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Klostermann v. Cuomo

61 N.Y.2d 525 Court N.Y. Decision date 1984-03-27 English

Delivered by Chief Judge Cooke.

Contents

Majority

p. 525
John Klostermann et al., Appellants, v Mario M. Cuomo, as Governor of the State of New York, et al., Respondents. Joanne S. et al., Appellants, v Hugh L. Carey, as Governor of the State of New York, et al., Respondents.
Argued February 16, 1984;
decided March 27, 1984
p. 527
POINTS OF COUNSEL
Robert M. Hayes, Roger E. Podesta, Douglas Gross and Nicole A. Gordon for appellants in the first above-entitled action.
I. The court below erred in holding that the claims of the nine individual appellants are not justiciable. (Sinhogar v Parry, 53 NY2d 424 ; Philipp v Carey, 517 F Supp 513 ; Halderman v Pennhurst State School & Hosp., 555 F Supp 1144 ; Woe v Mathews, 408 F Supp 419 , affd sub nom. Woe v Weinberger, 526 F2d 40 , cert den sub nom. Woe v Califano, 434 US 1048 ; Matter of Kesselbrenner v Anonymous, 33 NY2d 161 ; Besunder v Coughlin, 102 Misc 2d 41 ; Renelli v State Comr. of Mental Hygiene, 73 Misc 2d 261 ; Matter of Ellery C., 32 NY2d 588 ; Brown v State of New York, 84 AD2d 644 ; Matter of Lee v Smith, 43 NY2d 453 .) II. The decision below that declaratory relief is not justiciable is in error. (New York Public Interest Research Group v Carey, 42 NY2d 527 ; Matter of Morgenthau v Erlbaum, 59 NY2d 143 ; Matter of County of Oneida v Berle, 49 NY2d 515 ; Group House of Port Washington v Board of Zoning &
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Appeals, 45 NY2d 266 ; Matter of Concord Realty Co. v City of New York, 30 NY2d 308 ; New York Foreign Trade Zone Operators v State Liq. Auth., 285 NY 272 ; Dun & Bradstreet v City of New York, 276 NY 198 ; Bloom v Mayor of City of N. Y., 35 AD2d 92 , 28 NY2d 952 ; Clearview Gardens Fourth Corp. v Michael, 110 Misc 2d 1022 ; Board of Coop. Educational Servs. v Goldin, 38 AD2d 267 .) III. The decision below holding the claim for class relief to be nonjusticiable is in error. (Eldredge v Koch, 118 Misc 2d 163 ; Wyatt v Aderholt, 503 F2d 1305 ; Halderman v Pennhurst State School & Hosp., 673 F2d 647 ; Halderman v Pennhurst State School & Hosp., 555 F Supp 1144 .) IV. The decision below holding the Federal claims to be nonjusticiable is in conflict with the United States Constitution and decisions of this court and of the United States Supreme Court. (Testa v Katt, 330 US 386 ; General Oil Co. v Crain, 209 US 211 ; Teeval Co. v Stern, 301 NY 346 , 340 US 876 ; Felder v Foster, 107 Misc 2d 782 ; Holt v City of Troy, 78 Misc 2d 9 ; Dice v Akron, Canton & Youngstown R. R. Co., 342 US 359 ; Miller v Apartments & Homes of N. J., 646 F2d 101 ; Carter v Romines, 560 F2d 395 , 436 US 948 ; Boscarino v Nelson, 518 F2d 879 .)
Robert Abrams, Attorney-General (Howard L. Zwickel, Peter H. Schiff, Melvyn R. Leventhal and John Petrila of counsel), for respondents in the first above-entitled action.
I. The lower courts’ determination that it would be inappropriate to grant the injunctive relief sought in the complaint should be affirmed. (People ex rel. Wooster v Maher, 141 NY 330 ; People ex rel. Lehmaier v Interurban St. Ry. Co., 177 NY 296 ; Matter of International Ry. Co. v Schwab, 203 App Div 878 , 235 NY 562 ; Matter of Walsh v LaGuardia, 269 NY 437 ; Matter of Community Action Against Lead Poisoning v Lyons, 43 AD2d 201 , 36 NY2d 686 ; Gaynor v Rockefeller, 15 NY2d 120 ; Matter of Kerness v Berle, 85 AD2d 695 , 57 NY2d 1042 ; Matter of Abrams v New York City Tr. Auth., 39 NY2d 990 ; Jones v Beame, 45 NY2d 402 .) II. The claims of the individual plaintiffs are not suitable for judicial resolution because the relief they seek would result in judicial oversight of an executive program. (Jones v Beame, 45 NY2d 402 .) III. The lower courts properly declined to entertain plaintiffs’ request for
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declaratory relief once they determined that the related injunctive relief was beyond their competence. (Board of Educ. v Nyquist, 50 NY2d 889 ; Goldsmith v Goldsmith, 25 AD2d 515 , 19 NY2d 710 , 389 US 831 ; RAM v Blum, 103 Misc 2d 237 , 77 AD2d 278 ; Board of Educ. v Ambach, 108 Misc 2d 632 ; Incorporated Vil. of Old Field v Introne, 104 Misc 2d 122 ; Rockland Light & Power Co. v City of New York, 289 NY 45 .) IV. The lower courts properly dismissed the Federal claims once they declined to entertain the relief being sought. (Lacks v Lacks, 41 NY2d 71 ; Claflin v Houseman, 93 US 130 ; Douglas v New Haven R. R. Co., 279 US 377 ; Southern Ry. Co. v Mayfield, 340 US 1 ; Herb v Pitcairn, 324 US 117 ; Brown v Gerdes, 321 US 178 ; Mills v County of Monroe, 58 NY2d 307 ; Baker v Carr, 369 US 186 ; Gilligan v Morgan, 413 US 1 ; Lindsey v Normet, 405 US 56 .)
Joseph T. McLaughlin, Rachel Deming, Daniel Levin, Ronald N. Gottlieb, Marvin Bernstein, Peter Margulies and Mark O. Thelen for appellants in the "second above-entitled action.
I. This court is the ultimate interpreter of New York law and has repeatedly emphasized its obligation to decide cases despite their possible impact on other branches of government. (Board of Educ. v Nyquist, 57 NY2d 27 ; Flushing Nat. Bank v Municipal Acceptance Corp., 40 NY2d 731 ; Marbury v Madison, 1 Cranch [5 US] 137; James v Board of Educ., 42 NY2d 357 ; Mullaney v Wilbur, 421 US 684 ; Cohens v Virginia, 6 Wheat [19 US] 264; Matter of Anderson v Krupsak, 40 NY2d 397 ; Boryszewski v Brydges, 37 NY2d 361 .) II. This court’s decisions involving the rights of institutionalized individuals establish the justiciability of this action. (Matter of Kesselbrenner v Anonymous, 33 NY2d 161 ; Matter of Ellery C., 32 NY2d 588 ; Matter of Lavette M., 35 NY2d 136 ; Rouse v Cameron, 373 F2d 451 ; Bowen v State Bd. of Social Welfare, 45 NY2d 402 ; Board of Educ. v Nyquist, 57 NY2d 27 ; Matter of Orans, 17 NY2d 601 ; Matter of Anderson v Krupsak, 40 NY2d 397 .) III. The unanimous view of other courts, State and Federal, establishes the justiciability of actions to secure the rights of the institutionalized mentally ill. (Welsch v Likins, 550 F2d 1122 ; Rouse v Cameron, 373 F2d 451 ; Dixon v Weinberger, 405 F Supp 974 .) IV. If
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this court is powerless to hear this case, a wide range of important State constitutional and statutory rights of New York citizens will be rendered unenforceable. (Bowring v Godwin, 551 F2d 44 ; Welsch v Likins, 550 F2d 1122 ; Covington v Harris, 419 F2d 617 .)
Robert Abrams, Attorney-General (Arnold D. Fleischer, Peter H. Schiff, Melvyn R. Leventhal, Howard L. Zwickel, William J. Caplow and John Petrila of counsel), for respondents in the second above-entitled action.
I. Plaintiffs’ claims under the State Mental Hygiene Law are not justiciable. (Bowen v State Bd. of Social Welfare, 45 NY2d 402 ; Baker v Carr, 369 US 186 ; Donohue v Copiague Union Free School Dist., 47 NY2d 440 ; James v Board of Educ., 42 NY2d 357 ; Matter of Kesselbrenner v Anonymous, 33 NY2d 161 ; Matter of Ellery C., 32 NY2d 588 ; Matter of Lavette M., 35 NY2d 136 ; Matter of Anderson v Krupsak, 40 NY2d 397 ; Board of Educ. v Nyquist, 57 NY2d 27 ; Matter of Orans, 17 NY2d 107 .) II. This action is not rendered justiciable simply because the complaint contains alleged constitutional claims. (Baker v Carr, 369 US 186 ; James v Board of Educ., 42 NY2d 357 ; Jones v Beame, 45 NY2d 402 ; Rouse v Cameron, 373 F2d 451 ; Dixon v Weinberger, 405 F Supp 974 ; Pacific Tel. Co. v Oregon, 223 US 118 ; Gaynor v Rockefeller, 15 NY2d 120 .) III. Neither plaintiffs’ claims under the Mental Hygiene Law nor their constitutional claims amount to a legally cognizable cause of action. (Youngberg v Romeo, 457 US 307 ; O’Connor v Donaldson, 422 US 563 ; Pennhurst State School v Halderman, 451 US 1 ; Garrity v Gallen, 522 F Supp 171 ; Lindsey v Normet, 405 US 56 ; Matter of Levy v City of New York, 38 NY2d 653 , 429 US 805 ; Montgomery v Daniels, 38 NY2d 41 .)

OPINION OF THE COURT

The mentally ill, whether in a State institution or previously institutionalized and now homeless in New York City, are entitled to a declaration of their rights as against the State. Their claims do not present a nonjusticiable controversy merely because the activity contemplated on the State’s part may be complex and rife with the exercise of discretion. Rather, the judiciary is empowered

I

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to declare the individual rights in all such cases, even if the ultimate determination is that the individual has no rights. Moreover, if a statutory directive is mandatory, not precatory, it is within the courts’ competence to ascertain whether an administrative agency has satisfied the duty that has been imposed on it by the Legislature and, if it has not, to direct that the agency proceed forthwith to do so.

These two actions, each seeking declaratory relief and mandamus, were initiated by persons treated for mental illness in State institutions, claiming that their constitutional and statutory rights have been violated by the various defendants. The essence of their demands is that they are entitled to be released into the community under a program that will ensure continued treatment and adequate housing. The courts below unanimously dismissed each complaint on the ground that the controversies presented were nonjusticiable because their resolution would involve an excessive entanglement of the courts with the executive and legislative branches. This court now reverses. The background details of each action are briefly outlined, the facts being taken from the allegations in the complaints which, in reviewing these motions to dismiss, are taken as true (see Sanders v Winship, 57 NY2d 391 , 394).

Klostermann v Cuomo

Plaintiffs are nine persons suing individually and on behalf of all others similarly situated. Each was treated in a State psychiatric hospital and discharged as part of the State’s policy to release patients to less restrictive, community-based residences. Each plaintiff became one of the homeless wandering the streets of New York City. Efforts to receive assistance from State and municipal agencies were unavailing or, at best, resulted in only minimal, periodic assistance.

Plaintiffs contend that they are entitled to appropriate residential placement, supervision, and care, including follow-ups to verify that their placement remains appropriate. They presented their claims in 11 causes of action. Citing the Fifth, Eighth, and Fourteenth Amendments to

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the United States Constitution, plaintiffs asserted a violation of their rights to receive treatment, including transitional care and aftercare upon discharge, in the least restrictive environment and to personal security and freedom from harm. Plaintiffs also asserted a denial of equal protection under the law because others similarly situated, when released, have been provided with the services that plaintiffs have not received. Plaintiffs also pleaded that the State’s failure to provide the desired services violates various Federal statutes as well as a common-law duty to provide State hospital patients with reasonable care and to protect them from reasonably foreseeable harm.

The crux of plaintiffs’ complaint is an asserted right under State law to receive residential placement, supervision, and care upon release from a State institution. Their claims are grounded in the provisions of subdivisions (f) through (h) of section 29.15 of the Mental Hygiene Law, which prescribe certain acts that must be undertaken when a patient in a State psychiatric institution is to be discharged or conditionally released into the community.[1]

1 Subdivisions (f) through (h) of section 29.15 of the Mental Hygiene Law provide: “(f) The discharge or conditional release of all clients at developmental centers, patients at psychiatric centers or patients at psychiatric inpatient services subject to licensure by the office of mental health shall be in accordance with a written service plan prepared by staff familiar with the case history of the client or patient to be discharged or conditionally released and in cooperation with appropriate social services officials and directors of local governmental units. In causing such plan to be prepared, the director of the facility shall take steps to assure that the patient to be discharged or conditionally released is interviewed, provided an opportunity to actively participate in the development of such plan and advised of whatever services might be available to him through the mental health information service. “(g) A written service plan prepared pursuant to this section shall include, but shall not be limited to, the following: “1. a statement of the patient’s need, if any, for supervision, medication, aftercare services, and assistance in finding employment following discharge or conditional release, and “2. a specific recommendation of the type of residence in which the patient is to live and a listing of the services available to the patient in such residence. “3. A listing of organizations, facilities, including those of the department, and individuals who are available to provide services in accordance with the identified needs of the patient. “4. The notification of the appropriate school district and the committee on the handicapped regarding the proposed discharge or release of a patient under twenty-one years of age, consistent with all applicable federal and state laws relating to confidentiality of such information. “(h) It shall also be the responsibility of the director of any department facility from which a client or patient has been discharged or conditionally released, in collaboration, when appropriate, with appropriate social services officials and directors of local governmental units, to prepare, to cause to be implemented, and to monitor a comprehensive program designed: “1. to determine whether the residence in which such client or patient is living, is *533 adequate and appropriate for the needs of such patient or client; “2. to verify that such patient or client is receiving the services specified in such patient’s or client’s written service plan; and “3. to recommend, and to take steps to assure the provision of, any additional services.”

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Summarized, the statute requires that a “written service plan” be prepared for each patient before his or her release. At a minimum, the plan must set forth what will be required by the patient upon discharge or conditional release, specifically recommend the type of residence in which the client should live, and list the services available at that residence as well as organizations and facilities in the area which are available to provide services in accordance with the identified needs of the patient. Lastly, the director of any department facility must create, implement, and monitor a program to ensure that a patient is living in an adequate facility and is receiving the services he or she needs.

Plaintiffs’ prayer for relief sought class certification and certain substantive remedies. They asked for a declaration that defendants have violated Federal and State law by their failure to comply with section 29.15 and by failing to provide treatment under the least restrictive conditions suitable to plaintiffs’ needs. Plaintiffs also asked for an order directing defendants “to develop and implement a plan with all due speed which will provide sufficient community-based residential facilities for plaintiffs and members of the class they represent.” Plaintiffs also requested damages.

Defendants did not answer but, instead, moved to dismiss on the grounds that the court lacked subject matter jurisdiction and the complaint failed to state a cause of action (CPLR 3211, subd [a], pars 2, 7). Their jurisdictional argument was founded on the position that treating the mentally ill essentially involves questions of allocating resources, matters that are within the competence of the executive and legislative branches and that should be guarded from judicial intervention.

Special Term granted the motion, holding that the controversy was nonjusticiable. It found that mandamus would be inappropriate because it would require the court to oversee a long series of continuous acts. The judge also

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noted that mandamus is particularly inappropriate when the relevant statutory duty involves the exercise of judgment and discretion. Having determined that no compulsory order could be issued because the matter was nonjusticiable, the court declined to consider the request for declaratory judgment because such relief would be futile in light of the unavailability of any further remedies to enforce any rights declared. The court summarily dismissed plaintiffs’ constitutional and Federal claims on the same ground of nonjusticiability.

On appeal, the Appellate Division affirmed for the reasons stated in the decision of Special Term. Leave to appeal was granted by this court.

Joanne S. v Carey

Plaintiffs in this action seek essentially the same relief as those in Klostermann, albeit from a different starting point. Suing individually and on behalf of all others similarly situated, plaintiffs are 11 patients hospitalized at Manhattan Psychiatric Hospital who have each been found ready to return to the community but have not been discharged or released because of the lack of adequate residential placements. At the time the complaint was drafted in August, 1982, the individual plaintiffs had been in this predicament for as long as a year.

In addition to class certification, plaintiffs sought declarations of their rights similar to those requested by the plaintiffs in Klostermann. They also sought orders directing defendants to release them into community treatment settings and, generally, to “develop and provide sufficient community treatment settings to provide needed shelter and aftercare to the remainder of the plaintiff class”.

Defendants, without answering, moved to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a cause of action. Special Term summarily granted the motion, ruling that the matter was nonjusticiable and referring to Supreme Court’s decision in Klostermann. The Appellate Division unanimously affirmed, citing its own decision in Klostermann. This court granted leave to appeal.

II

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On this appeal, the court is asked to consider whether the complaints present claims that lie within the judiciary’s power to review, i.e., whether the controversy is a justiciable one. It is concluded that the courts below erred in holding that they could not properly consider the issues raised by plaintiffs. It should be emphasized that, in reaching this conclusion, this court does not express any opinion as to the merits of plaintiffs’ causes of action. Their ultimate success on the substantive questions must await further proceedings.

Plaintiffs seek two remedies — declaratory judgment and mandamus. Defendants contend that no relief can be afforded to plaintiffs because fashioning any judgment would necessarily involve the allocation of resources and entangle the courts in the decision-making function of the executive and legislative branches. In making their argument, defendants fail to distinguish between a court’s imposition of its own policy determination upon its governmental partners and its mere declaration and enforcement of the individual’s rights that have already been conferred by the other branches of government.

The difficulty in determining what is “justiciable” arises in part from the nebulous quality of that concept. It is a far-reaching term that incorporates, among other things, political questions and mootness (see Jones v Beame, 45 NY2d 402 , 408). “Even within a particular category of justiciability, as with political questions, the line separating the justiciable from the nonjusticiable has been subtle, and with the passage of time, it might be said, has even moved (see, e.g., Baker v Carr, 369 US 186 , 208-237)” (id.).

The paramount concern is that the judiciary not undertake tasks that the other branches are better suited to perform. Acquiring data and applying expert advice to formulate broad programs cannot be economically done by the courts. This restraint is particularly important when the creation of a program entails selecting among competing and equally meritorious approaches so as to allocate scarce resources. Generally, the manner by which the State addresses complex societal and governmental issues is a subject left to the discretion of the legislative and

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executive branches of our tripartite system (see Matter of Abrams v New York City Tr. Auth., 39 NY2d 990 , 992).

This approach was exemplified in the companion cases of Jones v Beame and Bowen v State Bd. of Social Welfare ( 45 NY2d 402 , supra). Bowen involved a challenge by the City of Long Beach to the State’s policy of deinstitutionalizing the care of the mentally ill, the same program that is now at issue in the present appeals. This court ruled that the matter was not one properly presentable in a judicial forum, in part because the plaintiffs there sought to litigate the wisdom of the State’s policy, which involved the conflicting views of experts as to what constituted the better course of treatment — institutions or private settings in the community (id., at pp 407-408). In rejecting the suits, the court was careful to note that it was refusing only to become ensnarled in an attempt to weigh and select policies, but not to review the implementation of those policies on a case-by-case basis: “In short, resolution of the ultimate issues rests on policy, and reference to violations of applicable statutes is irrelevant except in recognizedseparately litigable matters brought to enforce them” (id., at p 409 [emphasis added]).

The instant cases raise the precise situation that was contemplated in Bowen. Plaintiffs are individuals who claim that they hold certain rights under the pertinent statutes and are seeking to enforce those rights.[2] In effect, they assert that the Legislature has mandated certain programs and that the executive branch has failed to deliver the services. The appropriate forum to determine the respective rights and obligations of the parties is in the judicial branch.

Defendants contend that the controversy is nonjusticiable because any adjudication in support of plaintiffs will necessarily require the expenditure of funds and a concom

2 Plaintiffs are also attempting to pursue their claims as class actions. This, conceivably, may create a situation similar to that in Bowen, requiring the court to consider broad policy matters rather than their application to individuals. Whether this difficulty will arise cannot now be determined as no class has been described and certified. Accordingly, this court expresses no opinion on the suitability of the present litigation to be pursued as a class action. Similarly, inasmuch as none of the lower courts ruled on defendants’ motions insofar as they seek dismissals on other grounds, this court does not express any opinion on those issues.

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itant allocation of resources. Defendants have set forth in affidavits all of their efforts to care for the psychiatric patients released from State hospitals, and argue that there simply is not enough money to provide the services that plaintiffs assert are due them. Although defendants’ attempts are commendable, they are irrelevant. “[T]he ‘[c]ontinuing failure to provide suitable and adequate treatment cannot be justified by lack of staff or facilities’ ” (Matter of Kesselbrenner v Anonymous, 33 NY2d 161 , 168; accord Matter of Lavette M., 35 NY2d 136 , 142; Matter of Ellery C., 32 NY2d 588 , 591-592). This defense is particularly unconvincing when uttered in response to a claim that existing conditions violate an individual’s constitutional rights (see Frug, Judicial Power of the Purse, 126 U of Pa L Rev 715, 725, and n 71).

In sum, there is nothing inherent in plaintiffs’ attempts to seek a declaration and enforcement of their rights that renders the controversy nonjusticiable. They do not wish to controvert the wisdom of any program. Instead, they ask only that the program be effected in the manner that it was legislated.

Ill

As noted, plaintiffs have sought declaratory judgment and mandamus. Defendants contend that, even if the controversy is justiciable, these remedies are not available. The crux of defendants’ argument is that the courts cannot draft any coercive order or judgment to enforce plaintiffs’ rights, if any, so that mandamus is inappropriate and declaratory relief is meaningless because it could never be followed by an executory decree. This misapprehends the scope of mandamus and the nature of declaratory judgments.

Mandamus, of course, is an extraordinary remedy that, by definition, is available only in limited circumstances. Declaratory relief, on the other hand, “‘is a remedy sui generis and escapes both the substantive objections and procedural limitations of special writs and extraordinary remedies’ (Borchard, Declaratory Judgments, 1939, 9 Bklyn L Rev, at p 14)” (Matter of Morgenthau v Erlbaum, 59 NY2d 143 , 147, cert den _ US _, 104 S Ct 486 ).[3]

3 This court has recently reviewed the distinction between extraordinary writs and *538 declaratory judgments in the context of requesting prohibition to review an interlocutory order in a criminal trial (Matter of Morgenthau v Erlbaum, 59 NY2d 143 ,147-149). Suffice it here to say that the discussion in Erlbaum is equally applicable to the present case.

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One aspect of the distinctive nature of an action for declaratory judgment is that not only is the ultimate decree noncoercive, but the rights declared need not be amenable to enforcement by an executory decree in a subsequent action. The belief that an executory order is required arises from the misconception that the judicial power is necessarily a coercive one. “The coercion or compulsion exerted by a judgment, while essential to its effectiveness, is not due to a coercive order to act or refrain, but to the very existence of the judgment, as a determination of legal rights. Many judgments are incapable of, and do not require, physical execution. They irrevocably, however, fix a legal relation or status placed in issue, and that is all that the judgment is expected to do. It is this determination which makes it res judicata” (Borchard, Declaratory Judgments [2d ed], p 12).

“While ordinarily a case or judicial controversy results in a judgment requiring award of process of execution to carry it into effect, such relief is not an indispensable adjunct to the exercise of the judicial function” (Fidelity Nat. Bank v Swope, 274 US 123 ,132). “[I]t is not necessary, in order to constitute a judicial judgment that there should be both a determination of the rights of the litigants and also power to issue formal execution to carry the judgment into effect, in the way that judgments for money or for the possession of land usually are enforced. A judgment is sometimes regarded as properly enforceable through the executive departments instead of through an award of execution by this Court, where the effect of the judgment is to establish the duty of the department to enforce it” (Old Colony Trust Co. v Commissioner of Internal Revenue, 279 US 716 , 725).

The primary purpose of declaratory judgments is to adjudicate the parties’ rights before a “wrong” actually occurs in the hope that later litigation will be unnecessary (see Matter of Morgenthau v Erlbaum, 59 NY2d 143 , 148, supra, and authorities cited there). The action, therefore, contemplates that the parties will voluntarily comply with

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the court’s order. It is anomalous to contend that such an action should not be permitted because it may be necessary at some future date to coerce one party who has refused to act in accordance with the judicial determination. Indeed, defendants’ argument in this regard is especially offensive in its implication that they will deem themselves free to disregard their judicially declared obligations should a court rule in favor of plaintiffs.

Thus, the ultimate availability of a coercive order to enforce adjudicated rights is not a prerequisite to a court’s entertaining an action for declaratory judgment. In any event, this objection is without merit because, in the present cases, if plaintiffs’ claims are borne out, a coercive order may be drafted by the courts.

Traditionally, “[m]andamus lies to compel the performance of a purely ministerial act where there is a clear legal right to the relief sought” (Matter of Legal Aid Soc. v Scheinman, 53 NY2d 12 , 16). The long-established law is that “ 6[w]hile a mandamus is an appropriate remedy to enforce the performance of a ministerial duty, it is well settled that it will not be awarded to compel an act in respect to which the officer may exercise judgment or discretion’ ” (Matter of Gimprich v Board of Educ., 306 NY 401 , 406, quoting People ex rel. Hammond v Leonard, 74 NY 443 , 445; but cf. Scheinman, supra, at p 16, n 1 ).

Defendants argue that preparing written service plans and creating follow-up programs are activities replete with decisions involving the exercise of judgment or discretion. This is inarguably true. What must be distinguished, however, are those acts the exercise of which is discretionary from those acts which are mandatory but are executed through means that are discretionary. For example, the decision to prosecute a suit is a matter left to the public officer’s judgment and, therefore, cannot be compelled (see People ex rel. Hammond v Leonard, 74 NY 443 , supra). In contrast, when a town council is directed by statute to designate up to four newspapers having the largest circulation for the purpose of receiving city advertising, the court can compel the council to execute its statutory duty, but it may not direct the particular papers to be named (see People ex rel. Francis v Common Council, 78 NY 33 ).

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What has been somewhat lost from view is this function of mandamus to compel acts that officials are duty-bound to perform, regardless of whether they may exercise their discretion in doing so. “[T]he writ of mandamus * * * may also be addressed to subordinate judicial tribunals, to compel them to exercise their functions, but never to require them to decide in a particular manner * * * This principle applies to every case where the duty, performance of which is sought to be compelled, is in its nature judicial, or involves the exercise of judicial power or discretion, irrespective of the general character of the officer or body to which the writ is addressed. A subordinate body can be directed to act, but not how to act, in a manner as to which it has the right to exercise its judgment. The character of the duty, and not that of the body or officer, determines how far performance of the duty may be enforced by mandamus. Where a subordinate body is vested with power to determine a question of fact, the duty is judicial, and though it can be compelled by mandamus to determine the fact, it cannot be directed to decide in a particular way, however clearly it be made to appear what the decision ought to be.” (People ex rel. Francis v Common Council, supra, at p 39 [emphasis added].)

“The general principle [is] that mandamus will lie against an administrative officer only to compel him to perform a legal duty, and not to direct how he shall perform that duty” (People ex rel. Schau v McWilliams, 185 NY 92 , 100). This rule was recently given effect in Matter of Gonkjur Assoc. v Abrams ( 57 NY2d 853 , affg on opn below 82 AD2d 683 , 688), when this court held that the Attorney-General could be directed to issue a letter stating that a co-operative apartment prospectus had been filed or was deficient, although the order could not direct the Attorney-General to approve the plan (accord Matter of Utica Cheese v Barber, 49 NY2d 1028 [Commissioner of Agriculture directed to hold hearing and render determination on milk dealer’s license application within 90 days]; Matter of Stuart & Stuart v State Liq. Auth., 29 AD2d 176 [agency can be compelled to decide license applications but not to grant the licenses]; see Matter of Thomas v Wells, 288 NY 155 ,157; Southern Leasing Co. v Ludwig, 217 NY 100 , 105).

IV

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In conclusion, plaintiffs have properly petitioned the courts for a declaration of their rights, whether derived from the Federal or State Constitutions, statutes, or regulations. Moreover, to the extent that plaintiffs can establish that defendants are not satisfying nondiscretionary obligations to perform certain functions, they are entitled to orders directing defendants to discharge those duties. The activity that the courts must be careful to avoid is the fashioning of orders or judgments that go beyond any mandatory directives of existing statutes and regulations and intrude upon the policy-making and discretionary decisions that are reserved to the legislative and executive branches.

Accordingly, in each case, the order of the Appellate Division should be reversed, with costs, and defendants’ motion to dismiss the complaint should be denied.

Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

In each case: Order reversed, etc.

Cases cited

Statutes and regulations cited