Summary
dismissing as not ripe for adjudication a declaratory judgment action seeking to bar certain officials from participating as delegates to the Constitutional Convention because it was speculative that the Convention would ever occur
Summary of this case from UnitedHealthcare of N.Y., Inc. v. VulloOpinion
520145
11-05-2015
Robert L. SCHULZ, Appellant, et al., Plaintiffs, v. Andrew M. CUOMO et al., Respondents, et al., Defendants.
Robert L. Schulz, Queensbury, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of counsel), for Andrew M. Cuomo, and others, respondents. Steven A. Crain and Daren J. Rylewicz, Civil Service Employees Association, Albany (Paul S. Bamberger of counsel), for Danny Donohue, respondent. Zachary W. Carter, Corporation Counsel, New York City (Elizabeth I. Freedman of counsel), for Michael R. Bloomberg, respondent.
Robert L. Schulz, Queensbury, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of counsel), for Andrew M. Cuomo, and others, respondents.
Steven A. Crain and Daren J. Rylewicz, Civil Service Employees Association, Albany (Paul S. Bamberger of counsel), for Danny Donohue, respondent.
Zachary W. Carter, Corporation Counsel, New York City (Elizabeth I. Freedman of counsel), for Michael R. Bloomberg, respondent.
Opinion
EGAN JR., J.P.
Appeal from an order of the Supreme Court (O'Connor, J.), entered February 6, 2014 in Albany County, which, among other things, granted certain defendants' motions to dismiss the complaint against them.
N.Y. Constitution, article XIX, § 2 provides—in relevant part—that, beginning in 1957 and every 20th year thereafter (in addition to such times as the Legislature may provide by law), “the question ‘Shall there be a convention to revise the constitution and amend the same?’ shall be submitted to and decided by the electors of the state.” In the event that a majority of the electorate votes in favor of such a convention, “the electors of every senate district of the state, as then organized, shall elect three delegates at the next ensuing general election, and the electors of the state voting at the same election shall elect 15 delegates at large” (N.Y. Const., art. XIX, § 2). The delegates duly elected then convene the following April and “continue their session until the business of such convention shall have been completed” (N.Y. Const., art. XIX, § 2).
Plaintiff Robert L. Schulz and numerous other pro se litigants commenced this action seeking a declaration that it would be a conflict of interest for defendants and all those similarly situated to serve as delegates to a future New York State Constitutional Convention and, further, to permanently enjoin them from becoming delegates at such convention. Specifically, the complaint alleges that, consistent with the provisions of N.Y. Constitution, article XIX, § 2, the following question shall appear on the ballot for the November 2017 general election: “Shall there be a convention to revise the Constitution and amend the same?” The complaint further alleges that, if such a convention was approved by the electorate, it would be contrary to “the essential principles of popular sovereignty, self-government and [the] separation of powers” for defendants and those similarly situated to be elected as delegates to such convention and, in turn, to vote upon issues related to the restriction of their own powers.
Although many of these pro se litigants signed the underlying notice of appeal, only Schulz filed a brief in this matter and, as a pro se litigant himself, he cannot be said to represent the remaining named plaintiffs. Hence, we deem Schulz to be the only plaintiff appearing on this appeal (see Judiciary Law § 478; Matter of Schulz v. New York State Dept. of Envtl. Conservation, 186 A.D.2d 941, 942 n., 589 N.Y.S.2d 370 1992, lv. denied 81 N.Y.2d 707, 597 N.Y.S.2d 937, 613 N.E.2d 969 1993; see also Gapihan v. Hemmings, 121 A.D.3d 1397, 1398 n. 2, 995 N.Y.S.2d 368 2014 ).
Plaintiffs seek to exclude from the field of potential convention delegates all those employed-directly or indirectly-by the executive and legislative branches of state government, the Unified Court System, certain public corporations, registered lobbyists and major political parties, as well as all recipients of a state pension.
Defendants Andrew M. Cuomo, Dean G. Skelos, Jonathan Lippman, Michael R. Bloomberg, Danny Donohue and Ed Cox (hereinafter collectively referred to as defendants) moved, by four separate motions, to dismiss the complaint against them contending, among other things, that plaintiffs' claims are not justiciable and, further, that the complaint fails to state a cause of action (see CPLR 3211[a]2, 7 ). Supreme Court granted defendants' respective motions, finding that such claims were not ripe for adjudication, and dismissed as moot plaintiffs' order to show cause seeking to certify each class of defendants. This appeal ensued.
Defendants John L. Stipo and Stephanie Miner apparently did not move to dismiss or otherwise respond nor do they take part in this appeal.
Plaintiffs' resulting motion to vacate Supreme Court's order, which Supreme Court characterized as a motion to reargue, also was denied.
We affirm. “[I]n order to warrant a determination of the merits of a cause of action, [the] party requesting relief must state a justiciable claim—one that is capable of review and redress by the courts at the time it is brought for review” (Hussein v. State of New York, 81 A.D.3d 132, 135, 914 N.Y.S.2d 464 2011, affd. 19 N.Y.3d 899, 950 N.Y.S.2d 342, 973 N.E.2d 752 2012 ). A claim is justiciable, in turn, when two requirements are met: first, that the plaintiff has “an interest sufficient to constitute standing to maintain the action” and, second, that the underlying controversy “involve[s] present, rather than hypothetical, contingent or remote, prejudice to [the] plaintiff[ ]” (American Ins. Assn. v. Chu, 64 N.Y.2d 379, 383, 487 N.Y.S.2d 311, 476 N.E.2d 637 1985, appeal dismissed and cert. denied 474 U.S. 803, 106 S.Ct. 36, 88 L.Ed.2d 29 1985; accord Police Benevolent Assn. of N.Y. State Troopers, Inc. v. New York State Div. of State Police, 40 A.D.3d 1350, 1352, 838 N.Y.S.2d 199 2007, appeal dismissed and lv. denied 9 N.Y.3d 942, 844 N.Y.S.2d 783, 876 N.E.2d 511 2007 ). As plaintiffs did not satisfy either of those requirements, Supreme Court properly granted defendants' respective motions to dismiss.
Briefly, as to the issue of standing, the crux of Schulz's argument upon appeal is that, if the electorate votes in favor of a Constitutional Convention in the November 2017 general election and defendants (and all those similarly situated) are elected to serve as delegates thereto, any proposed revisions to the N.Y. Constitution will favor government and the “political class,” thereby prejudicing plaintiff. This argument, however, is flawed in two respects. First, for the reasons that follow, the harm allegedly suffered by plaintiffs in this regard is speculative, as it is predicated upon a series of events that may not come to pass. Further, plaintiffs failed to articulate, among other things, the manner in which the alleged harm that they purportedly would suffer due to any prospective and pro-government revisions to the N.Y. Constitution would be different or distinct from that of the public at large (see generally Suffolk County Water Auth. v. Dow Chem. Co., 121 A.D.3d 50, 55, 991 N.Y.S.2d 613 2014; Lancaster Dev., Inc. v. McDonald, 112 A.D.3d 1260, 1261, 978 N.Y.S.2d 398 2013, lv. denied 22 N.Y.3d 866, 2014 WL 1362325 2014 ). Accordingly, plaintiffs lack standing to maintain this action.
More to the point, the instant action is “premature and as a matter of law may not be maintained [as] the issue presented for adjudication involves ... future event[s] beyond the control of the parties which may never occur” (American Ins. Assn. v. Chu, 64 N.Y.2d at 385, 487 N.Y.S.2d 311, 476 N.E.2d 637; accord Matter of New York Blue Line Council, Inc. v. Adirondack Park Agency, 86 A.D.3d 756, 760, 927 N.Y.S.2d 432 2011, appeal dismissed 17 N.Y.3d 947, 936 N.Y.S.2d 71, 959 N.E.2d 1019 2011, lv. denied 18 N.Y.3d 806, 2012 WL 445934 2012; see New York Pub. Interest Research Group v. Carey, 42 N.Y.2d 527, 531, 399 N.Y.S.2d 621, 369 N.E.2d 1155 1977 ). While it is true that the next referendum on whether to convene a Constitutional Convention will be placed before the voters at the November 2017 general election, the fact remains that a majority of the electorate may well vote against convening such a convention. Further, even assuming that the electorate votes in favor of the referendum, defendants (and all others similarly situated) may decline to seek to serve as delegates thereto; alternatively, should defendants and those similarly situated opt to run for this position in the November 2018 general election, they may not actually be elected as delegates to the convention, which would convene in April 2019 (see N.Y. Const., art. XIX, § 2). In short, because “the harm sought to be enjoined is contingent upon events which may not come to pass, the claim to enjoin the purported hazard is nonjusticiable as wholly speculative and abstract” (Matter of New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL–CIO v. Cuomo, 64 N.Y.2d 233, 240, 485 N.Y.S.2d 719, 475 N.E.2d 90 1984; accord Saratoga County Chamber of Commerce v. Pataki, 275 A.D.2d 145, 158, 712 N.Y.S.2d 687 2000 ); hence, defendants' motions to dismiss the complaint were properly granted. In light of this conclusion, we need not address defendants' alternate ground for dismissal-namely, that the underlying complaint fails to state a cause of action.
Finally, although Schulz asserts that Supreme Court erred in failing to consider the affidavit tendered by the Assembly Minority Leader, the subject affidavit does nothing more than offer bare legal conclusions regarding the propriety of defendants potentially serving as delegates at a future Constitutional Convention. Inasmuch as “[e]xpert opinion as to a legal conclusion is impermissible” (Russo v. Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301 A.D.2d 63, 69, 750 N.Y.S.2d 277 2002 [internal quotation marks and citation omitted] ), Schulz's argument on this point must fail. To the extent that Schulz also takes issue with the dismissal of his order to show cause seeking to certify each class of defendants, this issue-raised for the first time in his reply brief-is not properly before us (see e.g. Matter of Garcia v. Prack, 128 A.D.3d 1244, 1245, 8 N.Y.S.3d 609 2015 ) and, in any event, is lacking in merit. Schulz's remaining arguments, to the extent not specifically addressed, have been reviewed and found to be unpersuasive.
ORDERED that the order is affirmed, without costs.
ROSE, DEVINE and CLARK, JJ., concur.