Silver v. Pataki

• Citation: 179 Misc.2d 315,684 N.Y.S.2d 858
• Parties: , 1999 N.Y. Slip Op. 99,019 Sheldon SILVER, as Member and Speaker of the New York State Assembly, Plaintiff, v. George E. PATAKI, as Governor of the State of New York, Defendant.
• Decision Date: 07 January 1999
• Court: New York Supreme Court

Page 858

684 N.Y.S.2d 858

179 Misc.2d 315, 1999 N.Y. Slip Op. 99,019

Sheldon SILVER, as Member and Speaker of the New York State

Assembly, Plaintiff, v. George E. PATAKI, as Governor of the State of New York, Defendant.

Supreme Court, New York County.

Jan. 7, 1999.

Eliot Spitzer, Attorney-General, Albany, for defendant.

Weil, Gotshal & Manges, New York City, for plaintiff.

EDWARD H. LEHNER, J.

The initial issue to be resolved on these motions is whether the plaintiff, as a member and Speaker of the New York State Assembly (the "Assembly") has the standing and legal capacity to challenge as unconstitutional the Governor's line-item veto of certain budget bill provisions.

In January 1998, defendant Governor George E. Pataki (the "Governor") submitted an executive budget to the houses of the New York State Legislature ("the Legislature") for the fiscal year 1998-99, as well as numerous budget bills pursuant to Article VII of the State Constitution. Some of said bills appropriated monies, whereas others detailed the manner in which appropriated monies are to be expended and also proposed changes in the laws concerning the operations of certain governmental programs. When the Governor and the legislative leaders failed to come to an agreement on an overall budget, the Legislature enacted a series of budget bills which struck out or reduced certain appropriations proposed by the Governor and also added new items of appropriations and directives. In acting on the bills submitted to him, the Governor exercised 55 separate line-item vetoes in bills which plaintiff asserts were "non-appropriation" bills, a term which both parties agree is not in the Constitution.

Thereafter plaintiff filed this action as a "Member and Speaker, New York State Assembly" (the "Speaker"), asserting that, while the Governor constitutionally has the right to veto items in an appropriation bill, he has no constitutional right to veto items in "non-appropriation bills", and that such bills must be either approved or vetoed in their entirety. Consequently, plaintiff seeks a declaration that:

"(a) The Governor's assertion of the line-item veto [in the 55 instances] violates Article IV, § 7 of the Constitution of the State of New York, [and that] (b) Legislation relating to the Executive Budget that does not appropriate moneys is not subject to the Governor's line-item veto power under Article IV, § 7 of the Constitution" [Complaint p 90].

The Speaker brings this action in his official capacity, specifically declining to sue as a taxpayer under Article 7-A of the State Finance Law. The Governor moves to dismiss the complaint pursuant to CPLR 3211(a) 2 and 3 based on a claimed lack of standing and legal capacity to bring the action or, in the alternative, to transfer venue to Albany County. Plaintiff cross-moves to convert defendant's motion to one for summary judgment in his favor.

The issue of standing and capacity to sue must be considered at the outset of any litigation [Matter of Dairylea Cooperative, Inc. v. Walkley, 38 N.Y.2d 6, 9, 377 N.Y.S.2d 451, 339 N.E.2d 865 (1975) ], "Standing is a threshold determination, resting in part on policy considerations, that a person should be allowed access to the courts to adjudicate the merits of a particular dispute that satisfies the other justiciability criteria.... That an issue may be one of 'vital public concern' does not entitle a party to standing ... a litigant must establish its standing in order to seek judicial review.... The burden of establishing standing to raise that claim is on the party seeking review" [The Society of the Plastics Industry, Inc. v. County of Suffolk, 77 N.Y.2d 761, 769, 570 N.Y.S.2d 778, 573 N.E.2d 1034 (1991) ].

"To this essential principle of standing, the courts have added rules of self-restraint, or prudential limitations: a general prohibition on one litigant raising the legal rights of another; a ban on adjudication of generalized grievances more appropriately addressed by the representative branches; and the requirement that the interest or injury asserted fall within the zone of interests protected by the statute invoked...." (id. at p. 773, 570 N.Y.S.2d 778, 573 N.E.2d 1034).

A discussion of the modern concept of standing must start with the Court of Appeals decision in St. Clair v. Yonkers Raceway, Inc., 13 N.Y.2d 72, 242 N.Y.S.2d 43, 192 N.E.2d 15 (1963), where it stated 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" (p. 76, 242 N.Y.S.2d 43, 192 N.E.2d 15), citing Schieffelin v. Komfort, 212 N.Y. 520, 106 N.E. 675 (1914), which stated (p. 537, 106 N.E. 675) "that the courts of this state have denied the right of a citizen and taxpayer to bring before the court for review the acts of another department of government simply because he is one of many such citizens and taxpayers".

In Posner v. Rockefeller, 26 N.Y.2d 970, 311 N.Y.S.2d 15, 259 N.E.2d 484 (1970), a case heavily relied upon by defendant, three assemblymen sued to invalidate certain appropriation bills passed by the legislature and signed by the Governor because the bills consisted in a number of instances of "lump sum" appropriations without the detail required by Article VII of the State Constitution. Relying on St. Clair v. Yonkers Raceway, Inc., supra, and Donohue v. Cornelius, 17 N.Y.2d 390, 271 N.Y.S.2d 231, 218 N.E.2d 285 (1966) (which followed St. Clair in dealing with a constitutional challenge to an administrative rule), the Court of Appeals dismissed the proceeding for lack of standing "as citizens and taxpayers", a four judge majority adding the following (p. 971, 311 N.Y.S.2d 15, 259 N.E.2d 484):

"Nor does their status as Assemblymen given them the requisite standing to challenge in the judicial branch the validity of appropriation bills submitted by the Governor, and it matters not whether such bills have been passed by the Legislature or were still pending before that body at the time the proceeding was instituted."

Three judges concurred solely on the constraint of St. Clair, thus disassociating themselves from the above quoted statement.

The next important case in this area was Boryszewski v. Brydges, 37 N.Y.2d 361, 372 N.Y.S.2d 623, 334 N.E.2d 579 (1975), which modified St. Clair by holding that "a taxpayer has standing to challenge enactments of our State Legislature as contrary to our State Constitution" (p. 362, 372 N.Y.S.2d 623, 334 N.E.2d 579). In that case a taxpayer challenged the constitutionality of both the legislative practice of providing members with an allowance in lieu of expenses (the so-called "lulus"), and certain provisions of the legislative and executive retirement plan. In revising the rules on standing, the court initially noted that "[i]n other settings in which questions of standing have been posed it has been our disposition to expand rather than to contract the doctrine" (p. 363, 372 N.Y.S.2d 623, 334 N.E.2d 579), and then wrote (p. 364, 372 N.Y.S.2d 623, 334 N.E.2d 579):

"We are satisfied that the time has now come when the judicially formulated restriction on standing (which we recognize has had a venerable existence) should be modified to bring our State's practice with respect to review of State Legislative action into conformity not only with the practice in the majority of other States but also with the procedural standing of taxpayers to challenge local actions (General Municipal Law, § 51). We are now prepared to recognize standing where, as in the present case, the failure to accord such standing would be in effect to erect an impenetrable barrier to any judicial scrutiny of legislative action. In the present instance it must be considered unlikely that the officials of State government who would otherwise be the only ones having standing to seek review would vigorously attack legislation under which each is or may be a personal beneficiary.

* * * * * *

"Where the prospect of challenge to the constitutionality of State legislation is otherwise effectually remote, it would be particularly repellant today, when every encouragement to the individual citizen taxpayer is to take an active, aggressive interest in his State as well as his local and national government, to continue to exclude him from access to the judicial process-since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60, the classical means for effective scrutiny of legislative and executive action. The role of the judiciary is integral to the doctrine of separation of powers. It is unacceptable now by any process of continued quarantine to exclude the very persons most likely to invoke its powers."

Shortly after the rendering of this decision, Article 7-A of the State Finance Law was enacted, § 123-b of which authorizes any "citizen taxpayer", whether or not "affected or specially aggrieved", to challenge an "illegal or unconstitutional disbursement of state funds".

While in Boryszewski the court was specifically dealing with the ability of a taxpayer to challenge the constitutionality of a legislative act, the portion of the above quotation stating that it would be "unlikely that the officials of State government who would otherwise be the only ones having standing to seek review would vigorously attack legislation under which each is or may be a personal beneficiary" (emphasis supplied) implies that a legislator does have standing to challenge the constitutionality of a state statute as it was the legislators to whom the court was referring as the beneficiaries of the so-called "lulus".

While not dealing with the question of standing of a legislator, in King v. Cuomo, 81 N.Y.2d 247, 597 N.Y.S.2d 918, 613 N.E.2d 950 (1993), the court, in a proceeding commenced by a local public official, declared that the legislative practice of recalling a bill sent to the Governor after having passed both houses of the...