Legal Aid Society v. Ward

—Judgment, Supreme Court, New York County (Maresca, J.), entered January 26, 1982 granting the petition of respondent, the Legal Aid Society, to restore access to city correctional facilities to its employee, Thomas McCreary, is reversed, on the law and the facts and in the exercise of discretion, without costs, and the petition dismissed. Judgment, Supreme Court, New York County (Maresca, J.), entered March 5, 1982 granting the petition of respondent, Thomas McCreary, to restore access to petitioner to city correctional facilities, is reversed, on the law and the facts and in the exercise of discretion, without costs, and the petition dismissed. The facts are sufficiently set forth in Justice Asch’s memorandum. We agree that the Board of Correction did not have power to render an appellate decision binding on the commissioner as to the granting of an access pass to Mr. McCreary. Under subdivision e of section 626 of the New York City Charter, the board is directed to “establish minimum standards” for the care, custody, etc., of persons held or confined under the jurisdiction of the Department of Correction. The power to establish minimum standards is a quasi-legislative power and does not imply the power of the Board of Correction to set itself up as an appellate tribunal to rule on specific cases. Subdivision f of section 626 of the New York City Charter directs the board to “establish procedures for the hearing of grievances”. But even this on its face appears to be a quasi-legislative power rather than a judicial power, i.e., the power to establish a procedure rather than itself conduct that procedure. We note that the very next sentence, which gives the board power to conduct hearings, provides only that the board may “make recommendations and submit reports of its findings to the appropriate authorities”, an advisory rather than a quasi-judicial function. Further, the power to establish procedures for hearing of grievances is expressly stated to be griev 533 anees “(1) by or on behalf of any person held or confined under the jurisdiction of the department or (2) by any employee of the department.” (New York City Charter, § 626, subd f.) This grievance is not on behalf of either a person held or confined under the jurisdiction of the department, or by an employee of the department. We reject the Legal Aid Society’s contention that their unidentified clients are somehow parties to this grievance procedure. On the face of the statute, the statutory powers of the Board of Correction do not appear to cover the question of which employees of the Legal Aid Society shall be recognized and given general access passes by the Commissioner of Correction. Despite the somewhat inconsistent conduct of the commissioner in telling petitioners of the grievance procedure, we think the matter is too important to be determined on the basis of some kind of estoppel against the commissioner. We conclude that at least in this area the decisions of the Board of Correction can have no more than advisory force. The issue thus becomes whether the commissioner’s determination was arbitrary and capricious. We think it was not. As an original proposition the Commissioner of Correction charged with the security of the institutions under his jurisdiction cannot be said to be acting arbitrarily and capriciously in refusing a general access pass to a man who had been convicted in Missouri of an attempt to murder a police officer, who was sentenced to 20 years’ imprisonment on that conviction, who is now on parole on that conviction, and who at the time of his arrest in the Missouri incident was in a car in which there was found the stolen service revolver of a murdered New York police officer. The question then is whether the provisions of the minimum standards render the commissioner’s action arbitrary and capricious. Read literally, the minimum standards do seem to forbid the revocation of a general access pass to a person in petitioner McCreary’s position. Thus section 9.5 (b) of the minimum standards provides that a pass shall not be denied based upon any of the items listed in section 10.8 (a); one of the items so listed is the prospective visitor’s criminal record. Section 9.5 (c) provides that the revocation of a pass must be made pursuant to the procedural requirements of section 10.8 (b) (i), among others, which provides: “This determination must be based on specific acts committed by the visitor during a prior visit to an institution that demonstrate his or her threat to the safety and security of an institution, or on specific information received and verified that the visitor plans to engage in acts during the next visit that will be a threat to the safety or security of the institution.” It may well be that the drafters of the standards did not contemplate a situation such as is here presented, and that, therefore, the standards should not be read literally. For example, do the standards sensibly mean that if a man has been convicted of engineering a large-scale escape from a prison, the commissioner cannot consider that fact in determining whether to issue a blanket access pass to him? We think the more sensible interpretation of the standard is that the fact that the applicant for the access pass has some kind of a criminal record cannot ipso facto disqualify him in all cases. It may well be that many of the persons incarcerated under the jurisdiction of the Commissioner of Correction have as close relatives or friends people who have at one time or another run afoul of the criminal law, but in respects which do not appear to the commissioner to endanger the security of the institution; in such event, the applicant’s criminal record should not bar a visitor’s pass. But in the present case, we cannot say that the commissioner was arbitrary and capricious in his view that the granting of a blanket access pass to a person of Mr. McCreary’s record may compromise the security of the institution, or that the minimum standards forbid the commissioner from considering that conviction and the underlying facts. Even if the commissioner’s revocation of the pass may be said to be a violation of the 534 minimum standards, it does not follow that petitioners are entitled to an order under CPLR article 78. This proceeding is in the nature of mandamus. Mandamus is an extraordinary remedy. “A mandamus order may issue only for the enforcement of a clear legal right; and even after such right has been established, the court must determine whether, in the exercise of a sound discretion, it should grant or withhold the order.” (Matter of Durr v Paragon Trading Corp., 270 NY 464, 469.) “Moreover, even where a petitioner’s legal right to the relief sought is clearly established, issuance of a writ of mandamus is a matter reserved for the sound discretion of the court”. (Matter of Sheerin v New York Fire Dept., Arts. 1 & IB Pension Funds, 46 NY2d 488, 496.) We think we are justified, in the exercise of our discretion, in declining to issue an order of mandamus to compel the Commissioner of Correction, charged with the security of the institutions under his control, to restore a general access pass to a particular person, where the commissioner in good faith and on reasonable grounds believes that the restoration of such a pass compromises or endangers the security of those institutions. For the reasons stated by Justice Asch, we agree that attorney’s fees were properly denied to both petitioners, Burns and McCreary. Concur — Kupferman, J. P., Sullivan, and Silverman, JJ.