Rudder v. Pataki

• Citation: 246 A.D.2d 183,675 N.Y.S.2d 653
• Parties: , 1998 N.Y. Slip Op. 6572 Cynthia RUDDER et al., Appellants, v. George E. PATAKI, as Governor of the State of New York, et al., Respondents.
• Decision Date: 02 July 1998
• Court: New York Supreme Court Appellate Division

Page 653

675 N.Y.S.2d 653

246 A.D.2d 183, 1998 N.Y. Slip Op. 6572

Cynthia RUDDER et al., Appellants, v. George E. PATAKI, as Governor of the State of New York, et al., Respondents.

Supreme Court, Appellate Division Third Department.

July 2, 1998.

Schulte, Roth & Zabel (David M. Brodsky of counsel), New York City, for appellants.

Dennis C. Vacco, Attorney General (Robert M. Goldfarb of counsel), Albany, for respondents.

Before: CARDONA, P.J., MERCURE, CREW, WHITE and SPAIN, JJ.

WHITE, Justice.

Appeal from an order of the Supreme Court (Teresi, J.), entered April 21, 1997 in Albany County, which, inter alia, granted defendants' motion for summary judgment dismissing the complaint.

On November 30, 1995, one month prior to the scheduled sunset of the regulatory review agency formerly known as the Office of Regulatory and Management Assistance, defendant Governor issued Executive No. 20 (9 NYCRR 5.20) (hereinafter the executive order) which established the position of Director of Regulatory Reform (hereinafter the Director) with the authority to oversee the review of proposed agency regulations. The executive order set forth the responsibilities of the Director including, but not limited to, oversight of the regulatory process of State agencies, analysis of the impact of proposed and existing rules on matters such as public health, safety and welfare, and making recommendations for simplifying the regulatory process, including a cost benefit analysis and analysis of a rule's impact on the creation or retention of jobs. In addition, prior to an agency's submission of proposed or revised rulemaking for publication in the State Register, the rule must be submitted to the Director for evaluation and approval. If the Director determines that the submission is complete, it is then submitted with the Director's recommendation to a four-member committee ¹ which may then authorize publication, disapproval or revision of the rule if it does not meet the criteria set forth in 9 NYCRR 5.20.

This action arises from a constitutional challenge to the executive order following the disapproval by defendant Director of a Department of Health proposal to amend 10 NYCRR 405.28(d). This rule requires each hospital in the State, excepting rural or non-urban hospitals, to have an organized social work department under the direction of a qualified medical social worker. The proposed amendment, inter alia, required that the director of the department of social work in each covered hospital have a Master's degree in social work from an accepted educational program. After reviewing the proposed rule, the Director found that the amendment did not comply with the criteria set forth in the executive order and issued a notice of noncompliance to the Commissioner of Health. The Commissioner responded and a second notice of noncompliance was issued by the Director. Thereafter the Commissioner submitted no further information to refute the Director's objections, the proposed rule expired on June 10, 1996 and a final determination was never made by the Director.

Plaintiffs commenced this declaratory judgment action seeking to have the executive order declared unconstitutional and, following joinder of issue, both parties moved for summary judgment. Supreme Court granted summary judgment in favor of defendants and dismissed the complaint. Plaintiffs now appeal.

The initial issue we must confront is whether plaintiffs have standing to maintain this action. This must be determined at the outset of any litigation since standing is a threshold determination and a litigant must establish standing in order to seek judicial review, with the burden of establishing standing being on the party seeking review (see, Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 769, 772, 570 N.Y.S.2d 778, 573 N.E.2d 1034). The party seeking relief must demonstrate that it will suffer direct harm or injury that is different in some way from that of the public at large (see, Matter of Lee v. New York City Dept. of Hous. Preservation & Dev., 212 A.D.2d 453, 454, 622 N.Y.S.2d 944, appeal dismissed in part, lv. denied in part 85 N.Y.2d 1029, 631 N.Y.S.2d 284, 655 N.E.2d 398; Matter of Hoston v. New York State Dept. of Health, 203 A.D.2d 826, 827, 611 N.Y.S.2d 61, lv. denied 84 N.Y.2d 803, 617 N.Y.S.2d 137, 641 N.E.2d 158).

In Matter of Eaton Assocs. v. Egan, 142 A.D.2d 330, 535 N.Y.S.2d 998, where an executive order promulgating an affirmative action program without legislative authorization was challenged as unconstitutional under the doctrine of separation of powers, this court held that the petitioner lacked standing as there was no showing that he had suffered any personal injury fairly traceable to the executive order. Further, a party must show that the injury of which it complains falls within its zone of interest and is not a generalized grievance, and the fact that the issue may be one of wide public concern will not entitle a party to standing (see, Valley Forge Christian Coll. v. Americans United For Separation of Church & State, 454 U.S. 464, 476, 102 S.Ct. 752, 760-761, 70 L.Ed.2d 700; Matter of Kirmayer v. State of New York Civ. Serv. Commn., 236 A.D.2d 705, 706, 652 N.Y.S.2d 909, lv. denied 89 N.Y.2d 815, 659 N.Y.S.2d 856, 681 N.E.2d 1303; Matter of Otsego 2000 v. Planning Bd. of Town of Otsego, 171 A.D.2d 258, 575 N.Y.S.2d 584, lv. denied 79 N.Y.2d 753, 581 N.Y.S.2d 281, 589 N.E.2d 1263).

Plaintiff Cynthia Rudder, the Director of the Nursing Home Community Coalition of New York State, claims standing as a citizen taxpayer pursuant to State Finance Law § 123-b. Under this section an action against an officer or employee of the State challenging the expenditures or appropriations of its funds may be maintained, but unless the expenditures can be clearly traced to identifiable State funds the plaintiff lacks standing to pursue such an action (see, Matter of Schulz v. State of New York, 217 A.D.2d 393, 395, 634 N.Y.S.2d 780; Matter of Schulz v. Cobleskill-Richmondville Cent. School Dist. Bd. of Educ., 197 A.D.2d 247, 251, 610 N.Y.S.2d 694). Other than general references to improper spending by defendant Office of Regulatory Reform, plaintiff has failed to designate with any specificity either the amount of funds to be expended or the manner in which the expenditure will occur. Therefore, she lacks standing under State Finance Law § 123-b.

The 10 organizational plaintiffs are a potpourri of agencies involving social workers, nursing home advocates and other advocates for the aged and disabled, as well as the Women's City Club of New York and the League of Women Voters. Mindful that the present regulations provide that a qualified medical social worker would have to be replaced by a person holding a Master's degree in social work, we find a lack of any specific harm to any of the plaintiff organizations other than generalized statements that continuing with the present rule would somehow diminish the care presently available or have a deleterious effect on patients. From a reading of plaintiffs' brief, it is clear that the main contention of plaintiffs is that the executive order vests the Governor's Office of Regulatory Reform with a "virtually limitless" veto power in the rulemaking process, a concern which is more appropriately addressed by the Legislature (see, Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 773, 570 N.Y.S.2d 778, 573 N.E.2d 1034, supra ).

Since no final determination was made in the challenged proceeding and any anticipated harm to the plaintiffs is remote and highly speculative, we find that plaintiffs have failed to sustain their burden of establishing standing in this matter.

ORDERED that the order is affirmed, without costs.

CARDONA, P.J. and CREW, J., concurs.

MERCURE, Justice (dissenting).

We respectfully dissent. In our view, Supreme Court was correct in its summary rejection of defendants' threshold challenges to justiciability and standing but erred in its on-the-merits determination to dismiss the complaint. We conclude that Executive Order No. 20 (9 NYCRR 5.20) (hereinafter the executive order) constitutes an unprecedented and legally impermissible usurpation of administrative agencies' traditional rulemaking authority in favor of a select group of gubernatorial appointees and that it should be struck down as violative of the doctrine of separation of powers and contrary to controlling statutory law.

Initially, we concur in the majority's implicit rejection of defendants' assertion that the controversy is not justiciable. Notwithstanding the fact that the Commissioner of Health ultimately abandoned her effort to cure the objections posed by defendant Director of Regulatory Reform (hereinafter the Director) and that, as a result, the Department of Health's proposed rulemaking died through inaction rather than at the hand of defendant Office of Regulatory Reform, the very real threat of veto rendered the controversy justiciable (see, Metropolitan Washington Airports Auth. v. Citizens for Abatement of Aircraft Noise, 501 U.S. 252, 265 n. 13, 111 S.Ct. 2298, 2306 n. 13, 115 L.Ed.2d 236). Nor do we view this as a challenge relating solely to the internal administration of a coequal branch of our State government. Rather, as properly asserted by plaintiffs, defendant Governor's assumption of the authority of other governmental branches is "eminently justiciable" (Jiggetts v. Grinker, 75 N.Y.2d 411, 415, 554 N.Y.S.2d 92, 553 N.E.2d 570).

Turning now to the issue of standing, we cannot subscribe to the majority's implicit conclusion that not one of the organizational plaintiffs has satisfied the tripartite test for organizational standing, i.e., that (1) some or all of the members themselves have standing to sue, (2) the interests which the organization seeks to protect must be germane to its purposes, and (3) neither the relief requested nor the claims asserted require the...