of
District Attorneys, and to assure that persons of high standing and
integrity remain in their position. The Legislature recognized that
it was not equitable to require full-time District Attorneys to
forego private practice while at the same time having their salaries
frozen at inadequate levels. By providing minimum salaries
equivalent to Judges of the County Court, the office of District
Attorney would attract the best available attorneys, and diminish
the exodus of District Attorneys to the County Court Bench'
(citations omitted). These objectives behind the statute demonstrate
the strength of the State's interest in maintaining the salaries of
District Attorneys at an acceptable level."
UPHELD Appellate Division, 4th Dept:
Harvey v. Finnick, 88 AD2d 40 (1982) --
"The legislative history of section 183-a of the Judiciary Law lends
ample support to its reasonableness. It was promulgated to remove
the salary differential of the District Attorney from local
political considerations, to maintain the security and independence
of District Attorneys, and to assure that persons of high standing
and integrity remain in their position (Governor's bill jacket, L
1972, ch 946, pp 8-9). The Legislature recognized that it was not
equitable to require full-time District Attorneys to forego private
practice while at the same time having their salaries frozen at
inadequate levels (Governor's bill jacket, at p 10). By providing
minimum salaries equivalent to Judges of the County Court, the
office of District Attorney would attract the best available
attorneys (Governor's bill jacket, at p 22), and diminish the exodus
of District Attorneys to the County Court Bench. Section 183-a
directly promotes this interest in an equitable and reasonable
manner. In our view, the legislation passes the reasonableness test,
and the court may not substitute its judgment for the method chosen
by the Legislature (Hotel Dorset
Co. v Trust for Cultural Resources of City of N. Y.,
46 N.Y.2d 358,
370).
No one
disputes that the State has a significant interest in maintaining
the integrity and effectiveness of District Attorneys. The
compensation requirement in section 183-a is reasonably connected to
the State's interest in maintaining competent District Attorneys,
and, therefore, the constitutional challenge must fail."
Has Judiciary
Law 183-a been successful in doing this?
"to maintain
the...independence of District Attorneys" -- premise that
if D.A. salary is not dependent on county government for its salary,
the D.A.s can more freely investigate allegations involving county
government -- public integrity issues.
Question:
Where is the evidence? Does the D.A. have a public integrity
unit? How does he handle public corruption complaints;
"persons of
high standing and integrity remain in this position"
Question: Where is the evidence? What oversight is there
of the D.A.? How does he handle integrity issues, ie conflict
of interest
"would
attract the best attorneys, and diminish the exodus of District
Attorneys to the County Court bench..."
Question: Where is the evidence? How many "best attorneys" are
attracted to the job? Are elections competitive?
And has the "exodus" of DAs to the County Court bench been
diminished?
RELEVANT CASES
***** Harvey v. Finnick,111
Misc. 2d 197 (1981) -- Supreme Court (Ontario
County)
struck down Judiciary Law 183-a
"By section 183-a of the Judiciary Law,
which was passed in 1972 and amended in 1974 to include District
Attorneys which had been designated as full time pursuant to the
provisions of subdivision 8 of section 700 of the County Law, the
Legislature established the compensation of full-time District
Attorneys as equivalent to that of either Supreme Court or County
Court Judges, depending on the size of the county. In
essence,
section 183-a of the Judiciary Law with its reference to subdivision
8 of section 700 of the County Law, established three classes: (1)
counties with a population in excess of 500,000, exclusive of New
York, Bronx, Kings, Queens, and Richmond Counties, whose District
Attorneys' salaries are equivalent to that of a Supreme Court
Justice; (2) counties with a population of more than 100,000 and
less than 500,000, exclusive of Richmond County, whose District
Attorneys receive compensation equal to that of the County Court
Judge; and (3) counties with a population of more than 40,000 but
less than 100,000 that have designated their District Attorneys as
full time whose District Attorneys receive compensation equivalent
to that of a County Court Judge. [fn 4]
[fn 4: A possible fourth class has been added due to the 1978
amendment of subdivision 8 of section 700 of the County Law, wherein
the District Attorney of Essex County was specifically designated as
full time. The salary of the Essex County District Attorney would be
equivalent to that of a County Court Judge.]
...While the Legislature may
usurp the power of the county to establish the District Attorney's
salary by general law, the compensation provisions of that law must
have a reasonable basis. There is a presumption that every statute
is constitutional and that the Legislature has
investigated the
subject and acted with reason. (Montgomery v Daniels, 38 NY2d 41;
Matter of Malpica-Orsini, 36 NY2d 568; I.L.F.Y. Co. v Temporary
State Housing Rent Comm., 10 NY2d 263, app dsmd 369 U.S. 795.)
While
the compensation plan of paying certain District Attorneys the same
as County Court Judges may have been reasonable when section 183-a
of the Judiciary Law was passed, subsequent changes in the court structure have rendered that compensation plan unreasonable.
At the time section 183-a
of the Judiciary Law was passed, County Court Judges were under the
jurisdiction of the county. The County Court Judge's salary was
established by section 182-a of the Judiciary Law which provided
that the County Court Judge for Ontario County was to receive a
salary of $25,000 per year together with such additional
compensation as the respective boards of supervisors of the county
might provide by local law. [fn.5]
The county was responsible for the payment of the salaries of
the County Court Judge and the District Attorney. Section
182-a of the Judiciary Law took effect on January 1, 1966. It was
later repealed, effective June 3, 1975, by section 183 of the
Judiciary Law. Section 220 of the Judiciary Law subsequently
repealed and replaced section 183 of the Judiciary Law. Section 220
of the Judiciary Law took effect April 1, 1979 with retroactive
effect.
On April 1, 1977 the Uniform Court Budget Act took effect providing
that County Court Judges would thereafter be State employees with
their compensation paid by the State. (Judiciary Law, § 220; L
1976, ch 966.)...
The compensation scheme of section 183-a of the Judiciary Law cannot
be upheld as it does not give consideration to the differing duties
and responsibilities of County Court Judges and District Attorneys
nor does it allow for any meaningful accommodation of each county's
particular situation. In reaching the decision that all County
Court Judges in the State are entitled to the same compensation, the
Cass [ v State of New York (109 Misc 2d 107)]
opinion (supra,
p 113) noted that 'in a unified court system where Judges are
routinely transferred outside their districts for up to six months
at a time, and artificial local boundaries are to be ignored with
respect to the allocation of money, it serves no legitimate
governmental purpose for Judges of the same courts with identical
constitutional jurisdiction and duties to be paid unequally.' This
same rationale does not apply to District Attorneys.
District Attorneys are not required to travel and their functions
are performed within the limited arenas of their respective
counties. The duties, responsibilities and case-loads of a District
Attorney vary from those of a Judge and from those of his
counterparts in other counties. While a District Attorney is an
officer of the court and has a responsibility to enforce the laws of
the State and to comport himself in a manner befitting that
position, a District Attorney is not under the same restrictions nor
does he maintain the same status as that of a Judge. For instance, a
Judge is required to refrain from participation in political
affairs, a restriction which is not placed on District Attorneys.
The ultimate decisions must be made by the Judge and
that responsibility and position should not be equated legislatively,
through salary requirements or otherwise, to that of the person
presenting a case to him. In summary, the judicial position is
unique, as is the position of District Attorney, and there is no
rational basis for referencing the compensation of District
Attorneys to that of Judges, especially under the conditions of the
Unified Court System.
The changes wrought by the Unified Court System also render any
local input and adjustments for local conditions and requirements
virtually meaningless. While the statute still allows the locality
to pay compensation in addition to that required by statute, the
imposition of a $60,900 per year minimum salary as opposed to the
$25,000 per year minimum salary which existed when the salary
requirement is so high, little room is left for adjustment between
the salary of the District Attorney in a county of 40,000 and the
District Attorney who represents a populace of just under 500,000 --
both of whom receive the same base pay. [fn 6]
In conclusion, the compensation provisions of section 183-a
of the Judiciary Law which equate the salaries of certain District
Attorneys to those of a County Court Judge lack a rational basis and
must be declared unconstitutional. Therefore, the respondent county
is not obliged to pay the petitioner in accordance with the salary
provisions of that section and section 221-d of the Judiciary Law."
-----------------------
COMPARE THE SUPERFICIAL, NON-RESPONSIVE DECISIONS REVERSING --
-- rev'd by Appellate Division, 4th Dept:
Harvey v. Finnick, 88 AD2d 40 (1982) --
"The legislative history of section 183-a of the Judiciary Law lends
ample support to its reasonableness. It was promulgated to remove
the salary differential of the District Attorney from local
political considerations, to maintain the security and independence
of District Attorneys, and to assure that persons of high standing
and integrity remain in their position (Governor's bill jacket, L
1972, ch 946, pp 8-9). The Legislature recognized that it was not
equitable to require full-time District Attorneys to forego private
practice while at the same time having their salaries frozen at
inadequate levels (Governor's bill jacket, at p 10). By providing
minimum salaries equivalent to Judges of the County Court, the
office of District Attorney would attract the best available
attorneys (Governor's bill jacket, at p 22), and diminish the exodus
of District Attorneys to the County Court Bench. Section 183-a
directly promotes this interest in an equitable and reasonable
manner. In our view, the legislation passes the reasonableness test,
and the court may not substitute its judgment for the method chosen
by the Legislature (Hotel Dorset
Co. v Trust for Cultural Resources of City of N. Y.,
46 N.Y.2d 358,
370).
No one
disputes that the State has a significant interest in maintaining
the integrity and effectiveness of District Attorneys. The
compensation requirement in section 183-a is reasonably connected to
the State's interest in maintaining competent District Attorneys,
and, therefore, the constitutional challenge must fail."
-- upheld by
New York Court of Appeals in
Kelly v. McGee, 57 N.Y.2d 522 (1982)
-- combination of three appeals:
Joseph
W. Kelley, as District Attorney of Clinton County v. Roy McGee, as
County Treasurer of Clinton County, et al.
John R. King, as
District Attorney of Dutchess County v. M. Philip Amodeo, as
Commissioner of Finance of Dutchess County, et al.
James R.
Harvey, as District Attorney of Ontario County v. Francis Finnick,
as Ontario County Treasurer, et al.
"Relevant to all three appeals before us is a series of legislative
enactments which gave rise to the present dispute. In 1969, the
Legislature added subdivision 8 of section 700 of the County Law,
requiring that the District Attorney in counties having a population
greater than 100,000 devote full time to the duties of that office
and prohibiting the District Attorney from otherwise engaging in the
practice of law (L 1969, ch 415). The following year, subdivisions 9
and 10 were added to section 700, setting the minimum salary for
District Attorneys in counties required to maintain the office as
full time at $25,000 per annum and establishing a program of State
aid pursuant to which those counties were paid $10,000 per annum to
assist them in meeting the new salary requirement (L 1970, ch 733,
§1). [fn 1]
In 1974, the Legislature amended subdivisions 8 and 10 to allow
counties having a population greater than 40,000 and less than
100,000 to designate the office of District Attorney as a full-time
position and to provide State aid to those counties opting to do so
(L 1974, ch 1049, §§1, 2). [fn2]
The minimum salary provision of subdivision 9 had been repealed in
1972 (L 1972, ch 946, § 1). At the same time, section 183-a was
added to the Judiciary Law. This statute requires that the District
Attorney of each county having a population greater than 500,000
[fn.3] receive an annual salary at least equivalent to that of a
Justice of the State Supreme Court and that the District Attorney of
each county having a population greater than 100,000 but less than
500,000 [fn.4] receive an annual salary at least equivalent to that
of the County Court Judge in the county of the District Attorney's
election or appointment (L 1972, ch 946, §3). When the Legislature
amended subdivisions 8 and 10 of section 700 of the County Law to
allow counties having a population greater than 40,000 but less than
100,000 to opt to designate the office of District Attorney as full
time, it also amended section 183-a of the Judiciary Law to require
that the District Attorney in such counties be paid at least the
same annual salary as that received by County Court Judges in the
District Attorney's county (L 1974, ch 1049, §3).
Pursuant to the State's takeover of the judicial system, the
Legislature, in 1979, provided for gradual increases in the salaries
of County Court Judges throughout the State, retroactive to October
1, 1978 (L 1979, ch 55, §2).…
Analysis of these cases leads us ineluctably to the conclusion that
the subject matter of section 183-a is a proper concern of the
State. Our determination herein that the constitutional role of
county government has evolved to a point at which its officers may
no longer be deemed State officers for purposes of the
Constitution's ban on midterm salary increases establishes that a
local concern is implicated in section 183-a.[fn.14] It does not
necessarily follow from that determination, however, that the State
does not have a sufficiently important interest in the salaries
which District Attorneys are paid to allow it to legislate on this
subject matter. It is obvious that the office of District Attorney,
having as its responsibility the enforcement, on a local level, of
the penal laws of this State and the representation of the people of
this State in criminal matters arising within the county, is a
matter of concern to the State (cf. the purely local concerns
presented in such cases as Matter
of Osborn v Cohen, 272 N.Y. 55
[term 'property, affairs or government' includes matters relating to
organization and control of fire department];
Matter of Resnick v County of Ulster,
44 N.Y.2d 279
[method of filling vacancies in the offices of county legislator is
local concern]). As the Appellate Division noted in
Matter of Harvey v Finnick
(88
A.D.2d 40, 43), the purpose
of section 183-a is 'to maintain the security and independence of
District Attorneys, and to assure that persons of high standing and
integrity remain in their position. The Legislature recognized that
it was not equitable to require full-time District Attorneys to
forego private practice while at the same time having their salaries
frozen at inadequate levels. By providing minimum salaries
equivalent to Judges of the County Court, the office of District
Attorney would attract the best available attorneys, and diminish
the exodus of District Attorneys to the County Court Bench'
(citations omitted). These objectives behind the statute demonstrate
the strength of the State's interest in maintaining the salaries of
District Attorneys at an acceptable level."
Francis v. Mulholland, 113 Misc.2d 821 (Supreme Court,
Chautauqua Co. 1982) -- Article 78 challenge by Allegany Co.
DA vs Allegany Co. Treasurer
"That payment of a sufficient
salary is an important factor in attracting able and competent
officials is obvious. Surely the Legislature of the State owes a
duty to all the people of the State to see that criminals are
prosecuted by able lawyers. If a jurisdiction in which the law does
not mandate a full-time District Attorney decides to require its
District Attorney to give up his private practice income, it must
remunerate him and set the salary high enough to attract competent
lawyers. The Legislature has seen fit to determine the minimum
sufficient salary. That is its responsibility to all its citizens."
Court of Appeals:
Hoerger v. Spota, 21 NY3d 549 (2013)
"...there is a strong state interest in establishing adequate
salaries for district attorneys, as the representatives of the
People of the State of New York responsible for enforcing the Penal
Law at the local level (see Kelley, 57 NY2d at 539-540)."
at 552
Hoerger v. Spota (2nd Dept. 2013)
Bates v. Steuben County , 113 Misc.2d
68 (Supreme Court, Steuben Co. 1982)
2012 amicus curiae brief of District Attorneys Association of the
State of NY
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"D.A. Salary reimbursement bill passes state Senate",
Watertown Daily Times (Brian Molongowski)
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What's been going
on --
The State Budget's
Subverting of County Law 700.1 and 700.11
by its "Aid to
Localities" Budget Bills
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