Hidley v. Rockefeller

• Decision Date: 14 May 1971
• Citation: 28 N.Y.2d 439,322 N.Y.S.2d 687,271 N.E.2d 530
• Parties: , 271 N.E.2d 530 Lois M. HIDLEY et al., Appellants, v. Nelson A. ROCKEFELLER, as Governor of the State of New York, et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 687

322 N.Y.S.2d 687

28 N.Y.2d 439, 271 N.E.2d 530

Lois M. HIDLEY et al., Appellants, v. Nelson A. ROCKEFELLER, as Governor of the State of New York et al., Respondents.

Court of Appeals of New York.

Argued May 13, 1971.

Decided May 14, 1971.

John Carter Rice, Samuel Jacobs, Albany, James D. Featherstonhaugh, James W. Roemer and Harold G. Beyer, New York City, for appellants.

Louis J. Lefkowitz, Atty. Gen. (Julius L. Sackman, Jean M. Coon and Ruth Kessler Toch, Albany, of counsel), for respondents.

MEMORANDUM.

The test of plaintiffs' standing to challenge the integrity of the legislative process of which they complain is that of personal aggrievement (St. Clair v. Yonkers Raceway, 13 N.Y.2d 72, 242 N.Y.S.2d 43, 192 N.E.2d 15) and this has not been demonstrated. Plaintiffs' real quarrel is with the amount of the appropriations, not with the form or method whereby they were requested and enacted; and there is no logical connection between the job losses now apprehended and the form of the budget bills now attacked. Neither is there any showing that any positions would be more secure had the budgetary and legislative processes taken the form that plaintiffs assert are constitutionally mandated. We found no basis for the plaintiffs' claim of standing in Matter of Posner v. Rockefeller, 26 N.Y.2d 970, 311 N.Y.S.2d 15, 259 N.E.2d 484, and certainly these appellants present no stronger case.

The order of the Appellate Division, 36 A.D.2d 957, 320 N.Y.S.2d 957, should be modified by striking the declaration of validity and by dismissing the complaint.

BREITEL, Judge (dissenting).

I dissent and vote to affirm the order of the Appellate Division holding that plaintiffs have standing to sue and that the budget and appropriation laws are constitutionally valid. The issue are of such great importance to the operation of State government, to the plaintiffs, and to the people of the State that I consider it necessary to comment at some length.

This appeal presents the issues of the constitutional validity of the State's appropriation acts for 1971--1972 (L.1971, ch. 50, 53, 54) and the standing of plaintiffs to challenge their validity. The acts were adopted by the Legislature after submission by the Governor of his anpropriation bills to implement the budget. The budget and the bills renual budget, as required by the State Constitution, accompanied by apceived considerable attention in the Legislature and unusually widespread publicity. They were subjected to servere cuts in expenditures in an atmosphere of tension and controversy described as the 'budget crisis'. On no view of the matter can it be said that the appropriation bills did not receive critical supervision by the Legislature or that the Legislature was unable to make the cuts it sought.

The Executive Budget, as distinguished from the implementing appropriation bills, is a book of 845 pages with estimates and schedules of revenues and recommended expenditures. The total budget request was $8.45 billion. The total appropriations adopted after the legislative reductions aggregated $7.7 billion. Concededly, and obviously on examination, the appropriation acts contain relatively little detail of expenditures and include liberal provisions for transfer of appropriations, as may be needed, among the purposes and projects authorized. On the other hand, the budget contains more or less detail, in some instances in as much detail as plaintiffs urge is necessary, and in other instances less in varying degrees.

Plaintiff attack the validity of the appropriation acts and the budget, upon which they were based, on the view that, in violation of the Constitution, they consist largely of lump sum appropriations rather than itemized appropriations. Plaintiffs include State employees whose services were terminated as a result of the reductions in the State appropriations. Joined as a plaintiff is the association which represents a majority of State employees, a significant number of whom may be imperiled in the retention of their State positions as a result of so-called budget cuts.

For reasons to be stated, plaintiffs have standing to pursue this action, to declare the appropriation acts invalid and to enjoin expenditures thereunder; but it is also concluded that the budget and appropriation acts are constitutionally valid.

The Constitution requires the Governor to submit to the Legislature 'a budget containing a complete plan of expenditures' (art. VII, § 2). At the same time he is required to submit 'a bill or bills containing all the proposed appropriations and reappropriations included in the budget and the proposed legislation, if any, recommended therein' (Id., § 3). The Legislature 'may not alter an appropriation bill submitted by the governor except to strike out or reduce items therein, but it may add thereto items of appropriation provided that such additions are stated separately and distinctly from the original items of the bill and refer each to a single object or purpose' (Id., § 4).

These are the significant references to 'items' contained in the Constitution in providing for the budget and appropriations. Much is made whether itemization is required of the budget as distinguished from the appropriation bills and conversely. On the analysis to follow, the distinction is not important.

There is, undoubtedly, a serious question whether plaintiffs, dismissed or prospectively dismissed employees of the State, have standing to pursue this action. If defendants' analysis on the merits of the questions involved is fully credited, plaintiffs have no standing. This follows from the argument that the executive branch would have no greater and no less control over the performance of the functions of government if the appropriation acts are itemized in detail, as plaintiffs argue they must be, or if the appropriation acts consist largely of so-called lump sum appropriations related to plans and programs scheduled in the budget plan submitted by the Governor. On the other hand, if plaintiffs' analysis is fully credited then they have standing. This follows from their argument that through detailed itemization of personal service in the appropriation acts, the Legislature, by approval of the Governor's recommendations, would as a matter of law mandate the continuance of positions in the civil service, and as a corollary direct the expenditure of State moneys out of the general fund to pay them. As a consequence of these balancing arguments plaintiffs have standing to pursue this action because if they are right in their arguments they have been directly aggrieved by the type of 'lump sum' appropriation acts enacted. They have lost their positions, or their positions have been imperiled, by the kind of appropriation acts adopted. Plaintiffs' interest as State employees is readily distinguishable from the interest shared by taxpayers generally (see St. Clair v. Yonkers Raceway, 13 N.Y.2d 72, 242 N.Y.S.2d 43, 192 N.E.2d 15; Matter of Posner v. Rockefeller, 26 N.Y.2d 970, 311 N.Y.S.2d 15, 259 N.E.2d 484). Their qualified right to continued State employment gives them an additional interest not shared by taxpayers to attack legislation which they allege illegally denies them continued employment or security of such employment (see Matter of Wipfler v. Klebes, 284 N.Y. 248, 254--255, 30 N.E.2d 581, 584--585; Matter of Corwin v. Farrell, 303 N.Y. 61, 100 N.E.2d 135, on the qualified right to employment). This private right, regardless of its dimensions, is a proper basis for permitting them to pursue this action (cf. Matter of Donohue v. Cornelius, 17 N.Y.2d 390, 396--397, 271 N.Y.S.2d 231, 233--235, 218 N.E.2d 285, 287--288; Ann., Statutes--Validity--Who May Question, 174 A.L.R. 549, 562--563). They sue not as mere taxpayers but rather in their private right as civil service employees whose positions, they allege, were abolished as a result of a chain of illegal procedures.

On the other hand, it is true that if they were wrong on the merits as to what is constitutionally required of appropriation acts they will have lost the action. But this is a lack of standing in a substantive and not a procedural sense. They are not entitled to recover judgment in their favor, but they are entitled to assert their contentions which, if correct, would have produced a contrary result. The test of standing is not the likelihood of success in the action but the nature of the grievance alleged.

Plaintiffs are correct in their contentions that the holdings of the Tremaine cases are to the effect that the Governor has the duty and power to submit an 'itemized' budget plan and appropriation bills to implement that plan (People v. Tremaine, 252 N.Y. 27, 168 N.E. 817; People v. Tremaine, 281 N.Y. 1, 21 N.E.2d 891). When, as happened in 1939, the Legislature rejected the Governor's items and substituted lump sum appropriations, it violated the constitutional design for executive budget making and control. Despite language in the second Tremaine case (supra) to the effect that a definable level of itemization by the Governor is required of him, that language is no more than explanatory elaboration of the process (Id., pp. 7--8, 21 N.E.2d, pp. 893--894). The rub is the meaning of itemization.

There is a constitutional mandate to itemize. There is no constitutional definition of itemization. There is no judicial definition of itemization and no inflexible definition is possible. Itemization is an accordion word. An item is little more than a 'thing' in a list of things. A house is an item, and so is a chair in the house, or the nail in the chair, depending on the depth and purpose of the classification. The specificness or generality of itemization depends upon its function and the context in which it is used. In one context of a budget or appropriation bill the description of 1,000 police officers within a flexible salary range would be specific and particular; in...