IN THE MATTER OF THE NEW YORK COUNTY LAWYERS’ ASSOCIATION ET AL., APPELLANTS, AND THE NEW YORK CRIMINAL BAR ASSOCIATION, INC. ET AL., INTERVENORS-PETITIONERS-APPELLANTS, v MICHAEL R. BLOOMBERG, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF NEW YORK, ET AL., RESPONDENTS, AND THE LEGAL AID SOCIETY OF NEW YORK, INTERVENOR-RESPONDENT-RESPONDENT.
First Department
March 15, 2012
95 A.D.3d 92, 940 N.Y.S.2d 229
In thе Matter of THE NEW YORK COUNTY LAWYERS’ ASSOCIATION et al., Appellants, and THE NEW YORK CRIMINAL BAR ASSOCIATION, INC. et al., Intervenors-Petitioners-Appellants, v MICHAEL R. BLOOMBERG, in His Official Capacity as Mayor of the City of New York, et al., Respondents, and THE LEGAL AID SOCIETY OF NEW YORK, Intervenor-Respondent-Respondent.
First Department, March 15, 2012
Haynes and Boone, LLP, New York City (Jonathan D. Pressment, David M. Siegal and Kendyl T. Hanks of counsel), for New York County Lawyers’ Association and others, appellants.
Satterlee Stephens Burke & Burke LLP, New York City (Zoe E. Jasper and Alun W. Griffiths of counsel), for New York Criminal Bar Association, Inc. and another, appellants.
Michael A. Cardozo, Corporation Counsel, New York City (Julian L. Kalkstein, Larry A. Sonnenshein and Thaddeus Hackworth of counsel), for Michael R. Bloomberg and others, respondents.
Davis Polk & Wardwell LLP, New York City (Daniel F. Kolb, Daniel J. O‘Neill and Jennifer Marcovitz of counsel), for Legal Aid Society, respondent.
OPINION OF THE COURT
ANDRIAS, J.
In this
The revised plan is a lawful “combination” plan under
County Law § 722
In 1965, in response to the United States Supreme Court decision in Gideon v Wainwright (372 US 335 [1963]) and the Court of Appeals decision in People v Witenski (15 NY2d 392 [1965]), New York State enacted
“The board of supervisors of each county1 and the governing body of the city in which a county is wholly contained shall place in operation ... a plan for providing counsel to persons charged with crime ... who are financially unable to obtain counsel” (L 1965, ch 878, sec 1, § 722).
The county or city was given four options for providing such counsel: representation by (1) “a public defender appointed pursuant to county law article [18]-A“; (2) “counsel furnished by a privatе legal aid bureau or society“; (3) “counsel furnished pursuant to a plan of a bar association ... whereby the services of private counsel are rotated and coordinated by an administrator,” or (4) “according to a plan containing a combination of any of the foregoing” (L 1965, ch 878, sec 1, § 722 [1]-[4]). On June 22, 2010,
“3. (a) Representation by counsel furnished pursuant to either or both of the following: a plan of a bar
association in each county or the city in which a county is wholly contained whereby: (i) the services of private counsel are rotated and coordinated by an administrator, and such administrator may be compensated for such service; or (ii) such representation is provided by an office of conflict defender” (L 2010, ch 56, § 1, part E, § 3 [amendments in italics]).2
The Evolution of the City‘s Indigent Defense Plan
On November 27, 1965, then Mayor Robert Wagner issued Executive Order No. 178, which, in conjunction with the joint plan of the Association of the Bar of the City of New York and the New York County Lawyers’ Association (the 1965 Bar Plan) that was approved by resolution of the City Council on April 28, 1966, established a
“The most recently promulgated Plan was published on November 27, 1965, in Executive Order Number 178: Furnishing of Counsel to Indigent Criminal Defendants Within the City of New York (‘1965 Plan‘). In the intervening forty-three years, the City has made several changes in the procedures governing the provision of indigent defense in order to ensure that the highest quality representation is provided to indigent defendants, and that the most advantageous arrangement for the City is implemented. In order to bring the Plan into conformity with current practice, this rulemaking is necessary” (emphasis added).
While LAS is still the primary institutional provider, one of these “changes” occurred in 1996, when the City began contracting with other institutional providers to provide indigent legal services pursuant to
Accordingly,
“In any case where, due to conflict of interest or other appropriate reason, Providers decline or are unable to represent an indigent person at the trial or on appeal in a criminal matter, counsel shall be furnished by attorneys assigned by the ACP [Assigned Counsel Plan] from the appropriate Criminal Defense Panel of the Appellate Division, First or Second Judicial Department, or by alternate providers selected by the CJC [Office of the Criminal Justice Coordinator] through the City‘s procurement process.”
The Criminal Defense Panels are to be managed by the newly created Office of the Assigned Counsel Plan (OACP), which is
Pursuant to chapter 13, on February 3, 2010, the City issued a request for proposals (RFP) inviting bids by private institutional vendors for the provision of indigent criminal defense services and for the assignment of conflict cases. Noting that seven organizations provided trial-level services in New York City and that the City expected to award at least one more contract in each county, the RFP stated that “the City is interested in providing representation in conflict cases and anticipates issuing awards to vendors who propose to provide representation in conflict cases.” A February 8, 2010 addendum corrected a statement in the RFP that “[t]herе will be at least 2 institutional providers in each county who will provide both primary and conflict representation,” stating that “[t]he City has not decided and the RFP does not state that a definite number of providers will be selected for each county.”
On March 2, 2010, the Mayor issued New York City Executive Order No. 132, which repealed Executive Order No. 178, but stated that “Criminal Defense Panels created under the authority of Executive Order 178 ... shall continue to exist and shall be administered in accordance with the rules of the Appellate Division, First and Second Judicial Departments.” However, a March 2, 2010 addendum to the RFP stated that the City‘s plan for indigent legal services as set forth in Executive Order No. 132 provided for a “private legal aid bureau or society” option in conformity with
“except that Criminal Defense Panels created under the authority of Executive Order 178 of 1965 and pursuant to the plan submitted by bar associations in accordance with subdivision 3 of section 722 of the County Law shall continue to exist and shall be administered in accordance with the rules of the Appellate Division, First and Second Judicial Departments.”
Executive Order No. 136 thus retained the 1965 Bar Plan Panels, which, along with institutional providers, would be available to serve as conflict counsel under the City‘s revised
In response to Executive Order No. 136, petitioners amended their pleading, seeking a direction that respondents “continue the current provision of indigent defense services under the 1965 Bar Plan, unless and until a constitutional and statutorily compliant alternate system is established.” Petitioners also asked the court to declare that “any contracts entered into by Respondents ... pursuant to Chapter 13, Executive Order 136 or the RFP are invalid to the extent they do not comply with all provisions of Article 18-B and the 1965 Bar Plan,” and moved for an order enjoining respondents “from executing, entering into or renewing any contracts with respect to conflict [cases] ... without first obtaining the consent of the County Bars.”
Analysis
“As a matter of statutory construction, a court must attempt to effectuate the intent of the Legislature and where the terms of a statute are clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used” (Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 442 [2011] [internal quotation marks, alterations and citations omitted]). “A statute or legislative act is to be construed as a whole, and all parts of an act are to be read and construed together to determine the legislative intent” (Frank v Meadow-lakes Dev. Corp., 6 NY3d 687, 691 [2006], quoting McKinney‘s Cons Laws of NY, Book 1, Statutes § 97). A construction “resulting in the nullification of one part of the [statute] by another[ ] is impermissible” (Rangolan v County of Nassau, 96 NY2d 42, 48 [2001]) and “[a] construction rendering statutory language superfluous is to be avoided” (Matter of Branford House v Michetti, 81 NY2d 681, 688 [1993]; see also Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 587 [1998]).
In enacting
Even if the practical effect of the revised plan will be to reduce the number of conflict cases assigned to 18-B Panel attorneys, the revised plan does not eliminate the participation of private attorneys through Criminal Defense Panels appointed by the First and Second Departments upon the recommendation of screening or advisory committees established under rules of those courts. Rather, recognizing that LAS has not been the sole institutional provider of indigent defense services since 1996, the revised plan rationally supplements the original 1965 plan by providing that where one institutional provider declines or is unable to represent an indigеnt person due to a conflict of interest, representation shall be provided by an attorney assigned from a Criminal Defense Panel under
“[T]he only actual change to the City‘s indigent defense system is that conflict cases are no longer automatically assigned to the 1965 Bar Plan Panels ... Aside from the aforementioned change regarding the automatic assignment of conflict cases, Executive Order 136 does not purport to make any changes to the rights and responsibilities of the County Bars with respect to the administration of the 1965 Bar Plan Panels.”
The dissent disagrees and postulates that the revised plan is not a valid combination plan because the City did not have the discretion to implement, without the participation and approval of the County Bars, the revisions to the original
Neither the language of the statute nor its tenor supports the dissent‘s view that
Nor is there any language in
The June 2010 amendment to
Indeed, as Supreme Court observed, a construction of
The dissent also states that the revised plan impermissibly transfers the authority to decide whether a conflict of interest exists from the judiciary to the institutional provider. However, while the 1965 Bar Plan provides that the court will appoint counsel from the appropriate panel where it “deems the assignment to be required in the interest of justice because of ... a conflict of interest,” it does not state that it is for the court,
Based on its belief that there is no valid plan of the bar association, the dissent in effect states that the revised plan is a
A court‘s authority to appoint conflict counsel under
Finally, petitioners argue that
In concluding that the City‘s revised plan is a valid
Accordingly, the order and judgment (one paper), Supreme Court, New York County (Anil C. Singh, J.), entered January 19, 2011, which, to the extent appealed from as limited by the briefs, denied the petition and granted respondents’ cross motion for summary judgment dismissing this proceeding brought pursuant to
ABDUS-SALAAM, J. (dissenting). I respectfully dissent and would grant the petition.
This proceeding challenges the plan of respondents Mayor Bloomberg, his Criminal Justice Coordinator (CJC) and the City of New York to make changes to the indigent defense system in New York City that has been in place since 1965. The core of the dispute is the manner in which the City proposes to assign so-called “conflict cases“—cases in which the primary provider at arraignment (The Legal Aid Society or another legal aid organization) is unable to accept representation due to a conflict of interest. Until recently, conflict defense counsel have been appointed through panels of individual attоrneys created and administered by the County Bar Associations, Assigned Counsel Panels commonly referred to as 18-B Panels. However, in January 2010, the City revised
Subsequent to the commencement of this proceeding, through discovery and representations made at oral argument, it has become evident that the City‘s ultimate goal is to have Legal Aid serve as the primary provider of conflict defense counsel. Petitioners claim that the City‘s new plan violates
Those alternatives, as they are set forth in the current version оf
In 1965, then-Mayor Wagner issued New York City Executive Order No. 178, by which the City established an indigent defense plan that was a Combined Option Plan pursuant to
In January 2010, the CJC revised
Significantly, while Executive Order No. 132 indicated that respondents intended to continue with the Combined Option Plan, using elements of both
“As may be seen, section 722 provides four alternative means that may be chosen by a locality for the provision of indigent legal services. One of those alternatives, set forth in subdivision three, is the adoption of a bar association plan for the rotation of legal services among private counsel. However, the City is in no way required, in formulating its plan for indigent legal services, to conform to the alternative provided in subdivision three.
“The City‘s current plan for indigent legal services, sеt forth in Executive Order No. 132, and in chapter 13 of Title 43 of the Rules of the City of New York, conforms to subdivision two of section 722, which provides for legal representation in criminal proceedings by ‘a private legal aid bureau or society designated by the [City].’ This is entirely in accordance with the requirements of section 722. The City‘s previous plan for the provision of indigent legal services, explicitly repealed by Executive Order No. 132, relied on services provided pursuant to the plan of a local bar association. That plan is no longer in effect” (emphasis added).
Petitioners commenced this proceeding seeking declaratory and injunctive relief pursuant to
The City, apparently realizing that in order to claim it had a Combination Plan it would have to repeal the revocation of the 1965 Bar Plan, acted to resurrect the Bar Plan by issuing New York City Executive Order No. 136 of 2010, entitled “Repeal of Prior Executive Orders Relating to the Indigent Defense Plan for the City of New York.” Executive Order No. 136, the repeal of the revocation, provides, in pertinent part, that whereas the CJC had promulgated rules (set forth in chapter 13 of title 43 of the Rules of the City of New York) that established a plan for representation of indigent defendants,
“Executive Order No. 132 of 2010 and Executive Order No. 118 of 2008,2 both entitled ‘Indigent Defense Plan for the City of New York,’ are hereby repealed. Further, Executive Order No. 178 of 1965, entitled ‘Furnishing Counsel to Indigent Criminal Defendants Within the City of New York,’ is hereby repealed, except that Criminal Defense Panels created under the authority of Executive Order 178 of 1965 and pursuant to the plan submitted by bar associations in accordance with subdivision 3 of section 722 of the County Law shall continue to exist and shall be administered in accordance with the rules of the Appellate Division, First and Second Judicial Departments” (emphasis added).
Notably, under the purported “Bar Plan” that the City argues has been incorporated into its new plan, the 18-B Panel attorneys are no longer the designated conflict counsel, as they were under the 1965 Bar Plan. While Executive Order No. 136 retains the Criminal Defense Panels created in 1965 “pursuant to the plan submitted by bar associations,” the “Bar Plan” described by chapter 13 was formulated by respondents, not by the bar associations.
The City‘s Bar Plan is markedly different from the version devised and approved by the County Bars in 1965. Petitioners stress that the County Bars were all signatories to the 1965 Combined Option Plan and the 1965 Bar Plan, and that they
While the majority minimizes the differences between the original 1965 Bar Plan and the “Bar Plan” currently proposed by the City, the differences are material. For example, the County Bars’ original 1965 plan provides that The Legal Aid Society is to be the primary provider of representation and
The majority quotes from a decision issued in New York County Lawyers’ Assn. v Bloomberg (2011 WL 4444185, 2011 US Dist LEXIS 112929 [SD NY 2011]), where, in dismissing causes of action brought by plaintiffs for violations of the
While the County Bars’ original 1965 plan provides that the judiciary is to decide whether a conflict exists, under the City‘s plan, the institutional provider has the authority to accept or decline a representation. The majority is incorrect in stating that the 1965 Bar Plan did not contain a provision regarding the supervision of conflict determinations. The 1965 Bar Plan states as follows:
“I. The Legal Aid Society
“Under this Plan, whenever a determination has been made by a court that a defendant is entitled to
representation under Article 18-B of the County Law , the court shаll designate and appoint the Attorney-In-Charge of the Criminal Courts Branch of the Legal Aid Society as the attorney of record for the defendant in all cases, unless:“1) the court deems the assignment of other counsel to be required in the interest of justice because of either a conflict of interest or any other good cause, in which event the court shall appoint counsel to be designated by the appropriate Administrator from the appropriate panel as hereinafter provided . . .”
The City‘s plan substitutes institutional providers for some
Furthermore, the City‘s plan changes the management structure of the Bar Panels. Under the 1965 Bar Plan, each bar association submits a list of qualified attorneys to an administrator or administrators appointed by the First and Second Departments, and upon receipt of the list, thе administrator prepares panels from which assignments are made. The City of New York‘s only involvement in the management of the panels is that it pays the salaries of the administrators and staff. The City‘s plan creates an “Office of the Assigned Counsel Plan” (OACP), which is an office of the City, “responsible for management of the City‘s Criminal Defense Panels” (
While the City and Legal Aid point out that the City‘s plan calls for the continued involvement of administrators from the First and Second Departments in that the OACP is overseen by two administrators in consultation with the Presiding Justices of the First and Second Departments, the salient point is that there were no provisions under the 1965 Bar Plan—the only Bar Plan that was formulated and approved by the County Bars—for an office of the Mayor to oversee the panels. I note that the majority has adopted the opinion expressed by the City in its brief that the City‘s plan to oversee this process is designed to avoid favoritism and nepotism, and observe that the majority is engaging in the type of merit review of the plan that it еmphasizes is not the province of this Court.
Additionally, the City‘s plan does not include any provision for the County Bars’ continued participation in the attorney
In denying petitioners’ challenge to the City‘s plan, the motion court‘s rationale was based on the premise, urged by the City and Legal Aid, that the new plan will be a combination plan pursuant to
The motion court observed that the County Bars had not adopted portions of the City plan, and held that the City has discretion under
Because there is no plan of a bar association, and there is no authority in the statute for the City to promulgate a plan of a bar association and impose that plan upon a bar association, it follows that the City‘s plan cannot be a combination of subdivision (2) (representation by institutional providers) and subdivision (3) (representation by counsel furnished pursuant to a plan of a bar association). This conclusion is reached upon consideration of the statute and the 1965 Bar Plan, and not, as intimated by the majority, any assessment of the wisdom or prudence of the City‘s plan or an exercise in judicial legislation under the guise of interpretation. I have engaged in a straightforward analysis of the meaning and intent of
The City‘s plan thus falls under
The majority asserts that even if I am correct that the revised plan must be analyzed as a
While the motion court and the majority are correct that
Had the Legislature intended a private legal aid bureau to be an appropriate source of conflict counsel in a
“Representation by counsel furnished pursuant to either or both of the following: a plan of a bar association in each county or the city in which a county is wholly contained whereby: (i) the services of private counsel are rotated and coordinated by an administrator, and such administrator may be compensated for such service; or (ii) such representation is provided by an office of conflict defender” (added language italicized).
While the majority points out that the Legislature did not act on a proposed 2011 amendment to clarify the language in
MOSKOWITZ and RICHTER, JJ., concur with ANDRIAS, J.; MAZZARELLI, J.P., and ABDUS-SALAAM, J., dissent in a separate opinion by ABDUS-SALAAM, J.
Order and judgment (one paper), Supreme Court, New York County, entered January 19, 2011, affirmed, without costs.
Notes
“2. Notwithstanding any other provision of this article, representation in all criminal conflict cases shаll be furnished by private counsel duly certified as qualified in accordance with paragraph (a) of subdivision three of this section except in any county operating an office of conflict defender as described in paragraph (c) of subdivision three of this section. In any multiple defendant case representation to one defendant shall be furnished by one legal aid bureau or society, or one other provider designated to the county or city, organized and operating to give legal assistance and representation to persons charged with a crime within the city or county who are financially unable to obtain counsel; all other defendants in the same case shall be considered conflict cases and representation shall be provided by private counsel duly certified as qualified in accordance with paragraph (a) of subdivision three of this section except in any county operating an office of conflict defender as described in paragraph (c) of subdivision three of this section.
“[3] (a) Representation by counsel furnished pursuant to either or both of the following: a plan of a bar association in each county or a bar association of the city in which a county is wholly contained whereby: (i) the services of private counsel are rotated and coordinated by an administrator, and such administrator may be compensated for such service; or (ii) such representation is provided by an office of conflict defender” (2011 Senate-Assembly Bill S5421, A6561 [proposed amendments in italics]).