New York State Ass'n for Retarded Children, Inc. v. Carey

Citation631 F.2d 162
Decision Date28 July 1980
Docket NumberD,1235,Nos. 1215,s. 1215
PartiesNEW YORK STATE ASSOCIATION FOR RETARDED CHILDREN, INC. et al. and Patricia Parisi et al., Plaintiffs-Appellees, v. Hugh L. CAREY, Individually and as Governor of the State of New York, and Edward V. Regan, Individually and as Comptroller of the State of New York, et al., Defendants-Appellants. ockets 80-7289, 80-7295.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Taylor R. Briggs, New York City (LeBoeuf, Lamb, Leiby & MacCrae, New York City, Richard C. Cole, Mary Jo Eyster, Caren S. Brutten, Asst. Atty. Gen., Robert Abrams, Atty. Gen. of the State of New York, New York City, of counsel), for defendants-appellants Hugh L. Carey and Edward V. Regan.

Christopher A. Hansen, New York City (New York Civil Liberties Union, Robert M. Levy, New York City, of counsel), for plaintiffs-appellees.

Paul, Weiss, Rifkind, Wharton & Garrison, New York City (Arthur L. Liman, Jonathan

D. Siegfried, Helen Hershkoff, New York City, of counsel), for plaintiffs-appellees.

Jack Bernstein, New York City, Production and Advocacy System for Developmental Disabilities, Inc., for plaintiffs-appellees.

Before LUMBARD, VAN GRAAFEILAND and KEARSE, Circuit Judges.

LUMBARD, Circuit Judge:

Hugh L. Carey and Edward V. Regan, the Governor and Comptroller of the State of New York respectively, appeal from two orders entered in the Eastern District by Judge Bartels on April 10, 1980. One order joined the Comptroller as a party, the other adjudged the Governor and the Comptroller to be in contempt if funding was not provided for the Willowbrook Review Panel by April 15th. We granted a stay of the contempt order pending disposition of this appeal.

Although the Governor was a party to the Consent Judgment of April 30, 1975, which was designed to improve conditions for a class of 5200 mentally retarded residents at the Willowbrook Developmental Center on Staten Island, in part through the establishment of a Review Panel, we conclude that Governor Carey has complied with the Consent Judgment by taking all steps within his lawful authority to secure funding for the Panel. Furthermore, we conclude that since the Consent Judgment clearly states that the Governor's efforts are to be made within the framework of the state constitution and laws, there is no justification for requiring action in violation of New York law. Accordingly, the order is reversed.

This action was brought in 1972 by the plaintiff and other similar organizations and the parents of retarded residents on behalf of all Willowbrook residents against the Governor and numerous state agencies and officials charged with operating Willowbrook to improve conditions which were alleged to violate the constitutional rights of the residents. After extended hearings, the parties agreed to a Consent Judgment signed by Judge Orrin G. Judd on April 30, 1975, which provided in part that "Without admission and prior to final findings of fact and conclusions of law" the parties agreed to "additional steps, standards and procedures necessary to secure the constitutional right to protection from harm for Willowbrook's residents" in order to ensure that the procedures set out in greater detail in the judgment and accompanying 29 page appendix would be carried out. The judgment provided for the creation of a seven member Review Panel.

Paragraph 2 of the Consent Judgment provided: "Within their lawful authority, including the State constitution and applicable State laws, and subject to any legislative approval that may be required, defendants are hereby ordered and enjoined to take all actions necessary to secure implementation of the steps, standards and procedures contained in this judgment and in Appendix 'A' hereto . . . Defendants shall take all steps necessary to ensure the full and timely financing of this judgment, including, if necessary, submission of appropriate budget requests to the legislature." It is conceded that the Governor has done all in his power to make specific budget requests to the Legislature to obtain the appropriation of $342,000 to finance the operation of the Review Panel and its staff. The funds requested for a Review Panel constituted a specific line item under the $747,000 requested for "Court-Ordered Program". Despite the Governor's request, the Legislature specifically deleted the entire $342,000 item. The Senate Finance Committee and the Assembly Ways and Means Committee stated:

The Fiscal Committees support the efforts of the Executive to meet the community placement mandates of the Willowbrook Consent Decree. Funding is decreased by ($348,000) to reflect denial of funding for the Willowbrook Review Panel and to return reimbursement rates for other advisory groups to 1979-80 levels.

Apparently the Legislature disapproved of the high per diem rate to be paid to consultants on the Review Panel. The plaintiffs then petitioned the district court to order the restoration of the funds and Judge Bartels directed the Governor and the Comptroller (about to be joined as a party) to show cause on April 7 why they should not be ordered to pay the Review Panel's expenses or be held in contempt by failure to do so. After hearing argument, Judge Bartels ordered that the Comptroller be joined as a party and that he and the Governor be adjudged in contempt if funding was not provided by April 15. Meanwhile, on April 14, the Governor submitted a supplemental appropriation bill, upon which the Legislature has not yet acted, to restore the Review Panel's funds.

Judge Bartels acknowledged at the April 7 show-cause hearing that Governor Carey has acted entirely in good faith in this dispute. Nevertheless, Judge Bartels stated in his April 10 Memorandum Decision and Order, "(W)e remain unconvinced that the Governor, together with the extensive resources, financial and otherwise, at his disposal, has done all within his powers, through formal and informal channels, to see that funding be either restored or replaced." Judge Bartels then suggested that the Governor, in order to provide at least temporary funding for the Panel, could draw funds from any one of five appropriations which, in Judge Bartels' view, could be considered to comprehend such a use, or could interchange a portion of appropriated funds pursuant to Section 51 of the New York Finance Law. Accordingly, on the ground that funds from which the Review Panel could be paid were at the appellants' disposal, Judge Bartels ordered that Governor Carey and Comptroller Regan be held in contempt if funding was not provided for the Review Panel by April 15. We reverse.

The appellants can obey Judge Bartels' order, and thereby avoid the sanctions attending contempt, only by violating the Constitution and laws of the State of New York. Article VII, Section 7 of the New York State Constitution prescribes:

No money shall ever be paid out of the state treasury or any of its funds, or any of the funds under its management, except in pursuance of an appropriation by law; . . . and every such law making a new appropriation or continuing or reviving an appropriation shall distinctly specify the sum appropriated, and the object or purpose to which it is to be applied; and it shall not be sufficient for such law to refer to any other law to fix such sum.

New York case law states clearly that this provision "prohibits funds from being expended in excess of the amounts appropriated and for purposes other than those specified in the Appropriations Bill." County of Oneida v. Berle, 91 Misc.2d 694, 398 N.Y.S.2d 600, 603 (Sup.Ct.1977), aff'd 49 N.Y.2d 515, 427 N.Y.S.2d 407, 404 N.E.2d 133 (N.Y. Court of Appeals, per curiam, 1980). In affirming the Supreme Court in Berle, the New York Court of Appeals reiterated, "However laudable its goals, the executive branch may not override enactments which have emerged from the lawmaking process. It is required to implement policy declarations of the Legislature, unless vetoed or judicially invalidated." 49 N.Y.2d at 523, 427 N.Y.S.2d at 412, 404 N.E.2d at 137 (1980). Thus, under New York law, Governor Carey can legally expend funds for the Review Panel only if the Legislature has appropriated funds for that purpose. The Legislature did not appropriate funds for the Review Panel; on the contrary, it deleted the proposed line item for the Review Panel and it expressly stated its intention to deny such funding in the Report of the Senate Finance Committee and the Assembly Ways and Means Committee. 1 The Legislature's denial also bars Governor Carey, notwithstanding the suggestions of Judge Bartels and appellees, from drawing funds for the Review Panel from other appropriations or pursuant to his authority under Section 51 of the New York State Finance Law to interchange up to 5% of different appropriations. Section 43 of the New York State Finance Law states:

Money appropriated for a specific purpose shall not be used for any other purpose, and the Comptroller shall not draw a warrant for the payment of any sum appropriated, unless it clearly appears from the detailed statement presented to him by the person demanding the same as required by this chapter, that the purposes for which such money is demanded are those for which it was appropriated.

In light of the Legislature's denial of funding for the Review Panel, Governor Carey cannot present to Comptroller Regan, as Section 43 requires, a statement clearly indicating that "the purposes for which such money is demanded are those for which it is appropriated." Section 51 does not avail Governor Carey because it only authorizes an interchange between, on the one hand, "any item or items within a program or purpose" and, on the other, "any item or items within the same program or purpose, or with other items . . . contained in the comptroller's classification." There being no item for the Review Panel in...

To continue reading

Request your trial
18 cases
  • New York State Ass'n for Retarded Children, Inc. v. Carey, s. 305
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 31 d4 Março d4 1983
    ...of New York and its comptroller to reinstate funding for the Review Panel in defiance of the legislature and of state law, 631 F.2d 162, 166 (2 Cir.1980). With the demise of the Review Panel, counsel for the plaintiff class brought charges of noncompliance directly to the district court's a......
  • Halderman v. Pennhurst State School & Hospital
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 23 d2 Março d2 1982
    ...court denied a motion to stay the March 2, 1981 order, from which no appeal had been taken.15 See New York State Ass'n for Retarded Children, Inc. v. Carey, 631 F.2d 162 (2d Cir. 1980).16 In other circumstances when the Governor of Pennsylvania learned that the legislature was attempting to......
  • DELAWARE VALLEY CITIZENS'COUNCIL v. Com. of Pa.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • 22 d5 Janeiro d5 1982
    ...court to interfere with the appropriation decisions of a state legislature were recently discussed in New York State Association for Retarded Children v. Carey, 631 F.2d 162 (2d Cir. 1980). In Carey, a consent decree was entered in which Governor Carey agreed to make specific budget request......
  • NY State Ass'n for Retarded Children v. Carey, 72 C 356/357.
    • United States
    • U.S. District Court — Eastern District of New York
    • 15 d2 Junho d2 1982
    ...F.Supp. 487 (E.D.N.Y.), aff'd, 612 F.2d 644 (2d Cir. 1979); 492 F.Supp. 1099 (E.D.N.Y.1980); 492 F.Supp. 1110 (E.D.N.Y.), rev'd, 631 F.2d 162 (2d Cir. 1980). Other opinions and orders were issued in this case, 72 Civ. 356/357, on March 5, 1976; March 8, 1976; March 10, 1976; March 30, 1976;......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT