633 NYS2d 730 | N.Y. Sup. Ct. | 1995
OPINION OF THE COURT
The five named petitioners are inmates at the Albion Correctional Facility in Albion, New York. At issue in this proceeding is respondent Governor George E. Pataki’s signing of Executive Order No. 5 on January 24,1995. In this Executive Order, the Governor directed the Commissioner of the Department of Correctional Services to promulgate regulations that would prevent the "future transfer to any temporary release program or residential treatment facility of any inmate sentenced as a violent felony offender convicted of a crime involving the infliction of serious physical injury, the use or threatened use of a dangerous instrument or the use or threatened use of a deadly weapon.” The commissioner thereafter filed emergency regulations amending 7 NYCRR 1900.4 (c) to bar any inmate from participation in temporary release whose current commitment is for a crime involving either the use or threatened use of a deadly weapon or a dangerous instrument or the infliction of serious physical injury. The amendment also listed a number of offenses, the commission of which would typically render the inmate ineligible for participation in the temporary release programs. By virtue of the Executive Order and the regula
This case is complicated by the fact that the Legislature in June passed a statute amending Correction Law § 851 (2) to provide that "[t]he governor, by executive order, may exclude or limit the participation of any class of otherwise eligible inmates from participation in a temporary release program. Nothing in this paragraph shall be construed to affect either the validity of any executive order previously issued limiting the participation of otherwise eligible inmates in such program or the authority of the commissioner of the department of correctional services to impose appropriate regulations limiting such participation.” (L 1995, ch 3, § 29.) To this court’s knowledge, the Governor has not issued a new Executive Order in accordance with the authority granted by this section.
Thus, there are a number of interrelated issues before this court. The court must first determine whether the Governor could, by Executive Order, direct the commissioner to change the eligibility requirements for the temporary release program and eliminate inmates convicted of violent felonies from future participation in the program. If the answer to this question is yes, the next question posed by petitioners is whether the Executive Order by its terms nonetheless violates the due process rights of the two petitioners who were not permitted to participate in the program after having been approved for the program before the Executive Order was issued. If the court finds that the Governor lacked the authority to change the eligibility requirements for the temporary release program by Executive Order, the next question is whether the statute, which purports to grant this very authority to the Governor prospectively, is itself a proper delegation of legislative power to the executive branch.
Preliminarily, this court must determine the appropriateness of the CPLR article 78 procedure used by the petitioners to challenge the legitimacy of the respondents’ actions. While an article 78 proceeding is generally the appropriate vehicle to determine whether a statute is being applied in an unconstitutional manner, the Court of Appeals has consistently held that
Correction Law article 26, entitled "Temporary Release Programs for State Correctional Institutions”, defines the term "eligible inmate” as "a person confined in an institution who is eligible for release on parole or who will become eligible for release on parole or conditional release within two years” (Correction Law § 851 [2]). However, the statute goes on to provide that if an inmate was convicted of one of the violent felony offenses enumerated in Penal Law § 70.02, "where such offense involved the use or threatened use of a deadly weapon or dangerous instrument”, the inmate is not eligible to participate in a work release program until that inmate is eligible for parole or will be eligible for parole within 18 months. The statute provides that inmates convicted of escape or absconding, or homicide or certain sex offenses are ineligible for participation and also provides that inmates convicted of violent felonies cannot participate in temporary release programs without the written approval of the commissioner. Thus, when the Governor promulgated his Executive Order in January of this year, the Correction Law provided that inmates convicted of violent felonies, with the exception of those convicted of homicide or sex-related offenses, were eligible for participation in temporary release programs if they were within 18 months of their parole or conditional release eligibility date.
In this case, Correction Law § 851 (2) clearly sets forth the eligibility requirements for the temporary release program. As noted above, inmates who were convicted of certain specified violent felonies involving "the use or threatened use of a deadly weapon or dangerous instrument” are eligible to apply for the program once they reach 18 months of their parole or conditional release eligibility date. The statute also provides that otherwise eligible inmates who are under sentence for crimes involving either the infliction of serious physical injury upon another as defined in the Penal Law or any other offense involving the use or threatened use of a deadly weapon requires the written approval of the commissioner before they may par
Respondents argue strenuously that participation in the temporary release program is a privilege, not a right (Correction Law § 855 [9]) and that the Correction Law gives the commissioner extremely broad authority to administer the temporary release program. Respondents are correct that the Correction Law gives the commissioner extensive discretion in the oversight of the temporary release program. Correction Law § 852 (1) gives the commissioner authority to promulgate rules and regulations for the administration of the temporary release program and requires that the commissioner be "guided by consideration for the safety of the community and the welfare of the inmate” in carrying out this function. The regulations promulgated by the commissioner elaborate on this standard and provide that "[ijnmates should be denied temporary release if their presence in the community or in minimum security institutions would pose an unwarranted threat to their own or public safety, if public reaction is such that the inmate’s successful participation in the program would be made difficult and public acceptance of the temporary release program would be jeopardized, or if there is substantial evidence to indicate that the inmate cannot successfully complete his requested temporary release program” (7 NYCRR 1900.4 [l] [4]). The Correction Law provides specifically that any superintendent of a facility, upon recommendation of the temporary release committee, the commissioner, the chairman of the State Board of Parole or his or her designee, can terminate any inmate’s participation in a temporary release program in accordance with applicable regulations (Correction Law § 855 [9]). The regulations identify a number of "indicators” that may demonstrate unsuitability for continued participation in the program, including threats made against others, violation of department rules, arrest and/or conviction for crimes committed while participating in the program, and
Although this court agrees with respondents that the Correction Law gives the commissioner extensive authority to oversee the administration of the temporary release program, this in and of itself does not address the separation of powers concerns identified by the petitioners. The Correction Law, while giving the commissioner broad discretion to make case-by-case determinations regarding participation in the temporary release program, also establishes the parameters within which the commissioner must operate. Thus, under the statute as written, the commissioner may choose not to permit a certain inmate to participate in the program because he is of the opinion, in the exercise of his discretion, that to permit such participation would be contrary to the interests of public safety. It is well within the authority of the commissioner to make such a determination, and indeed the statute contemplates that the commissioner will make such determinations and the courts give substantial deference to those determinations. However, the Executive Order by its own terms simply precludes the commissioner from exercising any discretion concerning the participation of violent felons in the temporary release program, despite the fact that the Legislature explicitly confers this discretion upon the commissioner.
By eliminating violent felons as a class from future participation in the program, the Executive Order directly conflicts with the statutory eligibility requirements set forth in Correction Law § 851. The Correction Law provides that a certain class of inmates is eligible to apply for the temporary release program and the Governor has, by Executive Order, nullified the statutory definition of eligibility and substituted one of his own. Although this court certainly cannot take issue with the policy goals identified in the Executive Order— protecting the citizens of this State from crime and violence— this court is compelled to conclude that the Governor has invaded the province of the Legislature by seeking to impose
Bourquin v Cuomo (85 NY2d 781, supra), cited by respondents at oral argument, is not to the contrary. This case, which was decided in June of this year, is the Court of Appeals most recent consideration of the separation of powers concerns that are at the heart of the case now before this court. In Bourquin, the Court of Appeals considered whether then-Governor Mario Cuomo’s issuance of an Executive Order authorizing the creation of a private, not-for-profit corporation known as the Citizens Utility Board (CUB) violated the principle of the separation of powers. In reversing the Appellate Division and holding that the Executive Order did not violate the separation of powers principle, the Court of Appeals noted specifically that the Executive Order did not "formulate a specific policy” (supra, at 787). "Unlike the detailed and comprehensive Executive Orders and administrative regulations that this Court has struck down in the past * * * Executive Order No. 141 has no substantive content beyond that of creating the CUB itself and giving it access to State mailings for a three-year period” (supra [citations omitted]).
In this case, by contrast, Executive Order No. 5 certainly possesses "substantive content,” in the words of the Court of Appeals. Its intended effect is to block the participation of a certain category of inmates in the temporary release program, even though they are eligible for participation by statute. Unlike the Executive Order at issue in Bourquin (supra), Executive Order No. 5 does formulate a specific policy — that the release of inmates convicted of violent felonies "is a threat to public safety and welfare”. In order to effectuate that policy, the Executive Order purports to authorize the promulgation of regulations that eliminate a category of inmates from the program despite the fact that these inmates are explicitly eligible for participation by statute. Under a long line of extremely well-settled Court of Appeals precedent, this Execu
Perhaps in light of this challenge to the Executive Order, the Legislature recently enacted Senate Bill 5281, which was signed into law by the Governor on June 10, 1995 (L 1995, ch 3). As noted above, this amendment to Correction Law § 851 (2) gives the Governor the authority to exclude or otherwise limit the participation of otherwise eligible inmates in the temporary release program. However, the amendment specifically provides that it is not intended to affect the validity of prior Executive Orders limiting participation in temporary release programs. The question of whether a statute is intended to have retroactive effect is determined by the language of the statute and the intent of the legislation itself (see, Matter of Thomas v Bethlehem Steel Corp., 63 NY2d 150, 154). Here, there is no language in the statute explicitly indicating an intent that the statute should have retroactive effect. "As a general rule statutes are to be construed as prospective only in the absence of an unequivocal expression of a legislative intent to the contrary” (Murphy v Board of Educ., 104 AD2d 796, 797, affd 64 NY2d 856). In fact, if anything, the language of the statute would appear to indicate an intent that the statute have only prospective effect. Thus, this court concludes that the subsequent enactment of this amendment to Correction Law § 851 (2) does not in any way cure the constitutional defects identified above with regard to Executive Order No. 5. Rather, the statute, as amended, appears to this court simply to codify the authority of the Governor to implement future exclusions or limitations on participation in the temporary release program by Executive Order.
Having concluded that Executive Order No. 5 is constitutionally invalid and having further concluded that the amendment to the Correction Law signed into law on June 10, 1995 does not retroactively validate Executive Order No. 5, the question that remains is whether the Legislature can properly delegate to the executive branch the authority to exclude or limit the
Petitioners argue that the amendment at issue here is overly vague and does not set forth any guidelines or standards to assist the Governor in exercising the delegated authority. This is not wholly true. The Legislature has not given the Governor unlimited authority to overhaul the temporary release program; his authority is limited to the issue of determining whether certain otherwise eligible inmates should nonetheless be excluded from the program. As noted above, the Legislature has indicated that the commissioner should be "guided by
This being said, however, the court considers this to be a very close case. The standards set forth to guide the Governor in the exercise of his executive authority are skeletal at best. It would have been preferable for the Legislature itself to rewrite the definition of "eligible inmate” rather than to leave this matter to be addressed by the Governor. However, to paraphrase the Court of Appeals recent decision in Bourquin v Cuomo (supra), the question whether the Legislature properly delegated this function to the Governor is not a question of preference, but one of constitutionality. On balance, this court finds that the amendment to the Correction Law at issue here does not violate the principle of the separation of powers.
As noted above, the Governor has not yet issued a second Executive Order pursuant to the authority granted by this statute. However, this court expects that in light of this decision striking down Executive Order No. 5 but sustaining the subsequent legislation, the Governor will shortly issue a new Executive Order similar to the first. The court has already indicated that participation in the temporary release program is a privilege, not a right. Although the only restrictions currently in place with regard to the temporary release program are those currently contained in Correction Law § 851, this court would like to make clear that this decision is not intended to create any new "right” to participate in the program for any inmates affected by the court’s decision.
One last matter remains to be addressed, however. Petitioners Antoinette Ferrer and Miriam Rodriguez were approved for the program prior to the issuance of Executive Order No. 5. After the issuance of the order both were informed that they were no longer eligible for the program. They contend that the regulations promulgated pursuant to the Executive Order are inconsistent with the Executive Order in that they did not
Cases involving removal of inmates from the program because they have been denied parole while participating in the program are instructive. As here, an inmate denied parole while on temporary release undergoes a change in eligibility status, as the statute defines eligibility based upon whether the inmate is within a certain period of his or her parole or conditional release eligibility date. Although cases hold that an inmate already participating in the program can be removed if he or she is denied parole (see, e.g., People ex rel. Feliciano v Waters, 99 AD2d 850), Correction Law § 851 (2) provides that "[i]n any case where an inmate is denied release