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E169547/2019
NYSCEF DOC. NO. 213 RECEIVED NYSCEF: 03/12/2020
STAIEOFNEWYORK
SUPREMECOURT : COUNTYOFNIAGARA
Defendants.
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Nonna, Rosanna
Election commissioq Mylan Denerstein, Jay Jacobs, Denora Getachew, John
Financing
vargas, crystal Rodriguez, Henry Berger as commissioners of the Public campaigr
and Etection commissiory The State ofNew York; and Douglas A. Kellner and Andrew J' Spano
and
as commissioners of the Board of Elections of the state of New York (hereinafter
..Moving Defendants ') moved to dismiss the Plaintiffs' Complaint pursuant to
collectively, the
Assembly
as commissioners of the Public carnpaign Financing and Election commission,
Minority Leader
Minority Leader Hon. William A. Barclay (replacing Brian Kolb) and Senate
have cross-
Hon. John J. Flanagan (hereinafter and collectively, the "Minority Defendants")
and joined in by
moved for Summary Judgrnent on their cross-claims which was adopted
of the Board of
Defendants Peter S. Kosinski and Gregory P. Peterson as Commissioners
judgment, as a
Elections of the State of New York and Plaintiffs herein seeking a declaratory
matter of law, ttlat Part )oo( of the Laws of 2019, chapter 59 (hereinafter, the "statute") is
center,
unconstitutional in all respects. In addition, the court granted the Government Justice
December 10,
Inc.'s application for leave to participate in this pro ceeding as amicus curiae on
2019.
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Previously,thiscasewasoriginallyassignedtotheHon.RichardC.Kloch,Sr.Judge
order was issued'
Kloch held a preliminary conference on September 9, 2019 and a scheduling
Pursuant to the Scheduling Order, six (6) Defendants filed Answers. The Minority Defendants
pursuant to CPLR $
Assembly, in lieu of Answers to the complaint, filed Motions to Dismiss
3211. The case was reassigned to this Court on octob er |,2019. onNovember l2,20l9,atthe
additional papers to
Scheduling order was amended to give the parties an oppornmity to submit
12,2019
verified Answers. The oral argument on the motions was rescheduled from November
to December 12,2019.
Initially, the court finds that The Public campaigr Financing and Election commission
to be sued and
of the state of New York (hereinafter, the "commission") lacks the capacity
therefore, must be dismissed from this suit (see, cmty. Bd. 7 v schalfer, 34
NY2d 148 [1994D'
as well
Further, the court finds that Kimberly Glavin and David Previte from the commission
Peterson
as New york State Board of Election Commissioners Peter S. Kosinski and Gregory P.
lack capacity and standing to assert their cross-claims in this action (s ee, cmty. Bd. 7 t schaffer,
v Town
supra; Pooler v Public service Com.,41NY2d750llg77l; Matter ofstate univ. ofN.Y.
of Amherst,Sl AD3d 1476 [46 Dept 201 1]). Further, Assembly Minority Leader Hon. William
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(see,Silverv.Pataki,96NY2d532l200ll:MatterofColtonvTownBd'ofTownofAmherst'12
a matter of law, the cross-
AD3d 163g [4o Dept 2010]). As result, the court must dismiss, as
TherecordreflectsthatonAprill,20lg,theNewYorkStatet,egislatue(hereinafter'
..Legislature") approved a budget that included the passage ofthe Statute which established the
report.
TheCommissionwastaskedwithmakingrecommendationswhichhavetheforceoflaw
and which would supersede existing law. The Statute empowered the commission to "examine,
evaluate and make recommendations for new laws with respect to how
the State should
statewide public
implement...a system of voluntary public financing for state legislature and
changes to
offices...". In addition, the commission was empowered to review and recommend
certain aspects of the State Election Law and tle state Public Finance Law. Such
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on December
prior to Decemb er 22,2019 by lhelegislature. The commission issued its report
l,2olg arrd no part ofthe report was modified or abrogated by statute nor by any other legislative
the Plaintiffs
right to fusion voting the statute is unconstitutional. More broadly, however,
and the
further allege that both the New York State Constitution (hereinafter, "Constitution')
the purpose of making laws other than the Senate and the Assembly
nor can any entity other than
the Legislature modifi or repeal an enactment ofthe Legislature. As a result, the Plaintiffs have
a determination that
brought this declaratory judgment action against Defendants herein seeking
and effect
which actually or effectively create law; nor will any such action be of legal force
permit the
(second cause of Action); and (3) the constitution and laws of the State do not
such
modification or repeal ofan enactment except by means equivalent to those used to create
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enactment (Third cause of Action). In response, the Moving Defendants argue that the
SummaryJudgmentis,ofcourse,adrasticremedywhichshouldnotbegrantedifthere
proof, in admissible
summary judgrnent, the proponent of the motion must set forth evidentiary
form, eliminating any material issue of fact from the swt (Alvarez v Prospect
Hospit4l'68 NY2d
v Gould,l4 NY3d
validity of a statute is purely a questi on of law (Cayuga Indian Nation of N.Y.
614 [2010]).
genuine legal
It is well settled that in an action for declaratory judgrnent there must be a
anadvisoryopinion(NeuYorkPublicInterestResearchGroup,Inc..vCarey,42NYzd52T
Further,
..a justiciable controvercy is one solvable by a court rather than some other forum"
that is "definite and concrete" and be a "real and substantial controversy admitting of specific
Agents, Inc' v
relief through a decree ofa conclusive character" (New York State Asso. of Ins.
schenctq 44 AD2d 757 [46 Dept 1974f, quloting Aetna Lde Ins. co. v. Ha'north,300 us 227
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allegedharm(see,Churchofst.Paul&St'AndrewvBarwic't'67NY2d51011986);Matterof
Lexis 787 [4s Dept
Brighton Grassroots, LLC v Town of Brighton,2110 NY Appellate Division
2020D.
104 (3) by increasing the threshold for political parties to receive ballot
amended Election Law $I -
of the
access. The Plaintiffs have chatlenged the constitutionality of the Statute in the context
would be unconstitutional
Election Law. Specifically, the Plaintiffs have argued that such action
power to any entity or persons other than the senate and Assembly. The
Plaintiffs also claim that
the bauot. Based upon the facts and circumstances, the court
finds that there is a justiciable
controversy herein.
Theprimarylegalissueinthiscaseiswhetherthel,egislatureimproperlydelegateditslaw
be vested in the Senate and Assembly (see, NY Const., Art. Iil, $ |; Borealiv Axelrod,TlNY2d'
1t1987]).ThoughtheI'rgislaturecannotdelegateitsauthorityandpassonitslaw-making
that the Legislature
firnctions to other bodies or communities, New York Courts have recognized
Cohen,2I2NY 33 [936]; St. Joseph's Hosp. v Novello,43 AD 3d 139 [4'h Dept 2007])' In
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leewayondelegatingitsregulatorypowers.Notwithstanding,theCourtofAppealsalsostated
is no broader than
that
..a
legislative gmnt ofauthority must be construed, whenever possible, so it
empowered
In this case, the court finds that the Legislature, clearly and unequivocally,
line between
the commission to legislate new law and repeal existing statutes. The
(which cannot be
administrative rule-making (which can be delegated) and legislative action
and
delegated) has clerly been transgressed. The Legislature established the commission
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 Court notes that the fact that the kgislature reserved the right
to modifr or abrogate by
statute the recommendations ofthe commission does not validate the process. The legislative
modiff a statute requires a legislative act ofequat dignity and import. Nothing less than another
Accordingly,theMotionsforSummaryJudgrrrentDismissingtheComplaintbythe
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finds that the Statute is an improper and unconstitutional delegation oflegislative authority to the
Commission. The Court awards summary judgment to the Plaintiffs (see, CPLR $ 3212 [b];
The sigfng of this Decision and Order shall not constitute notice of entry under CPLR
2220. Counsel is not relieved from the applicable provisions of this rule with regard to service
of notice of entry.
This Decision shall constitute the Order of this Court and shall be filed as such.
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