Lead Opinion
OPINION OF THE COURT
The issue presented in this appeal is whether the Chief Administrative Judge acted within the authority granted him by the New York State Constitution when he amended section
Article 18-B of the County Law requires all counties to maintain a plan to provide counsel to individuals charged with a crime or who are otherwise statutorily entitled to representation (County Law § 722). One manner in which a county may furnish representation is through a bar association plan in which the services of private counsel are rotated and coordinated by an administrator (the Assigned Counsel Plan) (County Law § 722 [3]). Section 722-b of the County Law governs the compensation rates for attorneys who participate in the Assigned Counsel Plan. During the period relevant to this case, County Law § 722-b provided that attorneys participating in the Assigned Counsel Plan be compensated at a rate not to exceed $25 per hour for work performed outside of court and $40 per hour for work performed in court, plus reasonable expenses. The provision further imposed a cap of $800 for misdemeanor cases and $1,200 for felony cases and all appellate matters.
These assigned counsel rates, in effect since 1986, have worked a hardship upon the assigned counsel system as the number of attorneys willing to participate in the program severely decreased because the fees were inadequate. At the same time, the number of individuals in nеed of assigned representation increased, causing many trial courts to struggle to find attorneys willing to represent indigent defendants in criminal proceedings. There arose a growing concern that the lack of attorneys available to represent indigent criminal defendants threatened to deny such individuals their federal and state constitutional rights. To alleviate the problеm, a number of trial
This practice prompted protests from localities responsible for paying these enhanced awards. There was, however no mechanism to review these enhanced awards, either judicially or administratively. In 2001, after consulting with the Administrative Board of the Courts, the Chief Administrative Judge amended section 127.2 to vest the power to review these awards with the appropriate administrative judge. Specifically, the Chief Administrative Judge amended section 127.2 (b) to give administrative judges the power to review enhanced awards, with or without application, and to modify an award “if it is found that the award reflects an abuse of discretion by the trial judge.”
Plaintiffs Leonard Levenson, Richard A. Siracusa and James H. Tatem are all criminal defense attorneys who participate in the Assigned Counsel Plan, Felony Panel for the County of New York, representing indigent defendants in criminal proceedings. As relevant here, plaintiffs were appointed to represent indigent defendants in five separate criminal proceedings. In each of the underlying proceedings, plaintiffs submitted applications to the presiding trial judge requesting comрensation in excess of the statutory limit, and in each instance the respective trial judge determined that extraordinary circumstances warranted an upward departure from the statutory rates. One Justice ordered compensation for Levenson at an hourly rate of $75 for work performed in and out of court, for an aggregate compensation of $10,462.50. Upon Levеnson’s application in a separate trial, another Justice ordered that Levenson be compensated at an hourly rate of $65 for in court work and $25 for out of court work, totaling $4,007.50. Similarly, a Justice ordered that Siracusa be paid an hourly rate of $75, for a total of $4,875. Tatem’s application for compensation in one case resulted in a Justice ordering that he be paid at a rate of $75 per hour, for a
In each case, the Director of the Assigned Counsel Plan submitted a request for review of the enhanced fee awards to Administrative Judge Micki A. Scherer, whom the Chief Administrative Judge appointed pursuant to section 127.2 (b) to review such excess compensation awards in the Supreme Court, Criminal Term, First Judicial District. Judge Scherer modified each enhanced award by reducing the compensation to the maximum rates set forth in County Law § 722-b.
In January 2002, plaintiffs Siracusa and Tatem commenced a declaratory judgment action against defendants Jonathan Lippman, in his official capacity as Chief Administrative Judge of the Courts, Judge Scherer and the New York State Office of Court Administration challenging the constitutionality of section 127.2 (b). In May 2002, plaintiff Levenson brought a similar action, which was subsequently consolidated with the Siracusa/Tatem action pursuant to a stipulation. Plaintiffs, in their respective complaints, asserted that section 127.2 (b) “unconstitutionally permitted the establishment of an appellate court by delegating the power to review a trial court’s order to” an administrative judge.
Ruling on plaintiffs’ declaratory judgment action, Supreme Court declared that (1) in amending section 127.2 (b), the Chief Administrative Judge did not exceed the authority granted to him by the New York Constitution and the New York Legislature; (2) section 127.2 (b) is neither invalid nor unconstitutional; and (3) Judge Scherer’s orders modifying the awards of compensation granted by the trial judges are valid. Rejecting plaintiffs’ argument that the trial courts’ exercise of discretion in the award of enhanced compensation fees was not subject to review, the court, relying on Matter of Werfel v Agresta (
Defendants appealed to this Court as a matter of right on constitutional grounds, pursuant to CPLR 5601 (b), and we now reverse the order of the Appellate Division and reinstate the judgment of Supreme Court.
In Matter of Werfel v Agresta (
In Matter of Director of Assigned Counsel Plan of City of N.Y. (Bodek) (
Initially, we noted that, as to appealability, there was no meaningful distinction between the County Law §§ 722 and 722-b assigned-counsel compensation order to be appealed in Werfel and the County Law § 722-c assigned-expert compensation orders in Bodek. We went on to hold that “[s]uch orders are essentially administrative in nature and, accordingly, are not amenable to judicial review on the merits by an appellate panel.” (
We reaffirm our holdings in Werfel and Bodek today. In doing so, we disagree with the Appellate Division’s conclusion that, by promulgating section 127.2 (b), the Chief Administrative Judge unconstitutionally divested the Appellate Division of its jurisdiction to review compensation orders issued by the Supreme Court by assigning that power to administrative judges. Indeed, the Aрpellate Division’s holding is the very opposite of its holding in Bodek, which we affirmed. Because, under Bodek and Werfel, the appellate courts have no power to review a trial court’s excess compensation award, and this Court’s decisions contemplated administrative review of such awards, section 127.2 (b) does not confer upon an administrative judge any authority that would otherwise belong to the appellate cоurts.
We further conclude that the Chief Administrative Judge properly adopted section 127.2 (b) pursuant to his regulatory power under the State Constitution and the Judiciary Law. New York Constitution, article VI, § 28 (b) states:
“The chief administrator, on behalf of the chief judge, shall supervise the administration and operation of the unified court system. In the exercise of such responsibility, the chief administrator of the courts shall have such powers and duties as may be delegated to him or her by the chief judge and such*290 additional powers and duties as may be provided by law.”
Moreover, Judiciary Law § 212 (1) states that it is the role of the Chief Administrator of the Courts to “supervise the administration and operation of the unified court system” on behalf of the Chief Judge. In the exercise of that responsibility, section 212 (1) provides that the Chief Administrator “shall have such powers аnd duties as may be delegated to him by” the Chief Judge.
The powers and duties of the Chief Administrative Judge, as delegated by the Chief Judge, are set forth in 22 NYCRR 80.1, which in pertinent part provides:
“(b) In the exercise of this delegated responsibility and in accordance with the standards and administrative policies established, approved and promulgated pursuant to article VI, section 28 (c) of the Constitution, the Chief Administrator shall: . . .
“(6) adopt administrative rules for the efficient and orderly transaction of business in the trial courts, including but not limited to calendar practice, in consultation with the Administrative Board of the Courts or the appropriate Appellate Divisions.”
Defendants maintain, and we agree, that with the advice and consent of the Administrative Board, the Chief Administrator properly рromulgated section 127.2 (b) pursuant to his delegated authority to adopt rules for the efficient and orderly transaction of trial court business. The allocation of finite financial resources for the payment of assigned counsel is a concern for court administrators, and the Chief Administrator validly adopted section 127.2 (b) pursuant to the authority delegated to him under 22 NYCRR 80.1.
Finally, we find unpersuаsive plaintiffs’ argument that section 127.2 (b) violates New York Constitution, article VI, § 30 by intruding upon the Legislature’s authority to regulate proceedings in law.
Accordingly, the order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court reinstated.
Notes
. County Law § 722-b has since been amended. Effective January 1, 2004, compensation rates for assigned counsel were increased to $75 per hour (for work performed in and out of court) for felony cases and appeals, with a maximum compensation limit of $4,400. For misdemeanor cases, the compensation rates were increased to $60 per hour, with a maximum limit of $2,400.
. Prior to thе amendment, section 127.2 (b) provided that, upon proper application to review an award of enhanced attorney’s fees, the trial judge could reconsider the award in consultation with the appropriate administrative judge. The final determination of the fees, however, remained with the trial judge.
. New York Constitution, article VI, § 30 states:
“The legislature shall have the same power to alter and regulаte the jurisdiction and proceedings in law and in equity that it has heretofore exercised. The legislature may, on such terms as it shall provide and subject to subsequent modification, delegate, in whole or in part, to a court, including the appellate division of
Concurrence Opinion
Although I join the Court’s opinion without reservation, I write separately to acknowledge the Appellate Division’s conсern&emdash;so ardently expressed in the case before us&emdash;that Rules of the Chief Administrator of the Courts (22 NYCRR) § 127.2 (b) would divest that Court of the power to review orders of the kind involved here. Although I agree that the Chief Administrative Judge had the authority to promulgate section 127.2 (b), I note that he did so only after the Legislature did not enact 1995 NY Senate Bill S 4481. Under that bill, which was introduced at the request of the Office of Court Administration on the recommendation of the Administrаtive Board of the Courts, the Appellate Division would have been given authority to conduct expedited reviews of enhanced payment vouchers.
*291 the supreme court, or to the chief administrator of the courts, any power possessed by the legislature to regulate practice and procedure in the courts. The chief administrator of the courts shall exercise any such power delegated to him or her with the advice and consent of the administrative board of the courts. Nothing herein contained shаll prevent the adoption of regulations by individual courts consistent with the general practice and procedure as provided by statute or general rules.”
A decade ago, keenly sensitive to the viewpoint of the trial and appellate justices, the court administration sought passage of S 4481, which would have authorized review by the Appellate Division, instead of review by administrative judges. Because the Senate bill was never enacted, the Chief Administrative Judge exercised his powers to provide for administrative review, the only review he could institute without legislation. Given this background, the Legislature may wish to consider vesting the Appellate Division with the authority to review vouchers of this type, as contemplated by S 4481. In that fashion, the best of both worlds would be realized: filling a void in oversight and giving that oversight to аn appellate tribunal.
Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur in per curiam opinion; Judge Rosenblatt concurs in a separate concurring opinion; Chief Judge Kaye taking no part.
Order reversed, etc.
In pertinent part, the proposed legislation read,
*292 “Any order of a trial court determining a claim for compensation or reimbursement hereunder shall he subject to review in the court having appellate jurisdiction of thе action in which the claim was made upon application of the claimant or the political subdivision upon which payment of the claim is a charge. The appellate court shall provide for the expedited determination of such application and may confirm, increase, or decrease the compensation or reimbursement awarded.”