Lead Opinion
The People appeal from an order of Justice Harold Roth-wax, Supreme Court, New York County, dated June 15, 1988, which dismissed 265 of the substantive counts, and struck certain language and 89 overt acts from the conspiracy count, from an indictment charging the various defendants with a total of 665 counts (
The indictment is based upon the premise that utilization of legislative aides in State senatorial campaigns prior to 1987 constituted an impermissible use of State employees and that payments of salaries out of the legislative budget for services rendered by such aides in political campaigns constituted violations of general Penal Law provisions relating to theft, fraud and filing of a false instrument. Defendants challenge the applicability of these penal statutes to legislative campaigning. They assert that this prosecution impermissibly intrudes into constitutionally protected areas affecting the separation of powers and responsibilities among the three coordinate branches of the State government and violates the constitutional privileges of the Legislature and its members under the Speech or Debate Clause. Arguments are also raised regarding the lack of clarity and certainty on the issues underlying this prosecution which implicate due process considerations of “notice”.
Contrary to the position taken by the People and the dissent, we find that article 78 relief is available to defendants in this case. Prohibition is allowed when a court acts “ 'without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized
The charges are predicated on allegations that prior to the November 1986 general election, by reason of attempts by New York State Senate Minority Leader Manfred Ohrenstein to secure a Democratic majority in the Senate,
To place these charges in perspective a brief description of the way in which the State Senate operates is helpful.
The New York State Senate, in Albany, is presided over by the Majority Leader who is a Senator from the party which holds the majority of the seats in that body and who sets the legislative agenda and controls the legislative commissions. In 1986, the Majority Leader was a Republican chosen from among the 35 Senators from that party. The Minority Leader selected from among the 26 Democratic members was Senator Ohrenstein, who had held that position since the early 1970’s. Regular legislative sessions are held from January to June, and at times a Special Session near the end of the year. A
The Senate budget, which is distributed along party lines, is negotiated between the Minority and Majority Leaders. The Minority Leader then allocates funds to each of the Senators from his party to be used to meet office and administrative expenses including staff salaries and mailing costs. Within the budget he or she has been allocated, each Senator determines the titles, salaries, working hours and vacation time of that Senator’s employees.
A Senator who is assigned to a commission is entitled to additional staff. The appointment of minority Senators to such commissions is made by the Minority Leader, and his office is also responsible for hiring minority staff employees for the commissions and designating their titles. Francis Sanzillo, who had been Senator Ohrenstein’s chief of staff since 1984, was the person charged with reviewing and approving the hiring of these employees from that time on, subject to Senator Ohrenstein’s approval.
Although the Senate has no uniform policy regarding job descriptions or working hours, which are left to the individual Senator, there are procedures for placing a person on the payroll. A person may be employed for a session, or for the year, and it is not uncommon for employees hired on a session basis to change payrolls from one session to the next. At the beginning of every session each Senator must file a form entitled "Recommendation for Employment” for each member of his staff. This form, signed by the Senator, indicates the employee’s name and title and upon its submission to the Senate personnel office, the person is placed on the payroll. For those employees to be paid, the Senator must submit to the Senate payroll office biweekly payroll certification forms. These forms include a payroll list specifying the employees on
For minority staff employees on commission payrolls, the Minority Leader or his representative, in this case Sanzillo, prepares the certifications which are sent to the commission chairperson, a Senator of the majority party. The commission chairperson transmits these certifications to the Senate payroll office. The payroll office prepares a master payroll of all Senate employees which is submitted to the State Comptroller who in turn issues the checks. The checks are transmitted to the Senate payroll office for distribution to the named employees on a biweekly basis. These payroll certifications, for particular Senators’ staffs and for commission employees, are the basis of the offering a false instrument for filing counts in the indictment.
As a result of Senator Ohrenstein’s position as Minority Leader, he had by 1986 accumulated a very sizeable staff and his office had become the center for coordinating Democratic strategy with respect to legislation in the Senate. While some of Ohrenstein’s staff worked on research and the drafting of bills and the providing of constituent services to his district, the greater part of his staff served as staff to the Senate Minority Conference. The Conference’s function is to formulate a united and cohesive plan of legislation for the Democratic Senators, and also to aid new Senators in establishing local district offices and in generally familiarizing them with Senate procedures. Often staff employees from the Minority Leader’s office would be permanently assigned to another minority Senator’s individual staff without switching payrolls.
As Minority Leader, Senator Ohrenstein’s staff is composed
The Minority Conference operates in two major areas— legislative and political. These parallel functions are each supervised by a "steering committee” composed of Democratic Senators. Although membership on the steering committees is not identical, the Minority Leader, Senator Ohrenstein, heads both. The legislative steering committee’s efforts are directed to implementing the Democratic Conference’s legislative agenda. It is, however, the political steering committee, which is involved with supervising Democratic senatorial campaigns, that is of particular relevance, in the context of this case.
As indicated, Senator Ohrenstein is the head of the political steering committee and Francis Sanzillo, his deputy, had been in charge of its operations since 1982. The political steering committee oversees Democratic campaigns for the State Senate and targets certain districts for particular attention. When these districts are selected, the political steering committee promulgates campaign strategy and is involved in setting the campaign budget, approving the campaign manager and receiving reports on the progress of the campaign.
In addition to its ability to assign staff to work on specific campaigns, the Minority Conference political steering committee also has control over the funds of the Senate Democratic Campaign Committee (SDCC), a group which is the campaign finance organization of the State Democratic Party relative to State Senate campaigns. Sanzillo, as the person in charge of
The majority of the counts in the indictment refer to legislative employees assigned to work on the major campaigns targeted by the Minority Conference political steering committee in 1986. These employees were conveniently grouped by Judge Rothwax as follows:
Category 1—10 people who had been on the Senate payroll prior to the campaign and were loaned out, on a full-time basis, to assist various Democratic candidates during the campaign while remaining on the Senate payroll.
Category 2—8 people placed on the Senate payroll who were hired to work on the 1986 campaign and were thereafter retained to work in the 1987 legislative session.
Category 3—18 people on the Senate payroll who were hired to work on the 1986 campaign and were removed from the payroll at the end of the campaign.
Category 4—3 persons on the payroll who did not render services of any type and who are classified as "no-shows”.
There are individuals included in the foregoing who áre the subject of counts that fall outside of the time periods specified in their categories. Arlene Wolff was placed on the Senate payroll for the period from January 1, 1981 to October 20, 1982 during which she did fund raising for the SDCC. Barbara Zebersky, who was also involved exclusively in fund raising, but for individual campaigns, was hired in April 1984 as part of the Minority Conference staff. The periods of her employment, that are the subject of counts in the indictment, precede and overlap with those in the above-enumerated categories. These periods are April 19, 1984 through January 9, 1985; January 10, 1985 through January 8, 1986 and January 11, 1986 through December 31, 1986.
Individuals also falling outside of the 1986 campaign time period are persons classified as "no-shows” (Category 4). These are persons who were placed on the payroll but did not render any services at all, either campaign or legislative. They include Joseph Walsh, who was placed on the district office payroll for the period of June 2, 1983 to July 9, 1986, and
Carmen Del Priore was not placed in Category 4 by the court because she was hired within the context of the Montalto campaign and therefore was classified in Category 3. However, a review of the Grand Jury testimony demonstrates that she did no work and should be grouped with the other "no-show” employees. When placed on the payroll she was given the title "Administrative Assistant to the Minority”. Her employment, which began August 21, 1986, was terminated effective November 12, 1986.
The original indictment charged the existence of a conspiracy (Penal Law § 105.05) among the defendants between January 1, 1986 and January 1, 1987, to commit the felonies of offering a false instrument for filing in the first degree (Penal Law § 175.35) and grand larceny in the first and second degrees. (Penal Law former §§ 155.35, 155.40.) In addition to the conspiracy count, the original indictment contained 613 substantive counts of offering a false instrument for filing, 44 counts of grand larceny, six counts alleging theft of services (Penal Law § 165.15 [9]) in that the labor of employees was diverted to the use of political candidates. A final count charged all defendants except Senator Quattrociocchi with defrauding the government (Penal Law § 195.20 [eff Nov. 1, 1986]) in that from November 1, 1986 to December 24, 1986, they obtained property from the State by a scheme to defraud.
The conspiracy count generally refers to the 1986 State senatorial campaign, while however, the substantive counts cover time periods between 1981 and 1986.
Senator Ohrenstein was charged in a total of 581 of the false instrument counts. He was charged jointly with Francis Sanzillo in 511 of those counts as well as in 36 counts of grand larceny and in the six counts of theft of services. He and Sanzillo were also charged jointly with Senator Babbush in 12 false instrument counts and in a single count of grand larceny
In addition to the foregoing, Francis Sanzillo was charged individually in one grand larceny count with regard to the 1986 employment of Glenn Van Brauner, and Senator Babbush was individually charged in 20 false instrument counts and one count of grand larceny with regard to the employment of Barbara Zebersky.
All counts in which Senator Quattrociocchi was charged were dismissed and the People are not appealing the dismissal of the portions of the indictment pertaining to him.
Trial Term granted, in part, defendants’ motion to dismiss the indictment by dismissing 265 of the 665 counts (
The counts dismissed by the trial court related to employees who had also performed noncampaign legislative work while assigned to senatorial campaigns or who had been on the Senate payroll prior to the election campaign (Category 1) or who had been hired for the campaign but were thereafter retained for the 1987 legislative session (Category 2). In addition, the court dismissed the count of defrauding the government (Penal Law § 195.20) which was based on the vacation period given to employees after the 1986 election and the six theft of services (Penal Law § 165.15) counts. It is from these dismissals that the People appeal, while the defendants, in their petition, seek dismissal of the balance of the indictment.
The People and the dissent contend that the court erred (1) in holding that, under the Speech or Debate Clause, the performance of some legislative acts by certain Senate employees precluded prosecution of the defendants for what is claimed to be larcenous conduct involving those employees and (2) in ruling that the question of whether certain other
Defendants take the position that the conduct complained of by the People is not criminal and that the People’s contrary assertion requires such a tortured construction of the law that, were it to be adopted, it would defeat the constitutional requirements of certainty and clarity embodied in the due process concept of "notice”. Defendants further claim that, by attempting to criminalize their activities, the People are impermissibly intruding into the Legislature’s affairs in violation of the doctrine of separation of powers and of the Speech or Debate Clause.
We turn first to defendants’ argument that this prosecution in its entirety intrudes into the legislative sphere in violation of the separation of powers and the Speech or Debate Clause.
We conclude, as did the trial court after a careful and thorough analysis, that the latter clause is of limited application to this case. Article III, § 11 of the NY Constitution, commonly referred to as the "Speech or Debate” Clause, states that "For any speech or debate in either house of the legislature, the members shall not be questioned in any other place”. An identical provision is contained in the United States Constitution. (US Const, art I, § 6, cl 1.)
The purpose of the clause is to protect the integrity of the legislative process. A legislator’s speech within the confines of his official duties should not be inhibited because of a fear of litigation. (Oates v Marino,
As interpreted by the United States Supreme Court, the provision is not intended to confer a general exemption upon legislators from liability or from process in criminal cases, but is, rather, directed to matters which "must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of
The privilege has been expanded to include legislative personnel where the employees’ duties are directly related to the due functioning of the legislative process. "Thus, if the employee’s duties are an integral part of the legislative process, such that they are directly assisting members of Congress in the 'discharge of their functions,’ personnel decisions affecting them are correspondingly legislative and shielded from judicial scrutiny.” (Browning v Clerk, U. S. House of Representatives, 789 F2d 923, 929, cert denied
While it is recognized that legislators necessarily engage in many activities beyond the purely legislative and that there are many legitimate errands of a political nature that have come to be expected of them such as assisting and working with constituents, meeting with other governmental agencies, obtaining governmental contracts, preparing news releases, making speeches and sending newsletters to constituents, activities of this type have been held not to be covered by the protection afforded by the Speech or Debate Clause. (United States v Brewster,
In the instant case, there was evidence presented to the Grand Jury that Senate employees Patrick Prefetti and Ingrid Stettner prepared a report for the Senate Dairy Commission in October 1986, which falls within the period covered by the indictment, and that Mary Rose Stevenson, during September and October 1986, arranged a legislative hearing on tax issues. These activities clearly fall within the ambit of legislative acts that are covered by the Speech or Debate Clause (Gravel v United States, supra, at 624; Hutchinson v Proxmire,
The indictment cannot be legally sufficient if it is based on Grand Jury testimony which may require inquiry into legislative acts or the motivation for legislative acts. (United States v Brewster, supra.) Although the general rule is to view the Grand Jury evidence in the light most favorable to the People, that rule does not apply where the constitutional rights
In this case the trial court properly found that the People failed to meet their obligation of showing that the prosecution with respect to the counts relating to Prefetti, Stettner and Stevenson could proceed without touching upon the specifics of their privileged legislative assignments. Accordingly, the dismissal of those counts, involving Prefetti and Stettner, on speech or debate grounds, is affirmed, no appeal having been taken from the dismissal of counts regarding Stevenson.
While the People and the dissent take issue with the foregoing conclusion, they argue that, in any event, "the Speech or Debate Clause completely meets all of the separation of powers concerns implicated by a prosecution against a legislator”. We disagree. As recognized by the trial court, the separation of powers doctrine is not contiguous with the Speech or Debate Clause but has a far broader reach. The People and dissent’s position ignores the basic policy which requires "the exercise of a proper restraint on the part of the judiciary in responding to invitations to intervene in the internal affairs of the Legislature as a co-ordinate branch of government—'it is not the province of the courts to direct the legislature how to do its work’ ”. (New York Pub. Interest Research Group v Steingut,
It has been recognized that the separation of powers in our tripartite form of government gives rise to so-called "political questions”, not to be confused with "political cases”, which are not appropriate for judicial intervention and which are held to be nonjusticiable. While the contours of what constitutes such a "political question” are necessarily flexible, and not always easy of definition, the United States Supreme Court in Baker v Carr (
"[1] A textually demonstrable constitutional commitment of the issue to a coordinate political department; or "[2] a lack of judicially discoverable and manageable standards for resolving it; or
"[3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or "[4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or "[5] an unusual need for unquestioning adherence to a political decision already made; or "[6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question”.
If any one of the foregoing is "inextricable from the case at bar”, the matter can be held to involve a nonjusticiable political question. (Baker v Carr, supra, at 217.)
In arguing that the scope of the duties performed by legislative employees, including those that are of an exclusively political nature, constitute a nonjusticiable issue, defendants
We agree that relevant considerations raised in Baker v Carr (supra) are implicated and inextricably entwined with the facts of the instant case to the extent it relates to the issue of whether the assignment of legislative employees to work on senatorial campaigns falls within the proper duties of such employment.
Our analysis is undertaken within the parameters of the continually reaffirmed precept thát "[t]he object of a written Constitution is to regulate, define and limit the powers of government by assigning to the executive, legislative and judicial branches distinct and independent powers. * * * It is a fundamental principle of the organic law that each department should be free from interference, in the discharge of its peculiar duties, by either of the others”. (People ex rel. Burby v Howland,
Under our State Constitution, the Legislature is vested with sole authority to enact laws for the appropriation of funds to be paid out of the State treasury (art VII, § 7; People v Tremaine,
"[A]s a matter of substantive law every legislative enactment is deemed to be constitutional until its challengers have satisfied the court to the contrary”. (Montgomery v Daniels,
Generally, the courts will not interfere with the internal procedural aspects of the legislative process, but judicial review may be undertaken with respect to the budget to determine whether the Legislature has complied with constitutional prescriptions as to legislative procedures (Matter of Board of Educ. v City of New York,
The dissent asserts that "[t]he Court of Appeals has repeatedly held that the judiciary not only may, but must, decide whether purportedly 'internal’ legislative procedures comply with State statutes and constitutional provisions” citing Matter of Board of Educ. v City of New York (supra) and Matter of Anderson v Krupsak (
The Constitution textually commits the issue of budget enactment and regulation of wages and hours of State employees to the Legislature, which in this case has exercised that authority by merely broadly directing that a particular allocation be used "for personal services of employees”. The People’s assertion that the extent to which that allocation has been properly used is "a question of law to be determined by the Court” implicates other considerations raised in Baker v Carr (
While the Legislature is constitutionally vested with the authority to "regulate and fix the wages or salaries and the hours of work or labor * * * of persons employed by the state”, the Minority Leader of thé Senate is given the power by statute, to "appoint such employees to assist him in the performance of his duties as may be authorized and provided for in the legislative appropriation bill” (Legislative Law § 6 [2]) and certain other employees to fill specified offices and positions (Legislative Law § 7). As the appointing officer of these various employees, he is given the authority to determine their tenure (Legislative Law § 8) and their compensation (Legislative Law § 10). The duties of the Minority Leader of the Senate are not otherwise defined nor is there any further statutory illumination of the scope or nature of the duties of legislative employees. Clearly, however, these are matters which are singularly within the Legislature’s own purview involving as they do the internal procedures and administration of the functions and peculiar duties of that body, which it has been held should be free from interference from another branch of government. (Matter of Gottlieb v Duryea,
While it is unquestioned that during the time period covered by the indictment there were no legislatively promulgated standards or rules governing the nature or scope of the duties or other terms of employment for Senate employees, there is a long history indicating the Legislature’s awareness of and sensitivity to the interrelationship between political considerations and legislative activity and its failure to take action regarding the issue. In 1945, a New York State Joint Legislative Committee declared that the duties of the Senate Minority Leader included "conducting] legislative program for minority party”, and that the duties of the Minority Leader’s administrative staff included "[p]erform[ing] administrative, research, clerical, [and] publicity services for party program” (Interim Report of NY St Joint Legis Comm on Legis Methods, Practices, Procedures and Expenditures, 1945
After the 1982 election, then Assembly Speaker Stanley Fink proposed that the Legislature adopt rules governing the use of legislative employees in legislative campaigns but no action was taken on that proposal and no guidelines adopted although the Minority Leader and his chief of staff did explore the issue in 1982 and 1983 with the Senate counsel Eric Lane and a legal consultant to the Senate, Professor Agata. It was also a topic of discussion at a 1984 Minority Conference steering committee meeting.
In September 1985, the District Attorney of Kings County, Elizabeth Holtzman, after an investigation of then Assemblyman Charles Schumer’s use of legislative staff in his campaign for Congress concluded that there were no guidelines or laws covering the use of State legislative aides for campaigning purposes and therefore no New York State law had been violated. She then referred the matter back to the Legislature with the following statement and recommendation: "there was no basis for criminal prosecution under New York State laws. Our investigation indicated that a need exists for the Legislature to establish controls to prevent the substantial use of state employees and facilities by its members for campaign purposes. In particular, there is a need for specific job descriptions, improved time accountability, and specific rules governing the use of any of state employees and facilities for campaign purposes. Sanctions should also be provided for those individuals who intentionally violate these rules.”
In March 1987, the Joint State-City Commission on Integrity in Government was established focusing on the entire issue of ethics and propriety in all areas of governmental operations.
It was not, however, until April 1987, after the investigation leading to this prosecution was publicized, that the Legisla
"1. That it is the rule of the New York State Legislature that legislative employees of a member, officer, legislative commission or committee of the Legislature are compensated from funds of the New York State treasury for the performance of officials duties on behalf of the member, officer, legislative commission or committee. The official duties of a legislative employee, the adequacy of performance thereof and the compensation therefore are the exclusive prerogatives of the Legislature.
"2. It is hereby established as the rule of the Legislature that no person shall be hired by the Legislature to engage solely in political campaign activity. However, when a legislative employee is not obligated to perform duties assigned to him, or her, the employee is free to engage in political campaign activities.
"3. As to the standards applicable to the duties of legislative employees, although no precise job descriptions are in force for such employees, it is expected that such employees will approach their duties with general ethical standards in mind and use good judgment and common sense.
"4. A legislative employee’s official duties may include, by way of example only, representational activities, such as constituent casework, preparation of news releases and newsletters to constituents, public appearances and other responsibilities which are not political campaign activity:
"5. Legislative employees may properly be engaged in political campaign activity, provided such activity does not cause the employee to neglect his, or her, official duties.”
In August 1987, Governor Cuomo approved both the Ethics in Government Act (L 1987, ch 813) which created the Legislative Ethics Committee, and the companion New York State
There is no question, therefore, that prior to April 1987, and particularly during the period covered by the indictment, there were no legislative standards, rules or guidelines in existence detailing the "proper duties” of legislative employees, an issue which was officially addressed for the first time in the 1987 resolution. Essentially, the Legislature declined to act during that period in an area that was its exclusive prerogative—the administration of its own internal affairs— albeit that it has now finally undertaken its responsibilities in that regard.
Notwithstanding the absence of any legislatively enacted guidelines during the relevant period, the trial court held that there was a standard which controlled here, pointing to article VII, § 8 of the NY Constitution referred to as the "No Gift” Clause, which provides that: "The money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking; nor shall the credit of the state be given or loaned to or in aid of any individual, or public or private corporation or association, or private undertaking”.
It concluded categorically that payment to legislative staff for work on political campaigns was "an unconstitutional private application of public revenue” which provided a sufficient predicate for criminal prosecution. Significantly, no authority is offered to support the ultimate conclusion that a violation of the provision, assuming, arguendo, that such exists, is subject to penal sanctions. The provision itself specifies no penalty for its violation, nor is any statute pointed to which so provides. Moreover, none of the authorities relied upon by the court arose in the context of a criminal prosecution. For example, Stem v Kramarsky (
We do not find that this provision, standing alone, would provide the kind of clear and unambiguous guidance necessary to enable appropriate judicial resolution of the issue at hand which involves not an individual case determination but, rather, a wide-scale particularization of the propriety of the specific activities and terms and conditions of employment of numerous employees working in a broad range of categories. This would require precisely the kind of "itemization” which has been held not to be a court’s function. (Saxton v Carey,
Moreover, for a court to attempt to determine the proper scope of the duties of legislative employees in the absence of manageable guidelines or standards would require the kind of policy determination which in our view is not suited for judicial discretion.
Any such determination would involve an underlying policy consideration as to the extent to which activities of a political nature may appropriately be engaged in by legislative employees. This necessarily requires an exploration of the unique role which politics plays in the legislative arena in distinction to the other two branches of government. Once elected, executive branch officials assume the titles of their offices without any partisan party characterization. Judicial officers, whether elected or appointed, upon taking office must become wholly apolitical. It is only in the legislative branch that the partisan political party affiliations of elected representatives continue to cloak their official activities. The terms Majority Leader and Minority Leader are incorporated in the Legislative Law which delineates the Senate’s hierarchy. As a consequence, the ability to effectively accomplish particular legislative goals is in great measure predicated upon such partisan party affiliations. Enactment of legislation cannot be separated from political involvement and, realistically, political party platforms are the basis for legislation under our system of government. The wide range of activities performed outside the purely legislative sphere which have grown over
We find persuasive the decision in United States ex rel. Joseph v Cannon (642 F2d 1373 [DC Cir], cert denied
The court further observed that in the absence of any discernible legal standard, or even of a congressional policy, that would aid consideration and decision of the question, it was loathe to give the act an interpretation "that would require the judiciary to develop rules of behavior for the Legislative Branch. We are unwilling to conclude that Congress gave the courts a free hand to deal with so sensitive and controversial a problem, or invited them to assume the role of political overseer of the other branches of Government.” (Supra, 642 F2d, at 1385.)
The attempt by the People and the dissent to distinguish the Cannon case (supra) on the ground that the United States Senate had unsuccessfully tried to promulgate guidelines is somewhat puzzling in light of the State Legislature’s similar failure to do so prior to 1987.
The trial court itself very articulately and perceptively delineated the special characteristics of legislative-political interaction which render inappropriate judicial intrusion, as follows: "Certainly, there is nothing illegitimate about the role of the Senate Minority Leader as coordinator of the minority party’s political and legislative strategy within the Senate. Nothing could be clearer * * * than that the function of the Senate Minority Leader’s office, the delegation of duties by the Minority Leader, and the execution of those duties by the Leader’s staff are beyond the power of courts to examine, much less to dictate. * * * Neither may the executive nor this court arrogate to itself the authority to prohibit the Minority Leader from assigning staff to coordinate with Democratic Party leaders in developing a legislative strategy, to poll constituents to determine their views of the Senate minority’s program, or to engage in the myriad political activities through which constituents may influence and legislators may explain or garner support for legislation. * * * It is a basic tenet of our system of government that legislation and legislators should reflect the popular will, which is primarily manifested through the competitive political process. Therefore, the line between partisan political action and constituent representation is and should be elastic, and is not subject to judicial or executive fiat. Whether and to what extent the process of forging a popular consensus in support of a legislative agency
We are in agreement with Justice Rothwax’s conclusion that insofar as this indictment relates to legislative employees who performed services during the period in question, whether of a legislative or of a political nature, it constitutes an inappropriate attempt by the People to regulate the internal affairs of the Legislature and deals with nonjusticiable questions (Matter of Gottlieb v Duryea, supra; cf., Public Citizen v Simon, 539 F2d 211, supra), and we affirm his dismissal of the counts predicated upon the activities of those employee^.
Our point of departure from his decision is his conclusion that employees assigned to work only on campaigns were engaged exclusively in private activity that was per se illegal and therefore constituted an appropriate basis for a criminal prosecution. This, in effect, constitutes a form of judicial legislation which simultaneously makes the same conduct both legal and illegal—justiciable and nonjusticiable, based on a vague quantitative guideline rather than the nature of the activity itself. We reject that interpretation and find that the very considerations which render nonjusticiable the activities of the employees in Category 1 and Category 2 are equally applicable to those in Category 3. As he observed, "[w]hether and to what extent the process of forging a popular consensus in support of a legislative agenda may be distinguished from the promotion of a party’s or an individual’s political aspirations is a difficult issue, requiring factual determinations and policy decisions that are beyond the competence of courts to decide within the limits of a particular controversy.” (Supra,
The assignment of some employees to campaign work only,
Particularly apt in this regard is former Chief Judge Breitel’s conclusion in Rapp v Carey (
Separate and apart from separation of powers considerations, we also find that the instant prosecution violates the defendants’ due process rights with respect to the manner in which the various Penal Law provisions have been applied to them insofar as the charges relate to employees in any of the three categories that performed services.
It is a fundamental principle of due process "that no [person] shall be held criminally responsible for conduct which he [or she] could not reasonably understand to be proscribed.” (United States v Harriss,
This principle was recently reaffirmed by our Court of Appeals which observed that: "Consistent with our concept of basic fairness, due process requires that a penal statute be sufficiently definite by its terms so as 'to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute’ ”. (People v Bright,
In this case in order for defendants to be charged under the various larceny and false filing counts of the indictment which
The People can point to no statute, or other rule or regulation, that proscribed such conduct during the time periods set forth in the indictment, or that provided that it was illegal. The People now point to the "No-Gift” Clause of the Constitution as a standard of "illegality”. Even if it were to be assumed that the activities in question fall within the constitutional proscription, and our prior discussion indicates our view to the contrary, there is no penalty specified in that constitutional provision for its violation nor is there any statute which has been enacted which renders its violation criminal. It has been held that the duty and responsibility of determining the method of compliance with constitutional mandates is peculiarly within the legislative sphere. (Felder v Fullen,
It is not insignificant that every case cited with respect to a violation of this provision is in a civil, not a criminal context and in most instances the issue involved is the validity of a particular statute. (See, e.g., Stern v Kramarsky,
Notwithstanding the People’s emphasis on NY Constitution, article VII, § 8, and the trial court’s embrace of that provision, it is essentially irrelevant because it was never submitted to the Grand Jury as a basis for finding that the conduct complained of was illegal or improper.
In his presentation to the Grand Jury, the prosecutor continually referred to false certification by defendants that the employees had performed "legislative” duties. But that is not what the certification form itself stated. That form provides that the employee "actually performed the proper duties of the position” (emphasis supplied). The distinction between "legislative duties” and the various other duties and activities engaged in by legislative employees which are proper (United States v Brewster, supra) is extremely significant, particularly where, as here, there were no guidelines or standards, during the period in question, which defined the parameters of the "proper duties” of legislative employees.
The fatal deficiency in the. instant prosecution was the failure, or inability, of the People to provide the grand jurors with some specific statutory provision, or other appropriate guideline, from which they could find that the specified conduct was proscribed or fell outside of the "proper duties” of a legislative employee. To advise the Grand Jury to consider whether the conduct was "right” or "proper” as a basis for a criminal prosecution is hardly consistent with due process requirements that a person of ordinary intelligence be given notice that his contemplated conduct is forbidden by the statute (United States v Harriss, supra) and that explicit standards be provided for those who apply a statute in order to avoid arbitrary enforcement (Smith v Goguen,
Reference to the Grand Jury proceedings clearly demonstrates that the basis on which the People proceeded herein was directly violative of these due process considerations. Its theory was to allow the Grand Jury itself to set the standard as to whether campaign activities by legislative employees should be criminalized. Thus, the prosecutor advised the Grand Jury:
"I did not ask * * * whether it was proper to do campaign*373 work. And that is going to be a question for you, ladies and gentlemen of the jury, to answer.
"But the second question was whether there were state laws which regulated the work of the legislative employees. And that’s something that we’re going to get into when we instruct you as to the law in this case.” (Grand Jury minutes, at 3172.)
Thereafter, while the Grand Jury was voting on various counts, the following colloquy took place:
"Grand Juror: At some point, will you be giving us some indication as to what the action is regarding campaigns. I know it’s very complex and very vague. Not this minute.
"[ADA] Mr. Cherkasky: I know the fact—There is specific questions. I will—What we have presented to you are—there is no one statute that states use or there’s no specific statute addressed to the use of political workers in campaigns just that title. What we ask you to consider are the larceny statutes, the documents statutes, the theft of service statutes, the governmental fraud statutes to see whether in fact that conduct is illegal, the use of government workers is illegal under those statutes.” (Grand Jury minutes, at 4316.)
An indictment based on such noninformative and amorphous instructions fails to comport with the due process principles, codified in section 1.05 of the Penal Law, which require the giving of "fair warning of the nature of the conduct proscribed” and defining "the act or omission * * * which constitute^] each offense”, and is also at variance with the express direction which states that "Acts otherwise innocent and lawful do not become penal unless there is a clear and positive expression of intent to make them criminal” (McKinney’s Cons Laws of NY, Book 1, Statutes § 271 [d]).
"Due process requires that all 'be informed as to what the State commands or forbids’ * * * and that 'men of common intelligence’ not be forced to guess at the meaning of the criminal law.” (Smith v Goguen, supra, at 574.) " 'The dividing line between what is lawful and unlawful cannot be left to conjecture. * * * The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue. Penal statutes prohibiting the doing of certain things, and providing a punishment for their violation, should not admit of such a double meaning that the citizen may act upon the one conception of its requirements and the courts upon another’ ”. (Connally v General Constr. Co.,
It can hardly be said that the premise upon which the People have here proceeded meets that standard. When presented with the same issue of whether use of a legislative employee in campaign activities constituted a criminal act, Elizabeth Holtzman, the District Attorney of Kings County, a prosecutor of coordinate jurisdiction, found no criminal violation. The Trial Judge herein refused to criminalize such activities where the employee, in addition, performed some other noncampaign services, no matter how minimal. The Legislature has acknowledged that until April 1987 no standards or guidelines had ever been promulgated to define the "proper duties” of its employees, that no rules or statutes had ever been enacted proscribing campaign or political activities by Senate employees and that some such activities had long been an accepted practice. The District Attorney of New York County, alternatively, takes the position that all political campaign activities engaged in by legislative employees are subject to criminal prosecution.
Where people of common intelligence differ so markedly as to the meaning of the law in relation to the conduct involved, it must be held that this prosecution fails to meet requisite due process standards. (See, United States v Harriss, supra, at 628 [Douglas, J., dissenting].)
"[T]he laws and policies of this State are established by the law making powers, not by ’officers acting on their own ideas of sound policy however excellent such ideas may be’ ” (Matter of County of Oneida v Berle, supra,
Accordingly, since we find that the counts in the indictment predicated on the activities of campaign only employees (Category 3) were returned in violation of the defendants’ due process rights, those counts are dismissed on this ground as well as on the basis of prudential concerns leading to nonjusticiability. In light of these dismissals, the conspiracy count is rendered meaningless and is, therefore, also dismissed.
We turn, finally, to those persons denominated "No-Shows” who performed no services whatsoever. Our prior holdings both as to nonjusticiability and due process have no application to this group. The preceding discussion focused upon the scope of services that could properly be rendered by
As was held in People v Hochberg (
The evidence before the Grand Jury showed that four employees—Joseph Walsh, Carmen Del Priore, Arnold Smith and Barbara Zebersky—performed no services whatsoever during specified periods, but received salaries from the Senate payroll during those periods. The defendants had these employees placed on the payroll to be paid for performing services. If defendants knew that these persons were doing no work then they could be guilty of larceny by false pretenses— i.e., that the particular defendant made a false representation of a past or existing fact knowing that the representation was false when made with intent to deprive and defraud the State of moneys. (Penal Law former §§ 155.35, 155.40.) The relevant issues including those of intent and knowledge are questions of fact for a jury to decide.
Accordingly, the defendants-petitioners’ article 78 petition is granted to the extent that respondents are prohibited from prosecuting defendants-petitioners under New York County indictment No. 10173/87 as to those counts that relate to Category 3 employees, and is otherwise denied. The prosecution may continue with respect to the 119 counts (listed in Appendix A attached hereto) which relate to the four employees who performed no services whatsoever—Joseph Walsh, Carmen Del Priore, Arnold Smith and Barbara Zebersky.
The order of the trial court, Supreme Court, New York
APPENDIX A
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Notes
. A Democratic majority would likely have resulted in Ohrenstein becoming Majority Leader.
. Article VII, §2 of the NY Constitution requires the Governor to submit a proposed budget at specified times prior to the end of the fiscal year. March 31st ends the fiscal year. (State Finance Law § 3.)
. Content of payroll certification:
"To the Senate Majority Leader: This is to certify that the persons named in the payroll listed above are employed by the New York State Senate in the position specified and have actually performed the proper duties of the position for the period described. I further authorize the mailing of checks to employees listed under Mailing Authorization. I affirm that the certification is correct.
Senator/Dept. Head’s Signature Date” (emphasis added).
Dissenting Opinion
(dissenting). The People’s appeal from an order dismissing or modifying certain counts of the indictment, and defendants’ original proceeding (CPLR art 78), brought to prohibit the prosecution of the remaining counts, were heard together and present common issues. Defendants claim, inter alia, that the indictment, which is an outgrowth of an extensive investigation into charges of the misuse of public funds for the financing of the political campaigns of certain Democratic State senatorial candidates during the 1986 general election, involves matters as to which they are immune from prosecution under the Speech or Debate Clause of the NY Constitution, and that it represents an unlawful intrusion into the Legislature’s affairs violative of the separation of powers doctrine.
The Grand Jury heard evidence that during the months prior to the November 1986 general election, defendant Ohrenstein, the Minority Leader, sought to secure a Democratic majority in the Senate, and thereby become Majority Leader.
In furtherance of the conspiracy, defendants placed approximately 18 persons on the Senate staff, assigned them to individual campaigns, certified that they were entitled to biweekly State paychecks, and then removed them from the payroll after the election (the "campaign only employees”). During the course of the 1986 campaign, they also hired and placed on the State payroll eight individuals who worked solely on the campaigns but were then retained for the 1987 legislative session (the "retained campaign employees”). In addition, approximately 10 persons who were on the Senate staff before the commencement of the 1986 campaign were "farmed-out” to assist individual candidates on a full-time basis while remaining on the State payroll (the "farmed-out employees”).
The evidence shows that Ohrenstein exercises direct and indirect control over the allocation and disbursement of funds for the staffing of minority Senators’ offices and for minority representation on senatorial commissions. Funds appropriated in the State budget for the Senate are allocated along party lines through negotiation between Ohrenstein and the Majority Leader. After the two leaders have decided on the amount of money that will be made available to staff the offices of the minority Senators, Ohrenstein allocates funds to each Senator to meet staff salaries and other office and administrative expenses.
All staff members, whether assigned to an individual Senator or a legislative commission, are hired either on an annual basis or for the duration of a legislative session; sessional staff members often change payrolls from one session to another. Since 1984, Sanzillo has been Ohrenstein’s chief of staff and secretary to the Senate minority. As such, he has, subject to Ohrenstein’s review, approved the hiring of all staff members through the Minority Leader’s office.
By virtue of his position as Minority Leader, Ohrenstein has a professional staff, which numbered 118 in 1986. The staff provides constituent services to Ohrenstein’s district and also serves the Minority Conference, which is designed to forge a unified and cohesive legislative agenda among Democrats. The staff is accordingly comprised of several groups: the district office staff, a press and public relations staff, an administrative and clerical staff, a program staff which researches and drafts the legislative proposals of the Minority Conference, and the minority counsel staff, which supervises the activities of the program staff and the commission staff, composed of staff personal hired by Ohrenstein to work as minority representatives on legislative commissions. Since the commissions are often inactive, commission staff personnel are frequently underutilized or are assigned work unrelated to commission duties, including duties related to the work of the Minority Conference.
Ohrenstein’s staff also includes local government coordinators, both downstate and upstate, who are annual employees and conduct the political operation of the Senate minority. The upstate group primarily assesses the political impact of proposed legislation, while the downstate group, along with a few of the upstate coordinators, helps the minority conference formulate its legislative program and assists strategists in Democratic senatorial campaigns.
After a Senator, or designee, certifies that staff members are entitled to their respective salaries for a particular pay period, the certification is sent to the Senate payroll office. A master payroll derived from the certifications submitted by the offices of all Senators is then prepared and transmitted to the State Comptroller’s office. The payroll certifications for minority commission staff members are signed by Ohrenstein or Sanzillo and submitted to the chairperson of the appropriate commission who, in turn, prepares a master commission payroll certification and submits it to the State Comptroller’s office. After receiving the certifications, the State Comptroller’s office prepares the paychecks and forwards them to the Senate payroll office for distribution.
Since at least 1975 all local government coordinators on Ohrenstein’s staff have worked on Senate campaigns in every election year and have been routinely assigned to campaigns by his chief of staff. Ohrenstein knew that his staff had worked on campaigns; he approved of the practice, in which both parties in both Houses engaged, and considered such work as part of the Senate staff’s duties. It was, however, regarded as unacceptable to hire staff members to work exclusively on individual senatorial campaigns.
In 1980, Arlene Wolff, a friend of Ohrenstein, proposed that an auction of Senate memorabilia be held to raise funds for the Senate Democratic Campaign Committee (SDCC). Ohrenstein approved the proposal and placed Wolff on his payroll at an annual salary of $12,000. Through Wolff’s efforts, several fund raisers were conducted for the SDCC in 1981 and 1982.
Like Wolff, several other employees placed on the Senate payroll before 1986 were paid, even though they did not perform any services for the Legislature. Unlike Wolff, however, some of these individuals did not render any services at all. These are the "no-show” employees. For example, Barbara Zebersky, who was hired by Senator Babbush in 1978 to run both his Albany and district offices, was told, after ending an intimate relationship with the Senator, not to report to the Albany office following the end of the July 1983 legislative session. Although Zebersky continued to report to the district office once or twice a week, she discontinued even those sporadic visits in September 1983. Nevertheless, Babbush continued to sign payroll certifications which permitted her to be paid until April 1984, when she was transferred to Ohrenstein’s staff.
After transferring to Ohrenstein’s staff, Zebersky, no longer a "no-show” employee, became, like Wolff, an employee who performed only political campaign functions. Specifically, Zebersky was assigned, usually by Sanzillo directly or through an intermediary on the local government coordinating staff, to conduct fund raising on behalf of individual senatorial candidates. When not so engaged, Zebersky did not perform any other work or have any legislative responsibilities.
At least two other employees hired by Ohrenstein and Sanzillo before 1986 were strictly "no-show” employees. In 1983, Joseph Walsh, who had asked the leader of a Democratic club to help him obtain a State job to secure his pension, was placed on the Senate payroll as an administrative analyst and paid $2,000 in 1983 and $3,500 in 1984 and again in 1985. Walsh rendered no services in return for this compensation. When a member of Ohrenstein’s staff complained to Sanzillo about this situation in 1986, Walsh was assigned to work with a staff member on issues pertaining to a community board. The staff member, however, never heard from Walsh and, in June 1986, his employment was terminated, ostensibly for budgetary reasons.
Similarly, Arnold Smith was placed on the Senate payroll in
In June 1984, Sanzillo recruited William Green to manage the reelection campaign of Senator Carol Berman and placed him on Ohrenstein’s staff at an annual salary of $52,000. While receiving that salary, Green did nothing except manage the campaign, which ultimately was unsuccessful. Following the election, Sanzillo transferred Green to the Commission to Revise the Social Services Law at a salary of about $20,000 per annum. Until 1986, when he was assigned to manage Montalto’s Senate campaign, Green’s only function was to keep Sanzillo informed on the current political situation in Nassau County.
Although Wolff, Green, Zebersky, Walsh and Smith did not perform any legislative services, Ohrenstein and Sanzillo and, for some of the time that Zebersky was on his payroll, Babbush, signed biweekly payroll certifications which affirmed that these individuals performed "the proper duties” of the Senate staff or commission positions that they ostensibly held.
In 1986, a gubernatorial election year, Ohrenstein and the other Senators on the minority conference political steering committee decided to use every means at their disposal to "ride on the coattails” of Governor Cuomo and elect a Democratic Senate. These efforts began as early as March 1986 when, following the death of an incumbent Senator who had represented part of The Bronx and Westchester, the Governor ordered a special election to be held on April 22, 1986. Michael Durso was selected as the Democratic candidate. By the end of March, virtually all of Ohrenstein’s local government coordinators were assigned to assist in that campaign.
For instance, Larry Schwartz, the director of the upstate local government coordinators, was assigned to manage the campaign. Mark Canu, Schwartz’s downstate counterpart, was also assigned to the campaign, as were various members of
In addition, two individuals who had not previously been on the State payroll were hired to work in that campaign. Jeffrey Feldman was hired in March as a local government coordinator, and was immediately assigned to the Durso campaign. After the campaign ended, Feldman was assigned to a number of other campaigns in the general election; he did not perform any legislative work for the entire time he was on the Senate payroll in 1986. Robert Weingarten was also hired to work on the Durso campaign, but remained on the Senate staff for only a short period. He left for a better position.
After Durso’s defeat in the special election, the local government coordinators apparently did nothing but prepare for the 1986 Senate races. In early June, Sanzillo met with the entire local government coordinating staff and targeted those districts in which a special effort would be made to elect Democratic Senators. Later that month, the downstate local government coordinators were assigned to specific campaigns. Campaigning began in earnest by the end of the July 4th weekend, when the legislative session ended.
As the 1986 general election campaign season began, various Senate employees were assigned by defendants to work full time on the campaigns of several Democratic candidates. Ten of these employees worked exclusively on the following individual campaigns during the time periods indicated:
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Even though none of these employees performed any legislative duties while working on the campaigns, Ohrenstein and Sanzillo, and in one case, Quattrociocchi, signed payroll certifications representing that they had, in fact, performed "the proper duties” of their respective Senate staff or commission positions. For instance, Elizabeth Meyer, who joined Ohrenstein’s staff in July 1985, was assigned to oversee the daily operation of the Oppenheimer campaign and to be liaison with local district leaders. Similarly, William Gelfond, listed on Ohrenstein’s payroll as a "Special Assistant to the Minority,” was assigned to manage the McDonald campaign. Even though he was a full-time law student in Washington, D:C., at the time, Gelfond was paid $2,400 biweekly in exchange for his services. Timothy Kaiser, one of the local government coordinators, was assigned to manage the Morgan campaign, and Larry Schwartz and Mark Canu, the directors of the upstate and downstate branches of the local government coordinators, who had worked on the Durso special election effort, were later assigned to manage the campaigns of Senator Quattrociocchi and candidate Angelo Orazio, respectively.
Several employees who were on the payrolls of legislative commissions were also assigned to work full time on election campaigns. Specifically, William Green, who, as already noted, was on the payroll of the Legislative Commission to Revise the Social Services Law, was assigned to manage Montalto’s campaign. Similarly, David Keisman, who was placed on the payroll of the Commission on Toxic Waste by Sanzillo in November 1985, did not perform any work for that commission but was paid $7,800 in exchange for writing advertisements used in the Orazio campaign; he had performed a similar function in the Durso campaign.
In at least one instance, the assignment of Senate employees to full-time duties for individual campaigns entailed transfers from one payroll to another. Glen Vanbramer, an experienced speech writer, was hired by Senator Martin Markowitz on a part-time basis in January 1986, at a $12,000 stipend for the year, to write press releases concerning the Senator’s
In addition to assigning full-time campaign duties to employees who were already on the Senate payroll, defendants also hired 26 individuals for the express purpose of working full time on the campaigns of seven Democratic senatorial candidates, including Senators Oppenheimer and Quattrociocchi, who were running for reelection, and candidates Berman, McDonald, Montalto, Morgan and Orazio, who were seeking either to regain lost seats or to capture the seat for the first time. These employees, who were placed on commission or staff payrolls during the course of the 1986 election campaigns, were:
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All but five of these employees worked exclusively on campaign-related matters. The other five worked extensively on campaign activities. Nevertheless, they were paid from the State treasury based on the representations made by Ohrenstein, Sanzillo, Babbush and Quattrociocchi that they had performed "the proper duties” of the legislative positions to which assigned.
As already noted, Jeffrey Feldman, hired to work on the Durso special election, was, after the Durso campaign ended, assigned to the Orazio race, as were Elaine Fleischer, Jurgen Worthing and Steven Schlau, who were hired to work full time on that campaign. Orazio, a Democratic Assemblyman, requested that Fleischer and Worthing, members of his Assembly staff, be hired to work on the campaign. After learning that Fleischer and Worthing were being paid from the Senate payroll rather than from campaign funds, Orazio urged them to seek full-time positions with the Senate minority, which Worthing evidently did. During the course of the campaign, however, Sanzillo and Orazio had a dispute, which led Sanzillo to threaten to remove Fleischer and Worthing from the Senate payroll if the Orazio campaign did not show improvement.
Among the 26 employees hired to work on the 1986 campaigns were Paul Doell and Carmen Del Priore, both of whom were assigned to the Montalto campaign.
Although Del Priore, who was apparently placed on the payroll solely to compensate a third person for working on the Montalto campaign, was also ostensibly assigned to that campaign, she never performed any work for either the Senate or the campaign. Andy Diorio, a member of a Brooklyn Democratic club, had been offered a State job in exchange for his work in printing Montalto’s campaign literature. Since Diorio was already employed by the State, he told Montalto that Del Priore, the daughter of another member of the club, was unemployed and "needed a job”. At Montalto’s request, and in consideration for Diorio’s work on the campaign, Del Priore was placed on the Senate payroll as an "Administrative Assistant to the Minority”, on or about August 21, 1986. For 10 weeks, until her services were terminated following the election, Del Priore received biweekly checks.
Mark Bloom, who was hired ostensibly as a local government coordinator at the end of June 1986, was assigned to the McDonald campaign to act as the candidate’s liaison with Democratic leaders in the district. Others hired in 1986 to work on the McDonald campaign were Carrie Tishelman, Gerard Riconda, Jackie James and James Surdoval. Tishelman and Riconda were placed on the staff of the Commission
Former Assemblyman Clifford Wilson, who was hired to manage Carol Berman’s campaign, was offered $40,000 for his services, $30,000 of which would come from the Senate payroll, with the remainder from the funds of the SDCC. Wilson was placed on Senator Babbush’s payroll as a “Counsellor to the Minority” and the Senator personally signed at least one payroll certification bearing Wilson’s name. When the SDCC’s portion of the funds that were to go toward Wilson’s compensation did not materialize, he received a corresponding raise in his Senate salary, which, at Ohrenstein’s request, was processed through Babbush’s office. Wilson ultimately received a total of $36,000 from the Senate payroll in exchange for his services.
Besides Wilson, several others were hired to work exclusively on Berman’s campaign. Constantine Theodosiou, a full-time student, was placed on Ohrenstein’s payroll in March 1986 to do part-time clerical work. After Berman announced her candidacy, Theodosiou began doing full-time advance work for the campaign and eventually was assigned to be Wilson’s driver. Amy Nunziella was similarly placed on the Senate payroll, at a salary of $200 per week, to drive Wilson from his home in Queens to the Long Beach campaign headquarters each day. Estelle Bressler also worked full time on the Berman campaign starting in April 1986 at a salary of $500 per week. After the election, when her employment was terminated, she learned that she had been paid as a member of the staff of the Commission on Water Resource Needs on Long Island.
Toole, who previously had been a student intern in Senator Oppenheimer’s Albany office, was interviewed by Sanzillo on July 15, 1986 and placed on Ohrenstein’s payroll as a "research analyst” from July 31 until mid-November. On August 1, 1986, she was assigned to coordinate a letter-writing campaign at Oppenheimer’s New Rochelle campaign headquarters and told to use a pseudonym when dealing with the press, so as not to disclose her Senate affiliation.
Linda Mepsted and MaryRose Stevenson were hired in 1986 to work on the Quattrociocchi campaign.
Susan Savage, Ingrid Stettner and Patrick Prefetti were hired in 1986 to work on the Morgan campaign.
Although most of the 26 employees hired to work on the 1986 election campaign effort were assigned to specific campaigns, a few were not. For example, in or about July 1986, Michael Katims, a private investigator, was placed on Ohrenstein’s payroll at a weekly salary of $250 to verify the educational resumés and biographical backgrounds of incumbent Republican Senators. Ohrenstein signed a recommendation for employment, stating that Katims would be a "research analyst” on his staff. Although assigned to investigate two Republican incumbents, Katims was unable to contact Sanzillo to render his report and never spoke to Ohrenstein. By year’s end, Katims had received $10,000 from the Senate payroll.
Similarly, in June 1986, Denise Pratesi, a school teacher, was placed on Ohrenstein’s payroll as a research analyst at a biweekly salary of $800. Pratesi was, in fact, "the polling coordinator” for the campaign effort and ran the Democrats’ polling operations from a campaign headquarters in Westchester. She had been hired as the polling coordinator in every election year from 1980 to 1986 following the end of the school term.
Notwithstanding defendants’ efforts and their use of State funds to compensate their array of campaign workers, the Democratic party did not obtain control of the Senate in the 1986 election. Incumbent Senators Oppenheimer and Quattrociocchi were reelected, but candidates Berman, McDonald, Montalto, Morgan and Orazio all lost their bids for election to the Senate.
Following the election, many of those hired during the campaign were removed from the Senate payroll.
On or about November 6, 1986, Sanzillo wrote to the local government coordinators and gave them a month-long vacation until a meeting scheduled for December 4, 1986 at Ohrenstein’s Manhattan office. At that meeting, Sanzillo discussed the campaign and a special session of the Legislature then in progress. He also announced that the entire staff would be given off until January 5, 1987. The local government coordinators were assigned to cover specific districts and told to report to the office on a full-time basis.
After considering this evidence, the Grand Jury returned a 665 count indictment charging that from January 1, 1986 to January 1, 1987 Ohrenstein, Sanzillo, Babbush, Montalto and Quattrociocchi
The indictment also charged 200 overt acts in support of the conspiracy charge, including, inter alia, allegations that defendants placed specific individuals on the payrolls of legislative commissions or Senate staffs and "signed the appropriate
In addition to the conspiracy charge, the indictment set forth 664 substantive counts which related to the employment of 39 individuals who were paid with State funds either for performing no duties whatsoever or for rendering only campaign services.
The remaining 657 substantive counts charged defendants, individually or in various combinations, with grand larceny in the second and third degrees and offering a false instrument for filing in the first degree. Most of these charges arose from defendants’ use of State money to compensate Senate employees for working solely on partisan political campaigns. Specifically, the grand larceny counts charged that defendants had stolen property in excess of the requisite statutory amounts "in that they [or he] caused a salary to be paid to” each employee over the course of the period in which the employee engaged exclusively in campaign duties. The false instrument counts, which relate to payroll documents certifying that each employee had performed legislative duties, charged that for each payroll period in which an employee was paid for working solely on campaign activities, defendants, "knowing that a written instrument * * * contained a false statement. and false information” had, with the requisite intent and knowl
Defendants subsequently moved to dismiss the indictment, claiming, inter alia, immunity from the prosecution of these charges under the Speech or Debate Clause of the NY Constitution and under separation of powers principles in that the indictment constitutes an unlawful intrusion into legislative affairs. After reviewing the indictment and the evidence presented to the Grand Jury, the motion court (
Category 1: 10 individuals who were employed prior to 1986 and were used in the 1986 campaigns.
Category 2: eight individuals who were hired during the 1986 campaigns and were retained during the 1987 legislative session.
Category 3: 18 individuals who were employed only during the 1986 campaigns.
As to the three not so classified, two, Smith and Walsh, were categorized as "no-show” employees since they were on the Senate payroll but performed no services at all. The employment of the other, Arlene Wolff, was at issue only for a period prior to 1986 and therefore did not fit into any of the established categories. Since, however, her situation was most analogous to that of a Category 2 employee, the court treated her as such. In addition, one person, Barbara Zebersky, was determined to be a Category 1 employee for one period of time and a "no-show” for another.
After so categorizing the employees, the court addressed defendants’ claims and ruled that the protection of the Speech or Debate Clause extends only to legislative acts, that is, those acts which form an integral part of the deliberative and communicative processes by which members of the Legislature participate in considering the passage or rejection of legislation. Thus, the court concluded that the political activities which are the subject of the indictment were not legislative acts, and therefore rejected defendants’ asserted speech or debate immunity with respect to most of the employees in issue.
After finding that preparing informational brochures and transmitting constituent information were not legislative acts within the meaning of the Speech or Debate Clause, the court concluded that an inquiry into the activities of Toole and DeVito would not constitute an intrusion into the legislative process. Since it found, however, that preparation of commission reports and arranging legislative hearings were legislative acts, the court concluded that an inquiry into the activities of Prefetti, Stettner and Stevenson might intrude into the legislative process.
Although recognizing that, in considering a motion to dismiss an indictment, a court is required to disregard testimony contrary to the People’s theory of prosecution, the court determined that such requirement must give way to the values protected by the Speech or Debate Clause. It therefore ruled that "one evidence appears that the activity under investigation is arguably within a proper legislative sphere, the prosecutor as representative of the executive branch must establish that the prosecution will not encompass privileged legislative acts” (supra,
Since there was some evidence to suggest that Prefetti, Stettner and Stevenson had engaged in acts that arguably could be considered legislative, the court ruled that the People had failed to meet this standard with respect to these three employees. It, therefore, dismissed all the counts of the indict
In considering whether separation of powers principles, other than the Speech or Debate Clause, were implicated by this prosecution, the court found that even though the political activities at issue were not legislative acts protected by the Speech or Debate Clause, they might nonetheless be legitimate functions of the office of a State legislator. In urging that their prosecution was barred by the separation of powers doctrine, defendants argued, inter alia, that the courts cannot review the manner in which funds designated for legislative staff salaries are spent and that there are no judicially discoverable and manageable standards for delineating the proper duties of a staff member.
In rejecting this argument, the court found that the judiciary could determine whether salaries paid to Senate staff members for political activities were permissible within the limitations imposed by article VII, § 8 of the NY Constitution, which provides: "The money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking”. Ruling that since partisan political activities constitute private, rather than public, functions, it found that the expenditure of State funds to pay individuals to work in political campaigns constitutes an unconstitutional private application of public revenues.
The court also concluded that article VII, § 8, sets forth judicially discoverable and manageable standards relevant to the use of State funds for political purposes. Applying this standard, it determined that the payments to 31 of the 36 employees cited in the indictment apparently violated the limitations thus imposed. The court, however, noted that Ohrenstein, as Minority Leader, has broad discretion to determine the schedules, attendance and duties of his employees. Noting both the lack of any requirement that employees perform any specific duties with respect to the position to which they were appointed, or even a job description or a policy for vacations or compensatory time and that members of the Legislature are permitted to use budget lines interchangeably and to retain employees on the payroll in anticipa
The court concluded that the evidence before the Grand Jury did not establish so patent a violation of the constitutional limit on appropriations of public funds for private purposes as to justify a prosecution with respect to employees who performed services of value to the Legislature either prior or subsequent to the 1986 elections. It ruled that such a prosecution raised a nonjusticiable question relating to the internal administration of the Legislature, and therefore dismissed all the counts of the indictment relating to the Category 1 employees, except Zebersky, and Category 2 employees, except Wolff. It also dismissed, on the same grounds, the count of defrauding the government. The court, however, upheld the counts relating to the Category 3 employees, except Toole and Prefetti, and the "no-show” employees on the ground that payments made to these individuals were patently unconstitutional misapplications of public funds.
As a result of its decision on the substantive counts, the court also modified the conspiracy count of the indictment to strike any allegation that defendants had conspired to assign previously hired Senate employees to perform only campaign duties, and barred the People from adducing any evidence of such conspiracy.
Since, in my view, the motion court’s decision misconstrues the spirit and tenor of the Speech or Debate Clause, and unreasonably extends its protections to shelter defendants’ use
The Speech or Debate Clause of the NY Constitution provides that "[f]or any speech or debate in either house of the legislature, the members shall not be questioned in any other place.” (NY Const, art III, § ll.)
Thus, it has generally been held that the Speech or Debate Clause does not immunize legislators and their aides for all acts conducted in their official capacities. They are insulated only to the extent that "legislative acts” or the motives underlying them are directly at issue. (See, e.g., Eastland v United States Servicemen’s Fund,
Since a legislator or his aide is entitled to the immunity of the Speech or Debate Clause only to the extent that either the performance of a past legislative act or the motivation behind it is at issue (see, e.g., United States v Brewster, supra,
Notwithstanding, the motion court concluded, as does the majority, on the basis of equivocal Grand Jury testimony indicating that Stevenson, Stettner and Prefetti may have performed a few isolated legislative acts during the 1986 campaign, that the Speech or Debate Clause required the dismissal of all the counts relating to these employees. By holding that evidence of the performance of isolated legislative acts by full-time campaign workers immunizes a nonlegislative act, i.e., the use of State funds to compensate public employees for performing campaign work for the benefit of private individuals, the court misconstrued the substantive protections of the Speech or Debate Clause and created an unwarranted expansion of the protections afforded to legislators under it. Moreover, in an effort to accommodate its unprecedented view of the Speech or Debate Clause, the court erred by going beyond the indictment’s facial allegations and placing upon the People the burden of proving, on a motion to dismiss, that the prosecution would not involve proof of legislative acts.
In dismissing the charges relating to these three employees, the court reasoned that the People could not possibly prove that defendants had intentionally filed false certifications without also "inquiring into [the] specifics of their legislative assignments, the amount of time spent performing them, * * * the results” and defendants’ "motives in assigning legislative duties.” (Supra,
As already noted, the Speech or Debate Clause immunizes legislators only to the extent that proof of a legislative act is necessary to establish, on the People’s direct case, that the defendant committed the crimes charged. (See, e.g., United States v Brewster, supra,
Thus, that some of these employees may have performed a few isolated legislative acts need not be proven to establish the crime of larceny or the falsity of the payroll certifications. The People need only prove, beyond a reasonable doubt, that defendants intentionally used State funds to compensate the employees in question for the performance of private acts, not legislative acts immunized under the Speech or Debate Clause, nor even nonlegislative acts that fall within the legitimate sphere of public employment. Consequently, defendants’ motives or intentions in assigning legislative tasks are irrelevant. The People are required to prove only that defendants intended to use State funds to purchase the performance of private acts. This burden can be satisfied without any evidence pertaining to a legislative act insulated from examination by virtue of the Speech or Debate Clause. Defendants, of course, may attempt to prove that Stevenson, Stettner and Prefetti did, in fact, perform legislative acts,
Taken to its logical conclusion, the motion court’s decision would permit a legislator effectively to define the scope of his own immunity and place himself beyond the reach of a prosecution for blatantly criminal acts. He could, for instance, employ a staff member to perform a variety of personal services over the course of a year, cause the State to pay for these services through fraudulent payroll certifications, and insulate himself from prosecution by assigning a momentary, but nonetheless colorable, legislative act to the employee.
Particularly inapposite here is the line of Federal employment discrimination cases upon which the motion court relied, i.e., Browning v Clerk, U. S. House of Representatives (789 F2d 923, cert denied
In Agromayor (supra, 738 F2d, at 60) and Walker (supra, 733 F2d, at 930-931), the courts concluded that the issue was whether the duties of the position were such that the person occupying it would have "meaningful input” into the legislative decision-making process. In Browning (supra, 789 F2d, at 929), the court framed the issue as whether the affected "employee’s duties are an integral part of the legislative process, such that they are directly assisting members of Congress in the 'discharge of their functions’ ”, In Agromayor, the court determined that the position of a press officer was sufficiently "legislative” to warrant legislative immunity and, thus, dismissal was appropriate. Similarly, in Browning, the court held that there was "little doubt” that the position of Official Reporter was directly related to the legislative process; therefore, dismissal was also warranted. In Walker, however, the court ruled that the position of manager of a congressional restaurant was not "legislative” in character.
Nor do the discrimination cases support the proposition that once a protected employment decision is made, any subsequent nonlegislative act relating to the employment is also immune. In fact, Walker (supra) holds that, even if an employment decision is made in a legislative committee, a subsequent nonlegislative act which implements that immunized decision "is not cloaked with Speech or Debate immunity, for execution or carrying out directions post-dates what the Clause protects—the process leading up to the issuance of legislative directions.” (Supra, 733 F2d, at 932 [emphasis in original]; accord, Gravel v United States, supra,
Since the Speech or Debate Clause was intended only to protect legislators against unwarranted intrusions into the legislative process, not to provide immunity for conduct clearly unrelated to that process, the dismissed counts pertaining to Stevenson, Stettner and Prefetti should be reinstated. The Speech or Debate Clause should not be applied in such a way as "to make [legislators] super-citizens, immune from criminal responsibility.” (United States v Brewster, supra,
Moreover, by its misreading of the Speech or Debate Clause, the motion court was forced to create new procedures, the effect of which would be to increase further both legislative immunity and the ease with which criminal liability could be avoided. Its reliance on the Grand Jury minutes to reach the conclusion, based on a few equivocal passages indicating that Stevenson, Stettner and Prefetti might have performed isolated legislative acts, that defendants were entitled to dismissal of the counts pertaining to these employees, was error because, in reviewing a motion to dismiss, courts must look solely to the facial allegations of the indictment. Federal courts routinely hold that to be the standard of review in deciding pretrial motions to dismiss on speech or debate grounds. (See, e.g., Government of Virgin Is. v Lee, supra, 775 F2d, at 524-525; United States v Carney, 665 F2d 1064, 1065, cert denied
Had the court considered only the facial allegations of the indictment, it could not have granted any part of the motion to dismiss, since not one of the 665 counts makes reference to a speech or debate in the Senate or raises any other matter even remotely connected to the legislative process. (See, e.g., Gravel v United States, supra,
Nor do the indictment’s allegations raise the spectre that the government must, to prove its case, question the motives underlying any legislative act. Rather, a reading of the indictment reveals that the People question defendants’ motives only to the extent that "non-legislative acts were misrepresented as legislative” in the payroll certifications. Such inquiry is permissible in a criminal proceeding and does not involve the interests sought to be protected under the Speech or Debate Clause. (See, Government of Virgin Is. v Lee, supra, 775 F2d, at 524.)
Thus, since it is clear that the facial allegations of the indictment do not implicate the Speech or Debate Clause’s "fundamental purpose”, which is to free "the legislator from executive and judicial oversight that realistically threatens to control his conduct as a legislator” (Gravel v United States, supra,
The court, as already noted, also erroneously placed on the People the burden of proving, on a motion to dismiss, that the prosecution of the charges relating to the employment of Stevenson, Stettner and Prefetti would not require proof of legislative acts. Although there was ample testimony to demonstrate that these three employees were hired to work on the 1986 election campaigns and did, in fact, provide full-time campaign services, the court discounted this evidence and fully credited equivocal testimony that they may have performed some legislative acts during the campaign. Having decided to view the Grand Jury testimony in the light most favorable to defendants, contrary to the rule that a trial court assessing the sufficiency of an indictment on a motion to dismiss must disregard Grand Jury testimony which militates against the People’s theory of the case, since credibility is within the exclusive province of the Grand Jury (see, e.g., People v Jennings,
It is proper to discount, on a motion to dismiss, even exculpatory evidence that may have been presented to a Grand Jury, for such proof raises, at most, "[qjuestions of witness credibility * * * for the trier of fact”. (People v Finley,
Indeed, since a legislator or legislative aide who claims immunity under the Speech or Debate Clause "is asserting a use privilege personal to him, and since the information as to which [activities] were legislative acts is in his possession alone, the burden of going forward and of persuasion by a preponderance of the evidence falls on him.” (In re Grand Jury Investigation Into Possible Violations of Tit. 18, 587 F2d 589, 597; accord, Government of Virgin Is. v Lee, supra, 775 F2d, at 524.) In Lee, for example, a Virgin Islands legislator was charged, inter alia, with fraudulently concealing the personal nature of a trip when he sought reimbursement for travel expenses by submitting a voucher representing that legislative fact finding was the trip’s primary purpose. Relying on a Federal statute which confers speech or debate immunity on Virgin Islands legislators, the defendant claimed an absolute immunity from prosecution because he had engaged in legislative acts during his trip. Although agreeing that legislative fact finding is insulated from prosecution by the Virgin Islands’ Speech or Debate Clause, the Third Circuit held that the defendant’s mere assertions as to the nature of his activities could not "preclude a court of competent jurisdiction from determining whether [the activities] were, in fact, legislative in nature so as to trigger the immunity.” (Supra, at 522.) It
Here, after noting that "no evidence was developed about the extent to which [Stevenson, Stettner and Prefetti] engaged in nonlegislative as opposed to legislative activities” (supra,
Furthermore, the facts cited by the motion court demonstrate that this misallocation of the burden of proof led to an erroneous result, for the evidence hardly showed by a preponderance that Stevenson, Stettner and Prefetti engaged in legislative acts. While one witness did testify that Stevenson assisted him in arranging a legislative hearing, the Grand Jury was entitled to disregard this testimony and instead to credit other witnesses’ testimony showing that Stevenson had performed campaign activities. Similarly, although one witness testified that Prefetti and Stettner may have prepared a report for the Dairy Commission in October 1986, the Grand Jury was entitled to discount that testimony since the witness never saw the purported report and only learned about it from a third party. Thus, it is clear that under a properly allocated burden of proof, the counts pertaining to the employment of Stevenson, Stettner and Prefetti should not be dismissed. Whether these individuals did, in fact, perform legislative acts while being compensated for rendering full-time service to the 1986 campaign effort presents, at best, an issue of fact to be resolved at trial.
The court, however, held that the political question doctrine barred prosecution of the charges arising from the campaign work of the "Category 1” and "Category 2” employees,
Although noting that the evidence indicated that defendants had, in fact, abused this discretion, the court nonetheless held that a prosecution arising from payments to employees who had performed at least some legislative work is justiciable only if the People could demonstrate a "patent” violation of the Constitution. Since, in its view, the Grand Jury evidence did "not establish so patent a violation * * * as to justify prosecution,” the court dismissed all counts arising from payments to these employees, reasoning that such payments involved "nonjusticiable questions regarding the internal ad
This was error. As aptly argued by the People, "the Speech or Debate Clause embodies all of the separation of powers concerns raised by this prosecution,” which is concerned only with the propriety of the conduct of individual legislators. Moreover, even if individual legislators could invoke the political question doctrine, the use of State funds to compensate personnel who work on campaigns does not constitute a legitimate legislative prerogative; nor does a prosecution based on such payments in any way interfere with the internal administration of the Legislature.
Notably, in reaching its conclusion, the motion court failed to cite any case which holds that a legislator who is not entitled to immunity under the Speech or Debate Clause may nonetheless successfully invoke the political question doctrine. In contrast, ample precedent exists indicating not only that the court’s holding was incorrect, but that its effect is to alter the balance of governmental power which the separation of powers principle is designed to maintain. For example, in Davis v Passman (
Other Supreme Court decisions also demonstrate that the Speech or Debate Clause completely meets all of the separation of powers concerns implicated by a prosecution against a legislator. In United States v Brewster (
The clear import of the Supreme Court’s construction of the Speech or Debate Clause is that once it is decided that challenged conduct does not embrace an immunized legislative act, absent some other specific constitutional provision requiring the legislative or executive branch, rather than the judiciary, to exercise adjudicatory power with respect to the criminal acts of legislators (see generally, Powell v McCormack,
Indeed, it is doubtful whether any separation of powers principle would be violated by judicial scrutiny of actions which, though undertaken in an individual legislator’s official capacity, do not constitute legislative acts insulated from review under the Speech or Debate Clause, since it is the Legislature, not any one of its individual members, which constitutes a coordinate branch of government. The official activities of an individual legislator which do not constitute legislative acts are manifestations of "the views and will of a single Member” of the Legislature. (Hutchinson v Proxmire, supra,
The Federal courts have steadfastly refused to create a common-law doctrine of absolute immunity which would confer upon legislators supplemental protection for conduct not insulated by the Speech or Debate Clause. (See, e.g., Doe v McMillan, supra,
Indeed, in Chastain v Sundquist (833 F2d 311, supra), for example, which involved a common-law defamation suit arising from a letter sent by a Congressman, in the course of his official responsibilities, to the Attorney General and to the press, the court rejected a claim of immunity both under the Speech or Debate Clause and by virtue of the Congressman’s having defamed the plaintiff in the course of his official
These principles are no less applicable where legislators seek to avoid criminal liability. Indeed, where, as here, a legislator seeks immunity from criminal prosecution for acts which fall outside the scope of speech or debate immunity, the separation of powers concerns outlined in Chastain (supra) are even more directly implicated than in cases involving civil liability since a criminal prosecution seeks to vindicate not just private interests but, rather, to hold a defendant accountable to the public-at-large. Like all defendants, a legislator has available to him certain substantive defenses and procedural protections. If, as a matter of policy, additional protections are required, that is a matter to be decided by the policy-making branches of government. (See, e.g., United States v Myers, supra, 635 F2d, at 939.)
Even if the motion court could have properly considered defendants’ separation of powers arguments, none of the
Although the concept of justiciability has never been precisely defined, its principles are found in those cases holding that courts should not render advisory opinions, entertain disputes in which the litigants lack standing, decide lawsuits which have become moot, resolve "political questions”, intrude into the internal affairs of a coordinate branch of government, or become embroiled in policy matters constitutionally delegated to, or more suited to resolution by, the executive or the Legislature. (See, e.g., Matter of New York State Inspection, Sec. & Law Enforcement Employees v Cuomo,
Merely because a case may have political overtones, involve public policy, or implicate some seemingly internal affairs of the executive or legislative branches does not, however, render the matter nonjusticiable. Courts still have the responsibility to decide questions of law, even if the particular case also involves a political issue or legislative matter. (See, e.g., Matter of Board of Educ. v City of New York,
In denying defendants’ motion to dismiss the counts of the indictment relating to the "no-show” employees and most of the "Category 3” or "campaign only” workers, the court properly rejected their attempt to invoke several of these factors. It concluded that although there is a sufficiently discoverable and manageable standard set forth in article VII, § 8 of the NY Constitution—"The money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking”—for determining whether defendants violated the law by paying individuals with State money to engage in full-time campaign work,
To support this view, the court observed that various provisions of the Legislative Law grant Senators, and Ohrenstein in particular, a great degree of discretion in assigning staff members to perform legislative responsibilities, setting their salaries, and deciding such routine matters as hours of employment and vacation time. Thus, the court found, compensating employees for their campaign work during the 1986 campaign could constitute a legitimate payment for legislative work performed prior to, or in anticipation of, the period expressly set forth in the certification. Since the courts have not explicitly been granted statutory authority to review the exercise of such discretionary decisions, the court reasoned, the execution of a payroll certification with respect to an employee who had, at some time, performed legislative work would present a justiciable controversy only if it involved a "patent” violation of the Constitution. Finding that the constitutional violation allegedly committed in this case was not sufficiently "patent”, the court concluded that the counts pertaining to these employees would require a nonjusticiable examination into the "internal administration” of defendants’ legislative staff. It therefore dismissed these counts.
This conclusion was also erroneous. To the extent that the court interpreted the indictment as challenging defendants’ discretionary decisions with respect to the terms of employment of staff members, it has misconstrued the nature of the charges. Contrary to the court’s view, the charges in the indictment do not question the propriety of paying employees for past services rendered or future services contemplated. The indictment charges that staff members were paid not for past or future legislative work, but, rather, solely for their campaign work; some for the entire time they were on the State payroll, and others for significant periods of time when no legislative work was done or contemplated. Thus, the prosecution is based, not on the theory that the executive or judiciary can dictate the discretionary terms of employment of legislative staffs, but upon the premise that it is not within a legislator’s discretion to pay for private campaign services with public funds.
That issue is plainly justiciable under controlling precedent. While separation of powers principles dictate that courts must accord due respect to the Legislature by exercising restraint whenever a litigant seeks judicial review of "wholly internal”
The Court of Appeals has repeatedly held that the judiciary not only may, but must, decide whether purportedly "internal” legislative procedures comply with State statutes and constitutional provisions. (See, e.g., Matter of Board of Educ. v City of New York,
The counts in question raise several significant questions of law which place this case well beyond the pale of purely internal legislative affairs. At the very minimum, the indictment poses the constitutional question of whether legislative employees can be compensated from public funds in exchange for the rendition of services to individual candidates. In that regard, there is no authority suggesting that a showing of "patent” unconstitutionality is a prerequisite to judicial review of a purportedly nonjusticiable issue. Rather, the standard governing the justiciability of a dispute arising from purportedly "internal” legislative affairs is merely whether a question of law is presented. (See, e.g., Board of Educ. v Nyquist, supra,
In fact, the Court of Appeals has held that such disputes involve justiciable controversies, notwithstanding that the issues involved either arcane questions of constitutional law hardly evincing "patent” illegality (see, e.g., Matter of Board of Educ. v City of New York, supra,
Nor does the State Constitution (see, art VII, § 8) suggest that only "patent” gifts of public funds to private individuals give rise to questions of law. Indeed, whether a legislative expenditure is an unconstitutional gift of public funds masquerading as a legitimate appropriation always gives rise to "a question of legislative power which must be determined by the courts.” (Farrington v State of New York,
Thus, neither the Constitution nor any Court of Appeals case supports the motion court’s view that only "patent” constitutional violations give rise to justiciable controversies involving purportedly internal legislative affairs. To support its conclusion to the contrary, the court cited two cases from other jurisdictions State ex rel. Overhulse v Appling (226 Ore 575,
Krupsak (supra) involved a challenge to the Legislature’s election, in a joint session, of three members of the Board of Regents on the grounds that the session had not been properly convened, that no joint resolution had been passed to govern the voting, and that a quorum had not been present. Rejecting the contention that the matter was not justiciable because it was "merely an internal administrative dispute within the Legislature which the courts should refrain from entertaining” (supra, at 402), the court held that the case raised "significant questions of law” concerning the statute which set forth the procedures governing the election of members to the Board. (See, supra, at 403.) Moreover, since the case represented a challenge to the election of the three Regents in question, it also raised "the more significant question whether these three persons legally held and exercised the powers of the important office of Regent of the University of the State of New York” (supra, at 403). Either consideration, the court concluded, "and certainly both when taken together,” made it obvious "that this is far more than a matter of internal administration within the Legislature” (supra, at 403).
The Constitution specifically confers upon the Legislature the responsibility to appropriate funds and to regulate the salaries and hours of State employees. (See, NY Const, art VII, § 7; art XIII, § 14.) Pursuant to that authority, Legislative Law § 6 (2) empowers the minority leader to "appoint such employees to assist him in the performance of his duties as may be authorized and provided for in the legislative appropriation bill”, and allows him to place these workers "on an annual, session or temporary payroll, as [he] shall, in his sole discretion, determine” (Legislative Law § 11; see, §§ 8, 9, 10). In
Matter of Phillips v Maurer (
Thus, although there is no express statutory authority for judicial review of a legislator’s discretion to pay for services rendered by his employees, the question of whether defendants have used public funds for political purposes is not a wholly internal legislative affair. What is at issue here is a justiciable question of law, namely, whether the express statutory right of Ohrenstein to hire individuals "to assist him in the performance of his duties” constitutes an implicit grant of authority to use such employees "to assist him in” promoting the political interests of individual senatorial candidates. (See, supra, at 673-674; Stern v Kramarsky,
The holding that the dismissed counts involve political questions is especially disturbing in light of the Legislature’s failure anywhere to evince an intention to preclude the courts from considering the constitutional or statutory questions here presented. Nor is there any indication that the Legislature has attempted to resolve any of the constitutional or
Nor does the 1945 legislative report cited by the motion court and relied upon by the majority change that conclusion. As the motion court noted, the report describes the hours of legislative employees as irregular, states that their titles do not necessarily conform to their duties, and observes that legislators must have flexibility in staffing. (See, Interim Report of NY St Joint Legis Comm on Legis Methods, Practices, Procedures and Expenditures, 1945 NY Legis Doc No. 35, at 36-38.) The report does not suggest, however, that legislators have such unfettered discretion that they are permitted to sign payroll certifications without regard to the actual duties performed by an employee or to permit personnel to be paid for nonlegislative work.
To the extent that the report is relevant at all, it demonstrates that the dismissed counts presented, at the very least, a question of law concerning the scope of discretion accorded to legislators under the Legislative Law. Indeed, as the report makes clear, payroll certifications are not trivial documents without legal significance, but, rather, instruments designed to ensure that public funds are being used to compensate legislative employees only for public duties actually performed.
Since neither the 1945 report nor the legislative resolution reflects any effort by the Legislature to address, much less resolve, the issue of whether a legislator has statutory discretion or constitutional authority to pay public employees from
In concluding that "we are left with the perplexing question whether campaign work is official activity”, an issue upon which not even the Senate could "reach a consensus” (supra, 642 F2d, at 1380), the Cannon court found "a complete absence 'of judicially discoverable and manageable standards for resolving’ the question whether Senators may use paid staff members in their campaign activities.” (Supra, at 1379.) The court traced the history of the Senate’s attempt to develop a suitable rule. It observed that at the time the Senator began his reelection campaign the Senate’s sole rule governing the participation of staff members in campaign activities permitted only employees designated by a Senator "to receive, solicit, hold, or distribute campaign funds” (supra, at 1380). The court found it significant that, in recommending the rule’s promulgation, a Senate committee had expressly "disavowed any intention to deter campaign activity by Senate employees beyond involvement with campaign monies” (supra, at 1380). The court also noted that the floor debate on the rule essentially reaffirmed the view "that a Senator’s staff was generally free to assist in his reelection efforts” (supra, at 1380). Finally, the court examined the Senate’s attempt, subsequent to the campaign, to consider the role of a legislator’s staff in campaigns. No definitive rule, however, was ever enacted. Thus, the court held, since the Senate itself could not resolve the issue notwithstanding that it was not only authorized, but "institutionally equipped”, to frame public policy and develop its own rules, the issue was not suited to judicial resolution. (Supra, at 1384.)
Clearly, Cannon (supra) does not demonstrate that the charges encompassed by this indictment involve nonjusticiable issues. Cannon was premised on the lack of standards under Federal law by which a court could determine whether con
Cannon (supra) is distinguishable, in any event, since this case does not involve the issue of whether a court may impose civil liability upon a legislator based upon a single staff member’s participation in campaign activities. Rather, this case involves an issue expressly left open in Cannon, i.e., whether legislators "may defraud the Government without subjecting themselves to statutory liabilities.” (Supra, at 1385.) Moreover, unlike Cannon, this case does not involve the activities of a lone legislative employee engaging in political activities for the particular legislator for whom he works while on the State payroll; rather, it presents a situation in which a contingent of public workers was dispatched across the State, not to aid in the reelection efforts of the Senators for whom they worked, but to work full time for other candidates.
Cannon (supra) is inapposite for yet another, even more significant, reason. The New York Legislature, unlike the United States Senate in Cannon, had not, before the 1986 election, struggled with the issues involved here. While it is a fact, as defendants note, that the Legislature never passed any law or resolution, one way or the other, before 1986, as to whether it was permissible for individual legislators to use their staff to support the campaigns of political allies, its failure to do so is far more consistent with the conclusion that
The only rational distinction that can be drawn between the counts dismissed by the motion court on justiciability grounds and those allowed to stand is that the dismissed counts require a determination as to whether the employees in question were compensated from public funds for private campaign services in addition to any legislative duties they may have performed, while the remaining counts involve the much simpler factual issue of whether the affected employees were paid without performing any legislative work during the relevant periods. Such distinction does not, however, support the conclusion that the dismissed counts involve a nonjusticiable political question. The question of whether these payments did, in fact, constitute earnings for past or future services to the Legislature rather than compensation for full-time campaign duties is an objective issue of fact of the kind that courts and juries routinely consider. (See generally, United States v Duggan, 743 F2d 59, 74; cf., United States v Nixon,
For example, in United States v Diggs (613 F2d 988, cert denied
While there may be a case in which the duties of a public employee are so intertwined with legitimate functions as to make it difficult to decide, as a question of fact, whether the employee has been paid from public funds in exchange for the rendition of private services,
For instance, Senator Ohrenstein considered campaign work as part of the duties of his staff members. Moreover, the Grand Jury evidence shows that most of the employees in question performed these assignments, without discharging any legislative duties, from June 1986 through the November election. Finally, as the motion court itself recognized, staff members who performed their assigned campaign duties "customarily” were "given the month off after the election”. In such circumstances, it cannot be seriously suggested that defendants believed that the nearly six months of full-time campaign duties to which staff members were assigned was nothing more than uncompensated volunteer work and that the paychecks received during this period represented compensation not for campaign work but for services rendered to the Legislature during the six months prior to the onset of the campaign.
The decision to permit defendants to escape prosecution on the dismissed counts would frustrate the very separation of powers principles that the justiciability doctrine seeks to foster. The judiciary’s refusal to intervene in certain legislative affairs is premised on its respect for the constitutionally delegated authority of the Legislature and a reluctance to intrude on its functions and prerogatives. (See, e.g., Heimbach v State of New York, supra,
The motion court’s decision—significantly expanded upon by the majority—to dismiss certain counts of the indictment on justiciability grounds, however, frustrates that goal since the dismissal of these counts presents a more direct threat to separation of powers principles than does permitting them to go. forward.
The majority’s determination that the acts charged in this indictment (except those with respect to the "no-show” employees) involve matters which are nonjusticiable is grounded on three considerations, none of which has merit. The majority holds that since the State Constitution textually commits the issue of budget enactment and regulation of wages and hours of State employees to the Legislature, the payment and deployment of legislative employees involves the internal procedures and functions of the Legislature, which "should be free from interference from another branch of government.” The majority also concludes that since politics is an integral part of the legislative process and legislators must necessarily engage in political activities "to garner public support” for their legislative programs, a legislator’s use of his staff for such purposes is beyond the pale of judicial scrutiny. Finally, the majority relies upon the absence of any legislative standards, rules or guidelines defining the "proper duties” of legislative employees. It holds that, in the absence of such standards, the judiciary is ill-suited to determine the proper scope of a legislative employee’s duties.
Contrary to the majority’s reasoning, defendants—the Minority Leader, his chief of staff, a State Senator and a former State Senator—may not assert a constitutional interest which is not theirs to assert. Nor, in any event, do the indictment’s charges in any way interfere with legitimate legislative prerogatives.
Defendants are essentially seeking to assert the Legislature’s interest, as a whole, in preventing the executive or judiciary from intruding into the internal affairs of a coordinate breach of government. (See, e.g., Matter of Nicholas v Kahn, supra,
Nor have defendants advanced any valid reason to depart from this rule. They have not, for instance, demonstrated that their interests are so closely intertwined with those of the Legislature that a failure to permit them to assert these interests would adversely aifect the Legislature’s ability to preserve its constitutional powers. (See, e.g., Griswold v Connecticut,
In fact, as already noted, separation of powers principles preclude the courts from looking beyond the Speech or Debate Clause in considering the extent to which a prosecution in
Even if defendants could assert the constitutional interests of the Legislature in enforcing separation of powers principles, they are not entitled to a dismissal because the indictment’s charges do not interfere with or usurp any legitimate legislative prerogatives. Defendants’ arguments to the contrary rest upon the notion that, by exercising their right to hire staff members, they had the right to use the State payroll as a campaign war chest for the benefit of their political allies. Since, as already noted, the use of State funds for such purpose is patently unconstitutional and nowhere authorized by statute, defendants cannot claim that the Legislature intended them to possess this authority. Nor, even if legislatively authorized, would such actions lie beyond the scope of judicial review since they involve "significant questions of law” regarding constitutional principles or issues of statutory construction. (See, Matter of Anderson v Krupsak, supra,
The notion that a legislator could use public employees solely for his own political purposes under the guise of having them assist in the performance of his official functions is totally foreign to the principles upon which our government is based. Our constitutional system was specifically designed to prevent such an "excessive concentration of power in any one branch [of government] or in any one person.” (Rapp v Carey, supra,
With respect to the majority’s reliance on the absence of any affirmative legislative standards defining the scope of duties that legislative employees may properly be assigned to perform, the failure to create such a statutory or regulatory scheme does not render this prosecution nonjusticiable. In determining whether a controversy is justiciable, New York courts look, not to whether the Legislature has provided guidelines, but, rather, as already noted, to whether the controversy presents "judicially manageable” issues or questions of law. (See, e.g., Jones v Beame, supra,
Since this prosecution does not violate separation of powers principles and defendants’ conduct in filing payroll certifications and using State funds to pay "no-show” or "campaign only” workers does not constitute a legislative act immune from judicial scrutiny under the Speech or Debate Clause, defendants are not entitled to any relief on those grounds in their article 78 proceeding. The only other asserted grounds in support of their petition are a due process claim, the argument that several counts of the indictment are multiplicious, and, finally, the claim that the motion court usurped the function of the Grand Jury by rewriting the conspiracy charge in response to its dismissal of certain counts.
In support of their due process claim defendants argue—and the majority holds—that, because the Penal Law does not specifically condemn their conduct, they were denied fair notice that it was prohibited. As a threshold matter, such
What is cognizable in an article 78 proceeding are those claims that challenge the legality of the proceeding itself. Thus, while article 78 relief will not lie to challenge the constitutionality of a statute as applied (Matter of Rossi v County Ct.,
As to the merits, due process requires that a penal statute be stated in terms so that a person of ordinary intelligence will know what the law prohibits or commands. (United States v Petrillo,
Since it is virtually impossible for legislation to specify every act or possibility it addresses, the Constitution, rather than impose "impossible standards”, requires only reasonable precision. (United States v Petrillo, supra,
Thus, it is defendants’ burden to show that the penal statutes involved, as applied to their conduct, are so "vague and uncertain” that they could not determine if their conduct was illegal. (United States v Irwin, 354 F2d 192, 196, cert denied
In the instant matter a person of "ordinary intelligence” would certainly know that taking State money by falsely certifying that it was to be used for a State purpose violates the law. Moreover, as the motion court noted, both the Penal Law and the Constitution provide more than adequate standards to avoid arbitrary enforcement. Nor have defendants met their burden of showing that the Penal Law, as applied in this case, is so vague that they could not determine whether their conduct was illegal.
Defendants argue that for the penal statutes to encompass their conduct the courts would have to render a "pioneering interpretation” of those laws, as well as a "novel interpretation” of article VII, § 8 of the NY Constitution. As the motion court found, article VII, §8 clearly provides standards relevant to the expenditure of State funds for private purposes. It
Nor is there any ambiguity in the statutes involved. For instance, section 155.00 of the Penal Law contains the definitions for the entire larceny article. "Property” explicitly includes money, which is the property alleged to have been wrongfully taken. "Owner” has been construed by the courts to include the State. (See, People v Lyon,
Here, defendants are charged with intending permanently to deprive the State of money by causing individuals to be placed on the State payroll in order to do campaign work or no work at all. Once those salaries were paid, the State lost the funds, for which it derived no benefit. Indeed, the courts of this State have found that similar schemes were properly prosecuted as larcenies. (See, e.g., People v Riccio,
Nor can it be seriously contended that section 175.35 of the Penal Law, which prohibits offering a false instrument for filing, is unconstitutionally vague. There is an ample body of prior judicial interpretation to resolve any doubt as to the meaning of "instrument”. (See, e.g., United States v Chiarella, 588 F2d 1358, 1369, revd on other grounds
United States v Critzer (498 F2d 1160), upon which defendants rely, is decidedly different. Critzer involved a series of genuinely conflicting and vague statutes which placed certain land in trust for American Indians. The defendant had been convicted of evading Federal income taxes by failing to report rental income from such trust property even though she had been advised by the Bureau of Indian Affairs that such income was not taxable. In reversing the conviction, the court noted that "the government is in dispute within itself as to whether the omitted income was taxable.” (Supra, at 1160.) In contrast, defendants did not seek any authoritative advice before embarking on their scheme.
In further support of their claim that they could not have known their conduct was illegal, defendants, as well as the majority, also cite the refusal of the District Attorney in Kings County to prosecute Congressman Charles Schumer, and the April 9, 1987 concurrent resolution of the Senate and Assembly. The facts underlying the prosecutor’s decision in the Schumer matter are also different from those in this case. That investigation involved employees who were legitimately on the State payroll and performed legitimate legislative functions, but also performed campaign work. Here, of course, employees were fraudulently placed or kept on the State payroll while not doing any work or only campaign work. The April 1987 resolution adopted internal rules barring "no-show” and "campaign only” jobs, stating that legislative employees "are compensated from the funds of the New York State Treasury for the performance of official duties on behalf of [a] member, officer, legislative commission or committee.” The concurrent resolution, acknowledging that there previously had been no such guidelines, also asserts the Legisla
Defendants mischaracterize the issue when they rhetorically ask why legislative employees cannot "render active campaign support for political candidates while receiving a salary from the State.” The obvious answer is that they can. But they may not be paid by the State for doing only campaign work or no work at all. It is for engaging in such conduct that defendants are being prosecuted.
Defendants claim that the Legislature has "carefully avoided] the attachment of criminal penalties to the conduct at issue” by not providing for such penalties in the Civil Service Law, the Election Law, the Legislative Law or the Public Officers Law. By this omission, they argue, the Legislature "manifested its intent to exclude such conduct from criminal prosecution.” Defendants’ argument is based on the false assumption that by virtue of their status as legislators and legislative employees and because their scheme involved the theft of public funds, only the Civil Service, Election, Legislative, and Public Officers Laws apply to their conduct.
Contrary to defendants’ argument, there is no manifest intent to exempt legislators from criminal liability under the Penal Law. Furthermore, unless those more specific statutes explicitly provide otherwise, and they do not, a prosecutor has the discretion to apply the more general Penal Law. The Civil Service, Election, Legislative, and Public Officers Laws are narrowly constructed statutes with limited, albeit specific purposes. They were not intended to exempt elected officials or government employees from the Penal Law or to preclude criminal liability for the illegal conduct of those groups. The Penal Law, on the other hand, explicitly imposes criminal liability on everyone, legislators included, for certain conduct.
Defendants, who did not initially include the Civil Service Law when they first asserted this claim in their motion to dismiss, since the Civil Service Law does not apply to legislators and legislative employees, now argue that section 107,
As the motion court correctly found, the cited sections of the Election Law do not express an intention not to impose criminal sanctions for defendants’ actions but instead are directed at specific evils. The Election Law’s stated purpose is to "govern the conduct of all elections at which voters of the state of New York may cast a ballot”. (Election Law § 1-102.) That the public moneys, allegedly stolen, were used to pay campaign workers does not transform any resultant criminality into the "conduct of an election.”
Defendants point specifically to article 17 of the Election Law since it imposes criminal penalties for certain "Violations of the Election Franchise”. As its title suggests, this article is directed at the purchasing of votes, interference with elections and corruption in the election process whereby political bosses attempted to insure the election of favored candidates. Subdivision (2) of section 17-154 ("Pernicious political activities”) prohibits the promise of employment or compensation, "provided for or made possible in whole or in part by any act of congress or of the legislature appropriating funds for work' relief’, to any person in exchange for political activity or support of or opposition to any candidate. Defendants claim that by limiting the prohibition against political activity to funds appropriated for relief purposes, the Legislature manifested an intention not to impose criminal sanctions for similarly using the State payroll. But, clearly, no such intention is expressed. The statute is directed at a specific evil. Moreover, as further evidence that the Legislature never intended to preclude criminal sanctions, section 17-154 (2) was originally enacted as part of the Penal Law (L 1940, ch 667), and
Defendants also cite section 66-a of the Legislative Law as evidence that they are exempt from the Penal Law. This provision, found in an article entitled "Legislative Committees; Testimony in Legislative Proceedings”, prohibits independent lobbying by legislative employees, and, as even its title makes plain, does not have any application to this case. Nor can it be used by analogy, since it does not purport to be an exclusive list of permissible or nonpermissible conduct for legislative employees. The section is meant to address a limited number of situations, none of which are here present.
In this connection, defendants’ reliance on People v Valenza (
It is axiomatic that, in the absence of any legislative limitation, the People are permitted to prosecute a defendant under either a general or specific statute when both criminalize the conduct at issue. (People v Eboli,
In People v Walsh (
As already noted, defendants also challenge the indictment on the ground that it is defectively drafted. Specifically, they argue that multiple false instrument counts based on a single payroll certification are multiplicious, and that, since the motion court agreed, it should have dismissed those counts. They further claim that the purportedly multiplicious counts do not state "other offenses”, as required (see, CPL 200.20 [1]). Thus, they claim, the entire indictment must be dismissed as "hopelessly defective” since, pursuant to CPL 200.70 (2) (c), an indictment may not be amended to cure a misjoinder of offenses.
As already discussed, prohibition is available? only where there is a clear legal right and only when a court acts or threatens to act either in excess of its jurisdiction or, in a proceeding over which it has jurisdiction, in excess of its authorized powers. (Matter of Holtzman v Goldman, supra,
The claimed defects are the type of errors not cognizable in an article 78 proceeding. (See, e.g., Matter of Masin v County Ct.,
"An indictment may state in different counts the accomplishment of the crime charged in various ways as long as the facts relate to the same deed or transaction.” (People ex rel. Prince v Brophy,
The indictment charges defendants with filing numerous payroll certifications, each containing numerous entries falsely certifying that employees performed legitimate legislative duties for the particular pay period involved. Each false entry in each certification has been charged as a separate count. Thus, as pleaded, the People must prove that each individual listed on a particular certification did not perform any legislative duties in the period covered by the certification. While all the counts relating to each certification charge the same crime, they "postulate different theories for the accomplishment of the crime” (People v Perrin, supra,
This conclusion is compelled by the policy considerations which underlie prosecution by indictment. As the Court of Appeals recently observed, " ’First and foremost, an indictment * * * provid[es] the defendant with fair notice of the accusations against him, so that he will be able to prepare a defense.’ (People v Iannone,
From a reading of the indictment, defendants are well aware of exactly which entries the People allege are false. Moreover, in order to convict on a particular count, the jury will have to conclude unanimously that the particular entry was false. If the People had alleged, in a single count, all of the false entries in a particular certification, the jury would merely have to agree that there was some falsehood in that certification. This would raise the specter that individual jurors might disagree as to the falsity of any one particular entry since, if all the jurors agree that there was at least one falsehood, even if not unanimous as to any particular falsity, they could still convict. Thus, the benefit to defendants from multiple count pleading is obvious.
In any event, even if the counts were improperly pleaded, the proper remedy is not dismissal at the pretrial stage. As the motion court noted, any prejudice to defendants from a multiplicity of counts can be cured by appropriate jury instructions or by imposing concurrent sentences.
Defendants, however, suggest that there is indeed a statutory bar to multiplicious counts. Without citing a single case in support thereof, they argue that a multiplicious count must be barred because it does not state "[an]other offense” (see, CPL 200.20 [1]) and, thus, dismissal of the entire indictment is
Defendants also argue that the motion court improperly usurped the function of the Grand Jury by rewriting the conspiracy count to strike therefrom language relating to those counts which it dismissed. As a result, they claim, the conspiracy charge must be dismissed. Since, in my view, the dismissed counts should be reinstated, as originally charged, thus rendering the amendment unnecessary, this argument is academic.
Accordingly, the order dismissing and amending certain counts of the indictment should be modified to the extent of reinstating said counts as originally charged, except as to defendant Quattrociocchi, and, except as thus modified, affirmed. The article 78 petition should be denied and dismissed.
Murphy, P. J., Ellerin and Rubin, JJ., concur; Sullivan, J., dissents in a separate opinion.
Order, Supreme Court, New York County, entered on or about June 15, 1988, affirmed; and application for a writ of prohibition, granted, to the extent that respondents are prohibited from prosecuting the petitioners under indictment No. 10173/87 as to those counts that relate to Category 3 employees, and otherwise denied, without costs and without disbursements, as indicated in this court’s order.
. The attempt to wrest control of the State Senate from the Republicans failed. The composition of the Senate remained 35 Republicans and 26 Democrats.
. These include two employees who were assigned to engage exclusively in fund-raising activities rather than to assist in individual campaigns.
. In addition to those hired in 1986 to work on Orazio’s campaign, six individuals already on the Senate payroll were assigned to work in that campaign, including Canu, who served as campaign manager, Keisman, who wrote campaign literature,and four other Ohrenstein staff members, whose employment is not at issue. After the dispute between Orazio and Sanzillo, all of these individuals, along with Jeffrey Feldman, were reassigned to either the Berman or McDonald campaigns.
. Others assigned to the Montalto campaign included Vanbramer, at least three other Ohrenstein staff members and one member each from the staffs of Senators Weinstein and Halperin. The Ohrenstein staff members worked on the Montalto campaign on a full-time basis, while the staff members provided by the other two Senators worked part time.
. In addition to Bloom, Tishelman, Riconda, James and Surdoval, at least five other Ohrenstein staff members, and one member each from the staffs of Senators Connor, Halperin, Markowitz and Solomon were assigned to the McDonald campaign.
. In addition to Theodosiou, Bressler and Nunziella, at least five other members of Ohrenstein’s staff worked on Berman’s campaign on a full-time basis. Members of the staff of two other Senators also worked on this campaign, apparently on a volunteer basis.
. In addition to these three 1986 campaign workers, other Senate employees assigned full time to the Oppenheimer campaign included Elizabeth Meyer, one person each from the staffs of Senators Babbush and Halperin, and all the members of Oppenheimer’s own staff.
. Others involved in the 1986 campaign followed a similar practice. For instance, at least once during the campaign, Larry Schwartz used the name Jeff McCann when issuing a press release.
. In addition to Mepsted and Stevenson, several others, including Tom Cetrino and Larry Schwartz, at least one other member of Ohrenstein’s staff and one member of Senator Perry’s staff, who were on the Senate payroll before the 1986 campaign season began, were assigned to work full time on the Quattrociocchi reelection campaign.
. In addition to Prefetti, Stettner and Savage, three members of Ohrenstein’s staff also worked full time on Morgan’s campaign.
. The employees whose services were terminated as of November 12, 1986 included Bressler, Doell, James, Tishelman, Del Priore, Fleisher, Nunziella, Theodosiou and Worthing; Toole’s services were terminated as of November 14, 1986. In addition, the services of Prefetti, Riconda, Surdoval,
. For reasons not apparent in the record, the People do not appeal from the dismissal of those counts of the indictment pertaining exclusively to defendant Quattrociocchi.
. These employees included 10 who were already on the State payroll and were assigned exclusively to perform campaign services during the 1986 campaign, 26 employees placed on the payroll to perform campaign work, one, Wolff, who had been on the payroll for some time and who had performed only political fund-raising work, and two, Smith and Walsh, who had performed no work and were essentially "no-show” employees.
. In a subsequent order, the court denied defendants’ motions to dismiss the indictment on all other grounds, including due process, the election and public officers statutes, legal insufficiency, defective Grand Jury presentation and defective indictment. It also denied motions by defendants Sanzillo, Montalto and Babbush to sever their cases, by Montalto and Babbush based on claims of selective prosecution and the interests of justice and by Ohrenstein based on the Statute of Limitations. This determination is, for the most part, the basis of defendants’ article 78 proceeding.
. Since, as the motion court noted, this provision has rarely been interpreted by the courts of this State, it relied extensively upon Federal cases construing the Speech or Debate Clause of the US Constitution, which provides that "for any Speech or Debate in either House, [Senators and Members of the House of Representatives] shall not be questioned in any other Place” (US Const, art I, § 6).
. The performance of an isolated legislative act would not necessarily constitute a defense to the false instrument count covering the period during which the act was performed since the performance of only nominal
. To cover situations in which a defendant may choose to present legislative acts in his own defense, the Third Circuit has formulated a procedure which "balances the legislative interest in protection from prosecution for legislative acts and the executive interest in punishing fraudulent * ** * claims.” (Government of Virgin Is. v Lee, 775 F2d 514, 525.) The court there held that when a legislator is charged with falsely characterizing nonlegislative acts as legislative in nature, the trial court must first determine whether the defendant has proven by a preponderance of the evidence that particular acts constitute immunized legislative activities. (See, supra, at 524-525.) After making this determination, the court must submit to the jury the question whether the representations made regarding the defendant’s nonlegislative acts were material. (See, supra, at 525.) And, if the prosecution proves beyond a reasonable doubt that the defendant’s misrepresentations were material, then "it will be for the jury to determine his guilt.” (Supra, at 525-526.) There is no reason why this approach cannot be employed here.
. (See, e.g., United States v Diggs, 613 F2d 988, 1001-1002 [Congressman used payroll of House of Representatives to compensate a woman who worked 80% of her time on bookkeeping for Congressman’s funeral home and to pay for private services rendered by an accountant]; see also, United States v Bramblett,
. These three cases hardly represent a unanimous line of Federal authority. In Davis v Passman (544 F2d 865, revd en banc on other grounds 571 F2d 793, revd
. The counts pertaining to the employment of Zebersky and Wolff, who did no work for the Legislature at any relevant time but nonetheless were characterized as "Category 1” and "Category 2” workers, respectively, were not dismissed.
. The court also held that the political question doctrine barred the prosecution of two "Category 3” employees, Toole and Prefetti, who may have rendered some legislative services during the campaign.
. To support this view, the court, citing Matter of Gottlieb v Duryea (
. Numerous cases illustrate that article VII, §8 "forbids the legislature * * * to make gifts or gratuities, or to loan [public] money or * * * credit for the benefit of individuals”. (Matter of Borup,
. In United States v Diggs, the Congressman also was charged with inflating the salaries of his congressional employees to the extent that they paid some of his personal and district office expenses. (613 F2d 988, 995.) The court rejected the defendant’s claim that this was a permissible exercise of his discretion, noting that "[such] argument erroneously equates a congressman’s discretion to define the duties of an employee with the unfettered power to divert monies intended for one purpose to another, completely unauthorized purpose.” (Supra, at 995.)
. For example, in Winpisinger v Watson (628 F2d 133, cert denied
. Of course, defendants may attempt to show that the employees in question were, in fact, paid only for rendering past services to the Legislature and that defendants so intended when the payroll certifications were submitted. The mere prospect that the defendants may submit proof of this kind does not, however, render the prosecution nonjusticiable any more than a legislator’s right to introduce evidence of a legislative act in his own defense would render him immune under the Speech or Debate Clause.
. Cf., United States v Hastings, 681 F2d 706, 711, cert denied
. There is, similarly, no vagueness problem with Penal Law § 175.35, under which defendants are charged with defrauding the government.
. What advice defendants did receive, they chose not to follow. Although they did not seek an opinion from the government agencies charged with enforcing the law, as in United States v Critzer (498 F2d 1160), they did seek advice from their legislative counsel, who, in fact, advised them that they should not hire individuals solely for campaign work. That they did so nonetheless clearly demonstrates that they knew their conduct violated the law. And, as previously noted, their knowledge is further manifested by the falsity of the payroll certifications.
. Matter of Gribetz v Edelstein (
. Indeed, since the false filing counts arise from single criminal transactions, concurrent sentencing would probably be mandatory. (See, Penal Law art 70.)