Pataki v. New York State Assembly

Peters, J. (dissenting).

We respectfully dissent. In our view, because plaintiff affirmatively approved the subject legislation, he lacks standing and, thus, this Court is precluded from reaching the merits of his constitutional claims. Had plaintiff vetoed the subject legislation, he would have had standing to challenge it if his veto had been overridden by the Legislature.

We begin our legal analysis with the well-established precept *79that one claiming standing must demonstrate an injury in fact, that is, “an actual legal stake in the matter being adjudicated [which] ensures that the party . . . has some concrete interest in prosecuting the action which casts the dispute ‘in a form traditionally capable of judicial resolution’ ” (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772 [1991], quoting Schlesinger v Reservists Comm. to Stop the War, 418 US 208, 220-221 [1974]; see New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211-212 [2004]). Consideration of this essential principle advances the policy of judicial self-restraint, particularly when dealing with constitutional separation of powers. The requirement of injury in fact forecloses an adjudication of grievances that are best resolved by the legislative and executive branches of government, it supports the prohibition on advisory opinions (see Community Bd. 7 of Borough of Manhattan v Schaffer, 84 NY2d 148, 155 [1994]) and it cautions that even matters of “vital public concern” (Society of Plastics Indus. v County of Suffolk, supra at 769) will not alone confer standing (see Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 812-815 [2003], cert denied — US —, 124 S Ct 570 [2003]; Society of Plastics Indus. v County of Suffolk, supra at 773; Rudder v Pataki, 246 AD2d 183, 186 [1998], affd 93 NY2d 273 [1999]). While standing must not be denied where to do so would erect an “impenetrable barrier” (Boryszewski v Brydges, 37 NY2d 361, 364 [1975]) to judicial review (see Saratoga County Chamber of Commerce v Pataki, supra at 814), we find no such barrier under the particular facts of this case.

The historical complexion of standing was changed by the United States Supreme Court in its landmark decision of Raines v Byrd (521 US 811 [1997]).1 In addressing the standing question, the Supreme Court emphasized that the standing inquiry must be “especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of . . . [government was unconstitutional” (id. at 819-820). In Raines, the plaintiffs’ alleged injury was found to constitute only an abstract institutional harm rather than the loss of a private right to which they were personally entitled (id. at 820-822). Specifically, the Supreme Court *80found the institutional harm alleged to be “wholly abstract and widely dispersed” (id. at 829). The Supreme Court did, however, reaffirm that the injury articulated in Coleman v Miller (307 US 433 [1939]), where the legislator-plaintiffs’ votes had been “completely nullified” (Raines v Byrd, supra at 823),2 was sufficient to confer standing.

This heightened approach toward standing, signifying the Judiciary’s increased reluctance to “meddle in the internal affairs of the [executive and] legislative branch[es]” (Moore v United States House of Representatives, 733 F2d 946, 956 [1984], cert denied 469 US 1106 [1985]), is widely followed by the federal courts.3 Moreover, application of the Raines precepts is not limited to the legislative branch (see Gutierrez v Pangelinan, 276 F3d 539, 545-546 [2002], cert denied 537 US 825 [2002] [challenge to a governor’s standing]; Walker v Cheney, 230 F Supp 2d 51, 63-66 [2002] [challenge to the comptroller general’s standing]). Indeed, federal courts have not hesitated to apply Raines to challenges concerning the standing of private parties (see e.g. Schmier v United States Ct. of Appeals for Ninth Circuit, 279 F3d 817, 820-821 [2002]; Hoffman v Jeffords, 175 F Supp 2d 49, 55 [2001], affd 2002 WL 1364311, 2002 US App LEXIS 12495 [2002], cert denied 537 US 1108 [2003]; Keen v United States, 981 F Supp 679, 686-687 [1997]).

Our own Court of Appeals embraced the Raines precepts in Silver v Pataki (96 NY2d 532 [2001]). In matters involving legislator standing, the Court found that the issues fall within one of three categories, namely, “lost political battles, nullification of votes [or] usurpation of power” (id. at 539). Only the latter two categories, if sufficiently demonstrated, will confer standing (see id.). We believe that the Raines/Silver analysis must be applied here and that the injury alleged fails to fall in either of those two categories.

In short, plaintiffs affirmative approval of the subject legislation prevents him from establishing that defendants’ conduct *81nullified an action taken by him, precluded him from discharging his duties or otherwise deprived him of the ability to “enforce a constitutional obligation integral to his . . . duties” (id. at 545 [Graffeo, J., dissenting]). On these facts, his role in the budgetary process was neither “stripped of its validity” (Raines v Byrd, 521 US 811, 824 n 7 [1997], supra; cf. Gutierrez v Pangelinan, 276 F3d 539, 545-546 [2002], supra; Romer v Colorado Gen. Assembly, 810 P2d 215, 218-220 [Colo 1991]) nor “ ‘virtually held for naught’ ” (Raines v Byrd, supra at 822-823, quoting Coleman v Miller, 307 US 433, 438 [1939], supra). Rather, plaintiffs approval of the budget has been given “full effect” (Raines v Byrd, supra at 824). His signing of these bills into law was not a trivial or irrelevant act, but an affirmation of his role as Governor (see NY Const, art IV, § 7; Matter of Moran v La Guardia, 270 NY 450, 453 [1936]; Matter of Doyle v Hofstader, 257 NY 244, 261 [1931]; Matter of Koenig v Flynn, 234 App Div 139, 140-141 [1931], affd 258 NY 292 [1932], affd 285 US 375 [1932]). As noted in Matter of Koenig v Flynn (supra at 141): “The Governor has power to act in respect to legislation. In reviewing an act passed by both houses, when presented to him, he has before him the questions of the constitutionality, the expediency of, and the necessity for the act. If he disapproves, he must state his objections thereto.”

Moreover, plaintiff was not without effective countermeasures (see Kucinich v Bush, 236 F Supp 2d 1, 9 [2002]; see also Raines v Byrd, supra at 829; Saratoga County Chamber of Commerce v Pataki, 275 AD2d 145, 156 [2000]). He could have, for example, exercised his veto or negotiated his desired result in the legislative arena. Instead, he approved the bills and thereafter commenced this action (see Chenoweth v Clinton, 181 F3d 112, 116 [1999]; Kucinich v Bush, supra at 9-11; Silver v Pataki, 96 NY2d 532, 540 [2001], supra). While the majority relies on Winner v Cuomo (176 AD2d 60 [1992]) for the proposition that plaintiff did not have to reject the legislation before resorting to the Judiciary, we believe that this reliance is misplaced, particularly since Winner predated Raines. The plaintiffs in Winner were challenging the timeliness, not substance, of the budget legislation; thus, we believe that its holding that it was unnecessary for the Legislature to first reject the Governor’s submissions before resorting to the Judiciary is easily distinguished.4

*82By affirmatively approving the legislation, plaintiff deprived himself of standing to challenge the constitutionality of the acts of the Legislature. As a result, we believe that this Court is precluded from addressing the merits of this dispute.

Crew III, J.P., and Spain, J., concur with Lahtinen, J.; Peters and Carpinello, JJ., dissent in a separate opinion by Peters, J.

Ordered that the order is affirmed, without costs.

. In Raines, standing was denied to a group of federal legislators who alleged injury from Congress’s passage, over their objection, of the Line Item Veto Act. At issue was the plaintiffs’ claim that the Act unconstitutionally expanded the President’s power and diminished that of Congress by authorizing the President to cancel or repeal provisions that had already been signed into law (see Raines v Byrd, supra at 818-820).

. Unlike Coleman v Miller (supra), the Raines court found that no nullification had occurred since the plaintiffs were unable to demonstrate that their votes against the Line Item Veto Act would have been sufficient to defeat its passage (see Raines v Byrd, supra at 826, 829-830).

. (See Baird v Norton, 266 F3d 408, 411-413 [2001]; Campbell v Clinton, 203 F3d 19, 22-23 [2000], cert denied 531 US 815 [2000]; Chenoweth v Clinton, 181 F3d 112, 115-116 [1999], cert denied 529 US 1012 [2000]; Planned Parenthood of Mid-Missouri & E. Kansas v Ehlmann, 137 F3d 573, 577-578 [1998]; Kucinich v Bush, 236 F Supp 2d 1, 4-11 [2002]; see generally Note, New Law of Legislative Standing, 54 Stan L Rev 205 [2001].)

. Plaintiffs similar reliance on People v Tremaine (281 NY 1 [1939]) for the proposition that there was no need to veto the legislation is also misplaced.

*82The constitutional challenge in that case, which did not discuss standing, was brought by the State Comptroller, not the Governor. Moreover, the Governor had not signed or otherwise acted on the legislation in dispute, but had passively allowed it to become law.

Additionally, we do not disagree with the majority’s assertion that the courts are not always foreclosed from considering the merits of interbranch constitutional disputes. We note, however, that the cases upon which the majority relies for that proposition were not concerned with standing but, rather, the applicability of the political question doctrine—a concept that is distinctly different from standing (see New York State Bankers Assn. v Wetzler, 81 NY2d 98 [1993]; Saxton v Carey, 44 NY2d 545 [1978]).