Opinion
April 6, 1978
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, HYMAN KORN, J.
Michael R. Juviler (Michael Colodner and John Eiseman of counsel), for appellants.
Julien Schlesinger, P.C. (Alfred S. Julien and Stuart A. Schlesinger of counsel), for respondent.
Joseph R. Marro, the petitioner herein, took office as a Supreme Court Justice on January 1, 1974 and retired on December 31, 1977, having reached the age of 70 during 1977 (NY Const, art VI, § 25). A retired Justice may apply to continue as a retired Justice for a period of two years (NY Const, art VI, § 25, subd b; Judiciary Law, § 115). Justice Marro made application, but, before so doing, was informally advised by appellant Bartlett, the State Administrative Judge, that the appellant State Administrative Board had received negative recommendations regarding his certification and that his having been a Supreme Court Justice for less than five years would weigh heavily against approval of his application.
After filing his application, Justice Marro requested a hearing, with counsel, before the Administrative Board. The request was denied and subsequently so was his request for certification. By a CPLR article 78 proceeding Justice Marro sought a direction that the board certify him. Special Term found that article VI (§ 25, subd b) of the State Constitution and section 115 Jud. of the Judiciary Law created a right in such Judges to continue in office provided that there was no physical or mental disability in the application and there was a need for Judges in general. Special Term found no basis for allowing the board to exercise any discretion in, or to formulate standards for, certification. Assuming the need for Judges in general, the court decided that, absent physical or mental disability, Justice MARRO was entitled to certification and so ordered. From that judgment this appeal ensued.
Appellants urge that discretion rests in the Administrative Board with respect to certification of retired Justices, that the board need not state its reasons for exercising that discretion and that an applicant is not entitled to a hearing before the board. Although the petitioner raises many questions, the primary issue is the discretion, if any, resting with the board to certify individual applicants.
Article VI (§ 25, subd b) of the State Constitution provides, in part: "Each such former judge of the court of appeals and justice of the supreme court may thereafter perform the duties of a justice of the supreme court, with power to hear and determine actions and proceedings, provided, however, that it shall be certificated in the manner provided by law that the services of such judge or justice are necessary to expedite the business of the court". Subdivision 1 of section 115 Jud. of the Judiciary Law provides, in part: "Any justice of the supreme Court * * * may, upon his application, be certified by the administrative board * * * upon findings (a) that he has the mental and physical capacity * * * and (b) that his services are necessary to expedite the business of the supreme court." (Emphasis supplied.)
Giving these sections their plain meaning, discretionary authority is delegated to the board. It must be found that the services of each applicant Judge are necessary to expedite the business of the court before he can be certified. Section 115 Jud. of the Judiciary Law provides that a Judge "may" be certified by the board. It does not state the Judge "shall" be certified. The ordinary meaning of the word "may" is permissive (People v Carroll, 3 N.Y.2d 686). To hold, as did Special Term, that a Supreme Court Judge reaching age 70 would have a "right" to remain on the Bench provided he passed a physical and mental examination every two years and provided there existed a general need for Judges would strain and thwart the plain meaning and intent of the constitutional and statutory provisions in question.
The board set forth certain criteria to be used in the certification process of Justices of the Supreme Court. It resolved, inter alia, that: "the Administrative Board, in the exercise of discretion vested in it by Section 114 and Section 115 Jud. of the Judiciary Law, will consider the nature and extent of prior judicial service as most important factors in passing upon applications for certification * * * where the applicant has less than five (5) years of prior service in the Court of Appeals or Supreme Court." (Resolution of the Board, dated February 1, 1969.) The board further directed the State Administrative Judge that in preparing recommendations for certification he shall: "obtain the reports and recommendations of the appropriate Appellate Division and administrative judges with respect to need and competency as to each judge whose certification is under consideration * * *. With respect to the requirement of judicial necessity, the State Administrative Judge shall make his recommendation based on reports of the appropriate administrative judges involving objective criteria, such as caseloads, vacancies, and the productivity and present ability of the judge; reference should also be made to the Resolution of the Administrative Board, effective February 1, 1969, regarding weight to be given to judicial experience. In determining judicial necessity, consideration also shall be given to the availability of physical facilities, budget for supportive staff, and related resources necessary for full utilization of the judge's services." (Resolution of the Board, dated July 3, 1975.)
Appellant Bartlett avers that these directions were followed in regard to the Judges, including Justice Marro, who applied for certification and, based on all the factors, three Justices, including Justice Marro, were denied certification by the board. As to Justice Marro, each Administrative Judge recommended that he not be certified.
We find these directions and the construction given them by the board to be rational regulations of an administrative agency. It is well settled that the construction given to statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld (Matter of Howard v Wyman, 28 N.Y.2d 434).
On this record we find that Judge Bartlett did not prejudge Justice Marro's application, nor did his recommendation rest on grounds contrary to the board's directives and procedures. The failure of the board to list the reasons for their denial of certification is not evidence of arbitrariness or capriciousness (Matter of Beneky v Waterfront Comm. of N.Y. Harbor, 42 N.Y.2d 920; Matter of Kaminsky v Leary, 33 A.D.2d 552, affd 28 N.Y.2d 959; Matter of Delicati v Schechter, 3 A.D.2d 19).
Petitioner's claim that he was entitled to a hearing before the board is without merit. A determination not to continue a retired Judge by the process of certification does not affect any property right as he was already retired by the constitutional mandate (NY Const, art VI). Therefore, he was not entitled to a due process hearing (Board of Regents v Roth, 408 U.S. 564; Matter of Cassidy v Municipal Civ. Serv. Comm. of City of New Rochelle, 37 N.Y.2d 526; Nurenberg v Ward, 51 A.D.2d 1022). There is no "stigma" attached to the failure to be certified. Certainly, lack of five years' service as a Supreme Court Justice before retiring does not create a "stigma" which would entitle Justice MARRO to a due process hearing (Board of Regents v Roth, supra; Matter of Petix v Connelie, 61 A.D.2d 65).
There was no public disclosure of the reasons for failure to certify Justice Marro, and thus petitioner was not deprived of a liberty so as to invoke the due process clause (Bishop v Wood, 426 U.S. 341). We also note that Justice Marro failed to affirmatively challenge the substantial truth of the contention of Judge Bartlett that the Administrative Judges did not recommend certification (Codd v Velger, 429 U.S. 624).
The judgment should be reversed, on the law and the facts, and the petition dismissed, without costs.
KANE, J.P., STALEY, JR., and HERLIHY, JJ., concur; MAIN, J., not taking part.
Judgment reversed, on the law and the facts, and petition dismissed, without costs.