author: Simons, J.

text:
    The People of the State of New York, Respondent, v Anthony Baptiste, Appellant.
    Argued September 14, 1988;
    decided October 25, 1988

      POINTS OF COUNSEL

      Arnold S. Cohen, Caesar Cirigliano and Laura J. Miller for appellant.
    Appellant’s reprosecution violated the Double Jeopardy Clauses of the United States and New York State Constitutions because, after jeopardy attached, appellant’s first trial was terminated by the declaration of a mistrial without his consent and absent manifest necessity. (Benton v Maryland, 395 US 784; Hall v Potoker, 49 NY2d 501; United States v Jorn, 400 US 470; Arizona v Washington, 434 US 497; Matter of Plummer v Rothwax, 63 NY2d 243; Green v United States, 355 US 184; United States v Perez, 9 Wheat [22 US] 579; Downum v United States, 372 US 734; United States v Horn, 583 F2d 1124; United States v Gordy, 526 F2d 631.)

      Elizabeth Holtzman, District Attorney (Sholom J. Twersky and Barbara D. Underwood of counsel), for respondent.
    Reprosecution of defendant after the declaration of a mistrial did not violate the Double Jeopardy Clause of either the State or Federal Constitution. (People v Ferguson, 67 NY2d 383; Matter of Guido v Berkman, 116 AD2d 439; United States v Smith, 621 F2d 350; People v Catten, 69 NY2d 547; United States v Beckerman, 516 F2d 905; United States v Goldstein, 479 F2d 1061, 414 US 873; Arizona v Washington, 434 US 497; Hall v Potoker, 49 NY2d 501; Matter of Plummer v Rothwax, 63 NY2d 243.)
   OPINION OF THE COURT

Simons, J.

Defendant appeals from an order of the Appellate Term which affirmed a judgment entered on a guilty plea convicting him of the misdemeanor of sexual abuse in the third degree. The guilty plea was entered after an earlier trial had been terminated without his consent because the jury was unable to reach a verdict. Defendant contends that the trial was unnecessarily aborted and thus his reprosecution violated the Double Jeopardy Clauses of the United States and New York Constitutions (US Const 5th Amend; NY Const, art I, § 6). We agree and reverse the order of Appellate Term and dismiss the information.

Defendant and a codefendant were charged with assault, third degree, sexual misconduct and sexual abuse, third degree. Their trial commenced March 30, 1984 and continued on April 2 and 3. The jury was charged on the morning of April 4 and, at the conclusion of the instructions, at 11:55 a.m., retired to deliberate. Shortly after retiring, the jury requested a readback of the testimony of the complainant, the codefendant and the arresting officer. The reading was deferred until after lunch and required much of the afternoon. After the readback, the jury continued deliberating for about an hour and then requested the exhibits and a readback of a doctor’s testimony. They recessed for dinner from 6:30 p.m. until 8:00 p.m. and at 9:15 p.m. the jury requested that the testimony of the complainant, codefendant and arresting officers be read back again. The court asked the jurors to specify which portions of the testimony they were interested in and when they had not responded by 10:00 p.m., the Judge summoned them to the courtroom and clarified his earlier instructions. After the jury left the courtroom, the Judge advised counsel, "If they have not reached a verdict by eleven-thirty we’ll have to declare a mistrial, so if they can’t reach a verdict it has to be a mistrial.” The jury was in the courtroom again from 11:40 p.m. to midnight as selected testimony was read back in response to the jury’s earlier request. At the conclusion, the court directed the jurors to return to the jury room and decide whether the court had complied sufficiently with their request and "whether or not you feel that further deliberations will be fruitful in arriving at a verdict”. After the jury left, the court asked defendant’s counsel to consent to a mistrial. He refused.

At 12:25 a.m., the court, sua sponte and over defendant’s objection, returned the jury to the courtroom and declared a mistrial. The entire colloquy between the court and the foreperson before its ruling follows:

"the court: Mr. Foreperson have the Jury reached a verdict on any of the counts as to any of the defendants?
"the foreperson: No, Sir. Still have a lot of discrepancies as far as deciding the verdict. We all having [sic] different opinions.
"the court: And have [sic] there been any movement in the voting in the last couple of hours?
"the foreperson: Yes.
"the court: Do you feel that further deliberations will be fruitful?
"the foreperson: At this point, no, Sir.
"the court: It is the opinion of the jury that you cannot reach a verdict?
"the foreperson: We cannot reach a verdict, Sir.
"the court: All right and that further deliberation will not be fruitful?
"the foreperson: No, Sir, not at this time.”

The court then discharged the jury.

Both the State and Federal Constitutions provide that the State may not put a defendant in jeopardy twice for the same offense (NY Const, art I, § 6; US Const 5th Amend; Benton v Maryland, 395 US 784). These constitutional protections unequivocally prohibit a second trial following an acquittal. If the innocence of the accused has been confirmed by a final judgment, no matter how erroneous that judgment may be, the Constitutions conclusively presume that a second trial would be unfair.

Because jeopardy attaches as soon as a jury has been sworn (CPL 40.30 [1] [b]), our constitutional provisions also embrace the defendant’s right to be free from reprosecution if the first trial has not continued to conclusion. As a general rule, the prosecutor is entitled to one, and only one, opportunity to require the accused to stand trial for a defendant possesses a "valued right” to have his trial completed by a particular tribunal on the first presentation of the evidence (see, Wade v Hunter, 336 US 684, 689; United States v Jorn, 400 US 470, 486; and see, Arizona v Washington, 434 US 497, 503-504; Green v United States, 355 US 184, 187-188). Even if the first trial is not completed, a second prosecution may be grossly unfair because it increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted.

If the merits of the charges against the defendant have not been resolved, however, the "valued right” to have the trial concluded by a particular tribunal may be subordinate to the public interest "in seeing that a criminal prosecution proceed to verdict” (Illinois v Somerville, 410 US 458, 463; Arizona v Washington, supra, at 505). The "classic example” of charges which may be retried when the first trial has been aborted without defendant’s consent arises when the jurors reach an impasse and are unable to arrive at a verdict (Downum v United States, 372 US 734, 735-736; Matter of Owen v Stroebel, 65 NY2d 658; Matter of Plummer v Rothwax, 63 NY2d 243). Retrial is not prohibited in such cases.

The determination of a Trial Judge that deadlock has occurred and that a mistrial is necessary involves the exercise of discretion. The trial court’s judgment is entitled to great deference by reviewing courts for it is best situated to take all the circumstances of the particular proceeding into account and determine whether a mistrial is in fact required (Matter of Plummer v Rothwax, supra, at 250; Hall v Potoker, 49 NY2d 501, 505; see also, People v Ortiz, 54 NY2d 288, 292; Illinois v Somerville, supra, at 462; see also, People v Michael, 48 NY2d 1, 9; Gori v United States, 367 US 364, 368). Nevertheless, Trial Judges are not free to act without restraint. The defendant’s right to obtain a verdict from the first jury selected should not be foreclosed unless it is clear that the jury is hopelessly deadlocked and that there is no reasonable probability it can agree. In the words of Justice Story, the court’s power to declare a mistrial must be exercised with the "greatest caution, under urgent circumstances, and for very plain and obvious causes”; the authority to discharge the jury is limited to those situations where, "taking all the circumstances into consideration, there is a manifest necessity for the act” (United States v Perez, 9 Wheat [22 US] 579, 580).

The record in this case does not demonstrate a manifest necessity for terminating defendant’s trial. The Trial Judge himself first raised the issue when he mentioned the possibility of a mistrial to counsel around 10:00 p.m. and announced to counsel that if the jury had not reached a verdict by 11:30 p.m. a mistrial would be declared. This was after he had satisfied the jury’s request for a readback but before they had even had an opportunity to consider the testimony just read to them. The jury had not given any indication that it was unable to reach a verdict and the court’s statement was apparently made without consulting counsel. When the court did discuss the possibility of deadlock with the jury, it was because the Judge had decided to summon them to the courtroom to discuss the possibility of an impasse, not because the jury had notified him they were in any difficulty,

The impetus for the declaration of mistrial having come solely from the Judge, he was under a particular obligation to demonstrate on the record that the jury believed it was unable to decide the case. His colloquy with the foreperson fell far short of establishing that to be so. Indeed, the foreperson indicated that there had been recent "movement” among the jurors and the logical inference arising from the foreperson’s equivocal statement, repeated twice, that the jury was not able to resolve the matter "at this time” is that the jury was exhausted, not deadlocked. But further than that, because the court acted sua sponte, the jury did not know why it was being returned to the courtroom. Thus, the foreperson’s answers to the court’s questions may well have been his answers alone. All the jurors were present in the courtroom during this colloquy and prudence dictated that under the circumstances the court should have obtained confirmation of the foreperson’s answers from other jurors before deciding the question (see, United States v Horn, 583 F2d 1124, 1128; United States ex rel. Webb v Court of Common Pleas, 516 F2d 1034; United States v See, 505 F2d 845, 851; cf., Matter of Plummer v Rothwax, supra, at 252; Nelson v District Ct., 543 F2d 631, 632; United States v Cawley, 630 F2d 1345 [all cases in which polling was found unnecessary because the jury had initiated the discussions on deadlock]).

There is, of course, no mechanical formula for determining the necessity for a new trial and no minimum time a jury must deliberate before a mistrial is considered. These jurors, however, had little opportunity to decide this case. Although the trial had been relatively short, nine witnesses had been sworn and there were serious discrepancies in their versions of the underlying incident. In an effort to resolve these discrepancies, the jury had requested the court to read back testimony several times and was in the process of considering some of this testimony when the mistrial occurred. There is no support in the record for the court’s determination that the jury had found the problem insoluble or believed itself hopelessly deadlocked and in the absence of such evidence, the trial court abused its discretion in declaring a mistrial, as a matter of law.

Accordingly, the order should be reversed and the information dismissed.

Chief Judge Wachtler and Judges Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order reversed, etc.

       Before pleading guilty, defendant instituted an article 78 proceeding in Supreme Court seeking to prohibit the District Attorney from reprosecuting him. Supreme Court denied the petition and defendant filed a notice of appeal. After his guilty plea, the District Attorney moved to dismiss the appeal for mootness, conceding that defendant could raise the jeopardy issue on direct appeal. Accordingly, defendant withdrew the appeal before the court ruled on it. Consistent with her concession, the District Attorney does not assert before this court that the issue is barred by the doctrine of res judicata and we, therefore, do not consider it (see, People v Di Raffaele, 55 NY2d 234, 243; People v Abbamonte, 43 NY2d 74, 80; People v Jontef, 97 AD2d 828).


source: Caselaw Access Project

author: Simons, J. Alexander, J.

license: Public Domain

text:
    In the Matter of Richard J. Korn, Respondent, v Thomas S. Gulotta, as County Executive of Nassau County, et al., Appellants. Richard J. Korn, Respondent, v Thomas S. Gulotta, as County Executive of Nassau County, et al., Appellants.
    Argued August 31, 1988;
    decided October 13, 1988

      POINTS OF COUNSEL

      Edward T. O’Brien, County Attorney (George J. Farrell, Jr., William S. Norden, Bonnie P. Chaiken, John M. Armentano and Dolores Fredrick of counsel), for appellants.
    I. The lower courts have intervened improperly in the discretionary budgetary process, thereby usurping the executive and legislative functions. (Saxton v Carey, 44 NY2d 545; People ex rel. Burby v Howland, 155 NY 270; People ex rel. Broderick v Morton, 156 NY 136; Matter of New York State Inspection, Sec. & Law Enforcement Employees v Cuomo, 64 NY2d 233; Jones v Beame, 45 NY2d 402; Kaskel v Impellitteri, 306 NY 73; Matter of County of Oneida v Berle, 49 NY2d 515; Hidley v Rockefeller, 28 NY2d 439; City of Beacon v County of Dutchess, 285 App Div 1050.) II. Mandamus does not lie to review the County Executive’s estimate of the unencumbered cash balance, an inherently discretionary act. (Matter of Burr v Voorhis, 229 NY 382; Gaynor v Rockefeller, 15 NY2d 120; Kaskel v Impellitteri, 306 NY 73.) III. Korn’s failure to appear and object to the budget as proposed precludes him from commencing litigation to challenge the budget. (City of Beacon v County of Dutchess, 285 App Div 1050; Saxton v Carey, 44 NY2d 545.) IV. The courts are ill-equipped to intervene in the budgetary process, as illustrated by the fundamental misconceptions in Korn’s petition and in the decisions below. (Jones v Beame, 45 NY2d 402; Saxton v Carey, 44 NY2d 545.) V. No action may be maintained under General Municipal Law §51 to invalidate the Nassau County budget. (Saxton v Carey, 44 NY2d 545; Di Paola v City of Glen Cove, 21 AD2d 678, 14 NY2d 954; Mesivta of Forest Hills Inst. v City of New York, 58 NY2d 1014; Starburst Realty Corp. v City of New York, 125 AD2d 148, 70 NY2d 605; Sweeney v Farrington, 38 Misc 2d 882.)

      Marshall Beil, Frank R. Curtis and Mark W. Budwig for respondent.
    I. The 1988 Nassau County budget violates the County Charter. (Town of Evans v Catalino, 103 Misc 2d 261, 88 AD2d 780, 58 NY2d 687; Laufer v Ostrow, 55 NY2d 305.) II. The separation of powers doctrine does not preclude judicial review. (Matter of Block v Sprague, 285 NY 69; People v Tremaine, 281 NY 1; Saxton v Carey, 44 NY2d 545; Hidley v Rockefeller, 28 NY2d 439.) III. Respondent is entitled to judgment under General Municipal Law § 51. (Saxton v Carey, 44 NY2d 545; Boryszewski v Brydges, 37 NY2d 361; Di Paola v City of Glen Cove, 21 AD2d 678, 14 NY2d 954; Bloom v Mayor of City of N. Y, 35 AD2d 92, 28 NY2d 952; Wein v City of New York, 36 NY2d 610; Wein v Carey, 41 NY2d 498.) IV. Appellants cannot justify their omission of $62.4 million from the 1988 budget.
   OPINION OF THE COURT

Simons, J.

Petitioner, a resident and taxpayer of Nassau County, instituted this article 78 proceeding to invalidate the 1988 Nassau County budget and to. compel respondents to prepare and adopt a new one. At bottom the dispute concerns whether respondents, the County Executive and members of the County Board of Supervisors, illegally held estimated surplus moneys off budget in violation of the requirements of section 302 of the Nassau County Charter. Petitioner has been successful in the courts below and the matter is here by permission of this court.

I

On October 26, 1987 the Nassau County Executive, respondent Gulotta, issued an official county news release announcing that he anticipated a year-end cash surplus of $80.1 million in the county general fund. Stating that the entire surplus could be applied to reduce property tax rates for 1988 but that such "action would be short-sighted and could result in a dramatic increase in taxes next year”, he proposed to "stabilize property taxes” by using the accumulated surplus over a three-year period. Two weeks later, on November 9, 1987, Gulotta announced his proposed 1988 budget to the public and sent it to the Board of Supervisors for approval. The charter also required him to send the Board of Supervisors an accompanying budget message and in his message, Gulotta repeated his earlier estimate of a record surplus, this time placing it at $90 million. He stated once more that the entire amount was available to reduce 1988 taxes but repeated his plan to accumulate the surplus and spend it proportionately over a three-year period thereby reducing taxes each year. Consistent with this officially announced plan, the proposed executive budget included only $17.7 million as an item of revenue which was variously labeled in the budget as "cash on hand”, "general fund balance applicable to the ensuing fiscal year” or "fund balance beginning of year”. The budget did not refer to the remaining funds in his estimated year-end cash balance and it did not contain an entry for a multiyear tax stabilization program or reserve fund. On December 21, 1987 the Board of Supervisors adopted the budget, consistent with the County Executive’s plan, after adding $2.5 million to the year-end general fund balance.

Petitioner instituted this article 78 proceeding contending that the budget proposed by the County Executive and passed by the Board of Supervisors did not comply with County Charter § 302 (5). That section requires the executive budget to contain a "statement of the estimated cash balance, after deducting commitments estimated to be outstanding at the close of the [then] current fiscal year”. Respondents denied the essential allegations of the petition, interposed several objections in point of law and asserted counterclaims for abuse of process and malicious prosecution. They subsequently moved to dismiss the petition. On the return of the motion Supreme Court held that mandamus was an appropriate proceeding to compel executive action but not to review the validity of the legislatively adopted budget. Accordingly, it severed the proceeding against the Board members and converted it to an action under section 51 of the General Municipal Law. It treated respondents’ motion to dismiss the petition as a motion for summary judgment, searched the record and granted judgment to petitioner. In a well-reasoned decision, Justice DiPaola held that the budget adopted was invalid and could not be made effective by legislative action because "the Board of Supervisors relied upon a false premise, namely, that the entire amount of the year-end surplus required to be included” was so included. Two separate judgments were entered. In the first (the article 78 proceeding), the County Executive is the named respondent and the judgment directs him to resubmit to the Board of Supervisors a revised 1988 Nassau County budget which contains a statement complying with County Charter § 302 (5). The second judgment (the General Municipal Law §51 action) names the members of the Board of Supervisors as respondents, declares the 1988 Nassau County budget, as adopted, unlawful and invalid, directs the Board of Supervisors to adopt a new 1988 budget within six weeks after it receives the revised 1988 budget from the County Executive and dismisses the counterclaims. The Second Department affirmed both judgments and leave to appeal was granted by this court.

We agree with the courts below that the County Executive failed to comply with the legal requirements of the County Charter directing him to account in the budget for all estimated revenues and that the Board of Supervisors’ action, in approving a document which did not state the County Executive’s true estimate of the anticipated unencumbered cash balance, was a nullity. Accordingly, we modify the order of the Appellate Division, with respect to the time of performance only, and otherwise affirm.

II

Several threshold contentions raised by respondents must be treated before addressing the merits.

Respondents’ principal claim is that this matter is nonjusticiable because it requires the courts to invade the budgetary process, the exclusive domain of the executive and legislative branches of government. They rely on Saxton v Carey (44 NY2d 545) and Judge Breitel’s dissenting opinion in Hidley v Rockefeller (28 NY2d 439, 440). These authorities stand for the principle established in People v Tremaine (281 NY 1) that the executive must itemize entries in the budget but that the degree of itemization is a matter of discretion which the court will not review. Manifestly, the courts cannot and will not intervene in the budget process if doing so requires them to substitute their judgment on matters of discretion. As we stated in Saxton, however, "[w]e do not suggest by our decision today that the budgetary process is per se always beyond the realm of judicial consideration * * * The courts will always be available to resolve disputes concerning the scope of that authority which is granted by the Constitution to the two other branches of the government” (44 NY2d 545, 551, supra; see also, Wein v Carey, 41 NY2d 498, rearg denied 42 NY2d 910; Matter of Block v Sprague, 285 NY 69; People v Tremaine, 281 NY 1, supra).

Nor does City of Beacon v County of Dutchess (285 App Div 1050), cited by respondents, support their position. In Beacon the plaintiff sought to recover real estate taxes that it paid to the defendant and alleged that the 1954 county budget contained excessive appropriations and underestimated revenues. The plaintiff claimed that its taxes could have been eliminated entirely had the surpluses in each fund been estimated correctly. The Appellate Division affirmed a judgment dismissing the complaint for failure to state a cause of action holding that “[i]n the absence of express statutory authority [citation omitted], courts do not have the power to review the exercise of discretionary powers by a municipal corporation as to estimates of the money required to carry on the affairs of the municipality” (id,., at 1050-1051). Respondents suggest that this decision states some general overriding principle of nonjusticiability with respect to intervention into the budgetary process. The differences between Saxton and Beacon and this case, however, could not be clearer. Petitioner does not question the County Executive’s discretionary power to estimate surplus funds, or even to spread them over three years, if some legal method of doing so can be found. He contends that it was unlawful for the County Executive to keep revenues off-budget in violation of the mandate of section 302 (5).

Next, respondent County Executive contends that the remedy of mandamus does not lie to review his estimate of the unencumbered cash balance because it is an inherently discretionary act. He contends that he complied with the requirement of section 302 (5) when he included in his proposed budget an item for estimated cash balance and that courts may not substitute their judgment as to the appropriateness of the particular figure chosen by him. Mandamus will lie to compel acts that public officials are duty bound to perform regardless of how they may exercise their discretion in doing so (see, Klostermann v Cuomo, 61 NY2d 525, 539-540). The remedy is appropriate here because the present dispute does not involve a difference of opinion on the size of the estimate contained in the budget but whether respondents may omit from the budget account of estimated year-end cash balance sums which the County Executive acknowledged the county would receive. That is a matter of statutory interpretation appropriately decided by the judiciary.

Respondents also contend that Supreme Court erred in holding that petitioner’s failure to appear and object at a public hearing did not preclude him from commencing this litigation to challenge the budget. They rely on a statement to that effect by the Appellate Division in City of Beacon (supra) but, as noted, that case is inapposite. There was no claim in Beacon that public officers had failed to use their own officially stated estimates; the plaintiff was asking the court to become involved in discretionary decisions made by the executive and legislative branches of government. Here, petitioner simply seeks the court’s aid in ensuring that the County Executive place his true estimate in the proposed budget, as required by the County Charter, so that the legislative process rests upon a legal foundation. Under the circumstances, we conclude that petitioner did not waive or forfeit his right to attack the budget and is not estopped from doing so because of his failure to appear and object at the budget hearing.

Finally, respondents maintain that the Supreme Court’s severance of a portion of petitioner’s article 78 proceeding and its conversion to a General Municipal Law §51 action was improper on the ground that a taxpayer’s action pursuant to section 51 does not lie to challenge the legality of the budget process. Extending this reasoning to its logical end, respondents would argue that even if the County Executive violated section 302 (5) of the County Charter and mandamus were available to compel respondent Gulotta to comply with the statutory mandate, the matter is now beyond judicial review because the Board of Supervisors has passed the budget.

We have recognized that an action pursuant to General Municipal Law § 51 may take the form of action for a declaratory judgment if it satisfies the statute’s requirements (Wein v City of New York, 36 NY2d 610, 621; Bloom v Mayor of City of N. Y., 35 AD2d 92, 95, affd 28 NY2d 92). Section 51, entitled "Prosecution of officers for illegal acts”, provides that: "All officers * * * and other persons acting, or who have acted, for and on behalf of any county * * * in this state, and each and every one of them, may be prosecuted, and an action may be maintained against them to prevent any illegal official act on the part of any such officers * * * or other persons, or to prevent waste or injury to, or to restore and make good, any property, funds or estate of such county” (emphasis added). Although the disjunctive phrasing of the statute would appear to authorize suits if there is either an "illegal official act” or "to prevent waste” we have held that a showing of mere illegality is not enough (see, Mesivta of Forest Hills Inst. v City of New York, 58 NY2d 1014; Kaskel v Impellitteri, 306 NY 73, cert denied 347 US 934; Western N. Y. Water Co. v City of Buffalo, 242 NY 202). Nevertheless, a plaintiff is not required to show waste in the strict sense (Aldrich v City of New York, 208 Misc 930, affd 2 AD2d 760). The governing rule is stated in Altschul v Ludwig (216 NY 459, 467): "[t]he mere illegality of the official act in and of itself does not justify injunctive relief [under section 51]. To be entitled to [injunctive] relief, when waste or injury is not involved, it must appear that in addition to being an illegal official act the threatened act is such as to imperil the public interests or calculated to work public injury or produce some public mischief’ (citations omitted).

In this case, respondent County Executive submitted an allegedly illegal budget to the Board of Supervisors. In acting upon it, the Board relied upon a false premise, i.e., that the full estimated cash balance had been included in the proposed budget when in fact the estimate did not comply with the legal requirements of the County Charter. The Board lacked the power to authorize a budget that was illegal and its action in adopting the budget was a nullity. It is irrelevant that the Board members knew of the deficiency when they acted or that they acted in good faith; the Board’s action could not legalize a budget which did not comply with statutory mandates. Petitioner has met his burden of demonstrating a public injury entitling him to maintain a section 51 action because county moneys, available to reduce property taxes, were not lawfully appropriated at the time of the passage of the 1988 budget, but were held off-budget. Their existence, unaccounted for, was illegal and threatened the public interest.

III

Respondents assert that even if these threshold considerations are resolved against them the order of the Appellate Division should be reversed because they have complied with the requirements of section 302 (5).

A budget is a statement of the financial position of the government, for a definite period of time, based upon an estimate of proposed expenditures and anticipated revenues (see, Matter of Collins v City of Schenectady, 256 App Div 389, 391). The method by which public budgets are prepared is governed by the State Constitution and the applicable State statutes. The requirements contained in those documents are not particularly burdensome and permit the executive and legislative officials considerable freedom of action in implementing governmental operations and programs and providing for the revenues to fund them. The legal requirements they contain, however, are grounded in the general principles of fiscal responsibility and the accountability that underpins the regulation of all public conduct and they must be followed.

The governing statute in this case is the Nassau County Charter enacted by the State Legislature in 1936 and which contains provisions essentially the same as those found in the laws governing other municipalities (see, County Law § 355 [1] [g]; Town Law § 107 [1] [b]; Village Law § 5-506 [1] [c]). It provides that no later than the 15th day of September each year Nassau County department heads shall furnish to the County Executive estimates of revenues and expenditures for their departments for the next fiscal year (§ 301). From this data the County Executive must prepare his proposed budget for the ensuing fiscal year and submit it to the legislature no later than the second Monday in November (§ 302). The proposal must contain a statement of all estimated revenues exclusive of revenues derived from the tax levy (§ 302 [1]), a statement of estimated revenues from the tax levy (subd [2]), a statement of estimated receipts from the sale of bonds and other borrowing (subd [3]), a statement of the amount of the sinking fund available to pay bonded indebtedness (subd [4]) and "a statement of the estimated cash balance, after deducting commitments estimated to be outstanding at the close of the current fiscal year, in each fund, applicable to expenditures of the ensuing fiscal year” (subd [5]).

The provisions of section 302 are mandatory. They direct that the proposed budget "shall” contain a statement of the estimated cash balance. The requirement is in accord with the strong policy of the law to require a full accounting of all public funds and to prevent municipal governments from acquiring tax proceeds faster than they are needed. A corollary of this generally recognized principle is that funds may not be accumulated for the remote future or for contingencies which may never occur. The accumulation is unjust because it deprives the people of the use of money taken from them by taxes for a considerable period and it is impolitic because it may tempt public officials having custody of the funds (see generally, 15 McQuillin, Municipal Corporations § 39.02a [3d rev ed]). The rule is intended to protect taxpayers from the misuse of surplus funds "to hide deficit spending or to reap political profit” (see, Town of Evans v Catalino, 103 Misc 2d 261, 265 [Denman, J.], mod on other grounds 88 AD2d 780, lv dismissed 58 NY2d 687).

The New York State Comptroller considered this specific issue when he interpreted County Law § 355 (1) (g). In that instance a County Treasurer estimated that the county would enjoy a surplus of between $600,000 and $700,000 for fiscal 1969. The Board of Supervisors estimated $450,000 of this sum as revenue for 1970 and the remainder was set aside to operate the county in the first three months of 1970. The Comptroller observed that it was unlawful for the county to set aside $150,000 to $250,000 for the purpose of operating the county during the early part of the next fiscal year. "The practice employed by the county herein of estimating surplus for the purpose of carrying moneys into fiscal 1970 is completely unauthorized, contrary to statutory directive, and unnecessary to make moneys available for the operation of county government * * * The tentative budget must contain a statement of the aggregate amount of cash surplus in the general fund estimated to be on hand at the close of a fiscal year, after deducting encumbrances estimated to be outstanding at the close of that fiscal year (County Law, § 355 (1) (j)). In other words, the entirety of the estimated unencumbered surplus must be counted as a revenue of the forthcoming fiscal year and thereby be used to reduce real property taxes to be levied for such forthcoming fiscal year” (1970 Opns St Comp No. 70-393; see also, 1980 Opns St Comp No. 80-280, at 79 [interpreting Town Law § 107 (1)]; 1969 Opns St Comp No. 69-708 [also interpreting Town Law § 107 [1]; 2 Opns St Comp, 1946, No. 46-1467, at 399).

Respondents assert several reasons why they believe the County Executive complied with the mandate of the charter notwithstanding the discrepancy between his announced $80-90 million estimate and the $17.7 million estimate included in the budget. Their principal contention is that it was permissible not to include $24.5 million (an amount substantially less than the balance of $80-90 million remaining after the budget was adopted). They claim the sum was a "commitment” within the meaning of County Charter § 302 (5) because in February 1988 the Board of Supervisors set up a tax-stabilization reserve fund, purportedly authorized by General Municipal Law § 6-e, in the amount of $24.5 million. At the time the budget was proposed and adopted in 1987, however, this $24.5 million could not have been a "commitment” within the meaning of section 302 (5) because the fund had not yet been created and the County Executive’s expressed intention of establishing one in the future could not justify the omission of moneys from the estimated cash balance at the end of the current fiscal year (see, 1969 Opns St Comp No. 69-708 [unreported]; 24 Opns St Comip, 1968, No. 68-464, at 474). A tax-stabilization reserve fund is set up by the County Board of Supervisors, not the County Executive, and the requested establishment of the fund and appropriation may not pass the Board of Supervisors or the amount appropriated may be far different from what the County Executive projected. Until the fund is actually created, it cannot be a "commitment”.

When the County Executive and the Board of Supervisors prepared the budget for 1988 in 1987, they could have treated the proceeds as estimated or anticipated revenue for the reduction of taxes in the next fiscal year or attempted to create and fund a tax-stabilization reserve fund in lieu thereof to avoid the unauthorized carry over of surplus for three years. In either event, however, the charter required that the sums be included in the proposed budget’s statement of estimated cash balance, since the decision to create the fund would not occur until after the proposed budget was submitted by the County Executive and because at the time the budget was proposed the anticipated revenues were not encumbered (see, 2 Opns St Comp, 1946, No. 46-1467, at 399).

The parties also dispute the propriety of not including in the estimated cash balance amounts attributable to the so-called Tax Law § 1262 (d) (sales tax) revenues. In view of our holding that the budget was illegal because of the failure to include all estimated revenues, particularly those subsequently deposited in the tax-stabilization fund, we need not pass on the merits of this argument.

We concur with the courts below that there is nothing to indicate that respondents acted with anything less than complete good faith or with any intention of harming the public and that there is thus no basis for a prosecution under section 51 to hold them personally responsible. Nevertheless, the budget does not comply with the provisions of the County Charter and must be corrected.

Accordingly, the order of the Appellate Division should be modified so as to require the County Executive to submit a new budget for fiscal year 1988 which complies with section 302 (5) of the County Charter within 20 days from the decision herein and, as so modified, affirmed.

Alexander, J.

(dissenting). By constitutional design, our system of government is tripartite in nature, with power shared among three coequal branches. "It is a fundamental principle of the organic law that each department should be free from interference, in the discharge of its peculiar duties, by either of the others” (Saxton v Carey, 44 NY2d 545, 549). We have held that "the court as a policy matter, even apart from principles of subject matter jurisdiction, will abstain from venturing into areas if it is ill-equipped to undertake the responsibility and other branches of government are far more suited to the task” (Jones v Beame, 45 NY2d 402, 408-409 [Breitel, Ch. J.]). Such judicial restraint reflects a recognition that there are "questions of broad legislative and administrative policy beyond the scope of judicial correction” (Jones v Beame, 45 NY2d, at 408, supra) and that certain decisions, involving "questions of judgment, discretion, allocation of resources and priorities inappropriate for resolution in the judicial arena”, are better left to the "network of executive officials, administrative agencies and local legislative bodies” (Matter of Abrams v New York City Tr. Auth., 39 NY2d 990, 992). Because we believe the majority, in affirming the determination below invalidating the Nassau County budget, has departed from fundamental principles defining the proper scope of judicial authority, and has intruded into an area of responsibility constitutionally reserved to the other branches of government, we respectfully dissent.

It can hardly be disputed that the creation and enactment of a local budget is a responsibility peculiar to the executive and legislative branches of government (Saxton v Carey, 44 NY2d 545, 549, supra). The executive branch "has the responsibility and the obligation to ascertain the financial needs of the various departments and projects of the [local] government, and to submit to the [local legislative body] for its consideration a budget and various appropriation bills incorporating those needs” (Saxton v Carey, 44 NY2d, at 549, supra). It is then for the local legislative body "to approve or disapprove of the various expenditures proposed” (Saxton v Carey, 44 NY2d, at 549, supra). Of course, this is not to say that the budgetary process is completely insulated from judicial review. Indeed, we have acknowledged that where a budget is prepared in clear violation of a statutory or constitutional mandate, it is subject to review by the courts (see, Wein v Carey, 41 NY2d 498; Matter of Block v Sprague, 285 NY 69). Further, "[t]he courts will always be available to resolve disputes concerning the scope of that authority which is granted by the Constitution to the other two branches of the government” (Saxton v Carey, 44 NY2d, at 551, supra). Such judicial intervention is permitted "only in the narrowest of instances”, however, and will never be available to review a local budget plan directly (see, Wein v Carey, 41 NY2d, at 505, supra).

Article III of the County Government Law of Nassau County (County Charter) (L 1936, ch 879 and amendments thereunder) directs the County Executive to submit to the Board of Supervisors a "proposed budget of revenue and expenditure for the ensuing fiscal year for the county” (County Charter § 302). The proposed budget must contain, among other things, "a statement of the estimated cash balance, after deducting commitments estimated to be outstanding at the close of the current fiscal year, in each fund, applicable to expenditures of the ensuing fiscal year” (County Charter § 302 [5]). In accordance with this legislative mandate, respondent Gulotta transmitted his proposed 1988 budget for Nassau County to the county legislature on November 9, 1987. The proposed budget, totaling approximately $1,429 billion in operating revenues, contained an estimated general fund balance of $17.7 million. On December 21, 1987, after holding a public hearing on the budget as required by County Charter § 304, respondent Nassau County Board of Supervisors (Board) formally adopted the budget. In the process of its review and adoption of the proposed budget, the Board allocated an additional $2.5 million to the general fund balance, raising the amount of the total balance to $20.2 million.

Petitioner Korn, a taxpayer and resident of Nassau County, instituted this proceeding challenging the validity of the Nassau County budget based upon certain official pronouncements of respondent Gulotta indicating an estimated year-end surplus greater than the figure appearing in the budget as proposed and as adopted. In a news release issued on October 26, 1987, prior to the Board’s adoption of the budget, respondent had announced an estimated year-end cash surplus of $80.1 million. A similar prediction of "year-end cash surpluses of about $90 million” was repeated in the budget message respondent submitted to the Board with the proposed budget on November 9 of the same year. Rather than allocating this entire estimated surplus so as to permit the reduction of property tax rates for a single year, respondent announced a plan "to use the accumulated surplus in the General Fund to stabilize property taxes over a three-year period” (Gulotta, Budget Message to Board of Supervisors). Accordingly, on February 22, 1988, the Board established, through a supplemental appropriation, a "tax-stabilization reserve fund” of approximately $24.5 million, as authorized by General Municipal Law § 6-e.

Petitioner contends, and the majority agrees — as did the lower courts — that respondent Gulotta has failed to comply with the mandate of County Charter § 302 (5) by not including "the entire estimated year-end cash balance” in the budget. Petitioner argues that the estimate is invalid because the figure submitted is less than the $80.1 million originally forecast by respondent as a "year-end cash surplus”. Petitioner’s argument, therefore, essentially is that the $17.7 million figure included in the budget submitted by respondent to the Board is erroneous because it is not equal to the estimated figure previously mentioned in an October 1987 press release. Such an argument, however, may not be countenanced by the courts, for resolution of the issue it presents implicates powers and responsibilities exclusively reserved to the other branches of government.

The County Charter provision at issue requires the County Executive to submit an estimate of the year-end cash balance; it does not, however, specify how that estimate is to be derived. It is elementary that the preparation of budget estimates is largely a discretionary function of budget officials in the executive and legislative branches (2 McQuillin, Municipal Corporations § 10.36; 15 McQuillin § 39.40 [3d rev ed]; 25 NY Jur 2d, Counties, Towns and Municipal Corporations, § 184; see, City of Beacon v County of Dutchess, 285 App Div 1050). Judicial review will not lie to correct perceived errors in the exercise of that discretion in the absence of corruption, fraud or bad faith (2 McQuillin, Municipal Corporations §§ 10.33, 10.34 [3d rev ed]; 25 NY Jur 2d, op. cit., § 184). Further, where a governmental official is duly authorized to perform a particular function, and the manner in which the authority is to be exercised is not specified by statute, "the courts will not undertake to control the manner of the exercise of the authority where no applicable rule of law is violated, and the authority given is not exceeded or abused” (2 McQuillin, Municipal Corporations § 10.34, at 1100 [3d rev ed]).

Here, respondent Gulotta was duly authorized to submit a statement of the estimated cash balance "after deducting commitments estimated to be outstanding at the close of the current fiscal year, in each fund, applicable to expenditures of the ensuing fiscal year” (County Charter § 302 [5]). Respondent did so, submitting an estimate of $17.7 million after deducting funds that were "committed”, inter alia, to a tax-stabilization fund to be created by the Board. Nowhere does the statute define "commitments” at all, much less give it the juristic connotation urged by the majority. Nor does it explain when funds, which might otherwise be considered part of the general fund balance, may be excluded from that balance because deemed not "applicable to expenditures of the ensuing fiscal year”.

In response to petitioner’s contention that the "entire year-end surplus” is missing from the budget, respondent explains that $24.5 million was omitted from the general fund balance because it was allocated to the tax-stabilization fund at the end of fiscal year 1987, and was therefore not applicable to expenditures in fiscal year 1988. The creation of a tax-stabilization fund was certainly within the exclusive power of the Board (General Municipal Law § 6-e; see, 1969 Opns St Comp No. 69-708 [unreported]). That the fund was not actually created until February 1988 does not render the actions of respondents retrospectively illegal. Gulotta unambiguously declared in his budget message his intention to use a portion of the budget surplus to stabilize property taxes; in adopting the budget, the Board knowingly accepted his proposal. There is no requirement in the statute that the moneys he "committed” to the stabilization fund actually or legally be appropriated in the 1987 calendar year. Nassau County maintains its books of account on a modified accrual basis, with revenues and expenditures booked to the period in which they accrue. Consequently, although the actual amount of the budget surplus was not ascertained until the beginning of the 1988 calendar year, that surplus was "committed” to the tax-stabilization fund during the 1987 fiscal year. Additionally, certain tax revenues included in the $80.1 million estimated surplus which were derived under Tax Law § 1262 (d) were applied directly to reduce real property taxes applicable to different municipalities within Nassau County, and thus were not available for general expenditures on a county-wide basis. These decisions relating to the proper characterization of certain revenues as "commitments” or as funds not "applicable to expenditures of the ensuing fiscal year” are quintessentially discretionary in nature, and may not properly be second-guessed by the courts.

This does not mean that petitioner may not disagree with respondent Gulotta’s accounting methodology and budget calculations, and voice that disagreement at the public hearings on the budget required by statute (County Charter § 304). Such disagreement, however, surely presents no justiciable issue for this court’s review. Indeed, challenging the executive’s method of computing a budget estimate is analogous to challenging the degree of itemization in a budget. In rejecting the latter challenge as it related to the State budget, this court held: "[T]he degree of itemization necessary in a particular budget is whatever degree of itemization is necessary for the Legislature to effectively review that budget. This is a decision which is best left to the Legislature, for it is not something which can be accurately delineated by a court. It is, rather, a function of the political process, and that interplay between the various elected representatives of the people which was certainly envisioned by the draftsmen of the Constitution. Should the Legislature determine that a particular budget is so lacking in specificity as to preclude meaningful review, then it will be the duty of that Legislature to refuse to approve such a budget. If, however, as here, the Legislature is satisfied with the budget as submitted by the Governor, then it is not for the courts to intervene and declare such a budget invalid because of a failure to measure up to some mythical budget specifically delineating the exact fate of every penny of the public funds. 'Direct concern with the degree of particularization or subdivision of items lies exclusively with the executive and legislative branches of government simply because they are the sole participants in the negotiation and adoption of an executive budget’ * * * Should a Legislature fail in its responsibility to require a sufficiently itemized budget, the remedy lies not in the courtroom, but in the voting booth” (Saxton v Carey; 44 NY2d, at 551, supra [citation omitted]). The reasoning of this court in Saxton is applicable here as well. Respondent Gulotta clearly complied with the literal requirements of the statute by submitting "a statement of the estimated cash balance” in his proposed 1988 budget. The proposed budget was duly adopted by the Board, which chose to supplement the general fund balance by $2.5 million. The accuracy of respondent’s estimate, much like the degree of budget itemization required, is a matter necessarily left to the executive and legislative branches of government, as the "sole participants in the negotiation and adoption of an executive budget” (Hidley v Rockefeller, 28 NY2d 439, 445). Any other result would set a destabilizing and sweeping precedent, permitting judicial review of discretionary budget decisions whenever a taxpayer wished to challenge the validity of an estimate appearing in the budget and was able to point to an official pronouncement indicating a contrary amount. Annual budgets and municipal fiscal matters would never be settled or reliable once we embark on this course. This type of unrestrained judicial interference with the governmental functions reserved to the other branches of government would clearly violate the separation of powers principle and result in an intolerable disruption of government affairs. Inasmuch as the literal requirements of County Charter § 302 (5) have been satisfied, therefore, no justiciable issue is presented for this court’s review, and if respondents have failed in their respective responsibilities to properly prepare and adopt the county budget, then the remedy lies with the voters, not the courts.

Moreover, even if the issue presented were deemed justiciable, we believe that Supreme Court erred in converting that part of the article 78 petition attacking the validity of the Nassau County budget into a declaratory judgment action authorized under General Municipal Law §51. "It is well established that a taxpayer action pursuant to section 51 of the General Municipal Law lies 'only when the acts complained of are fraudulent, or a waste of public property in the sense that they represent a use of public property or funds for entirely illegal purposes’ (Kaskel v Impellitteri, 306 NY 73, 79; see Gaynor v Rockefeller, 15 NY2d 120, 133-134; Stahl Soap Corp. v City of New York, 5 NY2d 200, 204; Talcott v City of Buffalo, 125 NY 280, 288).” (Mesivta of Forest Hills Inst. v City of New York, 58 NY2d 1014, 1016.) Here, there is no evidence of fraud and the acts complained of are, at worst, technical violations of the budgetary requirements specified by statute. In these circumstances, invocation of the court’s equitable jurisdiction under General Municipal Law §51 was completely unauthorized and disproportionate to the alleged wrong, and petitioner is limited to the legal remedy of mandamus (see, Southern Leasing Co. v Ludwig, 217 NY 100, 103-104 [Cardozo, J.]).

Additionally, the drastic remedy decided on by the lower courts — invalidation of the entire Nassau County budget— constitutes an abuse of discretion as a matter of law. Petitioner has failed to demonstrate sufficient prejudice, and the one technical deficiency in a single line in an 832-page document relating to surplus funds allegedly not accounted for does not warrant so extreme a result (see, Kessel v D’Amato, 97 Misc 2d 675, 682). This is particularly true where respondents have explained the disposition of the disputed funds at great length, and where there clearly has been no attempt to hide any moneys from public scrutiny. Of course, as we conclude that the issue presented is not justiciable, we need not speculate on what might constitute an appropriate remedy.

The courts must be ever vigilant against upsetting our tripartite scheme of government by intruding upon the powers and responsibilities constitutionally delegated to the executive and legislative departments. In invalidating the Nassau County budget, we believe the majority has let down its guard and threatened this delicate constitutional balance. Accordingly, we would reverse the order of the Appellate Division and dismiss the petition as presenting a nonjusticiable issue.

Chief Judge Wachtler and Judges Kaye, Titone and Hancock, Jr., concur with Judge Simons; Judge Alexander dissents and votes to reverse in a separate opinion in which Judge Bellacosa concurs.

Order modified in accordance with the opinion herein and, as so modified, affirmed, with costs to petitioner.

      . On February 22, 1988, while the motion to dismiss the petition was pending in Supreme Court, the Board of Supervisors created a tax-stabilization reserve fund pursuant to General Municipal Law § 6-e and appropriated $24.5 million of 1987 revenues into the fund.

      . We note that General Municipal Law § 51 is equitable in nature, and nothing in this opinion should be read as preventing a court from assessing equitable factors under that section, especially before drastic relief, such as the invalidation of a municipality’s budget, is ordered. Appellants, however, do not raise this issue on appeal, and we do not consider it here.

       As explained in the affidavit of Richard S. Camp, Nassau County’s Budget Director, pursuant to Tax Law § 1262 (d), Nassau County’s three towns permit their portion of sales tax revenues levied by the county on their behalf to be retained by the county, which then applies the revenues as a credit to reduce the towns’ property taxes. These section 1262 (d) moneys — amounting to about $23.9 million of the $80.1 million estimated budget surplus — are committed by law to the reduction of property taxes, and have no relation to the estimated surplus in the general fund balance.


author: Alexander, J.

text:
    In the Matter of Joseph W. Bellacosa, as Chief Administrative Judge of the Unified Court System of the State of New York, Appellant, v Classification Review Board of the Unified Court System of the State of New York et al., Respondents. Primrose Shafer et al., Intervenors-Respondents.
    Argued September 8, 1988;
    decided October 18, 1988

      POINTS OF COUNSEL

      Michael Colodner and Patricia P. Satterfield for appellant.
    I. The Classification Review Board’s action nullifying the Chief Administrative Judge’s decision to classify personal secretaries to Judges of County, Family and Surrogate’s Courts on the basis of court size was arbitrary, capricious and affected by an error of law. (State Off. of Drug Abuse Servs. v State Human Rights Appeal Bd., 48 NY2d 276; Matter of Pell v Board of Educ., 34 NY2d 222; State Div. of Human Rights [McDermott] v Xerox Corp., 65 NY2d 213; Cove v Sise, 71 NY2d 910; Matter of Byrne v McCoy, 29 NY2d 440; Matter of Augello v McCoy, 35 AD2d 634, 28 NY2d 920; Farrington v Pinckney, 1 NY2d 74; Matter of Kelley v McGee, 57 NY2d 522; Matter of Dono

      van v Bellacosa, 129 AD2d 152.) II. The Classification Review Board lacks the authority to reclassify positions. (Matter of City of New York v City Civ. Serv. Commn., 60 NY2d 436; Matter of Johnson v Joy, 48 NY2d 689; Matter of Howard v Wyman, 28 NY2d 434; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Matter of Herzog v Joy, 74 AD2d 372, 53 NY2d 821.)

      Robert Abrams, Attorney-General (Maryellen Chomsky and O. Peter Sherwood of counsel), for respondents.
    I. The Classification Review Board is authorized not only to review, but also to reclassify positions. (Doctors Council v New York City Employees’ Retirement Sys., 71 NY2d 669; Sega v State of New York, 60 NY2d 183; Corkum v Bartlett, 46 NY2d 424; Matter of English v McCoy, 51 Misc 2d 311, 29 AD2d 847; Matter of Donovan v Bellacosa, 129 AD2d 152.) II. The Classification Review Board’s determination reclassifying "Secretaries to Judges” to "Senior Secretaries to Judges” was rationally based. (Cove v Sise, 124 AD2d 486, 71 NY2d 910; Corkum v Bartlett, 46 NY2d 424; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Dillon v Nassau County Civ. Serv. Commn., 43 NY2d 574; Matter of Grossman v Rankin, 43 NY2d 493; Matter of Adams v Krone, 43 Misc 2d 751, 23 AD2d 937, 16 NY2d 483; Matter of Celestial Food Corp. v New York State Liq. Auth., 99 AD2d 25; Matter of Levine v New York State Liq. Auth., 23 NY2d 863.)

      Marilyn S. Dymond and Marjorie E. Karowe for intervenorsrespondents.
    I. The Classification Review Board’s determination cannot be overturned unless it was wholly arbitrary or without any rational basis. (Cove v Sise, 71 NY2d 910.) II. The Classification Review Board’s reversal of the Chief Administrative Judge’s classification determination was rationally based and was not wholly arbitrary. (Matter of Levine v New York State Liq. Auth., 23 NY2d 863.) III. The Classification Review Board had authority to modify the Chief Administrative Judge’s decision. (Corkum v Bartlett, 46 NY2d 424; Kendall v Evans, 126 AD2d 703.)
   OPINION OF THE COURT

Alexander, J.

We are called upon on this appeal to resolve the issue left open in Cove v Sise (71 NY2d 910): namely, whether the Classification Review Board of the Unified Court System (the Board) has the authority to reclassify job classifications established by the Chief Administrative Judge (CAJ) when it finds that such classifications are "unjust and inequitable”. We conclude that the Board does not have such authority and that the classification review process, as established by the Chief Judge, was not intended to confer such power and authority on the Board.

Petitioner, the Chief Administrative Judge of the Unified Court System, instituted this article 78 proceeding to review a determination by the Board finding that the duties and responsibilities of secretaries classified under the title "Secretary to Judge” (JG-14) are virtually identical to the duties and responsibilities of secretaries classified under the title "Senior Secretary to Judge” (JG-17), and concluding that the separate classification of secretaries working in those positions is therefore "unjust and inequitable”. The Board directed petitioner to reclassify all personal secretaries working for Judges in County, Family and Surrogate’s Courts to the title "Senior Secretary to Judge” (JG-17).

I.

Pursuant to the Unified Court Budget Act of 1976 (L 1976, ch 966, as amended; now codified as Judiciary Law § 39), approximately 8,500 locally paid court employees throughout the State were transferred to the State payroll as part of the State’s assumption of local court costs. In order to ensure the orderly transfer of these new employees to the State payroll, the Legislature directed the Administrative Board of the Judicial Conference to "adopt a classification structure for all non-judicial officers and employees * * * of the state of New York” (Judiciary Law § 39 [8] [a]). The classification scheme was to be established "in accordance with duties required to be performed in title in these positions and in accordance with the responsibilities of the position and the volume of work in the court or court-related agency in which the position exists” (Judiciary Law § 39 [8] [a]).

By administrative order dated May 28, 1979, the CAJ, acting on behalf of the Chief Judge, adopted a new Classification Plan (Plan) for all nonjudicial positions in the Unified Court System. The Plan included title standards for the secretarial and stenographic series, including the title "Secretary to Judge” having a salary grade of JG-14, and the title "Senior Secretary to Judge” having the higher salary grade of JG-17.

Interveners are personal secretaries to Surrogate or County Court Judges in various upstate counties who worked either in single-Judge County Courts with combined filings of indictments and civil actions totaling less than 650 or Surrogate’s Courts having fewer than 10 employees. Accordingly, they were each classified to the new title "Secretary to Judge” and thus received the lower salary grade. They filed classification and allocation appeals with the CAJ challenging the classification of their former secretarial positions, contending that they should be reclassified to the title "Senior Secretary to Judge” and paid a salary commensurate with that position. The CAJ denied these appeals. Each intervenor then appealed the CAJ’s decision to the Board. The Board concluded that the duties and responsibilities of the "Secretary to Judge” class are equivalent to those of secretaries classified under the "Senior Secretary to Judge” title, and granted intervenors’ classification appeals. Petitioner was directed to "reclassify to Senior Secretary to Judge, JG-17, all positions of personal secretaries to judges in County, Family and Surrogate’s Courts which were classified as Secretary to Judge pursuant to the Plan”. This article 78 proceeding seeking to annul the Board’s determination insofar as it directed the CAJ to reclassify secretarial positions in the County, Family and Surrogate’s Courts followed.

Finding the Board’s determination to be rational and in accordance with the classification criteria specified in Judiciary Law § 39 (8) (a), Supreme Court confirmed the determination and dismissed the petition. The court further held that the Board’s review authority would be "meaningless” without the remedial power to reclassify positions where it finds that an existing job classification is unjust and inequitable. The Appellate Division affirmed for the reasons stated by Supreme Court, and this court granted leave to appeal.

II.

The CAJ, acting on behalf of the Chief Judge, is constitutionally charged with the responsibility to "supervise the administration and operation of the unified court system” (NY Const, art VI, § 28 [b]; Corkum v Bartlett, 46 NY2d 424, 429). We have recognized that the administrative powers of the CAJ are "complete” and that he "may employ them fully when and while and to the extent that they have been delegated to him” (Corkum v Bartlett, 46 NY2d, at 429, supra). Among the enumerated powers specifically and exclusively delegated to the CAJ by the Chief Judge is the power to "adopt classifications and allocate positions for nonjudicial officers and employees of the unified court system, and revise them when appropriate” (22 NYCRR 80.1 [b] [16]).

A process for reviewing the CAJ’s classification of nonjudicial employees has been authorized by the Chief Judge acting pursuant to his constitutional powers as the State’s chief judicial officer (NY Const, art VI, §28; 22 NYCRR 25.41). Under the rules promulgated by the Chief Judge, "an employee aggrieved by the classification of his or her position in the classification plan established effective May 28, 1979, including the allocation of his or her position to a salary grade” may seek classification review (22 NYCRR 25.41). The employee must first appeal to the CAJ, who will review the employee’s classification and determine if any adjustment in title or salary grade is required (22 NYCRR 25.41 [a]). If the employee is dissatisfied with the CAJ’s decision, a further appeal to the Board is permitted (22 NYCRR 25.41 [b]). The Board is specifically authorized "to determine each appeal” and its determinations constitute administrative orders subject to review only "in a proceeding brought by either the employee, an employee organization, or the [CAJ] pursuant to article 78 of the CPLR” (22 NYCRR 25.41 [e]). The CAJ has no supervisory authority over the Board, whose members are independently appointed by the President of the State Civil Service Commission, the State Comptroller and the Chairman of the Public Employment Relations Board (22 NYCRR 25.41 [b]). Nor is there any procedure for the CAJ to independently review the Board’s determination prior to its becoming final.

Acting pursuant to his delegated authority to administer the State court system, the CAJ established the Board by administrative order providing, in relevant part, as follows: "The Classification Review Board shall hear and determine appeals from the determination of the Chief Administrator made pursuant to section [25.41 (a)] of the Rules of the Chief Judge. An appeal may be brought either by the aggrieved employee, or his employee organization on his behalf, and shall be limited to review of the classification of the employee’s position and the allocation of his position to a salary grade. The Classification Review Board may reverse or modify a determination of the Chief Administrator upon persuasive evidence that the determination is unjust and inequitable” (Administrative Order, 80/9, Jan. 11, 1980 [emphasis added]). Thus, the CAJ — interpreting the Chief Judge’s direction that the Board "determine each appeal” — empowered the Board to review his orders relating to classifications and allocations, and to reverse or modify them if, in the Board’s determination, they are "unjust and inequitable”. The critical question raised on this appeal, in addition to whether the Board’s decision invalidating intervenors’ classifications was rational, is whether the Board’s power to "reverse or modify” classifications found to be unjust and inequitable includes the power to "reclassify” those positions.

III.

Initially, petitioner contends that the classifications were rationally premised on the volume and complexity of work handled by the particular court, and that secretaries working in multiple-judge courts, courts with a greater number of nonjudicial employees, or courts processing a greater number of annual filings reasonably can be expected to have a heavier workload than secretaries working in smaller, lower volume courts. Inasmuch as the challenged classifications had a rational basis, argues petitioner, the Board’s decision invalidating them was arbitrary and capricious. This contention is without merit. In urging that the Board was required to uphold the challenged classifications if it found them to be rational, petitioner misapprehends the applicable standard of review. Unlike determinations of the Board — which "will not be disturbed in the absence of a showing that they are wholly arbitrary or without any rational basis” (Cove v Sise, 71 NY2d 910, 912, supra) — classification determinations of the CAJ may be reversed or modified if they are found to be "unjust and inequitable” (Administrative Order of Chief Administrative Judge, 80/9, Jan. 11, 1980).

Here, the Board found that the respective classifications of interveners were unjust and inequitable because the duties and responsibilities set forth in the two job titles under consideration were virtually identical. Further, the Board reasonably determined that the volume of work handled by a court — the purported basis for the classifications urged by petitioner — is a proper classification factor only insofar as it influences the duties and responsibilities of the position at issue. Inasmuch as this aspect of the Board’s determination was based on all three classification standards specified in Judiciary Law § 39 (8) (a) and is supported by evidence in the record, it must be upheld (see, Cove v Sise, 71 NY2d, at 912, supra).

Petitioner’s contention that the Board lacked the power to reclassify intervenors is persuasive, however. Petitioner contends that, upon finding the challenged classifications to be unjust, the Board was required to remand the matter to the CAJ — "the constitutionally and statutorily designated classifying authority” — for appropriate action. Petitioner argues that the Board exercises strictly a review function and, although it may reverse or modify a particular classification, it may not make policy by "restructuring” the classification scheme created by the CAJ. We agree.

The classification power lies at the heart of the CAJ’s authority to administer the unified court system (see generally, Corkum v Bartlett, 46 NY2d 424, supra). It is thus inconceivable that the Chief Judge, in authorizing the Board to "determine each appeal”, intended to permit the Board to simultaneously exercise the same power. Such a result would seriously undercut the CAJ’s authority and would threaten the orderly administration of the court system. We conclude, therefore, that the Board’s power to "determine” a classification appeal does not authorize the Board to reclassify court employees.

Moreover, since the power to adopt and revise classifications has been exclusively delegated to the CAJ, the Board cannot also have this power unless it has been lawfully subdelegated to the Board by the CAJ. Petitioner contends, however, that although the CAJ authorized the Board to "reverse or modify” classification determinations, the Board was never authorized to reclassify employees. This contention has merit. Although the CAJ is authorized to subdelegate his classification power "to any deputy, assistant, administrative judge or court” (22 NYCRR 25.4 [a]; 25.5), there is no basis in the record for concluding the CAJ attempted to subdelegate the classification power to the Board. In any event, there is not the slightest indication from the regulations that the CAJ is authorized to divest himself of a core administrative power and permit it to be exercised by an independent body over which he has no supervisory authority (cf., 22 NYCRR 25.29 [f] [providing for review by the CAJ of disciplinary action taken against employees by officials designated by the Chief Judge]). There are limits beyond which any subdelegation must be viewed as an unlawful abdication of responsibility. Indeed, this is obvious from the very nature of subdelegation which means "the transmission of authority from the heads of agencies to subor dinates” (1 Davis, Administrative Law § 3:16, at 216 [2d ed 1978]; see, e.g., Labor Bd. v Duval Jewelry Co., 357 US 1 [involving the subdelegation to a Hearing Officer of the authority to issue a preliminary ruling on a motion to revoke a subpoena]). Surely, if the CAJ does not retain any supervisory authority over the official exercising the delegated authority, and may not review decisions made by that official, such official is not a "subordinate” of the CAJ and any attempted subdelegation will be held invalid.

As previously noted, the CAJ exercises no supervisory authority over the Board, the determinations of which are administrative orders reviewable only in an article 78 proceeding. The Board, therefore, cannot reasonably be viewed as a "subordinate” of the CAJ; indeed, insofar as the validity of a challenged classification is concerned, just the reverse is true. Consequently, even were we to assume the CAJ attempted to subdelegate his classification power in authorizing the Board to "reverse or modify” classification determinations, such subdelegation would be invalid.

Thus, we reject interveners’ contention that the Board was authorized, upon determining that their job classifications were "unjust and inequitable”, to order petitioner to reclassify them to a particular position and salary grade. The power to adopt and revise classifications has been exclusively delegated to the CAJ by the Chief Judge and, under the existing regulatory scheme, only the CAJ, or a designated representative over whom the CAJ retains supervisory authority, may exercise that power. The Board’s authority to "reverse or modify” classification determinations, therefore, must be viewed merely as permitting the Board to invalidate the specific classification challenged, or to modify the challenged classification in a way that does not impinge upon the CAJ’s exclusive classification authority. Any further remedial action must be performed by the CAJ who is the official in charge of the over-all administration of the court system, and thus vested with the authority to make classifications and allocations.

Accordingly, the order of the Appellate Division should be modified by annulling the determination of the Classification Review Board insofar as it directed reclassification of the secretarial positions and, as so modified, affirmed.

Judges Simons, Kaye, Titone and Hancock, Jr., concur; Chief Judge Wachtler and Judge Bellacosa taking no part.

Order modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.

      . Effective April 1, 1978 the Administrative Board of the Judicial Conference was abolished and its powers were assumed by the Chief Judge of the Court of Appeals, who was appointed Chief Judicial Officer of the Unified Court System (NY Const, art VI, §28 [b]). The Chief Judge was directed to appoint a chief administrator who "shall supervise the administration and operation of the unified court system” (NY Const, art VI, § 28; see, Corkum v Bartlett, 46 NY2d 424, 428-429).

        . According to petitioner, as of April 1, 1987, the hiring rate for the Secretary to Judge title (JG-14) was $22,160 and the salary range was $23,137 to $28,999. In contrast, the hiring rate for the Senior Secretary to Judge title (JG-17) was $26,238 and the salary range was $27,359 to $34,085.

      . Under the Plan, the title "Secretary to Judge” is reserved for secretaries working for Judges in City and District Courts, and small Family, County, and Surrogate’s Courts. The title "Senior Secretary to Judge” is reserved for secretaries working in the Court of Claims; all Supreme Courts; all County Courts with two or more full-time Judges or with one full-time Judge and combined filings of indictments and Supreme Court civil actions exceeding 650; all Family Courts with two or more full-time Judges; and all Surrogate’s Courts with 10 or more nonjudicial employees.

      . The Board denied intervenors’ allocation appeals, concluding that no basis had been shown for reallocating the position of "Secretary to Judge” to a higher salary grade than JG-14.

        . Petitioner’s reliance on State Off. of Drug Abuse Servs. v State Human Rights Appeal Bd. (48 NY2d 276) in support of a rational basis test is misplaced. Although, in that case, we concluded the State Human Rights Appeal Board exercises the same limited scope of review over decisions of the State Division of Human Rights that a court ordinarily does when passing on the determination of an administrative agency, we explicitly rested our conclusion on Executive Law § 297-a (7) which restricts the review power of the Appeal Board to determining whether an order of the Division is arbitrary or capricious, or is supported by substantial evidence. There is no such statute involved here.

      . The Board found that both title standards are in the exempt class; that incumbents provide personal and confidential legal secretarial services but that employees classified as "Secretary to Judge” may also perform clerical and reporting duties; that the "Typical Duties” listed in the two title standards are virtually identical except that the "Secretary to Judge” class may perform additional duties relating to the preparation of court calendars and dockets; that the lists of required "Knowledges, Skills and Abilities” are substantially the same; and that although the dictation and typing speeds of the "Senior Secretary to Judge” class are supposedly higher, secretarial appointees were not tested for the speeds specified in the title standards. Finally, although the minimum qualifications of the two titles differed in that appointees to the "Senior Secretary to Judge” class generally are required to have one more year of legal secretarial experience, the Board found that these qualifications were instructive rather than mandatory.

      . This idea was expressed by President Kennedy in an address before the United States Congress which has come to embody the prevailing view on subdelegation (see, 1 Davis, Administrative Law § 3:17, at 219 [2d ed 1978]). In that address, President Kennedy stressed the need for more widespread delegations of authority within agencies and stated that "[s]uch delegation would not be an abnegation of responsibility if the agency retained a discretionary right of review” of all decisions made pursuant to the delegated authority (107 Cong Rec 5849 [1961] [emphasis added]; see, 1 Davis, Administrative Law § 3:17, at 219; see also, Labor Bd. v Duval Jewelry Co., 357 US 1 [upholding delegation where NLRB retained authority to make final decision on whether to revoke subpoena]; Jay v Boyd, 351 US 345 [upholding Attorney General’s delegation of authority to suspend deportation where exercise of authority could be reviewed by Board of Immigration Appeals]).


author: Kaye, J.

text:
    In the Matter of Sharon B. and Another, Children Alleged to be Neglected. Westchester County Society for the Prevention of Cruelty to Children, Appellant. Nancy L. et al., Respondents.
    Argued September 15, 1988;
    decided October 20, 1988

      POINTS OF COUNSEL

      Joan Walter for appellant.
    I. This court should reverse the order of the court below and hold that N-PCL 1403 (b) and Judiciary Law §§478 and 484 authorize the Society’s nonattorney officers to represent the Society in Family Court. (People ex rel. State Bd. of Charities v New York Socy. for Prevention of Cruelty to Children, 161 NY 233; People v Black, 156 Misc 516; Matter of Society for Prevention of Cruelty to Children, 137 Misc 2d 271; Rapp v Rapp, 101 Misc 2d 375; People v James, 150 Misc 390; People ex rel. Balch v Strickland, 13 Abb NC 473; People ex rel. New York Socy. for Prevention of Cruelty to Children v Gilmore, 88 NY 627; Matter of Santos v Goldstein, 12 NY2d 672.) II. The rationale employed in the memorandum opinion of the court below is inherently flawed. (People ex rel. State Bd. of Charities v New York Socy. for Prevention of Cruelty to Children, 161 NY 233;
      Matter of Diane P., 110 AD2d 354; Radzanower v Touche Ross & Co., 426 US 148; Morton v Mancari, 417 US 535; Matter of Lo Bello v McLaughlin, 39 AD2d 404, 33 NY2d 755.)

      Basil N. Apostle for respondents.
    I. The authority granted by N-PCL 1403 (b) and Judiciary Law §§ 478 and 484 does not allow the Society’s nonattorney officers to represent the Society in Family Court. Any authority granted is limited by the inherent power of the courts to control the operation of the court. (Gabrelian v Gabrelian, 108 AD2d 445, 66 NY2d 741; Karutz v Chicago Tit. Ins. Co., 112 Misc 2d 815; Matter of People v Little, 89 Misc 2d 742; Matter of Queens Lay Advocate Serv., 71 Misc 2d 33; Bismarck v Incorporated Vil. of Bayville, 40 Misc 2d 1082, 21 AD2d 797.) II. The rationale employed in the memorandum opinion of the court below is well founded and properly applied. (People ex rel. State Bd. of Charities v New York Socy. for Prevention of Cruelty to Children, 161 NY 233.)

      Victor Schurr, Law Guardian.

   OPINION OF THE COURT

Kaye, J.

In initiating and prosecuting a child protective proceeding, a not-for-profit corporation for the prevention of cruelty to children may represent itself — appearing by an individual who is not an attorney — and need not be represented by counsel of record. The Appellate Division order that dismissed petitioner corporation’s abuse and neglect petition for lack of prosecution, based upon its failure to have counsel of record, should therefore be reversed, without costs, and the petition reinstated.

In October 1983, petitioner Westchester County Society for the Prevention of Cruelty to Children (the Society), by its nonattorney officer Kenneth Ellman, filed a petition in Family Court, under Family Court Act article 10, alleging abuse and neglect of Sharon B., then 14, and her brother Derek L., then six years old. The petition described several incidents of physical and mental abuse — principally repeated acts of violence by respondent father directed against Sharon B. The allegations were supported by written statements of the child and witnesses. By order of Family Court, the Department of Social Services was given temporary custody of Sharon B.

At a fact-finding hearing on January 5, 1984, Family Court ruled from the Bench that Ellman could not proceed to examine witnesses without counsel of record, and it ordered that the Society appear with counsel at a rescheduled hearing. At the rescheduled hearing on January 31, 1984, however, Ellman again sought to represent the Society, and again the court ruled that the Society needed a lawyer. The third time Ellman appeared for a fact-finding hearing without counsel, on February 16, 1984, Family Court dismissed the petition for lack of prosecution and entered an order dismissing the petition on the ground "that the allegations of the petition have not been established”.

On the Society’s appeal, the Appellate Division modified Family Court’s order to reflect that the petition had in fact been dismissed for lack of prosecution and, as modified, affirmed the order. The Appellate Division concluded that the relevant statutes require societies for the prevention of cruelty to children to have attorneys of record in child protective proceedings and that, in the presentation of a case, nonattorney officers of a society can do no more than assist counsel. We granted leave to appeal and now reverse.

As threshold matters, we first reject respondents’ contention that the case presents only issues of fact relating specifically to Ellman’s behavior. Courts of course have authority to regulate proceedings before them and to punish contumacious conduct on the part of attorneys as well as nonattorneys (see, e.g., Judiciary Law § 753; Matter of Katz v Murtagh, 28 NY2d 234). While Ellman himself may or may not have deserved to be sanctioned, the action taken here was decidedly not an exercise of that regulatory authority; indeed, before it dismissed the petition on the merits, the court explicitly referred any separate question of Ellman’s contempt to another Judge. The Appellate Division order, similarly, was premised on an issue of law and resulted in a blanket preclusion of representation by all nonattorney officers . of child protective societies. Second, we also reject respondents’ contention that the proceeding must be dismissed for mootness by reason of the fact that Sharon B. is now more than 18 years old. In that Derek L., also a party in this action, is still a minor, the appeal is not moot; we therefore need not consider whether the appeal would otherwise fall within an exception to the mootness doctrine.

On the merits, we begin our analysis with the proposition that parties as a rule may prosecute or defend their own civil actions, but corporations can appear only by attorney (CPLR 321 [a]). When the party to an action is a fictional person — a legal entity with limited liability — the general rule is that it cannot represent itself but must be represented by a licensed practitioner, whether outside counsel or staff counsel, answerable to the court and other parties for his or her own conduct in the matter (see, Austrian, Lance & Stewart v Hastings Props., 87 Misc 2d 25, 26).

While societies for the prevention of cruelty to children are corporations, they are corporations with special attributes— including powers specifically bestowed on them by the Legislature with respect to representing themselves in court. These societies, which serve as child protective agencies (Family Ct Act § 1012 [i]), are vested with extraordinary powers to assist in carrying out the public policy of the State to protect children from abuse and neglect (Matter of American Socy. for Prevention of Cruelty to Children [Abrams], 58 NY2d 1071, 1073; Matter of Society for Prevention of Cruelty to Children, 137 Misc 2d 271, 276). They are "in effect, a prosecuting agent of the state with respect to its laws.” (People ex rel. State Bd. of Charities v New York Socy. for Prevention of Cruelty to Children, 161 NY 233, 250 [Gray, J., concurring].) In aid of their function, the Legislature gave them the right to make arrests as peace officers (see, CPL 2.10 [former (7)]; 2.20, 140.25); the right to take children into protective custody, sometimes without court order (Social Services Law §417; Family Ct Act § 1024); the right to supervise parents and others after a finding of neglect or abuse (Family Ct Act § 1054); and the right to obtain copies of confidential child abuse reports (Social Services Law §§ 424, 425).

As additional "special powers,” N-PCL 1403 (b) (1) particularly provides that these societies "may prefer a complaint before any court, tribunal or magistrate having jurisdiction, for the violation of any law relating to or affecting children, and may aid in presenting the law and facts to such court, tribunal or magistrate in any proceeding therein.” This appeal calls upon us to define the actual scope of the statutory authority vested in child protective societies to "prefer a complaint” and to "aid in presenting the law and facts to such court.”

We conclude that, unlike the general prohibition imposed on other corporations by CPLR 321 (a), the Legislature by N-PCL 1403 specifically empowered these societies both to lodge complaints and to prosecute them by nonattorney representatives. The authority to "prefer” complaints includes not only instituting but also prosecuting, trying and proceeding with them, as that word is commonly defined (see, Black’s Law Dictionary 1060 [5th ed]). Permitting these societies to "aid in presenting the law and facts” empowers them to assist courts and others, such as District Attorneys, in prosecutions relating to or affecting children (see, People ex rel. State Bd. of Charities v New York Socy. for Prevention of Cruelty to Children, 161 NY 233, 241-242, supra). In that clients, including corporations, generally can assist counsel of record in their own cases, a construction of the statute that limits the societies’ authority to filing complaints and assisting counsel of record gives no real force either to the stated purpose of the statute — to confer additional "special powers” on these societies — or to the entirety of its language. Apart from filing complaints, if these societies can appear in court only by attorneys of record, just like other corporations, then the Legislature in fact accomplished virtually nothing by this grant of special powers to them.

Our construction is fortified when the statute is read — as it must be — in conjunction with sections 478 and 484 of the Judiciary Law, governing appearances as counsel. These sections make it unlawful for any person to practice or appear as an attorney for another, or to receive compensation for doing so, without having been duly licensed and admitted to practice. Both sections, however, specifically except "officers of societies for the prevention of cruelty, duly appointed, when exercising the special powers conferred upon such corporations under section fourteen hundred three of the not-for-profit corporation law”. (Judiciary Law §§478, 484; see also, Rapp v Rapp, 101 Misc 2d 375, 377.) The plain effect of the exception in these statutes addressed to the right to represent others in court is to permit nonlicensed, nonattorney representatives of societies for the prevention of cruelty to children to function as counsel would in actions contemplated by N-PCL 1403 (b).

In determining the intended effect of the pertinent statutes, we may also look beyond their words to the history surrounding their enactment (see, Ferres v City of New Rochelle, 68 NY2d 446, 451). While the actual Bill Jackets for the predecessor statutes to N-PCL 1403 (b) arid Judiciary Law §§ 478 and 484 apparently are no longer in existence, records going back to the turn of the century — after the statutes were adopted — establish that, as part of their traditional function, these societies actually investigated applications for the commitment of children and made reports to Magistrates, defended the custody of children committed to institutions, prepared briefs for the District Attorney, secured the attendance of witnesses, and assisted the District Attorney in procuring and preserving evidence (see, People ex rel. State Bd. of Charities v New York Socy. for Prevention of Cruelty to Children, 161 NY 233, 241-242, supra; see also, Report of Investigation by Supreme Court, at 10 [Sept. 1899]). Section 293 of the Penal Code of 1899, moreover, provided for the payment of fines, penalties and forfeitures in certain cases to "the incorporated society for the prevention of cruelty to children in every case where the prosecution shall be instituted or conducted by such a society”. (Emphasis added.)

Thus it is plain from N-PCL 1403 (b) and Judiciary Law §§ 478 and 484, read alone and in their historical setting, that —in aid of the important public purposes of societies for the prevention of cruelty to children — the Legislature specifically gave them the power generally denied other corporations to lodge and prosecute certain cases without the need to engage counsel of record.

Finally, we note that for more than a century child protective societies have aided courts and others in the protection of children (see, e.g., People ex rel. State Bd. of Charities v New York Socy. for Prevention of Cruelty to Children, 161 NY 233, 241-242, supra). While the law has unquestionably grown more complex, underscoring that it is beneficial (as the Appellate Division noted) to have counsel in litigated matters, the need for proceedings to protect children regrettably has also grown. What has remained constant, however, is the specific mandate of the Legislature that societies for the prevention of cruelty to children may prefer complaints without having to expend funds to retain counsel. Whether or not it is prudent in particular cases for such societies to proceed without counsel today, it is plainly legal for them to do so — subject always, of course, to the authority of courts to supervise and regulate the conduct of persons in proceedings before them.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the petition reinstated.

Judges Simons, Titone, Hancock, Jr., and Bellacosa concur; Chief Judge Wachtler and Judge Alexander taking no part.

Order reversed, etc.