Rudder v. Pataki, 1999 N.Y. Int. 0067 (May 6, 1999).




Whether advocacy and other citizens groups have standing to litigate the constitutionality of an executive order creating the position of director of regulatory reform.


No. There is neither organizational standing nor individual standing in the several individuals who sought to challenge the executive order.


Governor Pataki issued an Executive Order creating the position of Director of Regulatory Reform with the authority to review the economic impact and other effects of rules issued by State agencies. Under the order, a proposed rule may be authorized, revised or disapproved by a four-member committee that receives the Director of Regulatory Reform's recommendation. Subsequently, the State Health Commissioner proposed amending a rule to require that the social work departments of urban hospitals be headed by directors with a master's degree in social work. The Director of Regulatory Reform twice rejected the proposed rule change as noncompliant with criteria set forth in the Governor's Executive Order. After the second rejection, the Health Commissioner submitted no further information to refute the Director of Regulatory Reform's objections and the proposed rule expired.

Cynthia Rudder, Director of the Nursing Home Community Coalition of New York State, joined by various other advocacy groups and civic organizations, including the Women's City Club of New York and the League of Woman Voters, sued in Albany County Supreme Court to have the Executive Order declared unconstitutional. Supreme Court Justice Teresi granted summary judgment to Governor Pataki and the other defendants, and dismissed the complaint, stating that the Executive Order "does not violate the principle of separation of powers" and that it is "a constitutional exercise of the Governor's executive authority in creating an executive office that performs regulatory review functions." The Appellate Division, Third Department, voted 3-2 to affirm Justice Teresi's order, holding that Rudder and the other advocates had no standing to sue since "any anticipated harm to the plaintiffs is remote and highly speculative...." Voting to reverse, the two dissenting justices said the Executive Order "constitutes an unprecedented and legally impermissible usurpation of administrative agencies' traditional rulemaking authority in favor of a select group of gubernatorial appointees and should be struck down as violative of the doctrine of separation of powers and contrary to controlling statutory law." Rudder and the other plaintiffs asked the Court of Appeals to reverse the order of the Appellate Division, declare the Governor's Executive Order unconstitutional, and permanently enjoin the Governor and others from enforcing the Executive Order or otherwise interfering in the State statutory rulemaking and permit-issuing processes.

The Court of Appeals concluded that the plaintiffs lacked standing. Its decision reviewed and rejected the three theories of standing advanced: organizational, citizen taxpayer and voter standing.