Opinion
Index No. 510995/22
12-19-2022
Hon. Harriet L. Thompson, Petitioner, v. The State of New York Office of Court Administration; Hon. Lawrence K. Marks, Chief Administrative Judge; and Hon. Deborah Kaplan, Deputy Chief Administrative Judge, Respondents, and Hon. Carol R. Edmead, Acting Surrogate Judge, Nominal Respondent.
Counsel for petitioner: Matthew L. Berman, Valli Kane & Vagnini LLP. Counsel for respondents: Anthony R. Perri, Acting Counsel, by Pedro Morales, Of Counsel, Office of Court Administration, New York State Unified Court System.
Counsel for petitioner: Matthew L. Berman, Valli Kane & Vagnini LLP.
Counsel for respondents: Anthony R. Perri, Acting Counsel, by Pedro Morales, Of Counsel, Office of Court Administration, New York State Unified Court System.
Karen B. Rothenberg, J.
The following e-filed papers read herein: NYSEF Doc. Nos.:
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 1, 3
Opposing Affidavits (Affirmations) 7, 8
Affidavits/ Affirmations in Reply 15
Upon the foregoing papers, petitioner Hon. Harriet L. Thompson applies, pursuant to CPLR article 78, for a judgment declaring, among other things, that respondents, The State of New York Office of Court Administration (OCA), Hon. Lawrence K. Marks, (now former) Chief Administrative Judge (CAJ Marks), and Hon. Deborah Kaplan, Deputy Chief Administrative Judge (DCAJ Kaplan) (collectively referred to as the OCA Respondents) did not have legal authority to "suspend" petitioner and appoint nominal respondent, Hon. Carol Edmead, Acting Surrogate Judge, to assume her duties as surrogate.
Background
Petitioner primarily contends that CAJ Marks had no authority to suspend her from exercising her duties and responsibilities as surrogate. Petitioner was elected to a 14-year term as a Judge of the Surrogate's Court in the County of Kings in November 2018 and assumed office on January 1, 2019. On December 17, 2021, CAJ Marks issued an administrative order stating:
"Pursuant to the authority vested in me, I hereby direct that: all judicial matters currently pending before the Honorable Harriet L Thompson, Judge of the Surrogate's Court, Kings County, shall be reassigned to such other judge or judges as the Honorable Deborah Kaplan, Deputy Chief Administrative Judge for New York City Courts, shall direct; no additional judicial matters shall be assigned to Judge Thompson until further order; and (3) Judge Thompson shall surrender all keys, access cards and other means of entry to UCS courts and facilities, as well as any UCS-provided computer or other equipment in her custody or control."
Following this order, DCAJ Kaplan issued an administrative order, dated December 20, 2021, designating nominal respondent, Hon. Carol Edmead, as an Acting Surrogate of Kings County.
The court notes that, by way of a stipulation dated September 14, 2022, the parties have agreed to discontinue the proceeding as against Acting Surrogate Edmead.
In her verified petition, petitioner outlines an ongoing dispute she had with the Kings County Public Administrator (KCPA) that, among other things, led petitioner to issue an order suspending the KCPA from taking any action with respect to any of her pending or new cases in the inventory assigned to the KCPA and directing that the Deputy Kings County Public Administrator assume the handling of those matters. According to petitioner, this dispute with the KCPA led to meetings with the (now former) Chief Judge Janet DeFiore and (now former) CAJ Marks and a later meeting attended by CAJ Marks, (now former) Surrogate Margarita Lopez-Torres, the other Kings County Surrogate, and other OCA staff. This dispute resulted in a CPLR article 78 proceeding brought against petitioner by the KCPA (Matter of Buckheit v Thompson, Supreme Court, Kings County Index No. 517574/20; see Matter of Buckheit v Thompson, 73 Misc.3d 1201 [A], 2021 NY Slip Op 50889[U] [Sup Ct, Kings Count 2021]). Petitioner asserts that her actions with regard to the KCPA fell within her statutory authority as surrogate, were justified under the circumstances, and provided no grounds for CAJ Marks suspending her by way of the administrative order dated December 17, 2021.
In opposing the petition, CAJ Marks submits an affidavit in which he asserts that he had authority to issue the order based upon the New York State Constitution, statutes and court rules, and avers that the order was justified by complaints made from others regarding petitioner's conduct as surrogate. CAJ Marks makes no assertion that petitioner's dispute with the KCPA played a direct role in the decision to suspend petitioner. Rather, CAJ Marks asserts that on December 3, 2021, he received a report of an investigation conducted by the New York State Unified Court System Office of the Inspector General (Inspector General) in which the Inspector General documented statements made by petitioner in the presence of court staff that contained demeaning references to the sexual orientation of court administrators and the judiciary, to the competence and physical appearance of members of the judiciary, to the physical appearance of court employees, and to the character of judges, attorneys and court users based on their membership in a particular ethnic group. In view of the assertions contained in the report, CAJ Marks instructed the Inspector General to refer the matter to the New York State Commission on Judicial Conduct. Such matter was referred to the Commission on December 17, 2021. CAJ Marks anticipates that the Commission's investigation of the complaint against petitioner could take up to two years.
It appears, however, that some of the disparaging remarks alleged to have been made by petitioner were directed at the KCPA.
Petitioner, in her own affidavit submitted in reply, asserts that, during the course of the above noted investigation by the Inspector General, she learned that the investigation was based on a complaint from a former member of the Law Department in Surrogate's Court and a letter from her former secretary. Petitioner, while not denying that these persons may have made the above noted accusations, and while conceding some specific statements petitioner made regarding her religion and religious faith, categorically denies the truth of the accusations. According to the petitioner, the Inspector General disregarded evidence petitioner provided during the course of the investigation that establishes that the allegations against her are spurious and unsupported.
Discussion
Although the OCA Respondents deny that the administrative orders effectuate a suspension of petitioner, in view of the fact that the orders reassigned petitioner's caseload, preclude her from being assigned new cases, bar her from accessing her work computers and equipment, and bar her from the non-public areas of the court premises, the orders did, in effect, suspend petitioner from her office of Surrogate, albeit with pay. At issue here is whether CAJ Marks and DCAJ Kaplan had the authority to issue the respective administrative orders pending a determination by the Commission.
The OCA Respondents primarily argue that their authority to issue the orders is implicit in the broad supervisory authority over the court system granted to the Chief Judge and delegated to the Chief Administrator by the Constitution, the Judiciary Law and Court Rules and the express grant of authority in these provisions with respect to judicial assignments. In this regard, NY Constitution article VI, § 28 (a) provides that the Chief Judge of the Court of Appeals is the chief judicial officer of the Unified Court System who appoints a Chief Administrator of the courts to serve at his or her pleasure. NY Constitution article VI, § 28 (b) provides that "[t]he chief administrator, on behalf of the chief judge, shall supervise the administration and operation of the unified court system. In the exercise of such responsibility, the chief administrator of the courts shall have such powers and duties as may be delegated to him or her by the chief judge and such additional powers and duties as may be provided by law." The Constitution also expressly grants the Chief Administrator the authority to temporarily assign supreme court justices to the surrogate's court in the City of New York and to temporarily assign a New York City Surrogate to certain other courts (NY Const art VI, § 26 [a], [d], [i], [k]). Judiciary Law §§ 210, 211 and 212 essentially repeat and add detail regarding the powers and duties of the Chief Judge and Chief Administrator required by NY Constitution article VI, § 28. Section 212, among other things, provides that the Chief Administrator shall "[e]stablish the hours, terms and parts of court, assign judges and justices to them, and make necessary rules therefor" (Judiciary Law § 212 [1] [c]; see also Judiciary Law § 212 [2] [c]), may hold hearings and conduct investigations (Judiciary Law § 212 [1] [h]), and can "[d]o all other things necessary and convenient to carry out his [or her] functions, powers and duties" (Judiciary Law § 212 [1] [t]). The Chief Judge's delegation of the function and duty to assign judges is likewise repeated in Rules of the Chief Judge (22 NYCRR) §§ 33.0, and 80.1 (b) (2).
In view of these constitutional and statutory provisions, courts recognize that the general administrative powers of the Chief Administrator are quite broad (see Corkum v Bartlett, 46 N.Y.2d 424, 429-430 [1979]; see also People v Correa, 15 N.Y.3d 215, 224-226 [2010]; Matter of Scoralick v Milonas, 207 A.D.2d 159, 160-161 [3d Dept 1995], lv dismissed 85 N.Y.2d 967 [1995] and lv denied 86 N.Y.2d 707 [1995]; Matter of Bloom v Crosson, 183 A.D.2d 341, 344-345 [3d Dept 1992], affd for the reasons stated below 82 N.Y.2d 768 [1993]). Courts also recognize the broad administrative authority of the Chief Administrator relating to the temporary assignment of judges to different courts and the assignment of cases to the judges in view of the overall needs of the courts (see Deutsche Bank Natl. Trust Co. v LeTennier, 189 A.D.3d 2022, 2025 [3d Dept 2020]; Caffrey v North Arrow Abstract & Settlement Servs., Inc., 160 A.D.3d 121, 131-133 [2d Dept 2018]; Schwartz v Williams, 124 A.D.2d 798, 799 [2d Dept 1986]; Matter of Marthen v Evans, 83 A.D.2d 415, 417-418 [4th Dept 1981]). Generally, absent a showing that the discretionary assignment power has been put to an illegal or unconstitutional use, the Chief Administrator's assignment authority is not subject to judicial review (see Matter of Marthen, 83 A.D.2d at 418; see also Deutsche Bank Natl. Trust Co. v LeTennier, 189 A.D.3d at 2025; Schwartz, 124 A.D.2d at 799).
Despite the Chief Administrator's broad authority over the courts and the judiciary, there are express constitutional and statutory limits on this authority. Most importantly here, pursuant to NY Constitution article VI, § 22 (a), the New York State Commission on Judicial Conduct has the "exclusive authority to 'receive, initiate, investigate and hear complaints with respect to the conduct... [and] performance of official duties of any judge or justice of the unified court system'" (Matter of Wilk v New York State Commn. on Jud. Conduct, 97 A.D.3d 716, 716 [1st Dept 1983] [quoting NY Const art VI, § 28 (a)], appeal withdrawn 62 N.Y.2d 977 [1984]; see Matter of New York State Commn. on Jud. Conduct v Rubenstein, 23 N.Y.3d 570, 578-579 [2014]; Sims v Wachtler, 156 A.D.2d 212, 212-213 [1st Dept 1989]). Upon hearing a misconduct complaint, the Commission "may determine that a judge or justice be admonished, censured or removed from office for cause, including, but not limited to, misconduct in office, persistent failure to perform his or her duties, habitual intemperance, and conduct, on or off the bench, prejudicial to the administration of justice" (NY Const art VI, § 28 [a]). A judge or justice may either accept the Commission's determination or request that the Court of Appeals review the determination, and upon such review, the Court of Appeals has the authority to impose a less or more severe sanction then the one determined by the Commission (NY Const art VI, § 28 [a], [d]).
Indeed, this is the only means of removing a surrogate from office other than the removal authority granted to the senate under NY Constitution article VI, § 23 (b).
The only constitutional or statutory mention of authority to suspend a judge pending action by the Commission, or, indeed, for any other reason, is contained in NY Constitution article VI, § 22 (e) and (f) and Judiciary Law § 44 (8). NY Constitution article VI, § 22 (e) provides, as relevant here, that the Court of Appeals "may suspend a judge or justice from exercising the powers of his or her office while there is pending a determination by the commission on judicial conduct for his or her removal or retirement, or while the judge or justice is charged in this state with a felony by an indictment or an information filed pursuant to section six of article one." In addition, NY Constitution article VI, § 22 (f), provides, as is relevant here, that, "[u]pon the recommendation of the commission on judicial conduct or on its own motion, the Court of Appeals may suspend a judge or justice from office when he or she is charged with a crime punishable as a felony under the laws of this state, or any other crime which involves moral turpitude" (see also Judiciary Law § 44 [8] [a], [b]).
The language of Judiciary Law § 44 (8) (a) and (b) is essentially the same as that of NY Constitution article VI, § 22 (e) and (f).
Particularly relevant in interpreting the subject provisions are rules of construction that apply to both constitutional and statutory interpretation. Since the constitutional and statutory provisions at issue are all addressed to the courts and were all initially adopted as part of the sweeping reorganization of the courts that occurred in 1978 (see Bartlett v Evans, 110 A.D.2d 612, 614 [2d Dept 1985]; L 1978, ch 156, §§ 1, 7), they are in pari materia and should be construed together since there is no clearly expressed suggestion to the contrary (see Matter of Albany Law School v New York State Off. Of Mental Retardation & Dev. Disabilities, 19 N.Y.3d 106, 120-121 [2012]; People ex rel. Williams Eng'g & Contr. Co. v Metz, 193 NY 148, 157-158 [1908]; McKinney's Cons Laws of NY, Book 1, Statutes § 221 [a], Comment, at 375 [in pari materia principles apply "with peculiar force to statutes passed at the same legislative session"]). Another rule of construction provides that, "where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted and excluded" (Matter of Town of Eastchester v New York State Bd. of Real Prop. Servs., 23 A.D.3d 484, 485 [2d Dept 2005]; Harrington v Harrington, 60 A.D.2d 982, 983 [4th Dept 1978]; McKinney's Cons Laws of NY, Book 1, Statutes § 240; see also Matter of Hoerger v Spota, 109 A.D.3d 564, 568 [2d Dept 2016], affd 21 N.Y.3d 549 [2013]). Thus, given the express assignment of the disciplinary and removal power to the Commission, with review by the full Court of Appeals, along with the express assignment of the suspension power to the full Court of Appeals, the absence of any mention of the Chief Administrator having a role in the process strongly weighs against finding that the Chief Administrator has authority to preliminarily suspend a judge or justice. Moreover, since neither the Chief Judge nor the Chief Administrator has any removal authority, no inference that he/she has the power to suspend an employee or officer, with or without pay, can be drawn since such authority may only generally be inferred as a power incidental to the power to remove the employee or officer (see Matter of Kreppein v Downs, 272 A.D. 452, 454 [2d Dept 1947]; Matter of Silkman, 88 A.D. 102, 105-106 [2d Dept 1903]; Matter of Tuchman v Trussell, 43 Misc.2d 255, 257-258 [Sup Ct, Queens County 1964]; see also Delaney v Del Bello, 81 A.D.2d 566, 567-569 [2d Dept 1981]; cf. Phingst v State of New York, 57 A.D.2d 163, 165-166 [3d Dept 1977]).
Concededly, some other state supreme courts have concluded that they, or their respective court system's administrative apparatus, have the power to suspend a judge based on inherent powers arising out of their administrative authority over the courts even in the absence of any express removal or disciplinary authority (see e.g. In re Bruno, 627 Pa 505, 101 A.3d 635 [2014]; In re Watkins, 233 W Va 170, 757 S.E.2d 594 [2013]; Matter of Ferguson, 304 S.C. 216, 403 S.E.2d 628 [1991]; In re Kirby, 350 N.W.2d 344, 347-348 [Minn 1984]; In re Mussman, 112 NH 99, 100-103, 289 A.2d 403, 404-406 [1972]; see also Halverson v Hardcastle, 123 Nev 245, 270-271, 276, 163 P.3d 428, 446, 449-450 [2007]; but see Matter of Municipal Court of Cedar Rapids, 188 N.W.2d 354, 358 [Iowa 1971]). The Court of Appeals, however, has generally recognized that New York courts, and by extension, their court administrators, have no discretionary power beyond that "inherent in the nature of the judicial function," and that this discretionary power cannot be exercised in a manner that conflicts with existing constitutional or legislative commands (see People v Mezon, 80 N.Y.2d 155, 158-159 [1992]; Matter of A.G. Ship Maintenance Corp. v Lezak, 69 N.Y.2d 1, 5-6 [1986]; Cohn v Borchard Affiliations, 25 N.Y.2d 237, 247-252 [1969]; see also Matter of Silkman, 88 A.D. at 104-106; cf. Riglander v Star Co., 98 A.D. 101, 103-105 [1st Dept 1904], affd 181 NY 531 [1905]). This narrow New York view of inherent powers precludes finding that the Chief Administrator's broad administrative powers include the authority to suspend a judge given it is the Commission that has the power to remove and discipline a judge and the full Court of Appeals that has the power to suspend a judge pending a determination by the Commission (NY Const art VI, § 22 [e], [f]; Judiciary Law § 44 [8]; Matter of Silkman, 88 A.D. at 104-106).
In In re Bruno (627 Pa 505, 101 A.3d 635 [2014]), the Pennsylvania Supreme Court found that its constitutionally enshrined "Kings Bench" powers, along with the constitutional grant of administrative authority over the court system allow it to suspend and sanction attorneys despite the creation of a Judicial Conduct Board that was afforded the same powers by constitution and statute.
However, finding that the Chief Administrator lacks the authority to suspend a judge, does not require a finding that CAJ Marks did not have authority to issue other aspects of his order. Namely, the Chief Administrator's express authority with respect to judicial assignments discussed above necessarily includes an implied power to remove assignments from a judge (cf. Delaney, 81 A.D.2d at 567-569; Phingst, 57 A.D.2d at 165- 166; see also Halverson, 123 Nev at 273-274, 163 P.3d at 447-448). CAJ Marks thus had the power to reassign present and future cases assigned to petitioner to another judge. In contrast to Schwartz, (124 A.D.2d at 799) and Matter of Marthen (83 A.D.2d at 417-418), where the rationale underlying the judicial assignments were the administrative case load needs of the courts, CAJ Marks' rationale for the reassignment of the cases from petitioner arose from alleged misconduct by petitioner. This distinction may, under these circumstances, warrant review of the reassignment of cases under the arbitrary and capricious standard rather than the more deferential standard applied in Deutsche Bank Natl. Trust Co. v LeTennier (189 A.D.3d at 2025), Schwartz (124 A.D.2d at 799), and Matter of Marthen (83 A.D.2d at 417-418).
This court, however, need not resolve the standard of review issue as it finds that the allegations against petitioner reported to CAJ Marks provided him with a rational basis (see Matter of LaPerche v City of Peekskill, 209 A.D.3d 1028, 1029-1030 [2d Dept 2022]) to find that petitioner held biases that may warrant finding that she violated Rules Governing Judicial Conduct requiring, inter alia, that a judge "shall act at all times in a manner that promotes public confidence in the judiciary" (Rules of Chief Admin of Cts [22 NYCRR] § 100.2 [a]) and that a judge "in the performance of judicial duties shall not, by words or conduct, manifest bias or prejudice, including but not limited to bias or prejudice based upon age, race, creed, color, sex, sexual orientation, gender identity, gender expression, religion, national origin, disability, marital status or socioeconomic status" (Rules of Chief Admin of Cts [22 NYCRR] § 100.3 [B] [4]). If substantiated, the allegations are akin to conduct that has led to judicial misconduct findings by the Commission and the Court of Appeals (see Matter of Senzer, 35 N.Y.3d 216, 219-221 [2020] [gender and racial slurs contained in emails]; Matter of Miller (New York State Commn. on Jud. Conduct), 35 N.Y.3d 484, 487 [yelling at and berating court staff and inappropriate sexualized language aimed at court staff]; Matter of Mulroy, 94 N.Y.2d 652, 656-657 [2000] [remarks containing racial and ethnic stereotypes]; Matter of Schiff, 83 N.Y.2d 689, 692-693 [1994] [remarks containing racial and ethnic stereotypes]). The allegations raise questions regarding petitioner's ability to fairly determine the matters before her and support removing petitioner's caseload pending a determination by the Commission or a suspension order from the full Court of Appeals pursuant to New York Constitution article VI, § 22 (e) and (f) and Judiciary Law § 44 (8).
Although petitioner, at oral argument, objected to the statements relating to the findings of the Inspector General's investigation contained in CAJ Marks' affidavit as hearsay, petitioner, in her own affidavit in reply, essentially concedes that court personnel in fact made the accusations as alleged by CAJ Marks. As noted above, petitioner merely denies that she made the statements attributed to her.
Since the OCA Respondents' rationale for CAJ Marks' order is that the matter has been referred to the Commission, it must be temporally limited and the bar on assignments to petitioner must thus be lifted upon a dismissal or other rejection of the allegations by the Commission (Rules of State Commn. on Jud. Conduct [22 NYCRR] § 7000.3 [c]) and/or a denial of a suspension by the Court of Appeals. In addition, although the Commission must be afforded a reasonable time to conduct an investigation, it is ultimately not required to take any specific action with respect to a referral or investigation (see Matter of Doe v Commission on Jud. Conduct, 124 A.D.2d 1067, 1068 [4th Dept 1986]). Accordingly, the denial of the petition with respect to CAJ Marks' reassignment of the cases before petitioner is made without prejudice to petitioner renewing the petition if the Chief Administrator fails to reinstate petitioner's caseload after a reasonable time for an investigation by the Commission and the Commission's failure to take any action with respect to these alleged complaints of misconduct.
The portion of CAJ Marks' administrative order barring petitioner from the courthouse and requiring her to return UCS equipment must be vacated. As discussed above, the Chief Administrator has no authority to suspend a judge, and the OCA Respondents have identified no specific statute or court rule that would otherwise allow the Chief Administrator to bar a judge from the courthouse or require the return of UCS equipment (see Halverson, 123 Nev at 275, 163 P.3d at 449). In addition, the power to reassign a judge does not impliedly include the power to wholly deprive a judge of his or her office.
CAJ Marks, nevertheless, asserts that the decision to bar petitioner from the courthouse is justified by the need to provide the nonjudicial employees of the UCS with a discrimination free workplace under Title VII of the Civil Rights Act of 1964 (Title VII) (42 USC § 12101, et seq.) and the New York State Human Rights Law (Executive Law § 296) by preventing a hostile or abusive work setting. Assuming that the Chief Administrator's unquestioned authority over and responsibility for UCS employees (see Matter of Met Council v Crosson, 84 N.Y.2d 328, 334-335 [1994]; Matter of Blyn v Bartlett, 39 N.Y.2d 349, 360-361 [1976]; Rules of the Chief Judge [22 NYCRR] § 80.1 [b] [3]) would allow him or her to bar a judge from the courthouse to protect against discriminatory conduct under certain circumstances (see Matter of Phillips v Manhattan & Bronx Surface Tr. Operating Auth., 132 A.D.3d 149, 155-157 [1st Dept 2015], lv denied 27 N.Y.3d 901 [2016]), the OCA Respondents have not demonstrated a rational basis supporting a complete ban on petitioner's entry into the courthouse or depriving her of her court computers and other equipment under the present circumstances. In this respect, although the alleged comments by petitioner are undoubtedly repugnant and inappropriate, the OCA Respondents have failed to provide further detail regarding the workplace environment under petitioner. Notably, the OCA respondents do not suggest that UCS employees had complained of an improper work environment, that petitioner had been warned about her treatment of UCS employees, or that other less restrictive approaches not involving a complete deprivation of all the privileges of her elected office, other than her salary, are untenable. Under these circumstances, the assertions made by CAJ Marks without factual support fail to demonstrate a rational basis for barring petitioner from the courthouse and requiring her to surrender her UCS equipment (see Galaxy Bar & Grill Corp. v New York State Liq. Auth., 154 A.D.3d 476, 479 [1st Dept 2017], lv dismissed 30 N.Y.3d 1046 [2018]; Matter of Jacobs v Wappingers Cent. School Dist., 266 A.D.2d 215, 215 [2d Dept 1999]; Matter of Matty's Rest. v New York State Liq. Auth., 21 A.D.2d 818, 819 [2d Dept 1964], affd 15 N.Y.2d 659 [1964]).
With respect to DCAJ Kaplan's December 20, 2021 order appointing Acting Surrogate Edmead, this court, having found that the Chief Administrator has the authority to reassign petitioner's caseload and that CAJ Marks had a rational basis for doing so here, finds that petitioner has no basis to challenge DCAJ Kaplan's temporary appointment of Acting Surrogate Edmead or to challenge the orders issued by Acting Surrogate Edmead (see NY Const art VI, § 26 [a], [d], [i], [k]; Judiciary Law § 212 [1] [c]; Rules of the Chief Judge [22 NYCRR] §§ 33.0 and 80.1 [b] [2]; Deutsche Bank Natl. Trust Co. v LeTennier, 189 A.D.3d at 2025; Caffrey, 160 A.D.3d at 131-133).
To the extent that petitioner asserts that she was deprived of due process by the administrative determinations that were made without a hearing, she has no due process claim because the determinations, at most, suspended her with pay, a kind of suspension for which no hearing is generally required (see Cleveland v Bd. of Educ. v Loudermilk, 470 U.S. 532, 544-545 [1985]; Matter of Richie v Coughlin, 148 A.D.2d 178, 183 [3d Dept 1989], lv dismissed 75 N.Y.2d 765 [1989], lv denied 75 N.Y.2d 707 [1990], cert denied 498 U.S. 824 [1990]; Grenburg v Kavanaugh, 413 F.Supp. 1132, 1136 [ED Mich. 1976]).
Finally, given the weighty issues of constitutional and statutory authority at stake and the absence of any New York caselaw, appellate or otherwise, addressing the authority of the Chief Administrator to effectively suspend a sitting elected judge or justice, this court will stay the effect of this order for 30 days from the service of a copy of this order and judgment with notice of entry to allow the OCA Respondents time to file a notice of appeal and seek any discretionary stay or other like relief they desire from the Appellate Division (see Congdon v Washington County, 134 Misc.2d 765, 779 [Sup Ct, Washington County 1986], affirmed 130 A.D.2d 27 [3d Dept 1990], lv denied 77 N.Y.2d 983 [1991]; CPLR 2201, 5519 [a] [1]; see also Matter of Kar-McVeigh, LLC v Zoning Bd. of Appeals of Town of Riverhead, 93 A.D.3d 797, 798-799 [2d Dept 2012]).
The court notes that the Chief Administrator has previously issued administrative orders removing judges from their judicial duties prior to action by the Court of Appeals (see e.g. Matter of Gross, 5 N.Y.3d 325, 326 [2005]). However, the parties have not identified, and this court has failed to find, a New York case addressing the Chief Administrator's authority to do so.
Accordingly, the petition is granted to the extent that it is:
ORDERED and ADJUDGED, that the portions of CAJ Marks' December 17, 2021, administrative order reassigning matters pending before petitioner and barring petitioner from receiving new assignments must be lifted upon a dismissal or other rejection of the complaint/allegations by the New York State Commission on Judicial Conduct (Rules of State Commn. on Jud. Conduct [22 NYCRR] § 7000.3 [c]) and/or a denial of a suspension by the Court of Appeals; and it is further
ORDERED and ADJUDGED that the portion of CAJ Marks' December 17, 2021, administrative order requiring petitioner to surrender all keys, access cards and other means of entry to Unified Court System (UCS) courts and facilities, as well as any UCS-provided computer or other equipment in her control is vacated; and it is further
Although petitioner seeks certain declarations regarding the administrative orders at issue and the actions of the OCA Respondents, a declaratory judgment action is customarily not an appropriate vehicle for challenging administrative determinations. It is evident that the primary relief sought by petitioner is not declaratory relief, but rather, the vacatur of the administrative orders and reinstatement of petitioner to all of the rights and duties of her position as surrogate.
ORDERED and ADJUDGED that the petition is otherwise denied. The denial of the petition with respect to CAJ Marks' reassignment of the cases before petitioner is made without prejudice to petitioner renewing the petition if the Chief Administrator fails to reinstate petitioner's caseload after a reasonable time for an investigation by the New York State Commission on Judicial Conduct (sometimes herein referred to as the "Commission") of any charges filed against petitioner and the Commission's failure to take any actions with respect thereto; and it is further
ORDERED that the effective date of this order and judgment is stayed for 30 days from the service of a copy of same with notice of entry.
This constitutes the decision, order and judgment of the court.