King v. Cuomo

• Citation: 597 N.Y.S.2d 918,613 N.E.2d 950,81 N.Y.2d 247
• Parties: , 613 N.E.2d 950 In the Matter of Edgar A. KING, as Supervisor of the Town of Northumberland, et al., Appellants, v. Mario M. CUOMO, as Governor of the State of New York, et al., Respondents.
• Decision Date: 06 May 1993
• Court: New York Court of Appeals

Page 918

597 N.Y.S.2d 918

81 N.Y.2d 247, 613 N.E.2d 950

In the Matter of Edgar A. KING, as Supervisor of the Town of Northumberland, et al., Appellants, v. Mario M. CUOMO, as Governor of the State of New York, et al., Respondents.

Court of Appeals of New York.

May 6, 1993.

Oliver & Oliver, Albany (Lewis B. Oliver, Jr., and Harriet B. Oliver, of counsel), for appellants.

Robert Abrams, Atty. Gen., Albany (Lawrence L. Doolittle, Jerry Boone and Peter H. Schiff, of counsel), for respondents.

OPINION OF THE COURT

BELLACOSA, Judge.

The bicameral "recall" practice used by the Legislature to reacquire Assembly Bill No. 9592-A of 1990 from the Governor's desk is not authorized by article IV, § 7 of the New York State Constitution. The Constitution prescribes the respective powers of the Executive and the Legislative Branches as to how a passed bill becomes a law or is rejected. The order of the Appellate Division, 180 A.D.2d 215, 584 N.Y.S.2d 207, therefore, should be reversed and the challenged procedure should be declared unconstitutional, but only prospectively.

Assembly Bill No. 9592-A, entitled "AN ACT to amend the agriculture and markets law, in relation to the siting of solid waste management-resource recovery facilities within agricultural districts," was passed by the Assembly and the Senate on June 28, 1990 and June 29, 1990, respectively. It was formally sent to the Governor on July 19, 1990. The next day, according to the official journals of the Legislature, the Assembly adopted a resolution, with which the Senate concurred, requesting that the Governor return the bill to the Legislature. The Executive Chamber accommodated the request on the same day.

Appellants brought their combined CPLR article 78 and declaratory judgment action seeking a ruling (1) that the method used by the Legislature to retrieve the passed bill is unconstitutional; and (2) that the passed bill, in effect, automatically became law because the Governor failed to act on it within 10 days of its delivery to his desk on July 19, 1990. Supreme Court dismissed the action and the Appellate Division modified to declare the recall practice constitutional. Appellants are before this Court by an appeal taken as of right on a substantial constitutional issue.

I.

Preliminarily, the State defendants argue that the Judicial Branch may not review the constitutionality of this recall practice, as it would be an intrusion on the inviolate roles of the separate law-making Branches. We conclude that the courts do not trespass "into the wholly internal affairs of the Legislature" (Heimbach v. State of New York, 59 N.Y.2d 891, 893, 465 N.Y.S.2d 936, 452 N.E.2d 1264, appeal dismissed 464 U.S. 956, 104 S.Ct. 386, 78 L.Ed.2d 331) when they review and enforce a clear and unambiguous constitutional regimen of this nature. In Heimbach v. State of New York (supra), by sharp contrast, the internal procedural issue involved how the Clerk of the Senate recorded and certified a roll call of votes (compare, Matter of Board of Educ. v. City of New York, 41 N.Y.2d 535, 538, 394 N.Y.S.2d 148, 362 N.E.2d 948). Our precedents are firm that the "courts will always be available to resolve disputes concerning the scope of that authority which is granted by the Constitution to the other two branches of the government" (Saxton v. Carey, 44 N.Y.2d 545, 551, 406 N.Y.S.2d 732, 378 N.E.2d 95; New York State Bankers Assn. v. Wetzler, 81 N.Y.2d 98, 102, 595 N.Y.S.2d 936, 612 N.E.2d 294; see also, Myers v. United States, 272 U.S. 52, 116, 47 S.Ct. 21, 25, 71 L.Ed. 160; Matter of New York State Inspection, Sec. & Law Enforcement Empls. v. Cuomo, 64 N.Y.2d 233, 239, 485 N.Y.S.2d 719, 475 N.E.2d 90). That is precisely what is being done here (see, Wolfe v. McCaull, 76 Va. 876, 880 [1882] [constitutionality of recall procedure is a justiciable issue].

The internal rules of the Assembly and the Senate, which reflect and even purport to create the recall practice, are entitled to respect. However, those rules cannot immunize or withdraw the subsisting question of constitutional law-making power from judicial review. Since the authority of the Legislature is "wholly derived from and dependent upon the Constitution" (Matter of Sherrill v. O'Brien, 188 N.Y. 185, 199, 81 N.E. 124), the discrete rules of the two houses do not constitute organic law and may not substitute for or substantially alter the plain and precise terms of that primary source of governing authority. The rule-making authority of article III, § 9 prescribes that "[e]ach house shall determine the rules of its own proceedings" (emphasis added). Contrary to the assertion of the dissent, that authorization cannot justify rules which extend beyond the Legislature's "own proceedings" and are inextricably intertwined with proceedings pending entirely before the Executive. These rules substantially affect Executive proceedings after the Legislature's proceedings, with respect to a passed bill, have formally ended by transmittal of the passed bill to the Governor's desk.

The challenged recall practice significantly unbalances the law-making options of the Legislature and the Executive beyond those set forth in the Constitution. By modifying the nondelegable obligations and options reposed in the Executive, the practice compromises the central law-making rubrics by adding an expedient and uncharted bypass. The Legislature must be guided and governed in this particular function by the Constitution, not by a self-generated additive (see, People ex rel. Bolton v. Albertson, 55 N.Y. 50, 55).

II.

Article IV, § 7 of the State Constitution prescribes how a bill becomes a law and explicitly allocates the distribution of authority and powers between the Executive and Legislative Branches. The key provision grants law-making authority from the People as follows:

"[e]very bill which shall have passed the senate and assembly shall, before it becomes a law, be presented to the governor; if he approve, he shall sign it; but if not, he shall return it with his objections to the house in which it shall have originated * * * [i]f any bill shall not be returned by the governor within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it" (emphasis added).

The description of the process is a model of civic simplicity: (1) Approval; (2) Rejection by Veto; or (3) Approval by Inaction. The Constitution thus expressly creates three routes by which a passed bill may become a law by gubernatorial action or inaction or be rejected by veto.

The putative authority of the Legislature to recall a passed bill once it has been formally transmitted to the Governor "is not found in the constitution" (People v. Devlin, 33 N.Y. 269, 277). We conclude, therefore, that the practice is not allowed under the Constitution. To permit the Legislature to use its general rule-making powers, pertaining to in-house procedures, to create this substantive authority is untenable. As this Court stated in Devlin "[w]hen both houses have * * * finally passed a bill, and sent it to the governor, they have exhausted their powers upon it" (id., at 277 [emphasis added]. That expression and principle apply with equal force here, even though in Devlin the recall was attempted by only one house rather than both (see, Wolfe v. McCaull, 76 Va. 876, 883, supra).

When language of a constitutional provision is plain and unambiguous, full effect should be given to "the intention of the framers * * * as indicated by the language employed" and approved by the People (Settle v. Van Evrea, 49 N.Y. 280, 281 [1872]; see also, People v. Rathbone, 145 N.Y. 434, 438, 40 N.E. 395). In a related governance contest, this Court found "no justification * * * for departing from the literal language of the constitutional provision" (Anderson v. Regan, 53 N.Y.2d 356, 362, 442 N.Y.S.2d 404, 425 N.E.2d 792 [emphasis added]. As we stated in Settle v. Van Evrea:

" [I]t would be dangerous in the extreme to extend the operation and effect of a written Constitution by construction beyond the fair scope of its terms, merely because a restricted and more literal interpretation might be inconvenient or impolitic, or because a case may be supposed to be, to some extent, within the reasons which led to the introduction of some particular provision plain and precise in its terms.

"That would be pro tanto to establish a new Constitution and do for the people what they have not done for themselves" (49 N.Y. 280, 281, supra).

Thus, the State's argument that the recall method, in practical effect and accommodation, merely fosters the underlying purpose of article IV, § 7 is unavailing (see, New York State Bankers Assn. v. Wetzler, 81 N.Y.2d 98, 104, 595 N.Y.S.2d 936, 612 N.E.2d 294, supra).

If the guiding principle of statutory interpretation is to give effect to the plain language (Ball v. Allstate Ins. Co., 81 N.Y.2d 22, 25, 595 N.Y.S.2d 711, 611 N.E.2d 750; Debevoise & Plimpton v. New York State Dept. of Taxation & Fin., 80 N.Y.2d 657, 661, 593 N.Y.S.2d 974, 609 N.E.2d 514; McKinney's Cons. Laws of N.Y., Book 1, Statutes § 94) " [e]specially should this be so in the interpretation of a written Constitution, an instrument framed deliberately and with care, and adopted by the people as the organic law of the State" (Settle v. Van Evrea, 49 N.Y., at 281, supra). These guiding principles do not allow for interstitial and interpretative gloss by the courts or by the other Branches themselves that substantially alters the specified law-making regimen. Courts do not have the leeway to construe their way around a self-evident constitutional provision by validating an inconsistent "practice and usage of those charged with implementing the laws" (Anderson v. Regan, 53 N.Y.2d 356, 362, 442 N.Y.S.2d 404, 425 N.E.2d 792, supra; see also, People ex rel. Burby v. Howland, 55 N.Y. 270, 282, 49 N.E. 775; People ex rel. Crowell v....