Posner v. Rockefeller
| Decision Date | 03 January 1970 |
| Citation | 62 Misc.2d 28,307 N.Y.S.2d 959 |
| Parties | Application of Herbert A. POSNER, Peter A. A. Berle and Guy R. Brewer, Petitioners, For a judgment under Article 78 CPLR in the nature of mandamus v. Nelson A. ROCKEFELLER, Governor of the State of New York, T. Norman Hurd, Director of the Budget of the State of New York, and Arthur Levitt, Comptrollerof the State of New York, Respondents. |
| Court | New York Supreme Court |
Peter A. A. Berle, New York City (Herbert A. Posner, New York City, of counsel), for petitioners.
Louis J. Lefkowitz, Atty. Gen. (Jean M. Coon, Albany, of counsel), for respondents.
This is an article 78 proceeding, in the nature of mandamus, in which the petitioners seek a judgment directing the Governor, the Director of the Budget and the Comptroller, the respondents herein, to expend no further monies in accordance with certain provisions of the State Purposes Budget, the Local Assistance Budget, the Capital Construction Budget and the Supplemental Budget (L.1969, chs. 48, 49, 50 and 340). The petitioners bring this proceeding as members of the New York State Assembly and as taxpayers and citizens of this State.
This proceeding was commenced originally in Supreme Court, New York County, where respondent moved for a change of venue to Albany County and moved to dismiss the proceeding on the grounds, among others, that the petitioners did not have legal standing to bring the proceeding and that the proceeding was not timely under CPLR 217. Special Term (Bloustein, J.) denied all motions of the respondents and granted judgment on the merits to the petitioners, holding certain parts of the state budget unconstitutional (Matter of Posner v. Rockefeller, 60 Misc.2d 597, 304 N.Y.S.2d 28). On appeal, the Appellate Division, First Department (33 A.D.2d 683, 305 N.Y.S.2d 852), reversed the order denying respondents' motion for a change of venue, vacated Special Term's order and judgment and remanded this proceeding to Special Term, Albany County, for further proceedings, and the respondents were granted permission to file an answer, which is now before the court. Further appeal was taken to the Court of Appeals, wherein the Appellate Division's order was affirmed without opinion (25 N.Y.2d 720, 307 N.Y.S.2d 224, 255 N.E.2d 563).
The petitioners contend that certain parts of the appropriation bills submitted by the Governor and enacted into law by the Legislature are unconstitutional when measured against the requirements contained in article VII of the New York State Constitution. They allege in their petition that the appropriation bills are unconstitutional in that (1) they contain instances of lump sum appropriations without proper itemization; (2) the Director of the Budget is given authority to transfer funds between certain programs; and (3) they limit expenditures on given programs to an amount less than the total of line appropriations for that program.
It is the position of the petitioners that article VII of the New York State Constitution mandates complete itemization of expenditures in appropriation bills and that, due to the form in which the Governor submitted the instant appropriation bills, the petitioners, as Assemblymen, were unable to properly discharge their duties under section 4 of article VII, which provides that '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'.
Respondents contend that the Constitution requires not complete itemization, but, rather, a complete plan of expenditures, to be submitted to the Legislature via the executive budget and appropriation bills, that itemization is required only as to separate object or purpose, which itemization was properly supplied in these appropriation bills, and that the complained of provisions were proper and necessary under the theory of an executive budget as embodied in article VII of the Constitution, to provide for flexible and efficient functioning of state government.
This proceeding having been remanded to this court, as outlined above, it must be treated de novo for the purpose of these 'further proceedings'. Therefore, it is necessary that the questions of law raised by respondents' motion to dismiss be considered at the outset, before considering the proceeding on the merits.
It must first be determined whether petitioners, either as citizen-taxpayers or as Assemblymen, have standing to attack the constitutionality of the appropriation laws in question. This court concerns itself first with their standing as citizen-taxpayers.
In St. Clair v. Yonkers Raceway, 13 N.Y.2d 72, 76, 242 N.Y.S.2d 43, 44, 192 N.E.2d 15, 16, it was held, following a strong line of prior authority (Bull v. Stichman, 273 App.Div. 311, 78 N.Y.S.2d 279, affd. 298 N.Y. 516, 80 N.E.2d 661; Schieffelin v. Komfort, 212 N.Y. 520, 106 N.E. 675, L.R.A.1915D, 485; Doolittle v. Supervisors of Broome County, 18 N.Y. 155), that 'the constitutionality of a State statute may be tested only by one personally aggrieved thereby, and then only if the determination of the grievance requires a determination of constitutionality'.
Following St. Clair supra, Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947, was decided in 1968. Flast considered a taxpayer's attack upon portions of Titles I and II of the Elementary and Secondary Education Act of 1965, under which money was being spent for the benefit of private as well as public education. It was alleged that Congress, by an unconstitutional exercise of its taxing and spending...
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