Schulz v. Silver

• Decision Date: 13 July 1995
• Citation: 212 A.D.2d 293,629 N.Y.S.2d 316
• Parties: In the Matter of Robert L. SCHULZ, Appellant, v. Sheldon SILVER et al., Individually and as Members of the Assembly of the State of New York et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 316

629 N.Y.S.2d 316

212 A.D.2d 293

In the Matter of Robert L. SCHULZ, Appellant v. Sheldon SILVER et al., Individually and as Members of the Assembly of the State of New York et al., Respondents.

Supreme Court, Appellate Division Third Department.

July 13, 1995.

Robert L. Schulz, Queensbury, in pro. per.

Dennis C. Vacco, Atty. Gen. (Daniel Smirlock, of counsel), Albany, for respondents.

Before MIKOLL, J.P., and CREW, WHITE, YESAWICH and PETERS, JJ.

CREW, Justice.

Appeals (1) from an order of the Supreme Court (Harris, J.), entered April 5, 1995 in Albany County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, denied petitioner's motion for a preliminary injunction, and (2) from a judgment of said court (Teresi, J.), entered April 28, 1995 in Albany County, which granted respondents' motion to dismiss the complaint/petition for, inter alia, failure to state a cause of action.

This litigation has its genesis in the recurring failure of the Legislature to adopt a budget on or before April 1, the commencement of the State's fiscal year (see, State Finance Law § 3[1]. Apparently in anticipation of such a recurrence, petitioner commenced this combined CPLR article 78 proceeding and declaratory judgment action on March 31, 1995 seeking a judgment directing respondents, in their capacity as majority members of the State Assembly and State Senate, to, inter alia, act upon one full set of budget appropriation bills submitted by respondent Governor and declaring that absent passage of same and an emergency situation in the State, all expenditures of State funds subsequent to April 1, 1995 are unconstitutional. Petitioner also sought an order restraining, inter alia, respondent Comptroller from issuing paychecks to State employees. Supreme Court ordered a hearing, following which a preliminary injunction was denied. Respondents moved to dismiss the petition /complaint on the grounds that the case is nonjusticiable, that petitioner lacks standing and that the complaint fails to state a cause of action, which motion was, in all respects, granted. Petitioner appeals from the order denying his motion for a preliminary injunction and from the judgment dismissing the petition/complaint. ¹

To the extent that the petition/complaint seeks relief for the failure of the Legislature to enact a State budget by April 1, 1995, we deem the case to be nonjusticiable. A justiciable controversy is one solvable by a court rather than some other forum and, with regard to the separation of powers doctrine, it has to do with whether a matter is resolvable by the judicial branch of government by way of interpreting or enforcing a statutory mandate or by the executive and/or legislative branches in the exercise of their purely political function (see, Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C3001:4, at 434). The question here, therefore, distills to whether the N.Y. Constitution establishes a specific standard which the Legislature must meet or whether it leaves the matter in question to the judgment of the Legislature. In the former instance the judiciary may compel compliance with the constitutional mandate, while in the latter instance the matter is beyond judicial review (see, Matter of King v. Cuomo, 81 N.Y.2d 247, 251, 597 N.Y.S.2d 918, 613 N.E.2d 950; Jiggetts v. Grinker, 75 N.Y.2d 411, 415, 554 N.Y.S.2d 92, 553 N.E.2d 570).

The N.Y. Constitution mandates that the Governor, on or before the first day of February in each year following a gubernatorial election, "submit to the [L]egislature a budget containing a complete plan of expenditures proposed to be made before the close of the ensuing fiscal year and all moneys and revenues estimated to be available therefor" (N.Y. Const., art. VII, § 2). To be submitted with the budget are bills containing the proposed appropriations included in that budget (N.Y. Const., art. VII, § 3). Finally, the Legislature is prohibited from considering any other appropriation bill until all of the bills submitted by the Governor have been finally acted upon (N.Y. Const., art. VII, § 5).

While the N.Y. Constitution prescribes a specific time within which the Governor must submit his or her budget and budget bills to the Legislature, it is silent as to when the Governor's budget bills must be acted upon. So while the framers of the N.Y. Constitution have mandated that the Legislature review the proposed budget and approve or disapprove the various expenditures proposed by the Governor, they have established no specific time frame in which to accomplish that task. In approving or disapproving the Governor's proposed expenditures, the Legislature is faced with the ordering of socioeconomic priorities which clearly are matters of discretionary judgment constituting a function of the political process and, as such, are not the subject of judicial review (see, Saxton v. Carey, 44 N.Y.2d 545, 406 N.Y.S.2d 732, 378 N.E.2d 95). Moreover, petitioner is not entitled to a writ compelling respondents to act upon a budget because their roles in the budget process clearly are not ministerial. As heretofore noted, they require the exercise of considerable judgment and discretion (see, Klostermann v. Cuomo, 61 N.Y.2d 525, 539, 475 N.Y.S.2d 247, 463 N.E.2d 588).

We come next to petitioner's assertion that absent passage of a budget and an emergency situation, any appropriations or expenditures by respondents after April 1, 1995 are unconstitutional. Initially, we reject respondents' assertion that petitioner lacks standing to assert this claim. State...