Supreme Court, Albany County, September 6, 2023

Stephen W. Herrick, Public Defender (James Bartosik of counsel), for respondent.

The Office of Counsel, Department of Corrections and Community Supervision (Megan Spillane of counsel), for petitioner.

Respondent Kenneth Sasser (respondent) was released under the supervision of the Department of Corrections and Community Supervision (petitioner or DOCCS), until he allegedly violated a condition of his release. As a result, respondent was arrested on a warrant, detained, and brought before the court for a recognizance hearing to determine whether his detention should continue pending a parole revocation hearing (Executive Law § 259-i).

When the parties appeared for the hearing, respondent appeared with his attorney, but petitioner did not. Rather, DOCCS appeared through a non-attorney parole officer. Respondent objected to commencing the hearing. He argued that DOCCS needed counsel to proceed. Respondent submitted a written motion to dismiss in support of his position and served both DOCCS counsel and the Attorney General. DOCCS, this time through counsel, opposed respondent's written motion.

At the motion return date, respondent appeared with his attorney. But again, DOCCS was without counsel. The court heard oral argument from respondent's attorney. However, since DOCCS lacked counsel, it therefore concomitantly lacked the capacity to advance its cause at oral argument.

Following the submissions and oral argument, the court rendered a bench decision requiring petitioner to appear by an attorney qualified to practice law. The court then scheduled a recognizance hearing for the following day. After scheduling the hearing, an attorney for DOCCS informed chambers by telephone that despite the court's ruling to the contrary, no [*2]attorney from its office would be appearing at the recognizance hearing.^[FN1] Unsurprisingly then, respondent appeared with counsel and—for a third time—petitioner appeared without {**81 Misc 3d at 238}counsel. The court therefore dismissed the matter and set respondent at liberty on his own recognizance pending the administrative parole revocation hearing.

The court in its oral decision explained its reasoning for requiring petitioner to be represented by counsel at the recognizance hearing. The court now provides this written decision to further elucidate its rationale and conclusions.

The court begins with a brief history of the Executive Law as it relates to parole revocation. A "recognizance hearing" and its accompanying judicial procedure were legislatively enacted in 2021 by amending Executive Law § 259-i (L 2021, ch 427, §§ 4, 5, 6 [Sept. 2021]). About 18 months ago, the amendment became effective (id. § 10).

Prior to this amendment, there was no such thing as a recognizance hearing and no corresponding judicial process for it. Rather, if a parole officer had reasonable cause to believe that a parolee violated his terms of release, the parole officer reported it to a member of the parole board and a warrant could be issued to arrest the parolee (L 2021, ch 427, § 4 [i]). The parolee was detained pending a preliminary revocation hearing before a hearing officer designated by the Board of Parole (part of the executive branch) (L 2021, ch 427, § 4). If the hearing officer found probable cause for the alleged violation, the parolee could remain detained pending a final revocation hearing (id.). The final hearing, like the preliminary hearing, was an executive branch administrative hearing (id.).

The 2021 amendment of the Executive Law did not alter the administrative nature of these revocation hearings, whether preliminary or final. But it did add a recognizance hearing to be held before the "county court, district court or city court" (L 2021, ch 427, § 4 [iv]; Executive Law § 259-i [3] [a] [iv]). At such a hearing, the court determines if the releasee should be detained pending a preliminary or final revocation hearing based on whether the releasee "currently presents a substantial risk of willfully failing to appear at the preliminary or final revocation hearings and that no non-monetary condition or combination of conditions in the community will reasonably assure the releasee's appearance at the preliminary or final revocation hearing" (Executive Law § 259-i [3] [a] [vi]). Moreover, in arriving at its decision, the court must consider "all available {**81 Misc 3d at 239}evidence of the releasee's employment, family and community ties including length of residency in the community, history of reporting in a timely fashion to a parole or supervisory officer, and other indicators of stability" (id.). At this judicial hearing, it is DOCCS's burden to demonstrate that "the executed warrant was properly issued and served" (id. [3] [a] [v]).

Now, as DOOCS points out, while Executive Law § 259-i provides that the releasee is entitled to counsel for a recognizance hearing, it is silent as to whether DOCCS must be represented (id. [3] [a] [vii]). True. However, Judiciary Law § 484 dictates, "No natural person [*3]shall . . . make it a business to practice for another as an attorney in any court or before any magistrate unless he has been regularly admitted to practice, as an attorney or counselor, in the courts of record in the state."^[FN2] Moreover, Judiciary Law § 478 makes it "unlawful for any natural person to practice or appear as an attorney-at-law or as an attorney and counselor-at-law for a person other than himself or herself in a court of record in this state." The plain meaning of the Judiciary Law requires DOCCS to appear with an attorney, presumably a lawyer from the Office of the Attorney General (Executive Law § 63).

DOCCS argues that there is a conflict (or at least an ambiguity created) between Executive Law § 259-i and Judiciary Law § 478. From this conflict, the need for some statutory construction arises—a fair point. According to DOCCS, Executive Law § 259-i's silence on its need for an attorney coupled with the long-standing practice of non-attorneys presenting administrative revocation proceedings tip the scales in favor of continuing the practice in judicial proceedings. Thus, DOCCS urges the court to allow a non-attorney parole officer to advocate for its legal position at a judicial proceeding.

First, the court will deal with petitioner's point on long-standing practice—long-standing practice can at times aid in statutory interpretation where the statute is silent or ambiguous (Town of Amherst v County of Erie, 260 NY 361, 369 [1933]). Long-standing practice, moreover, can even override a conflicting statute in an as applied context where compliance with the statute would create a manifest absurdity.

Take the case of People v Black (156 Misc 516 [Otsego County Ct 1935]). In People v Black, the defendant was charged and{**81 Misc 3d at 240} tried for killing and possessing a wild deer out of the legal open season, a misdemeanor offense within the jurisdiction of a justice of the peace. But the defendant was not tried and convicted by an attorney—rather, the case was prosecuted by an inspector of the New York State Conservation Department. The defendant appealed his conviction, arguing it was void because the penal law prohibited the practice of law by non-attorneys. However, the court held that the statutes (as applied to the prosecution of petty cases in rural counties) are "invalid and ineffective" given the absurdity that would result; namely, jeopardizing the prosecution of game laws and overturning the "century old institution" of non-lawyer government servants prosecuting petty cases in rural counties (id. at 519).

At first glance, this rationale appears to support petitioner's position, or at least provides some precedent for the practice of government employee non-attorneys prosecuting matters in certain contexts. Be that as it may—here, there is a problem. Before 2022, courts had no role in revocation proceedings. Only recently did the legislature create the recognizance hearing and call upon the court to adjudicate it. As such, unlike Black—where the practice was nearly a century old—the newly minted recognizance hearing's prosecution by a non-lawyer is about a year old.

While courts have often failed to give a precise definition of long-standing practice, a singular trip around the sun does not qualify. To the contrary, surpassing the year mark indicates that the practice is recent as opposed to long-standing. Given the recent advent of these hearings, their duration cannot overcome the explicit text of the Judiciary Law, which grants permission solely to licensed attorneys to represent persons and entities in court (Judiciary Law §§ 478, [*4]484). Therefore, the long-standing practice exception is inapplicable here.^[FN3]

Furthermore, a small but meaningful difference separates this case from Black. Black was prosecuted in a justice court.{**81 Misc 3d at 241} Justice courts are quite different than the superior courts where revocation hearings are held. Unlike a county court, city court or district court, in a justice court, the judge need not be an attorney (NY Const, art VI, § 20 [c]), and accordingly, the court's jurisdiction is circumscribed (UJCA 202, 2001; CPL 10.30). Moreover, justice courts are dispersed throughout the state's bucolic landscapes and distant reaches. As such, justice courts are given to a certain informality, procedural flexibility, and pragmatic adaptation to circumstance. This provides important context for Black—and explains why the practice of non-attorneys prosecuting petty cases in rural justice courts cannot simply be adopted here.

So, with long-standing practice dispatched as a source of statutory guidance, DOCCS's argument boils down to "the effect or meaning of this silence . . . [on] constru[ing] and interpret[ing] the statute." (Buffalo United Charter School v New York State Pub. Empl. Relations Bd., 37 Misc 3d 294, 303 [Sup Ct, Erie County 2012].) In doing so, the court adopts a basic tenet of statutory construction known as the presumption against implied repeal as its guide. This precept provides that "if statutes are to be repealed, they should be repealed with some specificity" (Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 55 at 327 [1st ed 2012]). The operating principle in this rule is that absent specific statutory language to the contrary, the express terms of other statutes remain valid and applicable. Thus, one statute's silence cannot trump by implication another statute.

The petitioner, by sending a parole officer as its sole representative to the recognizance hearing, violates the plain language of Judiciary Law § 478. That is, the parole officer, if appearing without counsel as the DOCCS representative for the recognizance hearing, would have the "burden" of demonstrating to the court that "the executed warrant was properly issued and served" (Executive Law § 259-i [3] [a] [v]). This of course is a legal question that requires a duly licensed advocate (id. [3] [a] [v]). Yet, Executive Law § 259-i contains no language, let alone specific language, trumping the Judiciary Law. Thus, it follows that the new procedure established by Executive Law § 259-i is still subject to the constraints of the Judiciary Law. Therefore, according to the ordinary rules of statutory construction{**81 Misc 3d at 242} and Judiciary Law §§ 478 and 484, DOCCS must appear through an attorney for the recognizance hearing.

The analysis does not end there. DOCCS offers a final argument. Petitioner submits that a recognizance hearing is a non-adversarial proceeding and therefore the failure of an attorney to prosecute the case has no bearing on the court's decision to release or detain the respondent. To petitioner's point, the statutory language speaks of petitioner "presenting information" rather than evidence to the court (Executive Law § 259-i [3] [a] [v]). Indeed, the statute says nothing about the examination or cross-examination of witnesses and does not specify a standard of [*5]proof to be met by DOCCS (see id.).

According to DOCCS, this makes a recognizance hearing close kin to a bail hearing or a hearing to temporarily suspend a driver's license in a DWI case, known as a Pringle hearing (Pringle v Wolfe, 88 NY2d 426 [1996]), where the court's decision does not rest upon whether the prosecutor presents a case or even shows up. The argument follows that a recognizance hearing should mimic the procedure followed in bail and Pringle hearings. The court finds this argument to be wanting.

First, petitioner's analogies to bail and Pringle hearings are inapposite. Although in both instances, the court is empowered to render its decision without the government present, it is hard to see how this has bearing on a non-attorney appearance in court. In both types of hearings, the government is entitled to make an appearance, and if the government chooses to—which is not an uncommon occurrence—it would appear through the district attorney's office (and by that, the court means it would send an attorney—not an investigator, paralegal or other support staff). More specifically for bail hearings, by statute, the court must first consult the district attorney (meaning a lawyer in the office) and obtain their recommendation (CPL 530.40 [7]). Thus, neither bail hearings nor Pringle hearings lend support to the idea that a non-attorney can appear for a recognizance hearing.

Second, and more importantly, it makes no difference whether the hearing is adversarial in nature.^[FN4] True, the statutory language of Executive Law § 259-i does not detail to fine {**81 Misc 3d at 243}grains the court procedure for the recognizance hearing. But it need not. Further, as noted earlier, until the 2021 amendments to the Executive Law, parole revocation was always an administrative procedure in front of an executive branch hearing officer (see L 2021, ch 427, §§ 4, 5, 6).

But, with the passage of the 2021 amendments, things changed. The legislature created a new parole hearing and invoked the court's jurisdiction. Once the legislature summoned the judicial power, the constitutional topography became altered. Executive branch hearing officers are not judges and the judiciary has a different constitutional role than the executive branch. Namely, since the judicial branch has its own independent constitutional authority and dignity, it can require advocates who are trained attorneys to appear before it.

Here is the analysis. The judiciary is an "independent branch of the government, as necessary and powerful in [its] sphere as either of the other great divisions" (Riglander v Star Co., 98 App Div 101, 105 [1st Dept 1904]). As such, a court has a fundamental interest in retaining its independence in the administration of justice, and every court has the inherent power "to control the disposition of the causes on its docket" (Landis v North American Co., 299 US 248, 254-255 [1936]).

Thus,

"under the inherent powers doctrine, [a court] is vested with all powers reasonably required to enable it to: perform efficiently its judicial functions, to protect its dignity, independence and integrity, and to make its lawful actions effective. . . . Inherent judicial [*6]powers derive not from legislative grant or specific constitutional provision, but from the fact it is a court . . . and to be a court requires certain incidental powers" (Wehringer v Brannigan, 232 AD2d 206, 207 [1st Dept 1996] [citations and internal quotation marks omitted]).

For without this power, the court would be relegated from an independent, coequal branch to a dependent branch (People v Johnston, 67 Misc 3d 267, 275 [Cohoes City Ct 2020]).

Among its inherent powers is the power to oversee and discipline the legal profession. This power dates back to the first New York State Constitution enacted in 1777, which provided{**81 Misc 3d at 244} that attorneys would be "regulated by the rules and orders of the said courts" (People ex rel. Karlin v Culkin, 248 NY 465, 471-472 [1928, Cardozo, Ch. J.]). Although the clause was withdrawn from the next iteration of the State Constitution that followed in 1821, Chief Judge Cardozo found this authority to be an implied aspect of the courts' powers, and in any case, the courts' authority was explicitly confirmed by statute thereafter.

This power, "[t]he plenitude of the control . . . asserted over the behavior of attorneys" (id. at 474), then is inexorably linked to the court's ability to control proceedings and administer justice. Indeed, the court's power to regulate the admission and conduct of attorneys is independent from any statutory provision governing the conduct of attorneys (Matter of Wong, 275 AD2d 1, 5 [1st Dept 2000]). This leads the court to conclude without pause that it has the authority, if it chooses, to mandate that only attorneys may advocate for parties who seek relief, a declaration or an order from the court.

Because the prerogative to mandate attorney appearances derives from the court's inherent constitutional power as a coequal branch of government, the court presumes that the legislature intended to allow the court to "perform efficiently its judicial functions, to protect its dignity, independence and integrity" (Wehringer, 232 AD2d at 207). Conversely, the court presumes, as it should, that the legislature had no intention of limiting or depriving the court of its constitutional prerogative. Indeed, the Constitution's separation of powers doctrine means "each [branch is] free to govern, manage and administer the business in its own sphere without restriction, supervision or interference by the other two branches" (Matter of People v Little, 89 Misc 2d 742, 745 [Yates County Ct 1977]).

Moreover, by insisting that a non-attorney advocate for DOCCS before the New York State Supreme Court, DOCCS urges the court to adopt an interpretation of the Executive Law that would eliminate the court's authority to determine who may be one of its officers. However, such interpretation would raise additional constitutional concerns. Pertinently, lawyers who shirk their ethical duties, if a court so determines, jeopardize their livelihood (Judiciary Law § 90 [2])—whether in the form of sanctions or the loss of their license. The court does not have this same power over non-attorneys, nor do non-attorneys owe the court the same allegiance as lawyers do. Given this difference between lawyers and non-lawyers, the{**81 Misc 3d at 245} power to determine who qualifies to serve as an officer of justice is vital to the court's ability to administer justice and thus falls within its inherent constitutional authority.

Finally, there is an additional and salutary reason for prohibiting advocacy by non-attorneys before the judiciary. That is, licensed attorneys are officers of the court. Therefore, attorneys must meet the high demand to conduct themselves ethically and honestly. Becoming a lawyer is not a simple process: one must gain admission to a law school, complete three years of education and training, and pass an extensive written examination before being conferred a law license by the relevant Department of the Appellate Division of the Supreme Court. Further, admission is contingent on the candidate passing a character and fitness exam as well—to affirm [*7]the candidate's moral character and standing is consistent with the vocation of counselor and attorney-at-law. As summarized by Chief Judge Cardozo, "[m]embership in the bar is a privilege burdened with conditions" (Culkin at 470 [internal quotation marks omitted]). Lawyers "be[come] an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice" (id. at 470-471).

When the legislature created the recognizance hearing, it summoned the courts to preside over and decide the legal issues set forth in Executive Law § 259-i. In doing so, the legislature neither abrogated the Judiciary Law nor encroached upon the judiciary's inherent powers.

Therefore, it is ordered that an attorney is required to represent DOCCS at recognizance hearings held pursuant to Executive Law § 259-i; and it is further ordered that petitioner's application is dismissed, and respondent is set at liberty pending administrative parole revocation proceedings held before DOCCS, if any.

"[l]ongstanding practice is the idea that when democratically accountable institutions, state as well as federal, act for many years on the basis of a particular understanding of constitutional principle, that interpretation becomes authoritative. . . . [L]ongstanding practice refers to interpretations by democratic institutions . . . over the many decades between the founding and today" (McConnell, Time, Institutions, and Interpretation, 95 BU L Rev 1745, 1771 [2015] [emphasis added]).

Under this definition, a little more than a year clearly does not qualify as long-standing.