Supreme Court, Niagara County, March 12, 2020

Richard L. Brodsky, White Plains, for plaintiffs.

[*2]Phillips Lytle, LLP, Buffalo (Craig R. Bucki, Kenneth A. Manning and Samuel S. Borbor-Sawyer of counsel), for Assembly of the State of New York and another, defendants.

Cuti Hecker Wang, LLP, New York City (Eric J. Hecker and John R. Cuti of counsel), for New York State Senate and another, defendants.

Holwell Shuster & Goldberg, LLP, New York City (James M. McGuire and Daniel M. Horowitz of counsel), for Public Campaign Financing and Election Commission and others, defendants.

Letitia James, Attorney General, Albany (Chris Liberati-Conant of counsel), for State of New York, defendant.

Vandette Penberthy, LLP, Buffalo (Brittany L. Penberthy of counsel), for Douglas A. Kellner and another, as Commissioners of the Board of Elections of the State of New York, defendants.

O'Connell & Aronowitz, Albany (Michael Y. Hawrylchak and Cornelius D. Murray of counsel), for Kimberly Galvin, as Commissioner of the Public Campaign Financing and Election Commission, and another, defendants.

Brown & Weinraub, Albany (Jeffrey T. Buley of counsel), for David Previte, as Commissioner of the Public Campaign Financing and Election Commission, and another, defendants.

Barclay Damon, LLP, Buffalo (James P. Domagalski of counsel), for Peter S. Kosinski and another, as Commissioners of the Board of Elections of the State of New York, defendants.

Government Justice Center, Albany (Cameron J. Macdonald of counsel), amicus curiae.

By notice of motion, defendants Assembly of the State of New York; Speaker of the Assembly of the State of New York Hon. Carl E. Heastie; New York State Senate; Senate Majority Leader Hon. Andrea Stewart-Cousins; Public Campaign Financing and Election Commission; Mylan Denerstein, Jay Jacobs, Denora Getachew, John Nonna, Rosanna [*3]Vargas, Crystal Rodriguez and Henry Berger, as Commissioners of the Public Campaign Financing and Election Commission; State of New York; and Douglas A. Kellner and Andrew J. Spano, as Commissioners of the Board of Elections of the State of New York (hereinafter and collectively, the moving defendants), moved to dismiss the plaintiffs' complaint pursuant to various provisions of CPLR 3211. In response, defendants David Previte and Kimberly Galvin, as Commissioners of the Public Campaign Financing and Election Commission, Assembly Minority Leader Hon. William A. Barclay (replacing Brian Kolb) and Senate Minority Leader Hon. John J. Flanagan (hereinafter and collectively, the minority defendants) have cross-moved for summary judgment on their cross claims, which was adopted and joined in by defendants Peter S. Kosinski and Gregory P. Peterson, as Commissioners of the Board of Elections of the State of New York, and plaintiffs herein seeking a declaratory judgment, as a matter of law, that part XXX of the Laws of 2019, chapter 59, section 1 (hereinafter, the Session Law) is unconstitutional in all respects. In addition, the court granted the Government Justice Center's application for leave to participate in this proceeding as amicus curiae on December 10, 2019.

Previously, this case was originally assigned to the Honorable Richard C. Kloch, Sr. Judge Kloch held a preliminary conference on September 9, 2019, and a scheduling order was issued. Pursuant to the scheduling order, six defendants filed{**69 Misc 3d at 257} answers. The minority defendants filed answers with cross claims. The defendants, New York State Senate and Majority Leader of the Senate and Assembly of the State of New York and Speaker of the Assembly, in lieu of answers to the complaint, filed motions to dismiss pursuant to CPLR 3211. The case was reassigned to this court on October 1, 2019. On November 12, 2019, at the request of the plaintiffs and after notice to all parties was given, the court converted the motions to dismiss to motions for summary judgment pursuant to CPLR 3211 (c). Further, the prior scheduling order was amended to give the parties an opportunity to submit additional papers to develop an appropriate record. The parties submitted additional papers in support of their position, but no pleadings were amended by the plaintiffs nor did the moving defendants submit verified answers. The oral argument on the motions was rescheduled from November 12, 2019, to December 12, 2019.

Initially, the court finds that the Public Campaign Financing and Election Commission of the State of New York (hereinafter, the Commission) lacks the capacity to be sued and, therefore, must be dismissed from this suit (see Community Bd. 7 of Borough of Manhattan v Schaffer, 84 NY2d 148 [1994]). Further, the court finds that Kimberly Galvin and David Previte from the Commission as well as New York State Board of Election Commissioners Peter S. Kosinski and Gregory P. Peterson lack capacity and standing to assert their cross claims in this action (see Community Bd. 7 of Borough of Manhattan v Schaffer; Matter of Pooler v Public Serv. Commn., 43 NY2d 750 [1977]; Matter of State Univ. of N.Y. v Town of Amherst, 81 AD3d 1476 [4th Dept 2011]). Further, Assembly Minority Leader Hon. William A. Barclay and Senate Minority Leader Hon. John J. Flanagan failed to establish that there was nullification of their votes or usurpation of their power and, thus, they also lack standing to sue (see Silver v Pataki, 96 NY2d 532 [2001]; Matter of Colton v Town Bd. of Town of Amherst, 72 AD3d 1638 [4th Dept 2010]). As a result, the court must dismiss, as a matter of law, the cross claims asserted by the minority defendants (joined in by New York State Board of Election Commissioners Peter S. Kosinski and Gregory P. Peterson as well as the plaintiffs).

The record reflects that on April 1, 2019, the New York State Legislature approved a budget that included the passage of the Session Law which established the Commission. Thereafter, on{**69 Misc 3d at 258} July 3, 2019, the Governor announced the appointment of nine commissioners. The Commission consisted of two members appointed by the Governor; two members appointed by the Senate Majority Leader; two members appointed by the Speaker of the Assembly; one member appointed by the Senate Minority Leader; one member appointed by the Assembly Minority Leader; and the final appointment was jointly made by the Governor, the Senate Majority Leader and the Speaker of the Assembly. The qualifications and affiliations of each of the members of the Commission are set forth on pages 1 and 2 of the Commission's report.

The Commission was tasked with making recommendations which have the force of law and which would supersede existing law. The Session Law empowered the Commission to "examine, evaluate and make recommendations for new laws with respect to how the State should implement . . . a system of voluntary public campaign financing for state legislative and statewide public offices" (L 2019, ch 59, § 1, part XXX, § 1 [a]). In addition, the Commission was empowered to review and recommend changes to certain aspects of the Election Law and the State Finance Law. Such recommendations by the Commission would become law unless modified or abrogated by statute prior to December 22, 2019, by the legislature. The Commission issued its report on December 1, 2019, and no part of the report was modified or abrogated by statute nor by any other legislative action. Thus, the recommendations by the Commission now have the full force and effect of law.

The plaintiffs assert that insofar as the Session Law explicitly or effectively interferes with the right to fusion voting the Session Law is unconstitutional. More broadly, however, the plaintiffs further allege that both the New York State Constitution and the laws of the State of New York do not permit the creation of any entity for the purpose of making laws other than the Senate and the Assembly nor can any entity other than the legislature modify or repeal an enactment of the legislature. As a result, the plaintiffs have brought this declaratory judgment action against defendants herein seeking a determination that the Session Law enacted by the legislature creating the Commission and the actions of defendants are unconstitutional. Specifically, the plaintiffs are seeking a judgment declaring that (1) the Constitution and laws of the state guarantee the right of fusion voting, and that insofar as the Session Law or any action by the Commission explicitly or effectively{**69 Misc 3d at 259} interferes with that right it is unconstitutional and null and void and that no defendant may take any action abridging or interfering with the plaintiffs' right to fusion voting (first cause of action); (2) the Constitution and laws of the state do not permit the creation of any entity for the purpose of making laws other than the Senate and Assembly, nor may such entity, including the Commission, take any actions which actually or effectively create law; nor will any such action be of legal force and effect (second cause of action); and (3) the Constitution and laws of the state do not permit the modification or repeal of an enactment except by means equivalent to those used to create such enactment (third cause of action). In response, the moving defendants argue that the complaint is moot when viewed against the recommendations of the Commission and that the plaintiffs' claims have not been properly pleaded.

Summary judgment is, of course, a drastic remedy which should not be granted if there is a possible relevant factual issue (Siegel, NY Prac § 278 at 459-460 [4th ed]). On a motion for [*5]summary judgment, the proponent of the motion must set forth evidentiary proof, in admissible form, eliminating any material issue of fact from the suit (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). However, the Court of Appeals has held that an inquiry into the constitutional validity of a statute is purely a question of law (Cayuga Indian Nation of N.Y. v Gould, 14 NY3d 614 [2010]).

It is well settled that in an action for declaratory judgment there must be a genuine legal dispute between the parties as declaratory relief will not be granted where it would result only in an advisory opinion (New York Pub. Interest Research Group v Carey, 42 NY2d 527 [1977]). The law is clear that "[t]o constitute a 'justiciable controversy,' there must be a real dispute between adverse parties, involving substantial legal interests for which a declaration of rights will have some practical effect" (Chanos v MADAC, LLC, 74 AD3d 1007, 1008 [2d Dept 2010]). Further, "[a] justiciable controversy is one solvable by a court rather than some other forum" (Matter of Schulz v Silver, 212 AD2d 293, 295 [3d Dept 1995]). However, a party must present a controversy that is "definite and concrete" and be a "real and substantial" controversy admitting "of specific relief through a decree of a conclusive character" (New York State Assn. of Ins. Agents v Schenck, 44 AD2d 757, 758 [4th Dept 1974], quoting Aetna Life Ins. Co. v Haworth, 300 US {**69 Misc 3d at 260} 227, 241 [1937]). The court notes that when evaluating whether a justiciable controversy exists there is a distinction between an administrative action being reviewed and a legislative action which has the full force of law. Moreover, ripeness pertains to an action which is final and produces an alleged harm (see Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510 [1986]; Matter of Brighton Grassroots, LLC v Town of Brighton, 179 AD3d 1500 [4th Dept 2020]).

[1] Here, the recommendations of the Commission are now the law of the state and, thus, each recommendation is final and binding. Significantly, the Commission's recommendations amended Election Law § 1-104 (3) by increasing the threshold for political parties to receive ballot access. The plaintiffs have challenged the constitutionality of the Session Law in the context of the Election Law. Specifically, the plaintiffs have argued that such action would be unconstitutional and violate New York State's constitutional prohibition against delegating or granting legislative power to any entity or persons other than the Senate and Assembly. The plaintiffs also claim that this amendment will indirectly interfere with fusion voting as it will eliminate minor parties from the ballot. Based upon the facts and circumstances, the court finds that there is a justiciable controversy herein.

The primary legal issue in this case is whether the legislature improperly delegated its law making powers to the Commission. It is fundamental that the legislative power of this state shall be vested in the Senate and Assembly (see NY Const, art III, § 1; Boreali v Axelrod, 71 NY2d 1 [1987]). Though the legislature cannot delegate its authority and pass on its law-making functions to other bodies or communities, New York courts have recognized that the legislature may delegate certain matters to administrative agencies (Boreali v Axelrod; Matter of Mooney v Cohen, 272 NY 33 [1936]; St. Joseph Hosp. of Cheektowaga v Novello, 43 AD3d 139 [4th Dept 2007]). In Boreali v Axelrod, the Court of Appeals acknowledged that the legislature has considerable leeway on delegating its regulatory powers. Notwithstanding, the Court of Appeals also stated that "a legislative grant of authority must be construed, whenever possible, so it is no broader than that which the separation of powers doctrine permits" (Boreali v Axelrod at 9).

[2] In this case, the court finds that the legislature, clearly and unequivocally, empowered the Commission to legislate new law and repeal existing statutes. The line between{**69 Misc 3d at 261} administrative rulemaking (which can be delegated) and legislative action (which cannot be delegated) has clearly been transgressed. The legislature established the Commission and delegated to it the authority to create new law and to repeal existing law which is a function reserved solely to the legislature under the Constitution. The transgression became final when the recommendations of the Commission became law without further action by the legislature. The court notes that the fact that the legislature reserved the right to modify or abrogate by statute the recommendations of the Commission does not validate the process. The legislative function must be followed with proper procedure as mandated by the Constitution and adopted and historically followed by the legislature. The vote taken by the legislature to pass the Session Law cannot be deemed to blindly ratify the recommendations of the Commission especially since such recommendations would not be known at the time of the passage of the Session Law on April 1, 2019. The court further notes that the doctrine of legislative equivalency requires that "[t]o repeal or modify a statute requires a legislative act of equal dignity and import. Nothing less than another statute will suffice" (Matter of Moran v LaGuardia, 270 NY 450, 452 [1936]).

Accordingly, the motions for summary judgment dismissing the complaint by the moving defendants are denied. Although there is a severability clause in the Session Law, the court finds that the Session Law is an improper and unconstitutional delegation of legislative authority to the Commission. The court awards summary judgment to the plaintiffs (see CPLR 3212 [b]; Estate of Giffune v Kavanagh, 302 AD2d 878 [4th Dept 2003]).