New York Law Review

Tag: Public Officer

  • Curry v. Hosley, 89 N.Y.2d 472 (1997): Requirement that District Attorneys Be Admitted Attorneys

    Curry v. Hosley, 89 N.Y.2d 472 (1997)

    The office of District Attorney in New York State requires the officeholder to be an attorney admitted to practice law due to the legal nature of the responsibilities entrusted to that office.

    Summary

    This case addressed whether a non-attorney could serve as a District Attorney in New York. The Court of Appeals held that the legal nature of the District Attorney’s duties necessitates that the individual be a lawyer admitted to practice. The decision emphasized the constitutional and statutory duties of District Attorneys, which include conducting prosecutions, advising grand juries, and applying for warrants. The court rejected the argument that a non-attorney District Attorney could delegate these responsibilities to hired attorneys, stating that such a delegation would constitute an impermissible transfer of fundamental responsibilities. The decision overruled a prior case that suggested a special exception for Hamilton County, where the office had historically been held by non-attorneys.

    Facts

    James Curry, the Republican Party candidate and incumbent District Attorney (an attorney), initiated a proceeding to remove Morrison Hosley, a non-attorney candidate, from the ballot for Hamilton County District Attorney. The office had been held by non-attorneys for over a century, ending in the 1960s. Hosley argued that if elected, he would appoint attorneys from neighboring counties to handle legal work.

    Procedural History

    The Supreme Court initially ruled in favor of Curry, removing Hosley from the ballot. The Appellate Division reversed this decision, allowing Hosley to remain on the ballot. The Court of Appeals then reversed the Appellate Division’s order and reinstated the Supreme Court’s judgment, effectively removing Hosley from the ballot.

    Issue(s)

    Whether New York law permits a person who is not an attorney to serve as the District Attorney of a county.

    Holding

    No, because the legal nature of the important public responsibilities entrusted to the District Attorneys of this State requires that such individuals be lawyers admitted to practice.

    Court’s Reasoning

    The court reasoned that the Constitution uses the term “district attorney,” implying an attorney-at-law qualified to prosecute and defend legal actions. The District Attorney’s client is the people of the State of New York. The court emphasized the broad discretion granted to District Attorneys to investigate, initiate, and prosecute crimes, giving them significant control over individuals’ liberty and reputation. County Law § 700(1) mandates that District Attorneys conduct all prosecutions for crimes within their county. The District Attorney also serves as a legal advisor to the Grand Jury and makes applications for eavesdropping and video surveillance warrants.

    The court rejected Hosley’s argument that he could delegate his legal work to appointed attorneys, stating that this would constitute an impermissible transfer of fundamental responsibilities. The court cited Matter of Schumer v. Holtzman, which prohibits the wholesale transfer of public responsibility. Such delegation could also violate ethical guidelines that govern the professional conduct of attorneys by assisting a nonlawyer in the practice of law. County Law § 702(2) states that the assistant district attorney shall perform such duties pertaining to the office as may be directed by the district attorney. The Code of Professional Responsibility prohibits lawyers from helping nonlawyers in the practice of law (Code of Professional Responsibility DR 3-101 [22 NYCRR 1200.16]).

    The court clarified its prior statement in People v. Carter, where it stated that neither the Constitution nor any statute requires that a District Attorney or an Assistant District Attorney be an admitted lawyer (77 NY2d, at 105). The court clarified that it did not consider the precise question presented here — namely, whether it is necessary for a prosecutor to have any training as a lawyer at all, or more particularly, whether training as a lawyer and admission to the Bar are necessary criteria for eligibility for the elected office of District Attorney.

    The court overruled Matter of Drake, which had allowed a non-attorney to run for Hamilton County District Attorney, eliminating any special exception for that county.

  • People v. Herbert, 22 N.Y.2d 601 (1968): Defining “Public Officer” for Waiver of Immunity

    People v. Herbert, 22 N.Y.2d 601 (1968)

    The term “public officer” in the New York Constitution, mandating forfeiture of office for refusing to waive immunity, extends beyond high-ranking officials to encompass any public employee with knowledge of wrongdoing in their area of official responsibility.

    Summary

    This case concerns whether a parking fee collector, who refused to waive immunity during a grand jury inquiry into his conduct in that role, could forfeit his subsequent position as Commissioner of Street Sanitation. The Court of Appeals held that the constitutional provision requiring forfeiture for refusing to waive immunity applies to any public employee with knowledge of wrongdoing, regardless of rank. The court reasoned that the purpose of the provision is to ensure accountability in public service, and this purpose would be undermined if lower-ranking employees could conceal wrongdoing with impunity.

    Facts

    The defendant, Herbert, served as Acting Head Parking Fee Collector and Parking Fee Collector for the City of Buffalo from 1954 to 1966.

    In January 1966, he was appointed Commissioner of Street Sanitation for the city.

    In March 1966, a grand jury investigated Herbert’s conduct in his prior parking fee collecting positions.

    Herbert was subpoenaed, informed of the inquiry, and asked to sign a waiver of immunity related to his parking fee offices, which he refused.

    Procedural History

    The People and the Attorney General brought an action to forfeit Herbert’s position as Commissioner of Sanitation under Article I, Section 6 of the New York Constitution.

    The Special Term and the Appellate Division ruled that Herbert’s prior positions were not “public offices” within the meaning of the constitutional provision.

    The suit for forfeiture was dismissed, and judgment was entered for Herbert.

    Issue(s)

    Whether the positions of Parking Fee Collector and Acting Parking Fee Collector constitute “public office” as the term is used in Section 6 of Article I of the New York Constitution, such that refusal to waive immunity during a grand jury investigation into those offices could lead to forfeiture of a subsequently held public office.

    Whether compelling forfeiture of office for refusing to waive immunity violates the Fifth Amendment protection against self-incrimination under the U.S. Constitution.

    Holding

    Yes, because the constitutional policy requires any person in public service to disclose knowledge of criminal wrongdoing in that place, regardless of rank, or risk their official position.

    No, because the court determined that the state has a right to discharge a public official who invokes the privilege against self-incrimination when asked questions specifically, directly, and narrowly relating to the performance of his official duties.

    Court’s Reasoning

    The court reasoned that a narrow interpretation of “public officer” would create an illogical and harmful distinction, allowing lower-ranking employees to conceal wrongdoing while holding higher-ranking officials accountable.

    The court emphasized that the purpose of the constitutional provision is to impose a duty to disclose knowledge of crimes in the public service, a duty that applies equally to officials of high and low degree. The court found this to be the intent of the 1938 Constitutional Convention.

    The court dismissed the argument that subsequent amendments to the provision indicated a legislative intent to distinguish between different levels of public employment. The court cited the legislative history of those amendments, which focused on closing loopholes in the original provision rather than creating new distinctions.

    Regarding the Fifth Amendment issue, the court acknowledged the Supreme Court’s decisions in Spevack v. Klein and Garrity v. New Jersey, which addressed the privilege against self-incrimination. However, the court distinguished those cases, noting that they did not directly address the situation of a public official refusing to answer questions related to their public employment. The court quoted from Spevack, noting the express reservation of judgment on the question of whether a policeman could be discharged for refusing to testify about his conduct as a police officer.

    The court concluded that the state has a right to discharge a public official who refuses to testify about their public employment, and that this right does not create an inescapable conflict with the Fifth Amendment.

    The court stated the contemporary view of the 1949 amendment: “that a public official refusing to testify before a grand jury * * * under waiver of immunity, should be removed from office” but that People v. Harris “has disclosed a loophole” which it was suggested be corrected “to prevent avoidance of the clear intent” of the 1938 amendment.