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Campaign for Fiscal Equity, Inc. v. Marino, 87 N.Y.2d 253 (December 28, 1995)





The State Legislature passed Senate Bill No. 3248 during the 1994 legislative session, but the bill was never presented to the Governor. Plaintiffs brought a combined CPLR article 78 proceeding and action for declaratory judgment, seeking to have the retention of passed bills declared unconstitutional in violation of the Presentment Clause of the New York Constitution.

The supreme court dismissed the complaint for failure to state grounds for relief because the Constitution does not specifically mandate a time limit for presentment. The Appellate Division affirmed, reaching the merits of the case in holding that for the courts to decide such a matter would interfere with internal matters of the Legislature and that the Constitution does not expressly require presentment for all bills.


Whether the New York State Constitution requires a bill passed by both houses of the Legislature to be presented to the Governor.
Yes. Order reversed, with costs, and judgment granted declaring the practice of retaining bills that have passed both houses of the Legislature prospectively unconsitutional.
  • United States v Munoz-Flores, 495 U.S. 385 (1990).
  • INS v. Chadha, 462 U.S. 919 (1983).
  • Field v. Clark, 143 U.S. 649 (1892).
  • King v. Cuomo, 81 N.Y.2d 247 (N.Y. 1993).
  • People ex rel. Peterson v. Hughes, 25 N.E.2d 75 (Ill. 1939).
By the court
Related Sources
1.Court's Reasoning
A. Prior state of the law in New York

The specific question of the ability of the legislature to withhold a bill from the Governor prior to presentment had not previously been addressed by the New York courts. A related case, King v. Cuomo, 81 N.Y.2d 247 (N.Y. 1993), held that the legislature could not recall a bill after it has been sent to the Governor but before the Governor has had a chance to pass on it. The Court held that for the Legislature to reacquire bills would be unconstitutional as the "recall" practice was not specificaly enumerated in the Constitution. The court also found that the "recall" practice "undermin[ed] the integrity of the law making processs as well as the underlying rationale for the demarcation of authority and power in this process." King, 81 N.Y.2d at 255.

B. Majority

Article IV § 7 of the New York Constitution reads, "Every bill which shall have passed the senate and assembly shall, before it becomes law, be presented to the governor." Relying on several Supreme Court cases (United States v Munoz-Flores, 495 U.S. 385, 403 (1990); Field v. Clark, 143 U.S. 649, 672 (1892); INS v. Chadha, 462 U.S. 919, 946 (1983)) and an Illinois case (People ex rel. Peterson v. Hughes, 25 N.E.2d 75, 78 (Ill. 1939)) the court reads an implicit requirement into Article IV § 7 that a bill which has passed both houses be presented to the governor in a reasonable time.

The court further finds that public policy reasons require the delivery of bills to the Governor within a reasonable period of time. The court notes that without a reasonableness requirement certain individuals could effectively "nullify the express vote and will of the People's representatives" by refusing to deliver bills to the governor which have already passed both houses of the legislature.

2. Dissent
3. Survey of the Law in Other Jurisdictions
IDAHO: In a case regarding the length of time a Governor may have after presentment to act on a bill, the Idaho Supreme Court stated that "there is no provision in (the) constitution governing the time within which the legislature must present bills to the governor, and it is not for this court to impose any limitation as to time." Cenarrusa v. Andrus, 582 P.2d 1082, 1087 (Idaho 1978).

ILLINOIS: The Supreme Court of Illinois in People ex rel. Peterson v. Hughes, 25 N.E.2d 75 (Ill. 1939) interpreted the Illinois constitution to require the delivery of bills to the governor and that the governor has a ten day period within which he may act on a bill after presentment. However, the court stated that they did not seek to "impair the legislative power to fix the time of presentment," Peterson, 25 N.E.2d at 80, and that the legislature has "the power to determine when a bill shall be presented to the governor" but that power is "inferior to the constitutional provision which places upon the governor the duty to examine all bills, and which grants him ten days for consideration." Peterson at 79. Consequently, although the court in Marino cites this case favorably, the Illinois court did not pass specifically on the issue of the time frame for presentment. However, the Illinois Constitution does state specifically that "every bill passed by the General Assembly shall be presented to the governor within 30 calendar days after its passage." Ill. Const. art. IV, § 9.

NEW JERSEY: In a case about gubernatorial "pocket veto's" the New Jersey Supreme Court stated that although "the legislature is constitutionally required to present passed bills to the governor, the timing of such presentment is discretionary, and a rule or practice delaying presentment is well within the legislative prerogative." Gilbert v. Gladden, 432 A.2d 1351, 1355 (N.J. 1981).

VERMONT: A Vermont case dealing with presentment after adjournment of the legislature held that although no time requirement for presentment exists "public officers are bound to perform their duties with diligence and fidelity." Hartness v. Black, 114 A. 44, 50 (Vt. 1921).

WEST VIRGINIA: The West Virginia Supreme Court in State v. Heston, 71 S.E.2d 481 (W. Va. 1952) stated that the constitution of that state had no specific time requirement for presentment and that the Court had yet to rule on the matter.

KENTUCKY: Section 56 of the Kentucky Constitution requires bills to be presented immediately to the Governor after passing both houses of the legislature.

Several other states have language similar to that of New York's Constitution but have not yet faced litigation on the subject: California -- Article IV, § 10(a); Georgia -- Article III, § V; paragraph XIII (a); Indiana -- Article 5, § 14; Texas -- Article IV, § 14 and Utah -- Article VII, § 8.

4. Unanswered Questions
What is a reasonable time frame for the legislature to present a bill to the Governor? The dissent in Gilbert v. Gladden, 432 A.2d 1351, 1364 (N.J. 1981), a New Jersey case dealing with "pocket veto's," stated that reasonableness should be determined "in light of the two purposes that delay in presentation may legitimately serve: preparation of bills for presentation and careful study of bills by the governor." Gilbert, 432 A.2d at 1365. The court provided no guidance to the legislature as to what is a reasonable time frame.
5. Implications
Will the court continue this trend of strictly construing the constitution when dealing with questions of the legislative action? King v. Cuomo held that the legislative action of "recall" was not clearly enumerated in the constitution, and the court refused to read such a power into the constitution. In Marino, the court does the opposite and reads an implied requirement into the constitution. Perhaps the connection between these apparently contradictory methods of constitutional interpretation is the end result: the limiting of legislative power in pursuit of a more responsive, if not responsible, government. The court fails to discuss its interpretive techniques in this case with those used in King v. Cuomo despite the fact that each of the lower court rulings used the strict construction evident in King and found that the legislative action in Marino was constitutional. See Campaign for Fiscal Equity, Inc. v. Marino, 625 N.Y.S.2d 331, 333 (N.Y. App. Div. 1995) ("Absent a clear constitutional requirement, presentment . . . should be left to the purview of the Legislature.") and Campaign for Fiscal Equity, Inc. v. Marino, 617 N.Y.S.2d 263, 264 (N.Y. Sup. Ct. 1994) (noting that the absence of a specific mandate means that the presentment decision is "best left to the Senate.").

This is the second time in the past six months that the plaintiffs, Campaign for Fiscal Equity, have appeared before the Court of Appeals. The earlier case was Campaign for Fiscal Equity, Inc. v. New York. (LII commentary is available.)

Prepared By:

  • Richard J. Colosimo, 97
  • Reese E. Solberg, 97