author: Meyer, J. Jasen, J.

text:
    The People of the State of New York, Respondent, v Archie William Howard, Appellant.
    Argued June 3, 1980;
    decided July 3, 1980

      POINTS OF COUNSEL

      Henry Winestine and William E. Hellerstein for appellant.
    I. The order of the court below is appealable. (People v Blake, 35 NY2d 331; People v Mackell, 40 NY2d 59; Matter of Clayton v Clement, 33 NY2d 386; Shielcrawt v Moffett, 294 NY 180; Laird v Carton, 196 NY 169; Peace v Wilson, 186 NY 403; Lazarus v Metropolitan El. Ry. Co., 145 NY 581; Southwick v Southwick, 49 NY 510; People v Oden, 36 NY2d 382.) II. Evidence was illegally seized when police officers obtained it after pursuing appellant who had exercised his right to walk away from an inquiry based upon mere hunch. (People v De Bour, 40 NY2d 210; People v Lakin, 21 AD2d 902; People v Moore, 47 NY2d 911; Terry v Ohio, 392 US 1; United States v

      Wylie, 569 F2d 62, 435 US 944; United States v Price, 599 F2d 494; Illinois Migrant Council v Pilliod, 398 F Supp 882; People v Burns, 91 Misc 2d 1080; Brown v Texas, 443 US 47; People v Walker, 70 AD2d 828.) III. Evidence discarded during the course of illegal police conduct cannot be deemed abandoned. (People v Baldwin, 25 NY2d 66; Fletcher v Wainwright, 399 F2d 62; Massachusetts v Painten, 368 F2d 142, 389 US 560; People v Boodle, 47 NY2d 398.)

      Mario Merola, District Attorney (Cary W. Sucoff and Timothy J. McGinn of counsel), for respondent.
    The seizure of appellant’s bag was reasonable since the police inquiry and pursuit were warranted and, in any event, appellant abandoned the bag. (People v Howard, 65 AD2d 714; People v De Bour, 40 NY2d 210; United States v Price, 599 F2d 494; Terry v Ohio, 392 US 1; People v Rosemond, 26 NY2d 101; People v Archiopoli, 39 AD2d 748; Sibron v New York, 392 US 40; People v Kreichman, 37 NY2d 693; People v Schneider, 58 AD2d 817; People v Dread, 49 AD2d 401.)
   OPINION OF THE COURT

Meyer, J.

An individual to whom a police officer addresses a question has a constitutional right not to respond. He may remain silent or walk or run away. His refusal to answer is not a crime. Though the police officer may endeavor to complete the interrogation, he may not pursue, absent probable cause to believe that the individual has committed, is committing, or is about to commit a crime, seize or search the individual or his possessions, even though he ran away. Nor when the individual, cornered by his pursuers in the basement of a building and while looking for a way out of the basement, drops or throws a package he was carrying into a pile of junk, has he been shown to have intentionally abandoned the package so as to make a warrantless search and seizure permissible. The order of the Appellate Division should, therefore, be reversed, the motion to suppress should be granted and the indictment should be dismissed.

Indicted for criminal possession of a controlled substance in the first degree and criminal possession of a weapon in the third degree, defendant Howard moved to suppress the gun and drugs which formed the basis for the indictment. They had been taken from him by Officers Charles Hanley and Cornelius Brosnan, who on the day of the seizure were on anticrime patrol in The Bronx in plainclothes and in an unmarked automobile. At about 1 p.m., in broad daylight, on University Avenue in the vicinity of Father Zeiser Place (an area which had a high incidence of burglaries), the officers observed Howard crossing University Avenue diagonally in a southeasterly direction. Their curiosity was aroused by the fact that defendant was carrying what appeared to be a woman’s vanity case. As they passed defendant, both officers saw him look over his shoulder in their direction, in a manner described by Officer Hanley as "furtive”. Defendant looked in the direction of the car two or three more times until he reached the center of University Avenue. Then as Hanley pulled the car to the right side of the street, defendant reversed direction, walked to the west side of the street and proceeded south on the sidewalk.

The police car made a U-turn and once again the officers saw defendant look in their direction. As the car neared him, defendant’s pace quickened. As the car came parallel with defendant, Officer Brosnan displayed his police shield and said "Police Officer. I would like to speak to you.” Though looking directly at the officers, defendant ignored them and continued walking south. The police followed and at the next opening between parked cars, Brosnan repeated the same words, and began to get out of the car. Defendant, without saying anything, started to run, holding the vanity case to his chest like a football would be held. The officers pursued and were joined in the chase by Victor Dragaj, a college freshman. Defendant proceeded over an iron fence, through an alleyway and into the basement of a building, at which point, pursued by Dragaj, defendant threw the vanity case into a pile of junk in the corner and sought but was unable to escape through a door which was locked, or a small window on the far side of the room. Dragaj restrained defendant and was joined by Officer Brosnan, who asked defendant why he had tried to get away. About 25 seconds later they were joined by Officer Hanley, who identified himself as a policeman and asked about the vanity case or box. Dragaj pointed to it and Hanley retrieved it from the rubbish pile, which was beyond defendant’s reach, and immediately opened it, revealing a .38 caliber revolver and heroin in glassine envelopes. Hanley then placed defendant under formal arrest.

Criminal Term granted defendant’s motion to suppress, concluding that defendant’s flight could not escalate suspicion to anything more, that even if defendant’s flight made a stop and frisk permissible the officers went beyond the allowable scope of CPL 140.50 since defendant was no threat to the officers’ safety and the vanity case was outside the grabbable area, and that there had been no abandonment. The Appellate Division reversed on both grounds, "on the law and the facts” (65 AD2d 714). Since reversal was not on the law alone defendant’s application for permission to appeal was dismissed (46 NY2d 1080). Howard then pleaded guilty to criminal possession of a controlled substance and appealed as permitted by CPL 710.70 (subd 2). The Appellate Division having affirmed, without opinion (72 AD2d 503), leave to appeal was granted by a Judge of this court (48 NY2d 801).

Defendant argues that there was no justification for police action of any kind; that in any event he had a constitutional right to refuse to answer a police inquiry; that his exercise of that right by walking and then running away did not justify detention of him or seizure of the vanity case; and that as a matter of law there was no abandonment. While we hold that there was a sufficient basis to permit inquiry, we agree that defendant had the right not to answer, that his running did not, absent any indication that any crime had been or was about to be committed, permit detention; that there was no probable cause for defendant’s arrest; and that the vanity case had not been abandoned.

As we have recently had reason to reiterate in People v Belton (50 NY2d 447), "[t]he privacy interest of our citizens is far too cherished a right to be entrusted to the discretion of the officer in the field.” That privacy interest is protected by the mandate of the Fourth Amendment to the United States Constitution and section 12 of article I of our State Constitution both of which, in identical language, state: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.” It is protected as well by CPL 140.50, which outlines when a police officer may stop and search persons in a public place, and by decisional law expounding the common law and interpreting the constitutional and statutory safeguards.

The principles that have evolved seek to balance society’s interest in the detection and prevention of crime and in the protection of the lives and safety of law enforcement officers with the interest of individuals in living their lives free from governmental interference. Therefore, whether there has been an unreasonable breach of legitimate expectations of privacy involves consideration of (1) the nature and scope or severity of the interference with individual liberty, (2) the public interest served, and (3) the objective facts upon which the enforcement officer relied, in light of his knowledge and experience (see United States v Mendenhall, 446 US 544, 560 [Powell, J., concurring]; see, also, Brown v Texas, 443 US 47, 50-51; Dunaway v New York, 442 US 200, 211-214; Delaware v Prouse, 440 US 648, 654-655; Terry v Ohio, 392 US 1, 20-22, which it is argued affect the classifications we enunciated in People v De Bour, 40 NY2d 210).

We have no difficulty in concluding that the officers’ request for information from defendant was justified under those criteria. In an area beset by a high burglary rate defendant was seen carrying a woman’s vanity case by the officers, one of whom testified that it was not uncommon for a burglar to carry away loot in his victim’s luggage. Considering those facts together with defendant’s numerous glances at the officers’ car, his change of direction and his quickened pace, we conclude that, though the carrying by a man of a woman’s purse does not constitute probable cause (People v Davis, 36 NY2d 280, cert den 423 US 876) and though defendant could, the car being unmarked and the officers in plainclothes, have acted evasively out of fear for his own safety, the circumstances constituted a sufficient basis* for the inquiry made, which of itself constituted no more than a minor inconvenience to defendant (Davis v Mississippi, 394 US 721, 727, n 6, and cases cited, infra, p 591; see 3 La Fave, Search and Seizure, § 9.2).

There was, therefore, basis for questioning defendant, but there was nothing that made permissible any greater level of intrusion. The officers had no information that a crime had occurred or was about to take place, had not seen defendant do anything criminal, and were confronted only by facts susceptible of innocent interpretation (State v Saia, 302 So 2d 869 [La], cert den 420 US 1008). Presence in an area of "frequent burglaries” was an insufficient basis (People v Schanbarger, 24 NY2d 288, 291); in this day of unisex haircuts and clothing, the carrying of a woman’s vanity case was at best equivocal (People v Davis, 36 NY2d 280, cert den 423 US 876, supra; cf. People v Lakin, 21 AD2d 902); and defendant’s "furtive” movements (repeated glances, change of direction, quickened pace) were, the car being unmarked and the officers not in uniform as already noted, at best ambiguous (cf. People v Batista, 68 AD2d 515, 517; People v Towers, 49 AD2d 839; see Search and Seizure: "Furtive” Movement or Gesture as Justifying Police Search, Ann., 45 ALR3d 581, 600). The circumstances justified the inquiry made and would have justified the officers in keeping defendant under observation (People v Sobotker, 43 NY2d 559, 564) but were not a predicate for anything more (cf. Dunaway v New York, 442 US 200, 211-214, supra; Sibron v New York, 392 US 40, 64).

But while the police had the right to make the inquiry, defendant had a constitutional right not to respond. This is so both because the Fifth Amendment to the United States Constitution and its State counterpart (New York Const, art I, § 6) permitted him to remain silent and because the Fourth Amendment and its State counterpart (art I, § 12) protect him from detention amounting to seizure unless there is probable cause. As Mr. Justice Brandéis put it long ago in Olmstead v United States (277 US 438, 478), defendant had "the right to be let alone.”

There are surprisingly few cases explicitly so holding, probably because few individuals feel they can walk away or refuse to answer (see Illinois Migrant Council v Pilliod, 398 F Supp 882, 899, affd 540 F2d 1062, on reh 548 F2d 715; ALI Model Code of Pre-Arraignment Procedure [1975], p 257). No New York appellate opinion has dealt with the subject other than as it is touched upon inferentially in general discussion of the right to remain silent (e.g., People v Conyers, 49 NY2d 174), but it has been passed upon at Criminal Term and in out-of-State cases and legal commentaries. Thus, People v Burns (91 Misc 2d 1080, 1086 [Goldfluss, J.]), held that "What sets this Nation apart from others is that its system of criminal prosecution is accusatorial, not inquisitorial. A citizen may, if he so chooses, exercise the right to demand that the police secure evidence of his guilt from other sources than from out of his own mouth,” and in People v De Fillippo (80 Mich App 197, 202, revd on other grounds sub nom. De Fillippo v Michigan, 443 US 31) the Michigan Court of Appeals held that "While police may under certain circumstances intrude upon a person’s privacy by stopping him and asking questions (Terry v. Ohio, 392 U. S. 1; 88 S. Ct. 1868; 20 L. Ed. 2d 889 [1968]), there can be no requirement that the person answer.” In support of that holding the Michigan court cited the reference in Davis v Mississippi (394 US 721, 727, n 6) to "the settled principle that while the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes they have no right to compel them to answer.” Supporting authority is to be found in cases defining "seizure” by whether the individual interrogated had lost his "equal right to ignore his interrogator and walk away” (Terry v Ohio, 392 US 1, 33 [Harlan, J., concurring]; see, also, 392 US, at p 16 [majority opn]; 392 US, at p 34 [White, J., concurring]; accord United States v Mendenhall, 446 US 544, supra [Stewart, J., in opn in which Rehnquist, J., joined and with which Burger, Ch. J., Powell and Blackmun, JJ., did "not necessarily disagree”]). Other cases and authorities conceptually in accord with our holding are United States v Price (599 F2d 494); United States v Wylie (569 F2d 62, cert den 435 US 944); Commonwealth v Ellis (233 Pa Super 169); State v Tsukiyama (56 Hawaii 8); State v Evans (16 Ore App 189); People v Ortiz (18 Ill App 3d 431); Amsterdam, Federal Constitutional Restrictions on the Punishment of Crimes of Status, Crimes of General Obnoxiousness, Crimes of Displeasing Police Officers, and the Like (3 Grim L Bull 205, 228).

Nor can the failure to stop or co-operate by identifying oneself or answering questions be the predicate for an arrest absent other circumstances constituting probable cause (People v Samuels, 50 NY2d 1035; People v Berck, 32 NY2d 567, 574, cert den 414 US 1093; Brown v Texas, 443 US 47, supra; ALI Model Code of Pre-Arraignment Procedure [1975], p 300; but see 1 La Fave, Search and Seizure, § 3.6, subd [f], pp 673-675). This is because the failure to answer "cannot constitute a criminal act” (People v Schanbarger, 24 NY2d 288, 292, supra).

. That does not mean that the police in furtherance of their duties may not continue observation provided that they do so unobtrusively and do not limit defendant’s freedom of movement by so doing. Defendant’s flight, had there also been indicia of criminal activity, would have been an important factor in determining probable cause (Sibron v New York, 392 US 40, 66, 67, supra; People v Kreichman, 37 NY2d 693, 699; People v Dread, 49 AD2d 401, affd 41 NY2d 871; People v Schneider, 58 AD2d 817, 818), but where, as here, there is nothing to establish that a crime has been or is being committed, flight, like refusal to answer, is an insufficient basis for seizure or for the limited detention that is involved in pursuit (Brown v Texas, 443 US 47, 50, supra; Sibron v New York, supra; Wong Sun v United States, 371 US 471; People v Kreichman, 37 NY2d, at p 699, supra; State v Finklea, 313 So 2d 224 [La]; 1 La Fave, Search and Seizure, § 3.6, subd [e], p 669; ALI Model Code, p 298 ["The factors of flight and concealment are also attenuated to the point where they will not alone justify an arrest in cases where there is little or no probability that a crime has been committed”]). The circumstances existing at the moment defendant Howard was seized by Officer Brosnan did not constitute probable cause for arrest. The opening of the vanity case cannot be justified as incident to a lawful arrest, nor since it was as the Trial Judge found outside the grabbable area can it be justified under CPL 140.50 (subd 3). The contents of the vanity case must, therefore, be suppressed unless defendant abandoned it.

Property which has in fact been abandoned is outside the protection of the constitutional provisions (People v Pittman, 14 NY2d 885; People v Lopez, 22 AD2d 813; People v Prisco, 61 Misc 2d 730). We do not find it necessary to consider whether the facts of this case bring it within the concept of police action short of illegal seizure but sufficiently coercive to nullify an abandonment for Fourth Amendment purposes (see 1 La Fave, Search and Seizure, § 2.6, subd [b], pp 372-374; cf. Commonwealth v Barnett, 484 Pa 211), for we agree with the hearing Judge that intent to abandon cannot be found on the facts of this case.

Whether there was an abandonment is partly a matter of property law but essentially a question of constitutional law. There is a presumption against the waiver of constitutional rights. It is the People’s burden to overcome that presumption by evidence of " 'an intentional relinquishment or abandonment of a known right or privilege’ ” (Brookhart v Janis, 384 US 1, 4; Johnson v Zerbst, 304 US 458, 464; People v Whitehurst, 25 NY2d 389, 391). The proof supporting abandonment should "reasonably beget the exclusive inference of the throwing away” (Foulke v New York Cons. R. R. Co., 228 NY 269, 273, quoted with approval in United States v Cowan, 396 F2d 83, 87). So concealment in a trash can does not constitute an abandonment (Work v United States, 243 F2d 660, 662; State v Chapman, 250 A2d 203, 212 [Me]).

As the hearing Judge noted, the act of defendant in holding on to the case during the entire chase belies intention to abandon. Since Dragaj and the police were in hot pursuit, it cannot be found that defendant’s act in dropping or throwing the case in the corner while seeking to open or break down the door and window in the basement was an act "involving a calculated risk” rather than a spontaneous reaction to the necessity of evading his pursuers (see People v Boodle, 47 NY2d 398, 404, cert den 444 US 969) or that he purposefully divested himself of possession of the vanity case. Under those circumstances he cannot be said to have knowingly waived his constitutional protection against warrantless search of the case.

For the foregoing reasons, the order of the Appellate Division should be reversed, the motion to suppress should be granted and the indictment should be dismissed (see Matter of Forte v Supreme Ct. of State of N. Y., 48 NY2d 179).

Jasen, J.

(dissenting). Certainly, I have no quarrel with two of the conclusions reached by the majority, to wit: that there existed a sufficient basis for the police officers to approach defendant in order to ask questions (see People v De Bour, 40 NY2d 210); and that an individual has the absolute right to refuse to answer inquiries posed to him by law enforcement officers (see People v Rogers, 48 NY2d 167, 176 [dissenting opn]). However, I simply cannot agree with the majority’s holding that the police officers could not pursue defendant. Given the particular facts of this case, the officers were completely justified in both chasing and seizing defendant, and searching the vanity case. A contrary conclusion serves merely to deal another serious and unjustifiable blow to effective law enforcement.

This is another in a vast line of cases where the defendant asserts as his sole ground for reversal that the actions of the police officers violated his constitutionally guaranteed right to be free from unreasonable searches and seizures. (US Const, 4th Arndt; NY Const, art I, § 12.) While this observation surely does not relieve the courts of their responsibility of overturning a criminal conviction when a valid constitutional claim is asserted no matter how unpleasant the thought that a criminal will "go free because the constable has blundered” (People v De Fore, 242 NY 13, 21 [Cardozo, Ch. J.]), courts should not blindly reach out and find merit in a constitutional claim where none exists. It seems odd that an admittedly guilty person should be set free, especially where, as here, the police officers acted in a most reasonable manner.

As the majority candidly concedes, the police officers were justified in approaching defendant to request information. Defendant was observed in a high-crime area carrying a woman’s vanity case, an item of luggage often times used by a burglar when absconding with his bounty. Further, defendant cast numerous glances at the police officers when they passed him on University Avenue. As Officer Hanley pulled the car to the side of the road, defendant then changed direction to return to the far side of the street. Once the officers made a U-turn to approach defendant, his pace quickened in an obvious attempt to avoid confrontation.

Seeing these highly suspicious acts, the officers were absolutely justified in pulling their car alongside defendant and, after displaying a shield, requesting defendant to speak to them. In addition, the officers acted reasonably in following defendant a short distance to repeat their request. Certainly, the officers could have believed that defendant merely could not hear them when they first approached, due to traffic noise or the like.

Then, as Officer Brosnan began to get out of the car, defendant ran away, clutching the vanity case to his breast. The officers had yet to ask defendant a single question as to his activities, and certainly did not physically intimidate defendant. No guns were drawn, no coercive language was employed, and no binding orders were transmitted.

Yet, faced with these facts of an incriminating nature, the majority today holds that the officers could do no more than follow defendant to observe him from a distance. Such a conclusion borders on the absurd. The officers had every right, if not the obligation, to pursue defendant in order to investigate this highly suspicious conduct. In my opinion, once defendant ran away, the officers’ level of suspicion was elevated to one of probable cause, remembering that "[p]robable cause exists if the facts and circumstances known to the arresting officer warrant a prudent man in believing that [an] offense has been committed” by the person to be arrested. (People v Oden, 36 NY2d 382, 384; Brinegar v United States, 338 US 160, 175-176.)

It is true that flight from police, in and of itself, would not constitute a sufficient basis for arrest. However, it is equally as true that defendant’s flight is an important factor to be considered when determining whether probable cause existed. (See, e.g., Sibron v New York, 392 US 40, 66-67; People v Kreichman, 37 NY2d 693, 699; People v Schneider, 58 AD2d 817, 818; People v Dread, 49 AD2d 401, 405; People v Archiopoli, 39 AD2d 748.) Here, defendant’s flight certainly bolstered and confirmed the officers’ suspicion — based upon their prior observations — that defendant was engaging in criminal activity. Thus, the officers had probable cause to arrest defendant, and the arrest was entirely proper.

Nor can I accept the majority’s holding that defendant did not evince an intent to abandon the vanity case. I would agree completely with the unanimous Appellate Division that under the circumstances present here "there was an abandonment of the bag.” (65 AD2d, at p 714.)

As the above-stated analysis demonstrates, the action of the police officers in seizing defendant were totally reasonable and beyond reproach. Thus, this is not the typical case where the theory of abandonment is utilized to explain the dissipation of taint flowing from illegal police activity. (E.g., People v Boodle, 47 NY2d 398, cert den 444 US 969; People v Townes, 41 NY2d 97.) Instead, the record reveals that this is a case where defendant attempted to divest himself of the drugs and gun so that no incriminating evidence could be discovered by the police who were rightfully in pursuit.

When "[t]he actions of defendant indicate an intent to purposefully divest himself of possession of the [property]”, an abandonment will be said to have occurred. (People v Brown, 40 AD2d 527-528.) Here, there can be no doubt but that defendant, by throwing the vanity case on the pile of junk in the corner of the basement, intended to rid himself of the case containing incriminating evidence. He obviously did not harbor an expectation of retrieving the case, nor is there any evidence that he threw the case in the corner after the police arrived. Rather, defendant attempted to divest himself forever of the damning evidence before the law enforcement officers appeared. For this reason, the warrantless search of the vanity case was proper, inasmuch as defendant abandoned the case, thus relinquishing his privacy interest therein.

Accordingly, since the seizure of defendant and the search of the vanity case were eminently proper, I would affirm the order of the Appellate Division.

Chief Judge Cooke and Judges Jones and Fuchsberg concur with Judge Meyer; Judge Jasen dissents and votes to affirm in a separate opinion in which Judges Garríelo and Wachtler concur.

Order reversed, etc.

      . CPL 140.50 (subds 1, 3) read, in pertinent part:
      "1. [A] police officer may stop a person in a public place ** * * when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor * * * and may demand of him his name, address and an explanation of his conduct.
      * * *

        "3. When upon stopping a person under circumstances prescribed in [subdivision] one * * * a police officer * * * reasonably suspects that he is in danger of physical injury, he may search such person for a deadly weapon or any instrument, article or substance readily capable of causing serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons. If he finds such a weapon or instrument, or any other property possession of which he reasonably believes may constitute the commission of a crime, he may take it and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.”

      . While Officer Brosnan conceded that he was "curious as to what was in the bag,” his inquiry cannot be said to have resulted from "mere whim, caprice or idle curiosity” (People v De Bour, 40 NY2d, at p 217, supra) in light of the other circumstances, nor is there any indication that it was "undertaken with intent to harass” (id.).

      . (Cf. Walter v United States, 447 US —, n 11, 48 USLW 4807, 4810, n 11.)


source: Caselaw Access Project

author:
      Per Curiam.
     Fuchsberg, J. Meyer, J.

license: Public Domain

text:
    In the Matter of Gary Nicholson et al., Appellants-Respondents, v State Commission on Judicial Conduct et al., Respondents-Appellants. (And 5 Other Proceedings.)
    Argued April 23, 1980;
    decided July 1, 1980

      POINTS OF COUNSEL

      Maurice N. Nessen and Susan C. Ervin for appellants-respondents.
    I. The commission has shown no compelling need for the intrusions that it would work upon First Amendment freedoms by its administrator’s amended complaint and the investigation based on it. (Buckley v Valeo, 424 US 1; Gibson v Florida Legislative Committee, 372 US 539; Monitor Patriot Co. v Roy, 401 US 265; California Bankers Assn. v Shultz, 416 US 21; Bates v State Bar of Ariz., 433 US 350; N. A. A. C. P. v Alabama, 357 US 449; Bates v Little Rock, 361 US 516; Shelton v Tucker, 364 US 479; Pollard v Roberts, 283 F Supp 248, 393 US 14; Broadrick v Oklahoma, 413 US 601.) II. Apart from free speech issues, charge 3 of the administrator’s amended complaint is constitutionally defective under the Fourteenth Amendment: it is the product of a "perfectly vague” canon. (Coates v City of Cincinnati, 402 US 611; Grayned v City of Rockford, 408 US 104.) III. State law bars the commission’s investigation at this juncture: (i) Canon 7 is not the law; (ii) charge 2 is not a complaint of judicial misconduct; (iii) the commission’s investigation invades the jurisdiction of the State Board of Elections; (iv) appellants have not had a fair opportunity to challenge the commission’s use of an illegal first proceeding; and (v) the commission has not offered, as far as we have been allowed to see, a proper factual foundation for its inquisition. (Matter of Horn Constr. Co. v Fraiman, 34 AD2d 131, 29 NY2d 559; Matter of Sussman v New York State Organized Crime Task Force, 48 AD2d 154, 39 NY2d 227; Carlisle v Bennett, 268 NY 212; Matter of Temporary State Comm. on Living Costs & Economy v Bergman, 80 Misc 2d 448; Long Is. Coll. Hosp. v Catherwood, 23 NY2d 20; Matter of Gaglia v Starr, 59 AD2d 839; Matter of McPherson v New York City Housing Auth., 47 AD2d 828; People v Payne, 50 AD2d 840; Finn’s Liq. Shop v New York State Liq. Auth., 24 NY2d 647, 396 US 840; Silverthorne Lbr.

      Co. v United States, 251 US 385; People v Arocho, 85 Misc 2d 116.)

      Raymond S. Hack, Gerald Stern and Seth Halpern for respondents-appellants.
    I. The investigation by the commission of the conduct of Surrogate Marie M. Lambert with respect to the allegations of the amended administrator’s complaint is valid under the First and Fourteenth Amendments to the United States Constitution. (Buckley v Valeo, 424 US 1; Morial v Judiciary Comm. of State of La., 565 F2d 295, 435 US 1013; Halleck v Berliner, 427 F Supp 1225; Matter of Schamel, 46 AD2d 236, 36 NY2d 713; Elrod v Burns, 427 US 347; Matter of Spector v State Comm. on Judicial Conduct, 47 NY2d 462; Matter of Bolte, 97 App Div 551; People v Byron, 17 NY2d 64; People v Hochberg, 62 AD2d 239; People v La Carrubba, 46 NY2d 658.) II. The commission has acted in full compliance with the law of the State of New York. (La Rocca v Lane, 37 NY2d 575; Matter of State of New York v King, 36 NY2d 59; Matter of Nigrone v Murtagh, 36 NY2d 421; Matter of Jerry v Board of Educ., 75 Misc 2d 461, 44 AD2d 198, 35 NY2d 534; Matter of Greater N. Y. Corp. of Seventh Day Adventists v Commission on Human Rights of City of N. Y., 27 NY2d 898; Matter of Dondi v Jones, 40 NY2d 8; Young Men’s Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371; Wirtz v Laborers’ Union, 389 US 477; United States v Nixon, 418 US 683.) III. Section 45 of the Judiciary Law does not require sealing of the record of court proceedings. (People v Jelke, 308 NY 56; Cunningham v Stern, 93 Misc 2d 516; Matter of Hynes v Lerner, 44 NY2d 329.)
   OPINION OF THE COURT

Per Curiam.

This appeal involves a challenge under the Federal Constitution and State law to the authority of the New York State Commission on Judicial Conduct to investigate alleged improprieties by Marie Lambert in the conduct of her 1977 campaign for election as Surrogate of New York County.

The litigation has a tortured history, originating in oral and written complaints received by the commission concerning the solicitation of members of the Bar for attendance at a fund-raising event held on December 4, 1977 by Surrogate Lambert’s supporters. The commission determined to investigate and, in June, 1978, subpoenaed Gary Nicholson, Surrogate Lambert’s former campaign manager. Nicholson moved to quash the command to appear and produce documents concerning the 1977 campaign, urging First Amendment and State law grounds. On appeal from the denial of that motion, the Appellate Division sustained the subpoena insofar as it sought testimony and records concerning the December 4, 1977 fund raiser, finding that the inquiry was properly initiated by a written complaint about lawyer solicitations received by the commission as required by subdivision 1 of section 44 of the Judiciary Law. As to the remaining requests, the court held the appeal in abeyance and remitted to Special Term for an ex parte, in camera hearing to determine whether they were relevant to the investigation on an existent complaint (67 AD2d 649). Final decision by the Appellate Division was rendered following the hearing: the original complaint, while justifying the investigation into the December 4 event, did not authorize an inquiry into the entire campaign. The decision was without prejudice to a wider investigation if supported by a proper written complaint (Judiciary Law, § 44, subd 1) or the filing of an administrator’s complaint (Judiciary Law, § 44, subd 2) based on information concerning the entire campaign and not simply the complaints about the December 4 fund raiser (68 AD2d 851).

During the pendency of the Nicholson appeal, the commission received information concerning alleged campaign improprieties by Surrogate Lambert and her supporters, as well as alleged judicial misconduct following election. In March, 1979, an administrator’s complaint was filed, averring possible improper activities beyond the December 4 fund raiser. During the course of the commission investigation, subpoenas were issued to five former campaign workers: Joseph Krinsky, Shirley Krinsky, Vincent Catalfo, Carmelo Albino and Lorenzo De Luca, appellants here. They refused to answer questions unrelated to the December 4 fund raiser. Prior to and after the filing of the administrator’s complaint, the commission requested Surrogate Lambert’s appearance to answer questions. She was unable to appear.

In April, the commission filed an amended administrator’s complaint, alleging that (1) in connection with her 1977 campaign, Surrogate Lambert engaged in and attended fund-raising activities, acquainted herself with the identities of her contributors and otherwise improperly participated in the campaign; (2) during and after the campaign, cash contributions in excess of $100 were accepted, and expenses and contributions were not properly reported; and (3) after assuming office, Surrogate Lambert exercised her power of appointment on the basis of favoritism and not solely on the basis of merit, appointing contributors and others based on political considerations. The commission resubpoenaed Nicholson and also moved to compel the five campaign workers to comply with the subpoenas served by answering all questions relating to the allegations in the administrator’s complaint.

Nicholson and Lambert thereafter, by order to show cause, commenced an article 78 proceeding to enjoin further proceedings by vacating the administrator’s complaint. Motions were brought on seeking, among other relief, to consolidate the article 78 proceeding with the proceedings to compel compliance by the five campaign workers, to quash the subpoenas issued to Nicholson, to void the request for Surrogate Lambert’s appearance, and to seal the record. Following an ex parte hearing to determine the basis for the expanded investigation, Special Term granted the motions to consolidate and seal the record and denied further relief except to the extent of enjoining commission proceedings under item 2 of the complaint on the ground that there was no allegation of misconduct by a Judge.

On appeal, the Appellate Division modified, over a partial dissent, to the extent of vacating the injunction against investigating conduct with respect to item 2, thereby dismissing the article 78 petition in all respects. That court found from the record and the prior determinations no impediment to permitting the continuation of the investigatory stage of the proceedings, as the commission’s authority, the basis of the investigation and the relevancy of the requested disclosure were sufficiently demonstrated (72 AD2d 48). Nicholson, Surrogate Lambert and the five campaign workers now appeal the determination adverse as to them and the commission cross-appeals from the sealing of the record. For reasons that follow, and to the extent indicated, we modify.

As a preliminary matter, it must be determined whether an article 78 petition seeking relief in the nature of prohibition lies in these circumstances. Invocation of the extraordinary remedy of prohibition is appropriate "only when there is a clear legal right” (Matter of Dondi v Jones, 40 NY2d 8, 13) and only when the body or officer "acts or threatens to act without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction” (Matter of State of New York v King, 36 NY2d 59, 62). The remedy is available to prevent only judicial or quasi-judicial action (Matter of Dondi v Jones, supra, at p 13; Matter of B. T. Prods. v Barr, 44 NY2d 226); it may not be sought to control merely legislative, executive or administrative acts (see People ex rel. Bender v Milliken, 185 NY 35; Matter of Kaney v New York State Civ. Serv. Comm., 190 Misc 944, affd 273 App Div 1054, affd 298 NY 707; Note, Writ of Prohibition in New York— Attempt to Circumscribe an Elusive Concept, 50 St John’s L Rev 76, 84). Even when the petition presents a "substantial claim” of an absence of jurisdiction or an act in excess of jurisdiction, prohibition still may be deemed inappropriate after consideration of such factors as the "gravity of the harm which would be caused by an excess of power” or "whether the excess of power can be adequately corrected on appeal or by other ordinary proceedings at law or in equity” (La Rocca v Lane, 37 NY2d 575, 579; Matter of Wilcox v Dwyer, 48 NY2d 1003; see Note, 50 St John’s L Rev, at pp 97-98).

It must be emphasized that prohibition is not available to correct mere errors of law, procedural or substantive, in litigation (see Matter of State of New York v King, 36 NY2d 59, 62, supra). It is, rather, the means to prevent an arrogation of power in violation of a person’s rights, particularly constitutional rights (see Matter of Lee v County Ct. of Erie County, 27 NY2d 432, 437-438). Thus, the presentation of an arguable and substantial claim of such an excess of power generally results in the availability of a proceeding in the nature of prohibition (see La Rocca v Lane, supra, at p 581). It is immaterial to this basic determination whether the claim is determined adversely to the petitioner on the merits. That relief ultimately might be denied does not preclude the proceeding.

It cannot be disputed that the commission is vested with authority to investigate improprieties by members of the judiciary (see NY Const, art VI, § 22). The claim here, however, is that the investigation into allegedly improper campaign activities has a chilling effect on the exercise of First Amendment rights. The claim seeks to vindicate rights of political expression and association long cherished in our constitutional scheme (see Buckley v Valeo, 424 US 1, 25). If indeed the investigation impermissibly chills the exercise of these rights, the commission would be acting in excess of power and prohibition would be the appropriate remedy. That the issues could be raised on appeal from any disciplinary action taken is not a persuasive reason in this instance for denying the availability of the remedy. Thus, we may entertain the instant proceeding seeking prohibition.

We turn then to the merits of the application challenging on First Amendment grounds the commission’s authority to investigate the conduct of the 1977 campaign. It is urged that the investigation, the allegations supporting it and the rules of conduct upon which those allegations purportedly are based represent unconstitutional interferences with protected rights of political expression and association. The apparent basis for this contention is that the investigation, seeking disclosure of the details of campaign activities, itself impinges upon associational freedoms; that a judicial candidate has the unfettered "right” to solicit funds directly or participate in the solicitation; and that the prohibition against political appointments inhibits persons who might be in a position to receive such favored treatment from exercising their right to express support for the candidate. These arguments are unpersuasive.

Of course, the rights of political expression and association are at the heart of the First Amendment (see Buckley v Valeo, supra, at p 25). But not every interference with these rights, not every regulation of a political campaign, violates the constitutional command (see CSC v Letter Carriers, 413 US 548, 567). Even significant restrictions on protected First Amendment rights "may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms” (Buckley v Valeo, supra, at p 25). A proper analysis calls for examination of the degree of interference with the First Amendment interests, the strength of the governmental interest justifying the restriction and the means chosen to prevent the asserted evil (see Morial v Judiciary Comm. of State of La., 565 F2d 295, cert den 435 US 1013).

There can be no doubt that the State has an overriding interest in the integrity and impartiality of the judiciary. There is "hardly * * * a higher governmental interest than a State’s interest in the quality of its judiciary” (Landmark Communications v Virginia, 435 US 829, 848 [Stewart, J., concurring]; see, also, Morial v Judiciary Comm. of State of La., supra; cf. Trafelet v Thompson, 594 F2d 623, cert den 444 US 906). Charged with administering the law, Judges may not actually or appear to make the dispensation of justice turn on political concerns (cf. CSC v Letter Carriers, 413 US 548, supra). The State’s interest is not limited solely to preventing actual corruption through contributor-candidate arrangements. Of equal import is the prevention of the "appearance of corruption stemming from public awareness of the opportunities for abuse” (Buckley v Valeo, supra, at p 27; CSC v Letter Carriers, supra).

It is in light of these overriding interests that the investigatory activities of the body charged with policing the conduct of Judges must be examined. To further the State’s interest, the commission, when aware of acts which may constitute misconduct, must be free to conduct an investigation to determine whether formal charges are warranted. That such an investigation may touch upon political and associational rights is not sufficient to abort the investigation in its nascent stage. Misconduct by a Judge or judicial candidate cannot be shielded from scrutiny merely because it takes place in the political forum. The First Amendment implications, if any there be, are far outweighed by the State’s interest in the integrity of its judiciary.

Nor does the compelled disclosure sought by the commission impermissibly impinge upon the free exercise of associational rights protected by the First Amendment. It is undisputed that "significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest * * * [T]he subordinating interests of the State must survive exacting scrutiny * * * [TJhere [must] be a 'relevant correlation’ or 'substantial relation’ between the governmental interest and the information required to be disclosed” (Buckley v Valeo, 424 US 1, 64, supra, quoting, Bates v Little Rock, 361 US 516, 525, and Gibson v Florida Legislative Comm., 372 US 539, 546 [footnotes omitted]). Under this test, the disclosure sought here passes constitutional scrutiny.

Comprehensive disclosure requirements for political contributions and expenditures similar to New York’s (see, e.g., Election Law, § 14-102) withstood constitutional attack in Buckley. Such requirements were there justified by the governmental interests in providing the electorate with information about the source of funds and manner of expenditures, in deterring actual corruption and its appearance, and in detecting violations of permissible restrictions on the conduct of the campaign (Buckley v Valeo, supra, at pp 66-68). Most of the information sought by the subpoenas is no more than is statutorily required and thus, disclosure may not be avoided.

Those demands that go beyond the statutory requirements also must be obeyed. The State’s substantial concern for the subject of the investigation outweighs the claimed burdens on associational freedom asserted here. In furtherance of the interest in ferreting out corrupt practices, the commission may legitimately request information about solicitations for contributions and attendance at fund raisers. There is more than adequate support in the record to establish the requisite relationship between the disclosure sought and the issues to be clarified. It is not enough to avoid compelled disclosure of information relevant to the legitimate subject of inquiry merely to assert its potentially chilling effect (see Buckley v Valeo, supra, at pp 71-72). While public disclosure in the abstract might deter participation by some, or subject supporters to harassment or coercion, there must be some concrete demonstration at least of "a reasonable probability” (id., at p 74) of injury occasioned by disclosure (see Buckley v Valeo, supra; N. A. A. C. P. v Alabama, 357 US 449). No such showing has been made here.

In further support of the claim that the commission in this investigation is acting in excess of power, appellants assert that the substantive allegations in the complaint, which may form the basis for formal commission action, work an unconstitutional interference with First Amendment rights. Arguing that the First Amendment is violated by the proscriptions against direct fund solicitations by a judicial candidate and appointments based on political considerations, appellants conclude that there is no lawful basis for the commission’s inquiry. We view appellants’ challenge as an indirect attack upon a determination that certain activities may constitute judicial misconduct and conclude that the arguments are insufficient to warrant restraining the commission’s activities and indeed are premature.

Whatever the source of the commission’s determination to investigate, we can discern nothing in the investigation, the official action here challenged, which impermissibly burdens the exercise of those rights. If at all, it is the proscription itself or a sanction imposed for its violation that impairs the asserted rights. But we have here a challenge merely to an investigation into conduct that may warrant the filing of formal charges of misconduct. No formal charges have yet been filed. Whether and in what circumstances charges of improper fund-raising activities or judicial favoritism ultimately can be sustained against a First Amendment challenge need not now be decided. The mere filing of an administrator’s complaint, alleging improprieties in the conduct of an election campaign and its aftermath, simply has too remote an impact on protected rights of political expression to support the instant claim.

In sum, we conclude that the First Amendment does not preclude this investigation. While we would not hesitate to restrain official action that threatens to chill the exercise of First Amendment rights, no such result attends the investigation. Accordingly, the article 78 petition seeking prohibition was properly dismissed.

We turn then to the issues involved in the motions to quash and to compel compliance with the commission subpoenas. Appellants urge a litany of grounds to invalidate the instant investigation. However, a motion to quash or to compel compliance raises only the issues of the authority of the investigating body and whether the inquiry falls within the scope of that authority (see Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227; Matter of Santangello v People, 38 NY2d 536; Matter of La Belle Creole Int., S. A. v Attorney-General of State of N. Y., 10 NY2d 192; Carlisle v Bennett, 268 NY 212). Under this standard, the subpoenas must be obeyed. The Commission on Judicial Conduct is authorized by the New York State Constitution to "receive, initiate, investigate and hear complaints with respect to the conduct, qualifications, fitness to perform or performance of official duties of any judge or justice of the unified court system” (NY Const, art VI, § 22, subd a). The commission "may determine that a judge or justice be admonished, censured or removed from office for cause, including, but not limited to, misconduct in office * * * and conduct, on or off the bench, prejudicial to the administration of justice” (id.). The Judiciary Law implements the constitutional authorization and establishes the commission, granting it broad investigatory and enforcement powers (see Judiciary Law, §§ 41, 42, 44). Specifically, the commission must investigate following receipt of a complaint, unless that complaint is determined to be facially inadequate (Judiciary Law, § 44, subd 1), and may on its own motion initiate an investigation upon the filing of a written complaint signed by the administrator of the commission (Judiciary Law, § 44, subd 2).

It is thus evident that the statute and Constitution give the commission broad power to inquire into the conduct of a Judge. Quite simply, so long as the commission, in good faith, is investigating the conduct of a Judge, the commission is acting within the scope of its authority and a subpoena issued pursuant thereto is not subject to challenge. A witness called before the commission may not go beyond this inquiry to avoid compliance by attacking the specific allegations upon which the investigation is based.

Thus, we need not decide whether direct fund solicitation involves judicial impropriety or the appearance of impropriety or whether appointments based on political considerations rather than merit may sustain a charge of misconduct. Any constitutional and State law implications of these issues may be the subject of judicial scrutiny if and when a disciplinary sanction is imposed following a proceeding brought on formal charges. The instant proceeding is simply an improper vehicle for review of these issues.

Appellants further contend that the commission has failed to demonstrate the evidentiary predicate for the allegations in the complaint and thus, the subpoenas must fail. We disagree. To sustain the subpoenas, the commission need only make a preliminary showing that the information sought is reasonably related to a proper subject of inquiry (see Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227, 231, supra; Matter of La Belle Creole, Int., S. A. v Attorney-General of State of N. Y., 10 NY2d 192, supra). That has been amply demonstrated. It is of no concern to a mere witness whether the commission is in possession of sufficient information to warrant the institution of formal proceedings. We emphasize that the amended administrator’s complaint here in issue represents only the initiation of a commission investigation of judicial impropriety. To require the commission to come forward with facts that would support a charge would be to restrict unnecessarily the commission’s power to inquire into judicial misconduct. Indeed, such a requirement would render the commission ineffective as the instrument through which the integrity of the judiciary is assured. We decline to authorize such a result.

Finally, we reach the issue raised by the cross appeal— the propriety of sealing the record in this proceeding. Section 45 of the Judiciary Law provides that with certain exceptions, "all complaints, correspondence, commission proceedings and transcripts thereof, other papers and data and records of the commission shall be confidential and shall not be made available to any person except pursuant to section forty-four.” The Judge who is the subject of the complaint may request in writing that "copies of the complaint, the transcripts of hearings by the commission thereon, if any, and the dispositive action of the commission with respect to the complaint * * * shall be made available for inspection and copying to the public, or to any person, agency or body designated by such judge” (Judiciary Law, § 45). Section 44 requires confidentiality of the transcript made with respect to all proceedings at which testimony or statements under oath are taken, except as permitted by section 45 (Judiciary Law, § 44, subd 3). It is only after the commission has completed its action and the record has been transmitted to the Court of Appeals that "the determination of the commission, its findings and conclusions and the record of its proceedings shall be made public and shall be made available for public inspection” (Judiciary Law, § 44, subd 7).

The Appellate Division ruled that the scheme of confidentiality for commission proceedings required sealing of the court records. We disagree in this respect. True, the Legislature established strict rules of confidentiality to prevent premature disclosure. But the scheme applies only to matters before the commission and nothing in the statute can be read as applying to matters brought before the court.

The public policy of this State is to ensure awareness of judicial proceedings (see Judiciary Law, § 4; Matter of Westchester Rockland Newspapers v Leggett, 48 NY2d 430). While in an appropriate case a court may draw on its power to seal its own records (cf. Matter of Dorothy D., 49 NY2d 212; Matter of Todd H., 49 NY2d 1022), a blanket rule requiring the sealing of all court records involving proceedings by the commission is unjustified in the absence of legislative mandate. The Appellate Division erroneously substituted its judgment for that of the Legislature in perceiving the need for sealing. Its rule is no less than the judicial creation of a category of court proceedings that is to be shielded from public scrutiny. Public access to court records need not and should not signal access to the commission’s internal proceedings. Indeed, such precautions as in camera hearings, utilized in this case, preserve confidentiality. If the Legislature deems it necessary to extend the proscription against disclosure to judicial proceedings connected with those of the commission, it may do so (cf. CPL 190.50, subd 7). However, a rule requiring such extraordinary relief should not come from this court.

Accordingly, the order of the Appellate Division should be modified to the extent of reversing so much thereof as ordered the sealing of court records, with costs to the New York State Commission on Judicial Conduct, and, as so modified, affirmed.

Fuchsberg, J.

(dissenting in part). As the majority points out, no charges have been leveled against the Surrogate. Rather, what we have before us are no more than proceedings incident to an investigation, however initiated, under the omnibus power the commission has been granted to look into complaints (NY Const, art VI, § 22, subd a).

Nevertheless, and mindful though I am of our practice of refusing to issue advisory opinions in ordinary appeals, because this court is uniquely possessed of plenary powers in such matters (Matter of Spector v State Comm. on Judicial Conduct, 47 NY2d 462) and also is charged with the extraordinary responsibility for the approval of rules of conduct governing the Judges of this State (NY Const, art VI, § 20, subd b), I would have preferred that we express our views, even at this early stage, on at least two subjects, one substantive in nature and the other procedural. In doing so, I also cannot help but reflect that appropriate guidance at this point might make it unnecessary to ever have to deal with the at best difficult balance called for when we are forced to choose between the State’s interest in policing the conduct of its Judges, on the one hand, and the exercise of the fundamental First Amendment privileges of political expression and association, on the other.

The first of these would treat with Canon 7 (subd B, par [2]) of the Code of Judicial Conduct. Involved to a greater or lesser extent in each of the three items which are the subject matter of the commission’s inquiry, it reads: "A candidate, including an incumbent judge, for a judicial office that is filled by public election between competing candidates should not himself solicit or accept campaign funds, or solicit publicly stated support, but he may establish committees of responsible persons to secure and manage the expenditure of funds for his campaign and to obtain public statements of support for his candidacy.”

It must be remembered that the Surrogate originally was an independent candidate for election to the office she now holds. It is argued that, absent the support of political machinery or the possession of personal wealth, the opportunity and means of making one’s view and virtues known to the electorate in heavily populated New York City may be insuperable without the financial and personal aid of others.

Whatever be the relative merits of the elective versus the appointive method for selecting of Judges — and our Nation’s history shows there have been times when we have tired of each — the fact is the elective system was then, as it is now, the one mandated for this office by our State Constitution. Unless a means test or an alternative means to finance election campaigns is devised and adopted, it seems obvious then that serious questions must arise. For, like it or not, realistically, if not constitutionally, this impediment to a candidate’s right to "speak” and to the concomitant public right to "hear” could very well impose "substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression” (Buckley v Valeo, 424 US 1, 58-59). It may even take the strict scrutiny test beyond its outer limits.

It is interesting therefore to note that the commission, whose task it is to enforce rather then create our codes of judicial ethics, with commendable candor, has had occasion to report: "The intent behind keeping a judge from knowing his contributors is obvious: to avoid the impression that, if elected, the judge will administer his office with a bias toward those who supported his candidacy. The requirement of public filing practically defeats that intent. So does the fact that a candidate who runs for judicial office chooses his treasurer and those who will be instrumental in raising funds on his behalf. It is unrealistic to expect that a political figure seeking any office would not know the names of at least his most generous contributors. A judge should have access to his list of contributors and should take steps to insure that he does not violate any of the specific standards or the rule against appearances of impropriety.” (NY State Comm on Judicial Conduct, Ann Rep, Jan. 1978, at pp 63-64).

I turn now briefly to a second matter, the vagueness, indeed absence, of any significant detail that would cast meaningful light on the substance of the inquiry. Granted that, on its face, this may be no more than the summary language of the Constitution commands at this stage, fairness would seem to dictate that in an ethical inquiry in which the target, rightfully, is to be held to the highest standard of conduct, where the subject matter is almost sure to partake of the subtle and the sensitive, and where the preferred outcome is an early and adequate explanation, the Judge who is its object should not be kept in the dark.

Finally, fairness again, it seems to me, requires that since "appearances” more often are the product of the publicity rather than that of the underlying conduct, a Judge should not have to pay the price of privacy for the privilege of pursuing her rights.

Meyer, J.

(dissenting in part). I disagree with respect to the sealing of court records and would affirm without modification. The court has inherent power to seal its own records and since refusing to do so unfairly disadvantages a Judge under investigation who wishes to challenge the commission’s authority, by requiring him to forfeit his right to confidentiality if he does so, I would hold as did the Appellate Division that the record should be sealed pending completion of the investigation.

Chief Judge Cooke and Judges Jasen, Jones and Wachtler concur in Per Curiam opinion; Judge Fuchsberg dissents in part and votes to modify in a separate opinion; Judge Meyer dissents in part and votes to affirm in a memorandum in which Judge Gabrielli concurs.

Order modified, with costs to the State Commission on Judicial Conduct, in accordance with the opinion herein, and, as so modified, affirmed.

       Contrary to appellants’ assertion, Special Term was not required to conduct an adversary hearing in camera to determine the factual and legal predicate for the investigation. Subdivision 3 of section 44 and section 45 of the Judiciary Law provide for the confidentiality of preliminary commission proceedings. Such restrictions serve the dual purpose of protecting the confidentiality of complainants and witnesses, thus, ensuring the more effective functioning of the commission, and of protecting the Judge under investigation from injury to reputation resulting from the exposure of unjustified complaints (see Landmark Communications v Virginia, 435 US 829, 835, supra). While a Judge is given the power to waive confidentiality following dispositive action of the commission on the complaint (see Judiciary Law, § 45), that power is not unlimited at the preliminary stages of an investigation. At that point, the commission’s interest in encouraging the filing of complaints and in witness participation is entitled to protection against premature disclosure. The ex parte hearing here to determine the commission’s investigatory power and the basis for and relevancy of the requests was proper (cf. Matter of Hynes v Lemer, 44 NY2d 329).


author: Fuchsberg, J.

text:
    American Insurance Association et al., Appellants, v Albert B. Lewis, as Superintendent of Insurance of the State of New York, Respondent.
    Argued June 2, 1980;
    decided July 8, 1980

      POINTS OF COUNSEL

      Robert S. Smith and Earl H. Doppelt for appellants.
    I. The capping amendment constitutes a tax upon out-of-State property in violation of the due process clauses of the United States and New York Constitutions. (Norfolk & Western Ry. Co. v Tax Comm., 390 US 317; Western Union Tel. Co. v Kansas, 216 US 1; Farmers Loan Co. v Minnesota, 280 US 204; Brueckner v Superintendent of Ins. of State of N. Y., 39 AD2d 383, 33 NY2d 663; Houck v Little Riv. Dist., 239 US 254; Matter of Hanson v Griffiths, 204 Misc 736, 283 App Div 662; Matter of Oshkosh Foundry Co., 28 F Supp 412; Carmichael v Southern Coal Co., 301 US 495; Matter of Mytinger, 31 F Supp 977; Matter of Batter, 257 App Div 546, 282 NY 722.) II. There are material issues of fact as to whether the capping amendment violates the due process and equal protection clauses. (Health Ins. Assn. of Amer. v Harnett, 44 NY2d 302; Patterson v Carey, 41 NY2d 714; Yick Wo v Hopkins, 118 US 356.)

      Robert Abrams, Attorney-General (Arnold D. Fleischer, Shirley Adelson Siegel, Peter Bienstock and Myrna M. Martinez of counsel), for respondent.
    I. The 1% cap is a reasonable exercise of the Legislature’s authority to regulate the insurance industry. (Montgomery v Daniels, 38 NY2d 41; Matter of Taylor v Sise, 33 NY2d 357; Knapp v Fasbender, 1 NY2d 213; Health Ins. Assn. of Amer. v Harnett, 44 NY2d 302; Brueckner v Superintendent of Ins. of State of N. Y., 39 AD2d 383, 33 NY2d 663; People v Nebbia, 262 NY 259, affd sub nom. Nebbia v New York, 291 US 502; Nettleton Co. v Diamond, 27 NY2d 182, app dsmd sub nom. Reptile Prods. Assn. v Diamond, 401 US 969; Williamson v Lee Opt. Co., 348 US 483; Hoopeston Co. v Cullen, 318 US 313; State Farm Ins. Co. v Duel, 324 US 154, 887.) II. The 1% cap is not an unapportioned tax on plaintiffs’ out-of-State property. (People ex rel. Einsfeld v Murray, 149 NY 367; People v Fire Assn. of Phila., 92 NY 311; Trustees of Exempt Firemen’s Benevolent Fund of City of N. Y. v Roome, 93 NY 313; Greenville Fire Co. No. 1 v Aetna Cas. & Sur. Co., 92 Misc 2d 402; Moorman Mfg. Co. v Bair, 437 US 267; Wisconsin v J. C. Penny Co., 311 US 435; Maxwell v Bugbee, 250 US 525; Hans Rees’ Sons v North Carolina, 283 US 123; Norfolk & Western Ry. Co. v Tax Comm., 390 US 317, 1046; Atlantic & Pacific Tea Co. v Grosjean, 301 US 412.) III. The 1% cap does not deny plaintiffs equal protection of the laws. (Montgomery v Daniels, 38 NY2d 41; Dandridge v Williams, 397 US 471; Maxwell v Bugbee, 250 US 525; Atlantic & Pacffic

      Tea Co. v Grosjean, 301 US 412; Lehnhausen v Lake Shore Auto Parts Co., 410 US 356.)
   OPINION OF THE COURT

Fuchsberg, J.

On this appeal, here directly pursuant to CPLR 5601 (subd [b], par 2), we are called upon to determine whether subdivision 1 of section 654 of our Insurance Law, in imposing a so-called "capping” impost based on the total net worth of property and casualty insurance corporations, offends the due process clauses of our Federal and State Constitutions. The appellants are seven large foreign corporations who write such insurance in the various States, including New York.

The challenged provision is an amendment to a statutory scheme under which the Insurance Law creates a joint underwriting group, the New York Property Insurance Underwriting Association, for the purpose of making fire and extended coverage available to persons who otherwise would be unable to obtain adequate protection in the private insurance market. (See Brueckner v Superintendent of Ins. of State of N. Y., 39 AD2d 383, 385, affd 33 NY2d 663; NY Legis Ann, 1968, pp 313, 461.) As a condition to transacting business in the State every insurer authorized to write policies in this field is required to join the association. The pool they finance operates under the name Fair Access to Insurance Requirements or, as more popularly referred to in the industry, under the acronym FAIR. In essence, as the plan was set up under the original legislation in 1968, its members were to share in FAIR’S profits and losses in the proportion that each one’s net direct premiums on policies written in New York bore to the aggregate net direct premiums written in this State by all members of the association (Insurance Law, § 651, subd 7; § 654, subd 1).

However, by a 1971 amendment to subdivision 1 of section 654, the change that is at the heart of this appeal was wrought. While the proportional form of financing of FAIR was continued, each insurer’s liability for losses sustained by the program was maximized at 1% of the insurer’s "surplus to policyholders”, which, for all practical purposes, may be equated with net worth. Since, so long as the contributions of all the participating insurers remained strictly proportional, this limitation could be expected to leave a deficit, the amended statute compelled those insurers whose contributions had not yet reached the 1% "cap” to shoulder the additional cost on a proportional basis.

This, of course, introduced a means test. Unlike the basic assessment computed on each insurer’s pro rata premium writing, the "capping” provision made larger companies, i.e., those having a greater net worth, pay more. As the Superintendent of Insurance readily concedes, the legislative intent animating the "capping” provision was solely one to protect small, local insurance companies from suffering the risk of having to share, as they formerly had, in increasingly large losses.

As the financial impact of the "capping” provision began to be felt, the plaintiffs brought this suit to declare the "capping” provision unconstitutional and to enjoin its enforcement. In quest of this relief, they relied on three theories, each pleaded in a separate cause of action. The first, grounded on due process, specifically alleged that the effect of the "cap” was to impose a tax on property beyond the jurisdiction of New York. The second put forth the claim that due process also was implicated by what it characterized as the irrational, arbitrary and confiscatory nature of the statute. Finally, plaintiffs charged that, by reason of irrational discrimination against insurance companies similarly situated, there had been a denial of equal protection. As the litigation progressed, the parties cross-moved for summary judgment, plaintiffs on the first cause of action alone and the superintendent for dismissal of the entire complaint. Special Term, in granting the cross motion, briefly noted that the plaintiffs had failed to overcome the presumption of constitutionality and that the "capping” provision was "not a tax but a proper exercise of regulatory authority over the insurance industry”. For the ensuing reasons, we now reverse, concluding that summary judgment should have been granted on plaintiffs’ first cause of action.

Preliminarily, we address the superintendent’s contention that the "capping” provision is nothing more than an incident of the police power to regulate the insurance industry (see Health Ins. Assn. of Amer. v Harnett, 44 NY2d 302, 306) and that its effect is not to levy a tax but merely to impose charges in the nature of license fees as a condition of doing business in the State. The exaction cannot be a tax, the defendant asserts, because the generation of revenue is not its primary purpose.

But, in so saying, the superintendent makes no mention of the fact that a license fee must be reasonably related to the cost of a licensing program (see Suffolk County Bldrs. Assn. v County of Suffolk, 46 NY2d 613, 619). This omission appears to be unavoidable. For, the "capping” funds bear not even a rough correlation to the expense to which the State is put in administering its licensing procedures or to the benefits those who make the payments receive, but are applied to the substantive funding of the FAIR plan. Moreover, the plan owes its existence to a felt need to provide the assurance that the designated coverage will continue to be available to all members of the general public who resort to the pool. It is significant too that the obligation to make the "capping” payments was not imposed by an administrative agency charged with regulating licensees, but by the Legislature, the body vested with the power to tax.

Nor is the exaction any less a general revenue-raising measure because it is allocable to a particular project and its amount dependent on the size of the subsidy necessary to sustain the financial soundness of the project it supports. When all is said and done, it is a compulsory contribution for the purpose of defraying the cost of government (Matter of Hanson v Griffiths, 204 Misc 736, 738, affd 283 App Div 662; Houck v Little Riv. Dist., 239 US 254, 265).

Almost needless to add, particularly in the context of a due process attack on a money-producing measure, to allow how it is labeled to determine whether it is a tax or a fee would be to let form obscure substance (see Wisconsin v J. C. Penney Co., 311 US 435, 443). Thus, an employer’s contribution to an unemployment insurance fund, though otherwise denominated, was held to be a tax (see Chamberlin, Inc. v Andrews, 271 NY 1; Great Lakes Co. v Huffman, 319 US 293). And, more closely gaited to the mandatory payments in the present case, a "fee” for the privilege of doing local business, when levied on a stated percentage of a corporation’s capital stock, also was deemed a tax (Western Union Tel. Co. v Kansas, 216 US 1).

Turning then to the constitutional claim, it is fundamental to due process jurisprudence that the taxing power of a State may not extend to tangible or intangible property having no connection or relationship to the taxing State (Louisville & Jeffersonville Ferry Co. v Kentucky, 188 US 385, 398; see Matter of Eastman Kodak Co. v State Tax Comm., 33 AD2d 298, 303, affd 30 NY2d 558). In other words, the due process clause operates to restrain the State from "fixing its tax talons on extra-territorial values” (Hartman, State Taxation of Interstate Commerce: A Survey and an Appraisal, 46 Va L Rev 1051, 1059). To avoid this effect, when a State does venture to apply such a tax, it must be one that, in operation, bears some relation to the protections, opportunities and benefits which the State affords the taxpayer. Our initial inquiry, directed to ascertaining whether such a nexus exists, therefore must be "whether the state has given anything for which it can ask return” (emphasis mine; Wisconsin v J. C. Penney Co., 311 US 435, 444, supra; Norfolk & Western Ry. Co. v Tax Comm., 390 US 317, 325; see Tribe, American Constitutional Law, p 353). For this purpose, it is generally enough if an out-of-State corporation avails itself of the privilege of transacting business within the State (Exxon Corp. v Department of Revenue of Wis., 447 US 207, —, 48 USLW 4687, 4691).

Since this threshold presents no obstacle here, we move on to the next hurdle. At that point, due process poses the further question whether the application of the tax, in this instance to the net worth of foreign insurers doing business here, may be said to be rationally related to property values connected with the taxing State (see Moorman Mfg. Co. v Bair, 437 US 267, 273). This standard is not satisfied by the excellence of the goals for which the moneys are raised nor, as here, the simple logic of the means chosen to obtain them. Even the clearest intent that those affected be treated equitably will not do. The test is purely pragmatic. It demands fairness, not so much in form as in fact. Precision may not be possible, and in the end, if the State’s taxing power is not to be projected into alien territory, if there is not to be an inequitable and perhaps ruinously overlapping scramble for the national company’s tax dollar, the tax must reflect an economic balance between what the State appropriately may tax and what it may not (Ott v Mississippi Barge Line, 336 US 169, 174; see Matter of Federated Dept. Stores v Gerosa, 16 NY2d 320, 324).

Thus, in Western Union Tel. Co. v Kansas (216 US 1, supra), a case which in principle may most closely approximate the one now before us, the Supreme Court struck down a State statute requiring the telegraph company to pay into a permanent school fund a given percentage of its authorized capital as a condition for doing business in the State. The court, speaking through Justice Harlan, had no trouble finding that, though called a charter fee, in truth this was a tax which contravened both the commerce and due process clauses because "[the] fee, plainly, is not based on such of the company’s capital stock as is represented in its local business and property in Kansas. The requirement is a given per cent of the company’s authorized capital, that is, all its capital, wherever or however employed, whether in the United States or in foreign countries, and whatever may be the extent of its lines in Kansas as compared with its lines outside of that State. * * * It strikes at the company’s entire business wherever conducted and its property wherever located” (216 US, at p 30).

Similarly, on a like rationale, other State franchise taxes which did not attempt any apportionment between intrastate and interstate values consistently have been invalidated (e.g., Cudahy Co. v Hinkle, 278 US 460, 466 [tax on authorized capital stock]; International Paper Co. v Massachusetts, 246 US 135, 141-142 [tax on authorized capital stock]; Looney v Crane Co., 245 US 178 [tax on outstanding capital and surplus]). In none of these cases was the taxing formula designed to work any proportioning of the taxpayer’s business activity and property in the State vis-á-vis that carried on beyond its borders.

But all this does not mean that the Constitution insists that a State, when making its calculation, blind itself to the more amorphous, but nonetheless highly valued, attributes which may be inherent in the transaction of business on a multistate scale. Since fair apportionment is by no means a mechanical function, for whatever it is worth in a suitable case, a State may take cognizance of the fact that what otherwise would have been the more limited value of a particular corporate presence within the State has been enhanced by the special favors that flow from its interstate activity and the national repute that has followed in its wake. For instance, intangible qualitative and quantitative factors, such as the "going-concern value” or the competitive advantage which may result from the "unitary” nature of a broad-based network of production, transportation, marketing and financing facilities, may add a dimension augmenting the value of the intrastate business of such an enterprise (see Exxon Corp. v Department of Revenue of Wis., 447 US 207, —, 48 USLW 4687, 4691, supra).

Moreover, the special contribution that New York, as the economic capital of the Nation, may make in terms of affording particular facilities to corporate "showcase” units is not a factor which at all odds must be ignored. This is not to suggest that intrastate companies may receive preferential treatment. Fairness implies relative equality to the extent that it is reasonably possible to achieve it. It does not imply that significant, albeit individualistic, factors, whoever gains or loses thereby, are ruled out as elements of a taxing formula. Supported by appropriate evaluative methods, due process does not deny their validity (see Wallace v Hines, 253 US 66, 69; Atlantic & Pacific Tea Co. v Grosjean, 301 US 412; Norfolk & Western Ry. Co. v Tax Comm., supra, at pp 323-324).

For these reasons, a taxing State need not forebear from employing criteria which include indices of worth as wide-ranging as capital stock or over-all gross receipts, so long as these measures enter into the computation by which the justly apportioned value of the taxpayer’s activity within the State is reached. (See, e.g., Harvester Co. v Evatt, 329 US 416, 419-421 [franchise tax formula used percentage of total capital stock multiplied by ratios of business and property within State to corporation’s entire business and property holdings]; Ford Motor Co. v Beauchamp, 308 US 331, 335-337 [franchise tax calculated as a percentage of outstanding capital stock and surplus apportioned by ratio of gross receipts from intrastate business to total gross receipts]; International Shoe Co. v Shartel, 279 US 429, 433; Western Union Tel. Co. v Massachusetts, 125 US 530, 549, 552; cf. Northwestern Cement Co. v Minnesota, 358 US 450, 460, 464).

These guidelines before us, the "capping” provision stands in clear violation of due process. The amendment to subdivision 1 of section 654 employs the general criterion of "surplus to policyholders”, or net worth, without any effort at apportioning that value. It leaves us completely in the dark as to how much of the tax is attributable to the insurance company plaintiffs’ business in New York and how much to their business in other States. This remains an ineluctable secret. However, it is obvious that, absent a methodology by which to allocate an insurer’s net worth to business activity or to property located in New York — and the statutory formula is bare of such a provision — the "capping” inevitably must reach an arbitrary, unapportioned percentage of out-of-State property. Patently, no means by which to assure that the tax is one focused on an intrastate measure of value is discernable.

It follows that the order appealed from should be reversed and judgment granted in favor of plaintiffs declaring the 1971 amendment to subdivision 1 of section 654 of the Insurance Law unconstitutional.

Chief Judge Cooke and Judges Jasen, Gabrielli, Wachtler and Meyer concur with Judge Fuchsberg; Judge Jones concurs in result.

Judgment reversed, with costs, and judgment granted in favor of plaintiffs declaring the 1971 amendment to subdivision 1 of section 654 of the Insurance Law unconstitutional.

      . "Extended coverage” protects against property damage due to various risks including windstorm, hail, explosion, riot, riot attending a strike, civil commotion, aircraft, vehicles and smoke (Insurance Law, § 651, subd 2).

      . Subdivision 34 of section 4 of the Insurance Law defines "surplus to policyholders” as "the excess of total admitted assets over the liabilities of an insurer, which shall be the sum of all capital and surplus accounts minus any impairment thereof’.

      . The full text of section 654 (subd 1, par [a]) reads as follows: "All insurers which are members of the association shall participate in its writings, expenses, profits and losses in the proportion that the net direct premiums of each such member (but excluding that portion of premiums attributable to the operation of the association) written during the preceding calendar year bear to the aggregate net direct premiums written in this state by all members of the association. Each insurer’s participation in the association shall be determined annually on the basis of such net direct premiums written during the preceding calendar year as disclosed in the annual statements and other reports filed by the insurer with the superintendent. No member shall be obligated in any one year to reimburse the association on account of its proportionate share in the deñcit from operations of the association in that year in excess of one per cent of its surplus to policyholders and the aggregate amount not so reimbursed shall be reallocated among the remaining members in accordance with the method of determining participation prescribed in this subdivision, after excluding from the computation the total net direct premiums of all members not sharing in such excess deñcit. In the event that the deficit from operations allocated to all members of the association in any calendar year shall exceed one per cent of their respective surplus to policyholders, the amount of such deficit shall be allocated to each member in accordance with the method of determining participation prescribed in this subdivision” (emphasis mine).

      . We therefore have no occasion to treat with the unequal protection formulation contained in plaintiffs third cause of action. For the same reason, except as it duplicates the points pleaded in the first cause, we also have no occasion to here consider the additional due process considerations raised by the second cause alone.

      . This second level of due process analysis approximates that relevant for commerce clause purposes. Perhaps because due process challenges to State taxing power have typically been joined with commerce clause objections (see Western Union Tel. Co. v Kansas, 216 US 1, and cases cited therein) courts have had some difficulty separating due process considerations from those surrounding the more commonly invoked commerce clause. Though the two concepts are closely related, in fact they are distinct. The commerce clause is concerned with the problem of insuring that State regulatory power does not impede the flow of interstate commerce, while due process deals with the permissibility of the exercise of the State’s power as a matter of fundamental fairness. (See Matter of Aldens v Tully, 49 NY2d 525, 534; Norfolk & Western Ry. Co. v Tax Comm., 390 US 317, 325, n 5; Hartman, State Taxation of Interstate Commerce: A Survey and an Appraisal, 46 Va L Rev 1051, 1058-1065.)

      . It has been held that the allocation between interstate and intrastate activity may be only a rough approximation (Matter of Federated Dept. Stores v Gerosa, 16 NY2d 320, 324, supra; Illinois Cent. R. R. Co. v Minnesota, 309 US 157, 161). Of course, it is then open to the taxpayer to show that, in application, the calculus bears no reasonable relationship to property or other values connected with the taxing State (see Norfolk & Western Ry. Co. v Tax Comm., 390 US 317, supra; Hans Rees’ Sons v North Carolina, 283 US 123).

      . The departure from settled constitutional precepts is even more marked because, in a related context, when the State has chosen to factor the out-of-State components of an insurance corporation into its calculation of franchise tax liability, it has been careful to prescribe a formula by which to determine New York State’s representative portion of the corporation’s entire net income and capital. Under the taxing scheme set forth in article 33 of the Tax Law, an insurer’s income and capital must be allocated according to the proportion that its premiums written in the State bear to its total premiums and, to a lesser extent, to the proportion that its wages, salaries, compensation and commissions paid in the State bear to the total payments for such services. (See Tax Law, § 1504, subds [a], [b].) Furthermore, adjustments in this formula are possible if it "does not properly reflect the activity, business or income of a taxpayer within the state” (id., subd [d]).