Schulz v. State
| Decision Date | 23 July 1992 |
| Citation | 587 N.Y.S.2d 444,182 A.D.2d 3 |
| Parties | In the Matter of Robert L. SCHULZ et al., Appellants, v. STATE of New York et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Robert L. Schulz, Glens Falls, for appellants.
Robert Abrams, Atty. Gen. (David A. Munro, Peter H. Schiff and Douglas H. Ward, of counsel), Albany, for respondents.
Before WEISS, P.J., and YESAWICH, LEVINE, MAHONEY and HARVEY, JJ.
Appeal from a judgment of the Supreme Court (Cobb, J.), entered April 24, 1991 in Albany County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, granted respondents' motion to dismiss the petition/complaint on the ground of mootness.
The 1990 session of the Legislature enacted the Twenty First Century Environmental Quality Bond Act (L.1990, chs. 146, 147) (hereinafter the Bond Act) and on May 14, 1990, respondent Governor signed the bill into law. The Bond Act authorized expenditures to (1) provide funding up to $1.975 billion for the acquisition of forest preserve, as well as lands for other significant environmental, historic or recreational purposes, (2) promote solutions to solid waste disposal problems, (3) enhance public use and enjoyment of recreational and historic lands and facilities, (4) improve water quality, and (5) provide assistance to municipalities for acquisition, development and improvement of recreational facilities, properties and parks (ECL art. 54; see, Governor's Mem, 1990 McKinney's Session Laws of N.Y., at 2702-2705).
By order to show cause granted October 29, 1990 petitioners, appearing pro se, commenced this hybrid CPLR article 78 proceeding and action for a declaratory judgment seeking a declaration that the Bond Act was unconstitutional, null and void. Petitioners' principal argument before Supreme Court was that the bill violated the State Constitution because the debt authorized was not "for some single work or purpose" which, in turn, was "distinctly specified" (N.Y. Const., art. VII, § 11). "Coincidence [being] Fate's major weapon" (Trevanian, Shibumi, at 169 [1979], the voters rejected the Bond Act on November 6, 1990. Respondents then moved on November 28, 1990 for an order pursuant to CPLR 3211 and 7804(f) to dismiss the petition/complaint upon the ground that the challenge to the constitutionality of the Bond Act had been rendered moot. Supreme Court concluded that a determination of the controversy would not affect any actual rights of petitioners but, instead, would essentially be an advisory opinion. The court further determined that none of the factors which could qualify the instant controversy as an exception to the mootness doctrine existed (see, Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714-715, 431 N.Y.S.2d 400, 409 N.E.2d 876) and dismissed the matter. Petitioners have appealed.
We begin this somewhat brief response by noting that "it is a fundamental principle of our jurisprudence that our duty to declare the law only arises out of and is limited to determining actual controversies between litigants before us" (Matter of Herald Co. v. O'Brien, 149 A.D.2d 781, 782, 539 N.Y.S.2d 574; see, Matter of Hearst Corp. v. Clyne, supra, 50 N.Y.2d at 713, 431 N.Y.S.2d 400, 409 N.E.2d 876).
Initially, it should be noted that petitioners had successfully challenged the State's activities to promote approval by the electorate of this same Bond Act (see, Matter of Schulz v. State of New York, 148 Misc.2d 677, 561 N.Y.S.2d 377). The appeal by petitioners from a portion of that judgment, which reached this court in May 1991 after the bill had been defeated in the November 1990 election, was dismissed on the ground of mootness (see, Schulz v. State of New York, 175 A.D.2d 356, 572 N.Y.S.2d 434). It is beyond cavil that we must reach the same disposition on this appeal.
We have been instructed that three common factors must be found to exist in a lawsuit to support a finding that the exception to the mootness doctrine may pertain. Those factors are "(1) a likelihood of repetition, either between ...
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