Schulz v. State

CourtUnited States State Supreme Court (New York)
Writing for the CourtJOSEPH HARRIS
Citation610 N.Y.S.2d 711,160 Misc.2d 741
PartiesRobert L. SCHULZ, John Salvador, Jr., Gilbert O. Boehm, Charles D. Burge, Phd., Leland D. Ryan, Suzan Diane La Due, Douglas Frederick Watson, Richard Allen Berry, John B. Sibley, Jr., Claude F. Sprowls, Gary L. Williams, Andrea Vecchio, Stephen Lande, Erick Frenke, Tai Aguirre, Edward Thomas, Nicholas J. Selvaggio, Gaetano V. Cruciani and Emanuel A. Catanuto, Plaintiffs-Petitioners, v. STATE of New York, Mario M. Cuomo, Governor; the New York State Legislature, Ralph Marino, Senate President Pro-Tem, Saul Weprin, Speaker of the Assembly; the Office of the State Comptroller, H. Carl McCall, Comptroller; the Office of the Division of the Budget, Patrick J. Bulgaro, Director, Defendants-Respondents.
Decision Date21 March 1994

Page 711

610 N.Y.S.2d 711
160 Misc.2d 741
Robert L. SCHULZ, John Salvador, Jr., Gilbert O. Boehm,
Charles D. Burge, Phd., Leland D. Ryan, Suzan Diane La Due,
Douglas Frederick Watson, Richard Allen Berry, John B.
Sibley, Jr., Claude F. Sprowls, Gary L. Williams, Andrea
Vecchio, Stephen Lande, Erick Frenke, Tai Aguirre, Edward
Thomas, Nicholas J. Selvaggio, Gaetano V. Cruciani and
Emanuel A. Catanuto, Plaintiffs-Petitioners,
v.
STATE of New York, Mario M. Cuomo, Governor; the New York
State Legislature, Ralph Marino, Senate President Pro-Tem,
Saul Weprin, Speaker of the Assembly; the Office of the
State Comptroller, H. Carl McCall, Comptroller; the Office
of the Division of the Budget, Patrick J. Bulgaro, Director,
Defendants-Respondents.
Supreme Court, Albany County.
March 21, 1994.

Page 712

[160 Misc.2d 742] Robert S. Schulz, et al., plaintiffs-petitioners pro se.

G. Oliver Koppell, New York State Atty. Gen., Albany, for defendants-respondents (Lawrence L. Doolittle, Asst. Atty. Gen., of counsel).

JOSEPH HARRIS, Justice.

The subject of this action is the annual-occurring state budgetary practice generally referred to as "member-items."

Specifically this is an action for a declaratory judgment challenging the constitutionality of a certain $48 million [160 Misc.2d 743] appropriation contained in Chapter 53 of the Laws of 1992 and reappropriated by Chapter 53 of the Laws of 1993, as well as a similar new appropriation made by Chapter 53 of the Laws of 1993.

Plaintiffs contend that the "$48 million lump-sum 'member-item' " appropriations contravene the New York Constitution by violating the doctrine of "separation of powers" in that "the Legislature cannot reserve for itself executive decisions on how to allocate appropriations." In addition, plaintiffs argue that "this lump-sum appropriation violates the [state] constitutional requirement that any spending items added [by the Legislature] to the budget must be stated separately and distinctly and refer to a single object or purpose." Plaintiffs further claim that certain items of appropriation in the 1993-1994 Aid to Localities Budget violate either section 8 of Article VII of the New York State Constitution, or section 1, Article VIII of said Constitution, prohibiting respectively the gift or loan of money or property of the State or local governmental entities to aid individuals, private corporations or associations, or private undertakings.

MEMBER-ITEMS AND THE DOCTRINE OF SEPARATION OF POWERS

The appropriation challenged as violating the doctrine of separation of powers reads as follows:

Page 259:

AID TO LOCALITIES--MISCELLANEOUS 1993-94 * * *

FINANCIAL AID FOR CERTAIN COMMUNITY AGENCIES

General Fund--Local Assistance Account

For services and expenses or for contracts with municipalities and/or private not-for-profit community agencies, to include liabilities incurred prior to April 1, 1993 ... 48,000,000.

Page 418:

AID TO LOCALITIES-REAPPROPRIATIONS 1993-94 * * *

MISCELLANEOUS

FINANCIAL AID FOR CERTAIN COMMUNITY AGENCIES

General Fund--Local Assistance Account

By chapter 53, section 1, of the laws of 1992, as amended by chapter 793, section 6, of the laws of 1992:

[160 Misc.2d 744] For services and expenses or for contracts with municipalities and/or private not-for-profit community agencies. Funds herein appropriated shall be

Page 713

made available by the director of the budget who may allocate funds to meet liabilities incurred prior to April 1, 1992 ... $48,000,000........(re. $48,000,000)

Plaintiffs argue that because it appears the Legislature will be recommending to the Executive (being represented by the Director of the Budget) how the funds being appropriated should be spent, the appropriation violates the Constitution. 1 Plaintiffs' reliance is on People v. Tremaine, 252 N.Y. 27, 168 N.E. 817 (1929), known as Tremaine I. Their reliance is ill-founded, and indeed Tremaine I does not support the position taken by plaintiffs.

It is necessary to understand the history and context of Tremaine I respecting the budget process in New York. In 1929, Governor Franklin Roosevelt proposed a budget containing several lump-sum appropriations. Each of said appropriations contained a provision authorizing the Governor to approve the segregation (itemization) of those appropriations. This conflicted with the then-existing provisions of Section 139 of the State Finance Law which required that in certain cases the Chairs of the Senate Finance Committee and the Assembly Ways and Means Committee were required to approve the segregation of lump-sum appropriations.

The Legislature amended the Governor's budget bills, removing the provisions requiring executive approval of the segregation of the lump-sum appropriations.

The issue in Tremaine I is succinctly set forth therein as follows and clearly eliminates the issue raised in the instant case:

"The Governor refused to approve any of the lump sum items in which the chairmen of the finance committees were to share authority. He thereafter ... sent to the Legislature two supplemental budget bills, one containing many lump sum appropriations ... all of which appropriations were restricted to the * * * Governor's sole power over segregations; and the other bill itemizing and segregating most of the appropriations appearing in lump sum form in the [160 Misc.2d 745] first supplemental bill. The Legislature ... acted upon this second supplemental bill, approving most of the segregated items therein, but again setting up a few of the departmental appropriations in lump sum form ... with the intent that segregations were to be approved under Section 139 of the State Finance Law ... In cases of the large lump sum construction items, the Legislature appended to them a segregation clause like the one in Section 139, requiring in the same manner all three--the Governor, the Chairman of the Senate Finance Committee and the Chairman of the Assembly Ways and Means Committee--to approve segregations when any part of such moneys was to be used for personal service ..." 252 N.Y. 27, at 36, 168 N.E. 817.

The Governor approved the lump sum appropriations but argued that former Section 139 of the State Finance Law was unconstitutional with respect to such appropriations, in addition to arguing that the segregation clauses inserted by the Legislature into the appropriation bills were unconstitutional as well. Litigation then ensued over whether payment under the aforesaid appropriations could be made without the mandated approval of the Legislative Chairs.

The Court of Appeals held that segregation of lump-sum appropriations was an executive function and that "the Legislature * * * may not engraft executive duties [segregation of lump-sum appropriations] upon a legislative office and thus usurp the executive power by indirection." 252 N.Y. 27, 43, 168 N.E. 817. The court concluded: "... it follows that so much of the appropriation bills in question as confers powers on the legislative chairmen to approve segregations is unconstitutional and void." 252 N.Y. 27, 45, 168 N.E. 817.

In Tremaine I the legislation involved specifically provided the Legislature would have the power to segregate the lump-sum appropriations. In the instant case there is no such legislative direction. In the instant case not only is there no delegation of power to the Legislature, there is an affirmative grant

Page 714

of power to the executive to determine how the $48 million would be awarded. Indeed, the reappropriation legislation specifically provides that the unsegregated funds are to be made available to the Director of the Budget (an executive officer) "who may allocate funds to meet liabilities incurred prior to April 1, 1992." 2

[160 Misc.2d 746] Nothing in the instant legislation nor in any now-existing law permits the Legislature to determine how the $48 million should be spent. While it is true that the Legislature as a matter of comity will in fact have input into how the money will be spent, and that the Executive may choose to give effect to legislative recommendations, it remains that the extent to which the legislative recommendations are followed is solely in the discretion of the executive.

This does not render the appropriations unconstitutional. Under these appropriations the Executive may choose not to give effect to legislative recommendations. Just as the Legislature is without power to force the Executive to adopt its...

To continue reading

Request your trial
1 practice notes
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT