Petition — Steinman v. Nadjari

Supreme Court brief1976

Ask Donna

What actually matters in this document.

Text

eee iC CS

Supreme

SEP

IN THE

Supreme Court of the Hnited se tyae 004% sk coer

Court, U. 8.

LED

2 1976

October Term, 1976

No. 76-324 |

WiLLIAM STEINMAN,

Petitioner,

-against-

MAURICE H. NADJARI, as Special Deputy Attoruey

General, JOHN M. MURTAGH, as Justice of Extraordinary

Special and Trial Term of Supreme Court, LOUIS J.

LEFKOWITZ, as Attorney General of State of New York, and

MALCOLM WILSON, as Governor of State of New York,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF NEW YORK,

APPELLATE DIVISION, SECOND JUDICIAL DEPARTMENT

—————— a — ——

HERVEY & LEGUM

Attorneys for Petitioner

16 Court Street

Brooklyn, N.Y. 11241

(212) 237-1717

AARON NUSSBAUM

Of Counsel

DICK BAILEY PRINTERS, 290 Richmond Ave., Staten Island, N.Y. 10302

Telephone: (212) 447-5358

sr:

TABLE OF CONTENTS

Page

Opinions Below ....----+sssrrrcrrer 2

See PP EES Ce hah teciciana aca 9

The Constitutional Provisions and State Statutes In

ee cece tae eb ane suse sey eeeehe rere SSS S® 9

Questions Demet cca sscccsnesesseuseseaeess® 4

Statement of the Case ...-----scrrrrrserr 4

Reasons for Allowance Serer re tee 13

Appendix A—Opinion of Appellate Division Dec. 1.

DL a ae RESET NEON OEN CRETE sey la

Appendix B—Decision of Supreme Court, Kings

County (MeGrover, J.) Dismissing Complaint ..-- 7a

Appendix C—Order of Anpellate Division Dec. 1, 1975 13a

Appendix D—Memorandum Decision New York Court

of Appeals June 10, errr rrr ete ee 15a

Appendix E—Order New York Court of Appeals June

I cus obs dade VO aR ECADERESDECED ENED? 16a

CASES CITED

Page

Adamson v. Calif:, 332US 46 ..........

sarcmeeae ae eee a) :

cO4CGURES 6646 55 20

we a oe of Labor v. Watson, 327 US 582,

ahah ey eee rer ee ae 12

Appleby v. City of New York, 271 U.S. 364 ity 22

Arizona Employer Liability Cases, 250 US 400 .. ; 2

eee eae enh sept.) tat: :

[SLE ES ED OHO RO 6 oc 19

Baldi v. Gilchrist, 204 App. Div. 425 (NY)...

ee a ae a s

Brooklyn Savings Bank v. O'Neil, 324 ea :

PATS FAGhie oR ee z

RS leh goto «ne eke ;

okie aia: 2 RY

Kawi ge baa ce ses 20

Crew Levick Co. v. Comm. of Pa., 245US 292 ..

a ee Av ;

coated ee dee vos 19

ill

y. Langer, 273 F.Rep. 635, 647

Farmer Grain Co.

ET Lp uncuk nae e in texieer en ese e ree eens es 14

Federalist Papers, No. ye.) re 15

Fiswick v. United States, 329 U.S. 211, 220-3 ..--++-- 25

Guaranty Trust Co. v. Blodgett, 287 US S09, a ee 19

In re Murchison, 349 U.S. 133 (1965) ...-- eee eee? 16

Jablon v. Board of Regents, 271 App. Div. 369 (NY) ... 23

Kilborne v. Thompson, 103 U.S. 168, 190 ..----- +++: 15

King Mfg. Co. v. Augusta, 277 US 100, 104-5 ..---+-> 19

Kingsley Picture Corp. v. Regents, 360 US 684, 688 ... }Y

Mupp v. Ohio, 367 US 643, 660

N.Y.S. Bd. of Parole, 39 NY 2d 445

Matter of Beattte v.

ena LA Lh pte ed LOSES RRERE RETESET

Matter of Klem v. Murtagh, 44 App. Div.2d 465 (2d

Dept., aftd. 34 NY 7.)

Matter of Moritt v. Extraordinary Special and Trial

Term, 46 App. Div. 2d 1012 (2d Dept. NY 1974).

app. dismissed 36 NY 2d 911 (1975) «-- eee 24

Matter of Moritt v. Nadjari, 46 App. Div. 2d 784 (2d

AED kas nescnsncerescssvnssnrsorsooreore’®

CC ————L—<—

Matter of Nigrone, 46 AD 2d 343 (2d Dept. 1974) 17

Matter of Reynolds v. Cropsey, 241 N.Y. 389 (1925S) 22

Matter of State of New York v. K ing, 36 NY 2d 59 24

Menna v. New York, 423 US 61, 46 L.ed 2d 195

‘enews 25

NAACP vy. Alabama, 377 US 288, 307 .... 18

Napue v. Illinois, 360 US 264

SCT 22

O Donohue v. United States, 289 US 516 . 15

Offutt v. United States, 348 U

/ tates, - $8,

GB, 08 . acces unae ae

cocccccceseeeeueee nl 16

People v. Bell, 45 A i

. 49 App. Div. 2d 362 (1

B38 NY 2d 116 ........ Webel

coc cceeen enna eee 17

People v. Davis, 67 Mise. 2

; . 2d

TOP «0su5eeaee ee

cc ece se eee eee en nie 22

People ex re Guggenheim v. Mucci, 32 NY 2d 307 25

People ex rel. Saranac Lund & Timber Co. y Ex

traordinary Special and Trial T.

’ ; erm ?

Court, 220 NY 487 (1917) —

People ex rel S.L. & T. Co. v. E

NY pas L.& T. Co. v. Extraordinary Term, 220

People v. Johnson, 46 AD 2d 123 (Ist Dept. 1974) 361

NYS 2d 921, 9260 ....-- eee eer eee errr

People v. Klinck Packing Co.. 214 N.Y. 121, 138-139

People v. Levy, 47 AD2d 12 (2d Dept. Feb. 24,1975) .. 17

People v. Mackell, 47 AD 2d 209 (2nd Dept. 1975) .... 17

People v. Rao, 46 App. Div.2d 343 (2d Dept. 1975) .... 20

» Steinman, 44 App.Div.2d 839 (2d Dept.,

People \

Te cg an ecsveeccessorcccescess® 21

Pollard v. United States, 352 US 354, 358... . 6 +--+: 25

Railway Express Agency v. Virginia, 282 US 440 ..... 19

Rosalsky v. State, 254 NY 117 «6. - eee eee eer 14

Roe v. Wade, 410 US 113 «2... ee eee eee 25

$1. Pierce +. United States, 319 US 41, errr 25

Springfield v. Philippine Islands. 177 U.S. 189, 201... 15

Steffel v. Thompson, 41S U.S. 452 ......-- eee eeeee: 20

Stuart v. Palmer, 74.N.Y. 183, 189 «0-0 eee errr 14

Torcaso v. Watkins, 307 US 488 «2... eee r eres 19

Tumey v. Ohio, 273 U.S. 510, 532, 71 L. ed. 749, 758.

47S. Ct. 437, SO ALR 1243 «00-0. ee eee reece 16

vil

United States v. Archer, 486 F.2d 670 (CA 2)

Peres 20 |

United States y B : In the

Sv. Brown, 381 U.S. 437 (1965) ... - SUPREME COURT OF THE UNITED STATES

UN October Term 1976

Initod ©

United States v. Morgan, 346 US S02. 512-3 : No.

ieweinidars 5

WILLIAM STEINMAN,

United States v. Walk

sv. er, 473 F 2d 136(CA. D

»DC. 1972) 417 shay

4 etitioner,

Williams v. Bruffy, 9% US 176. 183

183.000.0000... 19 |

oe -against-

WMCA v. Lomenzo, 3 ;

nzo, 377 US 633. —«..

Zuch Bas RS rte 19 MAURICE H. NADJARI, as Special Deputy Attorney

Levtt ». Miny, 2S 4 er ..... General, JOHN M. MURTAGH, as Justice of Ex-

Packina areas 21 traordinary Special and Trial Term of Supreme Court.

STATUTES CITED LOUIS J. LEFKOWITZ, as Attorney General of State of

New York, and MALCOLM WILSON, as Governor of

State of New York,

Section 149. Judiciary Law. New York

Respondents.

PETITION FOR A WRIT OF CERTIORARI

OTHER AUTHORITIES TO THE SUPREME COURT OF THE STATE

ee hs OF NEW YORK, APPELLATE DIVISION,

Constitution of the United States: SECOND JUDICIAL DEPARTMENT.

Ee eee eee Petitioner William Steinman prays that a writ of cer-

sl es le a : tiorari issue to review the judgment rendered December |,

AlN tale 1975 by the Supreme Court of the State of New York,

0 it hal 2 Appellate Division, Second Judicial Department, declaring

that VI, Section 27 of the New York State Constitution,

section 149 of the Judiciary Law of New York and section

63 of the Executive Law of New York, are constitutional

and not violative of the Fifth and Fourteenth Amendments

of the Constitution of the United States.

On June 10, 1976, the New York Court of Appeals of the

State of New York, by Memorandum Decision, dismissed -

Fitth Amendment

rd appeet taken as of right, upon the ground that

substantial constitutional question is involved. (A15-10).

OPINIONS BELOW

oe a by the Supreme Court of the State of New

. Appellate Division, Second Judicial Department, is

set forth in the appendix (A1-6 i i

ceases ary ), and is reported in 49 App.

“7

The Memorandum Decisi

, ecision of the New Y :

Appeals is set forth in the Appendix (A15) sisiauncatas

JURISDICTION

The jurisdiction of thi “ie”

12591) of this Court is invoked under 28 USC

THE CONSTITUTIONAL PROVISIONS

AND STATE STATUTES IN ISSUE.

Constitution of the United States

Fifth Amendment

No person *** shall be *** deprived of lif

iberty. : . ° 4 ; e,

y. or property, without due proces

ae process of law

Fourteenth Amendment

ae 2 ; ; ;

om Mets shall any State deprive any person of

so pee “ie property, without due process of law;

y to any person within its jurisdicti :

—— 4 its jurisd .

equal protection of the laws” ; are oe

Constitution of the State of New York

4 rl 0 S . .

y e Section 27 (} vr 2 a

, ~ +o aordinary > ;

Court). vy Term of the Supreme

Jo Governor may, when in his opinion the

public interest requires, appoint Extraordinary

Terms of the Supreme Court. He shall designate

the time and place of holding the term and the

Justice who shall hold the term. The Governor may

terminate the assignment of the Justice and may

name another Justice in his place to hold the

term.”

Statutes of New York

Section 149. Judiciary Law.

“Section 149. Governor may appoint extraordinary

terms and name justices to hold them.

1. The governor may, when in his opinion the

public interest requires, appoint one OF more

extraordinary special or trial terms of the supreme

court. He must designate the time and place of

holding the same, and name the justice who shall

hold or preside at such term, and he must give

notice of the appointment in such manner as, in his

judgment, the public interest requires. The

governor may terminate the assignment of the

justice named by him to hold a term appointed

pursuant to this section, and may name another

justice in his place to hold the same term. ooo”

2. A motion involving a matter pending before

such extraordinary special or trial term shall be

made returnable at such term, except that, in the

exercise of discretion, a justice of the appellate

division of tne supreme court in the department in

which such extraordinary special or trial term is

being held may grant permission for such motion to

be heard at a term of such appellate division.”

Section 63 of the Executive Law

“Section 63. General Duties. The Attorney General

shall:

coy aR

“2. Whenever required by the governor, attend

in person, or by one of his deputies, any term of the

ne or appear before the grand jury

, ereof for the purpose of managing and con-

—— in such nn or before such jury criminal

S or proceedings as shall b i i

cuthonae ae g € specified in such

QUESTIONS PRESENTED

Where a state statute authorizes and empowers the

governor to create an extraordinary term of the Supre

Court, and to appoint the justice thereof, and aes

empowers the governor to terminate the appointment of md

Justice at will, is such a statute unconstitutional and void :

violative of the independence of the judiciary and of i.

separation of powers guaranteed against encroachm by

the Due Process Clause of the 14th Amendment? a

Where a state statute authorizes and directs the i

dependently-elected attorney general, in person or b f

of his deputies, to manage and conduct all anita ve

an extraordinary term of the supreme court created i he

governor, which extraordinary term is presided over . :

Justice appointed and removable at will by the gover Be

and the governor likewise designates his pal S cial

prosecutor in place and in stead of the Attorney aaah

one of his deputies, to conduct all proceedings 4 , th

extraordinary term of the supreme court, would ioe

sh " so applied, be constitutionally abhorrent to the

itioner s right to a fair trial in a fair tribunal?

STATEMENT OF THE CASE

‘Petitioner was indicted by an extraordinary special and

trial term grand jury on December 19, 1974, char ed with

the crimes of conspiracy third degree, salen Yellin

second degree, and grand larceny second deer ‘in

violation of the penal statutes of New York or

On October 13, 1972, the extraordinary special and trial

term had been appointed by the governor of the State of

New York, reported in 9 NYCRR 1.61-65, under the

authority of Art. 6, section 27 New York State Constitution

and Section 149 subd. 2 Judiciary Law of New York.

Under the constitutional provision and statute aforesaid,

it is expressly provided that:

The Governor may, when in his opinion the public

interest requires, appoint Extraordinary Terms of

the Supreme Court. He shall designate the time

and place of holding the term and the Justice who

shall hold the term. The Governor may terminate

the assignment of the Justice and may name

another Justice in his place to hold the term.”

Section 63 Executive Law, implementive of Section 149

Judiciary Law aforestated, provides in pertinent part, as

follows:

“Section 63. General duties. The Attorney General

shall:

1. Prosecute and defend all actions and

proceedings in which the state is interested, and

have charge and control of all the legal business of

the departments and bureaus of the state, or of any

office thereof which requires the services of at-

torney or counsel, in order to protect the interests

of the stlaic 7S

2. 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 con-

ducting in such court or before such jury criminal

actions or proceedings as shall be specified in such

requirement ***.” (underscoring ours)

In implementation of Section 149 Judiciary Law and

Section 63 Executive Law, the then former Gov.

Rockefeller, as predecessor Governor of the State of New

York, issued Executive Order No. 58, dated September 19,

1972, directed to the respondent attorney general, reported

in 9 NYCRR 1.55-59, reading in pertinent part as follows:

“I. Pursuant to article 1V section three of the

Constitution of the State of New York, the

provisions of subdivision two of section 63 of the

Executive Law and the statutes and law in such

case made and provided, and in view of the

recommendation of the Commission to Investigate

Allegations of Police Corruption in the City of New

York, / hereby require that you, the Attorney

General of this Staie, attend in person, or by one or

more of your assistants or deputies, an Ex-

traordinary Special and Trial Term of the Supreme

Court to be appointed by me to be held in and for

the county of Kings, at the County Court House

and any other term or terms of the Supreme Court

in and for the County of Kings, and that you, in

person or by said assistants or deputies, appear

before the grand jury drawn for said extraordinary

term of said court, and before any grand jury or

grand juries which shall be drawn or which shall

have heretofore been drawn for any other term or

terms of said court, for the purpose 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 actions and proceedings which

may be had or taken by or before said grand jury

and grand juries concerning or relating to:

(a) any and all corrupt acts and omissions by a

public servant or former public servant occurring

heretofore or hereafter in the County of Kings in

violation of any provision of State or local law and

arising out of, relating to or in any way connected

with the enforcement of law or administration of

criminal justice in the City of New York;

(b) KA

]

Simultaneously therewith, the camenens pe ye

directed the Attorney General to —, an ‘ ee

Respondent Nadjari as a Special Deputy ttor - —

for the purpose of managing and snag ses

proceedings in the Extraordinary Term 0

Court as aforestated. 5

Subsequent to Petitioner's indictment as seni

commenced an action for a Declaratory Ju —— “i

uant to New York Civil Practice and Procedure

3001, to declare:

; ’ te

(a) that Article 6, Section 27 New _ ge

Constitution, and Section 149 esoygsngronilies

stituti d null and void, as

unconstitutional an gorented

iolati , sntal Separation 0

violative of the fundame “ee

secured against encroachment under sae Kes

Process Clause of the Fifth and Fou om?

Amendments of the Constitution of = 4

‘cle 1. Section 6 of the New

States, and Article |, hve st

ituti ‘in that the absolute po

State Constitution, in rence

i by the statute aforesals’,

vested in the Governor tute caer

i assi nt of the justice na )

terminate the assignme OT ae

him, at will, and to name another justice in =

“one to hold the same term, is wholly a “

i independence, autonomy and separatenes

the judiciary. ers

, , 1s

(b) That Section 63 Executive Law. as ye :

unconstitutional and void, as violative t one

Process Clause of the Fifth and ou ee

Amendments of the Constitution ot the a

States, and Art. 1, Sec. 6 Constitution of the Sta

of New York. | ‘.

Term convened under the unconstitution

oe anes. and the indictment against the

. net procured under color thereof, are null

and void, as violative of the Due Process Clause of

the federal and state constitutions. ee

The Petitioner's action for

alleved i a Declarz

alleged in substance as follows: ratory Judgment

Phat in the execution, enforcement and operati .

Statutes aforesaid, and under color thereot eg ms a

dent Nadjari, his agents and deputies, and pad aha

forcement agencies acting in concert with him, eng: ae

generally In a systematic course of al —

misconduct against this Petitioner, as wel] = aoe,

others similarly situated, shocking to the waishiens co.

fensive to the canons of decency and a stowaenoryl

pri ig resulting in irreparable injury to this Rakes

' 0 numerous others similarly situated ond fi

resulting In irreparable injury to the fair d j amen

ministration of criminal justice, the > te “ =

tegrity of the judicial process and the pags ae

: 7 the Respondent Nadjari, his agents and deputie

me in concert with various members of the iar Gas

ity Police Department, and with various membe i

federal strike force attached to the United State a whan

lor the Southern Distriet of New York, under a aa

statutes aforesaid grossly violated and abused his ms min

authority as Special Deputy Attorney nant rs

.] t

wie oer

tgainst the Petitioner, in manner as follows:

(a) The Re Jari wi :

Fs : Respondent Nadjari wilfully, wrongfully and

; é : y entrapped the Petitioner into the commission of

alleged crimes charge ,

: ged against him in the indi

_— : ! e indictme

aforestated, ¢ “e

tated, and did so through the instrumentality of a

known professi |

olessional briber ;

er and entrapper of j

character. apper of ill repute and

(b) The said respondent wilfully, wrongfully and

unlawfully deprived the Petitiner of the right to a prompt

arraignment in a court of law, without unnecessary delay,

immediately following his arrest on September 25, 1973,

thus denying to Petitioner at a critical stage of the

proceedings against him, the due protection of a court, the

right to counsel, the right to a preliminary examination,

and the right of confrontation of the witnesses against him,

all in flagrant violation of due process of law.

unlawfully held the Petitioner incommunicado for a period

of approximately three months, from the date of his arrest

until the date of his indictment, December 19, 1973, under

threat and fear, in a continuing and sustained attempt to

coerce and intimidate him to ‘cooperate’ with the

Respondent Nadjari, on penalty that if he did not do so, he

would promptly fingerprint, book and arraign the

Petitioner in a criminal court in connection with his arrest

as aforestated.

(d) That during the interval of the three month period

aforestated, the Respondent Nadjari, through his agents

and deputies and those acting in concert with him, wilfully,

wrongfully and unlawfully attempted to coerce and in-

timidate the Petitioner, by threat and fear, to entrap and

ensnare various public servants within the criminal justice

system of Kings County, particularly ‘‘any” Supreme Court

Justice. and “any” secretary to a Supreme Court Justice,

into the commission of various acts of bribery, larceny and

related crimes.

(e) The Respondent Nadjari, through his agents and

deputies, did wilfully, wrongfully and unlawfully attempt

to coerce, harass and terrorize witnesses and potential

witnesses appearing before the Grand Jury managed and

conducted by him, as aforesaid, into giving false and

untrue testimony regarding the Petitioner's all ~

criminal pre-disposition. sal

| ® In nursuit of the unlawfi! ohiectives aforestated. the

said Respondent, his agents, deputies and others acti sis

concert with him, wilfully, wrongfully and unla fully,

without any sanction or authority in law wh ian ;

contrived and systematically employed the device of sdneeh

arrest and conviction of a federal undercover agent aie

as a criminal Defendant, and in pursuance henet, dia

suborn perjury of various witnesses into testifyin _

juriously in the criminal courts of the State of New York.

and betore the Grand Jury, and did further wrongfull a

wilfully deceive and defraud the Supreme prea Awe

State of New York, County of Kings, and the satu

services thereot, with respect to the Staged and fictitious

plea and sentencing proceedings thereunder _

(g) The Respondent Nadjari, his agents and deputies, i

concert with other law enforcement agents unites te

lalsely and traudulently represent to the United Ste :

Court of Appeals in a criminal proceeding entitled U shed

States v. Archer, 486 F.2d 670, (1973), and again ap

Appellate Division of the Supreme Court of ra St io f

New York, Second Judicial Department, that. th - -

manufactured device of a mock arrest and convicti ; of

Federal undercover “defendant” had been e a ; ly

authorized, sanctioned and approved by Chief Judge Fuld

of the Court of Appeals of the State of New York eles

in truth and in fact, the said Chief Judge had never ‘i an

tioned or approved such practice, but rather, had ji yu

explicitly declined to approve the same: and had in fac se

specifically intormed the Respondent. Nadjari throt os his

agents and deputies, long prior to the date ot the -

trapment aad arrest of this Petitioner as aforestated ~

(h) The Respondent Nadjari, his agents and deputies,

acting in concert with law enforcement officers as

aforestated, and in wilful defiance of the Court's plain

admonition in United States v. Archer, supra, against the

continued practice of “Government-induced criminality”,

did nevertheless, wilfully and wrongfully continue to

employ such practices against petitioner, up to and in-

cluding the date of the indictment, December 18. 1973.

(i) The Respondent Nadjari, did wrongfully and wilfully

contrive to deprive Petitioner of his right to a fair and

impartial trial, particularly as to his right to assert the

affirmative defense of entrapment, by prejudicially

asserting and disseminating in a widely-reported news

conference pre-arranged by him together with the United

States Attorney for the Southern District of New York, on

December 19, 1973, publicly proclaiming that Petitioner

had a criminal predisposition, whereas in truth and in fact,

he had no criminal pre-disposition of any kind, and had

never been involved in any act relating to bribery, larceny

or any criminal act whatsoever.

(j) That by reason of the facts aforestated, the

Respondent Nadjari, his agents and deputies, and all those

acting in concert with him in the management and conduct

of the criminai proceedings against this Petitioner, so

abused their powers under color of the unconstitutional

statutes aforesaid as to wilfully involve themselves in the

commission of various criminal acts, both federal and

state. as follows: Deprivation of rights under color of law

(18 USC 242); Conspiracy against rights of citizens (18

USC 241): Coercion in the First Degree (Penal Law section

135.60); Perjury in the First Degree (Penal Law Section

210.15); Perjury in the Second Degree (Penal Law Section

210.10); Criminal Solicitation in the Second Degree (Penal

Law Section 100.05); Criminal Impersonation (Penal Law

Section 190.25); Obstructing governmental administration

(Penal Law Section 195.05); Conspiracy (Penal Law

Section 105.05 and 105.30); Official Misconduct (Penal

Law Section 195.00); Bribery (Penal Law Section 200.00):

Attempted Eavesdropping (Penal Law Section 250.05),

among others.

The Petitioner's complaint in the declaratory judgment

action further alleged that by reason of the premises

atorestated, the Plaintiff has been irreparably injured in his

constitutional right to a just, fair and impartial trial by an

independent judiciary; and that by reason of the premises

aforestated, the integrity of the judicial process and the

administration of criminal justice have been irreparably

injured and violated.

On November 25, 1974, on motion of the Respondent

Nadjari, the action for Declaratory Judgment was

dismissed by the Supreme Court of the State of New York,

County of Kings (McGrover, J.). The opinion is set forth in

the Appendix, (A7-12). The Court held that the con-

Stitutionality of the statutes in question “may be raised in

the criminal proceeding now pending against the Plaintiff

in which an indictment had been returned against him

prior to the commencement of the present action” (A10).

On Decuiiber t, 1975, the Supreme Court of the State of

New York. Appellate Division, Second Judicial Depart-

ment. modified the decision of the lower court, and held

that Art. 6 Sec. 27 New York State Constitution, Section

149 Judiciary Law and Section 63 Executive Law are

constitutional. (Al-6).

On June 10, 1976, on Petitioner's appeal taken as right

therefrom, to the New York Court of Appeals on con-

Stitutional grounds pursuant to Civil Practice Law and

Rules S601(a), the Court dismissed the appeal upon the

ground that “no substantial constitutional question 1s

directly involved ***" (A15).

Subsequent thereto, the Petitioner pleaded guilty to one

count of the indictment, Grand Larceny Second Degree

and on March 19, 1976 was sentenced to pay a fine ot

$2000. A Certificate of Relief from Disabilities was issued

to Petitioner on April 19, 1976, pursuant to Article 23 N.Y.

Correction Law.

REASONS FOR ALLOWANCE OF WRIT

The state court has decided a federal question of oe

substance not theretofore determined by this C ourt, “

has decided it in a way not in accord with applicable

decisions of this Court.

In the absolute power vested in the Governor to _

and to remove at will, any judge designated by him to ho

the extraordinary special and trial term of the supreme -

urt. both Article 6, Section 27 of the New York vig

Constitution and Section 149 of the Judiciary Law on

unconstitutional and void, on their very face, as nyc y

violative of the independence of the judiciary, ” -

Separation of Powers guaranteed against saneeemner :

the Due Process Clause of the Fifth and pomenags ‘

Amendments of the Constitution of the United States an

Article 1, Section 6 of the New York State sigue

The fatal flaw of the statute and constitutional provision

in issue is that in its in-built potential of control by the

Governor over any judge appointed by him, it is inherently

violative of the independence of the judiciary.

| The cardinal principle laid down by this Court, of long

‘intage, is that the constitutionality of a measure depends

not on the degree of its exercise but on its principle

(Providence Bank v. Billings, 29 U.S. 514, 7 L Ed. 939).

In Stuart v. Palmer, 74 N.Y. 183, 189. the New York

Court of Appeals long ago followed the same seminal test of

constitutionality:

‘The constitutional validity of law is to be tested

not by what has been done under it, but by what

may, by its authority, be done.”

Accord: Rosalsky v. State. 254 NY 117.

Phe principle enunciated in Stuart v. Palmer. supra, has

been quoted with approval by this Court in Montana Co

St. Louts Mining & Co., 152 US 160, 169 (1894): rag

Farmer Grain Co. v. Langer, 273 F.Rep. 635, 647 (i 921).

In People v. Klinck Packing Co., 214 N.Y. 121, 138-139

(1915), the Court reiterated the applicable rule:

. We are to judge of a statute by what is

possible under it. In the absence of any guide it

might very well happen that an administrative

officer with the best of purposes would nevertheless

be very fallible in the execution of them.”

Directly pertinent is this Court's decision in Dreyer y

filinots, 187 U.S. 71, where Mr. Justice Harlan stated at

page 84:

’ "When we speak.” said Story, ‘of a separation of

the three great departments of government, and

maintain that that separation is indispensible to

public liberty, we are to understand this maxim in

a limited sense. It is not meant to affirm that they

must be kept wholly and entirely separate and

distinct, and have no common link of connection

or dependence, the one upon the other, in the

slightest degree. The true meaning is, that the

whole power of one of these departments should

not be exercised by the same hands which possess

the whole power of either of the other departments,

und that such exercise of the whole would subvert

the principles of a free constitution. Story’s Const.

(Sth ed.) 393... .”’ (Emphasis supplied.)

Here. where the “whole power” has been un-

constitutionally vested in the hands of the executive over

the judiciary of the Extraordinary Term of the state

supreme court, the statute is intrinsically violative of the

separation of powers.

The doctrine of Separation of Powers in our con-

stitutional system of government by checks and balances 1s

a “bulwark against tyranny” (United States v. Brown, 381

U.S. 437 (1965).

Accord: (O'Donohue v. U.S., 289 US 516;

Kilborne v. Thompson, 103 U.S. 168, 190;

Springfield v. Philippine Islands, 177 U.S. 189,

201: Federalist Papers No. 47, 48, 51.)

The gravely pernicious potentials of the statute in issue

are readily apparent.

The independence of the judiciary is automatically

subjugated to the control, whim and caprice of the

executive. The power to hire and fire a judge puts the

executive implacably “in control of judicial action” (People

ex rel S.L. & T. Co. v. Extraordinary Term, 220 NY 487;

Dreyer v. Illinots, supra.

A judge so compromised would be inevitably impelled to

tilt the balanced scales of justice against any accused—it

only to curry the favor of the Governor on the one hand, or

avert the embarrassing retribution of removal, on the

other. In a court of justice so heavily stacked against the

accused, with the Governor holding the strings of both the

judge and prosecutor, the elemental rights to a fair trial are

hopelessly compromised. No judge so situated could

reasonably maintain the balance true, despite the best of

intentions and the highest nobility of motive.

In no other instance under New York's Judiciary Law, is

the absolute power and authority to appoint terms of omen.

and assign judges thereto, vested in other than the tadicial

authority of the various appellate divisions of the State

supreme court Judiciary Law Sec. 86). And certainly, in no

other instance, is the autocratic power to terminate a

judicial appointment even during the same term, vested in

the governor, or anyone else outside the judicial system.

In re Murchison, 349 U.S. 133 (1965), the Court stated:

“A tair trial in a fair tribunal is a basic requirement

of due process. Fairness of course requires an

absence of actual bias in the trial of cases. But our

system of law has always endeavored to prevent

even the probability of unfairness. To this end no

man can be a judge in his own case and no man is

permitted to try cases where he has an interest in

the outcome. That interest cannot be defined with

precision. Circumstances and relationships must

be considered. This Court has said. however, that

every Prcednre which would offer a possible

temptation to the average man as a judpe... not

wo hold the balance nice. clear and tit between the

State and the accused, denies the latter due process

of law.” Tumey v. Ohio, 273 U.S. 510. 532. 7] L

ed. 749, 758, 47 S. Ct. 437, 50 ALR 1243. Such a

Stringent rule may sometimes bar trial by judges

who have no actual bias and who would do their

very best to weigh the scales of justice equally

between contending parties. But to perform its

high function in the best way ‘justice must satisfy

the appearance of justice.” Offutt v. United States

348 U.S. 11, 99 L. ed. 11, 75S. Ct. 11." (emphasis

ours.)

In United States v. Walker, 473 F 2d 136 (CA, DC.

1972), the Court noted:

“The disciplined judicial mind should not be

subjected to any unnecessary strain; even the most

austere intellect has a subconscious.”

Even far beyond their evil potential, an inordinate

number of judgments of conviction, reversed on appeal by

the appellate courts, reflect the intolerable degree to which

these unconstitutional statutes have inadvertently tended to

deprive criminal detendants at the bar of the extraordinary

term of a fair trial in an impartial tribunal.

Thus, in People v. Bell, 45 App. Div. 2d 362 (Ist Dept.

1974. aff. 34 NY 2d 116, reversing a conviction of a police

officer for attempted possession of a dangerous drug,

burglary first degree and attempted grand larceny, with

concomitant sentence of six to eighteen years in prison, the

Appellate Division held:

“On this record, it is clear that the totality of the

trial court’s errors was prejudicial and, in effect,

denied detendant-appellant Richard Bell a fair

Read as a whole, the charge was prejudicial in

that it appeared to emphasize the strength of the

prosecution’s case, in derogation of the

requirement to give balanced instructions to the

jury in a criminal trial... .”

Of the same tenor, see also People v. Levy, 47 AD2d 12

[2d Dept. Feb. 24, 1975] People v. Johnson, 46 AD 2d 123

(ist Dept. 1974), 361 NYS 2d 921, 926; People v. Harding,

44 AD 2d 800 (1st Dept.); People v. Mackell, 47 Ad 2d 209

(2nd Dept. 1975); Matter of Nigrone. 46 AD 2d 343 (2d

Dept. 1974). All involved Respondent Judge Murtagh as

the presiding judge of the Extraordinary Term of the

Supreme Court.*

It matters not that the unfettered power thus vested in

the governor springs from the highest ideals and purest

motivations of rooting out a festering corruption in the

criminal justice system. Good intentions can never red

the evil potentials of the statute. —

In NAACP vy. Alabama. 377 US

Biss 288, 307, this Court

| ‘(E)ven though the governmental purpose be

egitimate and substantial, that purpose cannot be

pursued by means that broadly stifle fun-

damental personal liberties when the end can be

more narrowly achieved.”

: “ sum, this Petitioner, as all others similarly situated

efore the extraordinary term, have been deprived of the

nee y' a right to be tried by a judge randomly chosen

nstead, he was slated to stand trial before the Governor's

a hand-picked judge and hand-picked Special

rosecutor, both of whom were summarily removable at

the instance, will, whim or caprice of the Executive.

Every litigant at the bar of criminal justice before the

waetearoageys special and trial term of the supreme court is

thus effectivels doorived of

iho 1y deprived ot the equal protection of the laws

ccorded all other criminal defendants in regularly con-

stituted terms of the Supreme Court.

Phat this question is so substantial as to require plenary

consideration by the Supreme Court of the United Stat ;

tor its resolution is readily attested by the fact that the sna

statute in issue is an identical replica of the tyrannical

power exercised by King George III over the colonial

Jt iu \ urta . ‘ y

g " vh dit ue on imu if ; |'

J ' u ‘ -P and ‘ ,

it c 1 i . J ‘ ’ } Was succeeded t the

Gao erno!l pu su tml te Section 149 Judicia \ l iW

ee Bde eee

governments, through his royal governors, by

systematically appointing and controlling his own judges

and prosecutors. “He has made Judges dependent on his

Will alone. for the tenure of their offices, ***”

(Declaration of Independence, July 4, 1776).

A provision in a state constitution is subject to the due

process clause of the federal constitution. A State Con-

stitution, no less than a statute, can be attacked for un-

constitutionality. (American Federation of Labor vy.

Watson. 327 US S82, 592-3; Driskell v. Edwards, 518 F.2d

890 (CA 5, 1975); Baker v. Carr, 369 US 186; WMCA v.

Lomenzo, 377 US 633; Dreyer v. Illinois, 187 US 71;

Railway Express Agency v. Virginta, 282 US 440; Adamson

v. Calif., 332 US 46; Torcaso v. Watkins, 367 US 488;

Williams v. Bruffy, 96 US 176, 183; King Mfg. Co. v.

Augusta, 277 US 100, 104-5; Guaranty Trust Co. v.

Blodgett, 287 US 509, 513; Kingsley Picture Corp. v.

Regents, 360 US 684, 688).

By designating his own special prosecutor to manage and

conduct all proceedings in the court so controlled by the

executive as aforesaid the Governor has not only

magnified manifold the potential dangers of Section 149 of

the Judiciary Law to the independence of the judiciary and

to the due process rights of an accused, but has likewise

rendered Section 63 of the Executive Law and Executive

Order No. 58 issued thereunder, unconstitutional and void,

as applied, under the Due Process Clause of the Con-

stitution.

This Court has held that “(we have not hesitated on

direct review to strike down applications of constitutional

statutes which we have found to be unconstitutionally

applied.”" (Cameron v. Johnson, 390 US 611: Cox vy.

Louisiana, 379 US 559; Steffel v. Thompson, 415 U.S. 452:

Allee v. Medrano, 416 US 802, 815).

Rarely in all prosecutorial experience in this country has

“the ignoble shortcut to convictien’’ (Mapp v. Ohio, 367

US 643, 660) descended to the levels enumerated here,

enveloping the very integrity of the judicial process and the

administration of criminal justice.

Seldom in all the annals of criminal jurisprudence has a

prosecutor so flagrantly abused the lawful limits of power

and authority as in the case at bar.

The unprecedented imperial power vested in the

governor by Section 149 of the Judiciary Law has inevitably

tended to invite, encourage and generate the very tyran-

nical abuses practiced by the respondent Nadijari at bar,

not only against this Petitioner, but against all others

similarly situated, as reflected in a proliferating number of

reported cases.

It is no mere coincidence that of all those indicted by the

Respondent Nadjari under color of these statutes and the

Covernor’s Executive Order issued thereunder, an ab-

normal number of those charged have interposed defenses

dicging Wilal aivapment, failure to arraign defendants in

a criminal court, gross prosecutorial misconduct violative

of due process, gross abuse of jurisdiction, outrageous and

untair trial tactics, and “perversion of the criminal justice

system of an overzealous prosecutor’ (See Matter of

Nigrone, 46 AD 2d 343) (2d Dept., 1975); People v. Bell,

45 App. Div. 2d 362 (Ist Dept. 1974), aff. 38 N.Y. 2d 116:

People v. Harding, 44 App. Div. 2d 800 (1st Dept. 1974);

People v. Rao, 46 App.Div.2d 343 (2d Dept. 1975); United

States v. Archer, 486 F.2d 670 (CA 2); Matter of Klein v.

Murtagh, 44 App.Div.2d 465 (2d Dept.. aff. 34 NY 2d

988): People v. Steinman, 44 App.Div.2d 839 (2d Dept.,

1974): People v. Levy, 47 App Div. 2d 12 (2d Dept., ogee

Matter of Moritt v. Nadjari, 46 App.Div. 2d 784 (

Dept.). =

On December 24, 1975, the respondent Nadjari was

summarily dismissed by the successor governor, with the

concurrence of the respondent Attorney General, effective

June 29, 1976, because of a “perceptible decline in public

confidence” (New York Times, Dec. 24, 1975, p. 1).

On June 12, 1976, the New York Times editorially urged

that Mr. Nadjari’s term be ended on the scheduled effective

date because of “the continuing doubts concerning Mr.

Nadjari’s ability, his methods, his attitude toward ae

liberties and his tenure, which have grown to such

proportions as to be obstacles to the accomplishment of hi

task.'**

As is plainly manifest, each ot the constitutional ~—

presented in this appeal are substantial (Zucht v. King.

US 174, 177; Rule 15(e) Rules of the Supreme Court.

appeal taken as of right under New

Civil Practice Law and Rules

560 1(b), on the ground that “no substantial oe

question is directly involved” we respectfully submit that

the New York Court of Appeals seriously erred in failing to

strike down these statutes as fundamentally violative of the

yowers guaranteed against encroachment by

r the Due Process Clause ot

In dismissing the

York law pursuant to

separation of |

the federal constitution unde

the Sth and 1I4th Amendments.

as bee sede y the Hon. John fb

*The Respondent Nadjar has been succeeded by a

P for the Extraordinary ferm, \

Keenan as Special Prosecutor Ic

; ‘arey effective the samic

designation of the successor Governor Hugh L. Carey effects e

date.

Further, the New York Court of Appeals failed to adhere

to its standard precedents laid down in its own prior

decisions in People ex rel S.L. & T. Co. v. Extraordinary

Term of the Supreme Court, supra, Cardozo, J. and in

Matter of Reynolds v. Cropsey, 241 N.Y. 389 (1925),

construing the very statute here in issue in its preamended

form.

With all due deterence and the utmost respect, a state

court cannot so construe a state statute as to render it

obnoxious to the federal Constitution. (Arizona Employer

Liability Cases. 250 US 400; Crew Levick Co. v. Comm. of

Pa., 245 US 292). The Supreme Court of the United States

is not bound by the determination of the New York Court

of Appeals that the constitutional questions are not sub-

stantial, but must reach a conclusion independent of the

state court. (Appleby v. City of New York, 271 U.S. 364;

Napue v. Illinois, 360 US 264; Brookhart v. Janis, 86 S.Ct.

1245: Brooklyn Savings Bank v. O'Neil, 324 U.S. 097).

With all due deterence and respect, the state Appellate

Division of the Supreme Court below seriously erred in

holding that the Petitioner's contention as to the un-

constitutionality of Sec. 149 Judiciary Law was “‘answered”

in People v. Davis, 67 Mise. 2d 14, 16, 322 NYS 2d 927,

930 (A4). The Davis case involved only the constitutional

power of the governor to appoint a Judge for the Ex-

traordinary Lerm, but did not deal with the fundamental

issue as to the governor's constitutional right to terminate

the judge's appointment, at will and at any time.

[he right to appoint a judge for the Extraordinary Term

had been long ago upheld by the New York Court of

Appeals in People ex rel. Saranac Land & Timber Co. v.

Extraordinary Special and Trial Term of the Supreme

Court, 220 NY 487 (1917), per Cardozo, J., and Matter of

Reynolds v. Cropsey, 241 NY 389 (1925).

There, Judge Cardozo explicitly declared that the

principle of separation of powers was not violated because

“the proclamation makes no attempt to control the action

of the court *** The power of the judge who sits in

judgment is not affected by executive rescript or decree. It

is governed only by the law.”

The tact is that the Davis case, cited below, merely

construed the statute as it existed in its original pre-

amended form, relating solely to the governor's power to

appoint. The statute, as it then read, did not contain the

constitutionally offensive provision here In Issue, em-

powering the governor to terminate summarily re

assignment of the judge at any time, added to the statute by

the laws of New York, L. 1939, ch. t.

In sustaining the constitutionality of the statute, the

Appellate Division below unduly equated the agers

special power to pardon—which, its opinion states, erases

the stigma of conviction branded upon a criminal

defendant in a court of law’ (AS)—with the governor s

unlimited power to hire and fire a judge of the Ex-

traordinary Term at will.

With all due deference, there is no analogy between the

governor s limited pardoning power to amnenorate .

conviction, as compared to the “whole power exercised by

the governor In controlling judicial action under the un-

constitutionally abhorrent statute at bar. (Dreyer ¥.

IIlinois, 187 US 71, 84). Moreover, a pardon does not

“erase” criminal conviction. It is. rather, an implied ex-

pression of guilt, the conviction ts not obliterated, and me

stigma of conviction remains. (Burdick v. United arene.

236 US 79; Jablon vy. Board of Regents, 271 App. Dw. 369

(NY); Baldi v. Gilchrist, 204 App. Div. 425 (NY). Thus,

the encroachment by the executive over the judiciary 1s the

exercise of the pardoning ts relatively minimal.

The constitutional issue raised in the within Petition had

been previously propounded to this Court in Matter of

Morttt vy. Extraordinary Special and Trial Term, 46 App.

Div. 2d 1012 (2d Dept. NY 1974), app. dismissed 36 NY 2d

911 (1975) re-argument denied September 10, 1975, leave

to uppeal denied September 10, 1975. There, the con-

Stitutional question at bar had been presented as one of

several combined jurisdictional issues in an omnibus

proceeding brought pursuant to New York Civil Practice

Law and Procedure Article 78.

In dismissing the appeal, the New York Court of Appeals

Stated in a memorandum decision as follows:

“Motion to dismiss the appeal granted and the

appeal dismissed, without costs, upon the ground

that no substantial constitutional question is

directly involved (CPLR S601(b)(1).

( ross-motion tor a stay of proceedings dismissed

as academic. We do not reach the obvious question

as to M hether prohibition lies under CPLR article

| § ( Matter of Nigrone v. Murtagh and Nadjari, 36

NY 2d ; Matter of State of New York vy, King

36 NY 2d 59)," :

A direct appeal taken to this Court pursuant to 28 USC

12572) was dismissed on December 15, 1975 for want of

jurisdiction, (Docket (5-648, 18 Crb 4108). and not for

lack of a substantial federal constitutional question, as

urged by the respondent Nadjari. Presumably, the non-

tederal vround raised in the memorandum decision by the

New York Court of Appeals hereinabove | set forth

precluded

review Practice. Stern-

Gressman. P. SY). Thus, the constitutional issue remains

viable betore this Court,

(Supreme Court

The Petitioner's plea of guilty and sentence thereunder

did not moot the constitutional issues raised in the action

for a Declaratory Judgment in the state court. A con-

stitutional claim will survive a guilty plea. Menna v. New

York, 423 US 61, 46 L.ed 2d 195.

Nor will the Petitioner's constitutional contentions be

mooted, because of the prejudicial collateral consequences

flowing from the criminal conviction. (St. Pierce v. United

States. 319 US 41, 43; Fiswick v. United States, 329 US

211. 220-3: United States v. Morgan, 346 US 502, 512-3;

Pollard v. United States, 352 US 354, 358).

Finally, we respectfully urge upon the Court that the

substantial constitutional issues do remain viable because

they involve questions of che highest public importance,

likely to recur. (Dunn v. Blumstein, 405 US 330; Roe v.

Wade. 410 US 113; Matter of Beattie v. New York State

Board of Parole, 39 NY 2d 445; People ex re. Guggenheim

v. Mucci. 32 NY 2d 307. Thus, in Roe v. Wade, supra, the

Court allowed a woman to challenge a state anti-abortion

law although this challenge occurred after her own

pregnancy had been terminated. In Dunn v. Blumstein,

supra, the Court nermitted a constitutional challenge to a

state voting statute, under the equal protection clause, even

though the plaintiff had become eligible to vote by the time

the District Court reached his challenge to residency

requirements.

CONCLUSION

The Petition for a Writ of Certiorari should be granted.

HERVEY & LEGUM,

Attorneys for Petitioner

16 Court Street

Brooklyn, N.Y. 11241

(212) 237-1717

AARON NUSSBAUM

of Counsel

— -—s 7

APPENDIX A

OPINION OF THE APPELLATE DIVISION

DECEMBER 1, 1975

SUPREME COURT : APPELLATE DIVISION

SECOND JUDICIAL DEPARTMENT

HOPKINS, Acting P.J.. MARTUSCELLO, COHALAN,

CHRIST and MUNDER, JJ.

WILLIAM STEINMAN,

Appellant.

-against-

MAURICE H. NADJARI, etc., et al.,

Respondents.

APPEAL by plaintiff from an order of the Supreme

Court at Special Term (ALBERT S. McGROVER,. J.),

dated December 23, 1974 and ei ered in Kings County,

which granted defendants’ motions to dismiss the com-

plaint and denied his cross motion for summary judgment.

Hervey & Legum, Brooklyn, N.Y. (Aaron

Nussbaum of counsel), for appellant.

Maurice H. Nadjari, Deputy Attorney-General,

New York, N.Y. (Allen G. Swan and Bennett L.

Gershman of counsel), respondent pro se.

Louis J. Lefkowitz, Attorney-General, New York,

N.Y. (Burton Herman and Samuel A. Hirshowitz

of counsel), respondent pro se, and for John M.

Murtagh and Malcolm Wilson, respondents.

COHALAN, J. The plaintiff was indicted in 1973

’ > , e } . . |

by the Extraordinary and Special Grand Jury of Kings /

County for the crimes of conspiracy in the third degree, The gest iid when in his opinion the public

attempted bribery in the second degree and grand larceny interest requires, appoint extraordinary terms of

in the second degree. He has ; the supreme court. He shall designate the time and

setieel ten tilt ee previously unsuccessfully place of holding the term and the justice who shall

woe Pagicsie on “ both State and Federal courts of hold the term. The governor may terminate the

original and appellate jurisdiction on the grounds of assignment of the justice and may name another

alleged (1) prosecutorial misconduct of the special

prosecutor, (2) bias on the part of the Justice presiding at

the Extraordinary Special and Trial Term and (3) violation

of the plaintiff's civil rights.

The plaintiffs present thrust is a claim of un-

constitutionality of not only two statutes (Judiciary Law,

$149; Executive Law, §63 [subd. 2]) but also of a provision

of the State Constitution (art. VI, §27), which he claims is

violative of the Fifth and Fourteenth Amendments of the

Federal Constitution.

The plaintiff is aware that all the arguments he has

advanced are available to him in the trial court upon the

trial of the indictment and it is upon this theory of an

adequate remedy at law that the Special Term dismissed

the complaint. He contends, however, that it is futile to

expect to obtain relief from the very Justice before whom he

is to be tried. We do not agree, but, under the particular

circumstances of this case, including the nature of the

constitutional claim raised and the absence of disputed

facts, a decision upon the merits is appropriate.

As pertinent to his challenge, we quote the cited items

(the underlined portions are the direct subjects of his at-

tack). Section 27 of article VI of the New York State

Constitution reads:

Gon 27. [Extraordinary Term of the Supreme

ourt |

justice in his place to hold the term.”

Section 149 of the Judiciary Law provides:

“Section 149. Governor may appoint extraordinary

terms and name justices to hold them.

“1. The governor may, when, in his opinion the

public interest requires, appoint one or more

extraordinary special or trial terms of the supreme

court. He must designate the time and place of

holding the same, and name the justice who shall

hold or preside at such term, and he must give

notice of the appointment in such manner as, in his

judgment, the public interest requires. The

governor may terminate the assignment of the

justice named by him to hold a term appointed

pursuant to this section, and may name another

justice in his place to hold the same term. oes

“2. A motion involving a matter pending before

such extraordinary special or trial term shall be

made returnable at such term, except that, in the

exercise of discretion. a justice of the appellate

division of the supreme court in the department in

which such extraordinary special or trial term is

being held may grant permission for such motion to

be heard at a term of such appellate division.”

Section 63 of the Executive Law provides, in pertinent

part:

“Section 63. General Duties

“The attorney general shatt:

ok *

2. Whenever required by the governor, aitend 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 cOn-

ducting in such court or before such jury criminal

actions or proceedings as shall be specified in such

requirement * * * .”

| The plaintiff objects to the power of termination reposed

in the Governor, not the power initially to appoint. His

argument reduces itself to the postulate that the power to

“terminate the assignment of the justice named by him”

and to name another in his place denigrates the in-

dependence of the judiciary and thus is abhorrent to the

constitutional theory of separation of powers.

The obvious situations that would impel a termination

are a protracted illness of the Justice presiding or his

unwillingness to continue in the role. Presumably, in either

event, the Governor would relieve him of his assignment.

The suggestion made by the plaintiff, however, goes far

beyond those examples. He asserts that irrespective of

whether or not the executive would prostitute his office by

terminating a justice's assignment (because he does not

approve of the results of the trials conducted in his court),

the very fact that he can do so renders the above-quoted

provisions of the Judiciary Law and of the State Con-

stitution unconstitutional. Beyond the mere inclusion of

the statement of chat proposition in the cases cited by him,

they are otherwise inapposite.

The plaintiff's argument is answered in People v. Davis,

(67 Misc. 2d 14, 16). (There the attack was directed to the

portion of section 149 of the Judiciary Law that permits the

initial appointment by the Governor.) The court said:

“Whether the legislative, executive and judicial

powers of a State shall be kept together or separate

is a determination to be made by the State. This

separation of powers is not an element to be

a A AN, tl

art

considered when making an inquiry as to whether

or not the due process of law demanded by the

Fourteenth Amendment has been respected by the

State. (Dreyer v. Illinois, 187 U.S. 71, 84.)

“The defendants misinterpret the separation of

powers doctrine. The three branches of government

cannot and do not operate within isolated, sealed

and impregnable compartments. There is an in-

terdependence, a process of unified and joint effort

calculated and deliberately designed by the ar-

chitects of our system of jurisprudence to give the

Government balance and stability.”

The additional fact that the plaintiff could and did

attack the constitutionality and applicability of the items in

question in a court other than that of the Justice presiding

at the Extraordinary Term is a true indication that the

Governor's role is not as all encompassing as the plaintiff

claims it to be.

By way of analogy that the power to terminate reduces

the status of the judiciary to a less than equal partnership

with the executive branch, we have the question of the

Governor's right to grant a pardon. Except in cases of

treason or impeachment, he has the power to pardon, after

conviction, the most hardened malefactor (Executive Law,

$15). The exercise of such clemency erases the stigma of

conviction branded upon a criminal defendant in a court ot

law. Certainly this constitutes a species of interference with

the judicial process. Equally it could be argued, as here,

that the statutory right to use the power in a corrupt

manner, even if never so exercised, would tend to render

these provisions of the Judiciary Law and of the State

Constitution unconstitutional. Yet to date, no one has ever

mounted a successful attack upon the Governor's

prerogative.

As to the appointment of

(Executive Law, §

a na $63), whatever the preference expressed b

‘ernor, it was the Attor :

| , ney-Genera! w

tnt wr | 3 ' ral who act

ee sae did appoint him; and it is as a Special ce

y-General that he js conducting the selianaiien

We conclude

iat aa ssn therefore, that the constitutional provision

aaa statutes under attack meet the test of

Possess However, a declaration in et ae

es ae have been made. instead of dismij : e

omplaint (Lanza y. Wagner, 11 NY2d 317 se issing

The order appealed from Should b if

by striki ref; : sould De modified, on the law

oe ae ae granting Ponsa

sie ar y substituting theref ry

an section 27 of acthile VI wy ape

section 63 are a 149 of the Judiciary

alain. we e Executive Law are constitution

. » the order should be affirmed, with

costs and disbursements jointly to seaguiieads

the special prosecutor

Law and

al. As so

bill of $50

HOPKINS, Actin

bina g P.J.. MART

MUNDER, JJ.. concur. USCELLO, CHRIST and

APPENDIX B

DECISION OF SUPREME COURT, KINGS COUNTY

(McGROVER, J.) DISMISSING COMPLAINT

MEMORANDUM

SUPREME COURT: KINGS COUNTY (SPECIAL

TERM, PART 1)

WILLIAM STEINMAN

By McGROVER, J.

VS.

Dated November 25, 1974

MAURICE H. NADJARI, as Special Deputy Attorney

General, JOHN M. MURTAGH, as Justice of the Ex-

traordinary Special and Trial Term of the Supreme Court,

LOUIS J. LEFKOWITZ, as Attorney General of the State

of New York, and MALCOLM WILSON, as Governor of

the State of New York.

Plaintiff seeks a declaratory judgment to the effect that

Article VI, section 27, of the Constitution of the State of

New York and section 149 of the Judiciary Law are un-

constitutional in that they violate due process and the

doctrine of separation of cxecutive and judicial powers as

guaranteed by the Fifth and Fourteenth Amendments to

the United States Constitution and Article I, section 6, of

the State Constitution, and that section 63 of the Executive

Law, as applied, and the Governor's Executive Order dated

September 19, 1972 are void and unconstitutional as

violative of due process and the separation of powers

doctrine.

Plaintiff requests injunctive relief, both temporary and

permanent, precluding the prosecution and trial of

plaintiff, based also upon allegations of prosecutorial

misconduct on the part of defendant Nadjari and bias

“inherent in the unconstitutional statutes aforesaid”’ on the

part of defendant Trial Judge Murtagh.

The motions now presented for determination are the

following: Motion by defendant Nadjari to dismiss the

complaint for failure to state a cause of action or, alter-

natively, for summary judgment; motion by the State

Attorney General, pro se and on behalf of defendants

Murtagh and Wilson, to dismiss the complaint for failure

to state a cause of action; motion by plaintiff for summary

judgment in his tavor.

Plaintiff was indicted in 1973 by the Extraordinary and

Special Grand Jury for the County of Kings for the crimes

of conspiracy in the third degree, attempted bribery in the

second degree, and grand larceny in the second degree.

On February 8, 1974 plaintiff moved before the Ap-

pellate Division, Second Department, for an order

dismissing the indictment in the interests of justice because

of alleged prosecutorial misconduct on the part of the

defendant Nadjari and alleged bias upon the part of Mr.

Justice Murtagh. As to the defendant Nadjari’s abuse of

‘ authority, plaintiff made the same charges before the

Appellate Division as he does in this court, namely, that he

was entrapped by the prosecutor; that he was forced to

entrap others; and that he was held for three months

without arraignment or preliminary hearing.

In May of 1974, the Appellate Division, Second

Department, denied defendant's motion to dismiss the

indictment (People v. Steinman, 44 A D 2d 839), and in so

doing, the court relied upon Mr. Justice Shapiro's con-

curring opinion in Matter of Kle.a (44 A D 2d 465, affd. 34

N Y 2d 988).

From the papers and briefs submitted herein, it is clear

that all the issues here raised, except the question of the

constitutionality of the statutes and provisions above

mentioned, were before the Appellate Division, which held

that those issues should be resolved first at the trial level

where a full showing of all of the relevant facts could be

made. Any dispositions at the trial level are, of course,

subject to appellate review.

As pointed out above, plaintiff now also urges that there

is a question involved as to the constitutional validity of the

provisions of Article VI, section 27, of the New York State

Constitution, section 149 of the Judiciary Law, and section

63 of the Executive Law. These sections read, where

pertinent, as follows:

Art. 6, §27 [EXTRAORDINARY TERMS OF

THE SUPREME COURT}

“The governor may, when in his opinion the

public interest requires, appoint extraordinary

terms of the supreme court. He shall designate the

time and place of holding the term and the justice

who shall hold the term. The governor may ter-

minate the assignment of the justice and may name

another justice in his place to hold the term.”

§149. GOVERNOR MAY APPOINT ExX-

TRAORDINARY TERMS AND NAME

JUSTICES TO HOLD THEM

“1. The governor may, when, in his opinion the

public interest requires, appoint one or more

extraordinary special or trial terms of the supreme

court. He must designate the time and place of

holding the same, and name the justice who shall

hold or preside at such term, and he must give

notice of the appointment in such manner as, in his

judgment, the public interest requires. The

governor may terminate the assignment of the

1Oa

justice named by him to hold a term appointed

pursuant to this section, and may name another

justice in his place to hold the same term.”

§63. GENERAL DUTIES

The attorney-general shall:

“1. Prosecute and defend all actions and

proceedings in which the state is interested, and

have charge and control of all the legal business of

the departments and bureaus of the state ***.

2. 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 con-

ducting 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; * * *.”

Plaintiff contends that these provisions violate the

separation of powers doctrine as guaranteed by the Fifth

and Fourteenth Amendments of the United States Con-

Stitution.

All of the foregoing issues, constitutional and otherwise,

may be raised in the criminal proceedings now pending

against plaintiff in which an indictment had been returned

against him prior to commencement of the present action.

lt is also clear that plaintiff could have raised the con-

stitutional question before the Appellate Division on the

motion to dismiss the indictment, but failed to do so.

Plaintiff may still bring this issue before the Appellate

Division on a second motion to dismiss and may, of course,

raise it again on appeal. Thus, plaintiff has had and will

lla

continue to have an adequate remedy at law. In the cir-

cumstances, the court will not enjoin the enforcement of

the criminal law by prosecuting officials; and this is

particularly true where, as here, the Appellate Division has

already held that most of the issues should be resolved at

the trial level. As stated in Reed v. Littleton (275 N.Y. 150)

at page 153:

“The court of equity has at times been called

upon to enjoin the enforcement of a criminal

prosecution. The rule has been firmly established

that it will not ordinarily intervene to enjoin the

entorcement of the law by the prosecuting officials

(Davis v. American Society, 75 N.Y. 362; Delancy

v. Flood, 183 N.Y. 323) unless under proper cir-

cumstances there would be irreparable injury, and

the sole question involved iy one of law (Mills

Novelty Co. v. Sunderman, 266 N.Y. 32) where a

clear legal right to the relief is established (Triangle

Mint Corp. v. Mulrooney, 257 N.Y. 200).”

While an action for a declaratory judgment will lie where

a constitutional question is involved and the facts are

undisputed (Dun & Bradstreet v. City of New York, 276

N.Y. 198, 206: De Veau v. Braisted, 5 A D 2d 603, affd. 5

N Y 2d 236: Su-Bleu. Inc. v. Village of Port Chester, 42

Misc 2d 360), such an action will not be entertained where,

as here, a crimina! preceeding is already pending, involving

the criminal prosecution of plaintiff, in which the con-

stitutional issues with respect to which a declaration of

rights is sought in this action may be raised and determined

and in which the right of appeal is preserved (Colson v.

Pelyram, 259 N.Y. 370; see Woollard v. Schaffer Stores

Co.. 272 N.Y. 304, 311; ef. Pomaranz v. City of New York,

| Misc 2d 486, 489; Sa-Bleu, Inc. v. Village of Port

Chester, supra, at p. 363). It is true that resort to an action

for a declaratory judgment and also for an injunction “may

be had even with respect to penal statutes and against a

public official or public agency whose duty it is to conduct

uppropriate prosecutions, if the purpose be to avoid

irreparable injury and if the sole question is one of law

lcitations|" (De Veau, supra, at pp. 606, 607). A case

involving the avoidance of irreparable injury would exist

where, as in De Veau (supra), the challenged statute could

be the basis of a threatened prosecution for crime. In such

a situation interested parties should not be required, as a

prerequisite to judicial entertainment of the question, that

they first commit the very acts which are violative of the

Statute involved, and thereby run the risk of prosecution

(see De Veau, supra, at p. 607). It is evident, however, that

the present case does not come within the purview of cases

such as De Veau, but involves, as stated above, a criminal

proceeding which has already been brought charging the

interested party with a violation of the law.

The court concludes that the present action does not

properly lie and accordingly the defendants’ respective

motions to dismiss the complaint for failure to state a cause

of action are granted and plaintiffs cross motion is denied.

Settle order.

s/ Albert S. MceGrover

J.S.C.

13a

APPENDIX C

ORDER OF APPELLATE DIVISION DEC. 1, 1975

At aterm of the Appellate Division of the Supreme Court

of the State of New York, Second Judicial Department,

held in Kings County on December 1, 1975.

HON. JAMES D. HOPKINS, Acting Presiding Justice.

HON. M. HENRY MARTUSCELLO

HON. JOHN P. COHALAN, JR., Associate Justices

HON. MARCUS G. CHRIST

HON. FRED J. MUNDER

William Steinman,

Appellant,

Maurice H. Nadjari, etc., et al.,

Respondents.

Order on Appeal from Order.

In the above entitled cause, the above named William

Steinman, plaintiff, having appealed to this court from an

order of the Supreme Court, Kings County, dated

December 23, 1974. which (1) granted defendants’ motions

to dismiss the complaint and (2) denied his cross motion for

summary judgment; and the said appeal having been

argued by Aaron Nussbaum, Esq.. of counsel for the

appellant, argued by Allen G. Swan, Esq., of counsel tor

Maurice H. Nadjari, Deputy Attorney-General, respondent

pro se and submitted by Burton Herman, Esq.. of counsel

for Louis J. Lefkowitz, Attorney-General. respondent pro

Ita

se and tor John M. Murtagh and Malcolm Wilson,

respondents, due deliberation having been had thereon and

upon OPINION by COHALAN, J., and this court's

decision slip heretofore filed and made a part hereof, it is

ORDERED that the order appealed from is hereby

modified, on the law. by striking therefrom the provisions

granting dismissal of the complaint and by substituting

theretor a provision declaring that section 27 of article VI

of the New York State Constitution, section 149 of the

Judiciar Law and section 63 of the Executive Law are

constitutional; and, as so modified, the order is

unanimously affirmed, with one bill of $50 costs and

disbursements jointly to respondents.

Enter:

IRVING N. SELKIN

Clerk of the Appellate Division.

APPENDIX D

MEMORANDUM DECISION NEW YORK COURT OF

APPEALS JUNE 10, 1976

2 Mo. No. 468

William Steinman,

Appellant,

VS.

Maurice H. Nadjari, as Special Deputy Attorney General,

et al...

Respondents.

Motion to dismiss the appeal herein granted and the appeal

dismissed, without costs, upon the ground that no sub-

stantial constitutional question 1s directly involved; and

upon the turther ground that the modification at the

Appellate Division is not substantial (CPLR S601{a][iti)).

loa

APPENDIX E

ORDER OF NEW YORK COURT OF APPEALS, JUNE

10, 1976

STATE OF NEW YORK,

COURT OF APPEALS

At a session of the Court, held at Court of Appeals Hall

in the City of Albany on the tenth day of June A.D. 1976

PRESENT, HON. CHARLES D. BREITEL, Chief Judge,

presiding.

2 Mo. No. 468

William Steinman,

Appellant,

VS.

Maurice H. Nadjari, as Special Deputy Attorney General,

et al...

Kespondents.

A motion having heretofore been made herein upon the

part of respondents to dismiss the appeal taken by the

appellant im tie above cause to this Court and papers

having been submitted thereon and due deliberation

having been thereupon had, it ts

ORDERED, that the said motion be and the same

hereby is granted and the appeal dismissed, without costs,

upon the ground that no substantial constitutional

question ts directly involved; and upon the further ground

that the modification at the Appellate Division is not

substantial (CPLR S601 [a] fiii)).

s/ Joseph W. Bellacosa

Joseph W. Bellacosa

Clerk of the Court

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.