Opinion
July 20, 1970
Cross appeals (1) from a judgment of the Supreme Court, entered November 25, 1968 in New York County, which refused to direct a reclassification of the position of Assistant Special Deputy Clerk in the First Judicial District Supreme Court as Court Clerk II and ordered that the classification of clerical personnel as Court Clerk I in the Civil Court of the City of New York, Criminal Court of the City of New York, and the Family Court of the State of New York within the City of New York, be annulled, and (2) from an intermediate order, entered January 18, 1967, which, inter alia, ordered a trial of the issue as to whether such personnel were promoted without benefit of a civil service examination. The appeals have been transferred to the Appellate Division, Third Department. The Administrative Board of the Judicial Conference has established a new civil service structure for the nonjudicial employees of the unified court system pursuant to constitutional mandate. (See N.Y. Const. art. VI, § 28; Judiciary Law, § 212.) Appellants were Assistant Special Deputy Clerks in the Supreme Court, First Judicial District, who have been reclassified to the new title of Court Clerks I. The Special Deputy Clerks of the First District Supreme Court were reclassified Court Clerks II. All other court clerks in the unified court system in the City of New York were also reclassified, either to the title of Court Clerk I or Court Clerk II in both the Supreme Court and the lower courts. Appellants seek, by an article 78 proceeding, to enjoin and annul the Administrative Board's classification plan as it pertains to them, or, in the alternative, a reclassification of appellants into the title of Court Clerk II. They maintain, first, that they are entitled to equal treatment by the application of the "conversion formula" which was used by respondent in the Second District and Supreme Court, Criminal Term in Queens County where all clerks were reclassified to Court Clerk I title unless they had performed higher level duties, in which case they were given the title of Court Clerk II. Secondly, appellants contend that respondent's classification plan has diminished their status and rights in violation of section 223 Jud. of the Judiciary Law in that they will be required in the future to compete against greater numbers, including all those persons who were given Court Clerk I titles in the lower courts. It is claimed that the appellants should be given Court Clerk II titles because the clerks in the lower courts prior to reclassification had different status, salary, functions and examination qualifications than the Supreme Court clerks. Special Term held that the "conversion formula" used in the Second District and in Queens County Supreme Court Criminal Term did not apply to appellants, and denied their reclassification into the title of Court Clerk II. It ordered a trial, however, of the issue of whether the classification of clerical personnel as Court Clerk I in the lower courts was a promotion without benefit of a civil service examination. After a trial was held, it was determined that those persons in the lower courts who were classified as Court Clerk I were promoted without benefit of examination, and Special Term, thereupon, ordered that such classification be annulled. We agree with Special Term that the appellants are not entitled to be reclassified as Court Clerks II. We are not impressed with appellants' argument that since the Administrative Board, in applying the "conversion formula" to their counterparts in the Second District and Queens County Criminal Term, classified them as Court Clerks II, they are also entitled to the same title. Historically and legally there is a sound basis for the distinction. The First District clerks were traditionally divided into two classified levels, i.e., Special Deputy Clerks and Assistant Special Deputy Clerks. A competitive examination was required for promotion from Assistant Special Deputy Clerk to Special Deputy Clerk. Such was not the situation in the Second District and Queens County Criminal Term. There, all clerks were placed in a single classified level, and only one competitive examination was required. It was up to the judges to make the various assignments. No competitive examination was required of those who were performing comparable duties to those performed by Special Deputy Clerks in the First District. With the reclassification, the clerks performing the more responsible duties in the Second District and Queens County Criminal Term were given the title of Court Clerks II; the remainder, that of Court Clerks I. To similarly classify appellants, we conclude, would amount to a promotion without benefit of examination, in violation of the Civil Service Law. (See Matter of Ainsberg v. McCoy, 32 A.D.2d 397.) The other issue presented on this appeal is more complex, and to determine it an examination of the pleadings is necessary to understand the contentions of appellants and the relief demanded by them. Such an examination reveals that, although appellants allege that equating them with the lower court clerks in the title of Court Clerk I was unlawful because it diminished their status, essentially, appellants request a reclassification as Court Clerks II, and contend that respondent erroneously and illegally failed to do this. The petition reveals no contention on the part of appellants that the lower court clerks were improperly designated as Court Clerks I. It contains allegations, on the other hand, that appellants are entitled to a reclassification as Court Clerks II in order to maintain their traditionally higher level as clerks of the Supreme Court. We must conclude, therefore, that Special Term erroneously framed the issue which he submitted for trial. To determine that the lower court clerks were improperly promoted in no way changes appellants' status. They still remain Court Clerks I, which is precisely what they object to. It must be kept in mind that the purpose of the court reorganization was to unify the court system. Thus, if the duties of the court clerks in the lower court are the same as the duties of the court clerks in the Supreme Court, there is no reason why they should not all be placed in the same class. The respondent was vested with authority to formulate a classification plan, but in accomplishing it, they must preserve the civil service status of each employee. To properly arrive at a reclassification of an employee, consideration must be given to prior examinations, appointment record, and duties lawfully performed. ( Matter of Aronson v. McCoy, 33 A.D.2d 183.) There is insufficient proof in the present record for a proper analysis of the duties of the lower court clerks and appellants in order for proper classification. We also believe it was error for Special Term, on this record, to have made a determination that the clerks of the lower courts were improperly promoted without benefit of examination. We do not mean to indicate that under proper circumstances it could not be determined that appellants and the lower court clerks were improperly placed in the same class. To make that determination, however, both groups should be parties to the proceeding and the necessary proof for reclassification adduced. Such is not the situation here, nor are the issues clearly encompassed within the present pleadings. Therefore, under all these circumstances, we conclude that the petition should be dismissed, without prejudice. Judgment and order reversed, on the law, and petition dismissed, without costs. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur in memorandum by Sweeney, J.