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Eliot Spitzer, Attorney General (Carol Olson of counsel), for State of New York, defendant.
Davis Polk & Wardwell (Frank Moseley of counsel), for plaintiff.
Lucindo Suarez, J.
The primary issues in this motion to dismiss the complaint are whether plaintiff bar association has standing to challenge the statutory compensation rates paid to assigned private counsel, and whether such challenge presents a justiciable claim. This Court answers both questions in the affirmative. The secondary and tertiary issues are whether defendant Governor George E. Pataki is a proper party to this action, and whether plaintiff New York County Lawyers' Association has stated a cause of action in its tortious interference with contract claim. This Court answers both questions in the negative.
New York County Lawyers' Association (NYCLA) commenced this action against New York State Governor George E. Pataki and the State of New York (collectively State) seeking declaratory and injunctive relief, pursuant to CPLR 3001 and 6301, and 42 U.S.C. § 1983, challenging the compensation levels and limits for assigned private counsel, and the distinction between in-court and out-of-court work, as set by County Law § 722-b, Family Court Act § 245, and Judiciary Law § 35, and barring interference with performance of its obligations under the assigned counsel program to prevent state and federal constitutional violations that result in ineffective legal representation to children in Family Court proceedings and indigent adults in Criminal Court actions at the trial and appellate levels in New York City. NYCLA alleges that the State's failure to take measures to ensure adequate levels of compensation has placed the system of assigned counsel on the brink of collapse, creating an imminent threat of widespread due process and right to counsel violations, and allowed the First Department's assigned counsel program to deteriorate to a point where it subjects children and indigent adults to a severe and unacceptable risk where meaningful and effective legal representation is no longer provided.
The State moves to dismiss the complaint pursuant to CPLR 3211 (a) (3) and (7) contending that: NYCLA lacks organizational and third-party standing to raise the claims asserted as it seeks a declaration of the rights of its members, and of some of its members' clients and potential clients, and that the complaint demonstrates nothing more than a speculative injury or risk to their rights; NYCLA is not the proper organization to assert the constitutional rights of the individual and potential clients, particularly claims involving ineffective assistance of counsel because its members have or may have a direct conflict with those rights, and the individual clients have the ability to litigate any such claims by postconviction remedies; the complaint fails to state a justiciable case or controversy against Governor Pataki as he is not the official to whom the Legislature delegated responsibility to implement the provisions of the challenged statutes, is not a necessary party, and is entitled to absolute legislative immunity; the relief sought interferes with executive and legislative discretion, is not subject to judicial review, and would require an order directing the expenditure of state funds; and NYCLA fails to state a cause of action on its tortious interference with contract claim.
As enacted, County Law § 722-b initially set the compensation rates for assigned counsel at $15 per hour for in-court time and $10 per hour for out-of-court time, with monetary caps of $500 and $300, respectively, for felony and misdemeanor representation. These fees have been increased twice since 1965. Currently, participating attorneys receive $25 per hour for out-of-court work and $40 for in-court work. There is a monetary cap of $800 for all misdemeanor and Family Court cases and $1,200 for felonies and appellate matters. Compensation in excess of the above rates may be obtained from the trial court under " extraordinary circumstances," which determination is not subject to judicial review. (Matter of Werfel v Agresta, 36 N.Y.2d 624.) These rates have been in effect since 1986. Only the monetary cap provisions of County Law § 722-b and Judiciary Law § 35 (3) are the subject of this lawsuit.
The question of whether an individual or organization is a proper party to bring an action is an aspect of justiciability which must be considered at the outset of the litigation. (Matter of Dairylea Coop. v Walkley, 38 N.Y.2d 6, 9.) The fact that this case may have political overtones, involve public policy, or possibly touch upon executive or legislative functions does not negate its justiciability. (Matter of Boung Jae Jang v Brown, 161 A.D.2d 49, 55; see also, McCain v Koch, 70 N.Y.2d 109.)
Courts have been, and continue to be, called upon to protect the rights of the indigent and the administration of the courts, to insure compliance with the State's obligation. (See, Matter of McCoy v Mayor of City of N. Y., 73 Misc.2d 508 [city had obligation to appropriate adequate funds for operation of Housing Part of the Civil Court]; Zarabia v Bradshaw, 185 Ariz. 1, 912 P.2d 5 [court ordered a hearing to protect the rights of indigent criminal defendants to determine new compensation rates]; Carlson v State, 247 Ind 631, 220 N.E.2d 532 [court is empowered to order that it be provided reasonable and necessary operating expenses].) Accordingly, when the Legislature creates a duty of compensation " it is within the courts' competence to ascertain whether [the State] has satisfied [that] duty ... and, if it has not, to direct that the [State] proceed forthwith to do so." (See, Klostermann v Cuomo, 61 N.Y.2d 525, 531 [nondiscretionary statutory scheme obligated the state to provide continued treatment and adequate housing for persons treated for mental illness]; see also, Jiggetts v Grinker, 75 N.Y.2d 411, 415 [commissioner must establish adequate shelter allowances that bear a reasonable relation to the cost of housing in New York City].)
The State's contentions that sustaining NYCLA's claims would require an order directing the expenditure of state funds and impose judicial review of the Legislature's refusal or present reluctance to amend or modify its choice of compensation levels " is particularly unconvincing when uttered in response to a claim that existing conditions violate an individual's constitutional rights" (Klostermann, supra, at 537), and pose no barrier to a judicial declaration, if necessary, of the constitutional infirmities of the monetary cap provisions. Furthermore, the State's claim that any finding by this Court that the compensation rates are unconstitutional would constitute judicial interference with gubernatorial legislative immunity and both executive and legislative discretion is premature as the only issue before this Court is the procedural question of whether NYCLA has pleaded a prima facie case. (See, Campaign for Fiscal Equity v State of New York, 86 N.Y.2d 307, 316, n 4.)
This Court's power to entertain a claim or direct enforcement of a duty is dependent upon NYCLA establishing standing. NYCLA claims third-party and organizational standing: third party--on behalf of its association members' assigned panel clients; and organizational--on behalf ...