Rudder v. Pataki

• Citation: 711 N.E.2d 978,93 N.Y.2d 273,689 N.Y.S.2d 701
• Parties: , 711 N.E.2d 978, 1999 N.Y. Slip Op. 4085 Cynthia RUDDER et al., Appellants, v. George E. PATAKI, as Governor of the State of New York, et al., Respondents.
• Decision Date: 06 May 1999
• Court: New York Court of Appeals

Page 701

689 N.Y.S.2d 701

93 N.Y.2d 273, 711 N.E.2d 978, 1999 N.Y. Slip Op. 4085

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

Court of Appeals of New York.

May 6, 1999.

Schulte Roth & Zabel, L.L.P., New York City (David M. Brodsky, Linda R. Daly, Thomas R. Fallati and Tim O'Neal Lorah of counsel), and Willkie Farr & Gallagher (Nancy Kessler McCabe of counsel), for appellants.

Eliot Spitzer, Attorney-General, Albany (Robert M. Goldfarb, Barbara G. Billet and Peter H. Schiff of counsel), for respondents.

OPINION OF THE COURT

CIPARICK, J.

This case requires that we decide whether plaintiffs have standing to challenge an Executive Order issued by the Governor. They assert that the Order violates the principle of separation of powers under the New York State Constitution and also violates the State Administrative Procedure Act (SAPA). We hold that plaintiffs lack standing to maintain this action, and reach no other issues.

On November 30, 1995, a month before the scheduled sunset of the legislation that created the Office of Regulatory and Management Assistance (ORMA), and for the purpose of continuing the rule-making review process, Governor Pataki issued Executive Order No. 20 (see, Executive Law § 893; 9 NYCRR 5.20). It established the position of State Director of Regulatory Reform and an office known as the Governor's Office of Regulatory Reform (GORR). The Executive Order sets forth various criteria by which GORR--whose members are appointed by the Governor--is to judge proposed rules offered by executive branch administrative agencies. GORR may authorize publication of the rule in the State Register or require specified changes be made before publication, or it may prohibit the publication of the rule entirely. This power to prohibit publication effectively blocks a proposed rule from promulgation.

Plaintiffs challenge the authority of the Governor to implement Executive Order No. 20. They claim that the Governor has improperly given a small number of his political appointees the power to preempt rule making by most agencies of the State. Plaintiffs contend that Executive Order No. 20 circumvents the notice and public comment requirements of SAPA and the rule-making authority statutorily vested in the various agency heads, and usurps the authority of the legislative branch, thus violating the constitutional doctrine of separation of powers.

The challenge follows two disapprovals by GORR of a Department of Health proposal to amend 10 NYCRR 405.28(d), which continues to require all urban hospitals in the State to have an organized social work department under the direction of a qualified social worker. The proposed change would have required that the director of each organized social work department hold a master's degree in social work (MSW).

Plaintiffs--one individual taxpayer as well as several organizations representing either social workers, patients who receive social work services or voter groups--brought this action seeking a declaratory judgment that Executive Order No. 20 was unconstitutional. Supreme Court, on motions from both sides for summary judgment, determined that the organizations had common-law standing and the individual plaintiff, Rudder, had statutory standing pursuant to State Finance Law § 123-b.

On the merits, however, Supreme Court held that Executive Order No. 20 did not run afoul of the separation of powers doctrine, nor did it conflict with SAPA. The Appellate Division affirmed, but without reaching the merits held that none of the plaintiffs had standing to challenge the Governor's authority to issue the Executive Order. The two-Justice dissent disagreed with the majority's conclusion that no specific harm was suffered by the members of the organizations representing social workers; the dissenters noted that some of the members would have had increased employment opportunities had the proposed rule been adopted, and "the de facto veto of the rule had the effect of depriving them of that pecuniary and professional advantage" (246 A.D.2d 183, 188, 675 N.Y.S.2d 653). Furthermore, in the dissent's view, a holding that there was no standing "would have the practical effect of immunizing the executive order from judicial scrutiny" (id., at 189, 675 N.Y.S.2d 653). Plaintiffs appeal as of right, and we now affirm.

This case turns on the question of standing. Plaintiffs proffer three theories: organizational, citizen-taxpayer and voter standing.

Where organizations seek standing to challenge administrative agency actions, there must exist concrete adversarial interests requiring judicial intervention (Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 772, 570 N.Y.S.2d 778, 573 N.E.2d 1034; see, Matter of Dairylea Coop. v. Walkley, 38 N.Y.2d 6, 9, 377 N.Y.S.2d 451, 339 N.E.2d 865; Schieffelin v. Komfort, 212 N.Y. 520, 530, 106 N.E. 675). Thus, an organizational plaintiff must demonstrate a harmful effect on at least one of its members; it must show that "the interests it asserts are germane to its purposes so as to satisfy the court that it is an appropriate representative of those interests;" and it must establish that the case would not require the participation of individual members (Society of Plastics Indus. v. County of Suffolk, supra, 77 N.Y.2d, at 775, 570 N.Y.S.2d 778, 573 N.E.2d 1034). The first two prongs of this inquiry are at issue here. The organizational plaintiffs contend that they represent individuals who have been injured by GORR's actions, and that they have specific interests advanced by the regulations in question.

The two main groups of organizational plaintiffs here--those that represent social workers and those that represent patients who receive social work services--fail to allege any cognizable harm to their members. No doubt the members of the New York City Chapter of the National Association of Social Workers and the 1199 National Health and Human Service Employees Union who hold MSW's will not have the benefit of increased job prospects because GORR blocked the proposed Department of Health rule change. However, this does not mean that any one individual member with an MSW has been or will be injured. Unlike Subcontractors Trade Assn. v. Koch, 62 N.Y.2d 422, 426-427, 477 N.Y.S.2d 120, 465 N.E.2d 840, and Matter of Dental Socy. v. Carey, 61 N.Y.2d 330, 335, 474 N.Y.S.2d 262, 462 N.E.2d 362, the organization members who hold MSW's are not prohibited from seeking a certain portion of available jobs, nor deprived of monies to which they may be statutorily entitled. Rather, they are merely not given preference over those who do not hold an MSW degree. At best, this amounts to only "tenuous" and "ephemeral" harm, which is insufficient to trigger judicial intervention (see, Society of Plastics Indus. v. County of Suffolk, supra, 77 N.Y.2d, at 777-778, 570 N.Y.S.2d 778, 573 N.E.2d 1034).

Although great weight is placed on the "zone of interests" inquiry in challenges to administrative agency actions, the interests of the organizations representing MSW's are not entirely germane to the relief they seek in this litigation (see, Society of Plastics Indus. v. County of Suffolk, supra, 77 N.Y.2d, at 773, 570 N.Y.S.2d 778, 573 N.E.2d 1034; Matter of Dairylea Coop. v. Walkley, supra, 38 N.Y.2d, at 9, 377 N.Y.S.2d 451, 339 N.E.2d 865; see also, Clarke v. Securities Indus. Assn., 479 U.S. 388, 107 S.Ct. 750, 93 L.Ed.2d...