Clark v. Cuomo

• Decision Date: 22 October 1985
• Citation: 66 N.Y.2d 185,495 N.Y.S.2d 936,486 N.E.2d 794
• Parties: , 486 N.E.2d 794 George L. CLARK, Jr., Individually and as Chairman of the New York Republican State Committee, Appellant-Respondent, v. Mario M. CUOMO, as Governor of the State of New York, et al., Respondents-Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 936

495 N.Y.S.2d 936

66 N.Y.2d 185, 486 N.E.2d 794

George L. CLARK, Jr., Individually and as Chairman of the New York Republican State Committee, Appellant-Respondent, v. Mario M. CUOMO, as Governor of the State of New York, et al., Respondents-Appellants.

Court of Appeals of New York.

Oct. 22, 1985.

Thomas J. Spargo, Albany, for appellant-respondent.

Robert Abrams, Atty. Gen. (Robert Hermann, John Q. Driscoll and Christopher K. Hall, Albany, of counsel), for respondents-appellants.

Arthur Eisenberg, Julius Chambers, Joel Berger and Lani Guinier, New York City, for The League of Women Voters of N.Y. State and others, amici curiae.

OPINION OF THE COURT

WACHTLER, Chief Judge.

At issue in these cross appeals is the power of the Executive to implement a plan to facilitate the registration of potential voters by making registration forms and assistance available at State agencies.

I.

On July 9, 1984, Governor Cuomo issued Executive Order No. 43 (9 NYCRR 4.43), which established a program of voter registration and a "Voter Registration Task Force". The registration program is to be implemented through State agencies having contact with the public, which are to make mail registration forms available and provide, through their staffs, assistance in filling out the forms. Staff assistants are mandated to observe a position of "strict neutrality with respect to a person's party enrollment". The Voter Registration Task Force, composed of the heads of various State agencies, including the Executive Director of the State Board of Elections, or their representatives, is directed to meet quarterly and is charged, in essence, with overseeing the implementation of the programs.

Shortly after the executive order was issued, plaintiff commenced this action for declaratory and injunctive relief. Special Term granted plaintiff's motion for a preliminary injunction (123 Misc.2d 885, 478 N.Y.S.2d 802), but the Appellate Division reversed, on the law, denied the motion (103 A.D.2d 244, 480 N.Y.S.2d 61) and granted leave to appeal to our court (104 A.D.2d 673, 479 N.Y.S.2d 484). We affirmed (63 N.Y.2d 96, 479 N.Y.S.2d 971, 468 N.E.2d 1108).

A trial on the merits followed, at which the sole witness was Henrik N. Dullea, Director of State Operations and Chairman of the Voter Registration Task Force. Dullea testified that the registration program had been implemented in "an array of agencies which have a fairly high volume of pedestrian traffic", in which voter registration forms had been made available and signs had been posted reminding the public that registration was a precondition of voting and describing the registration form. Dullea characterized these efforts as "a passive program of making that material available".

Persons requesting forms may fill them out at the agency and leave them in a receptacle for transmittal to or pickup by the local Board of Elections, or they may mail the forms directly to the Board. The Boards are given the option of providing locks for the receptacles; if they do not, the agency will supply a lock for each receptacle.

Dullea testified further that options for collecting the completed forms included pickup by a Board representative at each agency or a central location in the county, or delivery to the Board by the agency. However, he also read from a memorandum he had sent to the agency coordinators which provided: "There should be no need for you or any other State employee to handle completed registration forms. Rather, each citizen should place the completed form in the receptacle, which should be placed in a secure location each evening. You should place a padlock on the receptacle, removing it only to give the forms to a representative of your County Board of Elections. In fact, New York State's Board of Elections will assist you in making arrangements with your county board for picking up the registration forms."

The memorandum also contained the following warning: "very important: The Governor specified in his Executive Order that employees involved in this project must 'maintain a position of strict neutrality with respect to a person's party enrollment.' It is crucial that you explain to all participating employees that they may not in any way try to influence registrants' party enrollment."

Following the testimony, Trial Term declared Executive Order No. 43 "unlawful, unconstitutional and void" and enjoined defendants from implementing it (125 Misc.2d 968, 480 N.Y.S.2d 833). Defendants appealed, and after it vacated their stay pursuant to CPLR 5519(c) (105 A.D.2d 451, 480 N.Y.S.2d 716), the Appellate Division reversed, on the law, declared Executive Order No. 43 constitutional and enjoined defendants and the Voter Registration Task Force from providing receptacles for completed voter registration forms at those locations where the forms are made available (104 A.D.2d 188, 483 N.Y.S.2d 828).

Plaintiff, the then Republican State Chairman, predicated this appeal on a constitutional question (CPLR 5601), contending, in essence, that Executive Order No. 43 violates the doctrine of separation of powers and article II, § 8 of our Constitution. Defendants cross-appealed from so much of the Appellate Division's order as enjoined them from providing receptacles for completed voter registration forms at those agency locations where the forms are made available, ¹ contending the injunction exceeded the scope of the court's equitable powers. Finding none of these arguments persuasive, we affirm.

II.

Plaintiff's first contention is that, in essence, Executive Order No. 43 violates the constitutional principle of separation of powers because it infringes upon the mandate that the Legislature "provide by law for a system or systems of registration" (NY Const, art II, § 6). The doctrine of separation of powers is implied by the separate grants of power to each of the coordinate branches of government. Article III, § 1 of our Constitution provides: "The legislative power of this state shall be vested in the senate and assembly", and article IV, § 1 provides in pertinent part that "executive power shall be vested in the governor".

But we have recognized that some overlap between the three separate branches does not violate the constitutional principle of separation of powers (e.g., Matter of County of Oneida v. Berle, 49 N.Y.2d 515, 523, 427 N.Y.S.2d 407, 404 N.E.2d 133; Matter of Richardson, 247 N.Y. 401, 413, 160 N.E. 655). As we noted in People v. Tremaine, 252 N.Y. 27, 39, 168 N.E. 817, "common sense and the necessities of government do not require or permit a captious, doctrinaire and inelastic classification of governmental functions." In Matter of Rosenthal v. McGoldrick, 280 N.Y. 11, 14, 19 N.E.2d 660, for example, we sustained legislation conferring upon judicial officers the plenary power to fix salaries of clerks and other employees, noting that "rule that the judiciary may not be charged with administrative functions does not apply when such functions are 'reasonably incidental to the performance of judicial duties' ".

Plaintiff's reliance on Rapp v. Carey, 44 N.Y.2d 157, 404 N.Y.S.2d 565, 375 N.E.2d 745, is misplaced. There, we recognized that "in this State the executive has the power to enforce legislation and is accorded great flexibility in determining the methods of enforcement" (id., at p. 163, 404 N.Y.S.2d 565, 375 N.E.2d 745; see also, Under 21 v. City of New York, 65 N.Y.2d 344, 356, 492 N.Y.S.2d 522, 482 N.E.2d 1). ² It is only when the Executive acts inconsistently with the Legislature, or usurps its prerogatives, that the doctrine of separation is violated. Thus, in Rapp v. Carey (supra), we held that an executive order requiring financial disclosure by certain State employees and prohibiting certain political and outside business activity did not implement existing legislation regulating conflicts of interest, but reached far beyond such legislation and thus assumed the power of the Legislature to set State policy.

But the case before us is quite different. The Legislature has declared its policy that "the state board of elections shall have the power and duty * * * to encourage the broadest possible voter participation in elections" (Election Law § 3-102). Registration application forms, it has further declared, are to be given by a County Board of Elections to "any person" requesting them; each County Board "shall also cause such application forms to be as widely and freely distributed as possible" (Election Law § 5-210). That the program was intended to further this policy was established at trial by the uncontradicted testimony of Dullea. Unlike the order in Rapp v. Carey (supra, 44 N.Y.2d at p. 165, 404 N.Y.S.2d 565, 375 N.E.2d 745), it can thus hardly be said that Executive Order No. 43 represents a "nullification" of legislative action. The dissent suggests that the foregoing sections must be read literally to limit the effectuation of these policies by only the State and County Boards of Election, without any assistance, no matter how consistent with the articulated policy, whether such Boards desire such assistance or not. Yet, inexplicably, the dissent concludes that this very language, which it would apply so literally against the State, would not apply to private actors.

Moreover, in this case there was cooperation by both the State and local Boards of Election with the program implemented by Executive Order No. 43. Indeed, the State Board of Elections is itself an executive agency (Election Law § 3-100). Most important, as discussed more fully below, the program is not registering anyone to vote in contravention of any statute or constitutional delegation of authority, but is merely facilitating the distribution and filling out of forms, which is only the first step toward registration.

Our decision in no way conflicts with Matter of Prospect v. Cohalan, 65 N.Y.2d 867, 493 N.Y.S.2d 293, 482 N.E.2d 1209, motion for clarification and ...