CONSTITUTIONAL LAW - SEPARATION OF POWERS - EXECUTIVE ORDERS
EXECUTIVE ORDER NO. 141 WHICH CREATED THE "CITIZENS UTILITY BOARD" DID
NOT VIOLATE THE PRINCIPLE OF SEPARATION OF POWERS SINCE THE ORDER WAS NOT
INCONSISTENT WITH LEGISLATIVE POLICY NOR DID THE ORDER USURP LEGISLATIVE
] | [ISSUE & DISPOSITION
| [AUTHORITIES CITED
] | [COMMENTARY
Executive Order No. 141 ("the Order"), issued in 1991 by former Governor
Mario Cuomo, authorized the creation of the Citizens Utility Board (CUB),
a private, not-for-profit corporation intended to represent the interests
of residential utility customers during proceedings before the Public Utilities
Commission. The CUB was given access to up to four State agency mailings
per year as a means to further this goal, but was required to pay the agencies
for any increase in postage which resulted fr om the added materials. Bourquin,
a New York citizen, challenged the constitutionality of the Order, arguing
it violated the separation of powers doctrine. The Supreme Court rejected
the plaintiff's claim, finding that the Order furthered a policy clearly
articulated by the legislature. The Appellate Division reversed, holding
that by granting a single organization access to State mailings the Order
conflicted with existing legislative policy that several bodies should
be responsible for protecting the interests of utility consumers. In a
4-3 decision, the Court of Appeals reversed the Appellate Division, holding
that the Order neither conflicted with legislative policy nor usurped legislative
prerogatives. The court noted factual similarities to a pr ior case, Clark
, 66 N.Y.2d 185 (N.Y. 1985). That the Executive Orders in both
cases were consistent with legislative policy was evidenced by: (i) broad
statutory language and (ii) the existence of other agencies performing
similar tasks. I n addition, the court noted that, as in Clark, the legislature's
failure to pass a measure similar to the Order does not indicate conflict
with legislative policy. Additionally, the court found that the Order did
not set substantive content, as several previous Executive Orders which
were struck down had.
Whether the Executive Order creating the Citizens Utility Board is inconsistent
with legislative policy or usurps legislative prerogatives, thus violating
the doctrine of separation of powers.
Order reversed, with costs, defendants' motion for summary judgment granted,
plaintiffs' cross motion for summary judgment denied and judgment granted
declaring Executive Order No. 141 constitutional.
Clark v. Cuomo, 66 N.Y.2d 185 (N.Y. 1985).
Matter of Richardson, 247 N.Y. 401 (N.Y. 1928).
Fullilove v. Beame, 48 N.Y.2d 376 (N.Y. 1979).
OTHER SOURCES CITED
art. III, IV, VIII.
N.Y. Exec. Law §553(2)(b)
N.Y. Civ. Prac. L. & R. §5601(b)(1)
N.Y. Comp. Codes R. & Regs. tit. 9, §4.141 (1991).
N.Y. Elec. Law §3-120(13) (Consol. 1994).
N.Y. Pub. Serv. Law §§ 65,
Home Energy Fair Practices Act, N.Y. Pub. Serv. Law § 30.1 (Consol.
Alan Rosenthal, GOVERNORS AND LEGISLATORS: CONTENDING POWERS 167-213 (1990).
John Engler et al., Governor's Power to Control Agency Discretion,
74 Mich. B.J. 258 (1995) (discussing House Speaker v. Governor).
Peter M. Ullman, XIV Executive Branch, 24 Rutgers L.J. 1413 (1993);
Elana R. Hollo, XII Executive Branch, 23 Rutgers L.J. 1027 (1992)
(surveying state treatment of separation of powers).
Sheldon Whitehouse, The Impetuous Vortex, 43 R.I. Bar J. 7 (April
1995) (comparing Rhode Island's separation of powers doctrine with the
1. Effect on Current Law
Because the concept of separation of powers is only generally delineated
in New York State's Constitution, the boundaries of each branch are not
fixed. See, N.Y.
art. III- IV; 16 Am. Jur 2D, Constitutional Law §260 (1979).
Rather, nearly every New York case dealing with the separation of powers
has noted, "The exigencies of government have made it necessary to relax
a merely doctrinaire adherence to a principle so flexible and practical,
so largely a matter of sensible approximation, as that of the separation
of pow ers." In re Richardson
, 247 N.Y. 401 (N.Y. 1928) (Cardozo,
J.). Where the more specific question of whether an Executive Order violates
this principle has arisen, the focus has tended to be on whether the Executive
Order was either (i) inconsistent with legislative policy or (ii) usurping
legislative prerogatives. When considering whether executive action is
inconsistent with legislative policy, a court's analysis tends to focus
on one or more of the following issues: (i) the language of the statute
which underlies the Executive Order; (ii) the existence of other entities
performing functions similar to those authorized by the Executive Order
and (iii) legislative indecision with respect to the subject matter of
the Executive Order. Whether an Executive Order usurps legislative prerogative
rests upon whether the Order sets the substantive content in an area or
merely creates a mechanism to further legislative policy. In the grand
does not significantly alter the startin g point
of inquiry. However, Bourquin
highlights the traditional importance
of the second prong, usurpation of legislative prerogative, in striking
down an Executive Order.
Traditionally, consistency with legislative policy is analyzed in light
of the specific language of the legislation underlying executive action.
Statutory language which creates general goals or purposes within a specific
subject area, voting law for instance, is one factor which will tend to
validate an Executive Order which furthers those same general goals. See,
, 66 N.Y.2d at 190. Due to the court's discussion of statutory
further strengthens the proposition that when
the legislature has outlined general policies for an area of the law, the
executive may take actions which further those policies.
The existence of other entities performing a function (similar to those
implemented by an Executive Order), for instance registering voters, bolsters
the claim that an executive action, regarding that function comports with
legislative policy. Th at the prior legislative creation of entities to
perform specific functions precludes executive creation of similar bodies,
has been rejected by the Court of Appeals. See, Clark, 66 N.Y.2d
at 190. Bourquin reiterates the court's holding in Clark with respect to
the relevance of other entities performing functions similar to those authorized
by Executive Order.
A final point, concerns the failure of the legislature to pass a bill
with language similar to the challenged Executive Order. The general rule
in New York is that such a failure is not evidence that the Order contradicts
legislative intent. See, Clark, 66 N.Y.2d at 190. But see, Boreali
v. Axelrod, 71 N.Y.2d 1, 13 (1987) (noting that legislative inability
to reach agreement can, under certain situations, indicate inconsistency
between executive action and legislative policy) . Bourquin reinforces
the general rule that legislative indecision does not indicate that an
Executive Order is at odds with legislative policy.
The question of whether an Executive Order usurps legislative prerogative
is answered by considering whether the Order sets the substantive content
in a certain area or merely creates a mechanism to further legislative
policy. While implementatio n of policy is often done both by the legislative
and executive branches, the "open-ended discretion to chose ends," as the
legislative prerogative has been called, is clearly in the domain of only
the legislature. Tribe, AMERICAN CONSTITUTIONAL LAW §5-17, at 285
(19 ). This has been the most common death blow to Executive Orders struck
down on the basis of separation of powers. Bourquin continues this
trend; with the court emphasizing several past Executive Orders found unconstitution
al because they set substantive content and noting that Executive Order
No. 141 merely created a mechanism to implementat legislative policy.
The dissent takes issue with the majority's application of the legislative
consistency prong of the traditional analysis. Instead, the dissent requires
clear and specific legislative authorization for any Executive Order, not
merely coordination between the Order and the general language of the legislation.
Thus, while acklowleging that the legislature does have a policy of favoring
residential consumers, the policy does not authorize the creation of the
CUB. The dissent interpreted Clark
to contain such specific legislative
The dissent contended that the legislature implemented policy in this
area by creating various entities. Thus, the dissent and majority are diametrically
opposed to the import of existing, overlapping agencies. While indicative
of legislative consistency to the majority; other agencies imply legislative
inconsistency to the dissent.
Finally, the dissent argued that the Order set content, in that the
material was to be submitted by the CUB for approval by the receiving agency.
The dissent conceded this approval is limited to a determination of the
validity of the information and its relevance to the purpose and nature
of the CUB.
4. Survey of Law in Other Jurisdictions
Most states analyze separation of powers questions following the general
principles used by the Court of Appeals. The issue arises not only with
Governors' executive orders but also with state regulatory or administrative
actions. State consitutionality depends on a variety of factors. In Florida,
a court similarly held that executive action must "implement" and not "enlarge"
a clearly referenced legislative policy. State Dep't of Envtl. Reg.
v. Manasota-88, Inc.
, 584 So. 2d 133 (Fla. Dist. Ct. App. 1991). Oklahoma
stressed rules to carry out legislative policy must be subordinate in character.
(J. Brotton Corp. v. Oklahoma Alcoholic Bev. Laws Enforc. Comm'n
822 P.2d 683 (Okla. 1991). Then Governor Clinton's constitutional authority
to appoint special commisioners under certain circumstances passed constitutional
scrutiny in 1991 when statutory silence weighed in his favor. Clinton
, 810 S.W.2d 923 (Ark. 1991).
A Maryland decision sums up the consensus among the states that "[l]egislation
may not be enacted by an administrative agency under the guise of its exercise
of the power to make rules and regulations by issuing a rule or regulation
which is inconsistent or out of harmony with, or which alters, adds to,
extends or enlarges, subverts, impairs, limits or restricts the act being
administered." Insurance Comm'r. of State v. Bankers Indep. Ins. Co.,
606 A.2d 1072, 1075 (Md. 1992). Several states adhere to this general principle.
(State ex. rel. Stephan v. Finney, 836 P.2d 1169 (Kan. 1992); R.S.B.
v. State, 632 So. 2d 24 (Ala. Crim. App. 1993); GE Solid State,
Inc. v. Director, Div. of Tax. , 625 A.2d 468 (N.J. 1993); Cookie's
Diner, Inc. v. Columbus Bd. of Health, 640 N.E. 2d 1231 (Franklin Co.
Mun. Ct. 1994) (Ohio) ; Furia v. Furia, 638 A.2d 548 (R.I. 1994);
Secretary of State v. Wiesenberg, 633 So. 2d 983 (Miss. 1994); State
v. Domangue, 649 So. 2d 1034 (La. Ct. App. 1994); Malone v. Civil
Serv. Comm'n, 646 N.E.2d 150 (Mass. App. Ct. 1995); GTE v. Revenue
Cabinet, 889 S.W.2d 788 (Ky. 1994)).
Two cases are particularly relevant to Borquin. In House Speaker
v. Governor, 506 N.W.2d 190 (Mich. 1993), the Michigan Governor made
administrative changes abolishing an existing department and creating a
new one. This executive action was unconstitutional under a separation
of powers analysis. More recently, in Montana, the Governor's memorandum
regarding state employees was considered an execution of a statutory duty
to "supervise" and to "direct" department heads and "implementing" a state
pay plan even though there was an overlapping of authority with the Department
of Administration. Montana Public Employee's Ass'n v. Office of Governor,
898 P.2d 675 (Mont. 1995).
Kathryn W. Becker, '97
Quentin C. Faust, '97
James D. McCann, '97
Stephen A. Mutkoski, Jr., '97
Charles A. Samuelson, '96
Philip W. Sbaratta, '96
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