New York Law Review

Tag: Executive Order

  • Rudder v. Pataki, 93 N.Y.2d 273 (1999): Establishes Stringent Requirements for Organizational Standing in New York

    Rudder v. Pataki, 93 N.Y.2d 273 (1999)

    To establish organizational standing in New York, an organization must demonstrate harm to at least one member, that the asserted interests are germane to the organization’s purpose, and that the case does not require individual member participation; furthermore, citizen-taxpayer standing is limited to challenges with a sufficient nexus to the state’s fiscal activities.

    Summary

    This case concerns the standing of various organizations and an individual to challenge an Executive Order issued by the Governor of New York. The plaintiffs argued that the order, which established the Governor’s Office of Regulatory Reform (GORR) and gave it the power to review and potentially block proposed rules by state agencies, violated the separation of powers doctrine and the State Administrative Procedure Act (SAPA). The Court of Appeals held that the plaintiffs lacked standing to bring the suit. The Court found that the organizational plaintiffs failed to demonstrate a concrete and particularized injury to their members as a result of the Executive Order. It further clarified that taxpayer standing under State Finance Law § 123-b is limited to challenges with a direct connection to the state’s fiscal activities.

    Facts

    Governor Pataki issued Executive Order No. 20, which created the Governor’s Office of Regulatory Reform (GORR).
    GORR was empowered to review proposed rules from executive branch agencies and could approve, modify, or block their publication.
    This power effectively allowed GORR to prevent the promulgation of new regulations.
    The plaintiffs challenged the Governor’s authority to issue the Executive Order, arguing it circumvented SAPA’s notice and comment requirements and usurped legislative authority.

    Procedural History

    Plaintiffs filed suit seeking a declaratory judgment that Executive Order No. 20 was unconstitutional.
    Supreme Court initially ruled that the organizations had common-law standing and the individual plaintiff had statutory standing.
    However, the Supreme Court ultimately held that the Executive Order was constitutional.
    The Appellate Division affirmed, but solely on the grounds that none of the plaintiffs had standing.

    Issue(s)

    1. Whether the organizational plaintiffs have standing to challenge the Governor’s Executive Order No. 20 based on harm to their members?
    2. Whether the individual plaintiff has standing as a taxpayer under State Finance Law § 123-b to challenge the Executive Order?
    3. Whether the plaintiffs have standing as voters to challenge the Executive Order?

    Holding

    1. No, because the organizational plaintiffs failed to allege a concrete and particularized injury to their members as a result of the Executive Order. The claimed harm was considered “tenuous” and “ephemeral.”
    2. No, because the challenge to the Executive Order’s rule-making review function lacked a sufficient nexus to the state’s fiscal activities.
    3. No, because the plaintiffs did not demonstrate that their right to vote was specifically impaired by the Executive Order.

    Court’s Reasoning

    The Court emphasized that organizational standing requires a concrete adversarial interest. The Court found that organizations representing social workers failed to show how GORR’s blocking of a proposed rule change specifically harmed their members with MSWs, stating that not receiving preference for a job is not a cognizable injury. The Court also pointed out an inherent conflict: enhancing job opportunities for MSW holders would diminish opportunities for non-MSW holders within the same organization.
    For organizations representing patients, the Court deemed the alleged harm even more tenuous, as they couldn’t point to a specific harm to any member attributable to the rule’s disapproval.
    The Court stressed that State Finance Law § 123-b cannot be used to challenge the State’s nonfiscal activities and requires a sufficient nexus to fiscal activities, which was lacking here.
    Regarding voter standing, the Court stated that the plaintiffs needed to point to a specific constitutional provision or statute related to the right to vote that was impacted. The court quoted Matter of Transactive Corp. v New York State Dept. of Social Servs., 92 N.Y.2d 579, 589, noting the plaintiffs were essentially seeking “to obtain judicial scrutiny of the [State’s] nonfiscal activities”.
    The Court acknowledged the concern that denying standing could insulate government action from scrutiny but noted that other actions by GORR might trigger the necessary harm in the future. The Court also noted that the Legislature retained the power to address Executive Order No. 20.

  • Dorst v. Pataki, 87 N.Y.2d 698 (1996): Upholding Delegation of Rulemaking Authority to Governor

    Dorst v. Pataki, 87 N.Y.2d 698 (1996)

    The Legislature can delegate rulemaking authority to the Governor, even without specific expertise, as long as the delegation is accompanied by a general policy framework and standards, such as public safety.

    Summary

    Two female inmates challenged the constitutionality of an amendment to Correction Law § 851 (2) and Executive Order No. 5.1, arguing that they violated the separation of powers doctrine by delegating law-making power to the Governor. The amendment allowed the Governor to exclude classes of inmates from temporary release programs. The Court of Appeals affirmed the lower courts’ decisions, holding that the delegation was constitutional because the legislature provided a general policy framework (community safety and inmate welfare) to guide the Governor’s actions, and that the Governor’s role as chief executive officer justified the delegation. This case clarifies the permissible scope of legislative delegation to the executive branch, particularly the Governor.

    Facts

    Plaintiffs, female inmates convicted of violent felonies, were deemed ineligible for temporary release programs due to Governor Pataki’s Executive Order No. 5.1. The order barred inmates convicted of crimes involving serious physical injury or the use of dangerous weapons from participating in temporary release programs. This order was based on a 1995 amendment to Correction Law § 851 (2), which allowed the Governor to exclude or limit participation in temporary release programs by certain classes of inmates.

    Procedural History

    The plaintiffs initially challenged the law in Supreme Court, which rejected their claim. The Appellate Division affirmed the Supreme Court’s decision. The plaintiffs then appealed to the New York Court of Appeals as a matter of right.

    Issue(s)

    1. Whether the 1995 amendment to Correction Law § 851 (2) unconstitutionally delegated legislative power to the Governor in violation of the separation of powers doctrine?
    2. Whether the 1995 amendment to Correction Law § 851 (2) is invalid because it lacks appropriate standards for the Governor’s exercise of the delegated power?

    Holding

    1. No, because the Legislature set the overall policy regarding temporary release programs, and the delegation to the Governor was consistent with that policy.
    2. No, because the statute explicitly directs that additional regulation of inmate participation in temporary release programs is to be “guided by consideration for the safety of the community and the welfare of the inmate.”

    Court’s Reasoning

    The Court of Appeals reasoned that the Legislature is free to delegate rulemaking authority to the executive branch, including the Governor, as long as the Legislature articulates a basic policy framework. The Court cited Bourquin v Cuomo, 85 NY2d 781, 785, stating that executive rulemaking may entail some policy selectivity without offending the separation of powers doctrine, as long as the basic policy choices have been made by the Legislature. The Court found that Correction Law § 852 (1) provided sufficient guidance, directing the Commissioner of Correctional Services to consider community safety and inmate welfare when implementing temporary release programs. The court found it of no moment that the articulation of general policy was directed toward the Commissioner of Correctional Services and not reiterated when the Governor was given similar rulemaking authority. The court referenced Clark v Cuomo, 66 NY2d 185, to support this idea. The court also relied on Touby v United States, 500 US 160, where the Supreme Court upheld a congressional delegation to the Attorney General, noting that the separation of powers doctrine focuses on the distribution of power among the branches, not within a single branch.

    Regarding the lack of specific standards, the Court held that the requirement to consider community safety and inmate welfare was sufficient. The Court compared this standard to the one upheld in Matter of Big Apple Food Vendors’ Assn. v Street Vendor Review Panel, 90 NY2d 402, 407. The court stated: “The community safety criterion here falls well within the parameters of our holding in Matter of Big Apple Food Vendors’ Assn. v Street Vendor Review Panel concerning the adequacy of general legislative standards for administrative or executive action or rulemaking, and of our earlier precedents on that subject.”

  • Bourquin v. Cuomo, 85 N.Y.2d 781 (1995): Executive Orders and Separation of Powers

    Bourquin v. Cuomo, 85 N.Y.2d 781 (1995)

    An executive order does not violate the separation of powers doctrine if it implements a broad legislative policy without creating new policy or usurping legislative prerogatives.

    Summary

    This case addresses the constitutional limits of executive power in New York State. The Court of Appeals held that Governor Cuomo’s Executive Order creating the Citizens’ Utility Board (CUB) did not violate the separation of powers doctrine. The Court reasoned that the Executive Order was consistent with existing legislative policy to protect consumer interests and promote citizen participation in utility matters, and it did not create new policy or usurp legislative authority. The CUB was designed to better implement existing policy, which falls within the Governor’s executive authority.

    Facts

    Governor Mario Cuomo issued Executive Order No. 141, creating the Citizens’ Utility Board (CUB), a private, non-profit organization to represent residential utility customers before the Public Service Commission. The Executive Order allowed the CUB access to state agency mailings to disseminate information and solicit memberships. The CUB was required to reimburse the agencies for any increased postage costs.

    Procedural History

    Pierre Bourquin and other non-profit corporations challenged the Executive Order in Supreme Court, arguing it violated the separation of powers doctrine. The Supreme Court dismissed the complaint, upholding the Executive Order. The Appellate Division reversed, declaring the Executive Order unconstitutional because it exceeded stated legislative policy. The defendants appealed to the Court of Appeals.

    Issue(s)

    Whether the Governor’s Executive Order No. 141, creating the Citizens’ Utility Board (CUB), violated the principle of separation of powers under the New York State Constitution.

    Holding

    No, because the Executive Order was consistent with the broad legislative policy of protecting consumer interests and promoting citizen participation in utility matters, and it did not create new policy or usurp legislative authority.

    Court’s Reasoning

    The Court of Appeals emphasized that while the separation of powers doctrine requires the Legislature to make critical policy decisions and the executive branch to implement them, this separation is not absolute. The Court cited Clark v. Cuomo, emphasizing the necessity of some overlap between the branches and the flexibility afforded to the Governor in enforcing legislative policy.

    The Court found that Executive Order No. 141 was analogous to the Executive Order upheld in Clark v. Cuomo. In both cases, the Governor created an entity (the CUB and the Voter Registration Task Force, respectively) to further a broad legislative goal (protecting consumers and promoting voter registration, respectively). The Court stated, “[I]t is only when the Executive acts inconsistently with the Legislature, or usurps its prerogatives, that the doctrine of separation is violated.” Clark v. Cuomo, 66 N.Y.2d at 189.

    The Court distinguished the case from those where Executive Orders were struck down because they contained detailed policy directives. Executive Order No. 141 merely created a procedural mechanism to better implement existing legislative policy. The Court also noted that the Legislature’s failure to pass similar legislation did not indicate legislative disapproval.

    The Court concluded that the Executive Order did not formulate specific policy, but provided a means to better represent residential utility customers whose interests were not being adequately addressed by existing agencies. Creating a new administrative mechanism to implement legislative policy does not offend the Constitution.

  • Clark v. Cuomo, 66 N.Y.2d 186 (1985): Executive Power to Facilitate Voter Registration

    Clark v. Cuomo, 66 N.Y.2d 186 (1985)

    The Executive branch has the power to implement a plan to facilitate voter registration by making registration forms and assistance available at State agencies, as long as it does not usurp legislative prerogatives or act inconsistently with existing legislation.

    Summary

    This case addresses the legality of Executive Order No. 43, issued by Governor Cuomo, which established a voter registration program in state agencies. The program aimed to increase voter participation by making registration forms available and providing assistance at agencies with public contact. The Republican State Chairman challenged the order, arguing it violated the separation of powers and a constitutional provision regarding bipartisan representation on election boards. The Court of Appeals upheld the executive order, finding that it implemented existing legislative policy to encourage voter participation, but also upheld an injunction against providing receptacles for completed forms in agency offices.

    Facts

    Governor Cuomo issued Executive Order No. 43, creating a voter registration program in state agencies. The program mandated agencies to provide voter registration forms and staff assistance. Staff were required to maintain strict neutrality regarding party enrollment. The Voter Registration Task Force was created to oversee the program’s implementation. Agencies made forms available and posted signs about voter registration. Completed forms could be mailed by the applicant or placed in receptacles for pickup by the local Board of Elections.

    Procedural History

    The Republican State Chairman filed suit seeking declaratory and injunctive relief, arguing the order was unconstitutional. Special Term granted a preliminary injunction, but the Appellate Division reversed. The Court of Appeals initially affirmed the reversal. After a trial, Trial Term declared the executive order unconstitutional. The Appellate Division reversed again, declaring the order constitutional but enjoining the use of receptacles for completed forms at agency locations. Both parties appealed to the Court of Appeals.

    Issue(s)

    1. Whether Executive Order No. 43 violates the constitutional principle of separation of powers by infringing upon the legislature’s power to establish a system of voter registration?

    2. Whether Executive Order No. 43 violates Article II, Section 8 of the New York Constitution by creating a board or officer charged with registering voters without ensuring bipartisan representation?

    3. Whether the Appellate Division exceeded the scope of its equitable powers by enjoining the provision of receptacles for completed voter registration forms at agency locations?

    Holding

    1. No, because the executive order implements existing legislative policy to encourage voter participation and does not usurp legislative prerogatives.

    2. No, because the executive order is not a law and the personnel implementing it do not actually register voters.

    3. No, because the injunction was a proper exercise of equitable power to prevent the potential for abuse by ensuring that completed voter registration forms are not in the custody of agency personnel.

    Court’s Reasoning

    The Court reasoned that the separation of powers doctrine does not prohibit all overlap between governmental branches. The Executive branch has the power to enforce legislation and has great flexibility in determining methods of enforcement. Executive Order No. 43 did not violate the separation of powers because the Legislature had already declared its policy to encourage broad voter participation (Election Law § 3-102(13); § 5-210(2)). The order simply facilitated the distribution and completion of forms, which is consistent with the legislative policy. The Court distinguished this case from Rapp v. Carey, where the executive order reached far beyond existing legislation and set state policy, which is a legislative function. The court stated, “It is only when the Executive acts inconsistently with the Legislature, or usurps its prerogatives, that the doctrine of separation is violated.”

    Regarding Article II, Section 8, the Court held that this provision only applies to laws and bodies directly involved in registering voters, distributing ballots, or counting votes. Executive Order No. 43 is not a law, and the state agency personnel do not register voters. The Court acknowledged that a “but for” analysis could argue the program does register voters because the critical stage of registration could not be reached unless someone supplied the forms and helped registrants fill them out. However, the Court reasoned that such an interpretation would preclude all private voter registration drives and thus be completely contrary to the expressed legislative policy of encouraging as widespread voter registration as possible.

    The Court upheld the injunction against providing locked receptacles for completed registration forms. While it appeared the program preferred local Boards of Election to have sole custody of the keys to the boxes, this preference was often not followed. The court stated: “The potential for mischief when the key to the box, and the transportation of its contents to Board offices, are the responsibility of agency personnel, is obvious. Less obvious, but in our view also infused with both the perception of and potential for abuse, is the presence of the locked receptacles even in other circumstances.”

  • George v. Goldin, 64 N.Y.2d 95 (1984): Establishing Irreparable Harm for Preliminary Injunctions

    George v. Goldin, 64 N.Y.2d 95 (1984)

    A preliminary injunction will not be issued unless the plaintiff demonstrates a failure of proof of irreparable injury if the injunction is not granted.

    Summary

    This case concerns the denial of a preliminary injunction against the implementation of a New York State voter registration program. The plaintiff sought to halt the program, arguing it violated constitutional and statutory provisions. The Court of Appeals affirmed the Appellate Division’s decision to deny the preliminary injunction, holding that the plaintiff failed to provide sufficient proof of irreparable harm that would result from the program’s implementation. The court emphasized that encouraging voter registration, in itself, does not constitute an injury. Injury would occur only if the program was implemented in a discriminatory manner or involved duress, which the plaintiff failed to demonstrate.

    Facts

    The Governor issued Executive Order No. 43, which promulgated a “State Program for Voter Registration.” The plaintiff instituted an action seeking injunctive and declaratory relief, challenging the program. The plaintiff sought a preliminary injunction to prevent the defendants from implementing the voter registration program. The plaintiff argued that the program violated the New York Constitution and Election Law.

    Procedural History

    Special Term issued a preliminary injunction, enjoining the defendants from implementing the voter registration program. The Appellate Division reversed the Special Term’s order and denied the plaintiff’s motion for a preliminary injunction. The Appellate Division granted the plaintiff permission to appeal to the Court of Appeals, certifying the question of whether the Appellate Division erred in reversing the Special Term’s order.

    Issue(s)

    Whether the Appellate Division erred as a matter of law in reversing the order of Special Term and denying the plaintiff’s motion for a preliminary injunction.

    Holding

    No, because the plaintiff failed to provide sufficient proof of irreparable injury that would result from the implementation of the voter registration program.

    Court’s Reasoning

    The Court of Appeals based its decision on the principle that a showing of irreparable injury is a prerequisite for the issuance of a preliminary injunction. The court found that the plaintiff failed to demonstrate any irreparable injury that would result from the voter registration program. The court reasoned that simply encouraging voter registration does not constitute an injury. The court acknowledged that a legally cognizable injury might occur if the program was implemented in a discriminatory manner (e.g., based on geography, demographics, or party enrollment) or if it involved duress or other improper methods. However, the court emphasized that the plaintiff did not present any evidence of such discrimination or improper methods. The court stated, “Of course, the implementation of an informational and promotional program by the agencies of government which would lead to the voluntary registration of additional voters would not of itself result in injury to plaintiff.” The court also noted that the plaintiff failed to demonstrate that the program fell within the scope of section 8 of article II of the Constitution or section 5-210 (subd 6, par [a]) of the Election Law, which concern bipartisan participation in voter registration. Therefore, the plaintiff could not claim injury based on the alleged denial of bipartisan participation. Because the plaintiff failed to demonstrate a risk of irreparable harm, the Court of Appeals affirmed the denial of the preliminary injunction.

  • Under 21 v. City of New York, 65 N.Y.2d 344 (1985): Executive Overreach and Legislative Authority in Municipal Contracting

    Under 21 v. City of New York, 65 N.Y.2d 344 (1985)

    An executive order that mandates a specific percentage of city contracts to be awarded to a particular category of business, without specific legislative authorization, constitutes an unlawful usurpation of legislative power.

    Summary

    This case addresses the separation of powers between the executive and legislative branches in New York City. The Mayor issued an executive order requiring that 10% of city construction contracts be awarded to “locally based enterprises” (LBEs). Trade associations challenged the order. The court held that the Mayor exceeded his authority by creating a program that mandated preferential treatment for a specific group without explicit legislative authorization. The court emphasized that while the Mayor has broad executive powers, he cannot legislate policy, particularly regarding the allocation of public contracts, without a specific delegation of such power from the City Council.

    Facts

    In an effort to stimulate economic development in depressed areas of New York City, the Mayor issued Executive Order No. 53. The order mandated that city agencies ensure that at least 10% of the total dollar amount of construction contracts be awarded to Locally Based Enterprises (LBEs). LBEs were defined as businesses with gross receipts of $500,000 or less that either earned a substantial amount of their income in an economic development area or employed a substantial number of economically disadvantaged persons. Seventeen trade associations challenged the legality of the order.

    Procedural History

    The plaintiffs, trade associations, filed a declaratory judgment action seeking to invalidate the Executive Order. The defendants, the Mayor and the City of New York, moved to dismiss for failure to state a cause of action. The Special Term granted the motion to dismiss. The Appellate Division reversed, declaring the order and its regulations unconstitutional, unlawful, and unenforceable. The case then went to the New York Court of Appeals.

    Issue(s)

    Whether the Mayor of the City of New York, through an executive order, can lawfully mandate that a specific percentage of all construction contracts be awarded to “locally based enterprises” without specific legislative authorization.

    Holding

    No, because the executive’s action constitutes an unlawful usurpation of legislative power in the absence of a specific delegation of that power from the legislature.

    Court’s Reasoning

    The court emphasized the separation of powers doctrine, noting that the City Council holds legislative power in New York City, while the Mayor is the chief executive responsible for implementing and enforcing legislative pronouncements. The Mayor cannot prescribe a remedial device not embraced by the City Council’s policy. The court relied on precedent, citing Matter of Fullilove v. Beame and Matter of Broidrick v. Lindsay, where executive actions establishing affirmative action plans were struck down for exceeding executive authority. The court stated, “Where, as here, the executive adopts a plan specifying that a certain percentage of city construction contracts are to be allotted to a particular group or category of business enterprise, he has gone beyond his function of implementing general Charter-conferred powers. Such action constitutes an exercise of legislative power.” The court emphasized that the legislature must specifically delegate the power to mandate awards of construction contracts to a particular group, along with adequate guidelines and standards. Because no such specific legislative authority was granted to the Mayor, the executive action was deemed an unlawful usurpation of the legislative function. The court acknowledged the Mayor’s broad powers under the New York City Charter, including the power to enter into contracts. However, it clarified that the general power to contract does not provide a basis for creating a remedial plan absent specific legislative authorization. The court concluded that “However desirable the ostensible purpose may be, there is simply no legislative authority permitting the Mayor to unilaterally initiate this type of program or the means for effectuating it.”

  • Rapp v. Carey, 44 N.Y.2d 157 (1978): Limits on Executive Power Absent Legislative Authorization

    Rapp v. Carey, 44 N.Y.2d 157 (1978)

    The Governor of New York cannot, through executive order alone, mandate financial disclosure and restrictions on political/business activities for state employees without explicit or implied authorization from the Constitution or statutes.

    Summary

    This case concerns the extent of the Governor’s executive power in New York. State employees challenged Governor Carey’s Executive Order No. 10.1, which required extensive financial disclosures and restricted political and business activities for many state employees. The Court of Appeals affirmed the lower courts’ decisions, holding that the Governor exceeded his authority by issuing an executive order that effectively created new state policy without legislative approval. The Court emphasized the separation of powers doctrine and the need for legislative action to enact broad policy changes, especially those impacting a wide range of state employees.

    Facts

    Governor Carey issued Executive Order No. 10.1, requiring a large segment of State employees to file detailed personal financial statements with the Board of Public Disclosure. The order applied to employees earning over $30,000 annually or holding managerial/confidential positions in executive departments/agencies appointed by the Governor. The order also restricted these employees from holding political party office and regulated their outside employment/activities. Covered employees were directed to submit financial disclosure statements.

    Procedural History

    Affected state employees brought an action challenging the constitutionality of the Executive Order. The Special Term granted summary judgment to the plaintiffs, declaring the order unconstitutional and enjoining its enforcement. The Appellate Division unanimously affirmed this decision, leading to the appeal to the New York Court of Appeals.

    Issue(s)

    Whether the Governor of New York, under the State Constitution, may mandate, via executive order and without legislative authorization, that state employees file financial disclosure statements and abstain from political and business activities not prohibited by statute.

    Holding

    No, because neither the Constitution nor statutes grant the Governor express or implied authority to impose such requirements unilaterally. Furthermore, the order does not merely implement existing conflict-of-interest legislation but instead creates new policy, a power reserved for the Legislature.

    Court’s Reasoning

    The Court emphasized the principle of separation of powers, noting that the Governor’s power is limited to those powers delegated by the Constitution and statutes. While the Governor possesses broad executive power, including the power to oversee state departments and investigate their affairs (Executive Law, § 6), this does not extend to creating new policy without legislative approval. The Court distinguished Executive Order No. 10.1 from previous executive actions, stating, “But, until 1950, none of those orders had any rule-making component.”

    The Court rejected the argument that the executive order was merely an implementation of Section 74 of the Public Officers Law (the state’s code of ethics). The court stated, “In short, this order is not an implementation of section 74; it is a nullification of it — a nullification, however benevolent in purpose, without benefit of legislative action.” It emphasized that the Legislature deliberately created a code of ethics with broad standards, intending that conflicts of interest be resolved on a case-by-case basis, rather than through blanket prohibitions.

    The court also noted the problematic restriction on political activities which “involves a broad question of policy, hardly resolvable by other than the representatively elected lawmaking branch of government, the Legislature.”

    The Court distinguished the out-of-state cases cited by the defendants, noting that they were based on different constitutional or statutory provisions. The Court concluded by stating, “On no reasonable reading of the Constitution, the Executive Law, or the relevant provisions of the Public Officers Law can the Governor’s exercise of legislative power, exemplified in the executive order, be sustained.” The Court explicitly references the importance of preventing any single branch of government from assuming powers belonging to another, quoting People v. Tremaine, “Rather should we be alive to the imperceptible but gradual increase in the assumption of power properly belonging to another department.”