New York State Ass'n for Retarded Children, Inc. v. Carey

631 F.2d 162, 1980 U.S. App. LEXIS 16949

• Court: Court of Appeals for the Second Circuit
• Decided: June 4, 1980
• Docket: Nos. 1215, 1235, Dockets 80-7289, 80-7295
• Status: Published

Opinions

LUMBARD, Circuit Judge:

Hugh L. Carey and Edward V. Regan, the Governor and Comptroller of the State of New York respectively, appeal from two orders entered in the Eastern District by Judge Bartels on April 10, 1980. One order joined the Comptroller as a party, the other adjudged the Governor and the Comptroller to be in contempt if funding was not provided for the Willowbrook Review Panel by April 15th. We granted a stay of the contempt order pending disposition of this appeal.

Although the Governor was a party to the Consent Judgment of April 30, 1975, which was designed to improve conditions for a class of 5200 mentally retarded residents at the Willowbrook Developmental Center on Staten Island, in part through the establishment of a Review Panel, we conclude that Governor Carey has complied with the Consent Judgment by taking all steps within his lawful authority to secure funding for the Panel. Furthermore, we conclude that since the Consent Judgment clearly states that the Governor’s efforts are to be made within the framework of the state constitution and laws, there is no justification for requiring action in violation of New York law. Accordingly, the order is reversed.

This action was brought in 1972 by the plaintiff and other similar organizations and the parents of retarded residents on behalf of all Willowbrook residents against the Governor and numerous state agencies and officials charged with operating Wil-lowbrook to improve conditions which were alleged to violate the constitutional rights of the residents. After extended hearings, the parties agreed to a Consent Judgment signed by Judge Orrin G. Judd on April 30, 1975, which provided in part that “Without admission and prior to final findings of fact and conclusions of law” the parties agreed to “additional steps, standards and procedures necessary to secure the constitutional right to protection from harm for Willow-brook’s residents” in order to ensure that the procedures set out in greater detail in the judgment and accompanying 29 page appendix would be carried out. The judgment provided for the creation of a seven member Review Panel.

Paragraph 2 of the Consent Judgment provided: “Within their lawful authority, including the State constitution and applicable State laws, and subject to any legislative approval that may be required, defendants are hereby ordered and enjoined to take all actions necessary to secure implementation of the steps, standards and procedures contained in this judgment and in Appendix ‘A’ hereto . . . Defendants shall take all steps necessary to ensure the full and timely financing of this judgment, including, if necessary, submission of appropriate budget requests to the legislature.” It is conceded that the Governor has done all in his power to make specific budget requests to the Legislature to obtain the appropriation of $342,000 to finance the operation of the Review Panel and its staff. The funds requested for a Review Panel constituted a specific line item under the $747,000 requested for “Court-Ordered Program”. Despite the Governor’s request, the Legislature specifically deleted the entire $342,000 item. The Senate Finance Committee and the Assembly Ways and Means Committee stated:

The Fiscal Committees support the efforts of the Executive to meet the community placement mandates of the Wil-lowbrook Consent Decree. Funding is decreased by ($348,000) to reflect denial of funding for the Willowbrook Review Panel and to return reimbursement rates for other advisory groups to 1979-80 levels.

Apparently the Legislature disapproved of the high per diem rate to be paid to consultants on the Review Panel. The plaintiffs then petitioned the district court to order the restoration of the funds and Judge Bar-tels directed the Governor and the Comptroller (about to be joined as a party) to show cause on April 7 why they should not be ordered to pay the Review Panel’s expenses or be held in contempt by failure to do so. After hearing argument, Judge Bar-tels ordered that the Comptroller be joined as a party and that he and the Governor be adjudged in contempt if funding was not provided by April 15. Meanwhile, on April 14, the Governor submitted a supplemental appropriation bill, upon which the Legislature has not yet acted, to restore the Review Panel’s funds.

Judge Bartels acknowledged at the April 7 show-cause hearing that Governor Carey has acted entirely in good faith in this dispute. Nevertheless, Judge Bartels stated in his April 10 Memorandum Decision and Order, “[W]e remain unconvinced that the Governor, together with the extensive resources, financial and otherwise, at his disposal, has done all within his powers, through formal and informal channels, to see that funding be either restored or replaced.” Judge Bartels then suggested that the Governor, in order to provide at least temporary funding for the Panel, could draw funds from any one of five appropriations which, in Judge Bartels’ view, could be considered to comprehend such a use, or could interchange a portion of appropriated funds pursuant to Section 51 of the New York Finance Law. Accordingly, on the ground that funds from which the Review Panel could be paid were at the appellants’ disposal, Judge Bartels ordered that Governor Carey and Comptroller Regan be held in contempt if funding was not provided for the Review Panel by April 15. We reverse.

The appellants can obey Judge Bar-tels’ order, and thereby avoid the sanctions attending contempt, only by violating the Constitution and laws of the State of New York. Article VII, Section 7 of the New York State Constitution prescribes:

No money shall ever be paid out of the state treasury or any of its funds, or any of the funds under its management, except in pursuance of an appropriation by law; . . . and every such law making a new appropriation or continuing or reviving an appropriation shall distinctly specify the sum appropriated, and the object or purpose to which it is to be applied; and it shall not be sufficient for such law to refer to any other law to fix such sum.

New York case law states clearly that this provision “prohibits funds from being expended in excess of the amounts appropriated and for purposes other than those specified in the Appropriations Bill.” County of Oneida v. Berle, 91 Misc.2d 694, 398 N.Y. S.2d 600, 603 (Sup.Ct.1977), aff’d 49 N.Y.2d 515, 427 N.Y.S.2d 407, 404 N.E.2d 133 (N.Y. Court of Appeals, per curiam, 1980). In affirming the Supreme Court in Berle, the New York Court of Appeals reiterated, “However laudable its goals, the executive branch may not override enactments which have emerged from the lawmaking process. It is required to implement policy declarations of the Legislature, unless vetoed or judicially invalidated.” 49 N.Y.2d at 523, 427 N.Y.S.2d at 412, 404 N.E.2d at 137 (1980). Thus, under New York law, Governor Carey can legally expend funds for the Review Panel only if the Legislature has appropriated funds for that purpose. The Legislature did not appropriate funds for the Review Panel; on the contrary, it deleted the proposed line item for the Review Panel and it expressly stated its intention to deny such funding in the Report of the Senate Finance Committee and the Assembly Ways and Means Committee.¹

The Legislature’s denial also bars Governor Carey, notwithstanding the suggestions of Judge Bartels and appellees, from drawing funds for the Review Panel from other appropriations or pursuant to his authority under Section 51 of the New York State Finance Law to interchange up to 5% of different appropriations. Section 43 of the New York State Finance Law states:

Money appropriated for a specific purpose shall not be used for any other purpose, and the Comptroller shall not draw a warrant for the payment of any sum appropriated, unless it clearly appears from the detailed statement presented to him by the person, demanding the same as required by this chapter, that the purposes for which such,., money is demanded are those for which it was appropriated.

In light of the Legislature’s denial of funding for the Review Panel, Governor Carey cannot present to Comptroller Regan, as Section 43 requires, a statement clearly indicating that “the purposes for which such money is demanded are those for which it is appropriated.” Section 51 does not avail Governor Carey because it only authorizes an interchange between, on the one hand, “any item or items within a program or purpose” and, on the other, “any item or items within the same program or purpose, or with other items . . . contained in the comptroller’s classification.” There being no item for the Review Panel in the enacted budget, Governor Carey cannot interchange funds between the Review Panel and some item that the Legislature did enact.

Appellees argue that Judge Bartels can order Governor Carey to expend funds for the Review Panel, or face contempt, even if New York law forbids Governor Carey from expending funds for that purpose. Appellees rest this argument upon cases which hold that state action, or inaction, cannot defeat a constitutional or federally created right. See e. g., State of Washington v. Washington State Commercial Passenger Fishing Vessel Association, 444 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979); North Carolina Board of Education v. Swann, 402 U.S. 43, 91 S.Ct. 1284, 28 L.Ed.2d 586 (1971). The cases appellees cite did not, however, involve the remedy ordered in this case: - that a state official expend state funds for a purpose expressly disallowed by the state legislature. We have previously held, and repeat here, that a federal district court ought not to put itself “in the difficult position of trying to enforce a direct order . . .to raise and allocate large sums of money, . steps traditionally left to appropriate executive and legislative bodies responsible to the voters.” Rhem v. Malcolm, 507 F.2d 333, 341 (2d Cir. 1974). In the face of constitutional violations at a state institution, a federal court can order the state either to take the steps necessary to rectify the violations or to close the institution. Thus, a state cannot avoid the obligation of correcting the constitutional violations of its institutions simply by pleading fiscal inability. Dimarzo v. Cahill, 575 F.2d 16 (1st Cir. 1978); Welsch v. Likins, 550 F.2d 1122 (8th Cir. 1977); Rhem, supra. But that remedy leaves the question of the expenditure of state funds in the hands of citizens of the state, not in the hands of federal judges. Furthermore, the broad remedial powers invoked by appellees are predicated upon a finding of a constitutional violation. Assuming that the conditions at Willow-brook violated the Constitution in 1975 when the Consent Judgment was filed,² and accordingly that the federal court would have had remedial power to order the establishment of the Review Panel upon a finding of unconstitutionality,³ there is no basis for additionally assuming that, by itself, the state’s refusal to fund the Review Panel, which was established by the Consent Judgment, violates the Constitution.

The wording of the Consent Judgment envisioned the practical and political difficulties which the Governor necessarily faced regarding the appropriation of funds to maintain Willowbrook, and provide for the Review Panel, in accordance with provisions of the Consent Judgment. Thus, the Governor consented only to act within his “lawful authority, including the State Constitution and applicable State laws, and subject to any legislative approval'that may be required.”

Under the Consent Judgment the court cannot compel the Governor to act unlawfully. Those organizations and citizens who are properly concerned with the supervision of the conditions at Willowbrook must seek to convince their representatives in the New York State Senate and Assembly, who control the purse-strings and determine the priorities for the expenditure of State money, that funds for the Review Panel should be provided.

Reversed.

1 . Appellees argue that statements in the Report of the Senate Finance Committee and the Assembly Ways and Means Committee do not amount to binding statements of legislative intent under New York Public Interest Research Group, Inc. v. Carey, 55 A.D.2d 274, 390 N.Y. S.2d 236 (3d Dept. 1976), app. dism. as moot, 41 N.Y.2d 1072, 396 N.Y.S.2d 185 (1977), anu that Governor Carey can therefore legally expend funds for the Review Panel. However, even assuming that the report in the case before us is the same type of report as that in New York Public Interest Research Group, where taxpayers sought to restrain the Governor from expending funds actually appropriated, we do not find appellee’s argument persuasive. In that case, the report recommended to the Legislature, prior to the budget’s enactment, certain reductions in the proposed appropriations and, in conjunction therewith, that certain specific job titles be abolished. In enacting the budget, the Legislature reduced proposed appropriations and specifically abolished jobs in some instances, and reduced appropriations but did not specifically abolish jobs in other instances. The Appellate Division held that the Legislature’s specific abolition of some jobs and its silence as to other jobs “is sufficient to destroy reliance upon the Report as establishing the intent to abolish certain positions where the legislation is silent thereto.” Jd. 390 N.Y.S.2d at 237. In the case before us, however, the Legislature’s deletion of the line item for the Review Panel wholly accords with the statement of intent in the Report. There is no reason, therefore, to doubt that the Report’s statements represent the Legislature’s intent. Moreover, Governor Carey could not draw funds for the Review Panel even absent the Report, for he could not do so in compliance with Section 43 of the New York State Finance Law, as explained infra.

2 . Appellants do not concede that the conditions of Willowbrook Developmental Center violate the Constitution today.

3 . Nothing in this opinion should be construed to agree with the view that a federal court properly exercises its function when it takes upon itself the supervision of a state institution like Willowbrook Development Center. From the record before us in New York Association for Retarded Children v. Carey, 596 F.2d 27, 33 (2d Cir.), cert. denied, Caughiin III v. N.Y. State Assoc. for Retarded Children Inc., 444 U.S. 836, 100 S.Ct. 70, 62 L.Ed.2d 46 (1979), and in this proceeding, it appears that the district court has, since 1975, devoted considerable attention to the details of the operation of the Review Panel and the supervision of Willowbrook.