Saxton v. Carey

• Decision Date: 29 March 1978
• Citation: 403 N.Y.S.2d 779,61 A.D.2d 645
• Parties: Walter A. SAXTON et al., Appellants, v. Hugh L. CAREY, as Governor of the State of New York, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 779

403 N.Y.S.2d 779

61 A.D.2d 645

Walter A. SAXTON et al., Appellants, v. Hugh L. CAREY, as Governor of the State of New York, et al Respondents.

Supreme Court, Appellate Division, Third Department.

March 29, 1978.

Ira M. Ball, Utica, for appellants.

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

Before MAHONEY, P. J., and SWEENEY, KANE, STALEY and LARKIN, JJ.

OPINION FOR MODIFICATION

PER CURIAM.

In this action plaintiffs, who are citizen-taxpayers, allege that the 1978-79 State budget and accompanying appropriation bills as submitted by the Governor to the Legislature are unconstitutional on the ground that they do not comply with sections 1 through 4 of article VII of the State Constitution. Subsequent to the commencement of their action, plaintiffs moved for a preliminary injunction and defendants cross-moved to dismiss the complaint on the ground that it failed to state a cause of action.

Special Term, relying upon the Court of Appeals' decision in New York Public Interest Research Group v. Carey, 42 N.Y.2d 527, 399 N.Y.S.2d 621, 369 N.E.2d 1155, held that since the budget had not been enacted by the Legislature a judicial determination of the constitutionality of the proposed budget would be advisory only and, therefore, dismissed the plaintiffs' complaint as premature. The court noted, however, that judicial intervention would constitute "an impermissible invasion of the Legislative Branch of Government by the Judicial, clearly afoul of the doctrine of Separation of Powers of Government."

Since the act that is claimed to be repugnant to the Constitution is the failure by the Governor to submit itemized appropriation bills and not the failure by the Legislature to enact an itemized budget, the crucial factors of New York Public Interest Research Group v. Carey (supra) are all satisfied in this case. The proper parties are before the court. Additionally, if, as plaintiffs contend, the 1978-79 budget bills as submitted by the Governor are not sufficiently itemized, the Legislature is not empowered to correct the deficiencies. Although the Legislature may add its own itemized appropriations to the submitted bills, section 4 of the State constitution prevents it from striking out items from the submitted appropriation bills and substituting more detailed appropriations (N.Y. Const. art. VII, § 4; People v. Tremaine, 281 N.Y. 1, 21 N.E.2d 891). Consequently, the probability of a budget being enacted which does not correct the alleged defects of the submitted bills is great. The violation is not in the future, but has already occurred and the remedy is within the control of the parties. Therefore, the case is not premature. The provisions of section 123-b of the State Finance Law which confer standing upon a citizen-taxpayer to maintain an action for declaratory and injunctive relief against a State officer who is causing or is "about to cause a wrongful expenditure, misappropriation, misapplication, or any other illegal or unconstitutional disbursement of State funds * * * " is supportive of this conclusion.

In the instant case, the facts are undisputed and the parties have extensively briefed and argued the constitutionality of the budget and accompanying appropriation bills. Consequently, even though the present appeal is from an order granting a motion to dismiss, the court will proceed to convert the motion to dismiss to a motion for summary judgment and grant the judgment which Special Term could or should have granted (CPLR 3211, subd. (c); 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., P 3211.44; Knickerbocker Field Club v. Site Selection Board of the City of New York, 41 A.D.2d 539, 339 N.Y.S.2d 485).

Defendants contend that the relief requested by plaintiffs requires judicial interference in the legislative process and therefore, would be improper as a violation of the doctrine of separation of powers. A constitutional issue, however, is raised by the plaintiffs. In such a situation, if the constitution is truly rather than only peripherally involved, courts have considered the case, albeit with a proper appreciation of the delicacy of the situation (Matter of Board of Educ. of City School Dist. of N.Y. v. City of New York, 41 N.Y.2d 535, 394 N.Y.S.2d 148, 362 N.E.2d 948; New York Public Interest Research Group v. Steingut, 40 N.Y.2d 250, 386 N.Y.S.2d 646, 333 N.E.2d 558. See also Matter of Gottlieb v. Duryea, 38 A.D.2d 634, 326 N.Y.S.2d 889, aff'd. no opn. 30 N.Y.2d 807, 334 N.Y.S.2d 904, 286 N.E.2d 278, cert. den. 409 U.S. 1008, 93 S.Ct. 439, 34 L.Ed.2d 300).

While we agree with that portion of Judge Breitel's dissent in Hidley v. Rockefeller (28 N.Y.2d 439, 444-45, 322 N.Y.S.2d 687, 691-92, 271 N.E.2d 530, 533-34) that the specifics or lack thereof in appropriation bills supportive of a proposed Budget are essentially the concern of the Governor and Legislature, we, nevertheless, feel that where a citizen-taxpayer raises an issue regarding the constitutionality of the appropriation bill, as submitted, the "narrowest of instances test" is satisfied and compels judicial intervention at least to the extent of resolving the constitutional issue (Wein v. Carey, 41 N.Y.2d 498, 505, 393 N.Y.S.2d 955, 960, 362 N.E.2d 587, 591).

The plaintiffs rely on People v. Tremaine, 281 N.Y. 1, 21 N.E.2d 891, 895, supra to support their position that the Governor has a constitutional duty to itemize appropriation bills accompanying his budget. The Tremaine case did not involve the duty of the Governor to itemize the appropriation bills but rather involved the right of the Legislature to substitute lump sum appropriations for particularized items submitted by the Governor The court concluded that "(T) he Legislature may not alter an appropriation bill by striking out the Governor's items and replacing them for the same purpose in different form". The court, however, clearly recognized that in order for the Legislature to fulfill its constitutional obligation it was constitutionally required that the Governor itemize his appropriation bills (see Hidley v. Rockefeller, supra, 28 N.Y.2d p. 444, 322 N.Y.S.2d p. 691, 271 N.E.2d p. 533 (dissenting opn., Breitel, J.)).

Specifically, the court stated (id. 281 N.Y., at 5, 21 N.E.2d at 393):

The Constitution means that the budget, and the appropriation bills accompanying it, shall be broken down into items sufficient to show what money is to be expended, and for what purpose. * * * The items must be sufficient to furnish the information necessary to determine whether in the judgment of the Legislature all that is demanded should be granted or is required.

With respect to the degree of itemization, the court observed (id. at 10, 21 N.E.2d at 895):

(w)e must remember * * * that details must not run into absurdities, and only those details need be given which are necessary or appropriate to show where and for what the money is to be spent. For instance, it is not necessary to state the salaries of all clerks or of all stenographers, but it may be appropriate to state the number that is required to do such class of work and the lump sum that is to be appropriated for the purpose.

Here, considering the size of present work force and the fact that the executive budget is in excess of 11.5 billion dollars, we cannot say that the...