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Bourquin v. Cuomo, 85 N.Y.2d 781 (June 13, 1995).





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 v. Cuomo, 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).
Cited Only
  • Fullilove v. Beame, 48 N.Y.2d 376 (N.Y. 1979).


  • N.Y. Const., art. III, IV, VIII.
  • N.Y. Exec. Law §553(2)(b) (Consol. 1994).
  • N.Y. Civ. Prac. L. & R. §5601(b)(1) (Consol. 1994).
  • 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, 79(1), 89-b, 91 (Consol. 1986).
  • Home Energy Fair Practices Act, N.Y. Pub. Serv. Law § 30.1 (Consol. 1993).


  • 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 federal doctrine).


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. Const. 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 scheme, Bourquin 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.
2. Implications
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, Clark, 66 N.Y.2d at 190. Due to the court's discussion of statutory language, Bourquin 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.

3. Dissent
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 authorization.

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 v. 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).

Prepared By:

  • 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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