Lavine v. State
| Docket Number | Index No. 007623/2022 |
| Decision Date | 09 February 2023 |
| Citation | 184 N.Y.S.3d 571 |
| Parties | Gary J. LAVINE, Plaintiff, v. STATE of New York; Kathy Hochul, as Governor; Andrea Stewart-Cousins, as Temporary President of the Senate ; Robert Ortt, as Senate Minority Leader; Carl Heastie, as Assembly Speaker; William Barclay, Assembly Minority Leader; and the Independent Review Committee, Defendants. |
| Court | New York Supreme Court |
Petitioner: Gary J. Lavine, Esq., Syracuse, — pro se
Defendants: Andrea Stewart-Counsins — John L. Murad, Esq., Syracuse, Hancock Estabrook, LLP, Gov. Hochul - Craig R. Bucki, Esq., Buffalo, Phillips Lytle, Independent Review Committee — Karl J. Sleight, Esq., Albany, Lippes Mathias, LLP, Speaker Heastie — Elliot A. Hallack, Esq., Harris Beach PLLC, Minority Leaders Ort and Barclay — Stephen T. Helmer, Esq., Syracuse, Mackenzie Hughes, LLP
Plaintiff commenced the instant action on September 22, 2022, by filing a Verified Complaint seeking a) declaratory judgment that the provisions of Executive Law § 94 by which the Senate's advice and consent prerogatives are delegated to the Independent Review Committee are unconstitutional; b) declaratory judgment that the Committee's application of Executive Law § 94 to the Plaintiff violates provisions of Article I, Article III, and Article V of the Constitution; and c) preliminary and permanent injunctions seating the Plaintiff and all other nominees rejected by the Committee as members of the Commission on Ethics and Lobbying in Government.
Section 94 of the Executive Law provides, in part, that the Commission on Ethics and Lobbying (hereinafter "the Ethics Commission") is comprised of eleven appointees who are nominated by the various Defendants and must be approved by the Independent Review Committee (hereinafter "IRC") which is comprised of the deans of New York State's accredited law schools. It is the approval of the IRC to which Plaintiff objects as an unlawful delegation of the Legislature's constitutional powers of advice and consent to a panel of private citizens.
Presently before the Court is an Order to Show Cause filed by Plaintiff on September 22, 2022, as well as four Cross-Motions to Dismiss pursuant to CPLR § 3211(a)(7) for failure to state a cause of action brought by Defendants Andrea Stewart-Cousins, Governor Hochul1 , IRC, and Speaker Heastie. Defendants Ortt and Barclay filed an Attorney Affirmation asserting they had no objection to the relief sought by Plaintiff. By letter dated December 14, 2022, Plaintiff withdrew his second cause of action asserting IRC's application of Exec. Law § 94 was unconstitutional as applied. (NYSCEF Doc. No. 70). Oral argument was heard on December 22, 2022.
As a matter of judicial economy, the Court will first address the Defendants’ motions to dismiss for Plaintiff's failure to set forth a cause of action, pursuant to CPLR § 3211(a)(7). "We note at the outset that upon a motion to dismiss for failure to state a cause of action, a court may reach the merits of a properly pleaded cause of action for declaratory judgment where no questions of fact are presented [by the controversy] Under such circumstances, the motion to dismiss should be taken as a motion for a declaration in the defendant's favor and treated accordingly." Kaplan v. State , 147 A.D.3d 1315, 1316, 47 N.Y.S.3d 535 [4th Dept., 2017] citing North Oyster Bay Baymen's Assn. v. Town of Oyster Bay , 130 A.D.3d 885, 890, 16 N.Y.S.3d 555 [2nd Dept., 2015]
Presently there are two causes of action before the Court. The first cause of action alleges that Executive Law § 94 is unconstitutional as either an improper usurping of the Senate's advice and consent power or as an improper delegation of legislative power (i.e. the non-delegation doctrine). Plaintiff additionally asserts a cause of action seeking preliminary and permanent injunctions.
Defendants move to dismiss primarily based upon the alleged failure of the Plaintiff to state a cause of action. In support, Defendants proffer legal authority which demonstrates that 1) Article V, § 4 of the New York Constitution requires Senate "advice and consent" only for appointments of executive branch department heads and appointments to the judiciary, not for appointments to subsidiary commissions; and 2) the non-delegation doctrine does not apply to delegations of power to approve or deny nominees to a body such as the Ethics Commission.
The Court must start its inquiry with the presumption that Executive Law § 94 is constitutional. "There exists a strong presumption of constitutionality which accompanies legislative actions [which is] not to say that such actions must always be sustained without question; they are, however, entitled to the benefit of the presumption, and will be sustained absent a clear showing of unconstitutionality." Kaplan v. State , 147 A.D.3d at 1317, 47 N.Y.S.3d 535, quoting Wein v. Beame, 43 N.Y.2d 326, 331, 401 N.Y.S.2d 458, 372 N.E.2d 300 [1977] See Dunlea v. Anderson , 66 N.Y.2d 265, 267, 496 N.Y.S.2d 406, 487 N.E.2d 263 [1985] () In fact, Courts should only "strike them down" as a "last unavoidable result after every reasonable mode of reconciliation of the statute with the Constitution has been resorted to, and reconciliation has been found impossible." White v. Cuomo , 38 N.Y.3d 209, 216, 172 N.Y.S.3d 373, 192 N.E.3d 300 [2022] (internal citations omitted).
Executive Law § 94 establishes a two-step process for appointment to the Ethics Commission, whereby nominations are made by the governor, speaker of the assembly, temporary president of the senate, minority leaders of the assembly and senate, comptroller, and the attorney general. Those nominations are then subject to approval or denial by the IRC, which is composed of members of "the American Bar Association accredited New York state law school deans, interim deans, or their designee who is an associate dean." Exec.Law § 94(2) 9(c), (3)(a)-(b). Nominees are appointed if they are found by the IRC to meet the qualifications necessary by virtue of their background and expertise, and who are found to have the ability to impartially, fairly, and even-handedly with respect to service on the commission. Id. , § 94(3)(d) If a nominee is rejected, the nominator submits a new nominee. In performance of its duties, the IRC is required to publish the procedure it will utilize on its website, which it did in June of 2022. The process provided for a questionnaire, interview, financial disclosures, fingerprinting, releases to permit review of a nominee's criminal, tax, and credit history. It additionally provided a seven-day public comment period.
Plaintiff argues that Executive Law § 94 is facially unconstitutional as it violates the New York State Constitution's "advice and consent" provisions, or in the alternative, is an improper delegation of legislative power. Defendants’ motion asserts that Plaintiff's arguments are contrary to long-standing, binding Court of Appeals precedent.
The "advice and consent" power of the Senate applies in only two circumstances; 1) the appointment of heads of departments of the executive branch, and 2) the appointment of the judiciary. See NY Const. Art. V, § 4 ; Soares v. State of New York , 68 Misc.3d 249, 272, 121 N.Y.S.3d 790 (Sup. Ct. Albany County., 2020) (advice and consent provision applies to "commissions or boards that serve as heads of departments in the executive branch, but not to every other ‘subsidiary board or commission within the twenty permanent departments’ ") In fact, Article IX, § 9 of the New York Constitution provides in pertinent part that "all other officers whose appointment is not provided for in this constitution shall be appointed as the legislature may direct." See also, Lanza v. Wagner, 11 N.Y.2d 317, 330, 229 N.Y.S.2d 380, 183 N.E.2d 670 [1962]. An appointment to the Ethics Commission is neither an appointment to a head of department of the executive branch, nor an appointment to the judiciary and therefore entirely within the discretion of the legislature to direct as it sees fit. Plaintiff's argument that the appointment process for the Ethics Commission violates the "advice and consent" power of the Senate is without merit, and not grounds upon which to find a constitutional violation.
While Petitioner concedes that not all appointments require Senate confirmation, he conclusively asserts that the IRC approval process for nominees "fundamentally subverts the Senate's authority and demeans the Senate's stature in violation of Articles III and V of the Constitution. Article III § 1 provides that the "legislative power of this state shall be vested in the senate and assembly" and is the origin of the "non-delegation doctrine." Typically, non-delegation cases involve a legislative...
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