774 N.Y.S.2d 891 | N.Y. App. Div. | 2004
Lead Opinion
OPINION OF THE COURT
This appeal involves “[t]he budget process [which] has been the subject of prior legal skirmishes between [plaintiff] and [defendants]” (Silver v Pataki, 96 NY2d 532, 536 [2001]; see New York State Bankers Assn. v Wetzler, 81 NY2d 98 [1993]; People v Tremaine, 281 NY 1 [1939]; People v Tremaine, 252 NY 27 [1929]; Silver v Pataki, 3 AD3d 101 [2003]). Plaintiff commenced this action in his official capacity as Governor in 2001, alleging that subsequent to his constitutionally-mandated annual submission of the executive budget (see NY Const, art VII, §§ 2, 3), defendants, the New York State Assembly and the New York State Senate,
There being no facts in dispute, all parties moved for summary judgment. After concluding that plaintiff had standing to sue, Supreme Court determined that defendants’ actions violated NY Constitution, article VII, § 4 and that plaintiff was constitutionally authorized to include both items of appropriation and their substantive modifiers within the same proposed legislation (190 Misc 2d 716, 735-737 [2002]). Defendants’ appeal, originally filed in the Court of Appeals, was transferred to this Court (98 NY2d 644 [2002]).
We affirm. Initially, we are unpersuaded by the Assembly’s argument that plaintiffs failure to veto the 46 bills enacted by defendants deprives him of standing or, alternatively, effected a waiver of his right to challenge the constitutionality of defendants’ actions. It is well settled that “the budgetary process is not always beyond the realm of judicial consideration and . . . the ‘courts will always be available to resolve disputes concerning the scope of that authority which is granted by the Constitution to the other two branches of the government’ ” (New York State Bankers Assn. v Wetzler, supra at 102 [emphasis in original], quoting Saxton v Carey, 44 NY2d 545, 551 [1978]; see Silver v Pataki, 96 NY2d 532, 542 [2001], supra). Here, when defendants altered plaintiffs appropriation bills in an allegedly unconstitutional manner, plaintiff was injured. Such a purported usurpation of power is a classic case for which standing is recognized (see Silver v Pataki, 96 NY2d 532, 539 [2001], supra;
Turning to the merits, we agree with Supreme Court that defendants’ actions in amending nine of the budget bills submitted by plaintiff and introducing and passing 37 single-purpose appropriation bills violated NY Constitution, article VII, § 4. A key component of such conclusion rests upon the historical change in this state during the first half of the twentieth century from a legislative to an executive budget. That change and the reasons therefor were fully set forth by Supreme Court (190 Misc 2d 716, 717-722 [2002], supra; see Silver v Pataki, 3 AD3d 101 [2003], supra). In this appeal, a critical issue is the extent of a governor’s constitutional authority to include substantive modifiers in a gubernatorial appropriation bill. Defendants contend that plaintiff’s numerous insertions of substantive modifiers within his appropriation bills amount to an unconstitutional attempt to legislate by appropriation and that defendants had the power to strike such measures from plaintiffs proposed budget. We decline defendants’ invitation to establish a bright-line rule defining the degree of itemization that may properly be included in a governor’s budget submissions. We find sufficient authority to support plaintiffs argument that such substantive modifiers are part of a gubernatorial appropriation bill and subject to the protection of NY Constitution, article VII, § 4 (see Silver v Pataki, 3 AD3d 101 [2003], supra).
The Court of Appeals, in Saxton v Carey (44 NY2d 545 [1978]), instructed that the NY Constitution does not require any particular degree of itemization and only the legislative and executive branches were in a proper position to determine what level of itemization was necessary for the Legislature to effectively review and enact a budget. There, the Court held:
“ ‘There is no judicial definition of itemization and no inflexible definition is possible. Itemization is an accordion word. An item is little more than a “thing”*78 in a list of things. . . . The specificness or generality of itemization depends upon its function and the context in which it is used. In one context of a budget or appropriation bill the description of 1,000 police officers within a flexible salary range would be specific and particular; in another it would leave the appointing power with almost unlimited control. In one context an “item” of $5,000,000 for construction of a particular expressway might seem specific; in another, void of indication when, how, or where the expressway or segments of it would be constructed. This suggests that there is something of a battle over words in debating the need for items, rather than a grappling with a functional concept’ . . . [T]he degree of itemization necessary in a particular budget is whatever degree of itemization is necessary for the Legislature to effectively review that budget. This is a decision which is best left to the Legislature, for it is not something which can be accurately delineated by a court” (id. at 550, quoting Hidley v Rockefeller, 28 NY2d 439, 444 [1971] [Breitel, J., dissenting]).
This Court should not and will not immerse itself into the very heart of the “political process” upon which the formulation of the state budget depends. However prolonged and contentious the budget process becomes, we are of the opinion that defendants’ proper constitutional action was to refuse to pass plaintiffs appropriation bills and induce negotiations (see Saxton v Carey, supra at 550), not to alter and amend them and then substitute their own spending plans in the form of 37 single-purpose bills in violation of NY Constitution, article VII, § 4. Alternatively, “the remedy is to amend the Constitution to prescribe new standards for budget-making and appropriations” (Hidley v Rockefeller, supra at 446 [Breitel, J., dissenting]). The parties’ remaining contentions are either academic or unpersuasive (see Silver v Pataki, 3 AD3d 101 [2003], supra; 190 Misc 2d 716 [2002], supra).
. Although the Comptroller was originally a defendant, his motion to dismiss was granted and he is no longer a party.
. NY Constitution, article VII, § 4 provides, in relevant part:
“The legislature may not alter an appropriation bill submitted by the governor except to strike out or reduce items therein, but it may add thereto items of appropriation provided that such additions are stated separately and distinctly from the original items of the bill and refer each to a single object or purpose.”
Dissenting Opinion
We respectfully dissent. In our view, because plaintiff affirmatively approved the subject legislation, he lacks standing and, thus, this Court is precluded from reaching the merits of his constitutional claims. Had plaintiff vetoed the subject legislation, he would have had standing to challenge it if his veto had been overridden by the Legislature.
We begin our legal analysis with the well-established precept
The historical complexion of standing was changed by the United States Supreme Court in its landmark decision of Raines v Byrd (521 US 811 [1997]).
This heightened approach toward standing, signifying the Judiciary’s increased reluctance to “meddle in the internal affairs of the [executive and] legislative branch[es]” (Moore v United States House of Representatives, 733 F2d 946, 956 [1984], cert denied 469 US 1106 [1985]), is widely followed by the federal courts.
Our own Court of Appeals embraced the Raines precepts in Silver v Pataki (96 NY2d 532 [2001]). In matters involving legislator standing, the Court found that the issues fall within one of three categories, namely, “lost political battles, nullification of votes [or] usurpation of power” (id. at 539). Only the latter two categories, if sufficiently demonstrated, will confer standing (see id.). We believe that the Raines/Silver analysis must be applied here and that the injury alleged fails to fall in either of those two categories.
In short, plaintiffs affirmative approval of the subject legislation prevents him from establishing that defendants’ conduct
Moreover, plaintiff was not without effective countermeasures (see Kucinich v Bush, 236 F Supp 2d 1, 9 [2002]; see also Raines v Byrd, supra at 829; Saratoga County Chamber of Commerce v Pataki, 275 AD2d 145, 156 [2000]). He could have, for example, exercised his veto or negotiated his desired result in the legislative arena. Instead, he approved the bills and thereafter commenced this action (see Chenoweth v Clinton, 181 F3d 112, 116 [1999]; Kucinich v Bush, supra at 9-11; Silver v Pataki, 96 NY2d 532, 540 [2001], supra). While the majority relies on Winner v Cuomo (176 AD2d 60 [1992]) for the proposition that plaintiff did not have to reject the legislation before resorting to the Judiciary, we believe that this reliance is misplaced, particularly since Winner predated Raines. The plaintiffs in Winner were challenging the timeliness, not substance, of the budget legislation; thus, we believe that its holding that it was unnecessary for the Legislature to first reject the Governor’s submissions before resorting to the Judiciary is easily distinguished.
Crew III, J.P., and Spain, J., concur with Lahtinen, J.; Peters and Carpinello, JJ., dissent in a separate opinion by Peters, J.
Ordered that the order is affirmed, without costs.
. In Raines, standing was denied to a group of federal legislators who alleged injury from Congress’s passage, over their objection, of the Line Item Veto Act. At issue was the plaintiffs’ claim that the Act unconstitutionally expanded the President’s power and diminished that of Congress by authorizing the President to cancel or repeal provisions that had already been signed into law (see Raines v Byrd, supra at 818-820).
. Unlike Coleman v Miller (supra), the Raines court found that no nullification had occurred since the plaintiffs were unable to demonstrate that their votes against the Line Item Veto Act would have been sufficient to defeat its passage (see Raines v Byrd, supra at 826, 829-830).
. (See Baird v Norton, 266 F3d 408, 411-413 [2001]; Campbell v Clinton, 203 F3d 19, 22-23 [2000], cert denied 531 US 815 [2000]; Chenoweth v Clinton, 181 F3d 112, 115-116 [1999], cert denied 529 US 1012 [2000]; Planned Parenthood of Mid-Missouri & E. Kansas v Ehlmann, 137 F3d 573, 577-578 [1998]; Kucinich v Bush, 236 F Supp 2d 1, 4-11 [2002]; see generally Note, New Law of Legislative Standing, 54 Stan L Rev 205 [2001].)
. Plaintiffs similar reliance on People v Tremaine (281 NY 1 [1939]) for the proposition that there was no need to veto the legislation is also misplaced.
Additionally, we do not disagree with the majority’s assertion that the courts are not always foreclosed from considering the merits of interbranch constitutional disputes. We note, however, that the cases upon which the majority relies for that proposition were not concerned with standing but, rather, the applicability of the political question doctrine—a concept that is distinctly different from standing (see New York State Bankers Assn. v Wetzler, 81 NY2d 98 [1993]; Saxton v Carey, 44 NY2d 545 [1978]).