Matter of Poltorak v Clarke

[*1] Matter of Poltorak v Clarke 2020 NY Slip Op 20166 Decided on July 8, 2020 Supreme Court, Kings County Saitta, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on July 8, 2020
Supreme Court, Kings County

In the Matter of the Application of Bella Poltorak, Plaintiff,

against

Hon. Sharon Ab Clarke, in her capacity as Judge of the Family Court, Defendant.



2718/2017



Attorney For Plaintiff

Jill Zuccardy, Esq.

225 Broadway

New York, New York 10007

Attorney for Defendants

Holwell, Shuster & Goldberg, LLP

425 Lexington Avenue

New York, New York 10017
Wayne P. Saitta, J.

Petitioner BELLA POLTORAK, moves for summary judgment on her action for a $1,000 forfeiture against Defendant, HON. SHARON AB CLARKE pursuant to CPLR 7003[c] for failing to issuance a writ of habeas corpus, and Defendant CLARKE moves this Court for an Order pursuant to CPLR § 3211(a)(7) dismissing the amended complaint and the motions having come before the Court on February 6, 2020, and argument had thereon, now

Upon reading the Notice of Motion for Summary Judgment of Jill Zuccardy Esq., 225 Broadway, New York, New York 10007, and New York Legal Assistance Group, (Amanda Beltz Esq., of counsel), Attorneys for Plaintiff, dated October 31, 2019, together with the Affirmation in Support of Jill Zuccardy, Esq., dated October 31 2019, and all exhibits annexed thereto; the Memorandum of Law In Support, dated October 31, 2019; the Notice of Motion to Dismiss Plaintiff's Complaint of Holwell, Shuster & Goldberg LLP, 425 Lexington Avenue New Yok, New York 10017, (Vincent Levy, Esq., James McGuire Esq., Kevin D Benish Esq., and Brian T Goldman Esq., of counsel), Attorneys for Defendant, HON. SHARON AB CLARKE, dated November 26, 2019, together with the Affirmation in Support, of Kevin D Benish Esq., dated November 26, 2019, and the exhibits annexed thereto, the Memorandum of Law in Support of Defendant's Motion to Dismiss and in Opposition to Plaintiff's motion for Summary Judgment [*2]dated November 26, 2019; the Memorandum of Law In Opposition to Defendant's Motion to Dismiss and In Further Support of Plaintiff's Motion for Summary Judgment, dated December 9, 2019; Defendant's Reply Memorandum of Law, dated December 23, 2019; and after argument of counsel and due deliberation thereon, Defendant's motion is granted and Plaintiff's motion is denied for the reasons set forth below.

The question presented in this case is whether CPLR 7003[c] which provides for a forfeiture of $1,000 assessed against a judge personally for failing to issue a writ of habeas corpus is constitutional. CPLR 7003[c] presents a conflict between two long standing and core principles of our system of justice: the writ of habeas corpus and the doctrine of judicial independence.

STATEMENT OF FACTS

In May of 2017 Plaintiff's husband commenced a proceeding in Family Court seeking a determination concerning custody and visitation of their children. On September 19, 2017 Defendant CLARKE issued a writ of habeas corpus directing Plaintiff to return their eldest child to her husband forthwith and on September 20th issued a temporary order of custody and visitation granting Plaintiff temporary custody of two of their children and granting her husband temporary custody of their eldest child.

On September 25, 2017 the Appellate Division issued a temporary restraining order staying enforcement of the September 19th and 20th orders and reinstating a prior order which granted temporary custody of the eldest child to Plaintiff.

Despite the order of the Appellate Division the father continued to detain the child.

On September 26, 2017, Plaintiff filed a petition seeking a writ of habeas corpus for the return of her eldest child, based on the Appellate Division's temporary restraining order. Defendant CLARKE did not hear the application for a writ on September 26th but instead adjourned the application until October 3rd. After a hearing on October 3rd Defendant CLARKE declined to issue the writ on the record but did not issue a written order.

On or about October 10th Plaintiff, commenced this action as an Article 78 proceeding originally seeking an order (1) directing Defendant CLARKE to issue the writ of habeas corpus sought by Plaintiff, or in the alternative, issue a written order reflecting her oral denial of Plaintiff's application for a writ of habeas corpus and (2) imposing a Defendant CLARKE a forfeiture of $1,000 to be forfeited to Plaintiff pursuant to CPLR 7003[c], for failing to issue the writ.

On October 11th Defendant CLARKE issued a written order denying the petition for the writ of habeas corpus. Plaintiff appealed the order denying the writ.

On November 14, 2017 Plaintiff filed an amended petition which sought an order (1) directing Defendant CLARKE to issue the writ of habeas corpus and (2) imposing a Defendant CLARKE a forfeiture of $1,000 to be forfeited to Plaintiff pursuant to CPLR 7003[c].

This proceeding was marked off calendar pending the Appellate Division's determination of whether the denial of the writ of habeas corpus was proper.

On December 19, 2018 the Appellate Division reversed Defendant CLARKE's October 11th order denying the writ of habeas corpus, granted Plaintiff's petition for the writ of habeas corpus and ordered that pending a further hearing on custody, the eldest child reside with Plaintiff.

The amended petition was restored to the calendar and on August 1st 2019 a so ordered stipulation was entered into in which the proceeding was discontinued against the father, the [*3]cause of action seeking an order directing Defendant CLARKE to issue a writ of habeas corpus was discontinued as moot, and the Article 78 proceeding was converted into an action.

The only cause of action remaining is for the imposition of a $1,000 forfeiture on Defendant CLARKE's pursuant to CPLR 7003[c] for failure to issue the writ of habeas corpus.

Plaintiff has moved for summary judgment and Defendant has moved to dismiss the remaining cause of action pursuant to CPLR 3211(a)(7).

ANALYSIS

The decision of the Appellate Division has established that Defendant CLARKE incorrectly denied Plaintiff's application for a writ of habeas corpus. In doing so she violated the requirements of CPLR 7003(a) that she issue the writ sought unless it appears from the papers submitted that the person is not illegally detained.

The question before the Court is whether it is constitutional for the legislature to enact a statute that imposes a monetary forfeiture on a Judge for failing to issue a writ of habeas corpus. CPLR 7003[c] is unique in providing for a forfeiture against a Judge personally based on acts taken in performance of their judicial duties.

CPLR 7003[c] provides:

"For a violation of this section in refusing to issue the writ, a judge, or, if the petition was made to a court, each member of the court who assents to the violation, forfeits to the person detained one thousand dollars, to be recovered by an action in his name or in the name of the petitioner to his use."

Defendant raises three arguments as to why imposing a forfeiture on a judge personally for a determination made in a case before them is unconstitutional. First, that it is an interference in the judicial process by the legislature which violates the doctrine of separation of powers. Second, that is violates the doctrine of judicial immunity. Third, it violates the New York State constitutional prohibition on diminishing a judge's compensation during their term of office.

The forfeiture assessed against a judge personally, for failure to issue a writ of habeas corpus has been a part of habeas corpus procedure since the original English habeas corpus act of 1679. (Article X Habeas Corpus Act 1679 31 Car 2, c 2 [Eng].) The forfeiture was also included in the first habeas corpus statute adopted by the New York State Legislature. (Laws of New York 1787, Chap 39.)

The forfeiture was retained when New York adopted its first Code of Civil Procedure, the Field Code of 1848, and was continued in the Civil Procedure Code of 1880, and the Civil Practice Act of 1920.

The State legislature continued the forfeiture when it enacted the CPLR, even though the Advisory Committee on Practice and Procedure, in its Third Preliminary Report recommended the forfeiture be eliminated. (Third Preliminary Report of the Advisory Committee on Procedure and Practice, 1959, p 51.)

Notwithstanding its long history, the forfeiture has apparently never been imposed against a judge in New York. (Id. at 51; Vincent Alexander, Practice Commentaries, McKinney's Cons Laws of NY Book 7B CPLR 7003 p 107.)

Separation of Powers

Defendant's first argument is that CPLR 7003[c] violates the concept of separation of powers.

Under New York's Constitution the governmental powers are distributed among three branches—the executive, legislative and judicial (NY Constitution, art III, §1; art IV, § 1; art [*4]VI). None of these branches may arrogate unto itself the powers residing wholly in another branch. (Youngstown Co. v Sawyer, 343 US 579, 72 S Ct 863 [1952]; Oneida v Berle, 49 NY2d 515, 427 N.Y.S.2d 407 [1980]; Nicholas v Khan, 47 NY2d 24, 416 N.Y.S.2d 565[1979].)

It is also true that "there are areas in which the responsibilities of the three great branches of government overlap or intersect". (Oneida v Berle, at 523, 412.)

There has not been a complete separation of the legislative and judicial functions of New York State's government.

Historically the legislature of the state had a judicial role. Until the creation of the Court of Appeals in 1847 the members of the State Senate were members of the State's highest appellate court, the Court of Correction of Errors. (New York Constitution of 1821, art V §1.)

More pertinent to CPLR 7003[c], from the adoption of the Field Code of Civil Procedure, through the current CPLR, the rules of civil procedure for New York Courts have been set by the state legislature, rather than the courts. (Cohn v Borchard Affiliations, 25 NY2d 237 [1969].)

In upholding the constitutionality of a statute restricting the courts authority to dismiss a case for lack of prosecution, the Court of Appeals cited Section 30 of Article VI of the New York Constitution which provides, "The legislature shall have the same power to alter and regulate the jurisdiction and proceedings in law and in equity that it has heretofore exercised." (Id. at 247.)

The Court noted, "The language of the Constitution leaves little room for doubt that the authority to regulate practice and procedure in the courts lies principally with the Legislature." (Id. at 247.)

Also, while the legislature established the $1,000 forfeiture against a judge who wrongly denies the issuance of a writ of habeas corpus, it is a court that decides whether the writ was wrongly denied and whether in a particular case the forfeiture is applicable.

Rather than a separation of powers issue, the fact that the statute provides for a forfeiture against a judge personally, impinges upon another important safeguard of judicial independence, the doctrine of judicial immunity from civil suit.

Judicial Immunity

Defendant's second argument is that CPLR 7003[c] is unconstitutional because it violates the doctrine of judicial immunity.

CPLR 7003[c] infringes on judicial independence because the requirement that a judge issue a writ of habeas corpus, has never been absolute. A judge can refuse to issue a writ where a petitioner is not entitled to one.

The forfeiture in the original English habeas corpus act, and the first New York habeas corpus statute, applied only to judges who denied a writ that was " by this act required to be granted" and denied it during "vacation time", that is when the court was not in session. (Habeas Corpus Act of 1679 31 Car. 2, c. 2 [Eng] Article X; Laws of New York 1787, Chap 39.)

In 1830 the legislature extended the forfeiture to apply any Judge that refused a writ either during "vacation time", or when court was in session. (Matter of Nash, 16 Abb Pr 281 [Sup Ct NY County, 1863], affd. 36 NY 607.)

However, even after the forfeiture for declining to issue a writ of habeas corpus was extended to judges acting in session, the statutes continued to provide that a judge could refuse to issue the writ if the petitioner was not entitled to it.

The Civil Procedure Act of 1920 provided that:

"A court or a judge authorized to grant either writ must grant it without delay . . . unless [*5]it appears from the petition itself or the documents annexed thereto that the petitioner is prohibited from prosecuting the writ." Civil Practice Act §1235.

Similarly, the current CPLR 7003(a) which sets forth the requirements for issuing the writ provides:

"If it appears from the petition or the documents annexed thereto that the person is not illegally detained or that a court or judge of the United States has exclusive jurisdiction to order him released, the petition shall be denied."

Contrary to Plaintiff's position, the issuance of a writ of habeas corpus is not automatic. A judge to whom a petition for a writ of habeas corpus is presented must make a preliminary determination whether the petition and supporting papers, establish that the person is not illegally detained.

The fact that where a writ is issued there is a subsequent judicial determination as to whether the detention is lawful, does not change the fact a judge must make the preliminary determination whether the writ should be issued or denied.

Petitioner's argument that the court is bound to issue the writ citing, In re Waldon, (13 Johns 418 [Sup Ct NY 1816]), is misplaced. In that case the writ had been issued and the question before the court was whether upon the return the court was bound to turn the child over to the father. The court held that it was only bound to free a child from an illegal restraint but not bound to deliver the child to any particular person. (Id.)

The Court's statement that " in cases of writs of habeas corpus, directed to private persons to bring up infants, the Court is bound, ex debito justiti , to set the infant free from an improper restraint," (id.), refers to the Courts obligation upon the return of the writ, not whether to issue the writ in the first instance.

Early New York cases differed on whether the issuance of a writ of habeas corpus was a ministerial or a judicial act. In the earliest reported New York case dealing with the forfeiture, Yates v Lansing, (5 Johns 282 [Sup Ct NY 1810]), the court held that the statutory forfeiture for refusal to issue a writ court did not apply to a refusal while the court was in session. In addition to the clear language of the statute, the court reasoned that refusal to issue a writ while not a session was a ministerial act, while the refusal to issue a writ while the court was in session was a judicial act to which immunity attached.

In the case of Matter of Nash, the court held that the decision whether to issue a writ was ministerial even though it involved judgment on the part of a judge stating,

"True, there is a species of judgment required in seeing whether the petition contains the matter prescribed by the statute. But it is the same species of judgment which almost every ministerial power calls for. It is the same kind of judgment which the register of deeds is required to exercise in ascertaining whether an acknowledgment is in conformity with the statute. It will scarcely be contended that the duty imposed on the register, of seeing that every conveyance has been duly proved or acknowledged, vests in him a judicial power. But this species of judgment is not that free and untrammeled exercise of judgment which appertains and is essential to a judicial power." ( Matter of Nash, 16 Abb Pr 281 [Sup Ct NY County, 1863].)

Conversely, in the case of People ex rel. Ryan v Russell (1 Abb Pr NS 230 [Sup Ct 1st Dist 1866]), which discussed the decisions in both Yates and Nash, the court held that a mandamus could not be brought to compel a Judge to issue a writ of habeas corpus because the issuance of the writ was discretionary. The court held that it was a discretionary act even though [*6]a forfeiture could be imposed upon the judge for declining to issue the writ in error, stating

"The officer may determine the question whether he will allow the writ or not. That he is made responsible to the party applying, for an erroneous decision, is true. So is the Supreme Court judge, either at chambers or special term. So are all courts or officers who have power to allow the writ, but it seems to me, that the fact of responsibility for error does not determine the character of the act done. It is judicial, if it be the exercise of an authority he possesses as judge, which he may or may not exercise, as he shall determine the action to be legal or not." (Id.)

The principal consequence of the distinction of whether the issuance of writ of habeas corpus is a ministerial or a judicial act is whether judicial immunity attaches to a decision to deny a petition for a writ.

Judicial immunity applies only to the actions of a judge in carrying out their judicial duties. (Green v Maraio, 722 F2d 1013 [2nd Cir 1983]; Wik v Dollinger, 2014 WL 1746483, [WD NY 2014]; Morrison-Allen v State, 152 AD3d 509, 54 NYS3d 877 [2nd Dept 2017]; Best v State, 116 AD3d 1198, 984 NYS2d 214 [3rd Dept 2014].)

It is within a judge's authority to either issue or refuse to issue a writ of habeas corpus, and the statute requires a judge to determine whether the petition and supporting papers demonstrate that the detention is not illegal. Determining if a petition fails to make out a basis for relief is a core adjudicative function, to which the doctrine of judicial immunity applies. (Pierson v Ray, 386 U.S. 547, 87 S Ct 1213 [1967] ; Green v Maraio, 722 F2d 1013 [2nd Cir 1983]; People ex rel. Ryan v Russell, 1 Abb Pr NS 230 [Su Ct 1st Dist 1866].)

The doctrine of judicial immunity has long been a central part of the common law of both England and this country.

"The doctrine which holds a judge exempt from a civil suit or indictment, for any act done, or omitted to be done by him, sitting as judge, has a deep root in the common law. It is to be found in the earliest judicial records, and it has been steadily maintained by an undisturbed current of decisions in the English courts, amidst every change of policy, and through every revolution of their government." (Yates v Lansing, 5 Johns 282, at 291 [Sup Ct NY 1810].)

Judicial immunity from civil suit is seen as essential to judicial independence and the ability of judges decide disputes on their merits.

"For it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself. Liability to answer to everyone who might feel himself aggrieved by the action of the judge, would be inconsistent with the possession of this freedom, and would destroy that independence without which no judiciary can be either respectable or useful." (Bradley v Fisher, 80 US 335, at 347 [1871].)

So crucial is judicial immunity to protecting judicial independence that it attaches even to claims that a judge acted maliciously or corruptly.

"This immunity applies even when the judge is accused of acting maliciously and corruptly, and it 'is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.' (Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868), quoted in Bradley v. Fisher, 349, note, at 350.) It [*7]is a judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision making but to intimidation." (Pierson v Ray, 386 U.S. 547 at 554, 87 S Ct 1213, at 1218 [1967].)

Central as it is to our concept of an independent judiciary, the doctrine of judicial immunity is a common law doctrine. (Green v Maraio, 722 F2d 1013, [2nd Cir 1983]; Yates v Lansing, 5 Johns 282 [Sup Ct NY 1810].) The question in this case is whether it is also a constitutional requirement that would bar the legislature from enacting a statute that interfered with it.

Judicial immunity from civil suit is not guaranteed by the New York State Constitution. The State Constitution provides some protection of judicial independence by prohibiting the compensation of a Judge from being diminished during their term of office. (NY Constitution art VI §25.) However, no section of the constitution grants judges immunity from civil suit based on their judicial acts.

There are no reported New York cases that discuss the constitutionality of the CPLR 7003[c]. Cases that have referred to the forfeiture for failing to issue a writ, discuss the statutory forfeiture as if the statute were valid. (see Wik v Dollinger, 2014 WL 1746483, [WD NY 2014]; People ex rel. Anderson v Warden, 68 Misc 2d 463, 325 NYS2d 829 [Su Ct Bx County 1971]; People ex rel. Oswald v Carver, 188 Misc 5, 65 NYS2d 748 [Su Ct Rensselaer County 1946]; Peo ex rel Ryan v Russell, 1 Abb Pr NS 230 [Su Ct 1st Dist 1866]; Matter of Nash, 16 AbbPr 281 [Su Ct NY County 1863] ; Yates v Lansing, 5 Johns 282 [Su Ct NY 1810].)

In Wik v Dollinger, (2014 WL 1746483), the Second Circuit dismissed a claim for forfeiture pursuant to CPLR 7003[c] on the grounds that the complaint admitted that the writ of habeas corpus had in fact been issued, and only claimed that the writ was improperly rescinded by a different judge. The court held that 7003[c] was thus inapplicable to that claim and that a judge that rescinds a habeas writ is immune from suit. The Second Circuit did not address the constitutionality of CPLR 7003[c].

In the absence of New York cases that discuss the constitutionality of CPLR 7003[c], federal cases involving judicial immunity from 1983 civil rights suits provide some guidance.

It has been held that the doctrine of judicial immunity protects judges from civil suits brought pursuant to 42 USC 1983. (Pierson v Ray, 386 U.S. 547, 87 S Ct 1213 [1967]; Green v Maraio, 722 F2d 1013 [2nd Cir 1983]; Tucker v Outwater, 118 F.3d 930 [2nd Cir 1997].)

In the case of Pierson v Ray, the United States Supreme Court, held that the doctrine of judicial immunity protects judges from suits pursuant to 1983. The court held "[t]he legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities. . . The immunity of judges for acts within the judicial role is equally well established and we presume that Congress would have specifically so provided had it wished to abolish the doctrine." (Pierson at 554-555, 1218.)

The clear import of that holding is that Congress could have abolished common law judicial immunity from 1983 actions had they chosen to do so.

In the case of CPLR 7003[c], the legislature did override common law judicial immunity from suits for failing to issue a writ of habeas corpus by specifically making judges subject to a forfeiture for failing to issue a writ and providing that an aggrieved party can commence an [*8]action to recover the $1,000 forfeiture from the judge.

As the constitution does not provide for judicial immunity from civil suit, the fact that the forfeiture of CPLR 7003[c], is inconsistent with the common law doctrine of judicial immunity does not render it unconstitutional.

Compensation Clause

Although the New York State Constitution does not protect judicial independence by granting judges immunity from civil suit, it does provide a measure of protection to judicial independence by prohibiting any reduction in the compensation of judges.

The compensation clause of the New York State Constitution provides that the compensation of a judge "shall not be diminished during the term of office for which he or she was elected or appointed." (NY Constitution art VI §25.)

Defendant argues that the forfeiture of CPLR 7003[c] constitutes an unconstitutional diminution of judicial compensation. Plaintiff argues in response that the forfeiture, which is payable to the aggrieved party and not the state, is not a reduction in compensation but a penalty for violating the statute.

The term "compensation" is not defined in the Constitution, but its meaning is inextricably tied to the purpose of the Compensation Clause, which is "to promote judicial independence" and, relatedly, to "ensure that the pay of prospective judges, who choose to leave their practices or other legal positions for the bench, will not diminish". (Matter of Maron v Silver, 14 NY3d 230, 250 [2010], citing United States v Will, 449 US 200, 221 [1980]).

Historically, the focus of the Compensation Clause has been to protect against the danger of external control over judicial pay as a means by which to exert influence over the judiciary. The Legislature was precluded from diminishing salaries in recognition of the risk that salary manipulation might be used as a tool to retaliate for unpopular judicial decisions. (Bransten v State, 30 NY3d 434, 439 [2017]; Matter of Maron, 14 NY3d 230, 252 [2010].)

Plaintiff's argument that the forfeiture is not a diminution of judicial compensation is misplaced.

In determining whether the forfeiture imposed by CPLR 7003[c] diminishes judicial compensation it is significant that the statute imposes not a fine, but a forfeiture. Ballentine's law Dictionary defines forfeiture as "[a] word often used as a synonym of 'penalty' but which is, precisely, a divestiture of property without compensation in consequence of a default or an offense." (Ballentine's Law Dictionary 3rd Ed p 489.)

A forfeiture is the divestiture of property already vested or of some preexisting right without compensation in consequence of a default or offense. 37 CJS Forfeitures §1. That is property already possessed by the party at the time they default or breach a duty.

A hallmark of a forfeiture is that the property divested is related to the duty breached or violated, such as forfeiture of property used in commission of a crime, or forfeiture of a lease for non-compliance with one of its terms.

In the case of CPLR 7003[c] the property being forfeited as a consequence of a judge violating the statute in exercising their duties as a judge, is a portion of the judge's salary earned for performing those duties.

Moreover, the compensation clause prohibits not only direct diminution of judicial salaries but also indirect diminutions of compensation.

"The Compensation Clause offers protections that extend beyond a legislative effort directly to diminish a judge's pay, say, by ordering a lower salary. Otherwise a legislature could [*9]circumvent even the most basic Compensation Clause protection by enacting a discriminatory tax law, for example, that precisely but indirectly achieved the forbidden effect. The legislature may not enact laws that directly diminish judicial salaries or accomplish the same result by singling out judges for disadvantageous treatment that indirectly diminishes their pay." (US v Hatter, 532 US 557, 569 [2001].)

An indirect diminution, such as by means of a forfeiture, penalty or tax, violates the compensation clause where it singles out judges for adverse treatment.

The United States Supreme Court has made a distinction between financial obligations that are imposed on the public in general and those that discriminate against judges. The former do not constitute a diminution of judicial compensation while the latter may. (US v Hatter, 532 US 557 [2001].)

In Hatter, the Court held that a Medicare tax that applied to all federal employees did not violate the federal compensation clause, while an expansion of the social security tax that applied to all federal employees but was designed in such a manner that the increase was incurred by federal judges alone, did violate the compensation clause. Id.

The principal factors set forth Hatter, determining whether an indirect reduction discriminates against judges in a manner the violates the compensation clause are whether the action imposes a financial burden on judges and whether it treats judges differently than others in imposing that burden. Id.

The NY Court of Appeals in Bransten v State (30 NY3d 434 [2017]), dealt with the constitutionality not of a tax but of a reduction of health benefits to state employees. Citing Hatter, the Court of Appeals held that an act by the State to reduce its contribution to an employee's health benefit plan which resulted in increased costs to State employees, including judges, did not violate the compensation clause. The court also found that even though the reduction in its health benefits contribution indirectly diminished judicial compensation, it did not discriminate against judges, as the reduction applied not only to judges but to all state employees. (Id. at 446.)

Under the criteria set forth in Hatter, and Bransten, the forfeiture of CPLR 7003[c] is an indirect diminution of compensation that discriminates against judges.

While the forfeiture of CPLR7003[c] is not a tax, taxes are not the only type of financial obligations that can constitute an indirect diminution of judicial compensation. The test in Hatter is whether the measure in question imposes a financial obligation on judges and imposes the obligation on judges in a discriminatory manner. The forfeiture of CPLR 7003[c], on its face, imposes a significant cost on a judge and it imposes those costs exclusively on judges.

While a forfeiture of $1,000 is a significant burden even today, the forfeiture was £500 in 1787, (Laws of New York 1787, Chap 39), and has been $1,000 since at least 1830. (Matter of Nash, 16 AbbPr 281.) The magnitude of the forfeiture compared to historic judicial salaries, evidences an intent to impose the forfeiture in order to exert influence over judicial decision making.

Plaintiff argues that the forfeiture is not a diminution in judicial compensation for two reasons. First, CPLR 7003[c] the forfeiture is payable to an injured party rather to the government. Second, the forfeiture is not imposed on all judges but only upon a judge who fails to issue a writ of habeas corpus in violation of the statute.

Neither of these facts ameliorate the burden CPLR 7003[c] imposes on judges, or the fact that it imposes the burden only on judges.

The first difference, that CPLR 7003[c] imposes a forfeiture payable to a private party does not lessen its financial impact on a judge. Who the payment goes to is not material in light of the purpose of the compensation clause, which is to protect judicial independence. It is the loss to the judge, rather than who the forfeiture goes to that interferes with judicial independence.

The fact that an action for the forfeiture under CPLR 7003[c] can be instituted by a litigant who a judge has ruled against, makes it an even graver threat to judicial independence than a tax.

The second difference, that the forfeiture is not imposed on all judges but only on a judge who violates the statute does not make it less of a threat to judicial independence.

The compensation clause is not limited to prohibiting across the board diminutions of judicial compensation. The text of the clause prohibits diminishing the compensation of a judge. (NY Constitution art VI §25.)

The Court in Hatter did cite the fact that the challenged social security tax adversely affected most federal judges, in its analysis of why the tax improperly discriminated against judges. However, it did not hold that an act must affect all judges to be an unconstitutional diminution of compensation. It cited the fact that the tax adversely affected most federal judges in the context of distinguishing the fact that a small portion of the federal judges would benefit from the tax, by being included in the social security system for the first time. (Hatter, at 573.)

The more serious problem is that even though the forfeiture is not imposed on most judges, where it is imposed, it is imposed based on how a judge decides a specific application before them.

Although the CPLR 7003[c] states that the forfeiture shall be imposed, "[f]or a violation this section in refusing to issue the writ", the forfeiture is imposed where a judge makes an error in determining whether the petitioner is entitled to a writ.

It is imposed on a judge because of the content of the judge's decision, and thus undermines the compensation clause's goal of protecting judicial independence to a greater extent than a tax.

It is true that a Judge can be suspended without pay while there is pending a determination by the commission on judicial conduct or while the judge is charged with a felony, without violating the compensation clause. However, the authority to suspend a judge without pay under such circumstances is explicitly provided for in the Constitution. (NY Constitution art VI §22[g].)

The forfeiture of CPLR 7003[c] is not a matter of a judge having to share the common burdens of all citizens, but of being singled out for making an error in performing their judicial duties.

By its nature, CPLR 7003[c] singles out judges for financially adverse treatment because of their exercise of their judicial functions and does so in a manner that discriminates based on how they decide an application for a writ. To impose a forfeiture on a judge based on which way they decide an application undermines the core objective of the compensation clause of protecting judicial independence. Thus, CPLR 7003[c] violates article VI §25 of the NY Constitution and is unconstitutional.

WHEREFORE, it is ORDERED that Plaintiff's motion for summary judgment is denied and Defendant's motion to dismiss is granted and it is further,

ORDERED and ADJUDGED that the complaint is dismissed.

This constitutes the decision, order and judgment of the Court.

Dated: July 8, 2020

Hon. Wayne P. Saitta

JSC