Petition for Writ of Certiorari — Schulz v. New York State Executive
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No. Supreme Court, U.S.
- r>iL BD
fy ) ; |
/ pame 98 421 SEPB 1998
Supreme Court’of Thé™
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
NEW YORK STATE COURT OF APPEALS
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
A Nl NO ti
QUESTIONS PRESENTED
1. 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 individual citizens of that
State to petition the state court for a redress of grievances,
even grievances that are deeply rooted in the State
Constitution?
2. Whether plaintiffs’ fundamental rights to petition the
government for a redress of constitutional grievances (First
Amendment), to a guarantce against State laws which abridge
fundamental privileges and immunities (Section 1, Clause 2 of
the Fourteenth Amendment), to have state judges bound by the
provisions of the U.S. Constitution (Article VI, cl 2), and to a
government republican in form and substance (Article IV,
Section 4) have been violated by the New York State
Legislative and Executive when they enacted 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, and by the N.Y. State Judiciary in enforcing State
Finance Law 123-b(1).
3. Whether plaintiffs’ fundamental right, as 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.
4. 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
dicinctly specified therein”) snd, ts, painis rights
rit the 14" Amendment’s “privileges and immunities
clause” and under Article [V’s “guarantee clause” have been
violated by Chapter 412 when read together with Chapter 413
of the New York Laws of 1996.
. 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, ic., elections free from
governmental interference and corruption) and, thus,
plaintiffs’ rights under the 14" Amendment’s “privileges and
immunities clause” and under Article [V’s “guarantee clause”
have been violated by the State’s promotional activities to
secure passage by the voters of a statewide ballot question.
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
Quaiings Press... oisii sess 058A Os ss CP l
P66 hs aw hc 8 Sd RA LE 3
Se ES i ccc uwe vabew bea cewen 4
oc eS cas pies Vase Cow bee es 5
ea ee. ey Eee eas Gan een €
ke a a ae ee 7
Federal Constitutional Provisions Involved............... 7
N.Y. Constitutional and Statutory Provisions Involved .. .. . . 8
Statement Of The Case
A. Tetrodnciocy Gtntoment ..... ... 2 cece eee cees 10
I dos jo ere ew os ee cee 13
C. Stages Where Federal Questions Were Raised ...... 17
Tables | through 4
Reasons For Granting The Writ:
A. Basic rights have been taken away by the state.
At this point, only the U.S. Supreme Court can restore
I Fisica k ee a sss She Sak 19
B. The States need to be reminded that they are
limited by written Constitutions ................ 20
C. Ths musta “temper Acton”... we eee 23
D. The people need to have the court revisit
ee 655 os he a ON Cs wa cess 25
E. In the interest of justice, it is the right thing todo... ... 27
Appendix
A. Order: NY Court of Appeals, June 9, 1998 ......... A- 1
B. Order: NY Appellate Division, July 17, 1997........ A-10
C. Order: NYS Supreme Court, November 7, 1996... ... A-20
D. Order: Second Circuit, April 6, 1998............. A-34
E. Order: District Court, April 14, 1997.............. A-38
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Oa oe eT 2 Dall. 415, 1 L.Ed. 440. . 30
ny | pene ¥ 25,26,27
13,14
7
1,2,8,10,11,12,25,26
1,7,10
passim
passim
Astle I, Geetem 9A. 0 os I es 2,8,10
Aah Te, Geeta 16-8 $,10,13,16
Article VII, Section ll{aXi) iw ww se ee ee ee eee 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 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.
OPINIONS BELOW’
The Opinion and Order of the New York State Court of Appeals
is reported at 92 NY2d 1, entered June 9, 1998.
The Decision and Order of the New York State Supreme Court,
Appellate Division, Third Department is reported at 233 AD2d
43, entered July 17, 1997.
The Decision and Order of the New York State Supreme Court,
Albany County, is unreported, entered November 7, 1996.
' The opinions of the U.S. Court of Appeals for the Second Circuit and
of the U.S. District Court for the Northern District of New York, in a
related case, are included as Appendix D & E.
7 ll lL
JURISDICTION
The Opinion and Order of the New York Court of Appeals was
entered on June 9, 1998.
In accordance with Rule 13.4 of this Court, this petition is filed
within 90 days of the date of the Opinion and Order of the New
York Court of Appeals.
The jurisdiction of this Court is invoked under 28 U.S.C. Section
1257.
a
FEDERAL CONSTITUTIONAL
PROVISIONS INVOLVED
. 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.”
Article Ill, 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.”
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.”
The Fourteenth Amendment (Clause 2) to the United States
Constitiition provides, in relevant part: “No state shall make
10.
or enforce any law which shall abridge the privileges or
immunities of citizens of the United States....”
pao tutional ( !) safi lis
powers” among the legislative, executive and judicial
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
New York State Finance Law Section 123-b(1) reads:
“notwithstanding any inconsistent provision of law, any
person, who is a citizen taxpayer, 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
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...”
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).
10
STATEMENT OF THE CASE
A. INTRODUCTORY STATEMENT
NOTE: In October, 1996, petitioners filed two lawsuits in which
identical federal questions were raised. One suit was filed in the
U.S. District Court on October 13, 1996. The other was filed in
the N.Y. State Supreme Court for Albany County on October 16,
1996.
The federal case was decided by the Second Circuit on April 6,
1998. On July 4, 1998, a Petition for a Writ of Certiorari to the
US Court of Appeals for the Second Circuit was filed with this
Court. See No. 98-81. This petition relates to the State case;
the appendices include the decisions by the federal courts. The
state case was decided by the N.Y. Court of Appeals on 6/9/98.
The identical federal questions raised in the two lawsuits can be
summarized as follows:
1. Whether State Finance Law Section 123-b(1) is an
unconstitutional “door closing” law which violates the First
Amendment and Article I, Section 9.1 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, and whether enforcement of SFL 123-b(1) by
State judges violates Article V1 of the U.S. Constitution.
2. Whether Chapter 412 and Chapter 413 of the N.Y. Laws of
1996 are violative of Article Ill, Section 16 and the
“distinctly specified therein” requirement of Article VII,
Section 11 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.
3. Whether the actions of certain state officials to entice “yes”
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
ll
14" Amendment and the “guarantee” clause of Article IV,
Section 4 of the U.S. Constitution.
The Court is asked to declare New York State Finance Law
Section 123-b(1) unconstitutional null and void because it is
violative of the right to petition clause of the First Amendment
and, therefore, the guarantee clause of Article IV, Section 4 and
the privileges and immunities clause of the Fourteenth
Amendment. Plaintiffs had argued at each stage of the
proceedings before the New York courts that SFL 123-b(1) was
unconstitutional. The New York Court of Appeals failed to
address the question but relied on SFL 123-b(1) to dismiss
plaintiffs’ principal claims — that Chapters 412 and 413 of the
New York Laws of 1996 were enacted in violation of Article III,
Section 16 and the “distinctly specified therein” requirement of
Anti YE, Suton: 1) of Bee Mew Vom Conptauton.
Assuming the Court will declare SFL 123 (1) to be
unconstitutional, the Court is respectfully requested to then
declare Chapter 412 and 413 of the New York Laws of 1996 to
be unconstitutional, null and void because they were adopted in
violation of Article Ill, Section 16 of the New York State
fundamental right to a government republican in form and
substance under Article IV, Section 4 of the U.S. Constitution,
and plaintiffs’ civil right to freedom from state laws that abridge
their fundamental privileges and immunities as guaranteed by
Clause 2 of the Fourteenth amendment to the U.S. Constitution.
This is not a taxpayer action, i.e., 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 U.S. Constitution’s First Amendment
and the “guarantee” and “privileges and immunities” clauses, of
the power of the NY’s governmental leaders: a) to make and
enforce 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), even if the complaint is deeply
rooted in the Constitutions of New York and of the United States;
12
and b) to trade on the credit of the Governor’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’ basic right to a free election was violated.
Plaintiffs have detailed some of 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 page 18 of this section of the Petition.
Plaintiffs have 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 right to petition
the government for a redress of constitutional grievances. The
decision by the New York Court of Appeals failed to consider
plaintiffs’ First Amendment challenge to SFL 123-b(1). Instead,
the Court merely restated the purpose of SFL 123-b(1):
“minimizing the uncertainty of potential investors.” The Court
then used SFL 123-b(1) to dismiss plaintiffs’ principal claims
against Chapters 412 and 413 of the New York Laws of 1996.
Plaintiffs have alleged that SFL 123-b(1), Chapters 412 and 413,
and the State’s actions in propagandizing for a “yes” vote should
be declared unconstitutional, because, inter alia, each is violative
of Section 1, Clause 2 of the Fourteenth Amendment of the US
Constitution — the so-called “privileges and immunities (“P&I”)
clause.” The New York Court of Appeals did not reach these
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 [V, 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
13
government that derives its powers from the consent of the
governed; and a government limited by written Constitutions.
But, the New York Court of Appeals did not reach these
questions.
Finally, plaintiffs have also ali.ged that the behavior of the New
York State Governor violated plaintiffs’ First Amendment right to
a free election when he set up a political action committee and
used it as an arm of the government to trade on the credit of his
office to raise millions of dollars from private 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 New York appeals courts abused their discretion in
deciding not to address this question which was decided by the
Court of original instance and fully briefed before both of the
appeais courts.
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 -- i.e., to assert their constitutional rights
in any forum -- by specifying that citizens shall not be allowed to
maintain a lawsuit if the subject matter deals with public debt --
i.e., 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.”
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 legislative 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
4
‘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.” (Piaintiffs’ 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
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 which is the subject of this petition. The
decision by the N.Y. Court of Appeals, and those of it two lower
courts, are included as Appendix A, B and C hereto. 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 tn 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. 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 16 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,
15
Section 11 “distinet! fied therein” clai inst Ci
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
16
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 in 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 entice a “yes” vote on 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 fom Wall
Street firms and others that would benefit financially if che 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 Proposition No. 1
(approving Chapter 412). No other information was included.
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
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 which follows this part of this petition. 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 County 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 50-page bill which contained the details on the use of the
Bond Act proceeds, was never mentioned. .
The vote on the Bond Act (Chapter 412) passed with about 2.1
million “yes” votes and 1.7 million “no” votes.
C. STAGES IN THE PROCEEDING WHERE
THE FEDERAL QUESTIONS WERE RASIED
Re: Question No. 1 and No. 2 regarding the
constitutionality of SFL 123-b (1).
On October 22, 1996, in the court of original instance, State
defendants filed a motion to dismiss for lack of standing to raise
the Article III, Section 16 claim, citing SFL 123-b(1).
Defendants’ 10/22/96 Memorandum of Law in support of their
motion to dismiss presented arguments in support of their motion
on page 34.
On October 25, 1996, in response to defendants’ Motion to
Dismiss for lack of standing under SFL 123-b(1), plaintiffs’ first
raised the First Amendment challenge to SFL 123-b(1).
Paragraphs 98 through 103 of plaintiffs’ 10/25/96 Affidavit
contain plaintiffs’ arguments.
The Honorable Joseph Harris (J.S.C. - Albany County) did not
dismiss any of plaintiffs’ original claims for lack of standing. See
Appendix C hereto. Therefore, on appeal to the Appellate
Division, plaintiffs did not argue the constitutionality of SFL 123-
b(1) in their Appellants’ Brief. However, the State’s defendants
did resurface the threshold question of standing under SFL 123-
b(1) in their Respondents’ Brief. Therefore, in their Reply Brief,
plaintiffs again presented and argued the question of the
18
constitutionality of SFL 123-b(1). Plaintiffs did so on pages |
and 7 -15 of their Reply Brief.
Finally, the question of the constitutionality of SFL 123-b(1) was
fully briefed and argued by the plaintiffs before the New York
Court of Appeals. They did so on pages 3 - 6 and 66 -75 of their
Appellants’ Brief and on pages | - 3 of their Reply Brief.
Re: Questions No. 3 and No. 4 regarding the
constitutionality of Chapters 412 and 413.
The federal constitutional questions regarding Chapters 412 and
413 were presented in plaintiffs’ original complaint as filed in the
New York State Supreme Court, Albany County, and were, of
course, fully argued by plaintiffs and defendants at each of the
three levels of the state court.
Re: Question No. 5 regarding the constitutionality
of the acts of the State in swaying the results
of a statewide vote.
The federal constitutional questions regarding the behavior of
state officials to sway the results of the statewide vote on Chapter
412 of the Laws of 1996 were presented in plaintiffs’ original
complaint as filed in New York State Supreme Court and were, of
course, fully argued at each of the three levels of the state court.
TABLE 1
CONTRIBUTIONS TO THE CLEAN WATERI/CLEAN AIR
BOND ACT COMMITTEE BY CORPORATIONS WITH
BUSINESS BEFORE THE STATE: A SAMPLE
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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19
REASONS FOR GRANTING THE WRIT
A. BASIC RIGHTS HAVE BEEN TAKEN WAY BY THE
STATE. AT THIS POINT, ONLY THE U.S. SUPREME
COURT CAN RESTORE THOSE RIGHTS.
Plaintiffs’ First Amendment right to petition the government for a
redress of grievances, involving unconstitutionally incurred public
debt, has been taken away by the New York State Legisiature and
Executive. Only the U.S. Supreme Court can restore that right.
The Legislature and the Executive enacted the exception language
SFL 123-b(1) which declares, in essence, that the court house
door is closed to citizen-petitioners in cases where they are
seeking to obtain compliance with debt-limiting restrictions of the
N.Y. Constitution. It is now necessary for the U.S. Supreme
Court to declare SFL 123-b(1) to be unconstitutional.
Plaintiffs’ fundamental right to a “separation of powers” has been
infringed by the Unified Court System of New York. Only the
U.S. Supreme Court can restore that right. The New York
Executive by enforcing SFL 123-b(1). Since 1992, the Judiciary
has dismissed seven of plaintiff Schulz’ lawsuits for lack of
standing under SFL 123-b(1). Those lawsuits were filed against
the Legislature and the Executive for enacting laws authorizing
the incurrence of public debt in spite of specific New York
Plaintiffs’ fundamental First Amendment right to an election free
from governmental interference and corruption has been infringed
by the N.Y.S. Executive and Judiciary. Only the U.S. Supreme
Court can remove that stain and prevent the problem from
happening again. On September 11, 1996, in order to sway the
results of a statewide vote on Proposition No. | (approving
Chapter 412), the Governor placed two of his top aids, including
his Chief Counsel, on a two-month leave of absence for the
expressly stated purpose of creating a political action committee,
thereby trading on the credit of the Governor’s office to raise
millions of dollars from private corporations that have business
before the state or who would benefit from voter approval of
Proposition No. 1, all for the purpose of paying for a blanketing
of TV propaganda featuring the Governor explicitly exhorting the
viewer to “vote “yes” on Proposition 1.” The ad was aired
repeatedly day after day, for 14 days prior to the election. The ad
gave no information about Proposition | and was obviously not
intended to educate the public about how much debt would be
incurred or how the money would be spent if the people approved
Proposition 1. No other information was presented by the
Legislature or Executive to the public regarding Proposition 1.
The sole expression was of the persuasive personality of the
Governor, thereby violating the constitutional proscription
against undue governmental influence in elections.
Plaintiffs’ constitutional right to have their State judges comply
with the provisions of the U.S. Constitution has been taken away
by the New York State Judiciary. Only the U.S. Supreme Court
can restore that right. Plaintiffs have argued four cases before
the N.Y. Court of Appeals where the matter involved a
constitutional attack on the incurrence of public debt. In each
case the Court of Appeals has failed to address plaintiffs’ First
Amendment attack on SFL 123-b(1) only to use SFL 123-b(1) to
dismiss plaintiffs’ claims for lack of standing.
Plaintiffs’ right to a State government republican in form and
substance and their guarantee of freedom from the making and
enforcement of State laws that abridge their fundamental
privileges and immunities have been taken away. Only the U.S.
Supreme Court can restore those rights.
B. THE STATES NEED TO BE REMINDED THAT
THEY ARE LIMITED BY WRITTEN CONSTITUTIONS.
The passage of time produces corruption of principles. It is the
duty of good citizens to be ever on the watch against this, and if
the gangrene is eventually to prevail, let the day be kept off as
long as possible. The primary role of the court, we believe, is to
protect the people from the unrestrained acts of the government --
21
i.e., to keep the Legislature and Executive harnessed to the will of
the people as expressed in their constitutions.
NY plaintiff sige Welt coher endlanty: lioned citi
have been degraded from the prime rank, which they ought to hold
in human affairs, by a willfully wayward state government that is
behaving as if the NY Constitution belongs to it rather than to the
people and, therefore, may be disregarded at will.
Plaintiffs’ cause portrays the three branches of their state
government as cooperating in the making and enforcing of laws
which abridge plaintiffs’ privileges and immunities as both
explicitly and implicitly expressed in the United States and New
York State Constitutions.
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.
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.
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 expressions with
respect to “republicanism” and to the “sovereignty of the people,”
and the servant nature of governments at all levels. 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 our
lawsuit has not yet received its 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 have, in their constitutional
language, advocated both the form and substance of constitutional
republicanism, with its emphasis on individual rights and
governmental responsibility for protecting 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 New York, in all three of its branches,
may yet perceive the wrongness of actions it has taken, such as
interdicting the right of the people to petition their government for
a redress of grievances, interfering with the people’s right to a
free election unmarred by the intrusion_of governmental powers,
incurring public debt in spite of constitutional restrictions, using
public resources for private purposes and 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 people have good reason to be thankful for their valuable
liberties and privileges. Nothing but forthright insistence upon
the perpetuation of constitutional law and government can insure
the continuance and enhancement of their liberties and privileges.
Under the circumstances, in New York, the people cannot do
this without actions that would threaten their peace and
tranquillity. It becomes necessary for the U.S. Supreme Court
to apply the rule of law.
23
C. THIS IS NOT A “TAXPAYER ACTION”.
Lest anyone argue jurisdiction based on some holding that ours is
a generalized rather than a particularized grievance, or that our
injury is not concrete or measurable, we say again that this is not
a taxpayer action in any respect. We are seeking, inter alia. the
protection of the guarantee clause -- not because there is property
or money involved but because of our right to a government
republican in form and substance.
Allow us to make a comparison that we believe is logical and
conclusive. In matters of law it is imperative that logic should
prevail.
The federal right to a government republican in form and
substance is as absolutely precious to us as the federal right to a
government separate from the church is to a person whose interest
lies in that area. How precious it is in both cases depends on the
knowledge of what is being lost when the Constitution is not being
followed. Both viewpoints and value systems and the people who
hold them are entitled to equal treatment under the law.
Say a person drives past a town hall on Christmas eve and sees a
manger scene, complete with Kings, Wisemen, Joseph, Mary and
baby Jesus. Or, that person, of another faith, say, attends a
concert at the Schuylerville High School auditorium and is
confronted with a massive hand painted mural on the side wall
depicting among other biblical scenes, the crucifixion.
That person says, “This is an affront to me.” That person
expresses a formal complaint to authority because that person has
specialized knowledge of the Constitution. That person’s harm
falls with the zone-of-interest to be protected by the First
Amendment’s Establishment Clause. But, as in our case, that
person’s injury is a generalized rather than a particularized injury.
Is it concrete or measurable? No! But, that person has standing
to maintain his action in court.
24
We are here because we, too, have a specialized knowledge of the
Constitution. We, too, are here because we are subject to ethical
and moral imperatives. We, too, are constrained by our
knowledge of the U.S. and N.Y. Constitutions and by our
devotion to liberty, to freedom from the unrestrained acts of
government, to constitutional governance carried out in decency
and good order. Republicanism, to us, is a passion that should
be judged at the same level of intensity as that portrayed by a
vigilant individual seeking redress under the Establishment
Clause. In this wise, it is seen that the Establishment Clause and
the Guarantee Clause walk hand in hand.
Plaintiffs, themselves, have been successful in court in using the
Constitution as a shield against governmental behavior which
violated the Establishment Clause. In so doing, we did not have
to prove the measure of our injury. We are now using the
Constitution as a shield against government behavior which
violates the Guarantee Clause -- a right at least as fundamental
and foundational as the right protected by the Establishment
Clause. Yet, in the companion federal case (and potentially,
here), our standing is being challenged.
It is apparent that we are, indeed, at the beginning of what may
well become a long line of precedents regarding the Guarantee ©
Clause, as has been the case with the Establishment Clause.
Because constitutional government, with all that implies, has
become so sought after and important and because it establishes
performance standards that are being imperfectly met, we can,
indeed, expect a cascade of cases under the Guarantee Clause. It
follows as the night the day. The body of Establishment Clause
cases was allowed to proceed without quantifiable measurable,
concrete, particularized harm to the complainant. We perceive
ourselves as having the same right. We are offended by what we
see happening. We are affronted by a loss of liberty, by an
erosion of popular sovereignty. These are as offensive to us as is
the use of religion in the wrong place.
The failure of those in authority to adhere to the constitutional
principles that bring us to this court is changing the system of
governance -- that is, corrupting it in ways that are at once daring
25
and subtle. It is the failure to adhere to our foundational
principles of republicanism that allows those who carry out ihe
governance process to begin to assume that they, rather than the
people they serve, are the principals — the sovereign. And,
because of this, they assume that they are unrestrained, not
limited by the written Constitution, and are able to be
adventuresome with impunity as with SFL 123-b(1), and with
Chapters 412 and 413 and by propagandizing elections.
Our cause in this case is still somewhat novel. The Guarantee
Clause has been an infrequent subject of litigation. The
application of the Guarantee Clause, with its emphasis on
republicanism and the freedom from the unrestrained acts of
government, to the acts of the State in a way that is intelligent and
forceful rather than emotional and demonstrative, will become as
common as the application of the Establishment Clause -- the sole
ingredient is knowledge and vigilance.
D. THE PEOPLE NEED TO HAVE THE COURT
REVISIT THE GUARANTEE CLAUSE.
decisions by this court place all questions raised under the
Guarantee clause in the realm of political, rather than judicial,
considerations, we offer the following:
ps lig iy igs aeanaaNN pt
Oregon, 233 U.S. 118 (1912). ia Senile Talento tin iene wes
whether an amendment to the Oregon Constitution for direct
legislation violated: 1) the provisions of the Act of Congress
admitting Oregon to the Union; or 2) Article IV, Section 4 of the
U.S. Constitution guaranteeing a republican form of government. —
The instant case is distinguishable from Pacific Telephone m at
least two ways:
(1) The New York Constitution has never been beSore the U.S.
Congress for review or approval. Unlike Oregon’s, it was
adopted long before the Union was formed.
(2) Here, unlike Pacific Telephone, plaintiffs are not asking the
Court to decide which of two State governments is the
legitimate State government. In Pacific Telephone the court
was asked to decide if the state government that existed in
Oregon by act of Congress, and before its citizens added the
citizen initiative and referendum amendment to the State
Constitution in 1902, was the legitimate state government; or,
if the government that existed under the Oregon Constitution
as amended in 1902 was the legitimate government. The
Pacific Telephone court made clear its view that if it found
that the Oregon State Constitution, as amended in 1902, was
violative of Article IV, Section 4’s guarantee clause, the
validity of every statute passed on Oregon since the adoption
of the initiative and referendum amendment to the State
Constitution would be affected, and ultimately, the question
of whether there was a legislative and judicial branch in
Oregon would have to be answered. The court decided the
matter was purely political and would have to be decided by
Congress. It is interesting to note that the court went to great
lengths to show how its decision was so conclusively
established by a prior decision of the U.S. Supreme Court “as
to cause the matter to be absolutely foreclosed.” The court
said the controlling case was Luther v. Borden, 7 How. 1, 12
L Ed 581, which the court said grew out of the Dorr
Rebellion in Rhode Island. In Luther the court was asked to
decide which of two state governments was the legitimate
government: the government which grew out of a voluntary
constitutional convention or the “Charter government.” In
Luther the U.S. Supreme Court found that to select the
former would nullify all the laws, taxes, salaries and court
judgments -- a disastrous effect. In the instant case the issue
is not which of two State governments is the legitimate
government but whether the State is acting legitimately --
observing the republican principles upon which the State
government was founded. The question in the instant case
is not a political question. Plaintiffs are not asking the court
to decide which of two state governments is the legitimate
government. Plaintiffs are asking the court to rein in the
legitimate state government in New York which is “willfully
27
wayward” in that it is violating the basic republican
principles of popular sovereignty, government based on the
consent of the people, and “separation of powers,” provided
by both the U.S. and N.Y. Constitutions. In Pacific
Telephone, the court ruled that the question before it was
“purely political.” It said, “Its essentially political nature is
at once made manifest by understanding that the assault
which the contention here advanced makes is not on the tax as
a tax but on the state as a state. It is addressed to the
framework and political character of the government by
which the statute levying the tax was passed. It is the
government, the political entity, which 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 rights of an 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 Telephone & Telegraph
Co. v. Oregon, 233 U.S. 118, 150 (1912). (Plaintiffs’
emphasis). Obviously, the case before the bar is
sop ge nt et nara gan 1, 12 L. Ed
581, its prodigy, including Pacific Telephone _&
Thicengh Co... fee of Orem, 233 U.S. 118 (1912).
Here, plaintiffs are calling the government of New York State
to the bar for the purpose of testing judicial attitudes
regarding the exercise of power, which is being assailed on
the ground that its exertion has injuriously affected the nights
of citizen plaintiffs because of repugnancy to certain
constitutional limitations. Unlike plaintiffs in Luther and
Pacific Telephone, plaintiffs here are not in court to demand
of the state that it establish its right to exist as a state.
E. IN THE INTEREST OF JUSTICE, IT IS THE RIGHT
THING TO DO.
Reports are beginning to appear in the national press that the
governments of states other than New York are also becoming
“innovative and monarchical” in their attempts to circumvent the
debt-limiting restrictions of their State Constitutions. The
28
question of “willfully wayward” states can only be addressed
effectively by this tribunal.
We know that the conclusions of leading thinkers and analysts on
government and the “rights of man” -- present and long past --
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.
The extension of the judicial power of the United States Supreme
Court 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
promises which a free government makes to every free citizen --
the promise of equal justice and the protection of the laws; the
promise of due deference to the sovereignty of the body of the
people; and, the promise of 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 and are, indeed,
limited by written Constitutions.
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
29
(2) when citizen grievances (which would seem to indicate a
matter, which finds itself at the root of the constitutional design-
imperatives being violated, as set forth 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 US. Supreme Court that, when
an aggrieved citizen of a State, finding himself with no other
recourse to achieve the redress of grievances that are based upon
constitutional rights and the need for interpretation thereof. the
OE
appropriate court of jurisdiction is the U.S. Supreme Court. See
Chrisholm 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
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 “rights 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
ny Sg a ag A SS A gi
the governed, and the right of the governed to petition their
government for a redress of grievances) is the rationale behind
this petition, based upon the types of constitutional
inconsistencies perpetrated by the State of New York — injustices
that obviously demand the attention of the U.S. Supreme Court.
R T
Pro Se Pro Se
2999 State Route 9L 2458 Ridge Road
Lake George, NY 12845 Queensbury, NY 12804
(518) 656-9242 (518) 656-3578
98-105
A-1
Appendi A
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 ameaded 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
Apperdix A
A-2
improvement and enhancement of water quality including
programs a ee ae
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
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.!] Agreeing with the Appellate
Division, we now affirm.
Single Work or Purpose Requirement
Appendix A
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 A
A-4
of each purpose. If voters could not bring a claim for violation of
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
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,
A-5
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, ¢.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 is
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
Vil, § 12's outdated “single work or object" requirement, is
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,
preserving, enhancing, restoring
(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 I 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, codified 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 Act 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
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." 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 Ill, § 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 III, § 16 was intended to
Appendix A
A-8
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 innumerable 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 Ill, § 16 claim. 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.
ee eeeeeeceeeeeeeese
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 upon the ground that that part of that Appellate
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 A
A-9
Notes
1 Petitioners’ notice of appeal referred both to the Appeliate
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 is
thus unlikely that the act would have survived scrutiny under the
more flexible "single work or purpose" standard.
A-10
Appendix B
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 B
A-11
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
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 (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
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 B
A-12
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 underlying 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, Swaine & Moore, New York City (Michael R.
Siebecker of counsel), for Michael C. Finnegan and another,
respondents.
Appendix B.
A-13
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
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 ml and article Il, [**7] @ 16. n2 In lieu of serving an
answer, respondents moved to dismiss the petition/complaint;
Appendix B
A-14
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 Ill, @
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 II], @ 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 shali
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 B
A-15
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
Ij, 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 rights" (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’ " (Meter of Schulz v State of New
York, supra, at 344, quoting St. Ciair 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 B
A-16
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” (d., at
347 [citations omitted]) and directed that, to the extent they hove
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
a?
Appendix B
A-17
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, @ i1 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
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 tue
enactment of the Bond Act violated NY Constitution, article VIi,
@ Il. 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 B
A-18
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,
parks, economic development, recreation, technology development
and transfer, public access to water bodies, operating and
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).
In1977, 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 B
A-19
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, ic. [*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.
Appendix C
A-20
Appendix C
State of New York Supreme Court
County of Albany
REVISED
DECISION AND ORDER
INDEX NO. 6353-96
RJI 01-96-04799
ROBERT L. SCHULZ and JOHN SALVADOR, JR.
Plaintiffs-Petiti
~ against -
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 BOARD OF ELECTIONS, CAROL
BERMAN CHAIRMAN, THOMAS WILKEY, EXECUTIVE
DIRECTOR,
Defendants-Respondents.
APPEARANCES:
ROBERT L. SCHULZ
Plaintiff Pro Se
2458 Ridge Road
Queensbury, New York 12804
JOHN SALVADOR, JR.
Plaintiff Pro Se
1999 State Route 9L
Lake George, New York 12845
A-21
Michael Siebecker, Esq.
Attorney for Defendants Finnegan and Sheffer
Cravath, Swaine & Moore
Worldwide Plaza - 825 Eighth Avenue
New York, New York 10019
Peter S. Kosinski, Esq.
State Board of elections
Swan Street Building
Core |
Albany, New York 12223-1650
DENNIS C. VACCO
Attorney General of the State of New York
Attorner for Defendants-Respondents Pataki Silver and Bruno
The Capitol
Albany, New York 12224
Darren O’Connor and James McGowan
Assistant Attorneys General, of Counsel
HARRIS, J.
THE FACTS
On August 1, 1996, Governor Pataki signed into law the Clean
Water/Clean Air Bond Act of 1996. (Chapter 412 of the Laws of
1996). If approved by the voters on the November ballot, the
Bond Act will authorize the State to borrow $1.75 billion in State
debt for the preservation, enhancement, restoration and
improvement of the State’s environment; $355 million for safe
drinking water projects; $790 million for projects relating to the
improvement and enhancement of water quality; $175 million for
initiative designed to improve solid waste facilities; $200 million
for the investigation and renovation of contaminated properties;
and $230 million for the improvement and enhancement of air
quality. (Bond Act. Sect. 4).
Appendix C
A-22
At the same time as the legislative passage of the Bond Act, the
Legislature enacted Chapter 413 of the Laws of 1996, which as
article 56 of the Environmental Conservation Law implements the
Bond Act and appropriates funds in the amounts specified in the
Bond Act, with a separate title for each category identified in the
Bond Act. (Laws of 1996, sec. 1). This has been the traditional
manner of appropriating funds to implement the purpose for
which bond acts in the State of New York have been enacted.
On September 19, 1996 plaintiffs commenced a lawsuit raising
seven causes of action, (Schulz_v New York State Executive,
Index No. 5852-96 [Albany County Supreme Court]), all of
which related to the Bond Act (Chapter 412) and its
implementation law (Chapter 413), except Count Five (which
alleged that sections 207 to 216 of the Farmer’s Protection and
Farm Preservation Act of 1996 (Chapter 309 of the Laws of
1996, hereinafter referred to as the “Farm Act”) violates
plaintiffs’ equal protection rights because it provides an income
tax credit to farmers.
First blood was let when plaintiffs in that action moved by order
to show cause in Supreme Court (Harris, J.) for a preliminary
injunction and final judgment: enjoining the Governor, Michael
Finnegan (on leave of absence as Counsel to the Governor), and
Gary Sheffer (on leave of absence from the Department of
Environmental Conservation) from campaigning for the Bond
Act; declaring the Bond Act (Chapter 412) and its related
implementation law (Chapter 413) unconstitutional; directing the
removal of the Bond Act from the ballot; and for diverse reasons
declaring the Bond Act unconstitutional. In the interim, plaintiffs
requested a temporary restraining order prohibiting the Gover sor
and defendants Finnegan and Sheffer from campaigning for the
Bond Act. After hearing extensive arguments, Justice Harris
denied the Temporary Restraining Order and scheduled the
motion for a preliminary injunction and judgment to be heard on
September 30, 1996, upon which date, it was assigned to Justice
Hughes.
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A-23
Thereafter, the judicial battle waged on in a convoluted and
haphazard fashion, through no fewer than nine federal and state
court judges (including the Appellate Division, Third Dept.), all
of whom denied plaintiffs’ request for temporary equitable relief,
but not on the merits. Finally, on October 16, 1996, plaintiffs
suddenly discontinued the first state action in its entirety, and
contemporaneously filed a new action containing only the Bond
Act claims advanced in the first action. The temporary
restraining order accompanying the new action, seeking to bar
defendants Pataki, Finnegan and Sheffer from advocating in favor
of the Bond Act (relief denied just five days earlier by the
Appellate Division), was, like the seven other judges before him,
denied by Justice Teresi, and the matter returned to Justice Harris
from which it had initially come, to be decided on the merits.
Plaintiffs move for a preliminary injunction and for summary
judgment to in effect declare the Bond Act unconstitutional,
remove same from the ballot, and to prohibit defendants from
advocating in favor said Act.
_ OBJECTIONS IN POINT OF LAW
Defendants have not yet answered the complaint and have
interposed the follows objections in point of law:
1. That the action is untimely commenced. CPLR 3211.
2. The plaintiffs-petitioners lack standing to challenge the
matters they are attempting to challenge. CPLR 321 1(a){3).
3. The claims plaintiffs-petitioners make are not justiciable.
CPLR 321 1(a){7)
4. The issue raised by plaintiffs-petitioners are not ripe for
judicial review.
5. The complaint fails to state a cause of action. CPLR 3211
(a7)
6. Plaintiffs-petitioners have failed to obtain personal
jurisdiction over defendants-respondents. CPLR3211(a)(8)
THE LAW
Re: Plaintiffs’ Motion for Summary Judgment
Appendix C
A-24
A motion for summary judgment can be made only after joinder
of issue, which occurs when the answer has been served. A
motion fur summary judgment may not be filed before joinder.
CPLR 32!2(a); D. Siegel, New York Practice, sec. 279 (2™ ed.
1991). In the instant action, inasmuch as no answer has been
served, and is not yet duc, the motion for summary judgment is
premature; this result is the same whether the proceeding is an
action for a declaratory judgment or an Article 78 proceeding
(See: CPLR 7804(f).
Accordingly, plaintiffs motion for a summary judgment must at
this point be denied.
Further, CPLR 3212(b), gives the court, where a defense “shall
be established sufficiently to warrant the court as a matter of law
in directing judgment in favor of any party” to do so, even in the
absence of a cross-motion. An analysis of all the facts of this
case, from all papers submitted, and as hereinafter set forth,
shows that there are no disputed questions of fact - only issues of
law - clearly supporting the positions of the defendants and
antithetical to the positions of the plaintiff - and accordingly,
summary judgment is granted to defendants dismissing the
For reasons stated in the complaint, plaintiffs aver that defendants
have no authority to place the Bond Act on the November ballot
and ask that the State Board of Elections strike the proposition
from the ballot.
However, section 16-104(3) of the Election Law provides:
“The wording of the abstract or form of submission of
any proposed amendment, proposition or question may be
contested in a proceeding instituted by any person eligible
to vote on such amendment, proposition or question.”
Appendix C
A-25
Section 4-108(1) (a) of the Election Law requires that whenever a
proposition or question is to be submitted to the People for their
approval statewide, the State Board of Elections shall transmit to
. each County Board of Elections a certified copy of the text of the
proposition or question and a statement of the form in which it is
to be submitted t least three months before the election.
In the instant case the election is to be held November 5, 1996;
plaintiffs admit that the certified text and form of submission of
the proposition was sent by the State Board of elections to each
County Board of Elections on August 2, 1996.
An action to strike from the ballot a proposition, or to change the
wording thereof must be commenced within fourteen (14) days of
the last day to certify the wording on the ballot. Election Law,
sec. 16-104(3) - in this case, August 19, 1996. But the initial
proceeding herein was not commenced until September 19, 1996
and the instant proceeding was commenced on October 16, 1996,
each far in excess of the “14 day” limit herein set by Election
Law, sec. 16-104(3) - to wit, August 19” (August 5 + 14).
Accordingly, this proceeding as against the State Board of
Elections, is untimely, and barred by the Statute of Limitations.'
The request to strike the Bond Act from the ballot is also barred
under the doctrine of laches, as pled by the defendants, Plaintiffs
seek an equitable remedy; however, the Courts of New York will
not provide an equitable remedy where such remedy itself works
an inequity. It is unfair at this late date to deprive the People of
the State of New York of an opportunity to vote on this
referendum. The inequity inherent in plaintiffs’ behavior is
by plaintiffs to innumerable justices for the same relief. Forum
shopping peaked when plaintiffs applied to Justice Teresi for
temporary relief against the Governor on October 16, 1996
' See, possible impact of this holding upon the holding of New York
~ Public Interest Research Group (NYPIRG) v Carey, 42Nyd 527 (1977)
respecting the prohibition of advisory opinions.
Appendix C
A-26
without informing the Court or defense counsel that precisely the
same relief was then being sought in Federal Court.
So much of the complaint as seeks to strike the Bond Act from the
ballot, or change the form of the ballot in any respect is dismissed
as untimely. CPLR 3211 (a)(5).
527 ast held that agnor for rap » Carey, 42 NY. is
premature if the underlying future event is beyond the control of
the parties and may never cccur, stating:
“the same principle applies when a party
challenges a statute which has not become
effective. “[UJntil the statute or ordinance is
passed”, a declaratory judgment “would be
premature” (Bouchard, Declaratory Judgments,
p. 63; cf., Matter of McCabe v Voorhis, 243 NY
401, 411-412).
For instance, here, if the voters do not approve the proposition all
the determinations which the courts have made in this case would
be merely of abstract interest and moot. In addition, where the
final approval rests with the voters, “the hazard and inconvenient
nature of such action, taken in the necessary haste of disposing of
preelection contests, makes it wise and expedient for the courts to
refuse to intervene in advance of some threatened action” (Matter
of McCage v Voorhis, supra, p. 412).
However, NYPIRG v Carey, supra, requires careful scrutiny, a
defining element in NYPIRG is the absence therein of the New
York State Board of Elections as a party defendant, which is not
the case here. In the instant case the State Board of elections is a
party defendant.
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Appendix C
A-27
With respect to that happenstance, the Court of Appeals in
NYPIRG, at p. 531; states: “That is not to say that the courts
been done on several occasion, although with reluctance and then
only incidentally to resolve a dispute as to whether the proposition
should be placed or remain on the ballot (see, e.g, Matter of
Tiemey v Cohen, 272 NY 33: Johnson v Etkin, 279 NY 1; Matter
of Stroughton v Cohen, 281 NY 343; Matter of Atward v Cohen
291 NY 484.)
“These are not advisory opinions. The effect of the Court’s
determination in those cases does not depend on the outcome of
the election. On the contrary, those orders have the immediate
and practical effect of determining whether the proposition should
be submitted to the voters, or whether all the expense and human
effort involved would be wasted because of fatal defects in the
law.” NYPIRG, supra, p. 532.
A gordian knot however is created in the case sub judice
inasmuch as, even though the State Board of elections was served
as a party defendant, the Court has held that such service was
time-barred, and in effect the State Board of elections is no longer
a party defendant, and never was. Thus, if the Courts reading
respecting the statute of limitation is correct, this issue is
premature and the Court has no authority to strike the bond act
the court does at this time. |
Under Article VII, Section 11 of the New York Constitution, “no
debt shall be hereafter contracted by or on behalf of the state
unless...such debt shall be authorized by law, for some single
works or purpose, to be specifically specified therein.
Plaintiff alleges that the Bond Act herein violates this provision
because, they charge, it relates to multiple works and purposes.
Appendix C
A-28
One need not be a Rhodes scholar to determine that this argument —
is meritless. In order to preserve a forest, each tree therein need
not be armed by its own bond act. Every category of proposed
expenditure (see Chapter 413) readily lends itself to the generic
heading “environment.” This is all that is needed. This issue is
ee ee ee
defendants by New Yo t t_Researc
(NYPIRG) v Cary, 59 AD. 24 172 (3 Dept. 1977) rev'd on
other grounds, 42 N.Y. 2d 527 (1977). Said the Third
Department:
“In order for a bond authorization act to
constitute a single 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.””,?
Article III, Section 16 of the New York Constitution recites:
“..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,
* The derivation of the term “purpose” arises from the 1938 New York
Constitutional Convention wherein it was substituted for the word
“object” to remove any doubt as to the power of the state to control a
debt for some single objective that may relate to more than one
physical structure.” (See: Committee on State Finances and Revenues
of the Constitutional Convention, vol II, pp. 798-799).
* The Third Department in NYPIRG, 59 AD2d 172, at p. 176, clearly
shows the proposed bond authorization act {in NYPIRG] is not for a
single purpose such as Transportation or Environment [emphasis
added] but rather is for four separate and disparate purposes divided
into functional categories. The broad term “comprehensive economic
development” does not, as defendant contends, constitute a single
purpose...”
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Appendix C
A-29
shall be applicable, except by inserting it in such act.”
(Frequently referred to as incorporation by reference”).
InN
Department of Health, 83 N.Y. 2d 447, 452 (1994), the Court of
Appeals stated that “...incorporation by reference is not prohibited
in all instances.”
The purpose of section 16 is “to require bills introduced in the
legislature to be presented in such form and their essential
provisions expressed in such language that the effect of the
Proposed enactment might be understood by legislators of
reasonable intelligence.” People ex rel Everson v Lorrilard, 135
N.Y. 285, 291 (1892).
Again, in Medical Society of the State of New York, supra, at p.
453, the Court of Appeals stated:
*...where a statute creates rights or duties or
imposes bundees. and the provisions of another
statute are referred to as a means of formally
executing the provisions of the first statute, the
constitutional proscription is not violated.”
Chapter 413 is so explicit and detailed and clear-cut that it would
be frivolous to consider it beyond the token of any legislator of
reasonable intelligence, and thus the constitutional proscription is
not violated.
Re: Other Issues of Standing
In Society of Plastics Industry v County of Suffolk, 77 N.Y. 2d
761 (1991), the Court of Appeals announced that the threshold
inquiries for determination of “standing” are whether the person
asserting standing asserts a specific injury in fact, different from
injury to the public in general, or a generalized grievance more
appropriately addressed by the representative branches of
government, and whether the interest or injury asserted falls
Appendix C
A-30
within the zone of interest proiected by the principle the litigant
invokes.
Insofar as plaintiffs assert taxpayer standing, they cannot rely on
section 123-b(1) of the State Finance Law, which does not
provide for standing to challenge bond acts. Plaintiffs otherwise
lack standing relating to many of their claims because their
“injury” respecting the Bond Act is no different from that of any
other member of the public.
Plaintiffs allege that advocacy of the Bond Act by Governor
Pataki and Messrs. Finnegan and Sheffer violates Article VII,
section 8 of the New York Constitution, which provides:
“The money of the State shall not be given or
loaned to or in aid of any private corporation or
association, or private undertaking, nor shall the
credit of the State be given or loaned to or in aid
of any individual, or public or private
corporation or association, or private
undertaking.”
Plaintiffs admit that neither the Governor, nor Messrs. Finnegan
and Sheffer, have used, or will be directly using public moneys to
advocate in favor ofthe Bond Act. Such “public funds” as
plaintiffs claim have been used for a public undertaking are
identified only as public assistance in the form of the Governor’s
“tax-supported time.”
This is meritless. Article VII, section 8 of the New York
Constitution does not cast a cloak of silence over a Governor on
matters of significant public concern. Advocacy is not prohibited
- merely the direct use of public or taxpayer funds or resources in
furtherance of that advocacy. (See: Phillips v Mauer, 67 NY2d
672 [1986]; Schulz v State of New York, 86 NY2d 225; cert.
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Appendix C
A-31
Denied. 116 S.Ct. 382 [1995]; Stem v Kramarsky, 84 Misc 2d
447 [1975]; Schulz v McCall, 632 NY2d 883 [Third Dept.
1995}); Schulz y New York, 148 Misc 2d 677, 678, affd 175
AD2d 356 [3" Dept. 1991]). In Schulz v State of New York,
Supra, 148 Misc 2d 677, the Court specifically rejected plaintiffs’
argument that public officials should be prohibited from speaking
in favor of a Bond Act, absent expenditures of taxpayer funds;
“Finally, petitioners contend that respondents should be enjoined
from issuing any public statements on this Bond Act. This Court
can find no legal authority that prohibits public officials to
express their views on matters of public concern. Public officials
have the right of free speech, and in fact, have a responsibility to
express their views on any issue which affects the electorate they
serve.”
As set forth above, it appears that the only State “resources” or
“public assistance” plaintiffs can identify is the Governor’s “tax-
supported time.”
Nothing in Article VII, sec. 8 of the New York Constitution
mandates that when a Governor speaks on a public issue he must
don a false beard and a false mustache and speak incognito, just
as nothing in Article VII, sec. 8 mandates that a Governor spend
his afternoons at the movies. A Governor was elected to govern;
he was elected to formulate a program he considers to be in the
best interests of the People, and to advocate acceptance of that
program. —
Nor in any meaningful sense does advocacy by a Governor on a
public issue without the expenditure of public funds constitute a
loan or gift of the State’s “credit” in aid of any private
undertaking.
The same arguments that permit advocacy on the part of the
Govemor herein permit advocacy on the part of Messrs. Finnegan
and Sheffer. They are on leave of absences approved by the New
York State Ethics Commission; they neither receive nor expend
any public moneys or resources; their advocacy of the Bond Act
Appendix C
A-32
is financed solely from private funds raised by the private “not for
profit” Clean Water/Clean Air Bond Act Committee.
Re: Miscellaneous
The Court has examined all other issues and arguments raised by
plaintiffs and finds them without merit.
CONCLUSION
For all the reasons heretofore stated - whether upon substantive
matters, or procedural matters including issues of standing,
ripeness, justiciability, and advisory opinions, and all other issues
raised - the complaint herein is dismissed. Summary judgment is
granted to defendants; motion for a preliminary injunction is
denied as is plaintiffs’ motion for summary judgment; the Bond
Act will remain on the ballot*; and plaintiffs’ motion to restrain
the defendants from advocating in favor of the Bond Act is also
denied.
All papers, including this decision and order, are being returned to
the Attorney General. The signing of this decision and order shall
not constitute entry or filing under CPLR section 2220. Counsel
is not relieved from the applicable provisions of that section
relating to filing, entry and notice of entry.
This decision shall constitute both the decision and the order of
the Court.
SO ORDERED!
“ As of this writing, Election Day 1996 (November 5, 1996) is over;
the referendum on the Bond Act was overwhelmingly supported by the
electorate and the Bond Act passed. Thus, some of the issues that
were premature before the election are no longer so and are nor fully
justiciable.
—
A-33
DATED: ALBANY, NEW YORK
NOVEMBER 7, 1996
JOSEPH HARRIS, J.S.C.
Papers Considered:
The order to show cause dated October 16, 1996;
The complaint/petition with exhibits verified October 16,
1996:
The summons and RJI dated October 16, 1996;
The affidavit of Gary Sheffer sworn to October 21, 1996,
with exhibits;
The affidavit of Michael Finnegan sworn to October 21,
1996, with exhibits;
The notice of cross-motion to dismiss of defendants
Michael C. Finnegan and Gary Sheffer dated October 22,
1996;
The notice of cross-motion to dismiss of defendants
Pataki, Silver and Bruno dated October 22, 1996;
The affirmation of Darren O’Connor dated October 22,
1996;
5 The semended moties of crose-motion to diemise of
defendant Pataki, Silver and Bruno dated October 23,
1996;
The notice of motion to dismiss of the Board of Elections
ig defendants dated October 23, 1996;
:. The affidavit of Peter S. Kosinski, sworn to October 23.
WARS thet PS AEE Aes
4 1996;
' The affidavit of Robert L. Schulz and John Salvador, Jr.,
: sworn to October 24, 1996, with exhibits:
f The affidavit of Robert L. Schulz and John Salvador, Jr.,
: sworn to October 25, 1996, with exhibits; and
: The letter of Robert L. Schulz dated October 29, 1996,
z with exhibits.
Le gee
A-34
Appendix D
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.
*The Honorable Myron H. Bright, Circuit Judge of the
United States Court of Appeals for the Eighth Circuit, sitting by
designation.
Appendix D
A-35
For Appellants: ROBERT L. SCHULZ, pro se,
whe Queensbury, NY.
For Appellees: FRANK K. WALSH, for DENNIS C.
VACCO, Attomey 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
Appendix D
A-36
principle of “government based upon the consent of the
governed.”
Among the several grounds upon which we might affirm
the district court, see Alfaro 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 1 per se violation of the Establishment Clause. Under
Lemon v. <xrtzman, 403 U.S. 602 (1971), appellants must show that
the paymenis 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. Lionel
Corp. v. Civale & Trovato, Inc., 29 F.3d 88, 92 (2d Cir. 1994)
(internal quotation marks and citation omitted).
Appendix D
A-37
lack merit. First, the Privileges and Immunities Clause does not
Zobel v. Williams, 457 U.S. 55, 59 n.5 (1982). Second, the
Guarantee Clause does not contemplate the action plaintiffs seck
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 right 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
ee ee a
Appendix E
A-38
Appendix E
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
April 14, 1997, FILED
DISPOSITION: [**1] Plaintiffs’ Complaint DISMISSED.
Plaintiffs’ federal claims dismissed with prejudice. Plaintiffs’ state
law claims dismissed without prejudice.
Appendix E
A-39
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, Attomey
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 concers 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 t. 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 Peas: ff
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]
Appendix E
A-40
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]
patrolman saidgosings hres sepa sagem
enjoining the New 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
sleeahil : of. the sinaall sails dle: bellies
these issues before nine federal and state court judges.
Appendix E.
A-41
Plaintiffs' Complaint contains both federal and state law causes
of action. Although [**4] the Complaint is a model of
four ituti
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 'yes' on the Bond Act." (Pitfs' Mem.
of Law at 44.)
Presently before the Court are Defendants’ Motions to Dismiss.
II. DISCUSSION i
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 general 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 U.S.
534, 540, 106 S. Ct. 1326, 1331, 89 L. Ed. 2d 501 (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, c.
137, 18 Stat. 470, federal courts did not even have original
jurisdiction over actions that arose under the Constitution or laws
of the United States. See, e.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:
Appendix E
A-42
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
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 is 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. Tumer v. Bank of North
America, 4 U.S. 8, 8 1 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 afe plainly implicated in
more recent cases as well. In Healy v. Ratta, 292 U.S. 263, 54 S.
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 rightful
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 E
A-43
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 III
as well as a statutory requirement. Certain legal consequences
_ hecessarily 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); Turner, 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 is 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
Appendix E
A-44
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
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
of subject matter jurisdiction (**10] under Rule 12(b)(1) and a
dismissal for failure to s°1te 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 th»’ the plaintiff was not really relying upon [a
federal statute] for his alleged rights, or if the claim of right 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:
Appendix E
A-45
If the court [2xercises] 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. 929 (1946) (citations aud footnote omitted).
Although the federal courts have followed a general practice of
granting jurisdiction in most cases and dismissing for lack of
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, th. test "is whethe: the federal
. . .€laim 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 E
A-46
jurisdiction or where such a claim is 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
Appendix E
A-47
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
jesindicti ST dieihcansd am titan “sorte hae ay
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 Government"; 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 right 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 right 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 right to a
republican form of government.
i. Guarantee Clause
Plaintiffs argue that the New York Farm Act, "meniber item
gifts" by state legislators, the State Finance Law, New York's
Appendix E
A-48
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 S Constieuti ‘d
that the United States shall guarantee to every State in this Union
a Republican Form of Government, and shall 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 Dort'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 E
A-49
decide what government is the established one in a State." 48 U.S.
at 42. Although over the following [**18] century this kmited
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 (1875).
In New York v. United States, the Supreme Court's most recent
exposition on oe
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 U.S. 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
Appendix E
A-50
(addressing whether federal nngraien 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, itis [*576] invariably done so in an effort to
challenge an action cf the federal goverr™e:* See, e.g., In re
Duncan, 139 U.S. 449, 461, 11 S. Ct. 573, 577, 35 L. Ed. 219
(1891) (addressing rights 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 nights of an
Appendix E
A-51
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, 32 S.
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 ncthing is left but a gutted shell," it is an
assault on those democratic processes through [which] citizens . .
. fetain 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 [**23]
conclude that Plaintiffs have presented a justiciable claim. Thus,
Plaintiffs’ claims implicating the Guarantee Clause must be
ii. Privileges and Immunities Clause
Plaintiffs also argue that the New York Farm Act, “member
item gifts" by state legisiators, the State Finance Law, and New
Appendix E
A-52
York's Environmental Bond-Act deny Plaintiffs their privileges
br thametsnaereseo mpl
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,
Live-Stock Dealers' & Butchers’ Ass'n v. Crescent City Live-
Stock Landing & Slaughter-House Co., 1 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 original Privileges and
Immunities Clause, stated that it was "formed exactly upon the
principles of the 4th article of the present Confederatica." 3 M.
A-53
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
eae impositions
and restrictions as the inhabitants thereof . .
However, the Privileges and Immunities Clause does not infuse
citizens with new and independent rights. 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
years 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.
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. ITV 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 is 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.
ii. 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,’ i.c., political favoritism."
(Pitfs' Mem. of Law at 16).
A-55
Defendants cosrectly note that Plaintiffs’ busden in pleading.that
a statute violates the Equal Protection Clause requires more than
their pointing out that the statute creates a classification. Indeed,
it is the very nature of legislation to classify. See, ¢.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 is
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
years ago concluded that “the fourteenth amendment was not
intended to compel the states to adopt 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
The burden is on the one attacking the legislative arrangement to
negative every conceivable basis which might support it." 309
U.S. at 88, 60 S. 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 E
A-56
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." Carolene Products, 304 U.S. at 152-
153 n.4, 58 S. Ct. at 783 n.4.
Here, it is 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 electorate. Although courts have at times used
an intermediate standard of review for gender-based
classifications, see, e.g., Craig v. Boren, 429 U.S. 190, 204, 97 S.
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
Cleburne 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 E
A-57
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 is 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
n action on the ground that it denies equal protection
of the laws.” Gregory v. Ashcroft, 501 US. 452, 470-71, 111 S.
Ct. 2395, 2406, 115 L. Ed. 2d 410 (1991) (quoting Murgia, 427
US. at 314, 96 S. Ct. at 2567).
Because there is no suspect classification involved, nor any
deprivation of fundamental rights, the ordinary equal protection
test is extremely deferential: a non-suspect classification is
unconstitutional only if no legitimate basis can
be found to support it. See, ¢.g., Harrah Independent School
District v. Martin, 440 U.S. 194, 99 S. Ct. 1062, 59 L. &d. 2d
248 (1979). "Support" means only that a legislature could provide
a rational basis for the choice. See, ¢.g., Vance v. Bradley, 440
U.S. 93, 111, 99 S. 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 governmenta’ purpose: the support of farmers and
farming through tax reiief. (See Defs’ Appendix 5; New York
Agricultural Statistic, 1994-1996 and 1995-1996). Thus,
Plaintiffs' cause of action challenging New York's Farm Act is
A-58
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’ right to “cast an
effective vote, the right to a free election, and the rig
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