Boryszewski v. Brydges

• Decision Date: 02 July 1975
• Citation: 372 N.Y.S.2d 623,334 N.E.2d 579,37 N.Y.2d 361
• Parties: , 334 N.E.2d 579 Ralph BORYSZEWSKI et al., Appellants, v. Earl W. BRYDGES, as Majority Leader and Temporary President of the Senate, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 623

372 N.Y.S.2d 623

37 N.Y.2d 361, 334 N.E.2d 579

Ralph BORYSZEWSKI et al., Appellants, v. Earl W. BRYDGES, as Majority Leader and Temporary President of the Senate, et al., Respondents.

Court of Appeals of New York.

July 2, 1975.

Ralph Boryszewski, pro se, and for Robert E. Kesel and another, appellants.

Louis J. Lefkowitz, Atty. Gen. (Grace K. Banoff and Ruth Kessler Toch, Albany, of counsel), for respondents.

JONES, Judge.

We hold today that a taxpayer has standing to challenge enactments of our State Legislature as contrary to the mandates of our State Constitution. Recognizing such procedural right we proceed on the present broad motion to dismiss to consider the sufficiency of the particular claims of unconstitutionality urged here by these petitioners. In so doing, we reject their contentions that the State's legislative and executive retirement plan is unconstitutional and we dismiss their assertions with respect to the unconstitutionality of budbet statutes providing lump sum 'lulus' in lieu of expenses for members of the Legislature for failure to state a cause of action as to which declaratory relief may be granted.

Much attention has been devoted in our court to the determination of which litigants, if any, shall be recognized as having legal capacity to test the constitutionality of a State statute authorizing the expenditure of State moneys. Over vigorous dissents, in St. Clair v. Yonkers Raceway, 13 N.Y.2d 72, 242 N.Y.S.2d 43, 192 N.E.2d 15 by a 4--3 vote our court continued the narrow limitation of persons having such capacity to those 'personally aggrieved thereby, and then only if the determination of the grievance requires a determination of constitutionality' (p. 76, 242 N.Y.S.2d p. 44, 192 N.E.2d p. 16). In reliance on holdings in older cases, we then said (p. 76, 242 N.Y.S.2d p. 44, 192 N.E.2d p. 16), 'It seems to us proper 'that the courts of this state have denied the right of a citizen and taxpayer to bring before the court for review the acts of another department of government simply because he is one of many such citizens and taxpayers'.'

Today we no longer think this proper, and accordingly we depart from our holding in St. Clair, for the persuasive reasons stated by the dissenters there and for reasons enunciated by dissenters in subsequent decisions. Even the majority opinions in these later decisions reflect some lack of enthusiasm for the St. Clair doctrine.

The holding and rationale in Matter of Donohue v. Cornelius, 17 N.Y.2d 390, 271 N.Y.S.2d 231, 218 N.E.2d 285, the first post-St. Clair case, were very much tempered in Matter of Burke v. Sugarman, 35 N.Y.2d 39, 358 N.Y.S.2d 715, 315 N.E.2d 772, in which the court recognized the capacity of interested litigants to challenge civil service procedures on constitutional grounds.

In Matter of Posner v. Rockefeller, 26 N.Y.2d 970, 972, 311 N.Y.S.2d 15, 16, 259 N.E.2d 484, 485 the next case, three of the Judges of our court concurred on the standing issue only under constraint of St. Clair. The following year in Hidley v. Rockefeller, 28 N.Y.2d 439, 440, 322 N.Y.S.2d 687, 688, 271 N.E.2d 530, 531, three members of the court dissented on the particular standing issue there confronted, as to which the majority position was posited only on citations to St. Clair and Posner.

By way of apparent contrast see Matter of Bell v. Levitt, 44 A.D.2d 742, 354 N.Y.S.2d 465, mot. for lv. to app. den., 34 N.Y.2d 518, 359 N.Y.S.2d 1025, 316 N.E.2d 883.

On other settings in which questions of standing have been posed it has been our disposition to expand rather than to contract the doctrine (e.g., Matter of Douglaston Civic Assn. v. Galvin, 36 N.Y.2d 1, 364 N.Y.S.2d 830, 324 N.E.2d 317; Matter of National Organization for Women v. State Div. of Human Rights, 34 N.Y.2d 416, 358 N.Y.S.2d 124, 314 N.E.2d 867; cf. Matter of Burke v. Sugarman, supra, 35 N.Y.2d p. 45, 358 N.Y.S.2d p. 719, 315 N.E.2d pp. 774--775).

We are satisfied that the time has now come when the judicially formulated restriction on standing (which we recognize has had a venerable existence) should be modified to bring our State's practice with respect to review of State legislative action into conformity not only with the practice in the majority of other States but also with the procedural standing of taxpayers to challenge local actions (General Municipal Law, § 51). We are now prepared to recognize standing where, as in the present case, the failure to accord such standing would be in effect to erect an impenetrable barrier to any judicial scrutiny of legislative action. In the present instance it must be considered unlikely that the officials of State government who would otherwise be the only ones having standing to seek review would vigorously attack legislation under which each is or may be a personal beneficiary. Moreover, it may even properly be thought that the responsibility of the Attorney-General and of other State officials is to uphold and effectively to support action taken by the legislative and executive branches of government. As Judge Fuld wrote generally in St. Clair (supra, 13 N.Y.2d p. 79, 242 N.Y.S.2d p. 47, 192 N.E.2d p. 19) 'The suggestion * * * that the Attorney-General and other state officials may be relied upon to attack the constitutional validity of state legislation is both unreal in fact and dubious in theory'. His estimate of the situation has been verified in the years since St. Clair.

Where the prospect of challenge to the constitutionality of State legislation is otherwise effectually remote, it would be particularly repellant today, when every encouragement to the individual citizentaxpayer is to take an active, aggressive interest in his State as well as his local and national government, to continue to exclude him from access to the judicial process--since Marbury v. Madison, 1 Cranch (5 U.S.) 137, 2 L.Ed. 60, the classical means for effective scrutiny of legislative and executive action. The role of the judiciary is integral to the doctrine of separation of powers. It is unacceptable now by any process of continued quarantine to exclude the very persons most likely to invoke its powers.

We, therefore, recognize the standing of these petitioners to raise for judicial adjudication the claims of unconstitutionality that they now urge upon us.

We turn then to the procedural aspects of this appeal, since the Appellate Division, erroneously as we now hold, disposed of the case on the standing issue.

Although the petition may be said to be imprecisely drawn and appears to have been conceived as perhaps intended to institute a proceeding under CPLR article 78, both declaratory and injunctive relief are sought. In this circumstance and to allow for the proper prosecution of the action we exercise the authority granted in CPLR 103 (subd. (c)) and convert the proceeding into an action for a declaratory judgment--the appropriate vehicle for examination of the constitutionality of legislation (Matter of Jerry v. Board of Educ. of City School Dist. of City of Syracuse, 35 N.Y.2d 534, 544, 364 N.Y.S.2d 440, 446, 324 N.E.2d 106, 111; Matter of Gold v. Lomenzo, 29 N.Y.2d 468, 476, n. 4, 329 N.Y.S.2d 805, 811, 280 N.E.2d 640, 644; Matter of Overhill Bldg. Co. v. Delany, 28 N.Y.2d 449, 458, 322 N.Y.S.2d 696, 703, 271 N.E.2d 537, 542; 3 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3001.06g).

The action, so converted, is before us on respondents' motion to dismiss under CPLR 3211. The motion was grounded, Inter alia, on lack of standing and failure to state a cause of action and included the customary prayer for 'such other and further relief as to this court may seem just and proper'. The material allegations of the petition must be deemed to be constructively admitted; the differences between the parties on a motion to dismiss revolve exclusively around questions of law.

In these circumstances, and once it has been determined that the case is properly one for declaratory relief, the court may properly proceed, on a motion to dismiss in an action for a declaratory judgment, to a consideration of the sufficiency of the plaintiff's claims on the merits (St. Lawrence Univ. v. Trustees of Theol. School of St. Lawrence Univ., 20 N.Y.2d 317, 282 N.Y.S.2d 746, 229 N.E.2d 431; Civil Serv. Forum v. New York City Tr. Auth., 4 N.Y.2d 866, 174 N.Y.S.2d 234, 150 N.E.2d 705, affg., 4 A.D.2d 117, 163 N.Y.S.2d 476; Plaza Mgt. Co. v. City Rent Agency, 31 A.D.2d 347, 298 N.Y.S.2d 162; Matter of Mandis v. Gorski, 24 A.D.2d 181, 265 N.Y.S.2d 210; Garcia v. Motor Vehicle Acc. Ind. Corp., 18 A.D.2d 62, 238 N.Y.S.2d 195; cf. German Masonic Temple Assn. v. City of New York, 279 N.Y. 452, 457, 18 N.E.2d 657, 658).

We concern ourselves only with the assertions advanced on the merits by the petitioners. They challenge the constitutionality of two legislative enactments--the State's legislative and executive retirement plan and budget statutes providing lump sum 'lulus' in lieu of expenses for members of the Legislature.

We reject petitioners' contentions that the legislative and executive retirement plan violates provisions of our State Constitution. Petitioners first assert that the retirement plan (unidentified in petitioners' papers but presumably the plan established by L.1968, ch. 219, now to be found in § 80--a of the Retirement and Social Security Law) violates section 7 of article XIII which provides: 'Each of the state officers named in this constitution shall, during his continuance in office, receive a compensation, to be fixed by law, which shall not be increased or diminished during the term for which he shall have been elected or appointed; nor shall he receive to his use any fees or perquisites of office or other compensation.' To the extent that this section is applicable to the participants in this retirement plan, petitioners argue that the section bars 'future payments for past services' and that compensation can be paid an officer...