Petition for Writ of Certiorari — Schulz v. New York State Executive
Supreme Court brief1998
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aN Suprems Caurt, Us,
4) F@Le,
No. Y ; .
98 81 ws 98
In The OFFICE OF THE CLERK
Supreme Court of The United
States
October Term, 1997
ROBERT L. SCHULZ and JOHN SALVADOR, JR
Petitioners,
THE NEW YORK STATE EXECUTIVE, GEORGE PATAKI.
GOVERNOR: and MICHAEL FINNEGAN, CHIEF COUNSEL
TO THE GOVERNOR, and GARY SHEFFER, SPOKESMAN
FOR THE GOVERNOR; THE NEW YORK STATE
LEGISLATURE, SHELDON SILVER, SPEAKER OF THE
ASSEMBLY and JOSEPH BRUNO, MAJORITY LEADER OF
THE SENATE: THE NEW YORK STATE UNIFIED COURT
SYSTEM. JUDITH KAYE, CHIEF JUDGE; THE NEW YORK
STATE BOARD OF ELECTIONS, CAROL BERMAN,
CHAIRMAN. THOMAS WILKEY, EXECUTIVE DIRECTOR:
and THE NEW YORK STATE BOARD OF CANVASSERS,
CAROL BERMAN, CHAIRMAN,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT
JOHN SALVADOR, JR. ROBERT L. SCHULZ
Pro Se Pro Se
2999 State Route 9L 2458 Ridge Road
Lake George, NY 12845 Queensbury, NY 12804
(518) 656-9242 (518) 656-3578
QUESTIONS PRESENTED
1. Can the State of New York, being one of the United States of
America, be made a party-defendant in the federal court, at
the suit of a private citizen who is a citizen of the State of
New York, 1f the case arises under the U.S. Constitution?
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Are “loss of liberty,” and “erosion of sovereignty,” brought
about by the state's alleged violation of the “petition clause”
of the Ist Amendment, the “privileges and immunities clause”
of the 14" Amendment and the “guarantee clause” of Article
IV of the U.S. Constitution, injuries sufficiently concrete to
give the federal court jurisdiction to determine plaintiffs’
claims?
3. Do plaintiffs have standing to raise the following question in
federal court: Is a state’s judicially determined purpose of
“minimizing uncertainty in the minds of potential investors,”
sufficiently compelling to justify the enforcement of a state
law which abridges the fundamental right of private citizens |
of that state to timely petition the state court for a redress of
grievances that are deeply rooted in the State Constitution, if
the gricvance involves a legislative act which authorizes
public borrowing?
4. Do plaintiffs have standing to raise the following question in
federal court: Whether plaintiffs’ fundamental rights to petition
the government for a redress of constitutional grievances (First
Amendment), to a guarantee against State laws which abridge
fundamental privileges and immunities (Section 1, Clause 2 of
the Fourteenth Amendment), and to a government republican
in form and substance (Article IV, Section 4) are being
violated by New York State Finance Law Section 123-b(1)
which, in the case of matters involving the incurrence of public
debt, is preventing plaintiffs from petitioning State courts for a
redress of State constitutional grievances.
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Do plaintiffs have standing to raise the following question in
federal court: Whether plaintiffs’ fundamental right, as
EEE eRe te oe ONT ee. PS
expressed in Article Ill, Section 16 of the New York
Constitution (State Legislature prohibited from enacting a law
which provides that another law is a part of it or applicable to
it without “inserting” the other law in it, at least by
reference) and, thus, plaintiffs’ rights under the 14”
Amendment's “privileges and immunities clause” and under
Article IV’s “guarantee clause” have been violated by the
enactment of Chapters 412 and Chapter 413 of the New York
Laws of 1996.
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6. Do plaintiffs have standing to raise the following question in
federal court: Whether plaintiffs’ fundamental right, as
expressed in Article VII, Section 11 of the New York
Constitution (State Legislature prohibited from enacting a law
to create a state debt subject to voter approval, unless the
purpose of the debt is “distinctly specified therein”) and.
thus, plaintiffs’ rights under the 14° Amendment’s “privileges
and immunities clause” and under Article IV’s “guarantee
clause” have been violated by Chapter 412 when read
together with Chapter 413 of the New York Laws of 1996.
7. Do plaintiffs have standing to raise the following question in
federal court: Whether plaintiffs’ fundamental right under the
First Amendment to the United States Constitution and under
Article I, Section 9 of the New York Constitution
(guaranteeing free elections, i¢., elections free from
governmental interference and corruption) and, thus.
plaintiffs’ rights under the 14° Amendment's “privileges and
immunities clause” and under Article IV’s “guarantee clause”
have been violated by the State's promotional activities to
secure passage by the voters of the Bond Act.
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PARTIES
The names of all parties to the proceeding in the court whose
judgment is sought to be reviewed here appear in the caption of
the case
TABLE OF CONTENTS
Page
Questions Presented |
Parties 3
Table Of Contents. _. gis 4
Table Of Authorities . Sane eR
Opinion Below........... | einer er eae | 6
pastes... 2 ek wee a oe ae ee
Federal Constitutional Provisions Involved......... we
N.Y. Constitutional and Statutory Provisions Involved .. . . x
Statement Of The Case:
A. Introductory Statement . . ; 9
B. Statement Of Facts. __ is 12
C. Stages Where Federal Questions Were Raised __ 17
Reasons For Granting The Writ:
A. This is An Action In The Arena Of The Natural Order
Of Things And Fundamental Rights, As Voiced In The
U.S. Constitution And In The New York Constitution . 18
B. The United States Constitution Provides That A
Citizen Of New York Can Sue The State Of New York
In The United States District Court... ......00 22
Fn Rep ith Carn net Aa eee ot = 26
Appendix
A. Order: Second Circuit, April6, 1998... _ A]
B. Order: District Court, April 14,1997....... A-5
C. Order: NY Court of Appeals, June9,1998.... A-29
—E
5
TABLE OF AUTHORITIES
Page
UNITED STATES CONSTITUTION
Preamble 7,22,23,24
Article III, Section 2, cl | 7,22,23,24
Article IV, Section 4 ee passim
Article VI, cl 2 | 7,23
First Amendment, cl 5 | .... passim
Fourteenth Amendment, cl 2 passim
NEW YORK CONSTITUTION
Article I, Section 9.1 8.16
Article Ill, Section 16 | 8,10,13,16
Article VII, Section | 1(a)(1) 9.10.13.16
NEW YORK STATE STATUTES
State Finance Law Section 123-b/(1) passim
Chapter 412 of the Laws of 1996 passim
Chapter 413 of the Laws of 1996 passim
IN THE
SUPREME COURT OF THE UNITED STATES
ROBERT L. SCHULZ and JOHN SALVADOR, JR.
Petitioners.
THE NEW YORK STATE EXECUTIVE, GEORGE PATAKL
GOVERNOR: and MICHAEL FINNEGAN, CHIEF COUNSEL
TO THE GOVERNOR, and GARY SHEFFER, SPOKESMAN
FOR THE GOVERNOR: THE NEW YORK STATE
LEGISLATURE, SHELDON SILVER, SPEAKER OF THE
ASSEMBLY and JOSEPH BRUNO, MAJORITY LEADER OF
THE SENATE; THE NEW YORK STATE UNIFIED COURT
SYSTEM, JUDITH KAYE, CHIEF JUDGE; THE NEW YORK
STATE BOARD OF ELECTIONS, CAROL BERMAN.
CHAIRMAN, THOMAS WILKEY, EXECUTIVE DIRECTOR:
and THE NEW YORK STATE BOARD OF CANVASSERS,
CAROL BERMAN. CHAIRMAN,
Respondents
OPINIONS BELOW!
The Order of the United States Court of Appeals for the Second
Circuit (Appendix A. at A-1) is unreported, entered April 6,
1998.
The Decision and Order of the United States District Court for
the Norther District of New York (Appendix B, at pages A-6 to
A-32), is reported at 960 F Supp. 568, decided April 12, 1997.
The opinions of the New York State Court of Appeals and of the
New York State Appellate Division Third Department, in a related
case, are included at Appendix C and D.
JURISDICTION
The Order of the United States Court of Appeals for the Second
Circuit was entered on April 6, 1998.
In accordance with Rule 13.4 of this Court, this petition is filed
within 90 days of the date of the Order of the Court of Appeals
The jurisdiction of this Court is invoked under 28 U.S.C. Section
1254.
FEDERAL CONSTITUTIONAL
PROVISIONS INVOLVED
1. The preamble to the Constitution of the United States
provides: “We the People of the United States, in Order to
form a more perfect Union, establish Justice, insure
domestic Tranquillity, provide for the common Defence,
promote the general Welfare and secure the Blessing of
Liberty to ourselves and our Posterity, do ordain and
establish this Constitution for the United States of
America.”
2. Article III, Section 2 of the Constitution of the United States
provides: “The judicial power shall extend to all cases in
Law and Equity, arising under this Constitution....”
Article VI of the Constitution of the United States provides in
relevant part: “The Judges in every state shall be bound by
this Constitution.”
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4. The First Amendment to the United States Constitution reads,
in relevant part: “Congress shall make no
law...abridging...the right of the people...to petition the
Government for a redress of grievances.”
5. The Fourteenth Amendment (Clause 2) to the United States
Constitution provides, in relevant part: “No state shall make
”
6. An implicit constitutional (structural) safeguard is “separated
powers” among the legislative. executive and judicial
branches
7. Article IV, Section 4 of the United States Constitution reads
in relevant part: “The United States Shall guarantee to every
citizen in this Union a republican form of government.”
NEW YORK CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
8. New York State Finance Law Section 123-b(1) reads:
“notwithstanding any inconsistent Provision of law, any
person, who is a citizen faxpayer, whether or not such
person is or may be affected or specially aggrieved by the
activity herein referred to, may maintain an action for
equitable or declaratory relief, or both against an Officer or
employee of the state who in the course of his or her duties
has caused, is now causing, or is about to cause a
wrongful expenditure, misappropriation, misapplication,
or any other illegal or unconstitutional disbursement of
state funds or state property, except that the provisions of
this subdivision shall not apply to the authorization, sale,
execution, or delivery of a bond issue or notes issued in
anticipation thereof by the state or any agency,
instrumentality or subdivision thereof or by any public
corporation or public benefit corporation.” (Petitioners’
emphasis)
9. Article I, Section 9.1 of the New York Constitution provides
in relevant part: “No law shall be passed abridging the
rights of the people peaceably to assemble and to petition
the government or any department thereof...”
10. Article III, Section 16 of the New York Constitution reads:
“No act shall be passed which Shall provide that any
existing law, or any part thereof, shall be made or deemed
a part of said act, or which shall enact that any existing
law, or part thereof, shall be applicable, except by inserting
it in such act.”
11. Article VII, Section 11 of the New York Constitution reads
“No debt shall be hereinafter contracted by or in behalf of
the state, unless such debt shall be authorized by law, for
some single work or purpose, to be distinctly specified
therein.” (Petitioners’ emphasis)
12. Chapter 412 of the New York Laws of 1996 entitled, “The
Clean Water/Clean Air Bond Act.”
13. Chapter 413 of the New York Laws of 1996 (untitled)
STATEMENT OF THE CASE
A. INTRODUCTORY STATEMENT
The court is asked to reverse on standing and remand.
By this case plaintiffs had hoped to have the federal court
reaffirm the following facts: that the people are the sovereign unit
in our society; that by their State Constitution the people structure
and regulate the state government; that if those in state
government ignore the will of the people as expressed in the State
Constitution by, for instance, making and enforcing laws that are
repugnant to constitutional prohibitions, then the people can
petition the United States Court for redress of their grievances
under Article IV, Section 4 of the US Constitution and under
Section 1, Clause 2 of the Fourteenth Amendment thereto,
especially if there is a pattern of such abuse.
This is not a taxpayer action, 1.¢., a petition for judicial review of
the power of the Legislature and Executive branches to tax and
spend. Rather this is a petition by citizens for federal judicial
review, under, inter-alia, the federal guarantee clause, of the
power of the NY’s governmental leaders: a) to make and enforce
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10
a “door closing” law that disallows persons a forum in which to
assert their constitutional rights, if the matter involves the
incurrence of public debt: and b) to trade on the credit of the
Govemor’s office to raise money to pay for a blanket of media
propaganda with which to cover the voters in order to sway the
results of a vote on a ballot question.
Plaintiffs have detailed the constitutional provisions that have
been violated and their injuries that fall within the zones of
interest to be protected by those constitutional provisions. See
Tables 2 - 4 which follow this section of the Petition.
Distilled, plaintiffs’ claims challenge the _(federal)
constitutionality of three actions taken by the Legislative and
Executive branches of the State of New York. The three State
governmental actions under constitutional attack are:
|. The adoption of New York State Finance Law Section 123-
b(1), which denies citizens the right to petition the
government for a redress of State constitutional grievances
(The “constitutional standing” issue).
The adoption of Chapters 412 and 413 of the NY Laws of
1996 in spite of NY constitutional restrictions and
prohibitions under Article III and Article VII. (The $1.75
billion “Bond Act” issue).
The behavior of certain State officials in trading on the credit
of their offices to raise millions of dollars from firms which
do business with the state to cover the electorate with a
blanket of state-sponsored media propaganda in order to sway
the results of the statewide vote on a ballot question (the
“right to a free election” issue).
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Plaintiffs have alleged that each of the three actions should be
declared unconstitutional, because each is violative of Section l,
Clause 2 of the Fourteenth Amendment of the US Constitution --
the so-called “privileges and immunities (“P&I”) clause.” But,
the District Court dismissed all claims after applying the wrong
privileges and immunities clause! The Court applied the P&I
clause from Article IV, Section 2. Clause 1, rather than the P&!
1]
clause actually raised and presented by plaintiffs -- the P&I
clause from Section 1, Clause 2 of the Fourteenth Amendment
The Second Circuit affirmed the lower court’s dismissal but
for lack of standing/jurisdiction ~ something the lower court
refused to do.
Plaintiffs have also alleged that each of the three actions should
be declared unconstitutional because each is violative of Article
IV. Section 4 -- the so-called “guarantee clause” -- under which
plaintiffs are guaranteed “a republican form of government” in
any state in which they choose to reside, including New York
State. In agreeing to join the union in 1787, New Yorkers were
guaranteed under Article IV, Section 4, that the United States
government would guarantee that the citizens of New York would
always enjoy a government republican in form and substance,
which includes: popular sovereignty; self-government, a
government that derives its powers from the consent of the
governed; and a government that must be subservient to the will
of the people as expressed in their State Constitution. The District
Court dismissed all guarantee clause claims because (the Court
held) neither the plaintiffs nor the Court could cite any case where
the guarantee clause has been invoked to invalidate the actions of
the State itself on a nonpolitical question. \t was neither fair nor
equitable for the Court to dismiss plaintiffs’ guarantee clause
claims solely because those claims are novel, presenting a first
impression case. The primary role of the Court is to interpret and
apply the Constitution to the other two branches and to the states,
no matter the level of practical difficulty. If, as is the case here,
case law does not provide any guidance then the District Court 1s
expected to interpret the constitutional provision and apply its
construction to the facts of the case. The Second Circuit did not
reach the questions relating to the guarantee clause. Instead, the
Second Circuit dismissed the case for lack. of
standing/jurisdiction — something the lower court refused to
do.
Plaintiffs have also alleged that New York State Finance Law
Section 123-b(1) is violative of the First Amendment because on
its face, and in its application, it strips plaintiffs of their nght to
12
petition the government for a redress of constitutional grievances
if the matter involves the incurrence of public debt. The District
Court dismissed _ plaintiffs’ complaint without considering
plaintiffs’ First amendment, “right to petition” claim. The
Second Circuit dismissed the case for lack of
standing/jurisdiction — something ihe lower court refused to
do.
Finally, plaintiffs have also alleged that the behavior of the New
York State Governor violated plaintiffs’ First Amendment right to
a free election when he traded on the credit of his office to raise
millions of dollars from outside sources. including corporations
that have business before the State, in order to cover the
electorate with a blanket of media propaganda to sway the results
of a vote on a statewide ballot question by enticing “yes” votes.
The District Court dismissed the claim Saying that to prohibit
such behavior would be to deny the Governor his right of free
speech. Plaintiffs appealed from that decision. arguing that the
issue was not a free speech issue but an issue involving plaintiffs’
First Amendment right to an election free from governmental
interference and corruption. The Second Circuit dismissed for
lack~of standing/jurisdiction ~ something the lower court
refused to do.
B. STATEMENT OF FACTS
In 1975, the New York State Legislature and the Executive
adopted a law [State Finance Law Section 123-b(1)] which, in its
plain language and effect, denies citizens their right to petition
their government for a redress of grievances deeply rooted in the
New York Constitution -- to assert their constitutional nghts in
any forum -- by specifying that citizens shall not be allowed to
maintain a lawsuit if the subject matter deals with public debt --
1.¢., the “authorization, sale, execution or delivery of a bond issue
Or notes issued in anticipation thereof by the State or any agency,
instrumentality or subdivision thereof. or by any public
corporation or public benefit corporation.”
:
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In 1979, in violation of the “Separate Powers” doctrine, the New
York Court of Appeals issued its decision in Wein v. Comptroller,
46 NY2d 394, ruling that SFL 123-b(1) “does indicate a
reasonably clear /egislative intent to prevent taxpayer challenges
with respect to a State bond issue or notes issued in anticipation
thereof [SFL 123-b(1)]. Under the circumstances it would be
inappropriate for the courts to confer standing in these cases since
such a determination would, in effect, render the statutory
‘exception’ a nullity and ignore the expressed legislative policy to
the contrary,” and that to allow citizens to challenge legislative
acts that authorize the incurrence of public debt would “increase
the cost of raising revenue by creating uncertainty in the minds
of potential investors.” (Plaintiffs’ emphasis). Note: The
constitutionality of SFL 123-b(1) under the First Amendment
was neither raised, presented nor determined in Wein.
The New York Judicial branch has been honoring SFL 123-b(1)
by dismissing claims that involve public borrowing. By doing so
it has been cooperating with the Executive and Legislative
branches, allowing the N.Y. Constitution, in effect, to be changed
by the Legislature: first, by SFL 123-b(1), and then by various
legislative acts which authorize public borrowing and which are
obnoxious to the N.Y. Constitution but which are shielded from
citizen suits and judicial review by the impenetrable, door-closing
barrier represented by SFL 123-b(1).
The latest example of this is the June 9, 1998 decision by the
N.Y. Court of Appeals in a related case The decisions in that
case by the N.Y. Court of Appeals and the N.Y. Appellate
Division of State Supreme Court are included as Appendix C and
D hereto. There, the N.Y. Court of Appeals dismissed, for lack
of standing by virtue of SFL 123-b(1), plaintiffs’ Article III,
Section 16 challenge to Chapters 412 and 413 of the N.Y. Laws
of 1996. The court ruled, in effect, that it is more important for
the state to “minimize uncertainty in the minds of potential
investors” than to allow citizens to exercise their fundamental
right to petition the government for a redress of grievances caused
by legislative acts authorizing public borrowing (Chapter 412 and
413), even if those legislative acts are repugnant to the N.Y.
NN ee
14
Constitution. One would not know from a reading of the decision
by the Court of Appeals that plaintiffs had fully argued at all
three levels of the N.Y. court system that SFL 123-b(1) was
unconstitutional as violative of the petition clause of the First
Amendment. Having dismissed plaintiffs’ Article III, Section 1é
claim against Chapters 412 and 413 for lack of standing under
SFL 123-b(1), the state court was then able to dismiss plaintiffs’
Article VII, Section 11 claim against Chapters 412 and 413 as
“irrelevant”
On or about July 14, 1996, the New York State Legislature
passed Chapter 412 of the laws of 1996 (“Chapter 412 L96”), an
Act authorizing the creation of a state debt to the amount of one
billion seven hundred and fifty million dollars ($1,750,000,000)
and providing for the submission to the people of a proposition or
question therefor to be voted on at the general election in
November 1996. The two-page Act was entitled, “The Clean
Water/Clean Air Bond Act of 1996
On or about July 14, 1996, the New York State Legislature also
passed Chapter 413 of the Laws of 1996 (“Chapter 413 L96”), an
Act “in relation to the implementation of the Clean Water/Clean
Air Bond Act of 1996.” Chapter 413 L96, which is 50 pages,
was not given a title. It contained the definitions. purposes and
specificity missing from Chapter 412 but required to be there by
Article VII, Section 11 of the N.Y. Constitution.
On or about August 1, 1996, Governor Pataki signed Chapter
412 and Chapter 413 L96. Chapter 412 was to become law
immediately upon approval by the voters at the general election
on November 5, 1996. Chapter 413 L96 was to become law if
the voters approved Chapter 412.
The public was told about the signing of Chapter 412. The public
was not told about Chapter 413.
On or about August 2, 1996, the New York State Board of
Elections, as required by law, sent the local Boards of Election a
certification of the text of Chapter 412, the abstract of Chapter
412 and the form of submission of Proposal Number One, A
Proposition relating only to Chapter 412. Nowhere in the
certification to the local boards of election did the Board of
Elections make any reference to Chapter 413.
The following is the question that went before the voters on
November 5. 1996: “Shall Chapter 412 of the Laws of 1996
known as the Clean Water/Clean Air Bond Act of 1996
authorizing the creation of State debt to provide moneys for the
preservation, enhancement, restoration and improvement of the
State’s environment and natural resources in the amount of one
billion seven hundred fifty million dollars ($1,750,000,000) be
approved?” (Plaintiffs’ emphasis)
Chapter 412 is two pages im length. It makes absolutely no
reference to Chapter 413 which is 50 pages in length Chapter
412 became effective immediately upon approval by the voters at
the general election on November 5, 1996 Chapter 413 became
effective upon the approval by the voters of Chapter 412
However, the public was never told about Chapter 413! The
public was not told that they were voting to approve Chapter 413
as well as Chapter 412
On September 11, 1996, to help assure that the voters would
approve the Bond Act proposition on the November ballot,
Governor Pataki placed two of his most senior political operatives
(Chief Counsel Michael Finnegan and Chief Spokesman. Gary
Sheffer) on a temporary leave of absence for the expressed
purpose of creating a political action committee (PAC). to raise
more than $1 million from Wall Street firms and others that
would benefit financially if the Bond Act passed the voters, and to
use that money to pay for TV ads which would blanket the
electorate for two weeks prior to the election. These TV spots
featured the Governor explicitly exhorting the electorate to
“vote yes” on the Bond Act (Chapter 412).
The Governor used the PAC, in effect, as an arm of the
government: to trade on the credit of his office; and to raise
money, particularly from businesses that have business before the
16—
State, in order to pay for TV ads in which the Governor explicitly
exhorted the voters to “vote yes” on the ballot question. Those
businesses include, but by no means are limited to, those listed on
Table 1. Of the $1.726m raised by the PAC, $1.275m was spent
on the governor's TV ads. This obviously interfered with
plaintiffs’ First Amendment right to an election free from
governmental interference and corruption
An informed electorate is crucial to our democratic-republic
However, other than the Governor’s TV “vote yes” exhortations,
and the certification sent to the C ounty Boards of Election
regarding Chapter 412, the government failed in its duty to
inform the voters about the purposes of the debt; Chapter 413,
the details on the use of the Bond Act proceeds, was never
mentioned.
The vote on the Bond Act (C hapter 412) passed with about 2 |}
million “yes” votes and 1.7 million “no” votes.
In October, 1996, petitioners filed two lawsuits containing
identical causes of actions and presenting identical federal
questions. One suit was: filed in the U.S. District Court on
October 13, 1996. The other was filed in the NY. State Supreme
Court for Albany County on October 16. 1996.
The federal case was decided by the Second Circuit on April 6,
1998. The instant petition relates to the federal case but in its text
it also refers to the state case and its appendices include the
decisions by the N.Y. appeals courts. The State case was decided
by the N.Y. Court of Appeals on June 9. 1998 4 Petition for a
Writ of Certiorari to the N.Y. Court of Appeals will be filed
with the court in the near future. In its text it will also refer to
the federal case (the subject of this petition).
The identical claims filed in the two lawsuits can be summarized
as follows:
1. New York State Finance Law Section 123-b( 1) is
unconstitutional. It violates the First Amendment and Article
I, Section 9.1 of the N.Y. Constitution and, thus, the federal
to
“privileges and immunities” clause of the 14° Amendment
and the “guarantee” clause of Article IV, Section 4 of the
U.S. Constitution
Chapter 412 and Chapter 413 of the N.Y. Laws of 1996 are
violative of Article III, Section 16 and Article VII, Section |}
of the N.Y. Constitution and, thus, the federal “privileges and
immunities” clause of the 14" Amendment and _ the
“guarantee” clause of Article IV, Section 4 of the U.S
Constitution
The actions of certain state officials to entice “ves” votes to
sway the results of a statewide vote on Chapter 412 were
violative of the 1“ Amendment and Article I, Section 9.1 and
Article VII, Section 8 of the N.Y. Constitution and, thus, the
federal “privileges and immunities” clause of the 14”
Amendment and the “guarantee” clause of Article IV, Section
4 of the U.S. Constitution
C. BASIS OF FEDERAL JURISDICTION
IN THE COURT OF FIRST INSTANCE
This action was brought pursuant to 28 USC Section 1331 and
1343(3) and 28 USC Section 1983
TABLE 1
CONTRIBUTIONS TO THE CLEAN WATER/CLEAN AIR
BOND ACT COMMITTEE BY CORPORATIONS WITH
BUSINESS BEFORE THE STATE: A SAMPLE
Bankers That Help The State Issue Bonds
Goldman Sachs $25,000
First Albany 25,000
Morgan Stanley 25,000
J.P. Morgan 25,000
Paine Webber 25,000
Mernill Lynch 25,000
Dillon Read 25,000
Chase Manhattan 25,000
Lehman Brothers 25,000
Bear Stearns 25,000
Smith Barney 25,000
Law Firms That Help The State Issue Bonds
Hawkins, Delafield & Wood $10,500
Dewey Ballantine 10,000
Skadden, Arps, Slate, et al 5,000
Brown & Wood 2,500
Insurer of State Bond Issues
MBIA $25,000
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REASONS FOR GRANTING THE WRIT
A. THIS IS AN ACTION IN THE ARENA OF THE
NATURAL ORDER OF THINGS AND
FUNDAMENTAL RIGHTS, AS VOICED IN THE U.S.
CONSTITUTION AND IN THE NEW YORK
CONSTITUTION
This petition has been prepared by pro-se plaintiffs in a lawsuit
that requires clarification of constitutional requirements, both
national and state. Although it has been the subject of much study
and deliberation, plaintiffs fear it may not be as concise and
connected as it deserves to be. However, it deals with
constitutional provisions that are not often touched upon in
arguments in the federal court, and which we believe are most
necessary of exploration by the federal courts, if what we claim to
be serious constitutional improprieties in the conduct of the
government of the State of New York are to be defined as such.
and cured
Reports are beginning to appear in the national press that the
governments of other states are becoming “innovative and
monarchical™ in their attempts to circumvent the debt-limiting
restrictions of their State Constitutions The question of
“standing” to maintain an action in federal court against “willfully
wayward’ states should be addressed by this tribunal, in order to
establish the appropriate criteria for the determination of standing
in cases that are not “property or money’ oriented.
We have made no references to cases. although we have visited
many. Simply put, we know of none that are not distinguishable
from this case. And we do know that the conclusions of leading
thinkers and analysts on government and the “rights of man” --
present and long past -- harmonize with the principles which
underlie and defend our argument on the questions now before the
Court in this petition for a writ of certiorari related to the lawsuit
which is the cause of this petition.
Since the very beginning, the acts of the early national congresses
and the acts of the early conventions, including the congress and
committees of New York, are replete with similar expressions
with respect to “republicanism” and to the “sovereignty of the
people,” and the servant nature of governments at all levels, and it
is to the honor of the United States that in no other country are
subjects of this kind better - or even so well — understood. One
fact stands out: the attention and attachment of the Constitution of
the United States and of the New York Constitution to the rights
of the sovereign people are discernible, as hard copy, in almost
every provision of these documents. It is to be deeply regretted
that the constitutional principles which are the cause of action in
the lawsuit in question have not yet received their merited
acquiescence and approval as basic principles of governance - at
least, not from New York State's Legislative, Executive and
Judicial branches
The United States and New York State have, in_ their
constitutional language, advocated both the form and substance of
constitutional republicanism, with its emphasis on individual
rights and governmental responsibility for protect and
enhancing them. Operationally, however, these principles are
honored more in the breach than in the observance. There still
may be reason to hope that the government of the State of New
York, in all three of its branches, may yet perceive the wrongness
of actions it has taken, such as interdicting the nght of the
people to petition their government for a redress of grievances,
and interfering with the people’s right to a free election unmarred
by the intrusion of governmental powers - or attempting to
exempt the government that represents the body of her citizens
from that “suability” which alone enables her citizens to assert
their individual, fundamental rights and to seek and obtain the
protections of their Federal and State constitutions. It is with this
hope in mind that we petition this Court.
The extension of the judicial power of the United States to the
controversy of this lawsuit appears to be wise, because, in the
thoughts and words of the earliest members of this court, it
would be “both honest and useful.”
It would be honest because the Court, in its political
unassailability, provides for the doing of justice without respect
to persons, and for making individual citizens, as well as the
States, secure in their respective rights. It would fulfill the
promise which a free government makes to every free citizen --
the promise of equal justice and the protection of the laws: due
deference to the sovereignty of the body of the people; and, due
allegiance to the design imperatives -- the need to maintain a
Separation between and among the powers of governance:
legislative, executive and judicial, and the need to acknowledge
that government derives its just powers from the consent of the
governed
It would be useful for several reasons: because it would leave not
even the least of its citizens without the means of obtaining justice
from the State; because it would obviate the need for occasions
of contests and violent quarrels between the citizens and their
State due to the arising of claims that the design imperative
principle of “a State government republican in form and
substance” (with all that that statement includes and implies) is
being or has been abandoned: because it would rest on the great
moral truth that justice is the same whether due from one man to a
million or from one million to one man, because it would teach
and greatly enhance the value of our free republican form of
government which places all persons on an equal footing and
enables all to obtain justice without regard to the power or
number of their opponents; because, based on the great principle
that the great body of the people is the true sovereign of their
States and of the nation; and, because. consequently. individual
citizens are not to be degraded or penalized for appearing with
each other in their own courts to have their controversies resolved
The people have good reason to be thankful for their valuable
liberties and privileges and ought never to forget that nothing but
forthright insistence upon the perpetuation of constitutional law
and government can insure the continuance and enhancement of
their liberties and privileges.
What we intend to argue is, essentially, that citizens, in our
constitutional system, have an inalienable nght to have a State
government that is republican in form and substance, through the
structures and processes of which governance is provided, but
only with the consent of the governed, and that, in New York
State, these principles -- the “design imperatives” -- are being
violated when
(1) the branches of government -- Legislative, Executive and
Judicial -- which are designed to serve the people and to be
independent elements in a system of checks and balances,
combine to work together in obvious harmony to achieve private
or political ends that neither (a) exhibit compliance with — the
constitutional requirement for their own independence in thought
and action, nor (b) result in demonstrable achievement of the
public benefit and good, and when
(2) citizen grievances (which would seem to indicate a measure of
non-consent) are, on the basis of statute law, denied access to the
judicial decision-making process in key public-debt issues, in
obvious violation of the fact that any citizen has the constitutional
right to petition the government for a redress of grievances,
especially those that are rooted in the State Constitution
Assuming that the foregoing are “givens,” we are petitioning the
Supreme Court of the United States of America, to require the
federal court to accept jurisdiction in this matter, which finds
itself at the root of the constitutional design-imperatives being
violated, above, and to admit this petition for a writ of certiorari
based upon the principle set forth in one of the earliest dicta of
the U.S. Supreme Court that, when an aggrieved citizen of a
State, finding himself with no other recourse, enters into a lawsuit
against his State of residence and citizenship, in order to achieve
the redress of grievances that are based upon constitutional nghts
and the need for interpretation thereof, the appropriate court of
jurisdiction is the Supreme Court of the United States. See
Chnsholm Ex'r v. Georgia, 2 Dall. 415, 1 L.Ed. 440.
Additionally, as petitioners we are seeking, for ourselves and for
the citizenry of New York State, in general, a measure of simple
to
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justice, based on the cardinal principle that “justice is justice” —
whether it is meted out to one man or to a million, to one person
or to a “body” of persons. On the other hand, it should be noted
that the existence of injustice does not have to be recognized by
all members of a body afflicted by it, in order for it to “be”
injustice — indeed, it is an historical fact that the fathers of this
country and the designers of the great doctrines and principles
that have shaped its development, were led by one or two
perceptive individuals who recognized the degree to which the
injustices of despotism were being visited upon the people, and
wrote major documents that exposed them as violations of the
natural laws -- the “nghts of man” -- that underlie and shape the
basic doctrines -- the constitutions and statutes that frame and
preserve our system and our society, today
The pursuit of justice, in fulfillment of the constitutional design-
imperatives expressed above (the right to have a State government
republican in form and substance, that is subject to the consent of
the governed, and the right of the governed to petition their
government for a redress of grievances) is the rationale behind
this petition for a writ of certiorari, based upon the types of
constitutional inconsistencies perpetrated by the State of New
York -- injustices that obviously demand the attention of the
federal courts
B. THE UNITED STATES CONSTITUTION PROVIDES
THAT A CITIZEN OF NEW YORK CAN SUE
THE STATE OF NEW YORK IN THE
UNITED STATES DISTRICT COURT
Sovereignty is the right to govern’ a nation or state-sovereign is
the person or persons in whom that resides. In New York, despite
massive misunderstanding, it rests with the people.
However, in the practice and even in the science of politics, there
has been frequently a strong current in New York against the
natural order of things. In New York. which has been
denominated free, the state has assumed a supercilious pre-
eminence above the people who have formed it.
to
ws
In New York, plaintiffs and other ordinary, non-aligned citizens
have been degraded from the prime rank, which they ought to hold
in human affairs
The state, rather than the people, for whose sakes the state exists,
is frequently the object which attracts and arrests the principal
attention. This has produced much of the confusion and
perplexity, which have appeared in several proceedings and
several publications on state politics Sentiments and
expressions of this inaccurate kind prevail in our common, even in
our convivial language.
Turning to the United States Constitution. The people therein
declare, that their design in establishing it, comprehended six
objects. First, to form a more perfect union. Second, to establish
justice. Third, to ensure domestic tranquillity. Fourth, to provide
for the common defense. Fifth, to promote the general welfare
Sixth, to secure the blessings of liberty to themselves and their
posterity
It may be asked, what is the precise sense and latitude in which
the words “to establish justice,” as here used, are to be
understood? The answer to this question will result from the
provisions made in the Constitution on this heading. They are
specified in the second section of the third Article, where it is
ordained that the judicial power of the United States shall extend
to ten descriptions of causes: 1) to all cases arising under this
constitution. 2) To all cases arising under the laws of the United
States. 3) To all cases arising under treaties made by their
authority. 4) To all cases affecting ambassadors, or other public
ministers and consuls. 5) To all cases of admiralty and maritime
jurisdiction. 6) To controversies to which the United States shall
be a party. 7) To controversies between two or more states. 8)
To controversies between citizens of different states 9) To
controversies between citizens of the same state, claiming lands
under grants of different states. 10) To controversies between a
state or the citizens thereof. and foreign states, citizens or
subjects. Note: the 11"" Amendment removed the last of these
descriptions of causes to which the power of the U.S. Judiciary
extends.
Even this summary view of the judicial powers of the United
States leaves the mind strongly impressed with the importance of
them to the preservation of the tranquillity, the equal sovereignty
and the equal right of the people.
We pay particular attention here: a) to that part of the preamble
which reads, “To form a union more perfect than before,” and
“To Establish Justice,” “To insure domestic tranquillity,” and
“To secure the blessings of liberty to ourselves and our posterity,”
b) to that part of Article III, Section 2 which reads, “To all cases
arising under this constitution and the laws of the United States,”
and c) to that part of Article VI which reads, “The
Constitution...shall be the supreme Law of the Land; and the
judges in every state shall be bound thereby.” Could the people of
those states, among whom were those of New York, bind the
states and New York among the others. by the legislative,
executive and judicial power so vested? This question must
unavoidably receive an affirmative answer. If those States were
the work of those people, : those people and the people of New
York, in particular, could alter as they pleased their former work:
to any given degree they could diminish as well as enlarge it. Any
or all of the former state powers they could extinguish or transfer
The inference, which necessarily results, is, that the Constitution
ordained and established by those people; and, in particular by the
people of New York, could vest jurisdiction or judicial power
over those states and over the State of New York in particular.
Has the Constitution done so? Did those people mean to exercise
this their undoubted power?
An affirmative answer must be deduced from the declared objects
and the general texture of the Constitution of the United States.
One of the declared objects is to form a union more perfect than
before that time, had been formed. Before that time the union
possessed legislative but unenforced legislative power over the
states. Nothing could be more natural than to intend that this
legislative power should be enforced by powers executive and
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judicial. Another declared object is “to establish justice.” This
points in a particular manner to the judicial authority. And when
we view this object in conjunction with the declarations, “that no
state shall pass a law impairing the obligation of contracts,” and
“no state shall enter into any treaty,” and “no state shall coin
money,” and “no state shall keep troops or ships of war in time of
peace,” and “The United States shall guarantee to every state in
this union a republican form of government,” and “No person
shall be deprived of liberty or money property without
constitutional due process,” and “No state saall make or enforce
any law which shall abridge the privileges or immunities of
citizens of the United States,” this object points in a particular
manner to the jurisdiction of the court over the several states
What good purpose could the constitutional provision “to
establish justice” secure, if a state might pass a law impairing the
obligation of contracts, or enter into a treaty, or coin money, or
keep a standing army and navy, or arrogate the power of the
sovereign into itself, or pass and enforce a law which abridges
privileges or immunities of its citizens; and be amenable for such
violation of right, to no controlling authority?
A third declared object is, “to ensure domestic tranquillity.” This
tranquillity is most likely to be disturbed by controversies between
states and its citizens when those states abandon the substance
and essence of republican principles, becoming tyrannical and
despotic, as by routinely turning a blind eye to the will of the
people as plainly expressed in the State Constitution, removing
the fundamental right of the people to petition the government for
a redress of those grievances, and interfering with the people's
night to a free election. These consequences will be most
peaceably and effectually decided by the establishment and by the
exercise Of superintending judicial authority. By such exercise
and establishment the rule of government, republican in form and
substance will be enforced among the several states, in the same
manner as municipal law.
A controversy exists between the State of New York and its
people involving fundamental republican principles, the natural
power of the sovereign and the people’s fundamental privileges
and immunities. The controversy involves the degradation of
liberty, popular sovereignty and the separation of powers. The
controversy 1s supposed to be brought before those vested with
the judicial power of the United States Supreme Court. “The
judicial power of the United States shall extend to
controversies arising under this Constitution.” Could the
strictest legal language describe, with more precise accuracy, the
cause now depending on this tribunal? Causes and not parties to
causes are weighed by justice in her equal scales. On the former
solely her attention is fixed: to the latter she is as she is painted,
blind
CONCLUSION
Plainuffs respectfully request an order granting the Writ,
reversing the order of the U.S. Court of Appeals for the Second
Circuit, which dismissed plaintiffs complaint in its entirety for
lack of standing, and remanding the matter to the Second Circuit
DATED: July 4, 1998
, ‘ F
sett. at —
tea.
JOHN SALVADOR, IR. =: cues L. S@HULZ >
_/Pro Se Pro Se
2999 State Route 9L 2458 Ridge ‘Road
Lake George, NY 12845 Queensbury, NY 12804
(518) 656-9242 (518) 656-3578
98-84
ee
Appendix A
A-|
Appendix A
United States Court of Appeals
for the Second Circuit, April 6, 1998
At a stated term of the United States Court of Appeals for the
Second Circuit, held at the United States Courthouse, Foley
Square, in the City of New York, on the 6" day of April, one
thousand nine hundred and ninety-eight
PRESENT:
HON. WILFRED FEINBERG,
HON. GUIDO CALABRESI,
HON. MYRON H. BRIGHT,*
Circuit Judges
ROBERT L. SCHULZ and JOHN SALVADOR, Jr
Plaintiffs-Appellants,
SUMMARY ORDER
V # 97-7952
NEW YORK STATE EXECUTIVE, et al.,
Defendants-Appellees
Lee ES eee Ce nae le oe
: *The Honorable Myron H. Bright, Circuit Judge of the
United States Court of Appeals for the Eighth Circuit, sitting by
: designation.
ine ae
Appendix A
A-2
For Appellants ROBERT L. SCHULZ, pro se.
Queensbury, NY.
For Appellees: FRANK K. WALSH, for DENNIS C
VACCO, Attorney General of the State
of New York (PETER H. SCHIFF. of
counsel), Albany, NY, for State
Appellees.
FREDERICK A. O. SCHWARZ. Jr..
Cravath, Swaine & Moore, New York.
NY, for Appellees Finnegan and
Sheffer.
This cause came on to be heard on the transcript of
record from the United States District Court for the Northern
District of New York (Thomas J. McAvoy, Chief Judge) and was
argued.
UPON CONSIDERATION WHEREOF. it is
ORDERED, ADJUDGED, AND DECREED that the judgment
be and it hereby is AFFIRMED.
Robert L. Schulz, joined by co-plaintiff-appellant John
Salvador, Jr., brings this federal action to challenge various laws
of the State of New York. Finding their appeal meritless, we
affirm the judgment of the district court dismissing their suit
The complaint in the district court made a myriad of
challenges to New York’s Clean Water/Clean Air Bond Act of
1996 (“Bond Act”), the Farmer’s Protection and Farm
Preservation Act (“Farm Act”), and various “General
Government Appropriations” bills (including Section 123-b(1) of
the New York State Finance Law), as well as claims against state
actors who spoke in favor of passing these bills, and a general
assault on the proposed New York constitutional convention. The
legal theories advanced to Support these claims ranged from the
frivolous -- for example, that the Farm Act, by treating non-
farmers differently from farmers, violates the Equal Protection
Clause of the Fourteenth Amendment -- to the exotic -- for
instance, that the delegation of authority to the New York State
on
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Appendix A
A-3
Constitutional Convention offends the general constitutional
principle of “government based upon the consent of the
governed.”
Among the several grounds upon which we might affirm
the district court, see A/faro Motors, Inc. v Ward, 814 F.2d 883,
887 (2d Cir. 1987), we select standing. Appellants simply have
not shown the requisite injury for almost all of their claims.
“Abstract” and “conjectural” injuries will not support standing.
See City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983).
Moreover, disgruntled taxpayers may not rely on their remittance
of taxes to confer standing, unless they pursue “a ‘good-faith
pocketbook action,’ in which the taxpayer alleges injury to ‘a
direct and particular financial interest’.”. Board of Educ. V. New
York State Teachers Retirement Sys., 60 F.3d 106, 110 (2d Cir.
1995) (citations omitted).'
The only law that appellants might conceivably have
standing to challenge is the Farm Act, as they allege actual
financial injury by not being able to avail themselves of the tax
credits provided by that Act to farmers. We need not decide the
matter, however, because their arguments against the Farm Act
' On appeal, appellants have raised Establishment Clause claims. In
their complaint, appellants listed numerous appropriations the State
made to various religious and non-religious organizations. They now
contend that these appropriations are the use of public funds for
religious purposes and thus violative of the Establishment Clause.
Appropriation of government funds to religious organizations does not
constitute a per se violation of the Establishment Clause. Under
Lemon v. Kurtzman, 403 U.S. 602 (1971), appellants must show that
the payments have a religious purpose, have the primary effect of
advancing religion, or involve an excessive entanglement between the
state and religion. See id. At 612-13. Appellants neglected to plead
any facts or explain in any other way how the appropriations
enumerated in their complaint meet any of the requirements
established under Lemon. Thus, they failed to state a proper claim.
Furthermore, appellants cannot now, for the first time on
appeal, raise their Establishment Clause arguments. Because failure to
consider this claim will not “result in a possible miscarriage of
justice,” we decline to address these untimely arguments. Lione/
Corp. v. Civale & Trovato, Inc., 29 F.3d 88, 92 (2d Cir. 1994)
(internal quotation marks and citation omitted)
Appendix A
A-4
lack merit. First, the Privileges and Immunities Clause does not
permit individuals to pursue actions against their own states. See
Zobel v. Williams, 457 U.S. 55, 59 n.5 (1982). Second. the
Guarantee Clause does not contemplate the action plaintiffs seek
to pursue -- a general exhortation to “rei[]n in” the un-republican
government actors of the State of New York -- as was
painstakingly explained by the district court. Finally, the Equal
Protection Clause does not countenance “non-farmers” as a
suspect class {and we decline the invitation to confer that that
special status upon them at this time). And, under rational basis
review, we agree with the district court that “the support of
farmers through tax relief” is an adequate reason for the adoption
of this law by the New York legislature.
As for the “government by the consent of the governed
claim” which involves a passionate attack on the proposed
implementation of the New York State constitutional convention
delegation, and a plea for some form of injunctive relief, we
cannot say that it gives rise to a sufficiently clear and distinct
federal mght that might serve as the predicating interest to a
cognizable action under 42 U.S. C. Section 1983. See West v
Atkins, 487 U.S. 42, 48 (1988). Nor would we find it appropriate
for a federal court to invade a state's constitutional affairs in the
manner suggested by plaintiffs.
We have analyzed the entire record carefully and cannot
find any basis for reversing the court below. We also note that
the district court correctly declined to exercise its supplemental
jurisdiction over appellants’ pendent state-law claims
Accordingly, we order the judgment of the district court to be
AFFIRMED.
For The Court
GEORGE LANGE III
By: Lucille Carr
Appendix B
A-5
Appendix B
United States District Court
Northern District of New York
April 12, 1997 Decided
April 14, 1997 Filed
ROBERT L. SCHULZ and JOHN SALVADOR. JR.
Plaintiffs,
-against-
THE NEW YORK STATE EXECUTIVE, GEORGE PATAKI.
GOVERNOR, MICHAEL FINNEGAN, Chief Counsel to the
Governor, and GARY SHEFFER, Spokesman for the Governor:
THE NEW YORK STATE LEGISLATURE, SHELDON
SILVER, Speaker of the Assembly, and JOSEPH BRUNO,
Majority Leader of the Senate, THE NEW YORK STATE
UNIFIED COURT SYSTEM, JUDITH KAYE, Chief Judge;
THE NEW YORK STATE BOARD OF ELECTIONS, CAROL
BERMAN, Chairman, THOMAS WILKEY, Executive
Director, and THE NEW YORK STATE BOARD OF
CANVASSERS, CAROL BERMAN, Chairman,
Defendants
96-CV-1595
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF NEW YORK
960 F. Supp. 568; 1997 U.S. Dist. LEXIS 5218
April 12, 1997, Decided
Apnil 14, 1997, FILED
DISPOSITION: [**1] Plaintiffs' Complaint DISMISSED.
Plaintiffs' federal claims dismissed with prejudice. Plaintiffs’ state
law claims dismissed without prejudice.
5
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Appendix B
A-6
COUNSEL: Appearances
ROBERT L. SCHULZ, Plaintiff. Pro se. Queensbury, NY
JOHN SALVADOR, JR. Plaintiff, Pro se, Lake George, NY
For Pataki, State Legislature, Unified Court System, defendants
DARREN O'CONNOR. ESQ., DENNIS C. VACCO. Attorney
General, Albany, NY
For Finnegan, Sheffer, defendants FREDERICK A.O
SCHWARZ, ESQ., CRAVATH. SWAINE & MOORE, New
York, NY
JUDGES: HON. THOMAS J. McAVOY. Chief U.S. District
Judge
OPINIONBY: THOMAS J. McAVOY
OPINION: [*570} MEMORANDUM-DECISION and
ORDER
The present dispute concerns no less than twelve causes of
action challenging, inter alia, the constitutionality of New York's
Clean Water/Clean Air Bond Act: New York's Farm Preservation
Act, section 123-b of New York's Finance Law: New York's
procedure for choosing delegates to its constitutional conventions;
and a number of the New York State Legislature's "Member
Items." Defendants include the Governor of New York. the
Governor's advisors, the New
York State Legislature. key legislators, the New York Unified
Court System, and the New York State Board [**2] of
Elections. Plaintiffs Robert Schulz and John Salvador, although
appearing pro se, are frequent litigators in federal and state court.
Not surprisingly, this case has a long and convoluted history
Plaintiffs’ initial foray began on September 19, 1996, in Albany
County Supreme Court, and continued to the Appellate Division,
Third Department, where {*571]
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Appendix B
A-7
Plaintiffs’ request for a temporary restraining order, barring
defendants Pataki, Finnegan, and Sheffer from advocating in
favor of the Clean Water/Clean Air Bond Act, was rejected. See
Schulz v. New York State Executive, Index No. 5852-96 (Alb
Cty. Sup. Ct. 1996), On October 16, 1996, Plaintiffs
discontinued their first state court action and commenced a second
State court action seeking similar relief, on October 25, 1996,
Justice Teresi denied Plaintiffs’ second application for preliminary
relief. See Schulz v. New York State Executive, Index No. 6353-
96 (Alb. Cty. Sup. Ct. 1996)
Not content to fight this battle on merely one front, Plaintiffs
hurried to federal court on October 13, 1996, seeking (1) a
declaration that certain actions by the defendants violated the
New York State and the United States Constitutions, and [**3]
(2) for a temp ‘ restraining order or preliminary injunction
enjoining the ©..« York Legislature and Executive from
implementing Chapters 412 and 413 of the Laws of 1996 (the
"Clean Water/Clean Air Bond Act" hereinafter "Environmental
Bond Act").
On October 17, 1996, this Court denied Plaintiffs’ application
for temporary relief and denied Plaintiffs’ attempt to have their
motion heard on an expedited basis. See Memorandum-Decision
& Order dated October 18, 1996. On October 23, 1996, while the
present matter was pending before this Court, Plaintiffs requested
for the second time, and were denied, a Temporary Restraining
Order in their state court action. Finally, on November 1, 1996,
Justice Harris dismissed Plaintiffs’ state action in its entirety. See
Schulz v. New York State Executive, Index No. 6353-96 (Alb
Cty. Sup. Ct. 1996).
A. The Claims
Although Plaintiffs are concerned with their government's
profligate spending, they appear to be less concerned with, or
simply incognizant of, the costs associated with their litigating
these issues before nine federal and state court judges
Appendix B
A-8
Plainuffs' Complaint contains both federal and state law causes
of action. Although [**4] the Complaint is a model of
obfuscation, it appears that Plaintiffs are attempting to implicate
four provisions in the United States C onstitution: the
Constitution's guarantee of a "Republican Form of Government."
see Article IV section 4; the "privileges and immunities" clause of
the Fourteenth Amendment: the “equal protection" clause of the
Fourteenth Amendment; and the First Amendment
The gravamen of Plaintiffs’ state law claims is that the
Environmental Bond Act violates the New York State
Constitution because the debt it authorizes is not for a "single
work or purpose," and its purposes are not “distinctly specified
therein." N.Y. CONST. art. VII. @ 11. Plaintiffs also assert that
defendants Pataki, Finnegan, and Sheffer violated the New York
State Constitution by using public funds and public credit to
"exhort the electorate to vote ‘ves’ on the Bond Act." (Pitfs' Mem.
of Law at 44.)
Presently before the Court are Defendants’ Motions to Dismiss.
Il. DISCUSSION
Initially, it is appropriate to identify certain basic principles that
limit the power of every federal court. Unlike their state
counterparts, federal courts are not courts of generai jurisdiction.
[**5] "they have only the power that is authorized by Article III
of the Constitution and the statutes enacted by Congress pursuant
thereto." Bender v. Williamsport Area School Dist.. 475 US
534, 540, 106 S. Ct. 1326, 1331, 89 L. Ed. 2d 50] (1986), see
also Marbury v. Madison, 5 U.S. 137. 173-180, 2 L. Ed. 60
(1803). For example, prior to 1875, see Act of March 3, 1875, ¢
137, 18 Stat. 470, federal courts did not even have original
jurisdiction over actions that arose under the C onstitution or laws
of the United States. See, €.g., Hague v. Committee for Indus
Organization, 307 U.S. 496, 507. 59 S. Ct. 954, 960, 83 L. Ed.
1423 (1939). As Chief Justice Ellsworth succinctly noted in 1799:
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Wines We Seats,
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A-9
Will it be affirmed, that in every case, to which the judicial power
of the United States extends, the federal courts may exercise a
jurisdiction, without the intervention of the legislature, to
distribute and regulate the power? The notion has frequently
{*572] been entertained, that the federal courts derive their
judicial power immediately from the constitution; but the political
truth is that the disposal of the judicial power (except in a few
specified instances) belongs [**6] to congress. If congress has
given the power to this court, we possess it, not otherwise: and if
congress has not given the power to us, or to any other court, it
still remains at the legislative disposal. Besides, congress 1s not
bound, and it would, perhaps, be inexpedient, to enlarge the
jurisdiction of the federal courts, to every subject, in every form,
which the constitution might warrant. Turner v. Bank of North
America, 4 U.S. 8, 8 | L. Ed. 718 (1799).
Although there is no consensus as to the framers’ intent in
creating federal courts of limited jurisdiction, early cases point to
a fear of an all powerful federal sovereign. See, e.g.. Turner v.
Bank of North America, 4 U.S. 8, 8, 1 L. Ed. 718 (1799)
("Congress knew that the English courts have amplified their
jurisdiction through the medium of legal fictions; and it was
readily foreseen, that by the means of a colorable assignment to
an alien, or to the citizen of another state, every controversy
arising upon negotiable paper might be drawn into the federal
courts."). Indeed. federalism concerns are plainly implicated in
more recent cases as well. In Healy v. Ratta, 292 U.S. 263, 54S
Ct. 700, 78 L. Ed. 1248 [**7] (1934), the Supreme Court
stated:
The power reserved to the states, under the Constitution, to
provide for the determination of controversies in their courts, may
be restricted only by the action of Congress in conformity to the
judiciary sections of the Constitution. Due regard for the nghtful
independence of state governments, which should
actuate federal courts, requires that they scrupulously confine
their own jurisdiction to the precise limits which (a federal)
statute has defined.
Appendix B
A-10
Healy, 292 U.S. at 270, 54 S. Ct. at 703 (citations omitted); see
also Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 379-
380, 408, 79 S. Ct. 468, 483-484, 498-499 3 L. Ed. 2d 368
(1959) (Brennan, J., dissenting and concurring)
Consequently, subject-matter jurisdiction is both an Article II]
as well as a statutory requirement. Certain legal consequences
necessarily follow from this observation. For example, no action
of the parties can confer subject-matter jurisdiction upon a federal
court. Thus, the consent of the parties is
irrelevant, see California v. LaRue, 409 U.S. 109, 93 S. Ct. 390,
34 L. Ed. 2d 342 (1972), principles of estoppel [**8] do not
apply, see American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17-
18, 71 S. Ct. 534, 541-542, 95 L. Ed. 702 (1951), and a party
does not waive the defense by failing to challenge jurisdiction
early in the proceedings. See Insurance Corp. of Ireland, Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.
Ct. 2099, 2104, 72 L. Ed. 2d 492 (1982); Turmer, 4 U.S. at 8
("Silence, inadvertence of consent cannot give jurisdiction, where
the law denies it."). Similarly, a court, including an appellate
court, must raise lack of subject-matter jurisdiction on its own
motion. "The rule, springing from the nature and limits of the
judicial power of the United States 13 inflexible and without
exception, which requires this court, of its own motion, to deny its
jurisdiction, and, in the exercise of its appellate power, that of all
other courts of the United States, in all cases where such
jurisdiction does not affirmatively appear in the record.”
Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 382, 4 S.
Ct. 510, 511, 28 L. Ed. 462 (1884).
Accordingly, a federal district court cannot adjudicate every
allegation of injustice, no matter how emphatically [**9] a party
may argue to the contrary. Moreover, absent a viable basis of
federal jurisdiction, a federal court is precluded from entertaining
purely state law causes of action. Although under 28 U.S.C. @
1367(a) district courts have "supplemental jurisdiction over all
other claims that are so related to claims in the action within such
' original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution," a
tad lt Pht eaios BSE LN Ks i
Appendix B
A-11
district court cannot exercise supplemental jurisdiction unless
there is first a proper basis for original federal jurisdiction
[*573] See, e.g., In re Joint Eastern and Southern Dist. Asbestos
Litig., 14 F.3d 726, 730 n.2 (2d Cir. 1993) ("the court may not
exercise supplemental jurisdiction over claims unless the court
has ‘original jurisdiction’ over at least one of the plaintiff's
claims"); Cushing v. Moore, 970 F.2d 1103, 1106 (2d Cir. 1992)
Here, Defendants assert that this Court lacks subject matter
jurisdiction to entertain Plaintiffs’ claims and that in_ the
alternative, Plaintiffs' claims should be dismissed because they are
without merit. "While distinguishing between a dismissal for lack
of subject matter jurisdiction [**10] under Rule 12(b)(1) and a
dismissal for failure to state a claim under Rule 12(b)(6) appears
straightforward in theory, it is often much more difficult in
practice." Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d
1182, 1187 (2d Cir. 1996).
Not surprisingly, jurists have long struggled with the difficulty
of distinguishing, in federal question cases, between dismissal for
lack of subject matter jurisdiction and dismissal on the merits
Justice Holmes described the differences in a federal question case
in The Fair v. Kohler Die and Specialty Co., 228 U.S. 22, 33 S
Ct. 410, 57 L. Ed. 716 (1913):
If it should appear that the plaintiff was not really relying upon [a
federal statute] for his alleged mghts, or if the claim of mght were
frivolous, the case might be dismissed. In the former instance the
suit would not really and substantially involve a controversy
within the jurisdiction of the court, and in the latter the
jurisdiction would not be denied, except possibly in form
228 U.S. at 25, 33 S. Ct. at 411-12 (citations omitted).
Distinguishing the basis of dismissal is particularly difficult in
cases involving federal question jurisdiction under 28 [**11]
U.S.C. @ 1331, where the very statute that creates the cause of
action often confers jurisdiction as well. Justice Black framed the
analysis as follows:
eS
Appendix B
A-12
If the court [exercises] its jurisdiction to determine that the
allegations in the complaint do not state a ground for relief, then
dismissal of the case would be on the merits. not for want of
jurisdiction. The previously carved out exceptions are that a suit
may sometimes be dismissed for want of jurisdiction where the
alleged claim under the Constitution or federal statutes clearly
appears to be immaterial and made solely for the purpose of
obtaining jurisdiction or where such a claim is wholly
insubstantial and frivolous
Bell v. Hood, 327 U.S. 678, 682-83. 66 S. Ct 773, 776, 90 L.
Ed. 939 (1946) (citations and footnote omitted).
Although the federal courts have followed a general practice of
granting jurisdiction in most cases and dismissing for lack of
subject matter jurisdiction only under narrow circumstances, see
Spencer v. Casavilla, 903 F.2d 171. 173 (2d Cir. 1990): Goldman
v. Gallant Sec., Inc., 878 F.2d 71. 73 (2d Cir. 1989) (per
curiam): Lewis v. Knutson, 699 F.2d 230. 237 (Sth Cir. [**12]
1983), a court must nevertheless dismiss for lack of subject
matter jurisdiction--even if a federal claim is asserted on the face
of the complaint--where the federal question "is so plainly
insubstantial as to be devoid of any merits and thus [does] not
present[] any issue worthy of adjudication.” Giulini v. Blessing,
~ 654 F.2d 189, 192 (2d Cir. 1981): see also Nowak, 81 F.3d at
1188; Town of West Hartford v. Operation Rescue, 915 F.2d 92.
100 (2d Cir. 1990).
As the Second Circuit has stated, the test "is whether the federal
claim was so _ insubstantial. implausible, or otherwise
completely devoid of merit as not to involve a federal
controversy." IUE AFL-CIO Pension Fund v. Herrmann. 9 F 3d
1049. 1056 (2d Cir. 1993): see also AVC Nederland B.V. v.
Atrium Inv. Partnership, 740 F.2d 148. 152-53 (2d Cir. 1984)
("when the contested basis of federal jurisdiction is also an
element of plaintiff's asserted federal claim, the claim should not
be dismissed for want of jurisdiction except when it appears to be
immaterial and made solely for the Purpose of obtaining
Appendix B
A-13
jurisdiction or where such a claim ts wholly insubstantial and
frivolous") (internal quotation marks [**13] omitted)
Accordingly, the Court will initially focus on Plaintiffs’ federal
claims, and with the [*574] foregoing standard in mind, will
address Defendants’ Motions to Dismiss
A. Motion To Dismiss
Rule 12 of the Federal Rules of Civil Procedure provides that a
cause of action shall be dismissed if the complaint fails "to state a
claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6).
Furthermore, a case is properly dismissed for lack of subject
matter jurisdiction under Rule 12(b)(1) when the court lacks the
statutory or constitutional power to adjudicate the case
In analyzing a motion to dismiss, the facts alleged by the
plaintiff are assumed to be true and must be liberally construed in
the light most favorable to the plaintiff. See, e.g, Easton v
Sundram, 947 F.2d 1011, 1014-15 (2d Cir. 1991), cert. denied,
504 U.S. 911, 118 L. Ed. 2d 548, 112 S. Ct. 1943 (1992). While
the court need not accept mere conclusions of law, the court
should acceptthe pleader's description of what happened along
with any conclusions that can reasonably be drawn therefrom. See
Murray v. City of Milford, 380 F.2d 468 (2d Cir. 1967)
Furthermore, when a party makes a motion [**14] to dismiss,
the court will limit its consideration to the facts asserted on the
face of the complaint. Cosmas v. Hassett, 886 F.2d 8, 13 (2d
Cir. 1989). A complaint will not be dismissed for failure to state a
claim unless it appears, beyond a doubt, that the plaintiff can
prove no set of facts that would entitle them to relief. See
Wanamaker v. Columbian Rope Co., 740 F. Supp. 127
(N.D.N_Y. 1990).
B. Plaintiffs’ Federal Claims
As previously discussed, Plaintiffs’ Complaint must present a
viable form of federal jurisdiction. Because Plaintiffs and
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Appendix B
A-14
)
Defendants are all citizens of New York, there is no basis for
diversity jurisdiction, see 28 U.S.C. @ 1332, and thus the Court's
jurisdiction must be predicated on federal question jurisdiction.
See 28 U.S.C. @ 1331
Plaintiffs attempt to implicate four provisions in the United
States Constitution: the Constitution's guarantee of a "Republican
Form of Governmént", the "privileges and immunities" clause of
the Fourteenth Amendment, the "equal protection" clause of the
Fourteenth Amendment; and the First Amendment. Specifically,
Plaintiffs assert that: the New York Farm Act, which provides
property tax credits for [**15] agricultural land, violates the
Republican Form of Government Clause of Article IV, the
Privileges and Immunities Clause of the Fourteenth Amendment,
and the Equal Protection Clause of the Fourteenth Amendment
because it "discriminate|s] against plaintiffs and all other non-
farmers" (Complaint P 63); the provision of "thousands of
‘member item' gifts" by state legislators violates the First
Amendment, denies Plaintiffs their right to a republican form of
government, and denies Plaintiffs the privileges and immunities of
citizenship--although Plaintiffs’ do not specifically state in their
Complaint how these constitutional provisions are violated; the
"taxpayer standing" rule in section 123-b of the State Finance
Law violates the First Amendment, denies Plaintiffs their nght to
a republican form of government, and denies them the privileges
and immunities of citizenship because it does not confer standing
to challenge a bond issue, the Environmental Bond Act denies
Plaintiffs their nght to a republican form of government and
denies them the privileges and immunities of citizenship because
the Bond Act
violates the New York State Constitution; and, finally, New
York's procedure for [**16] choosing delegates to its
constitutional conventions denies Plaintiffs their mght to a
republican form of government.
1. Guarantee Clause
Plaintiffs argue that the New York Farm Act, "member item
gifts" by state legislators, the State Finance Law, New York's
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Appendix B
A-15
Environmental Bond Act, and New York's procedure for choosing
delegates to its constitutional conventions deny Plaintiffs their
right to a republican form of government
Article IV, section 4 of the United States Constitution provides
that the United States shall guarantee to every State in this Union
a Republican Form of Government, and sha!i protect each of them
against Invasion; and on Application [*575] of the Legislature,
or of the Executive (when the Legislature cannot be convened)
against domestic Violence.
U.S. Const. art. IV, @ 4. Not surprisingly, the Guarantee Clause
has been an infrequent subject of litigation. Accordingly, the
Supreme Court has warned:
We approach the issue with some trepidation, because the
Guarantee Clause has been an infrequent basis for litigation
throughout our history. In most of the cases in which the Court
has been asked to apply the Clause, the Court has found the
(**17] claims presented to be nonjusticiable under the "political
question" doctrine.
New York v. U.S., 505 U.S. 144, 184, 112 S. Ct. 2408, 2432,
120 L. Ed. 2d 120 (1992) (citing City of Rome v. United States,
446 U.S. 156, 182, n.17, 100 S. Ct. 1548, 1564, n.17, 64 L. Ed
2d 119 (1980) (challenge to the preclearance requirements of the
Voting Rights Act): Baker v. Carr, 369 U.S. 186, 218-229, 82 S.
Ct. 691, 710-716, 7 L. Ed. 2d 663 (1962) (challenge to
apportionment of state legislative districts); Pacific States
Telephone & Telegraph Co. v. Oregon. 223 U.S. 118, 140-151,
32 S. Ct. 224, 227-231, 56 L. Ed. 377 (1912) (challenge to
initiative and referendum provisions of state constitution))
The view that the Guarantee Clause implicates only
nonjusticiable political questions has its origin in Luther v
Borden, 48 U.S. 1, 12 L. Ed. 581 (1849), where the Court was
asked to decide, in the wake of Dorr's Rebellion, which of two
rival governments was the legitimate government of Rhode Island
The Court held that "it rests with Congress," not the judiciary, "to
Appendix B
A-16
decide what government is the established one in a State." 48 U.S.
at 42. Although over the following [**18] century this limited
holding transformed into the general rule that "violation of the
great guaranty of a republican form of government in States
cannot be challenged in the courts,” Colegrove v. Green, 328 U.S.
549, 556, 66 S. Ct. 1198, 1201, 90 L. Ed. 1432 (1946) (plurality
opinion), this view has not always been accepted. In a group of
cases decided before the holding of Luther became a general rule
of nonjusticiability, the Supreme Court addressed the merits of
claims founded on the Guarantee Clause without any suggestion
that the claims were non-justiciable. See Kies v. Lowrey, 199
U.S. 233, 239, 26 S. Ct. 27, 29, 50 L. Ed. 167 (1905); Forsyth v.
Hammond, 166 U.S. 506, 519, 17 S. Ct. 665. 670, 41 L. Ed.
1095 (1897); In re Duncan, 139 U.S. 449. 461-462, 11 S. Ct.
573, 577, 35 L. Ed. 219 (1891): Minor v. Happersett, 88 U.S.
162, 175-176, 22 L. Ed. 627 (18735).
In New York v. United States. the Supreme Court's most recent
exposition on
this issue, the Court discussed, but did not resolve, the question of
when claims under the Guarantee Clause are justiciable. 505 U.S
at 182-86, 112 S. Ct. at 2432-33. Although the New York Court
noted that [**19] since its decision in Luther most courts have
concluded that violations of the Guarantee Clause cannot be
challenged in the courts because they present nonjusticiable
political questions, "not all claims under the Guarantee Clause
present nonjusticiable political questions." New York. 505 US. at
184-85, 112 S. Ct. At 2433. Nonetheless. the New York Court
ultimately found it unnecessary to "resolve this difficult question."
505 U.S. at 184-85, 112 S. Ct. at 2433
The Second Circuit has been equally reticent in resolving the
issue Of when the Guarantee Clause presents a nonjusticiable
political question. In Padavan v. U.S.. 82 F.3d 23 (2d Cir. 1996)
the Second Circuit noted that "while it is possible that ‘perhaps
not all claims under the Guarantee Clause present nonjusticiable
political questions,’ there is no basis for us to say that the
plaintiffs here have presented a justiciable claim." Id. at 28
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Appendix B
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(addressing whether federal immigration policies deprived New
York State of a republican
form of government). Accordingly, this Court is left with scant
guidance in determining when the general rule of nonjusticiability
should be abrogated
Furthermore, Plaintiffs [**20] themselves provide little aid in
the Court's resolution of this issue; they offer no further
explanation of their argument nor do they cite any relevant case
law in support of their position. The Court can find few cases
where the Guarantee Clause has been invoked to invalidate the
actions of a state itself. On the contrary, when the Guarantee
Clause is invoked, it is [*576] invariably done so in an effort to
challenge an action of the federal government. See, e.g., In re
Duncan, 139 U.S. 449, 461, 11 S. Ct. 573, 577, 35 L. Ed. 219
(1891) (addressing mghts of states to choose their own
government officials and pass their own laws); Bauers v. Heisel,
361 F.2d 581, 588 (3d Cir. 1966) (separate and independent state
judiciary); Taylor v. Beckham, 178 U.S. 548, 570-71, 20 S. Ct.
890, 898-99, 44 L. Ed. 1187 (1900) (prescribing the
qualifications of state officers); U.S. v. Downey, 195 F. Supp.
581, 585 (S.D.Ill. 1961)(addressing right of state courts to be free
of federally imposed rules of criminal procedure)
In light of the Guarantee Clauses’ implicit protection of state
governmental processes from the tyranny of an all-powerful
federal sovereign, it would seem imprudent [**21] on the part of
the federal judiciary to allow the Clause to be used to challenge a
state's own lawmaking. For example, in 1912, the Supreme Court
addressed a challenge to the referendum provisions of the Oregon
Constitution. See Pacific States Telephone & Telegraph Co. v
Oregon, 223 U.S. 118, 32 S. Ct. 224, 56 L. Ed. 377 (1912)
Chief Justice White, writing for the majority, found the challenge
nonjusticiable and described the claim as follows:
It is the government, the political entity, which (reducing the case
to its essence) is called to the bar of this court, not for the purpose
of testing judicially some exercise of power, assailed on the
ground that its exertion has injuriously affected the nghts of an
Appendix B
A-18
individual because of repugnancy to some constitutional
limitation, but to demand of the state that it establish its right to
eXISt as a state, republican in form
Pacific States Telephone & Telegraph, 223 U.S. at 150-51, 32S
Ct. at 231. Such a claim, the Court concluded is "political in
character, and therefore not cognizable by the judicial power, but
solely committed by the Constitution to the judgment of
Congress." Pacific States Telephone & Telegraph, [**22] 223
U.S. at 133, 32 S. Ct. at 224. Furthermore, the Tenth Circuit. in
addressing the purpose of the Guarantee Clause noted
In American Constitutional Law @ 5-23. the Guarantee Clause is
discussed in the following manner
The most fundamental threats to state sovereignty--those that
genuinely portend reduction of the states into "field offices of the
national bureaucracy" or "bureaucratic puppets of the Federal
Government"--would seem to arise less from federal laws that
impose substantive constraints on state and private actors alike
than from federal laws that restructure the basic institutional
design of the system a state's people choose for governing
themselves. If there is any form of congressional assault that
might truly "nibble away at state sovereignty, bit by bit, until
someday essentially nothing is left but a gutted shell," it is an
assault on those democratic processes through [which] citizens | .
retain the power to govern. Kelley v. U.S., 69 F.3d 1503. 1510-
11 (10th Cir. 1995), cert. denied sub nom, Kelley v. Department
of Justice, 134 L. Ed. 2d 665, 116 S. Ct. 1566 (1996)
Consequently, there is no basis for this Court to ee <)
conclude that Plaintiffs have presented a justiciable claim. Thus,
Plaintiffs' claims implicating the Guarantee Clause must be
dismissed.
u. Privileges and Immunities Clause
Plaintiffs also argue that the New York Farm Act. "member
item gifts" by state legislators, the State Finance Law. and New
Appendix B
A-19
York's Environmental Bond Act deny Plaintiffs their privileges
and immunities of citizenship
Article IV, @ 2, cl. 1, of the Constitution provides that the
"Citizens of each State shall be entitled to all Privileges and
Immunities of Citizens in the several States." The provision was
designed "to place the citizens of each State upon the same
footing with citizens of other States, so far as the advantages
resulting from citizenship in those States are concerned." Paul v.
Virginia, (8 Wall.) 168, 180 (1869); see also Toomer v. Witsell,
334 U.S. 385, 395, 68 S. Ct. 1156, 1162, 92 L. Ed. 1460 (1948)
As [*577] Justice Bradley remarked in the Slaughter House
Case:
The “privileges and immunities" secured by the original
constitution, were only such as each state gave to its own citizens
Each was prohibited from discriminating in favor of its own
citizens, and against the [**24] citizens of other states
But the fourteenth amendment prohibits any state from
abridging the privileges or immunities of the citizens of the United
States, whether its own citizens or any others. It not merely
requires equality of privileges. but it demands that the privileges
and immunities of all citizens shall be absolutely unabridged,
unimpaired
Live-Stock Dealers' & Butchers’ Ass'n v. Crescent Citv Live-
Stock Landing & Slaughter-House Co., | Abb. 388, 15 F. Cas
649, 652 (C.C.La. 1870) (No. 8408)
Derived, like the Commerce Clause, from the fourth of the
Articles of Confederation, the Privileges and Immunities Clause
was intended to create a national economic union. nl See
Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 279-
80, 105 S. Ct. 1272, 1276, 84 L. Ed. 2d 205 (1985). Indeed,
Charles Pinckney, who drafted the onginal Pnivileges and
Immunities Clause, stated that it was "formed exactly upon the
principles of the 4th article of the present Confederation.” 3 M
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Appendix B
A-20
Farrand, Records of the Federal Convention of 1787, p. 112
(1911)
nl Article IV of the Articles of Confederation provided:
The better to secure and perpetuate mutual friendship and
intercourse among the people of the different States in this Union.
the free inhabitants of each of these States ... shall be entitled to
all privileges and immunities of free citizens in the several States:
and the people of each State shall have free ingress and regress to
and from any other State, and shall enjoy therein all the privileges
of trade and commerce, subject to the same duties. impositions
and restrictions as the inhabitants thereof
However, the Privileges and Immunities Clause does not infuse
citizens with new and independent nghts. The Clause "establishes
a norm of comity without specifying the particular subjects as to
which citizens of one State coming within the jurisdiction of
another are guaranteed equality of treatment.” Austin v. New
Hampshire, 420 U.S. 656, 660, 95 S. Ct. 1191, 1194, 43 L. Ed
2d 530 (1975). Justice Miller made this distinction explicit in
Bradwell v. State of Illinois, 83 U.S. 130, 138, 21 L. Ed. 442
(1872), where, speaking of the privileges and immunities
provision he said that "the protection designed by that clause, as
has been repeatedly held, has no application to a citizen of the
State whose laws are complained of. If the plaintiff was a citizen
of the State of Illinois, that provision of the Constitution gave her
no protection against its courts or its legislation." More than fifty
vears later, Justice Sutherland noted:
This does not mean that a state has unlimited power by law to
abridge the privileges of its own citizens. It only means that in
such case we must look elsewhere than to the language of the
privileges and immunities clause of the Fourth Article of the
Constitution for the constitutional infirmity of the statute, if it
have any.
Appendix B
A-2]
4
Colgate v. Harvey, 296 U.S. 404, 428-29, 56 S. Ct. 252, 258, 80
L. Ed. 299 (1935)
More recently, in Zobel v. Williams, the Supreme Court
rejected a challenge to Alaska's dividend scheme, which provided
for proportional payments based on length of residency within the
state, holding: —
The statute does not involve the kind of discrimination which the
Privileges and Immunities Clause of Art. IV was designed to
prevent. That Clause "was designed to insure to a citizen of State
A who ventures into State B the same privileges which the
citizens of State B enjoy." Toomer v. Witsell, 334 U.S. 385, 395,
68 S. Ct. 1156, 1161, 92 L. Ed. 1460 (1948). The Clause ts thus
not applicable to this case... . When a state distributes benefits
unequally, the distinctions it makes are subject to scrutiny under
the Equal Protection Clause of the Fourteenth Amendment
457 U.S. 55, 59, 102 S. Ct. 2309, 2312, 72 L. Ed. 2d 672
(1982)
Therefore, as citizens of the State of New York challenging the
legislative and executive actions of their own state, Plaintiffs have
no recourse to the Privileges and Immunities Clause
Accordingly, Plaintiffs’ claims implicating the Privileges and
Immunities Clause must also be dismissed
iil. Equal Protection
Plaintiffs argue that the New York Farm Act, which provides
property tax credits for agricultural land, violates the Equal
Protection Clause of the Fourteenth Amendment because it
"discriminate|s] against plaintiffs and all other non-farmers"
(Complaint P 63). Essentially, Plaintiffs, who are neither farmers
nor owners of agricultural land, assert that their constitutional
rights are violated because "the statutory classification is . .
based upon a ‘suspect classification,’ 1.c., political favoritism."
(Pitfs' Mem. of Law at 16)
Appendix B
A-??
Defendants correctly note that Plaintiffs’ burden in pleading that
a statute violates the Equal Protection Clause requires more than
their pointing out that the statute creates a classification. Indeed,
it 1s the very nature of legislation to classify. See, e.g., Lyng v
Automobile Workers, 485 U.S. 360, 370, 108 S. Ct. 1184, 1192,
99 L. Ed. 2d 380 ("drawing of lines that create distinctions 1s
peculiarly a legislative task and an unavoidable one"):
Massachusetts Board of [**28] Regents v. Murgia, 427 U.S
307, 314,49 L. Ed 2d 520, 96 S. Ct. 2562 (1976)
Moreover, tax legislation enjoys the greatest degree of freedom
to classify. For example, in Madden v. Kentucky, 309 U.S. 83, 60
S. Ct. 406, 84 L. Ed. 590 (1940), the Supreme Court reasoned
The broad discretion as to classification possessed by a legislature
in the field of taxation has long been recognized. This Court fifty
vears ago concluded that "the fourteenth amendment was not
intended to compel the states to adept an
iron rule of equal taxation," and the passage of time has only
served to underscore the wisdom of that recognition of the large
area of discretion which is needed by a legislature in formulating
sound tax policies It has, because of this, been pointed out
that in taxation, even more than in other fields, legislatures
possess the greatest freedom in classification. Id. at 87-88, 60 S
Ct. at 408. Accordingly, the Madden Court held that "the
presumption of constitutionality can be overcome only by the
most explicit demonstration that a classification is a hostile and
oppressive discrimination against particular persons and classes.
The burden is on the one attacking the legislative arrangement to
negative every conceivable basis which might support it." 309
"1S at 88, 60S. Ct. at 408
Plaintiffs specious argument that New York's Farm Act violates
the Equal Protection Clause, because the statutory classification
is a “suspect classification," demonstrates Plaintiffs’ utter
disregard for constitutional jurisprudence on this issue.
Appendix B
Br ste) misapetead
‘
tl
‘od
The concept of a "suspect classification" saw its genesis in the
famous Carolene Products footnote. In United States v. Carolene
Products Co., 304 U.S. 144, 58 S. Ct. 778, 82 L. Ed 1234
(1938), the Court wrote that it did not have to inquire "whether
prejudice against discrete and insular minorities may be a special
condition, which tends seriously to curtail the operation of those
political processes ordinarily to be relied upon to protect
minorities, and which may call for a correspondingly more
searching judicial inquiry." Casviene Products, 304 U.S. at 152-
1S3n4,58S. Ct. at 783 n4
Here, it 1s ludicrous to consider non-farmers a “discrete and
insular minority" unable to employ the "political processes
ordinarily to be relied upon," when non-farmers clearly constitute
a majority of the clectorate. Although courts have at times used
an intermediate standard of review for gender-based
classifications, see, ¢.g., Craig v. Boren, 429 U.S. 190, 204, 97 §
Ct. 451, 460, 50 L. Ed. 2d 397 (1976), and occasionally an
undefined, but heightened, review standard for classifications
based on illegitimacy, see L. Tribe, American Constitutional Law
@ 16-23, at 1057 (1978), there are only three suspect
classifications: race, alienage, and national origin. See City of
Cleburme v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 105
S. Ct. 3249, 3254, 87 L. Ed. 2d 313 (1985) (recognizing only
race, alienage, and national origin as suspect classifications)
{*579] Consequently. Plaintiffs’ impassioned attempt to
convince this Court that non-farmers are a suspect classification
under the Equal Protection Clause necessarily must fail along
with the many other classifications that courts havedeemed non-
suspect. To illustrate, age is not a suspect classification, see
Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313-
314, 96 S. Ct. 2562, 2566-2567, 49 L. Ed 2d 520 (1976),
classification based on choice of sexual partners is not a suspect
classification, [**31] see National Gay Task Force v. Bd. of
Educ. of City of Oklahoma City, 729 F.2d 1270, 1273 (10" Cir
1984), affd, 470 U.S. 903, 105 S. Ct. 1858, 84 L. Ed. 2d 776
- (1985), the classification between prison escapees and other
fugitives is not a suspect classification, see Beauchamp v
Appendix B
A-24
Murphy, 37 F.3d 700, 707 (Ist Cir. 1994), juvenile delinquency
is not a suspect classification, see United States ex rel. Martin v
Strasburg, 513 F. Supp. 691, 706 (S.D.N-Y. 1981), affd, 689
F.2d 365, 374 (2d Cir. 1982), rev'd on other grounds sub nom,
Schall v. Martin, 467 U.S. 253, 281, 104 S. Ct. 2403, 2418, 81
L. Ed. 2d 207 (1984), students of unaccredited law schools are
not a suspect classification, see Lupert v. California State Bar,
761 F.2d 1325, 1328 (9th Cir. 1985), and seamen are not a
suspect class. See Jones v. Reagan, 748 F.2d 1331, 1337 (9th
Cir. 1984)
It 1s equally plain that Plaintiffs do not have a fundamental
interest in holding on to their tax dollars. Accordingly, "in cases
where a classification burdens neither a suspect group nor a
fundamental interest, ‘courts are quite reluctant to overturn
governmental action on the ground that it denies equal protection
of the laws."" Gregory v. Ashcroft, 501 U.S. 452, 470-71, 111 S.
Ct. 2395, 2406, 115 L. Ed. 2d 410 (1991) (quoting Murgia, 427
U.S. at 314, 96S. Ct. at 2567)
Because there 1s no suspect classification involved, nor any
deprivation of fundamental rights, the ordinary equal protection
test 1s extremely deferential: a non-suspect classification is
unconstitutional only if no legitimate basis can
be found to support it. See, e.g., Harrah Independent Schooi
District v. Martin, 440 U.S. 194,99 S§ Ct. 1062, 59 L. Ed. 2d
248 (1979). "Support" means only that a legislature could provide
a rational basis for the choice. See, e.g., Vance v. Bradley, 440
U.S. 93, 111, 99S. Ct. 939, 949, 59 L. Ed. 2d 171 (1979)
Applying this deferential standard to the facts here, the Court
can only conclude that the Farm Act is rationally related to a
legitimate governmental purpose: the support of farmers and
farming through tax relief. (See Defs' Appendix 5; New York
Agricultural Statistics 1994-1996 and 1995-1996). Thus,
Plaintiffs’ cause of action challenging New York's Farm Act is
dismissed.
Appendix B
iv. First Amendment
Plaintiffs only remaining federal claim is that defendants
Pataki, Finnegan, and Sheffer's advocacy in favor of the
Environmental—Bond Act violated Plaintiffs’ mght to "cast an
effective vote, the right to a free election, and the right to advance
political ideas." (Pitfs' Mem. of Law at 12). In addition, Plaintiffs
argue that "those rights were denied by defendants Pataki,
Finnegan and Sheffer as they propagandized for the vote and as
they actively campaigned for passage of the Bond Act and
exhorted the electorate to ‘vote ves’." (Pitfs' Mem. of Law at 12)
However, Plaintiffs offer no further explanation of their
argument nor do they cite any relevant case law in support of
their position. n2 Moreover, the Court can find no precedent for
the assertion that a party's political advocacy can affirmatively
infringe another's First Amendment right to free speech or a free
election. Indeed, to accept this argument, the Court would
necessarily be limiting the free speech rights of defendants Pataki,
Sheffer, and Finnegan: a position that the First Amendment, and
this Court, will not countenance
n2 Plaintiffs argument that defendants Pataki, Finnegan, and
Sheffer's advocacy violates the New York Constitution and thus
the First Amendment is also unavailing. Notwithstanding the fact
that it 1s dubious whether defendants acted in contravention of the
New York Constitution, there is simply no basis for the assertion
that the federal constitution prohibits individuals, including state
actors acting in contravention of a state constitution, from
expressing their personal beliefs regarding pending legislation or
referenda. Plaintiffs’ attempt to "bootstrap" their state law claim
into the First Amendment must be rejected
Accordingly, Plaintiffs' First Amendment claims are without merit
and must also be dismissed.
in Appendix B
A-26
C. Plaintiffs’ State Law Claims
As noted previously, federal courts are courts of limited
jurisdiction. Thus, in order to address Plaintiffs’ state law causes
of action, a two-fold inquiry must initially be made: (1) whether
this Court has the judicial power to decide the state law claim,
and (2) assuming such power exists, whether this Court should. in
the exercise of its discretion, decline Plaintiffs’ invitation to
adjudicate the state law claims.
In Osborn v. Bank of the United States. 22 US. 738, 6 L. Ed
204 (1824), Chief Justice Marshal wrote:
When a question to which the judicial power of the union is
extended by the Constitution. forms an ingredient of the original
cause, it is in the power of Congress to give the circuit courts
jurisdiction of that case, although other questions of fact or law
may be involved in it
22 US. at 823. Although this concept of pendent jurisdiction was
born in the early part of the 19th Century, it has proved a
troublesome concept to apply. In United Mine Workers v. Gibbs,
383 U.S. 715, 86 S. Ct. 1130, [**35] 16L. Ed. 2d 218 (1976).
the Supreme Court formulated the current standard to determine
when a district court possesses the judicial power to exercise
jurisdiction over a pendant state claim: "The Federal claim must
have substance sufficient to confer subject matter jurisdiction on
the court [and] the state and federal claims must derive from a
common nucleus of operative fact." Gibbs, 383 U.S. at 725. 86 S.
Ct. at 1138
As to the first prong of this standard, in the Second Circuit the
test "is whether the federal . . . claim [is] so insubstantial,
implausible, or otherwise completely devoid of merit as not to
involve a federal controversy." IUE AFL-CIO Pension Fund, 9
F.3d at 1056. As discussed previously, Plaintiffs' claims
implicating the Guarantee Clause. Privileges and Immunities
Clause, Equal Protection Clause. and First Amendment are
completely devoid of merit.
Appendix B
However, the Court need not determine conclusively whether
Plaintiffs’ claims are so insubstantial as to negate federal
jurisdiction because pendent jurisdiction is a matter of judicial
discretion. The Court in Gibbs stated that "if the federal claims
are dismissed before trial, even though not insubstantial in a
jurisdictional sense, the state claims should be dismissed as well."
383 U.S. at 726, 86 S. Ct. at 1139. Even before Congress passed
the supplemental jurisdiction statute, see 28 U.S.C. @ 1367,
courts in this circuit, with rare exception, adhered to the rationale
articulated in Gibbs. See Crane Co. v. American Standard, Inc.,
603 F.2d 244, 245 (2d Cir. 1979) ("pendent state claims must be
dismissed if it later is determined that there never existed a federal
claim sufficient to invoke the jurisdiction of the federal court."):
Abrams v. Carrier Corp., 434 F.2d 1234 (2d Cir. 1970); Rogers
v. Valentine, 426 F.2d 1361 (2d Cir. 1970) (no abuse of
discretion to refuse to exercise pendent jurisdiction after dismissal
of federal claim).
Under 28 U.S.C. @ 1367, "the district courts may decline to
exercise supplemental jurisdiction over a claim under subsection
(a) if . . (3) the district court has dismissed all claims over which
it has original jurisdiction." 28 U.S.C. @ 1376(c). Moreover, the
Court notes that "needless decisions of state law should be
avoided both as a matter of comity and to promote justice
between the parties, by procuring for them a surer-footed reading
of applicable law." Gibbs, 383 U.S. at 726: see also Young v
New York City Transit Authority, 903 F.2d 146, 163-64 (2d Cir.
1990). "A district court ought not ‘reach out for issues,
thereby depriving state courts of opportunities to develop and
apply state law." Young, 903 F.2d at 164 (quoting Mayer v. Oil
Field Systems Corp., 803 F.2d 749, 757 (2d Cir. 1986)).
Furthermore, exercising supplemental jurisdiction over claims
based on the New York Constitution “would violate fundamental
principles of federalism and comity" because "New York State
has a definite interest in determining whether its own laws
comport with the New York Constitution." Young, 903 F.2d at
163-64; see also 28 U.S.C. @ 1367(c)(1) (district courts may
Appendix B
A-28
decline to exercise supplemental jurisdiction if "the claim raises a
novel or complex issue of State law")
Therefore, in light of the dismissal of all federal claims in this
action, the Court declines to exercise supplemental jurisdiction
over Plaintiffs’ state law claims
Ill. CONCLUSION
It is therefore ORDERED, that Plaintiffs' Complaint is
DISMISSED in its entirety. Plaintiffs’ federal claims are
dismissed with prejudice
Plaintiffs’ state law claims are dismissed without prejudice
IT IS SO ORDERED
April 12, 1997
Binghamtcn, New York
HON. THOMAS J. McAVOY
Chief U.S. District Judge
Appendix C
A-29
Appendix C
New York State Court of Appeals
IN THE MATTER OF ROBERT SCHULZ ET AL.,
APPELLANTS, v. NEW YORK STATE EXECUTIVE, ET
AL., RESPONDENTS
98 N_Y. Int. 0067
June 9, 1998
3 No. 47
[98 NY Int. 0067]
Decided June 9, 1998
This opinion is uncorrected and subject to revision before
publication in the New York Reports
Robert L. Schulz, pro se, appellant
Denise A. Hartman, for respondents Pataki, Silver & Bruno
Submitted by Frederick A.O. Schwarz, Jr., for respondents
Finnegan & Sheffer
KAYE, CHIEF JUDGE
The Clean Water/Clean Air Bond Act of 1996 (the "Bond Act")
passed by the Legislature, signed by the Governor and approved
by referendum at the November 1996 general election authorized
the creation of a State general obligation debt of $1,750,000,000
to be used "for the single purpose of preserving, enhancing,
restoring, and improving the quality of the state's environment" (L
1996, ch 412, § 2). At the same time, the Legislature amended the
Environmental Conservation Law, adding a new article 56 to
implement the Bond Act (L 1996, ch 413).
The Bond Act specified that the moneys received from the sale of
the bonds would be expended to create a safe drinking water
program ($355 million); to fund projects related to the
Appendix C
improvement and enhancement of water quality including
programs focused on open space land conservation, parks,
historic preservation and heritage areas ($790 million): to
improve solid waste facilities ($175 million): to restore
contaminated properties ($200 million); and to improve and
enhance air quality ($230 million) (L 1996, ch 412, §4). The
implementing legislation particularized how the bond proceeds
would be allocated and expended, including funding for the
Hudson River estuary plan, the Department of Environmental
Conservation's "great lakes program," landfill closure efforts in
New York City, municipal recycling projects, environmental
restoration projects, and comprehensive conservation and
management plans for the Long Island Sound, Lake Champlain.
Onondaga Lake, the New York/New Jersey Harbor and the
Peconic Estuary
In October 1996, petitioners commenced this combined
declaratory judgment action and article 78 proceeding for
adetermination that the Bond Act and its related implementing
provisions violate article VII, § 11 and article III, § 16 of the New
York State Constitution. Petitioners subsequently sought both
summary judgment and a preliminary injunction to remove the
referendum from the ballot. Respondents, in tum, moved to
dismiss on a number of threshold grounds.
Supreme Court, after a hearing, denied petitioners’ request for an
injunction, determined that petitioners lacked standing and
concluded that the Bond Act did not violate the cited
constitutional provisions. After we transferred petitioners’ direct
appeal to the Appellate Division (89 NY2d 933), that court while
finding standing to assert a challenge under article VII. § 11 of
the State Constitution affirmed. Petitioners appealed as of right
pursuant to CPLR 5601(b)(1). [n.1] Agreeing with the Appellate
Division, we now affirm
Single Work or Purpose Requirement
Appendix C
A-3]
We first consider the threshold issue of standing to challenge the
Bond Act as violative of the "single work or purpose" requirement
set forth in article VII, § 11 of the StateConstitution. [n.2]
As a general principle, citizen taxpayer status does not confer
standing to challenge the issuance of State bond acts. That
principle is grounded on a recognition that such lawsuits "increase
the cost of raising the revenue by creating uncertainty in the
minds of potential investors" ( see, Wein v Comptroller of State
of New York, 46 NY2d 394, 400; State Finance Law § 123 b[1])
As we held in Matter of Schulz v New York State (81 NY2d 336,
344 347, cert denied 513 US 1127 [" Schulz I"]), however, there
are limited instances when a voter may challenge a bond issue on
the basis that it infringes upon explicit voter protections provided
by article VII, § 11 of the State Constitution. Such an instance is
presented by petitioners’ first challenge
Article VII, § 11, which sets forth the prerequisite of a public
referendum for all proposed long term public debt, also mandates
that proposed public financing schemes must be "for some single
work or purpose, to be distinctly specified therein." That
requirement prevents the Executive and Legislative branches of
our State government from embracing in one bond act several
distinct and unrelated purposes, none or some of which could
singly obtain referendum approval ( see, Problems Relating
toTaxation and Finance. 1938 New York State Constitutional
Convention Committee Report, vol
X, p. 87 [the "Poletti Report"]). By restricting each bond act to a
single work or purpose, referendum approval cannot be procured
by combining the votes of several different groups, each with an
interest in one of the bond act's multiple purposes, and thereby
creating a majority that will approve them all ( see, New York
Pub. Interest Research Grp., Inc. v Carey, 59 AD2d 172, 176,
rev'd on other grds 42 NY2d 527).
The requirement also assures that several different purposes some
of which are not independently worthy of referendum approval
will not be combined in a single bond act in the hopes that the
voters will not separately evaluate the relative merit and strength
Appendix C
A-32
of each purpose. If voters could not bring a claim for violation of
that clause, the Executive and Legislative branches could safely
ignore it altogether, and referendum approval garnered from
voters unable to cast an intelligent ballot would be reduced to a
"meaningless charade"(__AD2d_,__ ).
While petitioners may have standing to assert this particular
claim, their argument nonetheless fails on the merits. Petitioners
argue that the Bond Act, when read in conjunction with its
implementing legislation, impermissibly authorizes the use of
bond proceeds for a multitude of unrelated projects, rendering
voters at the November 1996 referendum unable to" intelligently
evaluate and appraise the single purpose" of the proposed public
debt.
Petitioners’ primary support for this argument is People ex rel.
Hopkins v Board of Supervisors of Kings County (52 NY 556,
561), an 1873 case in which this Court concluded that a bond act
was unconstitutional, and therefore invalid, because its
“appropriations [were] in fact many, and their objects many and
diverse." When Hopkins was decided, article VII. § 12 of the
State Constitution restricted the acquisition of public debt in a
number of ways: requiring voter approval of bond issuances.
directing that only one bond act at a time could be submitted for
such approval and limiting the subject matter of each bond act to
a "single work or object." Originally adopted in 1846, these
constitutional mandates were intended to stem the extensive.
unwise government borrowing practices that had caused serious
financial problems in the 1840s.
By the early 1900s, however, it was apparent that the "single
work or object" clause was too restrictive and unwieldy
Interpreted as only permitting bond issuances for a single physical
structure, the requirement severely hampered the State's ability to
build roads, develop parks and supply other desperately needed
public works ( see, 1915 Revised Record of the New York State
Constitutional Convention, vol II. pp. 1295 1299 [remarks of
Delegate Alfred E. Smith, et al.]; Poletti Report, vol X, pp. 90 96,
supra). Accordingly, at the Constitutional Convention of 1938,
Appendix C
A-33
the “single work or object" language was replaced with the
current "single work or purpose." That revision was intended to
create a more flexible standard and "remove any doubt that may
exist as to the power of the State to contract a debt for some
single objective that may relate to more than one physical
structure or, indeed, as in the case of relief bonds, may not
include a physical structure" ( see, Journal of the Constitutional
Convention of the State of New York, 1938, Doc. No. 3, pp. 6 7).
While broader than its predecessor, the clause still precludes the
Legislative and Executive branches from proposing bond issues
aimed at "purposes" that are so imprecise as to be essentially
generic, thereby allowing funding of a host of projects having no
discernible common theme ( see. e.g., New York Pub. Interest
Research Grp., Inc. v Carey. 59 AD2d at 173 174, 176 177,
supra [bond issue for "comprehensive economic development”
where the funding was earmarked for four different areas of
"development" including industrial development, environmental
projects, tourism and transportation was struck down because the
areas were "not so naturally and necessarily related to each other
as to constitute a single purpose within the meaning of the
Constitution"]). Indeed, application of the more flexible "single
work or purpose” standard of article VII, § 11 has produced
results that are profoundly different from those ensuing from the
more rigid requirement in effect when Hopkins was decided. It 1s
now possible, for example, to fund a number of different projects
through a single issue. so long as those projects have a common
goal ( New York Pub. Interest Grp., Inc. v Carey, 59 AD2d at
175 176, supra). Petitioners’ reliance on Hopkins, applying article
VII, § 12's outdated "single work or object" requirement, 1s
plainly misplaced. [n.3]
The Bond Act at issue in this dispute satisfies the modern
constitutional standard. The Act authorizes the creation of State
indebtedness for projects in a number of subcategories, all of
which are directly related to the single categorical purpose of
improving the State's environment. Each of the subcategories safe
drinking water, improvement of solid waste facilities, remediation
of contaminated properties, enhancement of air and water quality,
Appendix C
A-34
and preservation of open spaces, parks and historic sites is
naturally and logically related to the stated unitary goal of
"preserving. enhancing, restoring and improving” the environment
(L 1996, ch 412, §2). Thus, the "single work or purpose"
requirement is satisfied.
We note that, contrary to petitioners’ argument, the preservation
and restoration of parks, open spaces and sites connected with our
historical and cultural heritage have long been considered part and
parcel of the State's overall environmental management plan. The
State Environmental Quality Review Act mandates consideration
of "objects of historic or aesthetic significance" that may be
affected by a proposed project (ECL 8 0105[6]; see also, 6
NYCRR § 617.4[a][9] [projects having an impact on historic
sites are Type | actions]), and the Legislature has specifically
linked the State's "invaluable natural and historic resources" as
"key components of the environmental and social policy of the
state” (Environmental Protection Act of 1993, L 1993, ch 610. §
2, codifiea at ECL art 54 [emphasis supplied]). Furthermore.
section 14.01 of the Parks, Recreation and Historic Preservation
Law recognizes that historical, archaeological, architectural and
cultural heritage sites are "among the most important
environmental assets" the State has. Thus. there is nothing
dissonant about including projects related to the preservation of
such sites in a Bond Act aimed at conserving and improving the
environment.
Inasmuch as the Clean Water/Clean Air Bond Act of 1996 is
aimed at a single purpose "preserving, enhancing, restoring, and
improving the State's environment" and that purpose is clearly set
forth in the Bond Acct itself, there is no merit to petitioners’
additional contention that that provision fails to satisfy the
constitutional requirement that the purpose of the debt be
“distinctly specified” in the act (NY Const, art VII. § 11). That
the particular projects for which the proceeds were tobe
appropriated are listed in a separate legislative enactment is of no
legal consequence in this context because the Constitution
requires only that the bond act "distinctly specif[y]" the "single
work or purpose" of the bond issue: it does not require a listing of
Appendix C
A-35
the myriad activities to be undertaken in the service of that work
or purpose. Indeed. a rule that would require a detailed
enumeration of cach and every funded project in the bond act
itself would lead to clotted verbiage and unwieldy ballot
submissions, thereby defeating the primary purpose of article VII,
§ 11.
Thus, we conclude that the Bond Act does not violate the "single
work or purpose clause" of article VII, § 11 of the State
Constitution.
Incorporation by Reference
Petitioners next challenge the Bond Aci as violative of article III,
§ 16 of the State Constitution, which provides: "No act shall be
passed which shall provide that any existing law, or any part
thereof, sha!l be made or deemed a part of said act, or which shall
enact that any existing law, or part thereof, shall be applicable,
except by inserting it in such act." They urge that the Bond Act is
constitutionally flawed because it requires reference to separate
provisions of its implementing legislation without explicitly
incorporating the terms of that enactment.
As with petitioners’ first argument, standing is a_ threshold
determination, and here we conclude that they lack standing to
maintain this claim. Although voters may have standing to
challenge the constitutionality of the Bond Act on the ground that
a voter protection dictated by article VII, §11 was denied, it does
not follow that they also can challenge the Bond Act under the
very different provisions of article III, § 16. Indeed, the
purpose of article Ili, § 16 is not related in any way to the
exercise of referendum rights, but rather prevents_"the Legislature
from incorporating into its acts the provisions of other statutes or
regulations which affect public or private interests in ways not
disclosed upon the face of the act, and which would not have
received the sanction of the Legislature if fully understood by it" (
Matter of Medical Socy. of the State of New York v State of New
York Dept. of Health, 83 NY2d 447, 452 453 [emphasis
supplied}). Thus, the "evil" that article II], § 16 was intended to
Appendix C
A-36
address is “the possibility of * * * misapprehension or
unawareness" among State legislators, not citizens voting in a
referendum ( id. at 453).
Nor are we persuaded by petitioners’ alternative argument that
voter standing exists so long as the referendum requirement of
article VII, § 11 applies, even if the underlying challenge to the
Statute is based upon a different provision of the State
Constitution. That position, wholly at odds with the first principle
that citizen taxpayers do not as a rule have standing to challenge
bond issues, would allow innumerabie bond act challenges to be
slipped under the blanket of an article VII, § 11 challenge (
Wein, 46 NY2d at 400, supra). In that petitioners lack standing,
we do not reach the merits of their article III, § 16 ciaim. Further.
petitioners’ remaining arguments are either unpreserved or without
merit. -
Accordingly, on the appeal from the July 17, 1997 order of the
Appellate Division, the order should be affirmed, with costs:
insofar as it is taken from the March 4, 1997 Appellate Division
order, the appeal should be dismissed upon the ground that the
order does not finally determine the action within the meaning of
the Constitution.
*eeRREEREeEeRER ERE RE &
On the appeal from the July 17, 1997 order of the Appellate
Division, order affirmed, with costs; appeal, insofar as taken from
that portion of the March 4, 1997 Appellate Division order that
denied appellants' motion to enlarge the issues on appeal.
dismissed upcn the ground that that part of that Appellate
Division order does not finally determine the action within the
meaning of the Constitution. Opinion by Chief Judge Kaye.
Judges Titone, Bellacosa, Smith, Ciparick and Wesley concur.
Judge Levine took no part.
Decided June 9, 1998
Appendix C
A-37
Notes
| Petitioners’ notice of appeal referred both to the Appellate
Division order affirming the Supreme Court's judgment and to a
March 4, 1997 Appellate Division order denying a motion to
enlarge the issues on appeal to include arguments pertaining to
respondents Pataki, Finnegan and Sheffer that had previously
been abandoned. The latter order is nonfinal and, accordingly, so
much of petitioners’ appeal as pertains to the March 4, 1997 order
should be dismissed.
2 In relevant part, article VII, §11 provides that "no debt shall be
hereafter contracted by or in behalf of the state, unless such debt
shall be authorized by law, for some single work or purpose, to be
distinctly specified therein."
3 The bond act in Hopkins authorized the creation of State debt to
pay for canal construction, general fund deficiencies and the
State's "floating indebtedness" objects that have neither a natural
connection with each other nor a common unifying purpose. It 1s
thus unlikely that the act would have survived scrutiny under the
more flexible "single work or purpose" standard.
Appendix D
A-38
Appendix D
In the Matter of Robert L. Schulz et al., Appellants, v. New
York State Executive et al., Respondents.
78929
SUPREME COURT OF NEW YORK, APPELLATE
DIVISION, THIRD DEPARTMENT
233 A.D.2d 43, 660 N.Y.S.2d 881; 1997 N.Y. App. Div
July 17, 1997, Decided
July 17, 1997, Entered
PRIOR HISTORY: [**1]
Appeal from so much of a judgment of the Supreme Court
(Joseph Harris, J.), entered November 8, 1996 in Albany County,
which, in a combined proceeding pursuant to CPLR article 78 and
action for declaratory judgment, held that the Laws of 1996 (ch
412) was constitutional.
DISPOSITION: The judgment is affirmed, without costs.
HEADNOTES:
Parties - Standing - Taxpayer's Action Challenging
Constitutionality of Environmental Bond Act Petitioners lack
standing as citizen-taxpayers under State Finance Law @ 123-b
(1) to challenge the constitutionality of the "Clean Water/Clean
Air Bond Act of 1996" (L 1996, ch 412), which authorized the
State to incur indebtedness not exceeding $ 1.75 billion for the
purpose of preserving the environment by means of safe drinking
water projects, clean water projects, solid waste projects,
environmental restoration projects and air quality projects (see, L
1996, ch 413). Since State Finance Law @ 123-b (1) specifically
excepts from its application "the authorization, sale, execution or
delivery of a bond issue or notes issued in anticipation thereof by
Appendix D
A-39
the state or any agency, instrumentality or subdivision thereof or
by any public corporation or public benefit [**2] corporation",
a taxpayer has neither common-law nor statutory standing to
challenge the issuance of State bonds or bond anticipation notes
Petitioners’ challenge to the constitutionality of State Finance Law
@ 123-b (1), raised for the first time in their reply brief, has not
been properly raised on appeal and lacks merit in any event. In
addition, petitioners lack constitutional voter standing with regard
to so much of the proceeding as is predicated on NY Constitution,
article Ill, @ 16, as that provision is not "linked to any voting
rights”.
Parties - Standing - Voter Standing to Challenge Environmental
Bond Act as Violative of "Single Work or Purpose"
Constitutional Debt-Incurring Provision Petitioners have separate
and independent voter standing to challenge the "Clean
Water/Clean Air Bond Act of 1996" (L 1996, ch 412), which
authorized the State to incur indebtedness not exceeding $ 1.75
billion for the purpose of preserving the environment by means of
safe drinking water projects, clean water projects, solid waste
projects, environmental restoration projects and air quality
projects (see, L 1996, ch 413), as violative of NY Constitution,
article VII, @ 11, which [**3] provides, inter alia, that "no debt
shall be hereafter contracted by or in behalf of the state, unless
such debt shall be authorized by law, for some single work or
purpose, to be distinctly specified therein". An important purpose
underlying this constitutional provision was to permit the people
of the State to intelligently evaluate and appraise the single
purpose of any proposed long-term bonded indebtedness to be
incurred by the State and to prohibit the Legislature from lumping
several purposes into one bond authorization and thereby obtain
voter approval that perhaps could not otherwise be obtained if the
relative merit and strength of each purpose were separately
evaluated and appraised. Voter standing to sue in an action or
proceeding predicated, as here, upon an alleged violation of any of
the fundamental requirements of NY Constitution, article VII, @
11 is therefore necessary to ensure that the State government does
not ignore constitutional dictates concerning public financing
laws, especially since a citizen-taxpayer lacks standing under
Appendix D
A-40
State Finance Law @ 123-b (1) to challenge the issuance of State
bonds or bond anticipation notes.
Constitutional Law - Validity [**4] of Statute - Challenge to
Environmental Bond Act as Violative of "Single Work or
Purpose" Constitutional Debt-Incurring Provision The "Clean
Water/Clean Air Bond Act of 1996" (L 1996, ch 412), which
authorized the State to incur indebtedness not exceeding $ 1.75
billion for the purpose of "preserving, enhancing, restoring. and
improving" the quality of the State's "environment" by means of
safe drinking water projects, clean water projects, solid waste
projects, environmental restoration projects and air quality
projects (see, L 1996, ch 413), is not violative of NY
Constitution, article VII, @ 11, which provides, inter alia, that
"no debt shall be hereafter contracted by or in behalf of the state,
unless such debt shall be authorized by law, for some single work
Or purpose, to be distinctly specified therein". The broad
environmental projects authorized by the bond act are necessarily
and naturally related to-one another such that they constitute a
single purpose within the meaning of the constitutional provision.
As such, the voters were permitted to "intelligently evaluate and
appraise” the wisdom of incurring the subject indebtedness for the
single over-all purpose of [**5] benefitting the State's
environment and, thus, the purpose underlving the "single work or
purpose” provision of NY Constitution, article VII, @ 11 was
fulfilled.
COUNSEL:
Robert L. Schulz, Queensbury, and John Salvador, Jr.. Lake
George, appellants pro se.
Dennis C. Vacco, Attorney-General, Albany (Denise A. Hartman
of counsel), for New York State Executive, respondent.
Cravath, Swaime & Moore, New York City (Michael R.
Siebecker of counsel), for Michael C. Finnegan and another,
respondents.
Appendix D
A-4]
Patricia L. Murray and Peter S. Kosinski, Albany, for New York
State Board of Elections, respondent.
JUDGES: Cardona, P. J., White, Casey and Carpinello, JJ..
concur.
OPINIONBY: Mercure
OPINION: [*45]
Mercure, J.
In July 1996, the Legislature passed Laws of 1996 (ch 412),
which authorized the State to incur indebtedness not exceeding $
1.75 billion for the purpose of preserving the environment. That
law, known as the "Clean Water/Clean Air Bond Act of 1996" (L
1996, ch 412, @ 1; hereinafter the Bond Act), was signed by
respondent Governor and approved by the voters at the November
1996 general election. The stated "single purpose" [**6] of the
Bond Act was: "preserving, enhancing, restoring, and improving
the quality of the state's environment by the accomplishment of
projects and the funding of activities by state agencies, public
authorities and public benefit corporations, municipalities, and
other governmcatal entities and not-for-profit corporations for and
related to protecting, improving, and enhancing the quality of
drinking water and enhancement of water bodies; by providing
funds for open space, and for parks, historic preservation, and
heritage area improvements; by providing funds for solid waste
projects; by providing funds for the restoration of contaminated
properties, and by providing funds for air quality projects" (Bond
Act @ 2). Simultaneously, Laws of 1996 (ch 413) was enacted
for the purpose of implementing the Bond Act within the separate
categories of safe drinking water projects, clean water projects,
solid waste projects, environmental restoration projects and air
quality projects.
Petitioners commenced this combined proceeding and action
seeking, inter alia, a declaration that the Bond Act was
unconstitutional as violative of NY Constitution, article VII, @
11 nl and article II], [**7] @ 16. n2 In lieu of serving an
answer, respondents moved to dismiss the petition/compiaint:
Appendix D
A-42
petitioners responded with a motion for summary judgment.
Supreme Court denied petitioners’ summary judgment motion as
premature and, addressing respondents’ motion, determined that
petitioners [*46] lacked standing and that the Bond Act
violated neither of the identified constitutional provisions
Petitioners appealed to the Court of Appeals from so much of
Supreme Court's order as declared that the Bond Act was not
violative of NY Constitution, article VII, @ 11 or article III. @
16. The Court of Appeals sua sponte transferred the appeal to
this Court, and we denied petitioners’ subsequent motion to
enlarge the issues on appeal
nl As relevant to this proceeding, NY Constitution, article VII. @
11 provides that: "no debt shall be hereafter contracted by or in
behalf of the state, unless such debt shall be authorized by law,
for some single work or purpose, to be distinctly specified
therein”.
n2 NY Constitution, article Ill, @ 16 provides: "No act shall be
passed which shall provide that any existing law, or any part
thereof, shall be made or deemed a part of said act. or which shall
enact that any existing law, or part thereof. shall be applicable,
except by inserting it in such act."
Addressing first the issue of standing, we agree with
respondents that petitioners lack citizen-taxpayer standing to
mount either of the challenges at issue here. As shall be discussed
in some detail, because State Finance Law @ 123-b (1)
specifically excepts from its application "the authorization. sale,
execution or delivery of a bond issue or notes issued in
anticipation thereof by the state or any agency, instrumentality or
subdivision thereof or by any public corporation or public benefit
corporation", a taxpayer has neither common-law nor statutory
standing to challenge the issuance of State bonds or bond
anticipation notes (see, Wein v Comptroller of State of N. Y., 46
Appendix D
A-43
NY2d 394, 399-400: Schulz v State of New York {hereinafter
Schulz I], 193 AD2d 171, 177, affd 84 NY2d 231, cert denied
513 US 1127; Schulz v State of New York [hereinafter Schulz
Il], 185 AD2d 596, 597, appeal dismissed 81 NY2d 336).
Petitioners’ challenge to the constitutionality of State Finance Law
@ 123-b (1), raised for the first time in their reply brief, is not
properly before us (see, Fishman v Beach, 237 AD2d 705. 706:
O'Sullivan v O'Sullivan, 206 AD2d [**9] 960) and lacks merit
in any event (see, Schulz II, supra, at 597). We also agree with
respondents that petitioners lack constitutional voter standing with
regard to so much of the proceeding as is predicated on NY
Constitution, article III, @ 16, as that provision is not "linked to
any voting nights" (Schulz I, supra, at 177; see, Matter of Schulz
v State of New York, 81 NY2d 336, 344-347, supra).
We take a different view, however, on the question of
petitioners’ voter standing to prosecute the claim of violation of
NY Constitution, article VII, @ 11. In Matter of Schulz v State
of New York (supra,) the Court of Appeals traced the evolution
of standing principles as related to "public financing challenges",
ultimately addressing the question of whether the Executive and
Legislative Branches should "be allowed to erect ‘an impenetrable
barrier to any
judicial scrutiny of legislative action[s]' " (id., at 345, quoting
Boryszewski v Brydges, 37 NY2d 361, 364) and giving a
negative response. As noted by that Court, its 1975 decision in
Boryszewski v Brydges (supra) [*47] marked a significant
departure from the established position that [**10] " ‘the
constitutionality of a State statute may be tested only by one
personally aggrieved thereby’ " (Matter of Schulz v State of New
York, supra, at 344, quoting St. Clair v Yonkers Raceway, 13
NY2d 72, 76, cert denied 375 US 970), heralding a new era of
governmental accountability to taxpayers challenging "enactments
of our State Legislature as contrary to the mandates of our State
Constitution" (Boryszewski v Brydges, supra, at 362). However,
the Legislature's nearly simultaneous enactment of State Finance
Law article 7-A, and particularly State Finance Law @ 123-b
(1), with its grant of statutory standing to citizen taxpayers but
concomitant denial of standing in cases involving "the
Appendix D
A-44
authorization, sale, execution or delivery of a bond issue or notes
issued in anticipation thereof", greatly forestalled that effort.
Ultimately, in Wein v Comptroller of State of N. Y. (supra), the
Court of Appeals was constrained to the conclusion that the effect
of the "exception" contained in State Finance Law @ 123-b (1)
was to deny both statutory and common-law standing to those
challenging the issuance of State bonds or bond anticipation notes
(id., at 399-400; [**11] see, New York State Coalition for
Criminal Justice v Coughlin, 64 NY2d 660).
However, in Matter of Schulz v State of New York (supra) the
Court of Appeals again signaled its "disposition to expand rather
than to contract the doctrine [of standing]" (Boryszewski v
Brydges, supra, at 363) by recognizing an individual's right to
enforce voting rights under NY Constitution, article VII, @ 11
(Matter of Schulz v State of New York, supra, at 346-347).
Citing to the public's skepticism for public indebtedness and
particularly “borrowing by long-term debt to pay ordinary
operating expenses of the government" (id., at 346), the Court
recognized that it is the electorate itself, exercising the
"constitutional prerequisite of a public referendum", that
represents the "ultimate, prudent check-and-balance" (id.. at 346).
Under the circumstances, "[sJerious concerns accompany a
complete cloak of immunity that would preclude access to judicial
review of challenged public financing schemes" (id., at 346).
Therefore, the Court of Appeals announced the existence of
"separate and independent ... voter standing to sue on financing
schemes subject to voter referendum [**12] approval" (id., at
347 [citations omitted]) and directed that, to the extent they have
been read as a total ban on standing in such cases, Wein v
Comptroller of State of N. Y. (supra), New York State Coalition
for Criminal Justice v Coughlin (supra) and State Finance [*48]
Law @ 123-b should not be followed (see, Matter of Schulz v
State of New York, supra, at 347).
Contesting none of the foregoing, respondents nonetheless
contend that the Court of Appeals decision in Matter of Schulz v
State of New York (supra) should be limited to its particular
factual setting, i.e., "the narrow circumstance where plaintiffs
Appendix D
A-45
seek to enforce the voter referendum requirement of [NY
Constitution, article VII, @ 11]". We are very much bothered by
this position, predicated as it is on the assumption that the
Executive and Legislative Branches of our State government may
safely ignore the constitutional dictates concerning public
financing laws so long as they are successful in exhorting the
electorate to rubber-stamp their actions. It is worthy of some note
that this Court 20 years ago recognized that an important purpose
underlying NY Constitution, article [**13] VII, @ 11 was "to
permit the people of the State to intelligently evaluate and
appraise the single purpose of any proposed long-term bonded
indebtedness to be incurred by the State and to prohibit the
Legislature from lumping several purposes into one bond
authorization and thereby obtain voter approval that perhaps
could not otherwise be obtained if the relative merit and strength
of each purpose were separately evaluated and appraised" (New
York Pub. Interest Research Group v Carey, 59 AD2d 172, 176,
revd on other grounds 42 NY2d 527). In any event, we perceive
no such limitation
in Matter of Schulz v State of New York (supra). To the contrary,
we believe that the Court of Appeals expression of concern over
the preexisting "cloak of immunity" (id., at 346) and recognition
of the need for "voter standing to sue on financing schemes
subject to voter referendum approval" (id., at 347) evidences an
intent to permit voter standing in an action or proceeding
predicated upon an alleged violation of any of the fundamental
requirements of NY Constitution, article VII, @ 11. In our view,
a contrary determination would reduce the existing grant of
standing toa [**14] meaningless charade.
We shall now address the merits of petitioners’ claim that the
enactment of the Bond Act violated NY Constitution, article VII,
@ 11. It is petitioners’ position that, contrary to the express
provision of NY Constitution, article VII, @ 11, the Bond Act
authorizes a "multiplicity" of works or purposes, none of which
are "distinctly specified" therein. In essence, it is petitioners’
argument that the stated "single purpose" of "preserving,
enhancing, restoring, and improving the quality of the state's
environment" is really nothing but a catch-all [*49] phrase,
Appendix D
A-46
encompassing a great many purposes and objects, including
drinking water, water bodies, open space, parks, historic
preservation, heritage areas, solid waste, contaminated properties,
air quality, natural resources, debt financing, budget balancing,
farmland preservation, agricultural protection, urban cultural
parks, economic development, recreation, technology development
and transfer, public access to water bodies, operating and
maintenance costs and transportation. Although reasonable
people may disagree on the applicability of some of the categories
identified by petitioners, there can [**15] be no serious question
that the "single work or purpose" stated in the Bond Act is a
broad one.
The relevant inquiry, then, focuses on the actual breadth the
constitutional provision will permit. As originally adopted in
1846 for the purpose of preventing the Legislature from excessive
borrowing, the precursor to NY Constitution, article VII, @ 11
required that any proposed long-term indebtedness be approved
by the voters and must be for a "single work or object" (1846 NY
Const, art VII, @ 12; 1938 Report of NY Constitutional
Convention Comm, vol 10, at 81-93; see, New York Pub. Interest
Research Group v Carey, 59 AD2d 172. 175, supra). Feeling
that the language "single work or object" was too restrictive
because it would permit a bond issue for only one physical
structure (1915 Revised Record of NY Constitutional
Convention, vol 2, at 1295-1299), the provision was amended in
1938 to substitute the word "purpose" for the word "object" (see,
New York Pub. Interest Research Group v Carey, supra, at 175).
Inl977, this Court devised a test for determining whether the
liberalized standard had been satisfied: "In order for a bond
authorization act to constitute a single [**16] purpose the
various components that enter into it must be so necessarily and
naturally related that when combined they constitute an entity;
something complete in and of itself but separate and apart from
other objects" (id., at 176). Applying the test so formulated, it
determined that "comprehensive economic development’ " does
not constitute a single purpose (id., at 176). By way of example,
however, the Court did indicate that "transportation" or
“environment” would constitute a single purpose (id., at 176).
Appendix D
A-47
Although by no means bound by that dictum, we are of a like
mind. Unlike the four sharply dissimilar subcategories considered
in New York Pub. Interest Research Group v Carey (supra
{industrial and community development, tourism and recreation,
conservation and environment, and local transportation access}),
here the major divisions of the Bond Act, ie, [*50] safe
drinking water, improvement and enhancement of water quality,
improvement of solid waste facilities, restoration of contaminated
properties and improvement and enhancement of air quality, are
necessarily and naturally related to one another such that they
constitute an entity complete [**17] in and of itself (see.id., at
176). As such, we conclude that the voters were permitted to
"intelligently evaluate and appraise" the wisdom of incurring the
subject indebtedness for the single over-all purpose of benefitting
the State's environment (id.) and, thus, the purpose underlying the
"single work or purpose” provision of NY Constitution, article
VII, @ 11 was fulfilled.
For the foregoing reasons, we conclude that Supreme Court did
not err in its declaration of constitutionality.
_
Cardona, P. J., White, Casey and Carpinello, JJ., concur
Ordered that the judgment is affirmed, without costs
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