Godfrey v. Spano

• Decision Date: 19 November 2009
• Citation: 892 N.Y.S.2d 272,13 N.Y.3d 358
• Parties: MARGARET GODFREY et al., Appellants, v. ANDREW J. SPANO, as Westchester County Executive, et al., Respondents, and NEW YORK STATE COMPTROLLER, Intervenor-Respondent. KENNETH J. LEWIS et al., Appellants, v. NEW YORK STATE DEPARTMENT OF CIVIL SERVICE et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

13 N.Y.3d 358

892 N.Y.S.2d 272

MARGARET GODFREY et al., Appellants, v. ANDREW J. SPANO, as Westchester County Executive, et al., Respondents, and NEW YORK STATE COMPTROLLER, Intervenor-Respondent.

KENNETH J. LEWIS et al., Appellants, v. NEW YORK STATE DEPARTMENT OF CIVIL SERVICE et al., Respondents.No. 147

Court of Appeals of New York.

Argued October 13, 2009.

Decided November 19, 2009.

Alliance Defense Fund, Scottsdale, Arizona (Brian W. Raum, Benjamin W. Bull, of the Arizona bar, admitted pro hac vice, and James A. Campbell, of the Arizona bar, admitted pro hac vice, of counsel), and Ruta & Soulios, LLP, New York City (Joseph A. Ruta of counsel), for appellants in the first above-entitled action.

Alliance Defense Fund, Scottsdale, Arizona (Brian W. Raum,

Benjamin W. Bull, of the Arizona bar, admitted pro hac vice, and James A. Campbell, of the Arizona bar, admitted pro hac vice, of counsel), and Cutler, Trainor & Cutler, LLP, Malta (James P. Trainor of counsel), for appellants in the second above-entitled action.

Charlene M. Indelicato, County Attorney, White Plains (Mary Lynn Nicolas-Brewster and Stacey Dolgin-Kmetz of counsel), for Andrew J. Spano, respondent in the first above-entitled action.

Andrew M. Cuomo, Attorney General, New York City (Sasha Samberg-Champion, Barbara D. Underwood and Benjamin N. Gutman of counsel), for intervenor-respondent in the first above-entitled action and New York State Department of Civil Service and another, respondents in the second above-entitled action.

Lambda Legal Defense and Education Fund, Inc., New York City (Susan L. Sommer of counsel), and Kramer Levin Naftalis & Frankel LLP (Jeffrey S. Trachtman, Joshua Glick, Michael B. Eisenkraft and Jason M. Moff of counsel), for Michael Sabatino and others, respondents in the first and second above-entitled actions.

Stephen J. Acquario, General Counsel, New York State Association of Counties, Albany (Robert W. Gibbon of counsel), for New York State Association of Counties, amicus curiae in the first above-entitled action.

Frederick C. Veit, Briarcliff Manor, for New Yorkers for Constitutional Freedoms, amicus curiae in the first above-entitled action.

Richard E. Barnes, Albany, Thomas More Society, Northbrook, Illinois (Paul Benjamin Linton of counsel), and Thomas More Society, Chicago, Illinois (Thomas Brejcha of counsel), for New York State Catholic Conference, amicus curiae in the second above-entitled action.

Law Offices of Robert W. Dapelo, P.C., Patchogue (Robert W. Dapelo of counsel), and Marriage Law Foundation, Lehi, Utah (William C. Duncan of counsel), for Family Watch International, amicus curiae in the second above-entitled action.

Proskauer Rose LLP, New York City (Peter J.W. Sherwin and Kenneth E. Aldous of counsel), and Michael E. Getnick, Albany, for New York State Bar Association, amicus curiae in the second above-entitled action.

James R. Sandner, Latham, Elizabeth R. Schuster, Wendy M. Star and Shawn T. Kelly for New York State United Teachers, amicus curiae in the first and second above-entitled actions.

Michael A. Cardozo, Corporation Counsel, New York City (Susan Paulson and Leonard Koerner of counsel), for City of New York, amicus curiae in the first and second above-entitled

actions.

McDermott Will & Emery LLP, New York City (Lisa A. Linsky, Kathryn C. Goyer and Rachel Hundley of counsel), and Carmelyn Malalis for New York City Bar Association, amicus curiae in the first and second above-entitled actions.

Tobias Barrington Wolff, Philadelphia, Pennsylvania, for Tobias Barrington Wolff and others, amici curiae in the first and second above-entitled actions.

Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York City (Roberta A. Kaplan of counsel), Arthur Eisenberg, Matthew Faiella and Rose Saxe for New York Civil Liberties Union and others, amici curiae in the first and second above-entitled actions.

OPINION OF THE COURT

PIGOTT, J.

Plaintiff taxpayers challenge two directives by executive and county officials that recognize out-of-state same-sex marriages for purposes of public employee health insurance coverage and other benefits. We conclude that plaintiffs' actions were properly dismissed.

I.

Four states—Massachusetts, Connecticut, Iowa and Vermont— now issue marriage licenses to same-sex couples, without any residency requirement, as does Canada.¹ As a consequence, many same-sex couples who are residents of New York State have traveled to those jurisdictions and married. In light of these developments, several state and county officials have recently issued general directives relating to the recognition of those out-of-state same-sex marriages.² The present actions involve facial challenges to the legality of two of these directives, namely a Policy Memorandum issued by the Commissioner of the New York State Department of Civil Service and an Executive Order issued by the County Executive of the County of Westchester.

In June 2006, defendant Andrew J. Spano, Westchester County Executive, citing opinion letters of the Attorney General and the Comptroller,³ issued an Executive Order, with the following direction:

"WHEREAS, the County of Westchester has long provided health benefits to the qualifying domestic partners of its members; and

"WHEREAS, in September of 2002, the County of Westchester, in seeking to support all caring, committed and responsible family units, enacted its Domestic Partnership Registry Law, which allowed unmarried couples in committed relationships and who share common households to be able to register those relationships formally and to obtain a Certificate of Domestic Partnership, which serves as an independent verification of such partnership, and which may, in certain circumstances, be a condition precedent to receipt of benefits by such partners;

. . .

"WHEREAS, Section 110.11 of the Laws of Westchester County places the responsibility to supervise, direct and control, subject to law, the administrative services and departments of the County upon the County Executive; . . .

"NOW, THEREFORE, I, ANDREW J. SPANO, County Executive of the County of Westchester, in light of the aforementioned and in accordance with my statutory duties, do hereby order and direct each and every department, board, agency, and commission of the County of Westchester under my jurisdiction to recognize same sex marriages lawfully entered into outside the State of New York in the same manner as they currently recognize opposite sex marriages for the purposes of extending and administering all rights and benefits belonging to these couples, to the maximum extent allowed by law." (Westchester County Executive Order No. 3 of 2006.)

In September 2006, defendant Nancy G. Groenwegen, President of the New York State Civil Service Commission and Commissioner of the New York State Department of Civil Service, issued an Employee Benefits Division Policy Memorandum on "[r]ecognition of the spousal relationship in marriages between partners of the same sex conducted in jurisdictions where they may be legally performed," effective May 1, 2007. The memorandum explained that the State had provided eligibility for employee benefits, including New York State Health Insurance Program benefits, to the domestic partners of state employees, including same-sex partners, since the mid-1990s. The coverage, while mandatory for the State itself, was discretionary for Participating Agencies (PAs) and Participating Employers (PEs). As a result, the State had been sued by an employee of a school district that had opted not to extend health insurance coverage to domestic partners (see Funderburke v New York State Dept. of Civ. Serv., 13 Misc 3d 284 [Sup Ct, Nassau County 2006], vacated 49 AD3d 809 [2d Dept 2008]). The Department of Civil Service then

"determined that for purposes of benefits eligibility under NYSHIP and all other benefit plans administered by its Employee Benefits Division, it would recognize as spouses partners in same sex marriages legally performed in other jurisdictions.

. . .

"Effective May 1, 2007, the Department of Civil Service recognizes, as spouses, the parties to any same sex marriage performed in jurisdictions where that marriage is legal. This policy applies to all health benefit plans provided under NYSHIP, including the Empire Plan, the Student Employees Health Plan and HMOs, and all other benefits administered by the Employee Benefits Division, including The New York State Dental and Vision Plans, the M/C Life Insurance Program and NYPERL. Recognition of these spouses is mandatory for the State and all other entities participating in NYSHIP, including all PAs and PEs." (Employee Benefits Division Policy Memorandum No. 129r1.)

II.

In September 2006, plaintiffs Margaret Godfrey, Rosemarie Jarosz and Joseph Rossini, residents of and taxpayers in Westchester County, commenced an action against County Executive Andrew J. Spano, alleging two causes of action. In their first cause of action, brought pursuant to General Municipal Law § 51, plaintiffs claim that, by issuing Executive Order No. 3, Spano illegally legislated in the areas of marriage and domestic relations in a manner inconsistent with the New York State Constitution and state law. In their second cause of action, plaintiffs allege that Spano violated New York State Constitution, article IX, § 2 (c) and Municipal Home Rule Law § 10 (1) (i). Plaintiffs seek a declaratory judgment that Executive Order No. 3 is "illegal, ultra vires, unconstitutional and otherwise null and void" and a permanent injunction preventing the implementation or effectuation of the Executive Order.

Michael Sabatino and Robert Voorheis, a same-sex couple who married in Canada, were permitted to intervene.⁴ Spano and the intervenors moved to dismiss plaintiffs' complaint under CPLR 3211 (a) (7).

Supreme Court granted the motions to dismiss and declared that Executive Order No. 3 is "a valid exercise of the County Executive's power, not an...