No. 6
In the Matter of Council of
the City of New York,
Appellant, v. Michael R. Bloomberg, &c.,
et al.,
Respondents.
2006 NY Int. 12
February 14, 2006
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
Steven L. Holley, for appellant. Alan G. Krams, for respondents. The Archdiocese of New York, et al.; American Civil
Liberties Union, et al; The City and County of San Francisco,
California, et al.; The Brennan Center for Justice at New York
University School of Law; Lambda Legal Defense and Education
Fund, Inc., et al., amici curiæ.
R. S. SMITH, J.:
We hold that New York City's Equal Benefits Law is
preempted by state and federal statutes. We therefore affirm the
Appellate Division's dismissal of an article 78 proceeding
brought by the New York City Council to compel enforcement of
that law.
Facts and Procedural History
The Equal Benefits Law (NYC Admin Code § 6-126) was
enacted by the City Council in 2004 over the Mayor's veto. It
provides, in substance, that no city agency may enter into
contracts having a value of $100,000 or more annually with any
person or firm that fails to provide to its employees' domestic
partners employment benefits equal to those provided to spouses.
"Domestic partners," as defined in the Equal Benefits Law, means
people who are registered as having that status under NYC
Administrative Code § 3-240 (a), or who register with a
contractor pursuant to the Equal Benefits Law itself (NYC Admin
Code § 6-126 [b] [5]). "Employment benefits," as used in the
Equal Benefits Law, "means benefits including, but not limited
to, health insurance, pension, retirement, disability and life
insurance, family, medical, parental, bereavement and other leave
policies, tuition reimbursement, legal assistance, adoption
assistance, dependent care insurance, moving and other relocation
expenses, membership or membership discounts, and travel benefits
provided by a contractor to its employees" (NYC Admin Code § 6-
126 [b] [7]). Shortly after the Equal Benefits Law's effective date,
the Mayor began a declaratory judgment action against the
Council, asserting that the law was inconsistent with, and
therefore preempted by, provisions of the General Municipal Law
and the City Charter relating to municipal contracting; that it
was also preempted by the federal Employee Retirement Income
Security Act of 1974, 29 USC § 1001 et seq (ERISA); and that it
was invalid because it curtailed the Mayor's powers without a
referendum, in violation of the Municipal Home Rule Law and City
Charter. After unsuccessfully seeking a temporary restraining
order against the law's enforcement, the Mayor, through his
counsel, informed Supreme Court that he would withdraw his motion
for a preliminary injunction, that he would move promptly for
summary judgment, and that in the meanwhile he would "comply with
controlling state laws concerning procurement and the Charter" --
i.e., that he would not implement the Equal Benefits Law. The
next day, the Council began this CPLR article 78 proceeding, in
the nature of mandamus to compel, against the Mayor and the City,
asking for a judgment requiring them "immediately to implement
and enforce the Equal Benefits Law." In response, the Mayor
asserted, as he had in the declaratory judgment action, his
reasons for considering the law invalid. Supreme Court granted the petition without addressing
the Mayor's arguments, relying on "the presumption of validity."
The Appellate Division concluded that the Equal Benefits Law was
preempted by both the General Municipal Law and ERISA, and
dismissed the proceeding on that basis. We now affirm.
Discussion
I
The Council argues that we should grant its petition
and order the Equal Benefits Law enforced without considering the
merits of the controversy, on the ground that the validity of a
legislative enactment cannot be decided in an article 78
proceeding. The Council's argument is misconceived. The rule relied on by the Council that "article 78 does
not lie to challenge a legislative act" ( New York City Health and
Hosps. Corp. v McBarnette, , 84 NY2d 194, 201 [1994]) means that a
petitioner who is challenging the validity of legislation may not
use an article 78 proceeding for that purpose; a lawsuit to
challenge the validity of legislation should take the form of an
action for a declaratory judgment. ( See also Press v County of
Monroe, , 50 NY2d 695, 702 [1980]; Kovarsky v Hous. & Dev. Admin.
of the City of New York, , 31 NY2d 184, 192 [1972].) It does not
mean that, when an article 78 proceeding is brought to compel the
enforcement of legislation the petitioner claims is valid, the
court must grant the petition whether the legislation is valid or
not. On the contrary, article 78 relief in the form of
mandamus to compel may be granted only where a petitioner
establishes a "clear legal right" to the relief requested ( Brusco
v Braun, , 84 NY2d 674, 679 [1994]). And we have repeatedly held
that an officer against whom a proceeding for a writ of mandamus
is brought may defend on the ground that the legislation he or
she has been asked to enforce is invalid ( Carow v Board of Educ.
of the City of New York, 272 NY 341, 345 [1936]; People ex rel
Balcom v Mosher, 163 NY 32, 35 [1900]). The theory the Council
advocates would put the courts in the unacceptable position of
directing an officer to violate his or her oath of office by
enforcing an unconstitutional law, and would contradict the
principle that "mandamus is never granted for the purpose of
compelling the performance of an unlawful act" ( People ex rel
Sherwood v State Bd. of Canvassers, 129 NY 360, 370 [1891]). Thus we hold that the Appellate Division was correct in
concluding that the Mayor was entitled to raise the invalidity of
the Equal Benefits Law as a defense in this case. We are not
persuaded by our dissenting colleagues' arguments to the
contrary. The dissent asserts, without citation of authority,
that the Mayor's duty is to "follow a duly enacted law. . .
unless and until a court nullifies it" (dissenting op at 2). The
assertion has a circular quality, for how can a law be "duly
enacted" if the legislature that enacted it had no authority to
do so? The Mayor does indeed have a duty to implement valid
legislation passed by the City Council, whether over his veto or
not, but he also has a duty to comply with valid state and
federal legislation, including state competitive bidding laws and
ERISA. Where a local law seems to the Mayor to conflict with a
state or federal one, the Mayor's obligation is to obey the
latter, as the Mayor has done here. The dissent suggests that the procedural
characteristics of an article 78 proceeding make it unsuitable
for resolving the Mayor's contention that the Equal Benefits Law
is invalid (dissenting op at 10-12). The suggestion is puzzling.
Article 78 proceedings are indeed designed for the prompt
resolution of largely legal issues, rather than for discovery,
trials and "credibility judgments" ( id. at 8), but, as we explain
below, the validity of the Equal Benefits Law turns entirely on
issues of law, not of facts. The dissent says that the likely
fiscal impact of the Equal Benefits Law presents an issue of fact
( id. at 7-8) but, as the next section of our opinion explains, it
is not an issue sufficient to defeat summary judgment in this
case. We assume the accuracy of the Council's assertion that the
law will "not cost contractors much money" ( id. at 8). We
conclude that the law is nevertheless preempted by the
competitive bidding statute. The dissent seems to shrink, understandably, from
following to the limits of its logic the proposition that an
executive must implement every law, valid or invalid, that a
legislative body enacts until a court determines the law's
validity. Certainly, the dissenters would not so hold in an
extreme case: If a legislative body enacted a law requiring
racial segregation of public schools, the dissenters would not
say that it is the duty of police to bar black children from
"white" schools until a court orders them let in. And even in
this case, the dissent stops short of saying that the relief the
Council seeks in this article 78 proceeding -- an order requiring
implementation of the Equal Benefits Law, issued without
considering the law's validity -- should be granted. The
dissenters say only that they would "reverse the order of the
Appellate Division and allow the declaratory judgment action to
proceed" (dissenting op at 4) -- so that the article 78
proceeding would presumably remain in limbo until the declaratory
judgment action is decided. All that means, in this case, is
that the parties would make, and the courts would resolve,
exactly the same arguments the parties make here, but under a
different caption. We decline to order such a purposeless
exercise, and we proceed to consider whether the Mayor can be
ordered to enforce the Equal Benefits Law.
II
We agree with the Appellate Division that the Council's
article 78 proceeding must be dismissed because the Equal
Benefits Law conflicts with, and is therefore preempted by,
General Municipal Law § 103. Under § 103 (1), "all contracts for public work
involving an expenditure of more than twenty thousand dollars and
all purchase contracts involving an expenditure of more than ten
thousand dollars, shall be awarded . . . to the lowest
responsible bidder . . . ." The Mayor argues, and we hold, that
the Equal Benefits Law violates this requirement by excluding
from public contracting any "responsible bidder" that does not
provide equal benefits to domestic partners and spouses. Associated Builders and Contractors, Inc. v City of
Rochester (67 2 854 [1986]) is the controlling authority.
That case involved a City of Rochester ordinance that "required
that in awarding municipal construction contracts in excess of
$100,000 preference be given to a contractor . . . whose
employees participate in a State-approved apprenticeship program
. . ." (67 2 at 854). We held that, in view of § 103's
predominant purpose of "protection of the public fisc by
requiring competitive bidding," the ordinance could not stand
( id. at 856). We acknowledged that the apprentice training that
the Rochester ordinance sought to promote was "a desirable end,"
but held it was not one that could "affect the qualification of
an otherwise responsible low bidder" ( id.). That logic is
dispositive in this case. The provision of equal benefits for
domestic partners and spouses may be a desirable end, but it is
not one that New York City is free to pursue by departing from
the requirements of the competitive bidding statute. The Council argues that the Equal Benefits Law will not
undermine the purposes of competitive bidding, because, the
Council says, the economic impact of the Equal Benefits Law will
be de minimis. The Council asserts, and we assume, that the cost
of providing equal benefits to domestic partners and to spouses
will be close to zero. But the competitive bidding statute does
not become inapplicable when the sums saved by complying with it
are immaterial. Apart from its purely financial effect, competitive
bidding serves to prevent "favoritism, improvidence, fraud and
corruption in the awarding of public contracts" ( New York State
Chapter, Inc., Assoc. Gen. Contr. of Am. v New York State Thruway
Auth., , 88 NY2d 56, 68 [1996]). If municipalities are free to
contract only with firms that provide certain benefits to their
employees, the door is open at least to favoritism, for the
municipality could design its requirements to match the benefit
structure of the bidder it favored. No such thing has happened
in this case, of course; we have no doubt that the Equal Benefits
Law is a good faith effort to make contractors treat the domestic
partners of employees in a way that the Council considers fair.
But the competitive bidding statute reflects a judgment by the
State Legislature that, to avoid among other things the risk of
favoritism, municipalities must give business to the lowest
responsible bidder, whether the bidder's benefit plans meet the
municipality's idea of fairness or not. The Council says that the validity of the Equal
Benefits Law finds support in the New York State Chapter case; in
McMillen v Browne (, 14 NY2d 326 [1964]); and in the home rule
provisions of the State Constitution and implementing
legislation. None of these is a sufficient basis for upholding
the law. In New York State Chapter, we held that entities
governed by competitive bidding requirements could, under some
circumstances, adopt so-called Project Labor Agreements (PLAs),
providing that bidders for public construction contracts must
sign pre-negotiated labor agreements or be barred from bidding.
We did not hold, however, that public entities could enter into
PLAs as a means of assuring fair treatment to contractors'
employees. Indeed, we said that "PLAs that do have as their
purpose social policymaking, such as remedying racial and gender
bias, will not be sustained" (88 2 at 76). But we recognized
that, while PLAs "have an anticompetitive impact on the bidding
process," they also brought economic benefits to the contracting
authority, in that "the union promises labor peace through the
life of the contract" ( id. at 65). We held that the resulting
"efficiencies to be gained" ( id.) might justify a PLA under the
competitive bidding laws. We said that a PLA would be upheld
only if it "had as its purpose and likely effect the advancement
of the interests embodied in the competitive bidding statutes"
( id. at 69), which we identified as "prudent use of public monies
and . . . the acquisition of high quality goods and services at
the lowest possible cost" ( id. at 67). In other words, under New York State Chapter, PLAs and
other procedures having an anticompetitive effect on the bidding
process can be justified only by proof that they are designed to
save the public money by causing contracts to be performed at
smaller cost or without disruption. No such justification can be
convincingly claimed for the Equal Benefits Law. The Council
says that the cost of the law will be insignificant, and will be
outweighed by the benefits to the public that flow from assuring
adequate health care to workers' domestic partners, but the
Council cannot and does not seriously assert that the "purpose
and likely effect" of the law is to make the City's contracts
cheaper or their performance more efficient. The law -- like the
Mayoral executive order prohibiting discrimination by city
contractors based on sexual preference that was at issue in Under
21 v City of New York (65 2 344 [1985]) -- is obviously
designed as "an enactment of social policy" ( id. at 359 n 5).
New York State Chapter gives no support to the view that social
policy goals may trump the competitive bidding statute. The Council relies on McMillen because in that case we
upheld a local law requiring payment of a minimum wage by city
contractors -- a law plainly designed, as is the Equal Benefits
Law, for the protection of contractors' employees. The flaw in
the Council's argument is that McMillen had nothing to do with
competitive bidding requirements; they are nowhere referred to in
the decision. The issue in McMillen was whether New York City's
minimum wage requirement was preempted by the State's prevailing
wage and minimum wage laws. Our resolution of that issue is not
relevant to this case. The home rule provisions of the Constitution and the
legislation implementing it list several subjects about which
local governments are given the power to legislate. One of those
subjects is "[t]he wages or salaries, the hours of work or labor,
and the protection, welfare and safety of persons employed by any
contractor or sub-contractor performing work, labor or services
for the [municipality]" (NY Const, art 9, § 2 [c] [ii] [9];
Municipal Home Rule Law § 10 [1] [ii] [a] [10]). But this grant
of power to municipalities is expressly made subject to contrary
State legislation. The Constitution and the statute say that
municipalities may adopt laws of the kind described in the
language we have quoted "except to the extent that the
legislature shall restrict the adoption of such a local law" (NY
Const, art 9, § 2 [c] [ii]; Municipal Home Rule Law § 10 [1]
[ii]). General Municipal Law § 103 is, as Associated Builders
makes clear, just such a restriction. The requirement of § 103
that municipalities contract with the lowest responsible bidder
is plainly in tension with the right of a municipality to say
that it will contract only with firms that provide certain
benefits. Where the two conflict, as they do here, the
legislative restriction on the municipality's power prevails. In short, the Equal Benefits Law conflicts with General Municipal Law § 103. The City Council has not demonstrated a
clear legal right to have the Equal Benefits Law enforced.
III
The Equal Benefits Law is also preempted by ERISA,
except to the extent that it governs benefits that are outside
ERISA's scope. In so holding, we agree with two federal district
courts that have addressed the validity under ERISA of local
legislation similar to the Equal Benefits Law ( Catholic Charities
of Maine, Inc. v City of Portland, 304 F Supp 2d 77, 84-93 [D Me
2004]; Air Transport Assn. of Am. v City and County of San
Francisco, 992 F Supp 1149, 1165-1180 [N D Cal 1998]). ERISA is a federal statute that imposes disclosure and
reporting requirements, and establishes standards of conduct, for
employee benefit plans and their fiduciaries ( see29 USC § 1001
[b]). A consistent, nationwide regulatory scheme was clearly one
of Congress's goals, and to that end it provided that "the
provisions of [ERISA] shall supersede any and all State laws
insofar as they may now or hereafter relate to any employee
benefit plan" of the kind governed by ERISA (29 USC § 1144 [a]).
ERISA plans include, among other things, "any plan, fund, or
program . . . maintained by an employer . . . for the purpose of
providing . . . medical, surgical, or hospital care or benefits,
or benefits in the event of sickness, accident, disability, death
or unemployment . . ." (29 USC § 1002 [1]). Clearly, the
coverage of ERISA overlaps substantially with the coverage of the
Equal Benefits Law, though the Equal Benefits Law may apply to
some benefits not governed by ERISA ( see Air Transport Assn. of
Am. v City and County of San Francisco, 992 F Supp at 1169 [a law
applying to "benefits that . . . require no 'ongoing
administrative program,' . . . does not apply to a 'plan' and
thus is not preempted"; also, "[m]oving expenses . . . are not
even ERISA-covered benefits"]). The broad preemptive language of 29 USC § 1144 (a),
superseding all laws that "relate to any employee benefit plan,"
has been held by the United States Supreme Court to be no less
sweeping than it appears on its face: "A law 'relates to' an
employee benefit plan, in the normal sense of the phrase, if it
has a connection with or reference to such a plan" ( Shaw v Delta
Air L, Inc., 463 US 85, 96-97 [1983]). In Shaw, the Court struck
down a New York law that prohibited discrimination in the
provision of employee benefits on the basis of pregnancy. Shaw
holds that states (and, of course, municipalities) cannot
regulate the content of ERISA plans. That holding has been left
untouched by more recent cases, which hold, in effect, that ERISA
does not preempt every state law that has an indirect impact on
an ERISA plan ( New York State Conference of Blue Cross & Blue
Shield Plans v Travelers Ins. Co., 514 US 645 [1995]; HMI Mech.
Sys., Inc. v McGowan, 266 F3d 142 [2d Cir 2001]). The Equal Benefits Law seemingly seeks to do exactly
what ERISA, as interpreted in Shaw, prohibits -- to prescribe the
terms of benefit plans. The Council argues, however, that the
prohibition is inapplicable because the Equal Benefits Law does
not compel any firm to offer domestic partner benefits; it merely
provides that the City will not contract with firms that do not
do so. Thus, says the Council, the law does not regulate benefit
plans, but reflects a decision by the City, as a market
participant, to choose the firms it deals with based on the
benefits those firms provide their employees. The Council's
"market participant" argument is inconsistent with United States
Supreme Court precedent. While the Supreme Court has not addressed the market
participant theory in an ERISA preemption case, it recognized a
limited market participant exception to federal labor law
preemption in the so-called Boston Harbor case ( Building &
Constr. Trades Council v Associated Bldrs. and Contrs. of
Massachusetts/Rhode Island, Inc., 507 US 218 [1993]). Boston
Harbor (like our New York State Chapter case, discussed at pages
9-11 above) involved a public agency's practice of entering into
Project Labor Agreements that required its contractors to sign
agreements with labor unions, in order to prevent a project from
being disrupted by labor disputes. Under the preemptive
provisions of federal labor law, a state could not impose such a
requirement by statute or regulation, but the Court held in
Boston Harbor that the requirement could be imposed by a state
agency when the state is not regulating, but is acting as an
owner or manager of property that "must interact with private
participants in the marketplace" (507 US at 227). The Boston
Harbor Court recognized, as we did in New York State Chapter,
that a PLA may produce economic benefits that a public
proprietor, like a private proprietor, should be free to seek in
the marketplace. The Court thus recognized a distinction
"between government as regulator and government as proprietor"
( id.). Boston Harbor does not hold, however, that a state may
escape the force of federal preemption by using its power in the
marketplace to implement governmental policies. To the contrary,
Boston Harbor makes clear that a state acts as a regulator, not a
proprietor, when it uses its bargaining leverage as a means of
attaining policy ends. Thus, the Court in Boston Harbor
distinguished Wisconsin Department of Industry, Labor and Human
Relations v Gould Inc. (475 US 282 [1986]), which held that
certain state activity in the marketplace was preempted. In Gould, the Court held that a Wisconsin statute
barring some labor law violators from doing business with the
State was preempted by federal labor law. The difference between
Boston Harbor and Gould, the Court explained in Boston Harbor, is
that in Gould the State's reason for its marketplace activity was
to deter labor law violations, not to protect the State's
proprietary interest in the efficient performance of contracts
(507 US at 228-229). Under Boston Harbor, the market participant
exception to preemption is limited to the situation where "the
State acts as a market participant with no interest in setting
policy" ( id. at 229). The Equal Benefits Law is much more like the statute
involved in Gould than the contract specification at issue in
Boston Harbor. In enacting the Equal Benefits Law the Council
was obviously "setting policy." As we pointed out above, it was
not acting just as a manager or owner of property concerned with
assuring the cheap and efficient performance of contracts. The
Equal Benefits Law, as its name implies, is designed to induce
contractors to treat domestic partners and spouses equally, just
as the Wisconsin statute in Gould was designed to induce
contractors to avoid unfair labor practices. Thus the market
participant exception does not apply here, and the Equal Benefits
Law, except to the extent that the benefits it governs are not
provided through ERISA plans, is preempted by ERISA.
[ ... ]
Accordingly, the order of the Appellate Division should
be affirmed, with costs.
Matter of Council of the City of New York v Bloomberg, et al.
No. 6
ROSENBLATT, J. (dissenting):
As a threshold matter, the City Council asserts that
the Mayor may not challenge the validity of the Equal Benefits
Law in this article 78 case. The majority claims that the
Council's approach would put the courts in "the unacceptable
position of directing an officer to violate his or her oath of
office by enforcing an unconstitutional law" (maj opn at 5).
Respectfully, I dissent. Under a separation of powers system it
is the job of the legislative branch to enact laws and the
executive to carry them out.[1]
An executive who believes that a
law is unconstitutional is not powerless but must follow a
process by which the judiciary -- and not the executive --
determines the issue in the first instance.
I.
By insisting that the Mayor follow a duly enacted law -
- unless and until a court nullifies it -- the Council is not
putting the courts in an "unacceptable position" of directing the
Mayor to violate his oath.[2]
On the contrary, our system requires
that the judiciary preserve its duty as arbiter of a law's
constitutionality. An executive is authorized to bring a
declaratory judgment action challenging an enactment's
constitutionality and the case goes forward until a final
judicial declaration is made. That's how the system is supposed
to work.
What happened here upended the process. The City
Council enacted Local Law 27 of 2004 (New York City
Administrative Code § 6-126), the Equal Benefits Law, by a vote
of 41 to 4. The Mayor disapproved the law. The City Council
over-rode the Mayor's veto, pursuant to New York City Charter §
37 (b).[3]
The Mayor then sought a judgment declaring the law
invalid and a permanent injunction barring its implementation.
He also applied for a temporary restraining order and moved for a
preliminary injunction staying implementation.[4]
After Supreme
Court denied his application for a temporary restraining order,
the Mayor announced that his administration would not implement
the law. On the day the Equal Benefits Law took effect, the City
Council commenced an article 78 proceeding to compel the Mayor to
enforce the law. In his verified answer, the Mayor asserted by
way of affirmative defense that the law was invalid.
After the Legislature enacts a law it should not be
necessary for it to start a lawsuit saying, in effect, "We've
passed the law and really meant it; now we need a court to direct
the executive to enforce it." Passing the law ought to be
enough; a legislature should not be forced to go through this
second step. By implementing a duly enacted law, the Mayor is
violating no oath; he is following precepts fundamental to a
system of separation of powers (see Under 21, Catholic Home
Bureau for Dependent Children v New York, , 65 NY2d 344, 356
[1985]). Indeed, an executive's oath of office is honored not by
repudiating the law but by carrying it out unless and until the
judiciary nullifies it.
Should a piece of legislation appear to be unlawful,
the executive may seek its judicial invalidation, using expedited
measures as necessary. Were this a clearly unlawful piece of
legislation, as the racial segregation example the majority poses
(maj opn at 6-7), then no doubt a court would act immediately to
block its implementation. Here, the Mayor lost his application
for a temporary restraining order but still refuses to comply
with the law, conflating the roles of the executive and judicial
branches of our government.
II.
Our colleagues in the majority apparently recognize
that a petitioner who challenges the validity of legislation may
not proceed by article 78 but must bring a declaratory judgment
action (see maj opn at 4). That is the law. ( New York City
Health & Hosps. Corp. v McBarnette, , 84 NY2d 194, 203-204 1994].)
Cases to this effect are legion.[5]
Unless the challenge is
directed at the procedures followed in the enactment or at the
constitutionality of its application, "an article 78 proceeding
may not be used to test the constitutionality of a legislative
enactment" ( Board of Education v Gootnick, 49 NY2d at 687; see
Save the Pine Bush, Inc. v Albany, 70 NY2d at 202).
The majority goes on, however, to hold that a
constitutional challenge may be employed as a "defense" in an
article 78 proceeding (maj opn at 5).[6]
I disagree and would rule
that the executive may not assail the constitutionality of a law
in a lawsuit that he, in effect, provoked because he refused to
apply the law in the first place. If we approved of that type of
executive action, the executive branch could refuse to enforce
duly enacted legislation and put lawmakers to the burden of
bringing litigation to give life to their laws.
By acting as it did, the executive branch shifts the
burden, creating a precedent that, in my view, skews the roles of
the legislative and executive branches. The City Charter
"provide(s) for distinct legislative and executive branches" and
"no matter how well-intentioned his actions may be, the Mayor may
not unlawfully infringe upon the legislative powers reserved to
the City Council" ( Under 21, Catholic Home Bureau for Dependent
Children v New York, 65 NY2d at 356). This is true whether the
executive attempts to "legislate" by action or by inaction, by an
unauthorized executive order or by impermissible failure to
enforce.
Further, executive action of this type would strip the
judiciary of its power to determine, in the first instance,
whether a law is valid, and thereby clothe the executive with not
only legislative but judicial powers. The Mayor's position that
the Executive Branch can say when a law is unconstitutional
equates the powers of executive officials with those of the
Judiciary (see Ameron, Inc. v U.S. Army Corps of Engineers, 610 F
Supp 750, 754 [DNJ 1985]). "It is, emphatically, the province
and duty of the judicial department, to say what the law is."
( Marbury v Madison, 5 US 137, 177 [1803].)
III.
For these reasons, I would not reach the questions of
state or federal preemption but would have the declaratory
judgment action go forward. The grounds of that action are that
the Equal Benefits Law is preempted by state law and by federal
law and that it curtails mayoral powers without providing for a
referendum. The Mayor claims state law preemption, asserting
that the Equal Benefits Law conflicts with the competitive
bidding statute, General Municipal Law § 103. He further claims
that the Equal Benefits Law is federally preempted in so far as
it directly affects contractors' ERISA plans.[7]
Contrary to the majority's statement (maj opn at 6),
the state and federal law preemption claims do raise questions of
fact. The Mayor claims that the Equal Benefits Law impedes
competition to bid for contracts with New York City, and that
neither its purpose nor its likely effect is to obtain the best
work at the lowest possible price. The City Council, on the
other hand, asserts the very opposite, quoting New York State
Comptroller Alan Hevesi's testimony that the Equal Benefits Law
"has the potential to save significant resources for both the
city and the state of New York." The federal law preemption
claim turns on the nature and extent of the economic effect of
the law on the costs of contractors' ERISA plans. Contradicting
the Mayor's position on the Equal Benefits Law, the City Council
quotes testimony suggesting that a similar law in San Francisco
"works because it does not cost contractors much money to comply
with this legislation."
If, as our own jurisprudence mandates, the declaratory
judgment action were allowed to run its course, the Mayor's
motion for summary judgment and the City Council's response would
be accompanied by the submission of evidence pertaining to the
intent of the City Council in enacting the Equal Benefits Law and
its expected economic effects. Expert testimony would be sought,
hearings transcripts would be studied, credibility judgments
would be made. Supreme Court would be able to consider the
extent to which factual matters were rationally controverted in
reaching a conclusion about whether summary judgment was
warranted. It would do so with all facts viewed in the light
most favorable to the non-moving City Council.
Instead, the Appellate Division improperly chose to
rule on the validity of a duly enacted local law in the context
of an article 78 proceeding and therefore made its decision with
the benefit only of a verified petition, a verified answer and a
handful of accompanying documents and preceding pleadings. Such
a ruling implicitly does away with the heavy burden our case law
imposes on a party seeking to challenge a duly enacted law.
"[P]arties challenging a duly enacted statute face the initial
burden of demonstrating the statute's invalidity beyond a
reasonable doubt" ( Dalton v Pataki, 5 NY3d 243, 255 2005]
[internal quotation marks and citations omitted]).
In fact, in order to prevail, a challenger has to
"prove beyond a reasonable doubt that in any degree and in every
conceivable application the [legislative enactment] suffers
wholesale constitutional impairment" ( Local Gov't Assistance
Corp. v Sales Tax Asset Receivable Corp., 2 NY3d 524, 535 2004]
[internal quotation marks and citations omitted]; see also Cohen
v State, , 94 NY2d 1,8 [1999]; Moran Towing Corp. v Urbach, , 99 NY2d 443, 448 [2003]). Moreover, we have held that this heavy initial
burden applies not only to challenges to state laws but also to
challenges to municipal ordinances ( Lighthouse Shores, Inc. v
Islip, , 41 NY2d 7, 11 [1976]; Twin Lakes Dev. Corp. v Town of
Monroe, 1 NY3d 98, 106 [2003]).
When a challenge to a law is raised in an article 78
proceeding, whether by one side or the other, the challenger is
unfairly relieved of its burden if a court summarily declares the
law invalid without benefit of a record assembled with that
burden in mind. This distinction between article 78 and
declaratory judgment is critical and must be maintained if we are
to preserve proper methods of constitutional analysis. This goes
to more than form. In the case before us, it implicates
separation of powers.
IV.
As a special proceeding, an article 78 proceeding "is
as plenary as an action, culminating in a judgment, but is
brought on with the ease, speed, and economy of a mere motion"
(Siegel, NY Prac § 547, at 943 [4th ed]). Since it is "designed
to facilitate a 'summary disposition' of the issues presented,"
its procedures are in keeping with its summary nature ( Davidson v
Capuano, 792 F2d 275, 280 [2d Cir 1986]). Although an article 78
respondent may move for summary judgment pursuant to CPLR § 409
(b), it remains "in the very spirit and purpose of proceedings
under article 78 to provide a summary remedy, so summary, indeed,
as to dispense with the need or occasion for the application of
summary judgment" ( Rockwell v Morris, 12 AD2d 272, 275 [1st Dept
1961]).
By contrast, a declaratory judgment action brings with
it all the apparatus of an action, proceeding to trial unless the
court dismisses the case or grants a motion for summary judgment.
Faced with a summary judgment motion, the court must carefully
consider the material facts to ascertain whether any are
genuinely controverted, before deciding that there is, or is not,
a material triable issue of fact ( Glick & Dolleck v Tri-Pac
Export, Corp., , 22 NY2d 439, 441 [1968]; Zuckerman v City of New
York, , 49 NY2d 557, 562 [1980]). Moreover, in that posture, the
facts must be viewed in the light most favorable to the
non-moving party ( Matsushita Elec. Indus. v Zenith Radio Corp.,
475 US 574, 587 [1986]).
Whether it is the article 78 petitioner or -- as in
this case -- the opposing side (the Mayor) who seeks to have the
courts declare a law invalid, the careful scrutiny of the record
in search of triable facts that accompanies an action at the
summary judgment stage is too easily by-passed when the validity
of a law is summarily and improperly assessed in a manner suited
to special proceedings that are strictly limited in scope.[8]
The article 78 proceeding has the quite specific
purpose of superseding the common law writs of mandamus,
prohibition and certiorari to review. It is ill fit as a vehicle
for constitutional analysis. By contrast, there is no statutory
restriction on the kinds of claim that may be brought in the form
of a declaratory judgment action and it has traditionally been
used to test a law's constitutionality (Siegel, NY Prac § 437, at
741 [4th ed]).
V.
The Mayor relies on People ex rel. Sherwood v State
Board of Canvassers, 129 NY 360 (1891). There, we denied an
application for a writ of mandamus compelling the issuance of a
certificate of election to a prospective state senator who was
constitutionally ineligible for the office because he was already
a city government officer. The Court, however, repeatedly
stressed the undisputed nature of the facts: the question of the
candidate's ineligibility was "a pure legal question, depending
upon undisputed facts" ( id. at 366); "upon the undisputed facts,
the court [was] able to see that he [was] ineligible" ( id. at
373). At best, Sherwood stands for the proposition that an
article 78 proceeding may properly be dismissed where, because
the facts are undisputed, the court can decide as a matter of law
that the petitioner has no legal right to the relief sought. The
present litigation is as factually controverted as Sherwood was
factually simple.
In Kendall v United States, 37 US 524 (1838), the
United States Supreme Court affirmed a judgment of the Circuit
Court of the District of Columbia ordering a writ of mandamus to
compel an executive branch official, the Postmaster General, to
implement a law that he refused to enforce. The Court rejected
the argument that the executive branch was vested with the power
to refuse to enforce a law. "To contend that the obligation
imposed on the [executive branch] to see the laws faithfully
executed, implies a power to forbid their execution, is a novel
construction of the constitution, and entirely inadmissible" ( id.
at 613).
VI.
Just as a judicial "injunction must be obeyed until
modified or dissolved, and its unconstitutionality is no defense
to disobedience" ( Metropolitan Opera Ass'n v Local 100, Hotel
Emples. & Restaurant Employers Int. Union, 239 F3d 172, 176 [2d
Cir 2001]; see Walker v Birmingham, 388 US 307, 314-21 1967]),
duly enacted legislation must be enforced by the executive branch
and its alleged invalidity is no defense.
By refusing to enforce a duly enacted law of New York
City's legislative branch, the Mayor assumes a legislative
authority he does not possess. When the Executive acts
inconsistently with the Legislature or usurps its exclusive
powers, the doctrine of separation of powers is violated ( Rapp v
Carey, , 44 NY2d 157 [1978]). "The Framers with memories of the
tyrannies produced by a blending of executive and legislative
power rejected that political arrangement." ( Youngstown Sheet &
Tube Co. v Sawyer, 343 US 579, 633 [1952] [Douglas, J.,
concurring].)
I would therefore reverse the order of the Appellate
Division and allow the declaratory judgment action to proceed.
Footnotes
1 The Mayor is "the chief executive officer of the city"
(New York City Charter § 3), whereas the City Council is "vested
with the legislative power of the city" ( id. § 21).
2 The majority disapproves of my asserting "without
citation of authority" that the Mayor has a duty to follow
enacted law unless and until a court nullifies it (maj opn at 5).
It seems to me basic that legislatures pass laws, executives
carry them out and courts decide their constitutionality. The
Supreme Court has told us as much ( see Marbury v Madison, 5 US 137, 177 [1803]; Kendall v United States, 37 US 524, 613 1838];
Youngstown Sheet & Tube Co. v Sawyer, 343 US 579, 587-588
[1952]). If the majority means that there is no authority in the
New York jurisprudence for this proposition, that is probably
because no one thought to question it and the prospect of a New
York executive (Governor, Mayor or County Executive) unilaterally
refusing to follow a legislative enactment is virtually unheard
of.
3 The Mayor may veto ("disapprove") a local law but, if
after reconsideration, "the votes of two-thirds of all the
council members be cast in favor of repassing such local law, it
shall be deemed adopted, notwithstanding the objections of the
mayor" (New York City Charter § 37 [b]).
4 The Mayor withdrew his motion for a preliminary
injunction the day before the Equal Benefits Law took effect.
5 See e.g. Lakeland Water Dist. v Onondaga County Water
Authority (24 2 400, 407 [1969]); Matter of Kovarsky v Housing
& Dev. Admin. of City of N. Y. (31 2 184, 191 [1972]); Board
of Education v Gootnick (, 49 NY2d 683, 687 [1980]); Press v County
of Monroe (50 2 695, 702 [1980]); Save the Pine Bush, Inc. v
Albany (70 2 193, 202 [1987]).
6 The majority suggests (maj opn at 4-5) that this Court
expressly held in Carow v Board of Education (272 NY 341 [1936])
and People ex rel Balcom v Mosier (163 NY 32 [1900]) that an
officer against whom a proceeding for a writ of mandamus was
brought could defend on the ground that the legislation he or she
had been asked to enforce was invalid. In those cases, the Court
apparently assumed that courts could rule on the
constitutionality of a law concerning civil service appointments,
even though the context was an application for a peremptory writ
of mandamus commanding relator's appointment. But nowhere in
either opinion does the Court state such a proposition as a
holding.
7 ERISA does not preempt "laws with only an indirect
economic effect on the relative costs of . . . health insurance
packages" ( New York State Conf. of Blue Cross & Blue Shield Plans
v Travelers Insurance Company, 514 US 645, 662 [1995]; see also
Burgio & Campofelice, Inc. v. New York State DOL, 107 F3d 1000,
1009 [2d Cir 1997], HMI Mech. Sys. v McGowan, 266 F3d 142, 151
[2d Cir 2001]).
8CPLR § 7803 provides that "[t]he only questions that may
be raised in a proceeding under [article 78] are:
1. whether the body or officer failed to perform a duty
enjoined upon it by law; or
2. whether the body or officer proceeded, is proceeding
or is about to proceed without or in excess of
jurisdiction; or
3. whether a determination was made in violation of
lawful procedure, was affected by an error of law or
was arbitrary and capricious or an abuse of discretion,
including abuse of discretion as to the measure or mode
of penalty or discipline imposed; or
4. whether a determination made as a result of a
hearing held, and at which evidence was taken, pursuant
to direction by law is, on the entire record, supported
by substantial evidence."