Supreme Court, Erie County, July 12, 2024

James Duane Featherstonhaugh and Jonathan S. McCardle for plaintiff/petitioner.

Letitia James, Attorney General (Michael Thomas Feeley and Pedro Morales of counsel), for defendant/respondent.

"The one great principle of the English law is to make business for itself." (Charles Dickens, Bleak House.)

Petitioner is the Honorable Acea M. Mosey (Surrogate Mosey or petitioner), the duly elected Erie County Surrogate located in the Eighth Judicial District of New York (NY St Cts Elec Filing [NYSCEF] Doc No. 1). Respondent is the Office of Court Administration (OCA), the administrative arm of the court system, under the direction of the Chief Administrative Judge{**84 Misc 3d at 961} (AJ), who oversees the day-to-day administration and operation of the statewide court system (id.).^[FN1]

Petitioner's hybrid declaratory judgment/CPLR article 78 petition seeks a judgment and order: (1) declaring that under sections 2605 and 2606 of the Surrogate's Court Procedure Act, Surrogate Mosey has the exclusive authority to appoint the Chief Clerk and Deputy Chief Clerk of the Erie County Surrogate's Court; (2) declaring that sections 2605 and 2606 of the SCPA have not been repealed by the adoption of article VI, § 28 of the New York State Constitution; and (3) declaring that the July 6, 2022 Administrative Order (Administrative Order) issued by the Honorable Kevin M. Carter, Administrative Judge of the Eighth Judicial District, was arbitrary and capricious (id.).

At bottom, this petition presents two binary questions for this court's consideration: (1) Have sections 2605 and 2606 of the SCPA, which explicitly give Surrogate Mosey the exclusive right to appoint the Chief Clerk and Deputy Chief Clerk of the Erie County Surrogate's Court, been repealed by implication as a result of the adoption of article VI, § 28 of the New York State Constitution? Respondent answers the question in the affirmative; or (2) Can sections 2605 and 2606 of the SCPA and article VI, § 28 of the Constitution, along with other statutes, be read together and reconciled in such a way that Surrogate Mosey, not OCA, has the sole power to appoint the Chief Clerk and Deputy Chief Clerk of the Surrogate's Court? Surrogate Mosey argues that they can.

In reaching this decision, the court has reviewed the verified petition, along with exhibits [*2]A-H (hereafter, exhibit —) (NYSCEF Doc Nos. 1-9); the affidavit of the Honorable C. Raymond Radigan in support of the petition (NYSCEF Doc No. 10); Surrogate Mosey's affidavit in support of the petition (NYSCEF Doc No. 13); petitioner's supporting memorandum of law (hereinafter, petitioner's mem at —) (NYSCEF Doc No. 14); respondent's notice of motion to dismiss the petition (NYSCEF Doc No. 22); the affirmation of Daniel R. Maguire (Maguire affirmation) in support of the motion to dismiss (NYSCEF Doc No. 23); respondent's supporting memorandum of law (hereinafter, respondent's mem at —) (NYSCEF Doc No. 26); and petitioner's memorandum of law in reply (NYSCEF Doc No. 28). The court{**84 Misc 3d at 962} also reviewed the transcript of the May 7, 2024 argument on the petition (hereinafter, tr at —).

The facts are simple and undisputed. On July 1, 2022, Surrogate Mosey issued an order which provided that pursuant to SCPA 2605 (3), she was "designating" Linda Coyle Novotny as Temporary Chief Clerk of the Erie County Surrogate's Court (exhibit A).

On July 6, 2022, OCA issued an order also appointing Linda C. Novotny as Temporary Chief Clerk of the Erie County Surrogate's Court (exhibit B).

OCA then commenced the process to fill the Chief Clerk's position permanently. On November 22, 2022, OCA nominated and supported Linda Wiedrick as the permanent Chief Clerk (Maguire affirmation ¶ 3 [referencing its attached exhibit A]).

The relevant statutory, regulatory and constitutional schemes are set forth below.

A. The New York Surrogate's Court Procedure Act

The SCPA is the principal statute governing proceedings in the Surrogate's Court. Relevant to this case is SCPA 2605 (1)-(2). That section provides, in relevant part:

"1. Chief clerk. By written order filed and recorded in his office, which he may in like manner revoke at pleasure, a surrogate shall appoint a chief clerk of the surrogate's court, who shall be and shall perform all duties of the clerk of the surrogate's court.

"2. Deputy chief clerk. In any county containing a city of the second class and in any county having a population over 500,000 the surrogate shall, and in any other county the surrogate may, in like manner appoint a deputy chief clerk of the surrogate's court. In counties under 500,000 the surrogate may designate one of the clerks of the court to act as deputy chief clerk of the court in addition to other duties." (Emphasis added).

The Legislature passed SCPA 2605 in 1966. In 1993, the Legislature amended SCPA 2605 (see L 1993, ch 514). The Legislature only amended SCPA 2605 (4) to increase the bond amount a chief clerk and deputy chief clerk are required to file{**84 Misc 3d at 963} from $10,000 to $50,000 (id.). The Legislature did not amend the subsections relevant to this proceeding—SCPA 2605 (1)-(2) (id.).

B. The Judiciary Article of the New York Constitution

Article VI of the New York Constitution—the Judiciary Article—created a "unified court system for the state" (NY Const, art VI, § 1 [a]). This unified court system includes the surrogate's court (id. ["The state-wide courts shall consist of the court of appeals, the supreme court including the appellate divisions thereof, the court of claims, the county court, the surrogate's court and the family court"]). Article VI vested the Chief Judge with the authority to administer the system, with the assistance of the Administrative Board (composed of the Chief Judge and the Presiding Justices of each Appellate Division) (NY Const, art VI, § 28). Together, they are empowered to appoint a chief administrator to "supervise the administration and operation of the unified court system" and exercise powers delegated by the Chief Judge (NY Const, art VI, § 28 [a], [b]).

C. The New York Judiciary Law

The Legislature further defined the Chief Judge's authority to administer New York's "unified court system" through New York's Judiciary Law. Relevant to this case is Judiciary Law § 211 (1) (d), which provides, in part:

"1. The chief judge, after consultation with the administrative board, shall establish standards and administrative policies for general application to the unified court system throughout the state, including but not limited to standards and administrative policies relating to: . . .

"(d) Personnel practices affecting nonjudicial personnel including: title structure, job definition, classification, qualifications, appointments, promotions, transfers, leaves of absence, resignations and reinstatements, performance ratings, removal, sick leaves, vacations and time allowances."

The Legislature passed Judiciary Law § 211 (1) to effectuate and clarify the broad language of New York Constitution, article VI, § 28. As explained in the sponsor memorandum:

"Section 211 prescribes the principal administrative function of the Chief Judge of the Court of Appeals: the promulgation, after approval by the Court of Appeals, of standards and administrative policies for general application throughout the{**84 Misc 3d at 964} State's court system [Const. Art. VI, § 28(d)]. These standards and administrative policies may relate to all phases of court management, including the development of personnel, fiscal and budgetary practices, the orderly dispatch of business in the trial courts, the management of ancillary services such as libraries and jury systems, and the transfer and assignment of judges. These policymaking functions were previously vested in the Administrative Board of the Judicial Conference under former Article 7-A of the Judiciary Law and former section 28 of Article VI of the Constitution" (Mem of Off of Ct Admin, 1978 McKinney's Sess Laws of NY at 1916; Maguire affirmation, exhibit B).

D. The Judiciary Regulations

OCA's authority to administer the "unified court system" is further defined by regulation. Specifically, as relevant here, 22 NYCRR 80.1 (b) provides:

"(b) In the exercise of this delegated responsibility and in accordance with the standards [*4]and administrative policies established, approved and promulgated pursuant to article VI, section 28(c) of the Constitution, the Chief Administrator shall: . . .

"(3) appoint and remove, upon nomination or recommendation of the appropriate administrative judge, supervising judge or judge of the court in which the position is to be filled or the employee works, or other administrator, all nonjudicial officers and employees, except the county clerks, commissioners of jurors, nonjudicial officers and employees of the town and village courts, and personal assistants who serve as law clerks (law secretaries) and secretaries to judges and justices."

The applicable standard of review in this matter is whether OCA's hiring of the Chief Clerk of the Surrogate's Court was "made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" (Matter of Gibson v Commissioner of the N.Y. State Dept. of Motor Vehs., 223 AD3d 667, 667 [2d Dept 2024]).

The parties' positions are fairly evident from the regulatory, statutory and constitutional framework referenced above.

Petitioner contends that SCPA 2605 "could not be more clear. The Surrogate has the responsibility and jurisdiction to appoint{**84 Misc 3d at 965} a chief clerk of the surrogate court, not the OCA" (NYSCEF Doc No. 1 ¶ 45). Petitioner further argues that the legislative history of the SCPA supports her position.

Respondent counters by arguing that article VI, § 28 of the New York State Constitution overrules SCPA 2605, thus rendering that statute unconstitutional, and that this constitutional provision vests OCA with exclusive authority to make all personnel decisions including the hiring of the Chief Clerk and Deputy Chief Clerk of the Surrogate's Court (respondent's mem at 5).

Respondent also points to the language in the constitutional provision providing that the "chief administrator, on behalf of the chief judge, shall supervise the administration and operation of the Unified Court System" (id. at 5-6). Since article VI, § 1 of the New York State Constitution defines the "unified court system" to include the Surrogate's Court, the Constitution grants OCA the authority to "supervise the administration and operation" of the Surrogate's Court, including the authority over the hiring of all nonjudicial personnel (id. at 5-6). OCA asserts that its reading of the Constitution is supported by Judiciary Law § 211, which defines the administrative functions of the Chief Judge to include personnel practices affecting nonjudicial personnel, including "appointments" (id. at 6).

There are then, according to OCA, two pairs of conflict here: the first between the New York State Constitution and SCPA 2605 and the second between SCPA 2605 and Judiciary Law § 211. According to OCA, in each instance SCPA 2605 must be disregarded.

This court disagrees.

A. Article VI, § 28 of the New York State Constitution v SCPA 2605

Respondent contends that the passage of article VI, § 28 of the New York State Constitution effectively overruled SCPA 2605 and thus rendered that section unconstitutional (respondent's mem at 5 ["Upon amendment of the Constitution, statutes inconsistent with the new [*5]amendment become unconstitutional. See Charles v. Sommer & Bro. v. Albert Lorsch & Co., 254 N.Y. 146, 147 (1930)"]).

However, the Court of Appeals in People v Viviani (36 NY3d 564, 576 [2021] [some internal quotation marks omitted]) has held:

"A statute 'enjoy[s] a strong presumption of constitutionality' (Overstock.com, Inc. v New York State{**84 Misc 3d at 966} Dept. of Taxation & Fin., 20 NY3d 586, 593 [2013], quoting LaValle v Hayden, 98 NY2d 155, 161 [2002]). To rebut that presumption, the party attempting to strike down a statute as facially unconstitutional bears the 'heavy burden' of proving 'beyond a reasonable doubt' that the statute is 'in conflict with the Constitution' (McKinney's Cons Laws of NY, Book 1, Statutes § 150 [a], Comment; see Overstock.com, 20 NY3d at 593; Cohen v Cuomo, 19 NY3d 196, 201-202 [2012]; Matter of Fay, 291 NY 198, 207 [1943])."

A law will be deemed unconstitutional "only as a last unavoidable result . . . after every reasonable mode of reconciliation of the statute with the Constitution has been resorted to, and reconciliation has been found impossible" (White v Cuomo, 38 NY3d 209, 216 [2022] [internal quotation marks omitted]). While the presumption of constitutionality is not irrefutable, as the party challenging a duly enacted statute, respondent "face[s] the initial burden of demonstrating [SCPA 2605's] invalidity 'beyond a reasonable doubt' "(LaValle v Hayden, 98 NY2d 155, 161 [2002], quoting People v Tichenor, 89 NY2d 769, 773 [1997]; see Matter of Moran Towing Corp. v Urbach, 99 NY2d 443, 448 [2003]; Matter of Saratoga Water Servs. v Saratoga County Water Auth., 83 NY2d 205, 211 [1994]; Wiggins v Town of Somers, 4 NY2d 215, 218-219 [1958]). Moreover, as the party mounting a facial challenge to this statute, respondent " 'bears the substantial burden of demonstrating that in any degree and in every conceivable application, the law suffers wholesale constitutional impairment' " (Matter of E.S. v P.D., 8 NY3d 150, 158 [2007], quoting Matter of Moran Towing Corp., 99 NY2d at 448).

In the court's view, OCA has not even come close to meeting this appropriately heavy burden. First, the constitutional provision relied upon by respondent simply gives OCA, through the Chief Judge and the AJ, the power to "supervise the administration and operation" of the unified court system. According to respondent, such "administration and operation" includes the power to appoint all nonjudicial personnel in the unified court system, including the Surrogate's Court's Chief Clerk and Deputy Clerk (respondent's mem at 5).

Yet as respondent concedes, the term "administration and operation" in this constitutional context is not always "easy to determine" and that the term is an "elastic one" (respondent's {**84 Misc 3d at 967}mem at 6 n 2, quoting Corkum v Bartlett, 46 NY2d 424, 429 [1979]). Nothing in the plain language of this section of the Constitution refers to giving OCA hiring or appointment powers. Indeed, the legislative history of the SCPA, which was passed in 1966 and amended in 1993, indicates that OCA's predecessor (known then as the "Judicial Conference") submitted a letter to the Legislature objecting to the SCPA provisions giving the Surrogate the power to appoint the Chief Clerk and the Deputy Clerk (Letter from Jud Conf of NY St, May 6, 1966, Bill Jacket, L 1966, ch 953 at 44-47). The position of OCA's predecessor was ultimately rejected by the Legislature and Governor Rockefeller, who signed the SCPA into law.

Further, the amendment to the Constitution in article VI, § 28 was adopted in 1977, 11 years after the SCPA was passed. In 1993, section 2605 was amended to simply increase the [*6]bond amount a Chief Clerk and Deputy Clerk were required to post. The relevant provisions in section 2605 that are at issue here were left untouched. Had the Legislature intended then to repeal the appointment powers in section 2605, it could have easily done so.

Finally, as petitioner points out, and OCA does not directly dispute, the statutory authority under SCPA 2605 (and its predecessor statute) "for a Surrogate to appoint a Chief Clerk has been in existence for over a century and was delegated by the Legislature in Statute and by the People in Article VI, Section 12 of the Constitution" of New York (petitioner's mem at 10).^[FN2]

In short, OCA has not established beyond a reasonable doubt that section 2605 was rendered invalid by article VI, § 28 of the New York State Constitution.

B. Section 2605 of the SPCA v Section 211 of the Judiciary Law

As noted above, Judiciary Law § 211 (1) (d) empowers the Chief Judge to establish "standards and administrative policies for general application to the unified court system" including standards and administrative policies related to, among other things, "appointments" of "nonjudicial personnel." According to {**84 Misc 3d at 968}OCA, the Judiciary Law overrules SCPA 2605's grant to the Surrogate of the power to hire the Chief Clerk and the Deputy Clerk, who are nonjudicial employees. OCA argues (respondent's mem at 9) that

"[n]either N.Y. Const., art. VI, § 28 or the Judiciary Law explicitly define 'nonjudicial personnel.' The term 'nonjudicial personnel,' however, is a binary term creating two categories of personnel—'judicial' and 'nonjudicial.' Determining the scope of the term 'judicial' also determines the scope of the term 'nonjudicial.' Any category of personnel that is not 'judicial' is 'nonjudicial.' "

The court rejects this argument for two reasons.

First, as OCA concedes, "nonjudicial personnel" is defined neither in the New York State Constitution nor in the Judiciary Law. "[W]here the language of a statute is clear and unambiguous, courts must give effect to its plain meaning" (State of New York v Patricia II., 6 NY3d 160, 162 [2006]). The court declines OCA's suggestion—not explicitly stated in its brief—that the term "nonjudicial personnel" in Judiciary Law § 211 (1) (d) is clear and unambiguous and includes within its appointment power the Surrogate's Chief Clerk and Deputy Clerk. As petitioner persuasively and extensively points out in her memorandum, the Surrogate's Chief Clerk and Deputy Clerk have delineated statutory functions and powers that are unique from all other nonjudicial employees and, unlike all other employees of the unified court system, are required to take a constitutional oath of office (petitioner's mem at 10). In this court's view, the term[*7]"nonjudicial personnel" is not at all clear nor susceptible to OCA's facile and "binary" interpretation. Indeed, Judiciary Law § 36 (1) provides that "each justice of the supreme court may appoint and at pleasure remove one law clerk and one secretary, subject to standards and administrative policies promulgated pursuant to section twenty-eight of article six of the constitution." While most would consider a justice's law clerk and secretary to be "nonjudicial personnel," their apparent exemption from that category suggests that there is a legal and definitional lacuna between nonjudicial and judicial employees within the unified court system. To be sure, where the language of the statute is ambiguous, courts may resort to legislative history (see Matter of Anonymous v Molik, 32 NY3d 30, 37 [2018]). Yet OCA cites no legislative history to support its sweeping assertion of appointment power.{**84 Misc 3d at 969} Moreover, the court is unpersuaded by OCA's reliance on 22 NYCRR 80.1 (b). After all, this is a regulation promulgated by OCA itself and does not have the force of law when it runs counter to the clear wording of a statutory provision (see Matter of Allstate Ins. Co. v Rivera, 12 NY3d 602, 609 [2009] [if a regulation runs counter to the clear wording of a statutory provision, it should not be accorded any weight]).

Second, the court is similarly unconvinced by OCA's argument that Judiciary Law § 211 (1) (d) repeals SCPA 2605 by implication. Repeal by implication is disfavored and will not be found unless no contrary conclusion can be reached (see Alweis v Evans, 69 NY2d 199, 204 [1987]). "Absent an express manifestation of [legislative intent]—either in the statute or the legislative history—the courts should not presume that the Legislature has modified an earlier statutory grant of power" (Matter of Consolidated Edison Co. of N.Y. v Department of Envtl. Conservation, 71 NY2d 186, 195 [1988]), particularly where the statutes in question relate to the same subject matter (id.). Most importantly, courts are obligated to avoid conflicting interpretations between statutes, and when two statutes relating to the same subject appear to conflict, courts should interpret them, if possible, in a manner that will give effect to both, taking into consideration the underlying legislative intent (see People ex rel. Bradley v Baxter, 79 Misc 3d 988, 996-997 [Sup Ct, Monroe County, May 4, 2023]; 97 NY Jur 2d, Statutes § 184 [and cases cited therein]).

The textual conflict between SCPA 2605 and Judiciary Law § 211 (1) (d), as urged by OCA, is not readily apparent to this court, and both statutes can be comfortably harmonized. The plain language of section 211 (1) (d) indicates that OCA is empowered to promulgate "standards and administrative policies" of "general application" in the unified court system, including those "standards and administrative policies [that] may relate to all phases of court management, including the development of personnel, fiscal and budgetary practices, the orderly dispatch of business in the trial courts, the management of ancillary services such as libraries and jury systems, and the transfer and assignment of judges" (Mem of Off of Ct Admin, 1978 McKinney's Sess Laws of NY at 1916; Maguire affirmation ¶ 4, citing exhibit B). Functionally then, section 211 (1) (d) is an administrative housekeeping statute that reposes in OCA the power to act as the human resources department of the unified court system, regulating pay grades,{**84 Misc 3d at 970} vacation time, assignments and the like. As this court has heard said many times at conferences and seminars, "You don't work for OCA, OCA works for you." The general power found in section 211 (1) (d) in no way negates the very specific and clear authority given to the Surrogate to appoint the Chief Clerk and the Deputy Clerk in SCPA 2605. Both statutes can peacefully coexist.

Finally, this court notes one troublesome aspect of the petition raised at oral argument. While not entirely clear, it appears that the surrogates located in the New York City area are given much more authority, input and control in appointing their Chief and Deputy Clerks than what was afforded to Surrogate Mosey here (see tr at 34-37) This was not factually developed in [*8]the papers but if true, that would seem to be the definition of an arbitrary and capricious process.

The court finds that OCA's position that it alone is empowered to hire the Chief Clerk of the Surrogate's Court is "affected by an error of law" and is an "abuse of discretion" (Matter of Gibson v Commissioner of the N.Y. State Dept. of Motor Vehs., 223 AD3d at 667). Accordingly, the court directs that judgment be entered declaring that SCPA 2605 is the controlling authority for the appointment of the Surrogate's Court's Chief Clerk and Deputy Clerk and further orders that the parties take further action not inconsistent with this memorandum decision.

We end where we began, with Charles Dickens. His great novel, "Bleak House," depicted how protracted litigation can take its toll—emotionally, financially, and physically—on the parties involved. The court is hopeful its decision can bring closure to this long-standing dispute.

"[S]urrogate's court shall have jurisdiction over all actions and proceedings relating to the affairs of decedents, probate of wills, administration of estates and actions and proceedings arising thereunder or pertaining thereto, guardianship of the property of minors, and such other actions and proceedings, not within the exclusive jurisdiction of the supreme court, as may be provided by law."