Godfrey v. Spano

OPINION OF THE COURT

Pigott, J.

Plaintiff taxpayers challenge two directives by executive and county officials that recognize out-of-state same-sex marriages for purposes of public employee health insurance coverage and other benefits. We conclude that plaintiffs’ actions were properly dismissed.

I.

Four states—Massachusetts, Connecticut, Iowa and Vermont—now issue marriage licenses to same-sex couples, without any residency requirement, as does Canada.1 As a consequence, many same-sex couples who are residents of New York State have traveled to those jurisdictions and married. In light of *368these developments, several state and county officials have recently issued general directives relating to the recognition of those out-of-state same-sex marriages.2 The present actions involve facial challenges to the legality of two of these directives, namely a Policy Memorandum issued by the Commissioner of the New York State Department of Civil Service and an Executive Order issued by the County Executive of the County of Westchester.

In June 2006, defendant Andrew J. Spano, Westchester County Executive, citing opinion letters of the Attorney General and the Comptroller,3 issued an Executive Order, with the following direction:

“WHEREAS, the County of Westchester has long provided health benefits to the qualifying domestic partners of its members; and
“WHEREAS, in September of 2002, the County of Westchester, in seeking to support all caring, committed and responsible family units, enacted its Domestic Partnership Registry Law, which allowed unmarried couples in committed relationships and who share common households to be able to register those relationships formally and to obtain a Certificate of Domestic Partnership, which serves as an independent verification of such partnership, and which may, in certain circumstances, be a condition
*369precedent to receipt of benefits by such partners;
“WHEREAS, Section 110.11 of the Laws of Westchester County places the responsibility to supervise, direct and control, subject to law, the administrative services and departments of the County upon the County Executive; . . .
“NOW, THEREFORE, I, ANDREW J. SPANO, County Executive of the County of Westchester, in light of the aforementioned and in accordance with my statutory duties, do hereby order and direct each and every department, board, agency, and commission of the County of Westchester under my jurisdiction to recognize same sex marriages lawfully entered into outside the State of New York in the same manner as they currently recognize opposite sex marriages for the purposes of extending and administering all rights and benefits belonging to these couples, to the maximum extent allowed by law.” (Westchester County Executive Order No. 3 of 2006.)

In September 2006, defendant Nancy G. Groenwegen, President of the New York State Civil Service Commission and Commissioner of the New York State Department of Civil Service, issued an Employee Benefits Division Policy Memorandum on “[Recognition of the spousal relationship in marriages between partners of the same sex conducted in jurisdictions where they may be legally performed,” effective May 1, 2007. The memorandum explained that the State had provided eligibility for employee benefits, including New York State Health Insurance Program benefits, to the domestic partners of state employees, including same-sex partners, since the mid-1990s. The coverage, while mandatory for the State itself, was discretionary for Participating Agencies (PAs) and Participating Employers (PEs). As a result, the State had been sued by an employee of a school district that had opted not to extend health insurance coverage to domestic partners (see Funderburke v New York State Dept. of Civ. Serv., 13 Misc 3d 284 [Sup Ct, Nassau County 2006], vacated 49 AD3d 809 [2d Dept 2008]). The Department of Civil Service then

“determined that for purposes of benefits eligibility under NYSHIP and all other benefit plans *370administered by its Employee Benefits Division, it would recognize as spouses partners in same sex marriages legally performed in other jurisdictions.
“Effective May 1, 2007, the Department of Civil Service recognizes, as spouses, the parties to any same sex marriage performed in jurisdictions where that marriage is legal. This policy applies to all health benefit plans provided under NYSHIiJ including the Empire Plan, the Student Employees Health Plan and HMOs, and all other benefits administered by the Employee Benefits Division, including The New York State Dental and Vision Plans, the M/C Life Insurance Program and NYPERL. Recognition of these spouses is mandatory for the State and all other entities participating in NYSHIfi including all PAs and PEs.” (Employee Benefits Division Policy Memorandum No. 129rl.)

II.

In September 2006, plaintiffs Margaret Godfrey, Rosemarie Jarosz and Joseph Rossini, residents of and taxpayers in Westchester County, commenced an action against County Executive Andrew J. Spano, alleging two causes of action. In their first cause of action, brought pursuant to General Municipal Law § 51, plaintiffs claim that, by issuing Executive Order No. 3, Spano illegally legislated in the areas of marriage and domestic relations in a manner inconsistent with the New York State Constitution and state law. In their second cause of action, plaintiffs allege that Spano violated New York State Constitution, article IX, § 2 (c) and Municipal Home Rule Law § 10 (1) (i). Plaintiffs seek a declaratory judgment that Executive Order No. 3 is “illegal, ultra vires, unconstitutional and otherwise null and void” and a permanent injunction preventing the implementation or effectuation of the Executive Order.

Michael Sabatino and Robert Voorheis, a same-sex couple who married in Canada, were permitted to intervene.4 Spano and the intervenors moved to dismiss plaintiffs’ complaint under CPLR 3211 (a) (7).

Supreme Court granted the motions to dismiss and declared that Executive Order No. 3 is “a valid exercise of the County *371Executive’s power, not an illegal act, and does not violate the State Constitution or the Municipal Home Rule Law” (15 Misc 3d 809, 818 [2007]). Plaintiffs appealed, and the Appellate Division, Second Department, unanimously affirmed (57 AD3d 941 [2008]).

In regard to the Godfrey plaintiffs’ first cause of action, the Appellate Division held that the Executive Order was not illegal, because it “requires that same-sex marriages be recognized to ‘the maximum extent allowed by law.’ By its terms, therefore, the Executive Order can never require recognition of such a marriage where it would be outside the law to do so.” (Id. at 942-943.) In regard to the second cause of action, the court held that plaintiffs had failed to demonstrate the required “personal interest in the dispute beyond that of any taxpayer” (id. at 943), so that they lacked standing.

In the other case before us, plaintiffs Kenneth J. Lewis, Denise A. Lewis, Robert C. Houck, Jr., and Elaine A. Houck, New York State taxpayers represented by the same Alliance Defense Fund representing the plaintiffs in the case against Spano, commenced an action against the New York State Department of Civil Service and its Commissioner, Nancy G. Groenwegen, in May 2007. The Lewis plaintiffs allege that defendants violated State Finance Law § 123-b (first cause of action), the separation of powers doctrine (second cause of action), New York State Constitution, article VII, § 8 (third cause of action), and State Administrative Procedure Act § 202 and New York State Constitution, article IV § 8 (fourth cause of action). Plaintiffs seek a declaratory judgment that defendants’ recognition of out-of-state same-sex marriages “is illegal, unconstitutional, ultra vi-res, void and constitutes an illegal expenditure of State funds” and a permanent injunction directing defendants to cease and desist from recognizing out-of-state same-sex marriages.

Peri Rainbow and Tamela Sloan, a same-sex couple who married in Canada, were permitted to intervene. Defendants and intervenors moved to dismiss plaintiffs’ complaint under CPLR 3211 (a) (7). Plaintiffs cross-moved for summary judgment.

Supreme Court denied the Lewis plaintiffs’ cross motion for summary judgment, searched the record and granted summary judgment to defendants, and declared that “[t]he policy memorandum issued by the New York State Department of Civil Service Employee Benefits Division in which it recognized, as spouses, the parties to any same sex marriage, performed in *372jurisdictions where such marriage is legal, is both lawful and within its authority” (NYLJ, Mar. 18, 2008, col 1, 2008 NY Misc LEXIS 1623, *7). The court relied on Martinez v County of Monroe (50 AD3d 189 [2008], Iv dismissed 10 NY3d 856 [2008]), a decision of the Appellate Division, Fourth Department, holding that a Canadian same-sex marriage was entitled to recognition in New York under the common-law marriage recognition rule.

The Appellate Division, Third Department, affirmed Supreme Court’s order in a divided opinion (60 AD3d 216 [2009]). The Appellate Division majority concluded that the common-law marriage recognition rule warranted dismissal of plaintiffs’ first cause of action alleging an unlawful disbursement of public funds (id. at 222-223). In regard to plaintiffs’ second cause of action, alleging violation of the separation of powers doctrine, the Appellate Division held that defendants’ “recognition of same-sex spouses falls squarely within the scope of the policy expressed in Civil Service Law §§ 161 and 164 to provide benefits to the spouses and dependent children of state employees” (id. at 223). The majority further rejected plaintiffs’ claim that the Department of Civil Service violated New York Constitution, article VII, § 8 (1) by using public funds to fund the private agendas of individuals and organizations seeking marriage equality in New York. “Inasmuch as the Department’s policy furthers a valid governmental purpose to benefit public employees, it cannot fairly be said that it is invalid as promoting a private undertaking” (id. at 224). Finally, the court held that “the determination to recognize same-sex marriages is not invalid for the Department’s failure to comply with the formal rule-making procedures of the State Administrative Procedure Act because the determination is an interpretative statement that is merely explanatory” (id.).

Two Justices wrote a separate concurring opinion. They would have affirmed Supreme Court’s order on a narrower ground, pointing out that “[t]he Legislature has vested the President of the Civil Service Commission with broad discretion in defining, for purposes of health insurance coverage for state employees, the terms spouse and dependent children” (id. at 224 [Lahtinen and Malone, Jr., JJ., concurring]).

We granted plaintiffs in both cases leave to appeal (12 NY3d 705 [2009]), and we now affirm both Appellate Division orders.

*373III.

The Godfrey plaintiffs have abandoned their second cause of action, containing allegations against Spano based on New York State Constitution, article IX, § 2 (c) and Municipal Home Rule Law § 10 (1) (i) (see brief of plaintiffs-appellants Margaret Godfrey et al., at 3). They rest their case on the claim, made pursuant to General Municipal Law § 51, that Spano illegally legislated in the areas of marriage and domestic relations.

A taxpayer suit under General Municipal Law § 51 “lies only when the acts complained of are fraudulent, or a waste of public property in the sense that they represent a use of public property or funds for entirely illegal purposes” (Mesivta of Forest Hills Inst, v City of New York, 58 NY2d 1014, 1016 [1983] [internal quotation marks omitted], quoting Kaskel v Impellitteri, 306 NY 73, 79 [1953]). Because plaintiffs allege no fraud, their action succeeds only if they state a claim for illegal dissipation of municipal funds. Plaintiffs’ amended complaint contains the allegation that Executive Order No. 3 “has resulted and will continue to result in the illegal disbursement of County funds” by providing County-funded benefits to couples in same-sex marriages. Although on a motion to dismiss plaintiffs’ allegations are presumed to be true and accorded every favorable inference, conclusory allegations—claims consisting of bare legal conclusions with no factual specificity—are insufficient to survive a motion to dismiss (Caniglia v Chicago Tribune-N.Y. News Syndicate, 204 AD2d 233, 233-234 [1st Dept 1994]). Here, plaintiffs have not identified any specific impact that the Executive Order has had on any public employee or private individual in Westchester County. Even assuming the allegations in the Godfrey complaint to be true, plaintiffs fail to specify a circumstance where taxpayer funds were expended as a result of the Executive Order that would not have been expended in the absence of the order. We find this lack of specificity fatal to plaintiffs’ cause of action.

In support of his motion to dismiss, Executive Spano submitted an affidavit of the Commissioner of Finance for Westchester County, dated November 17, 2006. The Commissioner stated that he could think of “no instance where the County has expended funds or extended benefits in connection with [the] Executive Order.” That statement is unsurprising in that Westchester County already insured same-sex domestic partners and dependents of county employees before the Executive Order was issued, requiring only that applicants for domestic partner *374coverage have lived with their domestic partners in a committed financially interdependent relationship for at least a year. Indeed the Executive Order begins by acknowledging that “the County of Westchester has long provided health benefits to the qualifying domestic partners of its members.” Although the affidavit does not in itself warrant dismissal under CPLR 3211, because it does not establish conclusively that plaintiffs have no cause of action (see Lawrence v Graubard Miller, 11 NY3d 588, 595 [2008]; Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976]), it supports our judgment that the conclusory nature of plaintiffs’ allegations is more than a matter of inartful pleading.

We do not adopt the Second Department’s rationale for affirmance—that the Executive Order did not purport to change the law, because it included language directing recognition of same-sex couples “to the maximum extent allowed by law.” We find such language, which may appear either expansive or restrictive depending on the reader, ambiguous, and we would not encourage executive officials to try to insulate their orders from judicial review by this means. Nevertheless, because the Godfrey plaintiffs have failed to allege an unlawful expenditure of taxpayer funds, they have not stated a cognizable claim under General Municipal Law § 51. Consequently, we affirm the order of the Appellate Division, dismissing the Godfrey plaintiffs’ complaint.

IV

In the other matter, the Lewis plaintiffs have abandoned their third and fourth causes of action, containing claims based on New York State Constitution, article VII, § 8, State Administrative Procedure Act § 202, and New York State Constitution, article IV § 8 (see brief of plaintiffs-appellants Kenneth J. Lewis et al., at 3). The surviving claims invoke State Finance Law § 123-b and the separation of powers doctrine.

With respect to State Finance Law § 123-b, plaintiffs make conclusory allegations that defendants “are expending and will expend State funds and/or resources supplied from New York State tax revenue,” without claiming specific expenditures that would not otherwise have been incurred. While a taxpayer may bring suit under this statute to prevent the unlawful expenditure of state funds “whether or not such person is or may be affected or specially aggrieved” (State Finance Law § 123-b [1]), there must be some specific threat of an imminent expenditure. “[C]ourts have been inhospitable to plaintiffs who seek *375essentially to challenge nonfiscal activities by invoking the convenient statutory hook of section 123-b” (Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 813 [2003]). We note that the Department of Civil Service has offered New York State Health Insurance Program benefits to domestic partners since the mid-1990s. The State Finance Law claim of the Lewis plaintiffs fails to state a cause of action for the same reason that the General Municipal Law § 51 claim of the Godfrey plaintiffs fails.

Plaintiffs’ remaining cause of action, which alludes to the separation of powers doctrine, boils down to the claim that defendants acted “inconsistently with the Legislature’s pronouncements on spousal benefits.” Specifically, plaintiffs allege that defendants acted in violation of Civil Service Law § 164. The statute itself refutes plaintiffs’ claim.

Under Civil Service Law § 161 (1), the President of the Civil Service Commission is “authorized and directed to establish a health insurance plan for state officers and employees and their dependents.” Civil Service Law § 164 (1) provides that every state employee “shall be entitled to have his spouse and dependent children, as defined by the regulations of the president, included in the coverage upon agreeing to pay his contribution, if any, to the cost of such coverage for such dependents” (emphasis added). The statute thus expressly gives the President of the Civil Service Commission the authority to define “spouse.” Moreover, the statute does not restrict the President’s provision of health insurance to spouses and dependent children. The language is of entitlement, not restriction.

Furthermore, the legislative history supports the view that the President of the Civil Service Commission was deliberately given broad discretion to define who will qualify for coverage. Governor Harriman, commenting on the 1956 legislation that created the New York State Health Insurance Program, noted that “[i]t would not be practical to specify in legislation the precise type of coverage to be provided under a comprehensive health insurance plan. The law must make it possible for the best plan to be worked out in consultation with representatives of the employees affected.” (Governor’s Message to the Legislature, Feb. 16, 1956, 1956 NY Legis Ann, at 419.) The Director of the Division of Personnel Services of the Department of Civil Service at that time, Edward D. Meacham, testified before the Joint Legislative Committee on Health Insurance Plans that

*376“[d]etailed requirements as to eligibility for participation in the plan both as to employees and retirees are difficult to spell out in legislation. Such requirements might well be left to the determination of the administering agency within the general framework of the legislature. . . .
“The extent to which the plan should go in providing such dependency benefits should be left for determination in negotiating the contract. There are circumstances under which it would be desirable to provide coverage for dependents other than the employee’s spouse and dependent children . . . [T]he advantages and disadvantages would have to be carefully weighed by those participating in the plan before a final determination is met.” (Testimony of Edward D. Meacham, Feb. 22, 1956, Before the Joint Legislative Committee on Health Insurance Plans, 1956 NY Legis Doc No. 64, at 73-74.)

It is clear, therefore, both from the plain language of the statute and from the legislative history, that the Legislature intended to give the Department of Civil Service—guided of course by the collective bargaining process5—complete discretion to determine the limits of dependent coverage, provided that, at a minimum, spouses and dependent children were covered. There is no conflict between the Civil Service Law and the challenged Policy Memorandum issued by the Commissioner of the New York State Department of Civil Service. In sum, as the concurring Justices on the Third Department noted,

“[t]he practical effect of the determination here is to give an out-of-state document formalizing a same-sex relationship the same weight as the affidavit required to receive such benefits as a domestic partner, which is a narrow accommodation to state employees in an area where the Legislature has specifically accorded the Commission broad discretion” (60 AD3d at 224-225 [Lahtinen and Malone, Jr., JJ., concurring]).

We thus affirm the order of the Appellate Division, dismissing the Lewis complaint.

*377V

Because we can decide the cases before us on narrower grounds, we find it unnecessary to reach defendants’ argument that New York’s common-law marriage recognition rule is a proper basis for the challenged recognition of out-of-state same-sex marriages. We end by repeating what we said in Hernandez v Robles, expressing our hope that the Legislature will address this controversy; that it “will listen and decide as wisely as it can; and that those unhappy with the result—as many undoubtedly will be—will respect it as people in a democratic state should respect choices democratically made” (7 NY3d at 366).

Accordingly, in each case the order of the Appellate Division should be affirmed with costs.

. New Hampshire will begin issuing marriage licenses to same-sex couples effective January 1, 2010. Internationally, in addition to Canada, same-sex couples may legally marry in The Netherlands, Belgium, Spain, South Africa, Norway and Sweden.

. In Hernandez v Robles (7 NY3d 338 [2006]), we held that New York’s Domestic Relations Law restricts marriage to opposite-sex couples and that this limitation does not violate the New York State Constitution’s Equal Protection and Due Process Clauses. We concluded that our Constitution does not require that marriage licenses be granted to same-sex couples, and we expressed our hope that the participants in the controversy over same-sex marriage would address their arguments to our Legislature, and that the Legislature would decide the question whether same-sex couples should be permitted to marry in New York (see 7 NY3d at 366). We did not address the question of recognition of out-of-state same-sex marriages.

. The Solicitor General of New York issued an informal opinion letter in March 2004, on behalf of the Attorney General, concluding that, although New York’s Domestic Relations Law does not authorize same-sex marriages, “New York law presumptively requires that parties to such unions must be treated as spouses for purposes of New York law” (2004 Ops Atty Gen No. 2004-1, at 16 [Mar. 3, 2004]). The opinion relied on New York’s common-law marriage recognition rule as the basis for this conclusion. The Office of the State Comptroller issued a similar opinion letter in October 2004 indicating that “[t]he Retirement System will recognize a same-sex Canadian marriage in the same manner as an opposite-sex New York marriage, under the principle of comity.”

. Subsequently, the State Comptroller was permitted to intervene.

. The Department of Civil Service is obliged to implement terms of coverage reached in a collective bargaining agreement with a public employee union (Civil Service Law § 161-a [1]).