author: Simons, J. Titone, J.

text:
    In the Matter of Grand Jury Subpoenas for Locals 17, 135, 257 AND 608 OF THE UNITED BROTHERHOOD OF CARPENTERS and Joiners of America, AFL-CIO, Appellants. The People of the State of New York, Respondent.
    Argued May 24, 1988;
    decided July 6, 1988

      POINTS OF COUNSEL

      William J. Dealy for appellants.
    I. The subpoenas duces tecum violate the First Amendment rights of the carpenters locals. (Local 1814, Intl. Longshoremen’s Assn. v Waterfront Commn., 667 F2d 267; Communications Assn. v Douds, 339 US 382; N. A. A. C. P. v Alabama, 357 US 449; Pollard v Roberts, 283 F Supp 248, 393 US 14; Bursey v United States, 466 F2d 1059; Gooding v Wilson, 405 US 518; Doe v Martin, 404 F Supp 753; United States v Fisher, 455 F2d 1101; Durbin v United States, 221 F2d 520; Hoffman v United States, 341 US 479.) II. The District Attorney’s enforcement of these over-broad subpoenas violates the Fourth Amendment protection against unreasonable searches and seizures. (Boyd v United States, 116 US 616; Hale v Henkel, 201 US 43; Federal Trade Commn. v American Tobacco Co., 264 US 298; Oklahoma Press Publ. Co. v Walling, 327 US 186; United States v Gurule, 437 F2d 239; In re Grand Jury Subpoenas Duces Tecum, 203 F Supp 575; United States v Barr, 605 F Supp 114; Virag v Hynes, 54 NY2d 437; In re Grand Jury Proceedings, 579 F2d 836; In re Grand Jury Subpoena Duces Tecum, 391 F Supp 991.) III. Union membership lists are secret. (Wirtz v Local 191, Intl. Bhd. of Teamsters, 218 F Supp 885.)

      Robert M. Morgenthau, District Attorney (Robert A. Mass, Mary C. Farrington and Mark Dwyer of counsel), for respondent.
    The Grand Jury subpoenas do not infringe upon appellants’ constitutional rights or any privilege under the Federal labor laws, and their motion to quash, therefore, was properly denied. (Brown v Socialist Workers '74 Campaign Comm., 459 US 87; Buckley v Valeo, 424 US 1; Gibson v Florida Legislative Comm., 372 US 539; In re Grand Jury Proceedings, 776 F2d 1099; Branzburg v Hayes, 408 US 665; Local 1814, Intl. Longshoremen’s Assn. v Waterfront Commn., 667 F2d 267; In re Faltico, 561 F2d 109; N. A. A. C. P. v Alabama, 357 US 449; Doe v Martin, 404 F Supp 753.)
   OPINION OF THE COURT

Simons, J.

A New York County Grand Jury has issued subpoenas duces tecum for the membership lists of four Union Locals of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and they have moved to quash, claiming the subpoenas violated their First and Fourth Amendment rights under the United States Constitution. The courts below denied the motion, and petitioners’ subsequent motion for a stay, and they now have surrendered the lists to the District Attorney. We conclude that the District Attorney’s continued possession of the membership lists pending the completion of the Grand Jury’s investigation does not violate the constitutional rights of the Union Locals or their members and therefore affirm.

The proceeding arises out of an investigation into corruption in the carpentry and drywall industry. It focused primarily on high-ranking union officials but the prosecutor informed the court that he assumed that some rank and file members might also become targets. Pursuant to this investigation the New York County District Attorney’s office issued subpoenas duces tecum to Locals 17, 135, 257 and 608 of the Carpenters Union, requesting that each produce a list containing the names, addresses, home telephone numbers and Social Security numbers of their members. The Locals moved to quash the subpoenas, claiming violations of their First and Fourth Amendment rights. The District Attorney opposed the motion claiming that the First Amendment rights of petitioners’ members were not implicated but contending alternatively that even if membership in a union came within the associational rights addressed in the Federal cases, that the People had met the compelling State interest test and were entitled to the records. On the basis of these claims, the trial court conducted an in camera hearing during which it pressed the District Attorney on the need for the information, particularly the need for the Social Security numbers, and the possibility of limiting the number of names produced. After considering the District Attorney’s arguments, the court denied the motion, but limited the subpoena to the extent of requiring that the lists remain under the direction and control of the principal Assistant District Attorney assigned to the investigation, ordering him not to duplicate them and requiring that he return the lists to the Locals upon completion of the Grand Jury’s investigation.

The Appellate Division refused to stay Supreme Court’s order and petitioners surrendered the lists to the District Attorney. It subsequently affirmed Special Term’s order on the merits and petitioners appeal to this court on constitutional grounds.

I

Although neither petitioners nor respondent contends that the appeal is moot, mootness is a doctrine related to subject matter jurisdiction and thus must be considered by the court sua sponte (see, Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713-714; People ex rel. Geer v Common Council, 82 NY 575, 576). Ordinarily, if a party has surrendered subpoenaed material, the legal injury has occurred and the courts cannot provide an effective remedy. That being so, the appellate court must dismiss the appeal unless it falls within the well-recognized exception where courts may exercise their extraordinary discretion to entertain the appeal notwithstanding mootness (Matter of Roadway Express v Commissioner of N. Y. State Dept. of Labor, 66 NY2d 742, 744). This case does not fall within the traditional exception (see, e.g., Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151, 154, n 2; Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715, supra; Matter of Jones v Berman, 37 NY2d 42, 57). Although the First Amendment question posed is substantial, and novel in this court, it is not the type which will typically evade review because a stay can be obtained to preserve the issue for appellate review before the material is surrendered.

Nevertheless, an appeal is not rendered moot if there remain undetermined rights or interests which the respective parties are entitled to assert (Matter of District Attorney of Suffolk County, 58 NY2d 436, 443; Gilpin v Mutual Life Ins. Co., 299 NY 253, 261-262; see, Cohen and Karger, Powers of the New York Court of Appeals § 98, at 417 [rev ed]). In this case, the rights of the parties remain undetermined because the membership lists which, pursuant to Supreme Court’s order, cannot be copied, remain under the control of the Assistant District Attorney and continue to be used by him in the investigation (cf., Matter of Roadway Express v Commissioner of N. Y. State Dept. of Labor, 66 NY2d 742, supra [no argument that continued possession of the subpoenaed material constituted a continuing injury]). We, therefore, turn to the merits.

II

The Locals’ primary argument is that the continued enforcement of the subpoenas will have an inevitable "chilling effect” on the association rights of their members. Specifically, the Locals contend that carpenters in New York City will perceive a connection between being a union member and being called before the Grand Jury and this perception may deter individuals from joining the union or discourage members from attending union meetings or engaging in robust debate with other members.

When a First Amendment claim is presented, the government may not enforce a subpoena of this type unless it is substantially related to a compelling governmental interest (Brown v Socialist Workers ’74 Campaign Comm., 459 US 87, 91-92; Buckley v Valeo, 424 US 1, 64; see also, Communist Party v Control Bd., 367 US 1, 92-103). Unquestionably, the State has a compelling interest in preventing and fighting corruption in the construction industry and the establishment of a specialized Grand Jury is a legitimate means of doing so. Although petitioners dispute it, the membership lists have a substantial relation to the investigation because they will enable the Grand Jury to locate and identify union members, the potential witnesses for Grand Jury testimony, without unduly burdening or delaying the search and without having to proceed through the traditional channels of first notifying the union leaders and exposing witnesses to possible intimidation.

The cases petitioners cite in support of their claim are inapposite. In N. A. A. C. P. v Alabama (357 US 449), the State of Alabama sought access to the membership rolls of the NAACP ostensibly to determine whether the Association was conducting an intrastate business in violation of the State foreign corporation registration statute. The court recognized in that case that petitioners had been subjected to prior harassment and reprisal from the government (id., at 462-463) and that the State did not actually need the membership lists to determine whether the Association was conducting a business (id., at 464-465). In Pollard v Roberts (283 F Supp 248 [three-Judge court], affd Per Curiam without opn 393 US 14), the State of Arkansas sought to obtain a list of the names of all contributors to the Republican Party to determine whether votes were being bought. In quashing the subpoena, the court held that the State had made no showing that the identities of Republican Party contributors was even "reasonably relevant to defendant’s investigation of alleged vote buying” (id., at 257). The court also noted that although there had been no showing that any individuals had been subjected to reprisals on account of contributions to the party, "it would be naive not to recognize that the disclosure of identities of contributors * * * would subject at least some of them to potential economic or political reprisals of greater or lesser severity” (id., at 258). In this case, however, the Grand Jury has a legitimate and compelling need for the lists to conduct its investigation.

Petitioners also claim the subpoenas are overbroad because, although the primary focus of the Grand Jury’s investigation is on the illegal activities of the Union leaders and stewards, the Grand Jury seeks the names, addresses and Social Security numbers of each member of the four Locals. They contend that the reasoning of the court in Local 1814, Intl. Longshoremen’s Assn. v Waterfront Commn. (667 F2d 267) requires reversal here.

In Waterfront a labor union and its political action committee brought suit to enjoin the Waterfront Commission from enforcing a subpoena issued during an investigation into whether longshoremen were being coerced into authorizing payroll deductions for contributions to a political action committee. The subpoena sought the list of all longshoremen who recently authorized payroll deductions. The District Court enforced the subpoena but only after modifying it to limit disclosure on a random basis to 10% of the names the Commission sought. The parties cross-appealed, and the Court of Appeals for the Second Circuit affirmed, holding that although disclosure of the names of the contributors to the PAC would have a chilling effect on free association rights the Commission had a compelling interest in obtaining them. The court observed that the subpoena bore a substantial relation to effectuating the governmental interest justifying enforcement of the subpoena but stated that the subpoena, as drafted, was too broad. It noted that if the 10% limitation of the District Court was inadequate for the Commission to meet its goals, it could reapply to the court for further disclosure.

Waterfront may be distinguished from this case on several grounds. First, the union in Waterfront raised a First Amendment claim because it feared that the disclosure of the names of contributors to political parties or political action committees sought by subpoena would discourage future activity or contributions by its members (see also, Pollard v Roberts, supra). Economic activity, such as membership in a union, may also be protected. As the Supreme Court noted in N. A. A. C. P. v Alabama (357 US 449, 460-461, supra), "it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters * * * state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny”.

But the effect subpoenas have on the membership of a union and participation in its activities is quite different from the effect subpoenas may have on membership in a political group or participation in its activities. Because of the advantages of union membership and the need to disclose it for employment it is not generally concealed or denied. Accordingly, we cannot presume that individuals would give up their union status, and corresponding assurance of well-paid jobs, simply because the Grand Jury knows they are union members and petitioners have not demonstrated that organizational activity would be curtailed because of the delivery of the lists. Waterfront is also distinguishable because there the requesting governmental body had access to the names and addresses of the longshoremen from another source, the Commission’s membership list, a fact which certainly affected the balancing process performed by the courts. Some of the information here also could be obtained from other sources, as the District Attorney conceded, but not from any central list, only by far more intrusive searches through countless personal records. Finally, while a random selection of names in Waterfront sufficiently served the Commission’s interest in determining whether coercion of the union rank and file existed, in this case we agree with the courts below, after examining the transcript of the in camera hearing, that the District Attorney has established that a random selection of names would not adequately serve the Grand Jury’s purpose.

III

Petitioners also contend that the subpoenas are so broadly drafted that they violate the Fourth Amendment’s prohibition against unreasonable searches and seizures. The Supreme Court has stated that the Fourth Amendment provides protection against a Grand Jury subpoena duces tecum "too sweeping in its terms to be regarded as reasonable” (Hale v Henkel, 201 US 43, 76; see also, United States v Dionisio, 410 US 1, 11-12 [dictum reaffirming principle]). We have made clear, however, that a subpoena duces tecum, unlike a search warrant, does not have to be supported by probable cause (Matter of Hynes v Moskowitz, 44 NY2d 383, 394, appeal dismissed 439 US 921).

The standard of reasonableness rather than probable cause is appropriate because of the substantial differences between a search warrant and a subpoena duces tecum. A search and seizure is conducted abruptly, without advance notice, often with force or the threat of force. A subpoena, in contrast, remains at all times under the control and supervision of a judicial officer and may be challenged before compliance through a motion to quash (see, id., at 394; United States v Doe [Schwartz], 457 F2d 895, 898, cert denied 410 US 941). Moreover, the unannounced search and seizure of documents often results in serious social stigma. A subpoena is served in the same manner as any summons or other legal process and typically no stigma whatsoever attaches if it is enforced. Indeed, the distinctions between warrants and subpoenas are so evident that it has been suggested by some courts that the restrictions on overbroad subpoenas duces tecum rest not on the Fourth Amendment’s prohibition against unreasonable searches and seizures, but on the less rigid requirements of the Due Process Clause (see, In re Horowitz, 482 F2d 72, 75-79 [Friendly, J.] cert denied 414 US 867, reh denied 414 US 1052; United States v Doe [Schwartz], 457 F2d 895, 900, supra; People v Doe, 84 AD2d 182, 201, n 14 [all cases reviewing applicable Supreme Court precedent]). Whatever the source of the constitutional right of an individual to be free from overly broad subpoenas duces tecum, "[a]ll that is required under the State and Federal Constitutions is that the subpoenaed materials be relevant to the investigation being conducted and that the subpoena not be overbroad or unreasonably burdensome” (Matter of Hynes v Moskowitz, 44 NY2d 383, 394, supra [citations omitted]; see also, See v City of Seattle, 387 US 541, 544; Oklahoma Press Publ. Co. v Walling, 327 US 186, 208-209).

Based on this standard, we conclude that the subpoenas are neither overly broad nor burdensome and that the information sought is relevant.

It is useful to compare this case with Hale v Henkel (supra), where the Supreme Court found the subpoena to be overly broad and unduly burdensome. In that case the court stressed the fact that if the subpoena were enforced as written it would "completely put a stop to the business of [the] company” (201 US, supra, at 77). Here, by contrast, the subpoenas only request that the Locals submit a copy of the membership lists. Nor is the subpoena subject to criticism on the grounds of vagueness or, using Fourth Amendment terminology, lack of particularity in the description of the documents sought. The Locals were told specifically what they were obligated to produce, the tasks required only a matter of minutes to accomplish and it did not interfere with the Locals’ continued operation.

Petitioners contend further that the names, addresses and Social Security numbers of every member of all four Locals are not relevant. The District Attorney contends that to limit the subpoenas to one Local, to a portion of the membership of one or more Locals, or to certain jobsites would immediately signal the suspected parties and that it would not be adequate because he has no way of knowing which members, for example, witnessed bribes, the illegal violation of collective bargaining agreements or other corrupt activities. He agrees that the information subpoenaed is not necessary in all cases and that some areas of inquiry do not relate to all the Locals but he asserts that narrowing the demand to produce would clearly indicate the areas of investigation and potential charges against each Local and those members who are believed to have knowledge, information which could seriously impede the investigation. His claim is supported by the material revealed to the Trial Justice during the in camera hearing.

Relevancy, of course, cannot be reduced to a formula; only general guidelines can be restated. We have often noted the Grand Jury subpoenas are presumptively valid and can only be quashed by proving an affirmative act of impropriety or bad faith (Virag v Hynes, 54 NY2d 437, 442-443; Matter of Additional Jan. 1979 Grand Jury v Doe, 50 NY2d 14, 20; Matter of Manning v Valente, 272 App Div 358, 361). The party seeking to quash a subpoena duces tecum must "demonstrate 'that a particular category of documents can have no conceivable relevance to any legitimate object of investigation by the * * * grand jury’ ” (Virag v Hynes, 54 NY2d 437, 444, supra, quoting In re Horowitz, 482 F2d 72, 80, supra). Petitioners’ attempt to distinguish Virag v Hynes on the ground that it did not involve an assertion of the Fourth Amendment’s right to be free from unreasonable searches and seizures fails because the standards set forth in Virag satisfy all Fourth Amendment concerns.

Addressing briefly the points raised by the dissent, both the Locals and the People extensively argued the applicability of the First Amendment claim in the moving and responding papers and in their briefs to Supreme Court. While the trial court did not issue a written decision when it denied petitioners’ motion, it had the applicable law presented to it and necessarily engaged in a balancing process before denying the motion to quash. Whether it did so or not is academic at this stage, however, because we have reviewed the record and balanced the competing interests and conclude its decision was correct. Insofar as the dissent contends that the union offered alternatives to compromise the matter, the alternatives were suggested for the first time in the Appellate Division. Finally, although the Assistant District Attorney conceded the obvious, that not all members of the Locals would be called to testify before the Grand Jury, he insisted on the need for all names because at this stage of the investigation it is impossible to determine which members had pertinent information and because it is important that all names be delivered so that the investigation will not be endangered.

IV

We have reviewed the Locals’ remaining contention that the Labor-Management Reporting and Disclosure Act of 1959 (see, 29 USC § 481) shields disclosure of the membership lists to a Grand Jury and conclude that it is without merit.

Accordingly, the order of the Appellate Division should be affirmed.

Titone, J.

(dissenting). I agree with the majority’s conclusion that the controversy presented on this appeal is not moot. I also agree that the Union membership’s Fourth Amendment rights have not been violated. Although I agree with my colleagues that there is a compelling State interest initially justifying disclosure of the Locals’ membership lists, we differ as to whether the subpoenas, as issued, were overbroad. Inasmuch as I find that the lower courts failed to properly balance the admittedly compelling governmental interest in disclosure against the First Amendment rights of the Union members, I would reverse and remit for a new hearing.

As a result of a New York County Grand Jury investigation into corruption in the carpentry and drywall industries, the District Attorney issued subpoenas duces tecum to four Locals of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Although the Union’s officials were the primary targets of the investigation, the subpoenas sought the entire membership lists of all four Locals, consisting of some 10,000 names, addresses, home telephone numbers and Social Security numbers. Contending that the broad disclosure requested by the District Attorney implicated the First Amendment rights of the membership, the Union sought to quash the subpoenas. Alternatively, the Union argued that the subpoenas were overbroad, and requested that the disclosure be limited to what was reasonably necessary to serve the legitimate needs of the investigation.

In issuing the subpoenas in an ex parte proceeding at which only the District Attorney’s office was represented, not one word was mentioned regarding the First Amendment rights of the Union membership. After the Union moved to quash the subpoenas on First Amendment grounds, the Supreme Court failed to indicate whether it had even considered the constitutional claim or balanced the conflicting rights of the government and the members of the Locals. Similarly, there is nothing in the record to indicate that the courts below carefully scrutinized the reasonableness of the District Attorney’s demands or considered the feasibility of less restrictive alternatives. Whether or not the Appellate Division considered the Locals’ constitutional claim is also unknown, since that court affirmed, without opinion.

What is known is that even the Assistant District Attorney admitted that not all of the names on the membership lists were necessary to the investigation. Nevertheless, the majority concludes that "the District Attorney’s continued possession of the membership lists * * * does not violate the constitutional rights of the Union Locals or their members” (majority opn, at 310). This holding is contrary to the controlling Federal case law.

Although acknowledging the substantial First Amendment interest involved, the majority minimizes the significance of the arguments advanced by the Union in support of its position. The Locals do not merely contend that individuals may be deterred from joining the Union, and that members may be discouraged from engaging in Union activities. Rather, the Locals assert that forced disclosure of all 10,000 names, addresses, phone numbers and Social Security numbers of its members infringes on associational, and privacy rights by chilling the exercise of First Amendment rights of the rank- and-file. The Union points out that with its members’ Social Security numbers, the government now has access to the tax returns, financial and other personal information of each and every Union member. Fear of becoming visible may well cause some members to refrain from fully exercising their right to engage in the full range of Union activities, which include political as well as economic and social activities. With the entire membership’s home telephone numbers in his possession, the District Attorney may contact the rank-and-file at home any time he wishes. In sum, the Union’s position is that "the First Amendment protects one’s freedom of association, privacy and freedom to participate in a political life without unjustified governmental interference”. To further support its contention that disclosure here may adversely affect the Union, and thereby chill the exercise of constitutionally protected rights, the Locals point out the undisputed fact that newspapers have already reported on the investigation as a result of a news leak. These issues were explicitly raised below and again before this court in the Union’s brief, and, by implication, in the cases cited by the Locals.

A demand by the government that seeks to obtain constitutionally protected materials is subject to the most exacting scrutiny. "It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty’ assured by the Due Process Clause of the Fourteenth Amendment * * * Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny” (N A. A. C. P. v Alabama, 357 US 449, 460-461). Regardless of how compelling the State interest may be, that interest must be balanced against the deterrent effect that the requested "disclosures may well have on the free exercise by [the locals’] members of their constitutionally protected right of association” (N. A. A. C. P. v Alabama, supra, at 463, citing Communications Assn. v Douds, 339 US 382, 400; see generally, Buckley v Valeo, 424 US 1, 25, 44-45). "Compelled disclosure is not permitted unless it is substantially related to a compelling governmental interest” (Local 1814, Intl. Longshoremen’s Assn. v Waterfront Commn., 667 F2d 267, 271, citing Buckley v Valeo, supra, at 64).

Nevertheless, the majority perceives no problem in requiring the Locals to turn over these membership lists and Social Security numbers because they believe that the Locals "have not demonstrated that organizational activity would be curtailed because of the delivery of the lists.” (Majority opn, at 314.) Even if we were to agree with this premise, we would still be compelled to dissent because this approach is contrary to the well-established constitutional principles enunciated in a long line of Federal cases (see, e.g., Buckley v Valeo, supra; Pollard v Roberts, 393 US 14 [Per Curiam], affg 283 F Supp 248; Shelter v Tucker, 364 US 479; Talley v California, 362 US 60; Bates v City of Little Rock, 361 US 516; N. A. A. C. P. v Alabama, 357 US 449, supra; Local 1814, Intl. Longshoremen’s Assn. v Waterfront Commn., 667 F2d 267, supra). Once it was determined that First Amendment rights were implicated here, the governing Federal precedents required that the burden shift to the government to show that there was a compelling State interest. The District Attorney also had to show that there was no less restrictive intrusion into the Union’s records that would reasonably satisfy the needs of the investigation. We were obligated to balance the conflicting interests of the Union and the government and perform the most exacting scrutiny regarding the People’s disclosure demand.

Although the majority attempts to distinguish the cases relied on by the Locals, the facts presented here fall squarely within the dictates of those cases. Indeed, the facts of this case are closely analogous to those of Local 1814, Intl. Longshoremen’s Assn. v Waterfront Commn. (supra). In Waterfront, the government sought disclosure of approximately 450 names of Union members who contributed to the Union’s political fund during a specified period of time as part of an investigation into corruption. The court denied such broad disclosure, and restricted the governmental access to only 10% of the names originally sought, finding that this would "limit the impairment of longshoremen’s First Amendment rights without compromising the Commission’s legitimate investigative needs” (Local 1814, Intl. Longshoremen’s Assn. v Waterfront Commn., supra, at 274). Were the same sort of scrutiny applied here, it is likely, given the record before us, that the requested disclosure would have been similarly limited.

The majority distinguishes the Waterfront case on the ground that it involved political speech. This implies that First Amendment rights were actually somehow capable of being prioritized into some descending order of importance. Federal law dictates otherwise. All fully protected First Amendment rights — whether involving association, privacy, speech, religion, or economics — are entitled to the identical protection and strict scrutiny that political speech enjoys (see, N. A. A. C. P. v Alabama, supra; Local 1814, Intl. Longshoremen’s Assn. v Waterfront Commn., supra). Further, the Locals do indeed argue that the free exercise of the rank-and-file’s political rights are being violated insofar as these rights are intimately bound up with participating in the political activities of the Locals.

More importantly, the initial inquiry is not on the specific First Amendment rights asserted. Rather, the court must inquire into whether the disclosure requested by the government "is substantially related to a compelling governmental interest” (Local 1814, Intl. Longshoremen’s Assn. v Waterfront Commn., supra, at 271). Once it is ascertained that First Amendment rights are implicated, the burden shifts to the government to justify the legally compelled disclosure.

The majority further attempts to distinguish Waterfront on the ground that the requesting governmental body actually had access to the names and addresses of the longshoremen from another source, thereby minimizing the government’s need for the disclosure, while here, the information was not readily available. This argument, however, cuts both ways. Before the judiciary permits compelled disclosure of personal information that is otherwise difficult to obtain, it has an obligation to strictly scrutinize the reasonableness of such a request. But in any event, this was at most a minor factor in the Waterfront decision. Before considering the availability of the information from public sources, we are first obligated to scrutinize the District Attorney’s demands.

There is, however, a valid ground upon which to distinguish the instant case from Waterfront that mandates reversal. In Waterfront, the government sought some 450 members names, all of which had some direct relevance to the investigation. In this case, the government sought some 10,000 names and addresses, as well as home phone numbers and Social Security numbers, even though the government itself admitted that not all the information was relevant to the investigation. Further, as the majority aptly points out, in Waterfront, the disclosure sought was limited. The criteria used to determine whether a member’s name had to be disclosed was predicated on whether the Union member signed a political contribution card after a specific date. In our case, however, the District Attorney demanded the name of every Union member, regardless of which Local they belonged to, and regardless of whether the member was a potential source of relevant information who might shed some light on the investigation. In the instant case, there was absolutely no limiting criteria. Thus, every member whose involvement in the Union was politically motivated, as well as those members whose Union participation was economically or socially motivated, was demanded. In other words, the disclosure at issue here was far more intrusive than that presented in Waterfront.

Finally, the majority contends that "in this case * * * the District Attorney has established” during the in camera hearing "that a random selection of names would not adequately serve the Grand Jury’s purpose.” (Majority opn, at 314-315.) We have reviewed the materials submitted to Justice Roberts, and two things become apparent. First, there was absolutely no showing that the First Amendment implications were even considered and it appears that no balancing at all was done before or after the subpoenas were issued. On this relatively barren record, we decline the invitation of the District Attorney to speculate as to whether or not the lower courts properly balanced the conflicting interests at issue.

Second, the Assistant District Attorney indicated to the issuing Magistrate that the primary target of the investigation was only one of the four Locals. Indeed, the District Attorney’s main justification for this sweeping disclosure was that to limit the subpoenas would immediately signal the suspected parties and jeopardize the investigation. This excuse is insufficient to warrant the full disclosure of the entire membership lists of all four Locals, since there were viable alternatives that could have been employed that would satisfy the reasonable needs of the investigation without infringing upon the First Amendment rights of the membership to such an intrusive degree. For example, the lists of names unrelated to the investigation could have been held by a neutral third party, as suggested by the Locals, disclosure could have been limited to a percentage of the total Union population, as was done in the Waterfront case. However, apparently, neither the majority nor the courts below even considered such reasonable alternatives. Indeed, no alternatives were considered.

Had the required balancing been done, and the requested disclosure been subjected to the demanding constitutional scrutiny required, it is inevitable that the broad disclosure demanded would have been significantly limited.

Accordingly, I would reverse and remit for a proper hearing.

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

Order affirmed, with costs.

       The majority points out that "the effect subpoenas have on the membership of a union and participation in its activities is quite different from the effect subpoenas may have on membership in a political group or participation in its activities. Because of the advantages of union membership and the need to discuss it for employment it is not generally concealed or denied.” However, we see a vast distinction between a union member voluntarily deciding to provide an employer with his Social Security number and union membership information, and the situation presented here, where the State seeks to compel this disclosure. The former represents a freely made choice. The latter represents an intrusion by the government into the privacy rights of the individual, as well as implicating the associational rights of the members, since disclosure was demanded solely based on union membership. It is difficult to believe that the average union member would not regard a government demand for the names, home phone numbers and Social Security numbers of every member an intrusion into their privacy. Indeed, we contend that most people would be concerned when a governmental investigatory body demands such personal information.


source: Caselaw Access Project

author: Titone, J. Hancock, Jr., J.

license: Public Domain

text:
    In the Matter of the Claim of Mattiel Lemon, Claimant, v New York City Transit Authority, Appellant. Workers’ Compensation Board, Respondent.
    Argued May 31, 1988;
    decided July 7, 1988

      POINTS OF COUNSEL

      Steve S. Efron and Albert C. Cosenza for appellant.
    Claimant’s injury did not arise out of and in the course of employment. (Matter of Husted v Seneca Steel Serv., 41 NY2d 140; Matter of De Jesus v New York State Police, 95 AD2d 454; Matter of Malacarne v City of Yonkers Parking Auth., 41 NY2d 189; Matter of Greene v City of New York Dept. of Social Servs., 44 NY2d 322; Matter of De Voe v New York State Rys., 218 NY 318; Van Gee v Korts, 252 NY 241; Matter of Saracione v Oliver Constr. Co., 87 AD2d 926; Matter of Daly v Bates & Roberts, 224 NY 126; Roth v Adirondack Co., 193 App Div 303; Matter of Murphy v New York City Tr. Auth., 38 AD2d 346, 33 NY2d 878.)

      Robert Abrams, Attorney-General (Howard B. Friedland, O. Peter Sherwood, Jane Lauer Barker and Theresa E. Wolinski of counsel), for respondent.
    I. The court below correctly held that Ms. Lemon’s free travel to and from work on her employer’s subway trains was within the scope of her employment. (Matter of Littler v Fuller Co., 223 NY 369; Matter of Holcomb v Daily News, 45 NY2d 602; Matter of Kowalek v New York Consol. R. R. Co., 229 NY 489; Tallon v Interborough R. T. Co., 232 NY 410; Listorti v New York Cent. R. R. Co., 251 NY 327; Green v Travelers Ins. Co., 286 NY 358; Matter of Schultz v Beaver Prods. Co., 223 App Div 582, 250 NY 565; Stimal v Jewett & Co., 205 App Div 170; Matter of Kelly v Hudson Val. Acoustical & Plastering Co., 62 AD2d 1097.) II. The court below correctly held that Ms. Lemon’s accident while leaving the Utica Avenue subway station arose out of and in the course of her employment. (Matter of Husted v Seneca Steel Serv., 41 NY2d 140; Matter of Manville v New York State Dept. of Labor, 294 NY 1; Listorti v New York Cent. R. R. Co., 251 NY 327; Matter of Marquette v New York Tel. Co., 122 AD2d 479; Matter of Buechi v Arcata Graphics, 97 AD2d 579; Matter of Konti v New York City Tr. Auth., 111 AD2d 1073.)
   OPINION OF THE COURT

Titone, J.

The familiar issue presented on this appeal is whether claimant’s injuries arose out of and in the course of her employment. We conclude that claimant did not sustain a compensable injury.

Claimant, Mattiel Lemon, was employed as a conductor by the appellant, New York City Transit Authority, a self-insured employer (see, Workers’ Compensation Law § 50). She was assigned to the Woodlawn IRT No. 4 subway line, which operates between Woodlawn Avenue terminal in The Bronx and New Lots Avenue in Brooklyn. Claimant generally worked between the hours of 7:23 p.m. and 3:23 a.m., and was required to sign in and out at the beginning and end of each shift at the Woodlawn Avenue terminal. Since claimant resided in Brooklyn near the Utica Avenue station, an express stop on the No. 4 line, she commuted to and from Woodlawn Avenue by subway. As a transit worker, she was issued a transportation pass entitling her to travel the subways free of charge.

On December 15, 1983, claimant finished her shift at approximately 4:00 a.m. and signed out. Still in uniform, and carrying her transportation pass, she boarded a No. 4 Brooklyn bound train to go home. Claimant disembarked at the Utica Avenue station, passed through the turnstile, and fell while climbing the stairs leading to the street. She fractured her knee and was unable to return to work until May 1984.

Claimant sought workers’ compensation benefits for lost time, but the Transit Authority contested the claim. After a hearing, however, claimant was awarded benefits, and the Workers’ Compensation Board affirmed the Hearing Officer’s findings, concluding that the accident occurred within the precincts of claimant’s employment. The Appellate Division affirmed on the ground that the Transit Authority, by issuing free passes to its employees, "implicitly assumed the responsibility of transporting claimant to and from work” and was "in exclusive control of the conveyance on which the accident occurred” (128 AD2d 943, 944, 945). We now reverse.

An employee is entitled to receive benefits under the Workers’ Compensation Law only for injuries "arising out of and in the course of the employment” (Workers’ Compensation Law § 10 [1]; see also, § 2 [7]; § 21; Matter of Merchant v Pinkerton’s, Inc., 50 NY2d 492, 495). Given the remedial nature of the Workers’ Compensation Law, we have consistently construed this requirement liberally, in order to effectuate "the economic and humanitarian” objectives of the act (Matter of Husted v Seneca Steel Serv., 41 NY2d 140, 145; see also, Matter of Smith v Tompkins County Courthouse, 60 NY2d 939, 941; Matter of Tallini v Martino & Son, 58 NY2d 392, 395; Matter of Holcomb v Daily News, 45 NY2d 602, 607).

Nevertheless, only if an injury flows as a natural consequence of the employee’s duties can it be said to arise out of the employment (Matter of Malacarne v City of Yonkers Parking Auth., 41 NY2d 189, 193; see also, Matter of Connelly v Samaritan Hosp., 259 NY 137, 139; Matter of McCarter v LaRock, 240 NY 282, 285-286; Matter of Scholtzauer v C. & L. Lunch Co., 233 NY 12, 14-15). Similarly, for an injury to occur in the course of employment, " 'it must have been received while the employee was doing the work for which he was employed’ ” (Matter of Malacarne v City of Yonkers Parking Auth., supra, at 193, citing Matter of Scholtzauer v C. & L. Lunch Co., supra, at 14-15). "A purely fortuitous coincidence of time and place is not enough. There must be” a causal relationship or nexus between the accident and the employment (Matter of Connelly v Samaritan Hosp., supra, at 139).

The question here is whether claimant’s journey to and from work should be characterized as part of the service performed by the employee. The well-established rule is that "employees are not deemed to be within the scope of their employment while” commuting, since "the risks inherent in traveling to and from work relate to the employment only in the most marginal sense” (Matter of Greene v City of New York Dept. of Social Servs., 44 NY2d 322, 325; Matter of Malacarne v City of Yonkers Parking Auth., supra, at 194; Matter of Husted v Seneca Steel Serv., supra, at 142; cf., Matter of Davis v Newsweek Mag., 305 NY 20, 23-26 [no compensation for injuries arising out of purely personal activities]).

We have recognized a number of exceptions to this general rule. As long as there existed some reasonable nexus between the risk to which a claimant was exposed and the employment, recovery has generally been upheld, even though the injury was sustained while traveling to or from work (see, e.g., Matter of Holcomb v Daily News, 45 NY2d 602, supra; Matter of Husted v Seneca Steel Serv., supra; cf., Matter of Greene v City of New York Dept. of Social Servs., supra [employee required to travel to clients’ homes]; Matter of Malacarne v City of Yonkers Parking Auth., supra [assault on employee]; Matter of Seymour v Rivera Appliances Corp., 28 NY2d 406, 409 [injury compensable if nexus exists between assault on employee and employment]; Matter of Field v Charmette Knitted Fabric Co., 245 NY 139 [employee’s injuries sustained in fight with another employee on street compensable when quarrel began on employer’s premises]).

We agree, however, with the Transit Authority that none of the exceptions to the general rule are applicable here. According to her own testimony at the hearing, claimant’s duties ended when she signed out of work at approximately 4:00 a.m. at the Woodlawn terminal in The Bronx. She was injured 1 hour and 20 minutes later while climbing the stairs on her way home at the Utica Avenue station in Brooklyn. Given the remoteness in terms of time and space from the Woodlawn terminal, we can see no reasonable connection between claimant’s injury and her employment.

Primarily relying on our decision in Matter of Holcomb v Daily News (45 NY2d 602, supra), the Workers’ Compensation Board argues that this accident was compensable because the transportation pass issued by the Transit Authority effectively made the employee’s journey to and from work a part of claimant’s employment. Such an assertion is untenable, since it ignores our prior holdings.

In Matter of Murphy v New York City Tr. Auth. (33 NY2d 878, affg 38 AD2d 346), and Tallon v Interborough R. T. Co. (232 NY 410), we were faced with factual scenarios almost identical to the one before us. In Murphy, a Transit Authority token clerk completed his shift and, using a transportation pass, took the subway home without paying the fare. He was injured while descending the stairs to the street. Compensation was denied on the ground that the employee " 'had completed his tour of duty, was on his way home, by route of his own choice, and had traveled a distance from his assigned place of work, removing him from the precincts of his place of employment’ ” (38 AD2d, supra, at 347). Similarly, in Tallón, a subway guard took the train to work using his employee’s pass and was killed when the train he was riding collided with another train. We concluded that inasmuch as his death occurred before he reported to work, the accident was not compensable. We find these cases determinative here, and nothing we said in Holcomb mandates a contrary result in this case.

We agree with the Board that Holcomb represents an exception to the general rule that injuries sustained by an employee while commuting to and from work are not compensable, but find the Board’s argument that Holcomb is applicable to the facts of this case unpersuasive. Under the rationale of our older cases, if an employer had a contractual duty to transport its workers to and from work, injuries sustained as a result of the journey were compensable. If the employer, however, voluntarily provided its employees with transportation to and from work, any injuries sustained during the commute would not be compensable (see, Matter of Holcomb v Daily News, supra, at 605-606). In Holcomb, we abolished the traditional distinction between custom and contract, holding that "[a]n employer who assumes by custom or contract the responsibility to transport his employees must likewise bear the responsibility for the risks encountered in connection with the transportation. This is especially true when the employer is in exclusive control of the conveyance” (id., at 606-607). However, Holcomb in no way alters the fundamental principle of the Workers’ Compensation Law, which requires that for an injury to be compensable, there be some nexus between the accident and the employment.

In Holcomb, the record indicated that the Daily News had an established custom of permitting its truck drivers to regularly provide other News employees rides to work on its trucks. The company’s supervisors and dispatchers were aware of this practice, and the testimony indicated "that supervisors had gone so far as to criticize drivers for not having picked up employees” (id., at 605). Significantly, the record also contained findings of fact indicating that the employer actually derived a benefit from this practice. For these reasons, we upheld the Board’s determination that the Daily News had an established custom of transporting its workers, and that this practice was of some benefit to the employer, thereby rendering "the transportation an incident of the employment” (id., at 607).

The facts of Holcomb bear little resemblance to the facts before us now. Although claimant was permitted to travel on the subways free of charge, there is absolutely no evidence in the record to indicate that the Transit Authority assumed an obligation, either by contract or custom, to facilitate her travel to and from work (see, Matter of Kowalek v New York Consol. R. R. Co., 229 NY 489, 492-493). Moreover, noticeably absent from the record before us is any finding that the Transit Authority derived any benefit because claimant utilized her pass to commute to and from work. The pass was a fringe benefit, equivalent to added compensation, that could be used by Transit employees as they wished. Use of these passes was not limited to commuting, nor could we reasonably expect the Transit Authority to know which of its thousands of workers used the pass for that purpose. As we stated in Matter of Kowalek v New York Consol. R. R. Co. (supra, at 492-493), in exercising the right to use the subways, claimant made her own free choice whether to use the pass for commuting "and served [her] own convenience. The company was indifferent as to the way or means by which [s]he reached the place where the day’s work began.” (See also, Tallon v Interborough R. T. Co., supra.)

The Utica Avenue station could not have been within the precincts of claimant’s employment at the time of the accident, since her employment had terminated at 4:00 a.m. when she signed out of work in The Bronx. That claimant was employed by the Transit Authority, which provides mass transit services for the City of New York and was, therefore, in control of the stairs at Utica Avenue where the accident occurred, does not alter the relationship between claimant and the Transit Authority at the time of the accident. Claimant was a commuter, not an employee, using the subways as thousands of others do every day (Tallon v Interborough R. T. Co., supra). "[I]n a very technical and artificial sense”, it is true that claimant was on her employer’s premises when she was injured, but realistically, claimant was using the subway just as any other member "of the public, whether they have free passes or not” (1 Larson, Workmen’s Compensation Law § 17.20, at 4-223). That claimant also coincidentally was an employee of the Transit Authority, standing alone, is not sufficient to create a relationship between her accident and her employment.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the claim dismissed.

Hancock, Jr., J.

(dissenting). I would affirm. The Workers’ Compensation Law was enacted by the Legislature for economic and humanitarian reasons to protect employees and their families by providing "no-fault” recovery for injuries arising out of and in the course of employment (Matter of Richardson v Fiedler Roofing, 67 NY2d 246, 250-251; Surace v Danna, 248 NY 18, 20-21). To carry out this purpose and to implement the underlying legislative policy, the Legislature created the Workers’ Compensation Board and entrusted it with the authority of determining whether particular claims are compensable (see, Workers’ Compensation Law §§ 10, 20). Respecting this broad delegation of authority, we have consistently held that the Board’s factual findings and the inferences it draws therefrom are conclusive on the courts if supported by substantial evidence (see, Matter of Richardson v Fiedler Roofing, supra, at 249-250; Matter of Malacarne v City of Yonkers Parking Auth., 41 NY2d 189, 193). Even where the facts are undisputed, the Board’s determination of whether a particular injury is compensable is a mixed question of law and fact which is beyond our review unless it lacks a rational basis or is based on erroneous legal principles (see, Matter of Fisher [Levine], 36 NY2d 146, 150; Matter of Van Teslaar [Levine], 35 NY2d 311, 317-318; see also, Matter of Richardson v Fiedler Roofing, supra). Here, I believe that the Board’s determination that claimant is entitled to compensation is rational, consistent with established case law, and supported by substantial evidence. I, therefore, respectfully dissent.

On December 15, 1983, claimant, an employee of appellant Transit Authority, completed her shift at the Woodlawn Avenue station and, using her employee pass, boarded a Transit Authority train. After disembarking at the Utica Avenue station, claimant, while climbing the subway stairs, slipped, fell, and injured her knee. Following a hearing, the Referee found that claimant was still on her employer’s premises when she was hurt and that, therefore, she was entitled to compensation. On appeal the Board affirmed the Referee’s decision. It found that although claimant had completed her tour of duty she was still in uniform and was a representative and agent of the Transit Authority, that claimant had traveled to the Utica Station using the free pass supplied by the Transit Authority, that the accident occurred on the employer’s premises and in the precincts of employment and that, therefore, the injury arose out of and in the course of employment. On appeal the Appellate Division affirmed the Board’s determination.

The Board’s conclusion accords with existing precedents. The general rule is that an injury sustained on the employer’s premises while going to or coming from work is compensable as arising out of and in the course of employment (see, Matter of Husted v Seneca Steel Serv., 41 NY2d 140, 142; Matter of Bennett v Marine Works, 273 NY 429, 431; Matter of De Voe v New York State Rys., 218 NY 318, 320; Matter of Leatham v Thurston & Braidich, 264 App Div 449, affd 289 NY 804; Matter of Torio v Fisher Body Div., 119 AD2d 955, 956; Matter of Thompson v New York Tel. Co., 114 AD2d 639; Matter of Grimaldi v Shop Rite Big V, 90 AD2d 608; Matter of McGrath v Chautauqua County Home, 31 AD2d 557; Matter of Babkees v Electrolux Corp., 4 AD2d 710). That the accident actually happens within the confines of the employer’s property is not, however, a sine qua non of recovery. The Board, in its discretion, may find that injuries to employees going to or coming from work which happen in areas adjacent to or near the employer’s property — e.g., an adjacent parking lot or the public highway outside the gate where the employees turn in —may be compensable (see, Matter of Husted v Seneca Steel Serv., supra, at 144-145; Matter of Brooks v New York Tel. Co., 57 NY2d 643, affg for reasons below 87 AD2d 701; Matter of Marquette v New York Tel. Co., 122 AD2d 479, 480; Matter of Bernard v Holiday House, 110 AD2d 941; Matter of Borelli v New York Tel. Co., 93 AD2d 940; cf., Matter of Holcomb v Daily News, 45 NY2d 602, 606-607 [compensation awarded to employee injured some distance from place of work while using transportation customarily provided by employer]).

Here, the Board found that, when she was injured, claimant was not only still "within the precincts of the employment”, but also that she "was wearing her uniform at the time [which] makes her a representative and agent of the employer from whom directions could be asked by members of the traveling public”. The Board also noted that claimant had utilized the free pass provided by the Transit Authority to travel from the Woodlawn Avenue station to the Utica Avenue station. The Board’s determination that, based on these facts, claimant’s accident arose out of and in the course of her employment is consistent with the above principles and should be affirmed.

As the basis for its decision to overrule the Board the majority relies on older decisions of our court in Matter of Kowalek v New York Consol. R. R. Co. (229 NY 489) and Tallon v Interborough R. T. Co. (232 NY 410) and our affirmance in Matter of Murphy v New York City Tr. Auth. (38 AD2d 346, affd no opn 33 NY2d 878). These cases, in my view, are no longer good authority. They held that transit or railroad employees injured while using free passes on their employer’s transportation facilities in going to or from work were not entitled to compensation because: (1) the transportation was not provided as part of the contract of employment, the employee was free to use other methods of transportation, and the employer was indifferent as to what means was used, and (2) the transportation facilities were not provided exclusively for the employee’s use but for the benefit of the general public (see, Tallon v Interborough R. T. Co., supra, at 415; Matter of Kowalek v New York Consol. R. R. Co., supra, at 493). Recent decisions of our court have undercut the validity of these reasons.

In Matter of Holcomb v Daily News (45 NY2d 602, supra) we replaced the inflexible Matter of Kowalek-Tallon rule requiring that the transportation be part of the employment contract with "a more rational and sensible” one allowing recovery where the employer has "a frequent and regular practice” of providing such transportation (45 NY2d, supra, at 606-607). The basis for the rejected contractual rule — the employer’s indifference and the employee’s freedom of choice — must logically be deemed to have been rejected as well.

The second reason for denying recovery in the older cases— that the transportation facilities were open to the general public — has also been abandoned. In Matter of Husted v Seneca Steel Serv. (41 NY2d 140, 144, supra) we held that the mere fact that an accident occurs in an area open to the public does not necessarily negate the right to compensation. Moreover, in Matter of Holcomb (supra, at 607) we stated that it "would make little sense to negate the employer’s obligation” solely because the method of conveyance "used to transport the employees is at the same time used for another purpose” (see also, Matter of Brooks v New York Tel. Co., 57 NY2d 643, supra; Matter of Marquette v New York Tel. Co., 122 AD2d 479, supra; Matter of Borelli v New York Tel. Co., 93 AD2d 940, supra; Matter of Berry v Gertz, Inc., 21 AD2d 708).

Even though I believe that Matter of Holcomb and the fact that the transportation was furnished by the employer would support a finding of compensation here, it is unnecessary to rely solely on Matter of Holcomb because the Board’s findings that claimant was still within the precincts of her employment and that she was still an agent of the Transit Authority at the time of the accident provide independent grounds for allowing recovery. But, in any event, I see no valid basis for distinguishing Matter of Holcomb. The key factor in Matter of Holcomb was that the employer regularly and frequently, albeit informally, supplied its employees with transportation to and from work. Here, it is not disputed that the Transit Authority had a formal policy of providing its employees with a pass so that they could ride its trains for free and that at the end of the workday the employees would use it to travel home.

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

Order reversed, etc.

      . It should be noted that the majority’s position and the principles it relies on are opposed to the weight of American authority (see, 14 Am Jur 2d, Carriers, § 759; 82 Am Jur 2d, Workmen’s Compensation, § 256; Owens v Southeast Ark. Transp. Co., 216 Ark 950, 228 SW2d 646; City & County of San Francisco v Industrial Acc. Commn., 61 Cal App 2d 248, 142 P2d 760; Radermacher v St. Paul City Ry. Co., 214 Minn 427, 8 NW2d 466; Micieli v Erie R. R. Co., 131 NJL 427, 37 A2d 123; Brown v Pittsburgh Rys. Co., 197 Pa Super 68, 177 A2d 5 [equally divided court]).

      . Moreover, it should be noted that Tallon v Interborough R. T. Co. (232 NY 410) was a negligence case and in Matter of Murphy v New York City Tr. Auth. (38 AD2d 346, affd 33 NY2d 878) the Board determined the claimant was not entitled to recovery. Thus, in neither case were we required, as here, to reject the Board’s decision in order to reach our holding of no recovery.


author: Per Curiam.

text:
    In the Matter of Joseph Harris, a Judge of the Albany County Court, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued May 25, 1988;
    decided July 6, 1988

      POINTS OF COUNSEL

      Richard A. Kohn for petitioner.
    I. Petitioner acted on the basis of a reasonable interpretation of Canon 5B of the Code of Judicial Conduct and its counterpart section 100.5 (b) of the Rules Governing Judicial Conduct (Rules of Chief Administrator of Courts [22 NYCRR 100.1 et seq.J) as authorizing his participation in the educational program at the courthouse under the guidelines directed by him. (Trio Distrib. Corp. v City of Albany, 2 NY2d 690; Connally v General Constr. Co., 269 US 385.) II. An "appearance of impropriety” charge cannot be sustained on the basis of conduct undertaken with a reasonable and good-faith belief that it is proper, or on the basis of conduct that is wholly innocuous and innocent. (Matter of Spector v State Commn. on Judicial Conduct, 47 NY2d 462; Matter of Schilling, 51 NY2d 397; Matter of Cunningham, 57 NY2d 270; Matter of Lonschein, 50 NY2d 569; Matter of Sims, 61 NY2d 349.) III. Petitioner was cooperative in the Commission’s investigation and at all times demonstrated an awareness of and sensitivity to the high ethical standards expected of the judiciary.

      Gerald Stern and Jean M. Savanyu for respondent.
    Petitioner’s participation in a charitable fund-raising activity violated established ethical standards and is properly subject to discipline.
   OPINION OF THE COURT

Per Curiam.

On April 17, 1986, petitioner, together with other county officials, participated in the "Jail Bail for Heart” — an event held at the Albany County Courthouse at the conclusion of the annual fund drive for the American Heart Association. The "Jail Bail for Heart” was a scheme in which mock criminal charges were prepared and served on the fund drive solicitors. The Sheriff brought the solicitors to the courthouse to appear before petitioner where they were "prosecuted” by the District Attorney and "fined” by petitioner in the amount of money they had collected. The collected funds were turned over to the Heart Association either in the courtroom or elsewhere in the courthouse. Although petitioner did not actually engage in the raising or soliciting of funds, nevertheless, his role was clearly a part of the over-all fund-raising effort. We conclude, therefore, that the Commission did not err in finding that petitioner violated both the letter and the spirit of section 100.5 (b) (2) of the Rules Governing Judicial Conduct (Rules of Chief Administrator of Courts [22 NYCRR 100.1 et seqj) which prohibits Judges from soliciting funds for charitable organizations or using the prestige of their office for that purpose.

We do not accept petitioner’s argument that his conduct was excused because he read section 100.5 (b) as permitting his conduct or because he had done the same thing the year before without warning or complaint from the Commission and therefore assumed that his participation was proper. Similarly, we do not accept petitioner’s contention that, by way of sanction, the Commission was obliged to give him only a warning, because it had done so previously in connection with a similar charge involving another Judge. That the Commission might have discharged its own function differently or more effectively, given the circumstances, by acting swiftly and informally to avoid further breach of the rules, rather than by initiating a full-blown adversarial proceeding culminating in public admonition, does not alter the fact that petitioner violated the rules and is appropriately sanctioned for his conduct.

Accordingly, the determined sanction of admonition should be accepted, without costs.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion.

Determined sanction accepted, without costs.


author: Bellacosa, J.

text:
    In the Matter of the County of Monroe’s Compliance with Certain Zoning and Permit Requirements of the City of Rochester in Connection with the City/County Airport Expansion. City of Rochester, Appellant; County of Monroe, Respondent.
    Argued September 15, 1988;
    decided October 20, 1988

      POINTS OF COUNSEL

      Louis N. Kash, Corporation Counsel (Ellen A. Anderson of counsel), for appellant.
    I. Under the governmental-proprietary test, the Monroe County airport is proprietary in nature and subject to local zoning laws. (Nehrbas v Incorporated Vil. of Lloyd Harbor, 2 NY2d 190; Little Joseph Realty v Town of Babylon, 41 NY2d 738; Ricotta v City of Buffalo, 3 Misc 2d 625; Town of E. Hampton v Lamb, 9 Misc 2d 1042, 6 AD2d 829; Pueblo Aircraft Serv. v City of Pueblo, 679 F2d 805; Anderson v Jackson Mun. Airport Auth., 691 F2d 742; Bowling v City of Roanoke, 568 F Supp 446; Western Air Lines v Port Auth., 658 F Supp 952, 817 F2d 222; Matter of County of Broome v Commuter Airlines, 83 AD2d 742, 55 NY2d 601; People v Rodriguez, 115 Misc 2d 866.) II. Notwithstanding the governmental-proprietary distinction in New York, public policy dictates that the County of Monroe respect the Rochester City zoning code. (Basso v Miller, 40 NY2d 233; County of Nassau v South Farmingdale Water Dist., 62 AD2d 380, 46 NY2d 794.)

      Patrick M. Malgieri, County Attorney (Ann M. Kerwick of counsel), for respondent.
    I. A municipality is not subject to zoning restrictions in the performance of its governmental functions. (County of Westchester v Village of Mamaroneck, 22 AD2d 143, 16 NY2d 940; E. B. Metal & Rubber Indus. v Washington, 102 AD2d 599.) II. The operation of the Greater Rochester International Airport is a governmental (as opposed to a proprietary) activity of the County of Monroe. (Nehrbas v Incorporated Vil. of Lloyd Harbor, 2 NY2d 190; Little Joseph

      Realty v Town of Babylon, 41 NY2d 738; Ricotta v City of Buffalo, 3 Misc 2d 625; Amersbach v City of Cleveland, 598 F2d 1033; Pueblo Aircraft Serv. v City of Pueblo, 679 F2d 805; Matter of Ruderman v Town Bd., 58 AD2d 939; County of Nassau v South Farmingdale Water Dist., 62 AD2d 380.) III. Public policy dictates that the County of Monroe should be immune from the City of Rochester’s zoning restrictions for airport related projects. (Garcia v San Antonio Metro. Tr. Auth., 469 US 528; New York v United States, 326 US 572; Nehrbas v Incorporated Vil. of Lloyd Harbor, 2 NY2d 190; Little Joseph Realty v Town of Babylon, 41 NY2d 738.)
   OPINION OF THE COURT

Bellacosa, J.

Should the expansion, with accessory uses, of the Greater Rochester International Airport by the County of Monroe be subject to the site plan approval requirements of the City of Rochester? Based on General Municipal Law § 350 and on the balancing of public interests, we agree with the result at the Appellate Division that it should not.

The facts before the Appellate Division, pursuant to CPLR 3222 (b) (3), are that the airport is owned and operated by the County and is located substantially in the City. Between 1984 and 1986, the County proposed and approved amendments to its master plan for the airport, including expansion of the main terminal, improvement of the runway apron, and addition of an enclosed parking garage, an air freight facility, a hotel and a temporary parking facility for use during construction of the enclosed parking facility. All improvements were on property located wholly within the City.

The County initially submitted a site plan application to the City in February 1987, for all of the planned improvements except the temporary parking facility, the air freight facility, and the runways. The City requested additional information concerning the improvements and compliance with the State Environmental Quality Review Act. The County responded that the planned uses (with the exception of the hotel, which is not in issue in this case) were governmental and immune from City site plan oversight, and that its prior practice of keeping the City apprised of airport proposals had been only a courtesy, not an acquiescence to City review. The City asserted review jurisdiction based on the proprietary classification test.

The Appellate Division unanimously declared that the "Rochester City Code § 115-30 D (7) and City permit requirements do not apply to the expansion” (131 AD2d 74, 80) based on the traditional governmental versus proprietary categorization. Alternatively, it noted that since "the governmental versus proprietary distinction is of ancient vintage” and "may be unconvincing” (id., at 79), the Rochester ordinances were nonetheless inapplicable because the State enabling legislation, General Municipal Law § 350, impliedly frees the County operation of the airport from City control. While the parties’ arguments concentrate on the governmental-proprietary classification, both acknowledge that the test may have outlived its usefulness.

We conclude that the time has come for retiring this labeling device. In its place, a "balancing of public interests” analytic approach will be substituted. Talismanic application of the old test "beg[s] the critical question of which governmental interest should prevail when there is a conflict between the zoning ordinance of one political unit and the statutory authority of another unit to perform a designated public function” (Note, Governmental Immunity from Local Zoning Ordinances, 84 Harv L Rev 869 [1971]).

The governmental-proprietary function test, as traditionally applied in this State to land use, was borrowed from the field of tort liability as derived from the absolute sovereign immunity doctrine (Nehrbas v Incorporated Vil. of Lloyd Harbor, 2 NY2d 190, 194; compare, County of Westchester v Village of Mamaroneck, 22 AD2d 143, 148-149, affd 16 NY2d 940). Under the old test, a municipality is immune from zoning regulations if the uses qualify as governmental (see, Nehrbas v Incorporated Vil. of Lloyd Harbor, supra [village immune from own zoning ordinance]; Village of Larchmont v Town of Mamaroneck, 239 NY 551 [village immune from town ordinance]; Oswald v Westchester County Park Commn., 234 NYS2d 265, affd 18 AD2d 1139 [county immune from town ordinance]). However, a municipality has been subject to such prescriptions when it acts in a corporate or proprietary capacity (Little Joseph Realty v Town of Babylon, 41 NY2d 738, 742 [operation of asphalt plant]).

The test has surely been on shaky ground for a long time. "Even during its heyday, the distinction between 'governmental’ and 'proprietary’ functions of government was subjected to a 'veritable landslide’ of criticism and was labeled an 'enigma’ and an ’absurdity’ [citations omitted]. The abandonment of the rule of sovereign immunity has virtually destroyed the only real basis for the creation of the distinction” (County of Nassau v South Farmingdale Water Dist., 62 AD2d 380, 387, affd 46 NY2d 794, 796 [in affirming, this court added, "the demarcation between governmental or proprietary interests in property owned or operated by government or its subdivisions no longer is as clear as it was in the past”]).

The Supreme Court itself noted in Garcia v San Antonio Metro. Tr. Auth. (469 US 528, 531), overruling National League of Cities v Usery (426 US 833), that an "attempt to draw the boundaries of state regulatory immunity in terms of 'traditional governmental function’ is not only unworkable but is also inconsistent with established principles of federalism”. The court observed that the governmental function rationale of National League of Cities v Usery (id.) had been construed as providing immunity from regulation in the governmental operation of a municipal airport (Amersbach v City of Cleveland, 598 F2d 1033, 1037-1038 [6th Cir]), but not for the regulation of air transportation (Hughes Air Corp. v Public Utils. Commn., 644 F2d 1334, 1340-1341 [9th Cir]). Consistent with our own court’s observation in Nehrbas v Incorporated Vil. of Lloyd Harbor (2 NY2d 190, 194, supra), the Supreme Court in Garcia (supra) concluded that an organizing principle behind the test’s application was not apparent and, thus, it discarded the governmental-proprietary function label in the field of regulatory immunity under the Commerce Clause.

Contradictions in governmental function designations have even cropped up within traditionally provided municipal services. In O’Brien v Town of Greenburgh (239 App Div 555, affd without opn 266 NY 582), for example, we affirmed an Appellate Division holding that the collection and disposal of garbage was a proprietary function. Twenty-two years later, we distinguished that holding, concluding that disposal of rubbish was a governmental function, and allowed the storage of garbage trucks in a residential area contrary to village zoning restrictions (Nehrbas v Incorporated Vil. of Lloyd Harbor, 2 NY2d 190, 195, n 1, supra). Such contradictions unmask the illusory benefit of the litmus governmental-proprietary distinction (see, Township of Washington v Village of Ridgewood, 26 NJ 578, 584, 141 A2d 308, 311; City of Pittsburgh v Commonwealth of Pennsylvania, 468 Pa 174, 178-179, n 4, 360 A2d 607, 609-610, n 4). ”[T]he reasoned balancing of the competing public and private interests essential to an equitable resolution of such conflicts has been forsaken for a mechanical application of convenient labels” (Note, Governmental Immunity from Local Zoning Ordinances, 84 Harv L Rev 869, 872 [1971]; Blackstone Park Improvement Assn. v Rhode Island Bd. of Stds. & Appeals, 448 A2d 1233, 1238 [RI]). One often cited denunciation of the imprecision of the governmental-proprietary function test contends that “no satisfactory basis for solving the problem whether the activity falls into one class or other has been evolved [and] [t]he rules sought to be established are as logical as those governing French irregular verbs” (Seasongood, Municipal Corporations: Objections to the Governmental or Proprietary Test, 22 Va L Rev 910, 938).

The American Law Institute and a great many States have adopted a balancing of public interests approach to resolve such land use disputes (see, 4 Rathkopf, Zoning and Planning, at 53-48, n 17 [4th ed]; Model Land Dev Code §§ 7-301, 7-304, 12-201). This balancing approach subjects the encroaching governmental unit in the first instance, in the absence of an expression of contrary legislative intent, to the zoning requirements of the host governmental unit where the extraterritorial land use would be employed (Rutgers State Univ. v Piluso, 60 NJ 142, 152, 286 A2d 697, 702). Then, among the sundry related factors to bé weighed in the test are: “the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interests” (id., 60 NJ, at 153, 286 A2d, at 702). In Orange County v City of Apopka (299 So 2d 652, 655 [Fla App]), the catalogue of potential factors to be considered by the reviewing court was expanded to include the applicant’s legislative grant of authority, alternative locations for the facility in less restrictive zoning areas, and alternative methods of providing the needed improvement (see, Lincoln County v Johnson, 257 NW2d 453, 458 [SD]; Blackstone Park Improvement Assn. v Rhode Island Bd. of Stds. & Appeals, 448 A2d 1233 [RI], supra). Another important factor is intergovernmental participation in the project development process and an opportunity to be heard. Realistically, one factor in the calculus could “be more influential than another or may be so significant as to completely overshadow all others”, but no element should be “thought of as ritualistically required or controlling” (Rutgers State Univ. v Piluso, 60 NJ 142, 153, 286 A2d 697, 703, supra).

Dealing first with the legislative intent factor in the instant case, our Legislature did not expressly provide that the operation of the airport should be immune from all land use oversight by the City of Rochester. General Municipal Law § 350 (1) provides, in part, however, "[w]hen the airport or landing field is to be located in whole or in part outside the boundaries of the municipality seeking to establish or construct the facility, the approval of the local legislative body of the city, town or village within which the facility will be located shall be obtained [emphasis added].” Here, the airport is, of course, situated within the County and, also concentrically, within the boundaries of two separate townships and the City. Moreover, General Municipal Law § 350 is a provision dedicated to the establishment and operation “of a city, county, village or town” airport, and the restrictive portion previously quoted, by its terms, does not subject a “county” to the land use provision of lesser municipalities. Thus, the Legislature, by reasonable and natural interpretation of the entire section, exempted the County from the preapproval requirement of the City. Finally, competing land use restrictions and policy choices among these various municipalities could otherwise foil the fulfillment of the greater public purpose of promoting intra- and interstate air commerce.

Equally significant under the new test are these additional public interest factors in this case: the dispute involves a County plan which seeks to expand an existing use; given the existing land use, there is no other practical location for the proposed use; the expansion was subject to County land use oversight approval, including public hearings and a comment period in which the City could have participated; there is no express City oversight authority in the State enabling legislation; no detriment to adjoining landowners, as opposed to competing political interests, is alleged; and the nature of an international municipal airport, serving interstate and intrastate commerce goals, is in both the local and greater public interest.

That a portion of the planned improvements will be leased out for operation does not, in the context of this airport expansion case, affect the result. The Legislature expressly contemplated leases by a county for the operation or use of all or part of the county airport “for aviation purposes and for other purposes required for or necessary to the efficient and successful operation of an airport” (General Municipal Law § 352 [5]).

Some 60 years ago, well before the congested, common air and space age of today, Chief Judge Cardozo presciently captured the public importance of municipal airports in Hesse v Rath (249 NY 436, 438): "A city acts for city purposes when it builds a dock or a bridge or a street or a subway (Sun P. & P. Assn. v. Mayor, 152 N. Y. 257). Its purpose is not different when it builds an airport (City of Wichita v. Clapp, 125 Kans. 100). Aviation is today an established method of transportation. The future, even the near future, will make it still more general. The city that is without the foresight to build the ports for the new traffic may soon be left behind in the race of competition. Chalcedon was called the city of the blind, because its founders rejected the nobler site of Byzantium lying at their feet. The need for vision of the future in the governance of cities has not lessened with the years. The dweller within the gates, even more than the stranger from afar, will pay the price of blindness.”

We thus hold that the expansion of the Monroe County Airport is free of land use oversight from the City of Rochester. The airport terminal, parking facilities, and air freight facility are embraced within the immunity from the requirements of the City’s land use laws because they constitute accessory uses customarily incidental to an airport operation (see, Matter of De Mott v Notey, 3 NY2d 116; Great S. Bay Mar. Corp. v Norton, 58 NYS2d 172, affd 272 App Div 1069).

Accordingly, the order of the Appellate Division should be affirmed, with costs.

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

Order affirmed, with costs.


author: Kaye, J.

text:
    In the Matter of James R. Ayers, Sr., as Sheriff of Tioga County, et al., Appellants, v Thomas Coughlin, as Commissioner of the Department of Correctional Services, et al., Respondents.
    Argued September 14, 1988;
    decided October 18, 1988

      POINTS OF COUNSEL

      Thomas A. Mitchell and Peter R. Kehoe for appellants.
    I. Respondent Coughlin and the Department of Correctional Services should be compelled to accept all State-ready inmates forthwith, which means without delay, and should not be permitted to pick and choose which inmates they will accept and when they will accept them. (Crespo v Hall, 85 AD2d 930, 56 NY2d 856; County of Onondaga v New York State Dept. of Correctional Servs., 97 AD2d 957, 62 NY2d 826; Phillips v Kantor & Co., 31 NY2d 307; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; General Inv. Co. v Interborough R. T. Co., 235 NY 133; County of Nassau v Cuomo, 121 AD2d 428, 69 NY2d 737; Matter of County of Monroe v Cuomo, 132 AD2d 1003, 70 NY2d 608; Benjamin v Malcolm, 629 F Supp 713, 803 F2d 46.) II. The trial court below properly enjoined enforcement of the regulations of the Commission of Correction. (McNulty v Chinlund, 62 AD2d 682; Anderson v County of Suffolk, 97 AD2d 448; Matter of Merced v Fisher, 38 NY2d 557; Howell v McGinity, 129 AD2d 60, 70 NY2d 607.) III. The Sheriffs are immediately affected by the failure of the Division of Parole to promptly process alleged parole violators, and therefore have legal standing to challenge the timeliness of parole revocation procedures. (Marcus v Village of Mamaroneck, 283 NY 325; Board of Educ. v Gootnick, 49 NY2d 683; Matter of Vergari v Ward, 88 Misc 2d 911; Police Conference v Municipal Police Training Council, 62 AD2d 416.) IV. Pursuant to Correction Law § 504, the responsibility for the designation of a substitute jail rests with the New York State Commission of Correction, and accordingly the counterclaim of respondents-appellants was properly dismissed by the trial court below. (Howell v McGinity, 129 AD2d 60; Matter of Adams v Meloni, 63 NY2d 868; Matter of Ratner v Michaels, 12 Misc 2d 165.) V. The petitioning Sheriffs have no obligation to join all other Sheriffs as parties to this litigation. (Henshel v Held, 13 AD2d 771; Brown v Lavine, 78 Misc 2d 1085; Teachers Coll. v Wolterding, 75 Misc 2d 465.)

      Robert Abrams, Attorney-General (Robert H. Cabble, O. Peter Sherwood, Lawrence S. Kahn, Barbara B. Butler and Frederic L. Lieberman of counsel), for respondents.
    I. The order of the court below should be affirmed because, consistent with respondent Coughlin’s duty to accept custody "forthwith”, the structure of New York’s correctional custody system, and a proper weighing of the circumstances in and responsive actions by the State and local correctional systems, respondent Coughlin cannot be compelled to accept custody of "State-ready” inmates and "return parole violators” on a State-wide basis within 10 days of notification that they are ready for transfer. (Crespo v Hall, 56 NY2d 856; County of Onondaga v New York State Dept. of Correctional Servs., 97 AD2d 957, 62 NY2d 826; Benjamin v Malcolm, 629 F Supp 713, 803 F2d 46; Matter of Adams v Meloni, 63 NY2d 868; Howell v McGinity, 129 AD2d 60, 70 NY2d 607; Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340; Oneida Sav. Bank v Tese, 108 AD2d 1042.) II. If relief is to be granted against respondent Coughlin, petitioners should first be required to join all the officials responsible for operating local jails and correctional facilities. (Henshel v Held, 13 AD2d 771; China Sugar Ref. Co. v Andersen, Meyer & Co., 6 Misc 2d 184; Cohen v Elliman & Co., 279 App Div 161; Benjamin v Malcolm, 629 F Supp 713, 803 F2d 46.) III. The order of the court below reversing the injunction barring the Commission from enforcing its minimum standards regulations should be affirmed as that injunction was based on a nonjusticiable claim and would have increased the likelihood of the very harm meant to be prevented by those regulations. (Town of Brookhaven v Chun Enters., 71 NY2d 953; McNulty v Chinlund, 62 AD2d 682; Matter of New York State Inspection, Sec. & Law Enforcement Employees v Cuomo, 64 NY2d 233; Klostermann v Cuomo, 61 NY2d 525; Howell v McGinity, 129 AD2d 60; Powlowski v Wullich, 102 AD2d 575.) IV. The courts below correctly determined that the Sheriffs lack standing to challenge the timeliness of parole revocation hearings conducted by the division. (County of Nassau v Cuomo, 69 NY2d 737; Matter of Dairylea Coop. v Walkley, 38 NY2d 6; Matter of Oil Heat Inst. v Public Serv. Commn., 90 AD2d 942; Matter of Lederle Labs. Div. v Public Serv. Commn., 84 AD2d 900; Morrissey v Brewer, 408 US 471; Lindsay v New York State Bd. of Parole, 48 NY2d 883; New York Hearing Aid Socy. v Children’s Hosp. & Rehabilitation Center, 91 AD2d 333, 59 NY2d 915; Matter of Vergari v Ward, 88 Misc 2d 911; Police Conference v Municipal Police Training Council, 62 AD2d 416.)
   OPINION OF THE COURT

Kaye, J.

Under New York’s bipartite corrections system, individuals ultimately subject to State custody may initially be confined in county jails, to be transferred to State correctional facilities after conviction and sentencing. This appeal focuses on the point when the State must accept State prisoners from county jails. In a situation where State and county correction officials each claim dangerous overcrowding at their facilities, the point when inmates must be accepted into State custody— already the subject of extensive litigation — obviously has great practical importance.

The legal issue centers on CPL 430.20 (1), which directs —with apparent simplicity — that "[w]hen a sentence of imprisonment is pronounced * * * the defendant must forthwith be committed to the custody of the appropriate public servant and detained until the sentence is complied with.” What is the meaning of the statutory term "forthwith?” We conclude that the State’s responsibility under the statute is to accept without delay inmates in local facilities who have been committed to the custody of the State Department of Correctional Services (see, Penal Law § 70.20). While there may be some limited flexibility in CPL 430.20 (1), the statute does not vest discretion in the State to delay accepting State-ready inmates on the basis of relative overcrowding at State and local facilities.

This article 78 proceeding is brought by 49 of the State’s 58 county Sheriffs, who are responsible for the custody of prisoners committed to the county jails, seeking essentially to compel respondent Commissioner of the State Department of Correctional Services (DOCS) to accept within 48 hours all State-ready prisoners and to timely process all alleged parole violators; petitioners also ask that, until these steps are taken, the State Commission of Correction (separately named as respondents) should be restrained from enforcing "minimum standards” regulations for the operation of the county jails.

Petitioners contend that, owing to State prison overcrowding, DOCS as a matter of policy has delayed accepting inmates from county jails, sometimes for six months or more, unless otherwise judicially ordered (see, e.g., Matter of Dooley v Coughlin, 72 NY2d 984 [decided today]; County of Nassau v Cuomo, 69 NY2d 737; Matter of County of Monroe v Cuomo, 132 AD2d 1003, lv denied 70 NY2d 608; Jackson v New York State Dept. of Correctional Servs., NYLJ, Sept. 28, 1988, at 24, col 2; Matter of Higgins v New York Dept. of Correctional Servs., Sup Ct, Erie County, [Kane, J.]; Matter of County of Monroe v Cuomo, 123 AD2d 141, lv denied 69 NY2d 612; Benjamin v Malcolm, 803 F2d 46, cert denied sub nom. Cuomo v Koehler, 480 US 910). The Sheriffs urge that failure to accept defendants and parole violators promptly, as directed by statute, has resulted in overcrowding of county jails, threatening the health, welfare and safety of petitioners, their staffs, the inmates and the community. Petitioners additionally contend that another State official, respondent Chief Executive Officer of the State Division of Parole, routinely and unreasonably delays parole revocation proceedings beyond the statutory periods (see, Executive Law § 259-i), with the result that alleged parole violators languish in county jails for months before their status is adjudicated.

While denying petitioners’ statistics and other allegations of the petition, respondent DOCS Commissioner does not dispute the underlying proposition that relative conditions at detention facilities are considered in determining when to accept inmates into State custody. Indeed, he contends that it is entirely appropriate under CPL 430.20 (1), as well as Correction Law §§ 70 (2), 137 and 504 (1) relating to safe, healthy and humane confinement, to weigh crowding in the respective facilities as well as the options available to the county officials to increase the capacity of local jails; he maintains that these are necessary components of the statutory term "forthwith.” Respondents additionally advance several defenses in their response to the petition, including the Sheriffs’ lack of standing to challenge the timeliness of parole revocation proceedings.

Supreme Court ordered that DOCS must accept inmates, including adjudicated parole violators, within 10 days after notification of State-readiness. Exigent circumstances — not including delay occasioned by overcrowded conditions in State facilities — might justify a further limited delay in the transfer of custody. The court went on to determine that it was fair and appropriate to restrain the Commission of Correction from enforcing its "minimum standards” regulations where a county facility’s overpopulation was due to the presence of State-ready inmates and return parole violators after the 10-day transfer period had elapsed; it dismissed petitioners’ cause of action against the Division of Parole, on account of lack of standing, and it dismissed their claim for damages as well as respondents’ counterclaim. A divided Appellate Division modified Supreme Court’s judgment in two respects. First, the court concluded that Supreme Court lacked authority to order that DOCS must accept prisoners within 10 days after notification of State-readiness, holding instead that the judiciary may define the term "forthwith” as a specific time period only where such relief is necessary on a case-by-case basis. Second, the Appellate Division concluded that it was inappropriate to restrain enforcement of the "minimum standards” regulations.

We now modify the Appellate Division order, reinstating the judgment of Supreme Court as to the meaning of "forthwith.”

I.

The modern-day prison overcrowding crisis has suddenly focused attention on the statutory term "forthwith,” a word which has been in the English language for centuries and in CPL 430.20 (1) and its predecessor since at least 1881, without significant controversy.

Three times recently we have considered the term. In Crespo v Hall (56 NY2d 856), we concluded that the relevant statutes permitted no discretion as to when juvenile offenders had to be accepted for transfer by the State Division for Youth (DFY), and that "forthwith” means without delay and cannot be read to permit transfer of juveniles whenever DFY deems it prudent. We left undisturbed a 10-day limit for transfer, there having been no showing that this period was inadequate for routine processing or otherwise unreasonable, and we further noted that the limit should yield in particular cases of demonstrated need. Similarly, in County of Nassau v Cuomo (69 NY2d 737, supra), this court affirmed the Appellate Division’s conclusions that "forthwith” in CPL 430.20 (1) means without delay and cannot be read to permit transfer to the custody of State officials only when they deem it prudent or appropriate. Again the court concluded that a 14-day period did not appear to be either inadequate for routine processing or otherwise unreasonable, leaving open the possibility for flexibility in particular cases of demonstrated need (cf., Matter of County of Onondaga v New York State Dept. of Correctional Servs., 62 NY2d 826). Those same principles guide our decision today.

We reiterate that the statutory mandate to commit individuals to the officials responsible for their custody “forthwith” means that it is to be done without delay, at once, promptly. "Forthwith” signals immediacy. It was in fact the very word used in the Code of Criminal Procedure of 1881 sections antedating CPL 430.20 (1). Those sections provided that when a judgment is pronounced a certified copy of entry must “forthwith” be furnished to the officer whose duty it is to execute the judgment; if a judgment of imprisonment, the defendant must "forthwith” be committed to the custody of the proper officer, and detained by him until compliance with the judgment (Code Grim Pro §§ 486, 487). The use of “forthwith” in those provisions, as in CPL 430.20 (1) — every one of them directory, none of them discretionary — leaves no doubt that their mandates were to be accomplished with dispatch. Thus, we conclude that State-ready inmates (including adjudicated parole violators) committed to State custody must be accepted by respondent Commissioner without delay, it being the statutory responsibility of the State to provide for their detention until their sentence is carried out.

While the Legislature made clear its intention that commitment to the custody of the appropriate public servant should take place without delay, its choice of “forthwith” rather than the specification of a hard-and-fast number of days left certain limited flexibility in implementing its mandate. But any such flexibility in "forthwith” simply cannot accommodate the Commissioner’s view that the statute vests discretion in DOCS to accept defendants from county jails when it deems it prudent or appropriate to do so (see, County of Nassau v Cuomo, 69 NY2d 737, supra; Crespo v Hall, 56 NY2d 856, supra).

Respondent Commissioner urges that the issue can be resolved only after a court analyzes the circumstances in each locality, determines which facilities are overcrowded and what steps are being taken to alleviate overcrowding, and "prioritizes” the allocation of space in State correctional facilities, dependent in part on a locality’s effort to alleviate overcrowding. Such a construction, however, ignores the fact that it is the State’s statutory responsibility to house these inmates and it ignores the plain direction of CPL 430.20 (1) that they are to be committed to appropriate custody without delay. The Legislature did not provide for transfer to State custody in the Commissioner’s discretion, upon his conclusion that State facilities were safe, healthy and humane, and inmates classified according to their needs; it said "forthwith.” Any limited flexibility in "forthwith” obviously must be reserved for exigent circumstances in particular cases, not for evaluation of relative capacity of State and local detention facilities that would in effect reallocate a portion of the State’s responsibility to the localities. The Commissioner’s construction robs the legislative direction "forthwith” of any force.

The Legislature specified no hard-and-fast number of days in enacting CPL 430.20 (1); nor do we in construing it. We conclude that Supreme Court’s order that transfer be accomplished within the 10 days of State-readiness comports with the mandate of CPL 430.20 (1). While "forthwith” has been held to mean as little as 48 hours (Benjamin v Malcolm, 629 F Supp 713, affd 803 F2d 46, cert denied sub nom. Cuomo v Koehler, 480 US 910, supra), here Supreme Court— exercising discretion appropriate to the judiciary in applying this statute — concluded that the term could also accommodate respondent Commissioner’s representation to the court that DOCS’ "logistic needs require that the Department plan for the receipt of new inmates ten days in advance.” There was no abuse of discretion in Supreme Court’s holding.

The Commissioner’s argument, in the end, is a plea to the courts to redistribute responsibility for housing the State’s vastly expanded prison population, placing a greater burden on the localities, who (he alleges) have — relative to the State— failed to meet increased needs by enlarging their facilities. Such a plea for change in the law is appropriately directed to the legislative and executive branches of government, not to the courts.

II.

Petitioners’ remaining contentions lack merit.

Both the trial court and the Appellate Division correctly determined that petitioner Sheriffs lack standing to challenge the alleged failure on the part of the Division of Parole to schedule timely parole revocation procedures under Executive Law § 259-i (3). Those statutory procedures were plainly designed for the protection of the parolees, and are enforceable by them; they give the Sheriffs no role in the scheduling or conduct of the hearings (see, Matter of Sun-Brite Car Wash v Board of Zoning & Appeals, 69 NY2d 406, 414). And while petitioner Sheriffs urge that they are entitled to the extraordinary remedy of an injunction to halt enforcement of "minimum standards” regulations promulgated by respondent Commission of Correction (see, 9 NYCRR part 7040) to the extent that overcrowding of their facilities is caused by DOCS’ failure to act timely in accepting prisoners, they acknowledge that such an injunction would "never apply” if DOCS accepted prisoners committed to its custody within 10 days of State-readiness. In that this relief is ordered today, we conclude there is no need to consider whether an injunction would otherwise be appropriate or necessary.

Accordingly, the order of the Appellate Division should be modified, with costs, by reinstating the judgment of Supreme Court, Albany County, with respect to the meaning of "forthwith” in CPL 430.20 (1), and otherwise affirmed.

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

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

      . Petitioners’ request for class action certification was denied and is not before us. Respondents’ request for dismissal for failure to join all other officials responsible for operations of local facilities as "necessary parties” (CPLR 1001 [b] [2], [5]) was correctly denied on the ground that adequate relief can be granted without their joinder. Respondents’ contention that in order for a court to determine the meaning of "forthwith” it must "do a comparative analysis of particular circumstances in each locality and determine which localities are overcrowded and what efforts those localities have taken to alleviate overcrowding” is without merit.

      . Petitioners sought to compel timely acceptance of "State-ready” prisoners and adjudicated parole violators, which is the relief that was ordered by Supreme Court. There was no dispute between the parties as to the requirement of State-readiness.