Sheldon Silver, &c.,
George E. Pataki, Governor, &c.,
2001 NY Int. 99
In January 1998, defendant Governor George E.
Pataki submitted his Executive budget to the houses of the New
York State Legislature, along with several budget bills. Some of
the bills submitted appropriated monies while others detailed the
utilization of appropriated funds or proposed changes in the
operation of certain programs. After public hearings and
internal negotiations between houses, the Legislature passed and
transmitted to the Governor six appropriation bills and three
which struck out or reduced certain
Plaintiff -- as "Member and Speaker, New York State Assembly" -- commenced this action, asserting that while the Governor has the constitutional right to veto line items in an appropriation bill, he has no similar right to veto items in "non-appropriation" bills, which must be approved or rejected in their entirety. The Speaker seeks a declaration that the 55 vetoes violated article IV, § 7 of the New York Constitution, and that legislation relating to the budget that does not appropriate money is not subject to the line-item veto power. The Governor contends that the bills in question were part of the budget process and contained items of appropriation subject to his line- item veto.
Supreme Court denied the Governor's motion to dismiss,
rejecting his claim that plaintiff lacks standing and legal
capacity to bring the action. A majority at the Appellate
Our current Executive budget system is embodied in
article VII of the New York Constitution. Each Executive
department must initially furnish the Governor with financial
estimates, that are also supplied to relevant legislative
committees, and upon which budget hearings are then held (see, NY
Const, art VII, § 1). Itemized estimates of the financial needs
of the Legislature and Judiciary are also transmitted to the
Governor. Thereafter, the Governor must submit, along with the
budget, a bill or bills containing all of the proposed
The budget process has been the subject of prior legal skirmishes between the Governor and the Legislature (see, e.g., New York State Bankers Assn. v Wetzler, , 81 NY2d 98; People v Tremaine, 281 NY 1 [Tremaine II]; People v Tremaine, 252 NY 27 [Tremaine I]). The present appeal calls upon us to determine only a limited threshold issue: does Mr. Silver, as a Member or Speaker of the Assembly, have capacity and standing to bring this action?
Capacity to sue is a threshold matter allied with, but
conceptually distinct from, the question of standing. As a
general matter, capacity "concerns a litigant's power to appear
and bring its grievance before the court" (Community Bd. 7 of
Borough of Manhattan v Schaffer, , 84 NY2d 148, 155). Capacity may
depend on a litigant's status or, as here, on authority to sue or
be sued. In Community Board 7, we noted that capacity may be
expressly conferred or "inferred as a 'necessary implication from
As a Member of the Assembly, plaintiff is entrusted by the Constitution to exercise legislative power (see, NY Const, art III, §§ 1, 2). "[E]xcept as restrained by the constitution, the legislative power is untrammeled and supreme * * *. Nothing is subtracted from the sum of legislative power, except that which is expressly or by necessary implication withdrawn" (In re Thirty-Fourth St. Ry. Co., 102 NY 343, 350- 351). Plaintiff has the broad power and functional responsibility to consider and vote on legislation. That responsibility necessarily includes continuing concern for protecting the integrity of one's votes and implies the power to challenge in court the effectiveness of a vote that has allegedly been unconstitutionally nullified.
Individual legislators have several times in the past
challenged the frustration of their authority (see, e.g.,
We reject the notion that plaintiff's functional
responsibilities as a legislator are at an end once a bill is
voted upon and leaves the Assembly. Such a narrow view could
render a legislator's vote meaningless and unnecessarily dilute
one's legislative responsibilities. A legislator surely would
have the capacity to sue if prevented from casting a meaningful
vote on legislation at the outset (see, e.g., Winner v Cuomo,
The Speaker also asserts that as leader of the Assembly, he has the inherent capacity to sue on its behalf. The Constitution, however, does not give the Speaker representative authority for the body over which he presides. Nor has the Assembly passed a resolution expressing its will that the Speaker engage in this litigation.
The Assembly Speaker is nominally a constitutional
officer (NY Const, art III, § 9), but his express statutory
powers are circumscribed (see, e.g., Legislative Law §§ 7, 12
[appointment of employees and expenditure authorizations]).
Other duties are merely administrative, and include preserving
order and decorum, appointing committee members and chairpersons,
allocating staff, administering internal rules, and promulgating
a budget adoption schedule (see, Rules of the Assembly of the
State of NY, 1997-1998, Rule I). None of these specific
responsibilities are broad enough to confer on the Speaker any
special implied authority to seek judicial review on behalf of
the interests of the Assembly in general. Accordingly, as
Speaker, plaintiff has no special authority to maintain this
Having concluded that plaintiff has capacity to bring this action as a Member of the Assembly, we next address the related question whether plaintiff has suffered an injury in fact sufficient to confer standing on him. We conclude that he has.
The test for determining a litigant's standing is well settled. A plaintiff has standing to maintain an action upon alleging an injury in fact that falls within his or her zone of interest. "The existence of an injury in fact -- an actual legal stake in the matter being adjudicated -- ensures that the party seeking review has some concrete interest in prosecuting the action which casts the dispute 'in a form traditionally capable of judicial resolution'" (Society of Plastics Indus., Inc. v County of Suffolk, , 77 NY2d 761, 772 [citation omitted]).
Cases considering legislator standing generally fall into one of three categories: lost political battles, nullification of votes and usurpation of power. Only circumstances presented by the latter two categories confer legislator standing (see, e.g., Coleman v Miller, 307 US 433 [vote nullification]; Dodak v State Admin. Bd., 495 NW2d 539 [Mich] [usurpation of power belonging to legislative body]; cf., Raines v Byrd, 521 US 811 [no standing to challenge lost vote]; Matter of Posner v Rockefeller, , 26 NY2d 970 [same]).
Plaintiff identifies two types of injury -- one
suffered by the Legislature as a whole and the other involving
Here, plaintiff as a Member of the Assembly won the
legislative battle and now seeks to uphold that legislative
victory against a claimed unconstitutional use of the veto power
nullifying his vote. If plaintiff's allegations are correct, and
at this point in the litigation we must assume they are, the
vetoed provisions were improperly invalidated and should be in
effect. Such a direct and personal injury is clearly within a
legislator's zone of interest and unquestionably represents a
"'concrete and particularized'" harm (Raines,
Matter of Posner v Rockefeller (, 26 NY2d 970,
Nor is a controlling bloc of legislators (a number
sufficient to enact or defeat legislation) a prerequisite to
plaintiff's standing as a Member of the Assembly. The Coleman
court did not rely on the fact that all Senators casting votes
against the amendment were plaintiffs in the action (see, Kennedy
The dissent contends that plaintiff did not establish vote nullification because he still had a remedy within the political process -- seeking to override the vetoes by a two- thirds supermajority (see, Dissent, at 7; NY Const, art IV, § 7). The existence of other possible political remedies, however, does not negate the injury in fact (see, Campbell v Clinton, 52 F Supp 2d 34, 45 n11 ["The mere availability of a legislative alternative is not sufficient to defeat standing; if it were, a legislator would never have standing since Congress always has the option of impeaching and removing the President" (emphasis in original)], affd 203 F3d 19, cert denied 121 S Ct 50). The supermajority override is a political remedy for validly imposed vetoes. This case, contrary to the dissent's view, is not about a general dispute over legislative authority or its limitations. It focuses on a discrete and defined event implicating a constitutional restriction on use of the line-item veto power. It does not call upon this Court to enter a political debate -- it presents only a straightforward legal question.
Lastly, that other parties may also be aggrieved by
some of the Governor's contested vetoes does not diminish the
direct injury suffered by plaintiff, as a Member of the
This Court has repeatedly emphasized that "the
budgetary process is not always beyond the realm of judicial
consideration and that the 'courts will always be available to
resolve disputes concerning the scope of that authority which is
granted by the Constitution to the other two branches of the
government'" (New York State Bankers Assn. v Wetzler, , 81 NY2d 98,
Contrary to the Appellate Division majority view, our decision today will not open the possibility of countless legislator lawsuits that would impair the legislative process. That has not been the case -- only a handful of legislator lawsuits have arisen in this State to date. We announce nothing new today. We only confirm what was assumed before: in limited circumstances, legislators do have capacity and standing to sue when conduct unlawfully interferes with or usurps their duties as legislators.
The parties' remaining arguments are without merit.
Accordingly, the order of the Appellate Division should be modified, without costs, by denying defendant's motion to dismiss the complaint insofar as it is brought by plaintiff as a Member of the New York State Assembly and, as so modified, affirmed.
GRAFFEO, J. (dissenting):
While I recognize the significance of the constitutional question raised in this action, the procedural issues before this Court must first be addressed, that is: whether plaintiff Sheldon Silver, as Speaker of the New York Assembly or as a Member of the Assembly, has the legal capacity or standing to bring an action challenging the Governor's use of line-item vetoes in connection with certain budget bills passed by the Legislature. Because I disagree with the Majority's conclusion that plaintiff has such capacity or standing, I respectfully dissent and would affirm the dismissal of plaintiff's complaint.
The sole cause of action asserted in the complaint is
that, "[i]n complete contravention of the limitations on the
Governor's line-item veto authority as set forth in Article IV,
§ 7 of the Constitution, the Governor has unconstitutionally
asserted a line-item veto to eliminate provisions in Non-
Appropriation Bills submitted and approved by both houses of the
Legislature. This contention is anchored in the constitutional
tension which arises from the allocation of law-making and
budgetary power between the Legislature and the Executive -- a
conflict involving two branches of State government. The
complaint alleges no injury personal to plaintiff. Indeed, in
In determining capacity to sue under these
circumstances, the requisite inquiry is whether an elected
representative serving in one house of the Legislature possesses
express or inherent authority to commence an action of this
nature. An analysis of capacity to sue involves a litigant's
ability to initiate judicial review of a grievance. In Community
Bd. 7 of Borough of Manhattan v Schaffer (, 84 NY2d 148, 155), this
There is no question that the State Legislature, the representative branch of government, can exercise only those powers granted under the State Constitution, as further defined or implemented by statute. Indisputably, the scope of the Legislature's powers is broad with respect to State legislative affairs (see, NY Const, art III, § 1), but neither the State Legislature, nor even the Assembly as an institution, is seeking redress here.
The Majority's discussion of capacity is focused on
whether an individual legislator is vested with authority to
challenge Executive action after passage of budget legislation.
Certainly, there is no explicit constitutional pronouncement
authorizing a legislator to commence such a lawsuit. Similarly,
Where, as here, there is no explicit authority to sue,
the next step in capacity analysis is whether an inherent right
has been or should be recognized which vests New York's 211 State
legislators with the authority to individually redress this type
of institutional grievance. The Majority finds such implied
authority arising from the official's general legislative duties
and holds that a legislator's vote on behalf of constituents
would be rendered meaningless unless each legislator is vested
with the capacity to prevent the nullification of his or her vote
cast in support of the passage of a bill. Because plaintiff's
claim is premised on an allegation that a wrong was committed
against the collective will of the Assembly, I cannot adopt the
Majority's viewpoint. In the absence of some collective
authorization --- either by statute, Assembly resolution or
otherwise --- there is no legal basis to find an individual
Additionally, I conclude that plaintiff lacks standing as a Member of the Assembly to bring this action. In Matter of Posner v Rockefeller (, 26 NY2d 970), this Court held that three Members of the Assembly lacked standing to bring a suit challenging, on constitutional grounds, the validity of portions of appropriation bills. In addition to determining that plaintiffs lacked citizen-taxpayer standing (a ground not asserted in this action), the Court held that their status as Members of the Assembly did not "give them the requisite standing to challenge in the judicial branch the validity of appropriation bills submitted by the Governor, and it matters not whether such bills have been passed by the Legislature or were still pending before that body at the time the proceeding was instituted (id., at 971-972). Although the citizen-taxpayer standing analysis in Posner is no longer binding given the subsequent enactment of section 123-b of the State Finance Law, there is no reason to depart from that aspect of Posner most relevant to the issue before us --- that a legislator lacks standing to commence litigation to resolve such a dispute.
I rely on the discussion of standing considerations in
Society of Plastics Indus. v County of Suffolk (77 2 761, 771-
775) where this Court emphasized that the focus of a standing
inquiry is whether the party bringing suit is the proper party to
While this Court has recognized that the judiciary may
'resolve disputes concerning the scope of that authority which
is granted by the Constitution to the other two branches of the
government' (Matter of King v Cuomo, , 81 NY2d 247, 251, quoting
Saxton v Carey, , 44 NY2d 545, 551), to date, this power has been
exercised only when a legislator has been deprived of the ability
to perform a legislative function or to enforce a constitutional
obligation integral to his or her legislative duties (see, e.g.,
Anderson v Regan, , 53 NY2d 356 [whether Legislature entitled to
appropriate certain federal funds before disbursement]; Winner v
Cuomo, 176 AD2d 60 [Governor's failure to submit budget bills to
Legislature within constitutionally prescribed time period];
Matter of Sullivan v Seibert, 70 AD2d 975 [failure of Executive
agencies to comply with statutory requirement for the filing of
annual reports with the Legislature]). There is no allegation in
this case that the Executive took any action which prevented
plaintiff from discharging his legislative duties as a Member of
the Assembly. Insofar as an allegation of vote nullification can
Coleman v Miller (307 US 433) does not direct
otherwise. In 1925, the Kansas Senate adopted a resolution to
ratify an amendment to the Federal Constitution by a 20-20 vote,
with the Lieutenant Governor casting the deciding vote in favor
of passage. Twenty State Senators commenced an action seeking a
ruling prohibiting the Kansas Secretary of State from
authenticating the resolution. The Supreme Court of Kansas
More recently, the United States Supreme Court held in Raines v Byrd (521 US 811, 816) that six Members of Congress who voted against the Line Item Veto Act lacked standing to pursue a complaint alleging, in part, that the Act was unconstitutional because it "alter[ed] the legal and practical effect of all votes they may cast on bills containing such separately vetoable items. In rejecting the claim of standing, the Court stated:
(id., at 821 [emphasis in original]; see also, Clinton v City of New York, 524 US 417, 430). The Court noted that the Coleman Court had repeatedly emphasized that if these legislators (who were suing as a bloc) were correct on the merits, then their votes not to ratify the amendment were deprived of all validity (Raines v Byrd, 521 US, at 822), and indicated Coleman stood "for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified (id., at 823).
First, appellees have not been singled out for specially unfavorable treatment as opposed to other Members of their respective bodies. Their claim is that the Act causes a type of institutional injury (the diminution of legislative power), which necessarily damages all Members of Congress and both Houses of Congress equally.  Second, appellees do not claim that they have been deprived of something to which they
personally are entitled --- such as their seats as Members of Congress after their constituents had elected them. Rather, appellees' claim of standing is based on a loss of political power, not loss of any private right, which would make the injury more concrete
Here, plaintiff is a single legislator and he seeks to proceed in the absence of authorization from the Assembly to act on behalf of the voting bloc in that body. I would adopt a rationale similar to that of Raines: the usurpation of legislative authority alleged in the complaint represents an institutional harm and any vote nullification claim must be asserted by a sufficient voting bloc or by the institution itself.
Concluding plaintiff lacks capacity or standing as a
Member of the Assembly, I would affirm the judgment dismissing
1 The term "non-appropriation" bill is not found in the Constitution. These bills contain programmatic provisions and commonly include sources, schedules and sub-allocations for funding provided by appropriation bills, along with provisions authorizing the disbursement of certain budgeted funds pursuant to subsequent legislative enactment.
2 Plaintiff brought this action in his official capacities only, not as a taxpayer under article 7-A of the State Finance Law.
3 Although the Appellate Division based part of its analysis on the absence of any express authorization for the reimbursement of legal fees incurred in such an action (274 2 57, 62-63), the propriety of those expenditures is not before us.
4 No other jurisdiction in the nation has held that an individual legislator lacks capacity to sue .
5 We agree with our dissenting colleague that plaintiff's
allegation of injury to the Assembly as a whole, characterized as
interference with his ability "to negotiate the Assembly's
priorities and interests in the budget process" (Dissent, at 2),
at best reflects a political dispute. This type of political
harm is no more than an abstract institutional injury that fails
to rise to the level of a cognizable injury in fact (see, Raines
6 Federal courts continue to recognize Kennedy as an application of the narrow rule announced in Coleman (see, Chenoweth v Clinton, 181 F3d 112, 115 [D.C. Cir]).
7 In the dissent's view, only "a sufficient voting bloc" of legislators who voted for the bills in question could act as plaintiffs in the absence of a Resolution of the Assembly authorizing a lawsuit (Dissent, at 10). Under that analysis, it would seem that all who voted for the bills in question would need to join. Thus, a suit could be blocked by one legislator who chose, for whatever reason, not to join in the litigation. Such a result would place too high a bar on judicial resolution of constitutional claims. However, if a "sufficient voting bloc" is less than all legislators who voted for the bill, the injury cannot be characterized as institutional and must be viewed as personal to those who assert the claim.