author: Bbllacosa, J. Titone, J.

text:
    New York State School Boards Association, Appellant, v Thomas Sobol, as New York State Commissioner of Education, et al., Respondents.
    Argued February 19, 1992;
    decided March 31, 1992

      POINTS OF COUNSEL

      Jay Worona and Pilar Sokol for appellant.
    The mandatory inclusion of representatives from religious organizations in State-mandated AIDS advisory councils pursuant to section 135.3 (b) (2) and (c) (2) of the Regulations of the New York State Commissioner of Education (8 NYCRR) violates the constitutional principle of separation of church and State embodied in the Establishment Clause of the First Amendment of the United States Constitution. (Allegheny County v Greater Pittsburgh Am. Civ. Liberties Union, 492 US 573; Lemon v Kurtzman, 403 US 602; Edwards v Aguillard, 482 US 578; Aguilar v Felton, 473 US 402; Grand Rapids School Dist. v Ball, 473 US 373; Wallace v Jaffree, 472 US 38; Larkin v Grendel's Den, 459 US 116; Stone v Graham, 449 US 39; Abington School Dist. v Schempp, 374 US 203; McCollum v Board of Educ., 333 US 203.)

      Elizabeth R. Koepcke, Lizette A. Cantres and Roberts Abrams, Attorney-General (Daniel Smirlock of counsel), for respondents.
    The regulations are facially constitutional. (Allegheny County v Greater Pittsburgh Am. Civ. Liberties Union, 492 US 573; Bowen v Kendrick, 487 US 589; Lynch v Donnelly, 465 US 668; Meek v Pittenger, 421 US 349; Ware v Valley Stream High School Dist., 75 NY2d 114; Cibro Petroleum Prods. v Chu, 67 NY2d 806; Matter of Klein [Hartnett], 164 AD2d 9; Zorach v Clauson, 343 US 306; Marsh v Chambers, 463 US 783.)

      Stanley Getter for Committee for Public Education and Religious Liberty, amicus curiae. I.
    The finding of the court below in the order appealed from that the effect of the regulation at issue on advancing religion is "incidental and remote” disregards the letter and spirit of the Establishment Clause and fails to take into account the significance of the regulation at issue, especially when considered in the light of religious strife in the world, this country and this State today and the history of the Establishment Clause in the field of public education in the last half century. (Everson v Board of Educ., 330 US 1; Abington School Dist. v Schempp, 374 US 203; McCollum v Board of Educ., 333 US 203; Zorach v Clauson, 343 US 306; Engel v Vitale, 370 US 421; Wallace v Jaffree, 472 US 38; Widmar v Vincent, 454 US 263; Weisman v Lee, 908 F2d 1090; Aguilar v Felton, 473 US 402.) II. The finding of the court below in the order appealed from that the regulation at issue will not result in entanglement ignores the cardinal rule that the courts of this State will favor the determinations of government agencies on matters within the special expertise of those agencies. (Lemon v Kurtzman, 403 US 602; Matter of Colt Indus. v New York City Dept. of Fin., 66 NY2d 466.)

      Deborah Goldberg, Donna Lieberman, Arthur N. Eisenberg, Laurie R. Rockett, William B. Rubenstein, of the Pennsylvania and District of Columbia Bars, admitted pro hoc vice, Ruth E. Harlow and Janet Benshoof for New York Civil Liberties Union and others, amici curiae.

    The challenged regulatory provisions violate the Establishment Clause of the United States Constitution. (Lemon v Kurtzman, 403 US 602; Walz v Tax Commn., 397 US 664; Edwards v Aguillard, 482 US 578; Ware v Valley Stream High School Dist., 75 NY2d 114; Matter of Johnson v Joy, 48 NY2d 689; Larkin v Grendel’s Den, 459 US 116; Abington School Dist. v Schempp, 374 US 203; Bowen v Kendrick, 487 US 589; Allegheny County v Greater Pittsburgh Am. Civ. Liberties Union, 492 US 573.)
   OPINION OF THE COURT

Bbllacosa, J.

Plaintiff New York State School Boards Association (Association) appeals as of right on Establishment Clause constitutional grounds (US Const 1st Amend). The Appellate Division order upheld the State Education Department regulations which mandate the inclusion of "representatives from religious organizations” on advisory councils in public school development of education and instruction programs to combat the epidemic of Acquired Immune Deficiency Syndrome (AIDS). The key sentence and challenged clause of the regulations directs: "The advisory council shall consist of parents, school board members, appropriate school personnel, and community representatives, including representatives from religious organizations” (8 NYCRR 135.3 [b] [2]; [c] [2] [emphasis added]). We agree with the two courts below that the regulations, as facially challenged, meet the guidelines established by the United States Supreme Court in Lemon v Kurtzman (403 US 602) and do not violate the Establishment Clause. We therefore affirm.

In 1977, the Legislature authorized respondent, State Commissioner of Education (Commissioner), to "prescribe in regulations such health education courses * * * as * * * may [be] deem[ed] necessary and desirable for the welfare of pupils and the community” (Education Law § 804 [4]). In 1987, the Commissioner promulgated regulations (eff Jan. 6, 1988) requiring all elementary and secondary schools to provide AIDS instruction to schoolchildren (8 NYCRR 135.3 [b] [2]; [c] [2]). The instruction is to be "age appropriate and consistent with community values” (id.). The regulations express mandated goals: to "provide accurate information to pupils concerning the nature of the disease, methods of transmission, and methods of prevention” (id.). The instruction must "stress abstinence as the most appropriate and effective premarital protection against AIDS” (id.). Students, with parental permission, may "opt out” of the school instruction, provided assurance is given that they will receive instruction at home. The local boards of education or trustees are responsible for formulating the content of the instruction and approving and evaluating its implementation. In public schools, the boards and trustees are required to establish advisory councils to make recommendations regarding the content, implementation and evaluation of the instruction. The mandated composition of the advisory councils reflects a desire for broad and early community input, coupled with the objective of avoiding student "opt outs” from the ultimately adopted education program, thus reaching the greatest number of pupils with accurate, effective information.

The Association sues for declaratory judgment that the regulations violate the Establishment Clause of the First Amendment of the United States Constitution (US Const 1st Amend). It urges facial unconstitutionality of the regulations, and does not advance, develop or urge an "as applied” unconstitutionality argument. The record is barren of any evidence describing the manner in which the regulations are being implemented in the myriad of school districts throughout the State.

Supreme Court, Albany County, applying the still-governing tripartite test of Lemon v Kurtzman (403 US 602, supra; see, Matter of Klein [Hartnett], 78 NY2d 662, 666), granted the Commissioner’s cross motion for summary judgment. The Appellate Division technically modified, agreeing substantively with Supreme Court that the regulations passed facial constitutional muster (168 AD2d 188). Those courts concluded that the regulations properly reflect that "representatives from religious organizations” have some role to contribute in addressing the ADDS epidemic, and that the challenged portion of the regulations has only an incidental and remote, not primary, effect on the advancement of religion. Those courts emphasized the advisory nature of the councils in rejecting the Association’s argument that the regulations created a symbolic link between religion and State, and rebuffed the Association’s excessive entanglement theory as speculative.

The Establishment Clause of the First Amendment states that "Congress shall make no law respecting an establishment of religion” (US Const 1st Amend). These first words of the Bill of Rights, ratified just over 200 years ago, have deep roots in this Nation’s history of religious freedom, diversity and tolerance. The evolution of the Establishment Clause has been traced fully in several United States Supreme Court decisions (see, Engel v Vitale, 370 US 421, 425-430; Everson v Board of Educ., 330 US 1, 8-14; see also, Edwards v Aguillard, 482 US 578, 605 [Powell, J., concurring]; Wallace v Jaffree, 472 US 38, 93-106 [Rehnquist, J., dissenting]). Everson v Board of Educ. (supra) summarizes the "essential precepts” of the Establishment Clause, which applies to the States under the Fourteenth Amendment, as follows:

"The 'establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence * * * person[s] to go to or remain away from church against [their] will or force [them] to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or dis-beliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.” (330 US 1,15-16, supra.)

The Establishment Clause, then, has emerged as “more than a pledge that no single religion will be designated as a state religion * * * [or] a mere injunction that governmental programs discriminating among religions are unconstitutional. * * * [I]nstead, [it] primarily proscribes 'sponsorship, financial support, and active involvement of the sovereign in religious activity.’ ” (Grand Rapids School Dist. v Ball, 473 US 373, 381.)

In recent years, the United States Supreme Court has recognized that total separation between government and any governmental acknowledgment of the role of religion in citizens’ lives is not possible or desirable, and would in fact exhibit hostility rather than a constitutionally correct neutrality towards religion (see, Lynch v Donnelly, 465 US 668, 672-673; Lemon v Kurtzman, 403 US 602, 614, supra; see also, Allegheny County v Greater Pittsburgh Am. Civ. Liberties Union, 492 US 573, 623 [O’Connor, J., concurring]; Aguilar v Felton, 473 US 402, 420 [Burger, Ch. J., dissenting]). Thus, in general, and especially on a facial challenge, so long as the government "maintain[s] a course of neutrality among religions, and between religion and nonreligion” (Grand Rapids School Dist. v Ball, 473 US 373, 382, supra), its actions will withstand Establishment Clause scrutiny.

Drawing on these general principles and the “cumulative criteria developed by the Court over many years,” the United States Supreme Court in Lemon v Kurtzman (403 US 602, 612, supra) prescribed its tripartite "test” for evaluating the constitutionality of governmental actions under the Establishment Clause: first, the action must have a secular purpose; second, it must not have a principal or primary effect that advances or inhibits religion; third, it must not foster excessive governmental entanglement with religion (id., at 612-613). Although characterized as a “test”, the United States Supreme Court has cautioned that the Lemon criteria “ 'must not be viewed as setting the precise limits to the necessary constitutional inquiry, but serve only as guidelines’ ” or " 'helpful signpost[s].’ ” (Grand Rapids School Dist. v Ball, 473 US 373, 383, supra, quoting Meek v Pittenger, 421 US 349, 359; Lynch v Donnelly, 465 US 668, 679, supra; Mueller v Allen, 463 US 388, 394, quoting Hunt v McNair, 413 US 734, 741). Indeed, individual Justices of the United States Supreme Court have expressed varying viewpoints on the continued utility and vitality of the Lemon test (see, Allegheny County v Greater Pittsburgh Am. Civ. Liberties Union, 492 US 573, 625, supra [O’Connor, J. concurring]; Edwards v Aguillard, 482 US 578, 636-640, supra [Scalia, J., dissenting]; Aguilar v Felton, 473 US 402, 419, supra [Burger, Ch. J., dissenting]; Wallace v Jaffree, 472 US 38, 68-69 [O’Connor, J., concurring], and 113 [Rehnquist, J., dissenting], supra; Lynch v Donnelly, 465 US 668,687-689, supra [O’Connor, J., concurring]; see also, Lee v Weisman, 505 US —, 112 S Ct 2649). Nevertheless, we are unanimous that the Lemon analysis persists as the governing precedent and guide in this area (see, Bowen v Kendrick, 487 US 589, 602, quoting Mueller v Allen, 463 US 388, 394, supra; Matter of Klein [Hartnett], 78 NY2d 662, 666, supra).

The United States Supreme Court has "particularly relied on Lemon in every case involving the sensitive relationship between government and religion in the education of our children”, a point strongly emphasized by appellant Association (Grand Rapids School Dist. v Ball, 473 US 373, 383, supra; see, Edwards v Aguillard, 482 US 578, 584, supra). In this context, we proceed to examine and apply the Lemon test to the challenged portion of the regulations.

The Association concedes that the regulations have a secular purpose. Indeed, it is facially evident that the compelling purpose of the regulations is to acquire broad and early community input and then to disseminate accurate information about the AIDS epidemic to as many schoolchildren as possible.

The focus of appellant’s sharpest and strongest attack is on the failure of the regulations to overcome the second prong of the Lemon test — that the principal or primary effect must not advance religion. A particular concern under the "effects” prong is "whether the symbolic union of church and state effected by the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices” (Grand Rapids School Dist. v Ball, 473 US 373, 390, supra; see, Allegheny County v Greater Pittsburgh Am. Civ. Liberties Union, 492 US 573, 595-597, supra). Context determines whether particular governmental action is likely to be perceived as an endorsement of religion (see, Allegheny County v Greater Pittsburgh Am. Civ. Liberties Union, supra, at 595-597). Governmental action "endorses” religion if it favors, prefers, or promotes it (see, Edwards v Aguillard, 482 US 578, 593, supra; Wallace v Jaffree, 472 US 38, 59-60, supra; Lynch v Donnelly, 465 US 668, 691, supra). The regulations do not have any of those forbidden effects, despite the conclusory and speculative assertions in the dissenting opinion.

The Association specifically urges that the regulations unconstitutionally advance religion because they mandate representation on the public school advisory councils from among members of religious organizations while failing to list other community groups, and therefore make adherence to religion a relevant qualification to representation on the councils. The Association argues that this conveys a message of endorsement of religion and thus creates the forbidden "symbolic link” between church and State. The argument with respect to this prong does not survive analysis.

The "endorsement test” does not "preclude government from acknowledging religion or from taking religion into account in making law and policy” (Wallace v Jaffree, 472 US 38, 70, supra [O’Connor, J., concurring]; see also, Allegheny County v Greater Pittsburgh Am. Civ. Liberties Union, 492 US 573, 625, supra [O’Connor, J., concurring]). In the context of the extremely sensitive, complex, and escalating threat which society faces from AIDS — unless the broadest audience is reached as early as possible with the most accurate education program possible — it is particularly sensible for government to add the views of religious representatives on an advisory level to the predominant views it will receive from the rest of the community (see, Bowen v Kendrick, 487 US 589, 607, supra). Indeed, by including and considering the views of members of the community who are affiliated with religious organizations, the Commissioner insures that the AIDS instruction that is eventually adopted will more likely enjoy greater societal consensus and, therefore, greater secular effectiveness. By thus neutralizing or reducing possible objections from parents and subsequent opt-outs by schoolchildren, a more universal education program is likely to result (see, Ware v Valley Stream High School Dist., 75 NY2d 114 [involving a religious group’s claim under the Free Exercise Clause to exemption from the regulations requiring AIDS instruction in schools]). Thus, the principal, primary effect of the challenged portion of the regulations is to advance rational, legitimate, educational and secular goals, not to favor or prefer religious ones.

An important component in the analysis of the "effects” prong, which the dissenting opinion summarily dismisses (dissenting opn, at 346-347), is that the councils serve in a purely advisory role to the trustees and the boards of education, which retain the unfettered and nondelegable public responsibility and discretion to adopt or reject any advisory views in whole or in part. This feature confirms the secondary, incidental nature and effects of that aspect of the regulations which mandates that advisory council membership include persons from religious organizations (see, Bowen v Kendrick, 487 US 589, 607, 612-613, supra; Lynch v Donnelly, 465 US 668, 683, supra). In this context, we conclude that it is not sufficiently likely that religious adherents or nonadherents would perceive from the inclusion of representatives from religious organizations on AIDS advisory councils that the State is endorsing or disavowing religion or nonbelievers. The second prong is not violated by these regulations in this respect.

The Association further argues that inclusion of community representatives from religious organizations is likely to be perceived as an endorsement of religion because the regulations fail to list other community groups as mandatory participants on advisory councils. The dissenting opinion mistakenly concludes that the regulations mandate the inclusion of "religious leaders” and claims that such persons are given "favored status” and "greater participatory privileges” than other community representative participants on the councils (dissenting opn, at 345, 346, 348, 349). This is characterized as "preferential”, "automatic access to the governmental decision-making” (dissenting opn, at 346, 347). The assertion that representatives from religious organizations are invested with a greater role than other included individuals or "community representatives” is mistaken. No hierarchy or preferential weight is established or ascribed in the regulations, and none can be inferred on this facial analysis. The mandatory list of participants on the councils includes "parents, school board members, appropriate school personnel, and community representatives, including representatives from religious organizations.” There is no fixed over-all number of representatives or proportionate allocation or distribution among the categories. By requiring a cross-section, of community persons and entities to contribute to the development of the AIDS instruction, without restriction or further specification, the regulations reach out to the broadest possible network of input and viewpoints. We conclude that the challenged composition of advisory councils is not sufficiently likely to give rise to a perception that the government has favored or preferred religious over nonreligious groups. The Commissioner instead has "successful[ly] maint[ained] * * * 'a course of neutrality among religions, and between religion and nonreligion’ ” on the face of the promulgated regulations (Bowen v Kendrick, 487 US 589, 607, quoting Grand Rapids School Dist. v Ball, 473 US 373, 382, supra).

The Association additionally challenges the regulations as unconstitutional under the third prong of the Lemon test, arguing that they foster an excessive entanglement with religion. To evaluate this prong, courts must examine “the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority” (Lemon v Kurtzman, 403 US 602, 615, supra). The test is "inescapably one of degree” (Walz v Tax Commn., 397 US 664, 674), because some degree of entanglement between government and religion is inevitable given the complexity of modern society (see, Larkin v Grendel's Den, 459 US 116, 123; Lemon v Kurtzman, 403 US 602, 614, supra). The “excessive entanglement” concept has its genesis in a tax-exemption case (Walz v Tax Commn., supra). It has primarily been implicated in cases involving public financial aid to parochial schools, with the concomitant need for administrative interaction and ongoing supervision and monitoring to ensure the absence of a religious message (see, Aguilar v Felton, 473 US 402, supra; Lemon v Kurtzman, 403 US 602, supra; see also, Bowen v Kendrick, 487 US 589, supra). It has also been implicated in cases in which discretionary governmental powers are delegated to or shared with religious institutions (see, Larkin v Grendel's Den, 459 US 116, 127, supra).

Obviously, the ongoing monitoring and supervision required in connection with the administration of financial aid regulations is not implicated here, and religious institutions are not exercising any discretionary governmental functions in this case.

The Association nevertheless argues that “excessive entanglement” will result when boards of education or trustees face the task of sifting through the recommendations of the advisory councils to screen out those that may represent religious dogma or tenets which could impermissibly advance religion. We agree with the Appellate Division that this argument is entirely speculative. The recommendations that may emerge from advisory councils — not necessarily from the individuals who constitute the councils — may not include religious viewpoints as such or at all. The supposed sifting methodology is not necessary or inherent to the consideration and analysis of advisory council recommendations by the boards and trustees under the facially challenged regulations. Indeed, given the almost certainly dominant secular membership of the councils, any religious input is not likely to rise to anything approaching the required "excessive” entanglement level.

The Association alternatively argues, and the dissenting opinion seems to agree (dissenting opn, at 348), that there will be a need to choose representatives from among many religious organizations active in a community, and that this will lead to political divisiveness and excessively entangle school boards in matters of different religions. This argument, too, has a speculative "as applied” analytical flavor and has no merit or record support.

In sum, the Association’s facial constitutional challenge to the mandated inclusion of representatives from religious organizations in public school AIDS education advisory councils fails under all the Lemon prongs.

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

Titone, J.

(dissenting). In recognition that education is the only meaningful weapon society currently has to combat the spread of AIDS, the Commissioner of the State Education Department has promulgated regulations requiring all elementary and secondary schools within the State to develop courses of "appropriate instruction” on that subject as part of their health education programs (8 NYCRR 135.3 [b] [2]; [c] [2]). We have no quarrel with the Commissioner’s goal of instituting a program of mandatory AIDS education, nor do we question the Commissioner’s decision to implement that goal by requiring the establishment of community-based advisory councils to make "recommendations concerning the content [and] implementation” of the AIDS curriculum (id.). We do find it objectionable, however, that the Commissioner has seen fit to require the presence of "representatives from religious organizations” on these advisory committees (see, id.). In our view, this requirement has the inevitable and primary effect of both favoring and endorsing religion and, as such, violates a "core purpose of the Establishment Clause” (Grand Rapids School Dist. v Ball, 473 US 373, 389). Accordingly, we dissent.

Initially, we do not dispute that the tripartite Lemon test (Lemon v Kurtzman, 403 US 602) is the controlling standard for measuring the constitutional validity of the regulations challenged here. Nor do we find fault with the majority’s general discussion of the essential precepts of the Establishment Clause, including its acknowledgment that the Clause proscribes not only discrimination against some denominations but also discrimination in favor of religion in general (majority opn, at 338, citing Grand Rapids School Dist. v Ball, supra). Our quarrel with the majority lies, instead, with its application of these broad principles to the particular problem raised by the challenged regulations.

Since plaintiff does not argue that the regulations have a secular purpose, we will not here pursue that aspect of the tripartite Lemon analysis. Indeed, we find little reason to explore the degree to which the religious-representative requirements of 8 NYCRR 135.3 (b) (2) and (c) (2) have a goal that is sufficiently secular to pass muster under Lemon, since, contrary to the majority’s holding, we conclude that the regulations’ effect is one that is unacceptable under the second prong of the Lemon inquiry.

It is by now axiomatic that to avoid objection under the Establishment Clause a statute must have a " 'principal or primary effect * * * that neither advances nor inhibits religion’ ” (Mueller v Allen, 463 US 388, 394). It is also axiomatic that government may not adopt measures which have the effect of endorsing religion, even symbolically (Grand Rapids School Dist. v Ball, supra, at 389-390). The government must "maintain a course of neutrality among religions and between religion and nonreligion” (id., at 382). Finally, the area of government educational programs for children is one where special caution is warranted because children are highly impressionable and the symbolism of a union between church and State is likely to have a magnified impact (id., at 383, 390). When viewed in light of these principles, the challenged regulations cannot be regarded as anything other than a patent violation of the Establishment Clause.

Initially, the majority’s conclusion that the regulations do not have the "primary effect” of advancing religion appears to be based in large measure on the indisputable premise that the regulations serve a useful secular purpose (see, majority opn, at 340). In this respect, its analysis is simply incomplete, since Lemon v Kurtzman (supra) and its progeny require a showing of both a legitimate secular purpose and a "primary effect” that neither advances nor inhibits religion.

Furthermore, the majority’s analysis is constricted by an overly narrow view of the problem the challenged regulations present. The central focus of the majority’s opinion seems to be the degree to which the religious views of the advisory committees’ religious representatives are likely to have a concrete impact on the AIDS curriculum. Indeed, the entire tenor of the majority’s opinion suggests that it views the problem presented here solely as one involving a potential religious interference with school curriculum decisions (see, e.g,, Epperson v Arkansas, 393 US 97; Engel v Vitale, 370 US 421). Of course, if that were the only problem, the majority’s conclusion would be unobjectionable, since, as the majority states, it cannot be assumed that the religious views of the mandatorily designated committee members will necessarily find their way into the AIDS curriculum. However, as will be demonstrated below, that is only one minor aspect of the "effect” that these disputed regulations will have.

By requiring that all AIDS education advisory committees include representatives of religious organizations, the State is declaring, in the most direct terms, that, above all other interested groups in society, religion has a unique and indispensable role to play on the councils of government (cf., Bowen v Kendrick, 487 US 589, 605 [challenged legislation does not suggest "that religious institutions * * * are uniquely well qualified to carry out (funded) services”]). The unmistakable message is that the views of religious leaders enjoy a favored status and that relevant secular viewpoints, such as those of psychologists, social workers and business leaders are of substantially less significance. The "endorsement” of religion, as distinguished from "nonreligion,” could not be clearer (see, Grand Rapids School Dist. v Ball, supra, at 382).

Furthermore, the effect of the challenged regulation goes beyond a merely symbolic endorsement of religion. By guaranteeing their leaders a seat on the schools’ AIDS education advisory panels, the State has given religious adherents automatic access to the governmental decision-making — a benefit not conferred on any other group of citizens. As a consequence, religious adherents, through their representatives, are afforded greater participatory privileges, in direct violation of the fundamental neutrality principle. Indeed, the twin evils that Justice O’Connor identified in Lynch v Donnelly (465 US 668, 688 [O’Connor, J., concurring]) are directly implicated here. 8 NYCRR 135.3 (b) (2) and (c) (2) "give [religious] institutions access to government or governmental powers not fully shared by nonadherents” and, as a consequence, those regulations "foster the creation of political constituencies defined along religious lines” (id., at 688).

Nor can it be said that the threat to the values implicit in the Establishment Clause is any less substantial because the role that religious leaders are granted is merely advisory (see, majority opn, at 340-341). Plainly, if a regulation directed all public school principals to consult with the parish priest or local rabbi before developing a history or science curriculum, few would dispute that the Establishment Clause had been violated. Yet, that is precisely the import of the regulations at issue here.

While it is true, as the majority notes, that the Establishment Clause does not "preclude government from ** * * taking religion into account” (Wallace v Jaffree, 472 US 38, 70), it certainly does not follow that government may give religion preferential access to its decision-makers’ ears. Nor does it follow that the Establishment Clause permits government to confer such favored status on religion over other viewpoints whenever some secular goal, such as that identified by the majority (majority opn, at 340), is advanced. Indeed, in its effort to find a "primary” secular effect to satisfy the second prong of the Lemon test, the majority has, ironically, itself adopted a position that the Establishment Clause forbids.

The majority argues that mandatory involvement of representatives of religious views is desirable and has a primarily secular effect because it will ensure that the resulting product will reflect "a greater societal consensus” and will thereby "neutraliz[e]” potential community opposition (majority opn, at 340). However, that is simply another way of saying that the regulations are valuable because they enable government to co-opt the views of the religious community by incorporating, or at least appearing to incorporate, them in its educational programs. Once again, even this purported "secular effect” that the majority has identified has as its true "primary” effect the endorsement of religion, in direct violation of the Supreme Court’s prohibition in Lemon v Kurtzman (supra, at 612-613) and Grand Rapids School Dist. v Ball (supra).

Moreover, by relying on the benefits that an alliance with religious leaders might have for government, the majority has fallen into one of the traps that are associated with governmental efforts to use religion to accomplish its own secular goals. As one commentator has noted, when the government uses religion, or religious leaders, as a tool, it is actually exploiting a “borrowed aura of * * * legitimacy,” which, because of the "fundamental importance that religion holds for many people,” may lend its policies an undeserved level of credibility (Tribe, American Constitutional Law § 14-15, at 1287 [2d ed]).

Yet another problem with the majority’s proffered justification for upholding the regulations is its insensitivity to the feelings and opinions of those who are not religious adherents. The majority’s assumption that a curriculum adopted after consultation with religious leaders will have “greater secular effectiveness” and will “neutraliz[e]” possible community opposition overlooks the fact that, in addition to religious adherents, the community includes individuals who not only do not adhere to a particular religious view but are also opposed to educational programs that, directly or indirectly, reflect the viewpoints of religious leaders. Thus, the majority’s analysis itself accomplishes precisely what Justice O’Connor cautioned against in Lynch v Donnelly (supra, at 688) — "send[ing] a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”

Finally, the majority has not explained how school districts attempting to implement the challenged regulations can avoid the other vice that often accompanies rules that give religion a preferred position, i.e., favoring one denomination over another. Since the number of positions on the advisory boards mandated by 8 NYCRR 135.3 (b) (2) and (c) (2) is finite, school authorities will have to make choices among the leaders of the various sects in their communities. Some religions will be singled out for the favored status of committee membership, while others will necessarily be excluded. As a consequence, the principle of denominational neutrality will inevitably be violated (see, Tribe, op. cit., at 1286).

In sum, the religious-representative requirement of the Commissioner’s AIDS education rules runs directly counter to the primary objective of the Establishment Clause. Individual religious leaders, like the leaders of other segments of the community, undoubtedly have important secular contributions to make to the development of a program of AIDS education. However, when government mandates the participation of religious leaders as a class, the message is clear that what the government is seeking is a specifically religious perspective. That message represents a forbidden endorsement of religion and is inimical to the First Amendment’s goal of "prevent-ting], as far as possible, the intrusion of either [Church or State] into the precincts of the other” (Lemon v Kurtzman, supra, at 614). Accordingly, we dissent.

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

Order affirmed, with costs.

      . The majority takes us to task for referring occasionally to religious "leaders” rather than to religious "representatives” — the term used in the regulation (majority opn, at 341). The majority’s point in this regard is, at best, enigmatic. Although it is true that the regulations do not mandate that religious "leaders” be selected for service on the committees, it seems unreasonable to think that individuals who are little known or are not recognized as "leaders” within their religious groups would be chosen as "representatives.” Similarly, it would be naive to suppose that the selected "leaders” or "representatives” appointed to the committees will not at least be perceived as "representing,” and therefore expressing, a religious viewpoint. Indeed, if the appointed representatives were not "leaders” in some sense and were not perceived as representing a uniquely religious perspective on the question of AIDS education, there would be no purpose to mandating the presence of "representatives from religious organizations” as a class. Certainly, the purpose the majority identifies, i.e., "neutralizing or reducing possible objections from parents and subsequent opt-outs,” (majority opn, at 340) would not be served, since the achievement of that goal depends to a large extent on the public’s perception that the religious viewpoint has been taken into account.

      . The majority’s assertion that religious representatives "are invested with [no] greater role than other included individuals” (majority opn, at 341) misses the point. Our concern here is not that the religious representatives have a greater voice on the committee vis-a-vis "other included individuals,” but rather that religious adherents, unlike all other community members, have guaranteed representation on the committees. While it is true that there is no fixed number of positions on the AIDS advisory committees, it is also true that the number of possible committee seats is necessarily finite and that, consequently, not all of the interest groups in the community will be able to be accommodated. Thus, legitimate interest groups such as planned parenthood organizations, local drug treatment programs and child welfare advocates will have to compete for representation, while, by virtue of the challenged regulations, religious adherents are assured of at least one seat. It is in this sense that the regulations confer a preference on religious adherents as a class and, for that reason alone, they are objectionable.

      . Although it has quoted from Bowen v Kendrick (487 US 589), the majority has wisely avoided adopting respondent’s argument that that case is all but dispositive of the issues presented here. In fact, because the statute challenged in Bowen is so different from the statute challenged here, the Supreme Court’s decision in Bowen is of little analytical import in this appeal. The statute at issue in Bowen, which authorized Federal funding for private organizations to provide " 'services and research in the area of premarital adolescent sexual relations,’ ” required grant applicants to describe how they will " 'involve religious and charitable organizations,’ ” as well as families and other community groups (487 US, at 593, 596). Thus, unlike in this case, the statute upheld in Bowen did not mandate that government agencies consult directly with religious representatives. Furthermore, as the Supreme Court pointedly observed, there was "no requirement * * * that grantees be affiliated with any religious denomination” and there was no "suggestion that religious institutions * * * are uniquely well qualified to carry out [the funded] services” (id., at 604-605). It is precisely those characteristics that distinguish the regulations challenged here from the statute at issue in Bowen. And, it is precisely those characteristics that render these regulations constitutionally infirm.


source: Caselaw Access Project

author: Per Curiam. Kaye, J.

license: Public Domain

text:
    In the Matter of Lawrence J. LaBelle, a Judge of the Saratoga Springs City Court, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued February 12, 1992;
    decided April 3, 1992

      POINTS OF COUNSEL

      Robert M. Cohen and E. Stewart Jones, Jr., for petitioner. I.
    This Court has jurisdiction to review the determination dated November 12, 1991. (Matter of Bailey, 67 NY2d 61; Matter of Wait, 67 NY2d 15; Matter of Petrie, 54 NY2d 807; Matter of Gelfand, 70 NY2d 211; Matter of Lenney, 70 NY2d 863.) II. The agreed statement of facts is a stipulation which may be withdrawn or vacated due to mistake, fraud or the interests of justice. (Matter of Horton, 51 AD2d 856; Matter of Frutiger, 29 NY2d 143; Hallock v State of New York, 64 NY2d 224; Bussing v Caligiuri, 65 AD2d 764; Ladd v Stevenson, 112 NY 325; Oneida Natl. Bank & Trust Co. v Unczur, 37 AD2d 480; Rhulen-Immoor, Inc. v Rivera, 61 AD2d 1116; Phoenix Assur. Co. v Stark Mobile Homes, 39 AD2d 514; Matter of O’Garro v New York State Dept. of Mental Hygiene, 60 AD2d 546, 46 NY2d 853; Central Val. Concrete Corp. v Montgomery Ward & Co., 34 AD2d 860.) III. Petitioner sought to show, and Commission counsel conceded that the charges in the main concerned interpretations of law, something which has been recognized repeatedly does not justify judicial misconduct proceedings.
      (Matter of Reeves, 63 NY2d 105; Matter of Sardino, 58 NY2d 286.) IV. The motion should be granted so that the agreed statement be vacated, a hearing take place in front of a Referee, and the Commission reconsider the case based upon a full record. (1420 Concourse Corp. v Cruz, 135 AD2d 371; Matter of Klein, 63 NY2d 895.) V. The Commission’s determination is based upon erroneous interpretations of law. (Matter of Spector v State Commn. on Judicial Conduct, 47 NY2d 462; Matter of Quinn v State Commn. on Judicial Conduct, 54 NY2d 386; Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Cunningham, 57 NY2d 270; Matter of Seiffert, 65 NY2d 278; Braun v C. E. P. C. Distribs., 80 AD2d 505.) VI. Judge LaBelle’s interpretations of the statutes cited by the Commission’s determination are reasonable and were made in good faith. To commit an error of law is not judicial misconduct. (Matter of Greenfeld, 71 NY2d 389; Matter of Lenney, 71 NY2d 456; Matter of Shilling, 51 NY2d 397; Matter of Kiley, 74 NY2d 364; Matter of Edwards, 67 NY2d 153.) VII. The Commission’s conclusions are erroneous and are not based upon a preponderance of the evidence. (Matter of Shilling, 51 NY2d 397; Matter of Cunningham, 57 NY2d 270; Matter of Sardino, 58 NY2d 286.) VIII. The sanction of removal is excessive and should be rejected. (Matter of Waltemade, 37 NY2d [a]; Matter of Intemann, 73 NY2d 580; Matter of Conti, 70 NY2d 416; Matter of Gelfand, 70 NY2d 211; Matter of Cooley, 53 NY2d 64; Matter of Greenfeld, 71 NY2d 389; Matter of Myers, 67 NY2d 550; Matter of Wait, 67 NY2d 15; Matter of Reedy, 64 NY2d 299; Matter of Kelso, 61 NY2d 82.)

      Gerald Stern, Cathleen S. Cenci and Jean M. Savanyu for respondent. I.
    Petitioner’s lack of fitness to serve as a Judge is amply demonstrated by his intentional disregard of fundamental rights. (Matter of American Civ. Liberties Union v McAdoo, 229 App Div 511; People ex rel. Shapiro v Keeper of City Prison, 290 NY 393; People ex rel. Shaw v Lombard, 95 Misc 2d 664; Matter of Sardino, 58 NY2d 286; Matter of McGee v State Commn. on Judicial Conduct, 59 NY2d 870; Matter of Reeves, 63 NY2d 105; Matter of Tighe, 97 App Div 28; Matter of Capshaw, 258 App Div 470; Matter of Barlow, 141 App Div 640; Matter of Greenfield, 76 NY2d 293.) II. The sanction of removal is appropriate. (Matter of Sardino, 58 NY2d 286; Matter of McGee v State Commn. on Judicial Conduct, 59 NY2d 870; Matter of Reeves, 63 NY2d 105; Matter of Tyler, 75 NY2d 525; Matter of Kuehnel v State Commn. on Judicial

      Conduct, 49 NY2d 465.) III. The Commission’s denial of petitioner’s motion for reconsideration was appropriate and not subject to review in this Court. (Matter of Commission on Judicial Conduct of State of N. Y. v Regan, 61 NY2d 1008; Matter of Lenney, 70 NY2d 863; Hallock v State of New York, 64 NY2d 224; Matter of Frutiger, 29 NY2d 143; Rivera v State of New York, 115 AD2d 431; People v Francis, 38 NY2d 150; People v Dixon, 29 NY2d 55; People v Miller, 42 NY2d 946; People v Garrett, 43 AD2d 503; Matter of Benjamin S., 55 NY2d 116.)
   OPINION OF THE COURT

Per Curiam.

Petitioner has been a Judge of the Saratoga Springs City Court since 1970 and was previously an acting Judge of that court since 1964. Following an investigation into the propriety of securing orders issued by petitioner in nonfelony criminal cases, the State Commission on Judicial Conduct determined that petitioner engaged in misconduct by abusing the bail process and that, therefore, he should be removed from office. After reviewing the record of the Commission’s proceedings, including in particular the testimony of the petitioner, we conclude that a censure is the appropriate sanction for petitioner’s misconduct, which was both less frequent and less egregious than the Commission’s findings indicate.

The Commission’s investigation focused on petitioner’s bail decisions with respect to approximately 50 defendants that appeared before him in nonfelony cases from 1986 through 1989. Some of these defendants appeared in more than one case. Each defendant had apparently been committed to jail without bail at some point during the pendency of the criminal action. Commission counsel took the position that any such commitment was improper because CPL 530.20 (1) provides that when a defendant is charged with offenses of less than a felony grade, "the court must order recognizance or bail.” During the investigation, petitioner gave two days of testimony before a member of the Commission in which he responded to questioning by a member of counsel’s staff and explained his bail decisions in the cases in question.

On March 8, 1990, the Commission served a formal written complaint upon petitioner containing seven charges of misconduct and alleging violations of sections 100.1, 100.2 and 100.3 (a) (1) and (4) of the Rules Governing Judicial Conduct (22 NYCRR) and Canons 1, 2 and 3 (A) (1) and (4) of the Code of Judicial Conduct. Charge I alleged that in an unspecified number of nonfelony cases petitioner committed defendants to jail, prior to trial, without setting bail in violation of CPL 530.20 (1) and set bail at the time arrest or bench warrants were issued, without giving defendants an opportunity to be heard and without considering factors set forth in CPL 510.30 (2) (a). The remaining six charges set forth specific instances in which petitioner committed six defendants to jail without bail in nonfelony cases.

On September 17, 1990, petitioner, his attorney and the Administrator of the Commission entered into an agreed statement of facts pursuant to Judiciary Law § 44 (5), waiving the hearing provided for by Judiciary Law § 44 (4) and stipulating that the Commission would make its determination on the basis of the agreed-upon facts and various exhibits, including transcripts of petitioner’s prior testimony.

With respect to Charge I, the parties agreed that during the relevant period, in over 50 nonfelony cases involving 44 defendants, petitioner "committed the defendants * * * to jail without setting bail as required by section 530.20 (1) of the Criminal Procedure Law”, that petitioner was aware that the law requires that bail be set on a nonfelony charge and that "on several occasions” representatives of the Public Defender’s office and the Sheriff’s department had informed petitioner that commitments without bail in such cases were improper. In addition, they agreed that in 12 cases petitioner had set bail in connection with the issuance of warrants for defendants’ arrest, at times when the defendants were not before him and without considering the factors set forth in CPL 510.30 (2) (a). The parties also agreed to the facts underlying the specific cases outlined in Charges II through VII. The agreed statement of facts made no recommendation as to a sanction.

After submission of written memoranda and oral argument, the Commission issued a determination sustaining all of the charges in the complaint (except for a charge withdrawn pursuant to the parties’ agreement [see, supra, n 1]) and ordering petitioner’s removal from office. Petitioner requested review of the Commission’s determination by this Court, thus invoking our authority to "review the commission’s findings of fact and conclusions of law” and to "impose a less or more severe sanction” than that imposed by the Commission (NY Const, art VI, § 22 [d]; Matter of Kiley, 74 NY2d 364, 368).

Petitioner’s primary argument before us is that the Commission’s interpretation of CPL 530.20 as requiring him to order recognizance or bail in all nonfelony cases is either erroneous or, if it is correct, the point is sufficiently arguable that his actions in accord with a contrary interpretation amount only to an error of law, not misconduct.

The statute provides in relevant part,

"When a criminal action is pending in a local criminal court, such court, upon application of a defendant, must or may order recognizance or bail as follows:
"1. When the defendant is charged * * * with an offense or offenses of less than felony grade only, the court must order recognizance or bail.” (CPL 530.20 [1].)

Petitioner contends that, according to the introductory phrase of the statute, his duty to order recognizance or bail is only triggered if an application is made by the defendant. He notes that there is no proof in the record that any defendant made such an application. We reject this argument for several reasons.

While an application by the defendant may be required in some other procedural settings — a question we do not pass upon — in the usual case it is plainly the court’s duty to order bail or recognizance in a nonfelony case at the time the defendant is arraigned. CPL 170.10 (7) provides that, in such a case, "[u]pon the arraignment, the court, unless it intends to make a final disposition of the action immediately thereafter, must, as provided in subdivision one of section 530.20, issue a securing order either releasing the defendant on his own recognizance or fixing bail for his future appearance in the action”. The reference to CPL 530.20 does not, as petitioner contends, incorporate the entire statute, including the language purportedly requiring an application by the defendant. The reference is only to subdivision (1) of CPL 530.20 and not to the introductory phrase in which that supposed requirement appears. If CPL 170.10 (7) were read to require an application by the defendant, it would provide nothing not already provided by CPL 530.20.

Moreover, it makes little practical sense to require a defendant to make an application for recognizance or bail, a benefit of obvious importance and to which the defendant is entitled as a matter of right, at a time when the defendant is unlikely to be represented by counsel. Finally, we note that throughout the proceedings before the Commission petitioner conceded that, as a general matter, defendants are entitled to recognizance or bail in nonfelony cases. The agreed statement of facts provides that petitioner "was aware, at all times relevant herein, that the law requires that bail be set on a non-felony charge,” and nowhere in his testimony did petitioner suggest that his commitment of defendants without bail was justified because they made no application for bail or recognizance.

From this concession, the conclusion is inescapable that, in several cases during the four-year period investigated, petitioner improperly committed defendants to jail without bail, knowing that the law required that bail be set. We agree with the Commission to that extent and thus sustain the finding that petitioner knowingly committed legal error and engaged in sanctionable conduct.

However, the Commission’s determination overstates both the number and the nature of these acts. According to the Commission, petitioner improperly committed defendants without bail "on 96 occasions in 59 cases involving 44 defendants”. An example involving one of these defendants demonstrates that the Commission’s figures overstate the case.

According to petitioner’s testimony, a defendant named Rawling was arrested on October 13, 1987 and arraigned either on that same day or on October 15. He was committed without bail and the case was adjourned to October 22 pending the outcome of a psychiatric examination to determine his capacity to understand the proceedings against him (see, CPL art 730). The psychiatric report, which found Rawling to be competent, was completed on October 20, but apparently was not yet available to petitioner by October 22, and the matter was again adjourned to October 29. On that date the matter was adjourned to November 5, when Rawling appeared with an attorney and entered a guilty plea. The plea agreement apparently contemplated some term of imprisonment, perhaps nine months. The matter was adjourned to December 10 and then to December 17, when Rawling was released on a conditional discharge. From the time of his arraignment until his release on December 17, Rawling was confined without bail.

According to a schedule attached to the agreed statement of facts, the charges pending against Rawling during this time included petit larceny, two counts of harassment and two weapons possession charges. The record does not reflect whether all of these were charged together or whether the charges accumulated while Rawling was confined. It is clear enough from the record, nevertheless, that to the extent that Rawling’s confinement was improper, it was a single episode relating to all of the charges. In reaching its determination that petitioner abused the bail process in 59 cases, however, the Commission treated this episode as five separate cases, based on the five criminal charges against the defendant. Similarly, in concluding that there were 96 instances of such misconduct, the Commission treated each time that the Rawling’s status was continued after an appearance — seven times in this example — as a separate instance of misconduct.

This methodology obviously inflates the numbers. More importantly, however, it suggests that the Commission relied heavily, if not exclusively, on the bare data contained in the charts prepared by Commission counsel in arriving at these figures. It is only by reading those charts apart from the context provided by petitioner’s explanatory testimony that one could conclude that the Rawling matter involved five separate cases. Apart from inflating the figures, this apparent failure to look at the cases individually and in context led to errors as a matter of substance, not only in the Rawling case but in several others as well.

For example, according to the Commission’s findings, the entire two-month period of Rawling’s confinement was unlawful. Those findings overlook the fact that the bulk of that time, from defendant’s guilty plea on November 5 until his release on December 17, was postconviction confinement. While a defendant may be eligible for bail between conviction and sentence (see, CPL 530.45), it is not unusual or unlawful for a defendant, anticipating a period of incarceration, to choose to remain in jail to accumulate credit toward satisfaction of the impending sentence. Petitioner testified that, to the best of his recollection, that is precisely what occurred in the Bawling case.

In other cases, petitioner indicated that bail was not considered, at the request or with the acquiescence of defense counsel, because the defendants were being held on other charges or parole violation warrants which precluded their release. Defendants commonly eschew bail in these circumstances to ensure that they will receive maximum jail time credit (see, Penal Law § 70.30 [3]; § 70.40 [3] [c]). Where, as in these cases, petitioner’s failure to set bail is explainable as a tactical maneuver for the benefit of the defendants, it cannot be considered misconduct.

The Commission also erred when it determined that petitioner acted improperly when he committed Bawling to jail without bail in a later case following the defendant’s arrest for violation of the conditions of the conditional discharge previously granted. In such a case, commitment without bail is expressly authorized by the Criminal Procedure Law (CPL 410.60). Similar errors, in cases involving other defendants, occurred when the Commission overlooked specific provisions of the law authorizing commitment without bail, even when the defendant is nominally charged only with a nonfelony. In one case the defendant had failed to pay court-ordered restitution (see, CPL 420.10 [3]), and in another case the defendant violated a condition attached to an adjournment in contemplation of dismissal (see, CPL 530.13 [1], [8] [a]).

In another, larger category of cases, the Commission’s view of the law, although not clearly erroneous, is sufficiently debatable that petitioner’s actions pursuant to a different interpretation cannot be said to constitute misconduct. In each of these cases, involving approximately 16 defendants including Bawling, petitioner committed the defendant without bail because he believed that the defendant was in need of a psychiatric examination to determine his or her fitness to proceed. In each case, according to petitioner, the defendant’s behavior indicated that he or she could not be relied upon to attend such an examination and there was no family member or other responsible person available to ensure that the defendant would attend.

The Commission does not dispute that the circumstances were as petitioner described them and has not suggested that petitioner was unjustified in ordering the examinations (cf, Matter of Sardino, 58 NY2d 286). The Commission contends, however, that even in these circumstances CPL 170.10 (7) and 530.20 (1) require that a defendant in a nonfelony case either be released on his own recognizance or be given the opportunity to be released on bail. The Commission may be correct.

On the other hand, subdivisions (2) and (3) of CPL 730.20, which deal specifically with procedures governing orders of examination, provide some support for petitioner’s position that he is vested with discretion to determine whether a defendant should be confined, either in jail or in a hospital, pending a psychiatric report. The ambiguity cannot and need not be resolved here; its resolution must await a proper case and the proper parties. It is sufficient for resolution of this case to point out that the ambiguity exists and that, because it exists, petitioner’s reading of the statutes one way or the other cannot constitute misconduct.

In four of the remaining cases, those involving defendants Barton, Novotny and Ortega and one of the three cases involving defendant Martin, we conclude, crediting petitioner’s uncontroverted testimony, that the charges of misconduct are not sustained. In these cases the record indicates that petitioner either did set bail, but court documents inaccurately reflect that he did not or, as in the Novotny case, the failure to set bail with respect to one of several simultaneous charges was simply inadvertent.

That leaves approximately 24 cases in which petitioner indeed failed to set bail without legal justification. Ten of these involved defendants who were initially released, either on recognizance or bail, but who failed chronically to make scheduled court appearances. The commitments without bail were made following the defendants’ arrests on bench warrants. Although petitioner understandably believed that incarceration was necessary to ensure these defendants’ appearances, his failure to set bail was nonetheless improper (see, CPL 530.60).

In another nine cases, petitioner indicated that he did not set bail because, based on his knowledge of the defendants and in some cases pursuant to their explicit requests, he believed that they preferred to remain in jail. The defendants in these cases were homeless and in many cases suffering from both the immediate and chronic effects of drug or alcohol abuse. Petitioner believed that they were more comfortable, safer and better cared for in jail than they would be if they were returned to the streets from which they had just been removed. Although we cannot find fault with these concerns, they do not justify petitioner’s failure to abide by the statutory requirement that he at least set bail, if only in a nominal amount.

The remaining cases primarily involved instances in which the defendant’s identification was not established to petitioner’s satisfaction. A lack of information about the defendant’s identity, including the defendant’s history and ties to the community, might properly be a factor in determining the amount of bail necessary to secure his or her appearance (see, CPL 510.30 [2]). But there is no provision in the law for denying bail on that basis in a nonfelony case. Accordingly, petitioner acted improperly in these cases, too.

Little need be said about the charge that petitioner improperly set bail on arrest warrants and bench warrants. The practice of indicating a suggested bail on such warrants, it has been noted, is common and, although it may not be advisable, it is not prohibited by any statute (see, Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 120.40, at 133 [1981]). The purpose of a notation indicating a specific amount of bail on an arrest warrant, according to petitioner’s testimony, is to allow the arrestee to post bail immediately, without having to wait for arraignment. A notation of "no bail”, which petitioner commonly included on bench warrants, was to ensure that the defendant would be brought before him and not released until petitioner could inquire about the reasons for missed appearances. In cases where the defendant is in default of bail, the law requires that he or she be brought before the court in which the warrant is returnable (CPL 120.90 [3]); thus, a notation for that purpose may be superfluous, but it is not contrary to law. As long as these notations do not preclude fair consideration of relevant bail factors when the defendant is brought before the court, we cannot say that their use constitutes misconduct.

Finally, we note what is obvious from the foregoing discussion. Nothing in this record suggests that petitioner acted to advance his own interests over those of the defendants or that he was vindictive, biased, abusive or venal. On the contrary, it appears that, to the extent that petitioner’s actions were improper, they were motivated primarily by compassion for those whose problems do not belong in the criminal courts. At the worst, he exhibited impatience with those who abused their right to bail by ignoring scheduled court appearances. In the proceedings before the Commission, petitioner was forthright, cooperative and contrite. He readily agreed to change those practices found to be improper. Under these circumstances, the sanction of removal is too harsh.

Accordingly, the determined sanction should be rejected, without costs, the sanction of censure imposed, and the request for review of the November 12, 1991 order of the Commission dismissed.

Kaye, J.

(concurring in part, dissenting in part). Even based on the Court’s opinion, and without further resort to the ample factual record, I would accept the determined sanction of removal.

Petitioner admitted he "was aware, at all times relevant herein, that the law requires that bail be set on a non-felony charge.” Whatever else may be said of the Commission’s numbers, the Court acknowledges that on at least 24 occasions, petitioner "improperly committed defendants to jail without bail, knowing that the law required that bail be set.” (Majority opn, at 358.) Thus, on at least 24 occasions petitioner knowingly denied defendants "a benefit of obvious importance and to which the defendant is entitled as a matter of right” (majority opn, at 358). Moreover, he did this at a time when "the defendant is unlikely to be represented by counsel.” (Id., at 358.)

In concluding that censure, rather than removal, is the appropriate sanction, the Court balances petitioner’s motivation against those repeated deliberate violations of the law and defendants’ rights. Petitioner apparently concluded that the defendants would be "more comfortable, safer and better cared for in jail” (majority opn, at 362). At worst, the Court notes, petitioner "exhibited impatience with those who abused their right to bail” (majority opn, at 363). Whichever petitioner’s motivation, in at least two dozen instances he knowingly and wrongfully incarcerated individuals before any determination of their guilt, even for periods longer than a sentence after conviction.

Whether petitioner was indeed contrite, or agreed to change his unlawful practice after the initiation of disciplinary proceedings, the appropriate sanction is removal, as the Commission determined. Far less egregious misconduct has warranted removal in the past.

Chief Judge Wachtler and Judges Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion; Judge Kaye dissents in part and votes to accept the determined sanction in a separate opinion in which Judges Simons and Alexander concur.

Determined sanction rejected, etc.

      . The first charge also contained an allegation that petitioner incarcerated defendants prior to trial for periods longer than the maximum pretrial detention periods set forth in CPL 30.30 (2). This charge was later withdrawn by agreement of the parties.

      . An earlier draft of the agreed statement of facts had included a recommendation that the appropriate sanction was censure. Petitioner’s counsel objected to the inclusion of certain legal conclusions and asked that any sanction be private. Commission counsel refused to agree to a recommendation of a private sanction, but agreed to remove the legal conclusions and to omit any reference to a recommended sanction. The letter so advising petitioner’s counsel noted that Commission counsel could recommend any sanction authorized by the Judiciary Law, including removal.
      After the Commission determined that petitioner should be removed, petitioner sought to have the agreed statement of facts and the waiver of a hearing vacated, and to have the Commission reconsider the matter, on the ground that petitioner did not realize that the final version of the agreed statement of facts left open the possibility of removal. The Commission denied the motion in an order dated November 12, 1991 and petitioner now seeks review of that order. To that extent, the petitioner’s request for review must be dismissed. This Court does not have jurisdiction to entertain a request for review of such an order (NY Const, art VI, § 22; Judiciary Law § 44; see, Matter of Lenney, 70 NY2d 863).


author: Titone, J.

text:
    The People of the State of New York, Respondent, v Jeffrey Young, Appellant.
    Argued February 19, 1992;
    decided April 7, 1992

      POINTS OF COUNSEL

      Mitchell J. Briskey and Philip L. Weinstein for appellant.
    The prosecution’s failure to disclose a nonduplicative piece of Rosario material — a secretly generated police document containing statements of the investigating detective — was reversible error, notwithstanding the view of the court below that the error could be excused under a "commonsense” exception. (People v Jones, 70 NY2d 547; People v Walsh, 262 NY 140; People v Ranghelle, 69 NY2d 56; People v Poole, 48 NY2d 144; People v Vilardi, 76 NY2d 67; People v Consolazio, 40 NY2d 446; People v Novoa, 70 NY2d 490; People v Rothman, 117 AD2d 535, 69 NY2d 767; People v Spruill, 47 NY2d 869; People v McLaurin, 38 NY2d 123.)

      Charles J. Hynes, Kings County District Attorney (Caroline R. Donhauser and Jay M. Cohen of counsel), for respondent. I.
    Defendant’s claim presents no question of law for this Court’s review. (People v Rivera, 78 NY2d 901; People v Medina, 53 NY2d 951; Ocean Acc. & Guar. Corp. v Otis Elevator Co., 291 NY 254.) II. The People had no obligation under the Rosario rule to disclose the addendum to the defense at trial, and, thus, defendant’s claim must fail. (People v Jones, 70 NY2d 547; People v Rosario, 9 NY2d 286, 368 US 866; People v Poole, 48 NY2d 144; People v Perez, 65 NY2d 154; People v Ranghelle, 69 NY2d 56; People v Williams, 165 AD2d 839; People v Mills, 142 AD2d 653, 72 NY2d 1047; People v Adger, 75 NY2d 723; People v Gissendanner, 48 NY2d 543; United States v Bagley, 473 US 667.)

      Robert M. Morgenthau, New York County District Attorney (Mark Dwyer and Patrick J. Hynes of counsel), pro se, amicus curiae.

    Affirmance of defendant’s conviction, even if based on recognition of an additional commonsense limit to the Rosario rule, was proper. (People v Rosario, 9 NY2d 286; People v Jones, 70 NY2d 547; People v Ranghelle, 69 NY2d 56; People v Consolazio, 40 NY2d 446; People v Poole, 48 NY2d 144; People v Kanefsky, 50 NY2d 162; Matter of Gina C, 138 AD2d 77; People v Velez, 161 AD2d 823; People v Vilardi, 76 NY2d 67; People v McGrath, 46 NY2d 12.)
   OPINION OF THE COURT

Titone, J.

In this case, the Appellate Division relied on what it perceived to be the "commonsense limits” of the Rosario rule as a basis for affirming a conviction notwithstanding the prosecution’s failure to disclose an "unusual occurrence report.” The issue is whether the report contained statements of a trial witness that would constitute Rosario material. Defendant’s appeal also requires us to consider whether a "commonsense” exception to the Rosario-Consolazio-Jones doctrine should be recognized when the reviewing court deems the information in the undisclosed putative Rosario material too insubstantial or trivial to warrant the reversal of a conviction.

Defendant was charged with murdering an individual named Booker, ostensibly to prevent Booker from revealing another crime that the two men had committed together. The People’s primary witness, Marie Somie, defendant’s girlfriend, testified that defendant and his brother killed Booker in the house that she and defendant shared and then sent the family to a movie while he disposed of the body. According to Somie, who had not personally seen the killing or the deceased’s body, defendant had described the details of the crime to her and then, when she returned from the movie, told her of how he had wrapped Booker’s body in a plastic bag and taken it to the dump. The body was subsequently discovered at the dump by a passerby, and the police were immediately contacted.

Several police officers, including Officer Serra and Detective Daniel, both of whom testified at trial, responded to the call. Daniel, who was the detective assigned to investigate the crime, attempted unsuccessfully to obtain fingerprints from either the bag or the body. Daniel subsequently arrested defendant after speaking with Somie. Daniel also executed a search warrant at the house where the murder was supposed to have occurred and took samples from the carpet in an effort to assist in the forensic aspects of the investigation.

The defense took the position at trial that Somie had fabricated the entire story because she was angry with defendant for refusing to leave his wife for her. According to the defense witnesses, defendant had been at home enjoying his seven-year-old son’s birthday party on the day Somie claimed Booker was killed.

The jury rejected defendant’s alibi defense and found him guilty of second degree murder. He was sentenced on April 25, 1989 to a 25-year-to-life term of imprisonment.

While defendant’s appeal to the Appellate Division was pending, the prosecutor discovered a document entitled "unusual occurrence report addendum” that had not been turned over to the defense during trial. The document, which purports to be an "unofficial” "confidential” report of information that the author "feeljs] [the commanding officer] should know,” was signed by a Sergeant Maisano and contained the results of a "[fjurther investigation at the scene by the investigating officer” (emphasis supplied), including that officer’s observations of marks on Booker’s body that were possibly indicative of rope burns.

After the document’s existence was revealed, the parties entered into a stipulation whereby it was agreed that the document had not been made available at trial and that it would become part of the record on appeal. Defendant thereafter filed a supplemental brief in which he argued that his conviction should be reversed because his rights under CPL 240.45 and the Rosario doctrine had been violated. In response, the People argued, among other things, that no Rosario violation had been proven because it was unclear whether the "investigating officer” whose statements were referred to in the report was one of the police officers who testified for the People at the trial.

Upon hearing the appeal, the Appellate Division ruled that the prosecution’s failure to disclose Maisano’s "unusual occurrence report” did not require reversal. The court did not find it necessary to determine whether the "investigating officer” was one of the two responding police officers who testified at trial, because, in its view, the material in the report was duplicative of statements contained in other documents that had been provided to the defense. Further, because, in the court’s view, the report "in no way affected the credibility of the police officers who testified at trial, much less the defendant’s guilt or innocence,” " 'the commonsense limits attendant to the Rosario rule militate against reversing [this] murder conviction’ ” (172 AD2d 790, 791, quoting People v Velez, 161 AD2d 823, 824). In reaching this conclusion, the court relied, in part, on People v Ranghelle (69 NY2d 56, 63) and People v Consolazio (40 NY2d 446, 454, cert denied 433 US 914), in which this Court recognized other "commonsense limits” to the Rosario rule of mandatory disclosure (see also, People v Jackson, 78 NY2d 638, 644). However, we conclude that the exception to the Rosario rule that the Appellate Division has posited accords with neither "common sense” nor the principles that inform the long-standing Rosario doctrine. Consequently, assuming that the undisclosed report was, in fact, Rosario material, there should be a reversal.

Initially, contrary to the Appellate Division’s conclusion, the undisclosed report was not merely the "duplicative equivalent” of other material that the defense had been given. While we have recognized an "exception” to the Rosario rule of mandatory disclosure for material that is duplicative (see, People v Jones, 70 NY2d 547, 551, n 3; People v Consolazio, 40 NY2d 446, 454, supra), there continues to be a "strong presumption of * * * discoverability” (People v Ranghelle, 69 NY2d 56, 63, supra) and, consequently, the "exception” has been narrowly circumscribed.

Two documents cannot be "duplicative equivalents” if there are variations or inconsistencies between them (id., at 65). Further, "[statements are not the 'duplicative equivalent’ of previously produced statements * * * just because they are 'harmonious’ or 'consistent’ with them” (id., at 63). Indeed, a statement that is consistent with other disclosed material but omits details or facts cannot be considered the "duplicative equivalent” of the disclosed material, since omissions often furnish important subjects for cross-examination (id., at 64). Finally, since the purpose of Rosario disclosure is to provide the defense with material for cross-examining specific prosecution witnesses, the fact that withheld information was available through another disclosed document embodying someone else’s statements is irrelevant and cannot serve to remedy the harm caused by the prosecution’s failure to disclose.

Here, assuming that the withheld report contained statements made by one of the police officers who testified, it cannot be considered duplicative of other material in the defense’s possession because none of Daniel’s disclosed statements mentioned the rope-burn marks that were mentioned in the withheld report. Although the rope-burn marks were mentioned in the autopsy report, that report was not prepared by an investigating police officer and was therefore not a "duplicate” of the statements made in the undisclosed police report. The withheld document also omitted several details contained in the other reports prepared by Detective Daniel, one of the testifying officers. Consequently, the Appellate Division erred in concluding that the exception for "duplicative equivalents” is applicable.

Turning now to the Appellate Division’s alternative rationale, we hold that it too was erroneous. Since this Court’s decision in People v Consolazio (supra), we have adhered to the view that traditional harmless error analysis is inappropriate in appeals involving Rosario violations (People v Jones, supra; People v Novoa, 70 NY2d 490, 498-499; People v Ranghelle, supra; People v Perez, 65 NY2d 154). Even in our most recent consideration of the issue in People v Jackson (supra, at 649), where the Court spelled out a different standard for postconviction proceedings, care was taken to "emphasize that the per se error rule is still the law in this State when a Rosario claim is the subject of a direct appeal.” The decision in Jackson, which was premised on the unique policy considerations related to the finality of criminal judgments, thus was not intended to signal a more general retreat from the Court’s ongoing "commitment” to the Consolazio-Jones per se rule of reversal.

The "commonsense” exception posited by the Appellate Division is nothing more than a substitute for the harmless error rule. That this is so is evident from that court’s consideration of the degree to which the undisclosed material bears on the accused’s factual guilt or innocence — a consideration unrelated to the values of procedural fairness that inform the Rosario rule (see, People v Jones, supra, at 550). The incompatibility of the Appellate Division’s approach with our Rosario case law is also demonstrated by the court’s assertion that "the information in the subject report in no way affected the credibility of the police officers who testified at trial.” (172 AD2d 790, 791, supra.) As we have stated over and over again, "a judge’s impartial determination as to what portions may be useful to the defense, is no substitute for the single-minded devotion of counsel for the accused” (People v Perez, supra, at 160; accord, People v Jones, supra, at 551-553; People v Novoa, supra, at 490).

Indeed, this Court has already explicitly rejected the suggestion that reversal should not be required where the withheld Rosario information was "of only 'de minimis’ or 'minimal’ value” (People v Jones, supra, at 552, n 4). As we stated in People v Jones (supra, at 552, n 4), judicial assumptions as to the impeachment value of the undisclosed material are "beside the point,” since "the conclusion that the information was of no value must necessarily be founded on sheer speculation as to what might have occurred * * *: i.e., the questions counsel might have asked * * *, how the witness might have answered, and how such differences in the testimony might have affected the decision of the jury.” It is thus apparent that while we have from time to time referred to the general notion of "commonsense limits” on the Rosario rule (see, People v Jackson, supra; People v Ranghelle, supra, at 63), the specific exception to the per se reversal rule that is proposed here is simply not consistent with the principles underlying our case law.

Having concluded that there is no principled basis for refusing to apply the Consolazio-Jones per se reversal rule, we must direct our attention to the proper remedy under the unique circumstances of this case. The withheld report would constitute Rosario material only if the "investigating officer” whose statements it contained was one of the police officers who testified at defendant’s trial (see, CPL 240.45 [1] [a]). The report itself is ambiguous and leaves considerable room for uncertainty on that point. Although Detective Daniel, who was one of the testifying officers, had been the detective assigned to investigate and might well be the "investigating officer” referred to, he was not the only police officer involved in the field investigation and, thus, it cannot be assumed that the statements in the report were his. Further, because the withheld material was not discovered until the appeal to the Appellate Division was pending, there was no opportunity for the trial court to explore the facts surrounding the creation of the report. Thus, an additional inquiry is required.

While the proper procedural vehicle for such an inquiry involving documents discovered after judgment is ordinarily a hearing held pursuant to CPL article 440, resort to that vehicle is unnecessary in this case because of the parties’ stipulation that the previously undisclosed report would become part of the record on direct appeal. Inasmuch as the report thereby became part of the record on appeal, there is no procedural impediment to ordering an inquest before the trial court to clarify its contents as part of the proceedings on the direct appeal (see, People v Adger, 75 NY2d 723, 726).

Under these circumstances, we conclude that the proper remedy is to modify the order of the Appellate Division and remit to the trial court for a determination of whether the withheld report contains statements made by a witness who testified for the People at trial. If, after that inquiry, the court determines that the report contains a statement of a testifying witness that should have been turned over to the defense pursuant to CPL 240.45 (1) (a), a new trial should be ordered. On the other hand, if it is determined that defendant was not entitled to disclosure because the report did not, in fact, contain statements made by a witness for the People, the judgment should be amended to reflect that determination (see, People v Adger, supra).

Accordingly, the order of the Appellate Division should be modified by remitting to the Supreme Court for further proceedings in accordance with this opinion, and, as so modified, affirmed.

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

Order modified, etc.

       According to the People, this document was one of many similar reports that had been generated by the Police Department but had never been disclosed to the trial assistants assigned to prosecute the cases. The practice was apparently discovered by the District Attorney’s office in May of 1990. In defendant’s case, the prosecutor turned over the document to defense counsel in August 1990.